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Customs - Case Laws
Showing 81 to 100 of 859 Records
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2010 (12) TMI 74 - CESTAT, MUMBAI
Refund of SAD - Conditions of notification no. 102/2007 - Refund claim was rejected by the department on the ground that appellants have failed to follow the condition 2(b) of the Notification and (b) the appellants have failed to discharge the burden of bar of unjust enrichment - Held that: - As pointed out by the Honrable Apex Court in Malwa Industries (2009 -TMI - 32788 - SUPREME COURT) the exemption Notification should be read liberally - he purpose of issuing the Notification is that the importer should not suffer SAD on the goods imported by them which have been imported for the purpose of resale and the proper ST/CST/VAT has been paid. SAD is to be paid by the importers as precaution measure to ascertain whether ST/CST/VAT has been discharge by the assessee or not. In this case, it has been clarified in the invoices which have been supported by the Chartered accountant certificate that the appellants have discharged the liability of Central service tax. Hence as per Notification no. 102/07, the appellants are entitled for the refund claim.
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2010 (12) TMI 68 - CESTAT, MUMBAI
Valuation of import of capital goods - technical know-how fee and royalty paid by the importer to their foreign collaborator - Held that: - We are of the view that the original authority should meticulously examine the provisions of the agreement and also consider the conduct of the importer in the context of determining the question whether the fees paid by the appellant to the foreign collaborator require to be added to the assessable value of the goods under import. The adjudicating authority is required to examine whether both the conditions prescribed under Rule 9(1)(c) have been cumulatively satisfied by the Revenue so as to claim inclusion of the above fees in the assessable value of the goods under import. - matter remanded back.
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2010 (12) TMI 30 - SUPREME COURT
Classification - import of vehicles - Held that: - Let the said exercise be done by the Adjudicating Authority independently by applying its own mind in accordance with law as expeditiously as possible. It is needless to state that the parties hereto shall have all the opportunity to represent their case in support of which they may place whatever documents and decisions that they intend to rely upon before the Adjudicating Authority
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2010 (12) TMI 24 - SUPREME COURT
Classification - to whether cargo imported is classifiable as non-edible Industrial Grade Crude Palm Stearin falling under Ch. Sub Heading No. 15 11 90 90 or as "RBD Palm Stearin" falling under Tariff Item No. 38 23 11 12 of the Customs Tariff Act, 1975 - Held that: - the import of the CRCL opinion and the CBEC Circular needs to be understood in proper perspective. The mere fact that the CRCL opinion and the CBEC Circular (No. 81/2002 - dated 03.12.2002) affirm the chemical composition of palm stearin cannot make a case for its classification under Ch. Sub Heading No. 15 11 90 90 - The essential conclusion to be drawn from these two reference documents is that palm stearin, which is obtained from the fractionation of palm oil, is comprised mainly of triglycerides of fatty acids. The question then arises as to whether it would be appropriate to categorize the triglycerides present in the oil, viz. Palm Stearin, under Chapter 15, while bracketing the free carboxylic acids derived during the refining process under Chapter 38 , the subject matter in question is specifically identified in Ch. Sub Heading No. 38 23 11 as "Palm Stearin", and further differentiated as "Crude" and "RBD" in Sub Heading Nos. 38 23 11 11 and 38 23 11 12 respectively The issue of the essential character of the subject matter in question may be resorted to only if identification under Rule 3(a) is impossible - the CBEC Circular needs to be thus harmonized with the Eight-digit First Schedule introduced vide the Customs Tariff (Amendment) Ordinance, 2003. As mentioned before, the Circular had been issued prior to the coming into force of the amended Tariff Schedule and consequently, did not have the latter as its reference point the interpretive powers of this Court are significantly curtailed by the presence of a specific enumeration in Chapter 38 of the Tariff Schedule. This Court, while deciding an issue of classification, can only adjudicate along the lines of settled norms and precedents drawn from statutory interpretation and judicial precedents
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2010 (12) TMI 16 - SUPREME COURT
Rough diamonds - illegal import - search and seizure - confiscation and penalty - application of baggage rules - benefit of exemption notification for illegal import - revenue contended that, the benefit of the exemption notification cannot be extended to a person who/which had illegally imported rough diamonds into the country. - revenue further argued that the same could not be availed by those persons who did not have the licence to import diamonds, or who had smuggled rough diamonds into the country clandestinely without payment of duty. - Held that: - It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. `Smuggled goods' will not come within the definition of `imported goods' for the purpose of the exemption notification - . In the present case, it is the finding of the Bombay High Court that the respondent-firm had imported diamonds of foreign origin without a valid licence and that finding has become final. Therefore, we agree with the learned senior counsel Sri R.P. Bhatt on this aspect. The Tribunal, in our view, erred in holding that the situation was covered by the case of Associated Cements Company (2001 -TMI - 78729 - Supreme court of India) decided by this Court
