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Customs - Case Laws
Showing 41 to 60 of 110 Records
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2011 (1) TMI 1002 - CESTAT, MUMBAI
Application for stay - assessing authority doubted the correctness of the importer's declaration of 'prime quality' - Chartered Engineer certified the goods to be prime quality of stainless steel of hot rolled coils grade 304 and ruled out secondary or defective or non-standard material - Held that:- Considering the fact that the inspection of the goods by an approved Chartered Engineer was held as permitted by the assessing authority but no representative of the department could witness the proceedings of the Chartered Engineer, thus the Chartered Engineer should conduct a reexamination of the goods in the presence of the respondent and representatives of the department and submit a report to the assessing authority.
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2011 (1) TMI 996 - CESTAT, MUMBAI
Demand of differential duty and penalties - enhance the value of the goods - amount of duty was determined by the adjudicating authority by rejecting the declared value in two Bills of Entry and enhancing the value of the goods on the basis of Bank Advice - Commissioner further relied on Anil Modi's [indenting agent] statements to buttress his findings having admitted of receiving commission from ODC based on the higher price of the goods mentioned in the commission-related fax message - Dungarmal submitted that the transaction value was correctly declared by them and that no valid reason was stated by the Commissioner for rejecting the same & department should have given cogent reasons for rejection of the declared value - Held that:- Xerox copies of the alphabetically marked invoices were purported to have been issued by ODC as invoices covering a certain quantity of CRGO material sold to Dungarmal, it has not been established by the Revenue that the document was issued by ODC to Dungarmal as a supplementary invoice in respect of the goods already supplied under an original invoice. In fact, even the source of these alphabetically marked invoices was not disclosed to the appellants. Thus the Revenue could not produce the originals of these documents either. In the circumstances, the contention raised by assessee had to be accepted that the presumption under Sec.139 of the Customs Act is not available in respect of the xerox copies of what appeared to be alphabetically marked invoices issued by ODC to Dungarmal .
In any case, Dungarmal did not admit having received such invoices, nor did they admit that payment of any amount mentioned in any of such invoices was made to ODC either through banking channels or otherwise. The statements of Anil Modi, who was apparently confronted with these documents, would not be of any avail to the Revenue inasmuch as, undisputedly, the documents were not retrieved from his premises and also did not mention his name as indenting agent. Whatever was stated by Anil Modi in relation to the alphabetically marked documents will be of no relevance. For all these reasons, unable to accept the said alphabetically marked documents as evidence of undervaluation of goods by those who filed the relevant Bills of Entry. In the result, the value declared in the relevant Bills of Entry will have to be accepted, particularly in the absence of proof of contemporary imports of identical/similar goods at higher value.
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2011 (1) TMI 978 - CESTAT, KOLKATA
Penalty - anti-dumping duty - mis-declaration - SCN issued for confiscation of the goods on the ground that M/s.Parnami Sales Corporation for practical purposes were not actual importer of the consignment under the cover of bill of entry in question - Held that:- There is no finding that IEC code was obtained by fraud or by mis-representation by Shri Mohan Pandey. The adjudicating authority accepted that the submission of the importer that they are having an establishment at the address given at the time of obtaining IEC code. There is no finding regarding mis-declaration of the consignment in question or earlier consignments. The importer fairly admitted during argument that goods are liable for anti-dumping duty and in respect of earlier consignments also appropriate anti-dumping duty as well as customs duty was paid. There is no evidence on record to show that Shri Sanjay Daga gave financial help to Shri Mohan Pandey. However, consideration amount is paid to the exporter by the importing firm. There is no evidence that Shri Sanjay Daga impersonated Shri Mohan Pandey before the customs authorities. Therefore the adjudication order passed on basis that M/s.Parnami Sales Corporation are not actual importer are not sustainable. It is also not established on record that Shri Mohan Pandey obtained IEC code by fraud or by giving any false declaration. There is no proceeding initiated by the D.G.F.T. for cancellation of IEC code. In favour of assesee.
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2011 (1) TMI 883 - CESTAT, CHENNAI
Demand - Duty is confirmed on the ground that Notification No. 34/97-Cus. dated 7.4.1997 