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2010 (12) TMI 4 - SC ORDER
Grant of benefit u/s FTP - Deputy Director General wrote to the Writ Petitioner (the respondent herein) that its claim for grant of 8 % Cash Compulsory Support premium against the advance import licence under the scheme funded by the Reserve Bank of India cannot be allowed as the scheme had been closed since 1994. - Held that: - The High Court has held that the Writ Petitioner (respondent herein) had applied on 26.07.1993. Hence its application was within time. The concerned authorities failed to take necessary action on the application of the Writ Petitioner, and their inaction cannot be a ground for denying the claim of the Writ Petitioner. - We see no infirmity in the impugned judgment.
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2010 (11) TMI 1037 - CESTAT NEW DELHI
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... ... ..... bservation on these two aspects in para 12.1 and 12.3 of the order. When he noticed contrary, he examined the issue in para 12.4 of the order further. He was of the view that there was no possibility of any other view other than quantity based discharge of export obligation. Consequently, he was compelled under the law to raise the demand under para 13 of the impugned order for the reasons stated in para 12.6 thereof. 3. Heard Revenue and also perused the record. 4. We do not find any unreasonability in the averments of the Revenue. When we did not find even from the grounds of appeal of appellant a case showing their approach to discharge the export obligation in strict terms of advance licence, there is no possibility to dispense the pre-deposit at all. Accordingly, we direct the appellant to make pre-deposit of entire demand raised by the order of adjudication within four weeks from today and make compliance on 4th Feb., 2011. Dictated & Pronounced in the open Court .
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2010 (11) TMI 1034 - CESTAT MUMBAI
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... ... ..... order ought to be reviewed by the jurisdictional committee of Commissioners and an appeal ought to be filed by the officer of Customs authorised by such committee. In the present case, the appeal of the department is directed against an order passed by the Commissioner of Customs (Appeals), Mumbai-II. The said order was reviewed first by the Commissioner of Customs (Imports), Mumbai and then by a committee of the Commissioner of Customs (General), Mumbai and the Commissioner of Customs (Imports), Mumbai. Obviously, neither of them had jurisdiction to review any order passed by the Commissioner of Customs (Appeals), Mumbai-II in relation to a matter like the present one falling within the jurisdiction of the Commissioner of Customs (Imports), Nhava Sheva. Nothing contained in Notification no. 15/00-Cus has any bearing on the jurisdictional issue considered by us. 5. The appeal is dismissed as not maintainable. Miscellaneous application is also dismissed. Pronounced in Court.
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2010 (11) TMI 1014 - CESTAT MUMBAI
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... ... ..... of unjust enrichment is applicable in this case which the appellant has failed to prove before the lower authorities. Hence, the impugned order is to be confirmed. 4. Heard both sides. 5. As the appellant has submitted that they have exported the goods which are manufactured by them from the goods imported on which they have suffered the duty if that is correct. In that event, the appellant is entitled for the refund claim. This fact is to be examined by the adjudicating authority by going through the records of the appellant. Hence the matter needs examination in that event, the impugned order is set aside and the appeal is allowed by way of remand. With the direction to both the appellant as well as adjudicating authority to go through the relevant records and to pass an appropriate order after giving a reasonable opportunity to the appellant to present their case and appellant is directed to satisfy the adjudicating authority with regard to their plea. (Dictated in court)
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2010 (11) TMI 1013 - CESTAT BANGALORE
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... ... ..... s not required to be established by the transferee of a licence. No contra decision has been cited by the Ld. D.R. or in the appeal memo. Further, the recent decision of this Tribunal and the Hon'ble Madras High Court have taken the same view. In the case of CC, Chennai vs. Salem Stainless Steel 2001 (131) ELT 30 (Mad.), the High Court has held that when the original licensees having already discharged their export obligations and obtained transfer endorsements and sold the licence, nexus is not required to be established by the transferee. This is the view taken by this Tribunal in Shyam Traders vs. CC, Mumbai 2002 (143) ELT 96(Tri.-Mum)." 7.9. Since we have disposed off the appeal in favour of the assessee on merits itself, we are not recording any findings on various other submissions made by both sides. 8. In view of the foregoing reasoning, the impugned order is set aside and the appeal is allowed with consequential relief. Pronounced in open Court on 10.11.10.
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2010 (11) TMI 1008 - DELHI HIGH COURT
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... ... ..... Customs accepts notice on behalf of the respondent, no further notice need be issued. Let the appeal be added to the hearing list in the category of “Regular Matters” in the week commencing 17th January, 2011. The appeal shall be listed in the first ten cases at the top of the Board. CM No.19125/2010 (Stay) This is an application for stay. Having heard learned counsel for the parties, it is directed that no coercive steps shall be taken against the petitioner. With the aforesaid direction, the application stands disposed of. If any adjournment is sought for by the appellant, the order of stay passed today shall stand vacated.
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2010 (11) TMI 1006 - CESTAT BANGALORE
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... ... ..... re was violation of CHALR, 2004 is not made out. It is undisputed that the current applicant is one of the recognized and oldest CHA Lincence Holder in India and has got Pan India operations and also international operations. Suspension of CHA lincence at this juncture, would definitely operate as a retrograde step for the trade, as well as the families of the employees, who are employed with the CHA. At the same time, the matter cannot be left to be disposed off in its regular course and hence staying the operation of the impugned order, we direct the Registry to list the matter for disposal on 25th November, 2010. Both sides are informed that the matter will be taken up for disposal and are directed to be prepared to make their submissions on the merits of the case. 7. Accordingly, the operation of the impugned order is stayed till the disposal of the appeal filed by the applicant, which is to be taken up for disposal on 25.11.2010. (Pronounced in open Court on 15.11.2010)
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2010 (11) TMI 929 - GOVERNMENT OF INDIA
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... ... ..... tioned above. 9. Government notes that the examination report states as under - “Inspected a lot of 8 plastic Drums and found sticker on drums showing Patchouli Oil CAS No. 8014-09-3 which are also mentioned in B/E. However, identify of the contents of drums cannot be established.” In this regard, it is observed that no reason is given to explain as to why identity of goods cannot be established. The description/quantity of the goods is admitted to be the same. On perusal of Shipping Bill, it is noted that respondent had declared in the S/B as “goods in original packing and not used in India”. The statement is not disputed by the department when the goods are in original packing and not used in India, there is no reason to dispute identity of goods. As such, Government agrees with the finding of Commissioner (Appeals) and uphold the impugned order-in-appeal. 10. The revision application is rejected being devoid of merit. 11. So ordered.
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2010 (11) TMI 926 - CESTAT MUMBAI
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... ... ..... ants in terms of the order of this Court would be entitled as a matter of restitution for refund of balance amount of redemption fine along with interest at the rate of 13 per annum as ordered by this Court by its order dated 25-10-1991. The third question is answered accordingly in favour of assessee. (emphasis supplied) 6. From the above, it follows that principles of unjust enrichment would not apply to redemption fine. Similarly, the principle of unjust enrichment would not apply to penalty also. From the above decision it also follows that the question before the Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. was refund of duty and not refund of fine and penalty. Therefore, the decision of the Apex Court is not applicable to the present case. Thus, the Commissioner (A)’s impugned order is not in consonance with law. Hence, the order which is also self-contradictory is set aside, and the appeal is allowed. (Dictated and Pronounced in open court)
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2010 (11) TMI 921 - MADRAS HIGH COURT
Compliance with necessary requirements to import goods - Nickel Chloride - Copper Sulphate - confiscation - penalty - Held that: - Section 38(1)(b) of Insecticides Act, 1968 states that import of insecticides for non-insecticidal use is not subject to the restrictions contained in the Act - as regards Copper Sulphate and Nickel Chloride under import, there was no such requirement to obtain registration certificate or import permit for their import as per EXIM policy - confiscation and penalty set aside - appeal dismissed - decided against Revenue.
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2010 (11) TMI 920 - CESTAT MUMBAI
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... ... ..... ging in committing breach thereof. This Court would not be justified in invoking writ jurisdiction in favour of such persons. Writ jurisdiction is available to further the cause of regime of law, not to abrogate the same. In the facts of this case the consignments confiscated by the Customs authorities cannot be allowed to be released on the licence which were sought to be produced by the petitioners. The importers who are importing goods without licence and then seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advance of their own wrong. The petitioners are one of them”. The SLP filed by the assessee against the above decision was dismissed by the Apex Court. The above decision applies to the facts of this case. The redemption fine and penalty imposed are very reasonable in this case. Therefore, we do not find any infirmity in the orders of the Commissioner and accordingly they are upheld. 5. Appeals are dismissed.
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2010 (11) TMI 917 - CESTAT MUMBAI
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... ... ..... t the respondents have failed to obtain necessary extension from the Asst. Collector. 7. I have gone through the Notification and as per the proviso, I find that this part is applicable where the assessee wants to re-export and if he has failed to re-export within six months and when not applied for extension of time to re-export. In this case, the facts are little bit different. At compelling circumstances, the respondents have not been able to re-export the said container hence they have opted to pay duty as per the above said Notification which has been paid by them. Hence the appellants have not violated any condition of the Notification. In these circumstances, confiscation of the impugned container is not justified. Consequently, the redemption fine and penalty is also not imposable. 8. With these observations, I do not find any reason to interfere with the impugned order and the same is upheld. The appeal filed by the Revenue is rejected. (Dictated in Court)
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2010 (11) TMI 914 - CESTAT MUMBAI
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... ... ..... made by the learned JDR. For better appreciation the relevant provision of law is reproduced hereunder - “In the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under Section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof to a penalty (not exceeding the difference between the declared value and the value thereof or five thousand rupees) whichever is the greater”. The above provision provides the mandatory upper-limit of penalty viz., not exceeding the difference between the declared value and the value thereof for ₹ 5,000/-, whichever is greater. There is nothing in the above provision regarding the mandatory lower-limit for imposition of penalty. Therefore, I do not find any infirmity in the impugned order which is upheld. The Revenue’s appeal, devoid of merits, is dismissed. (Dictated in open Court)
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2010 (11) TMI 913 - CESTAT CHENNAI
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... ... ..... pellants, they would be trading the imported goods as such and passing on the credit of additional duty to their customers, which they are not doing. 6. In the light of the foregoing, we are of the prima facie view that the appellants have not made out a case for complete waiver of pre-deposit either on merit or on limitation. The learned Advocate has also not advanced any arguments regarding financial hardship though the appellants in their stay application have referred to the cash liquidity crunch they would face for generating funds to pay the demanded duty and penalty. 7. Considering the foregoing, including the plea of financial hardships raised in the stay petition, we direct the appellants to pre-deposit 25 of the duty amount within a period of eight weeks from today and report compliance on 7-2-2011. Subject to compliance with the above direction, pre-deposit of the balance amount shall remain waived during pendency of the appeal. (Pronounced in the Court)
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2010 (11) TMI 909 - CESTAT MUMBAI
Imposition of redemption fine on importer - no Let Export Orders were given in respect of these three consignments prior to loading of the consignments on the ship. Such orders were only taken on the next day - Held that: - Since the exporters were no way involved in the prior shipment of the cargo and no other contravention in relation to the exported goods has been brought out and further, the goods are also not available for confiscation, we find no reason for imposition of the redemption fine and therefore, order of confiscation and imposition of redemption fine are set aside.
Imposition of penalty on CHA - Held that: - It appears that they had not instructed the shipping agent to ship the goods on the vessel ALPS on a prior date which happened to be a holiday i.e. Sunday. They were waiting to get the let export order which they got on the next working day, as they were under the impression that the concerned vessels would be sailing only subsequent to that date as per the dates notified by the shipping agents. Hence, we find that the contravention of loading the impugned containers without let export order cannot be attributed to the appellant CHA - penalty set aside.
Appeal allowed - decided in favor of appellant.
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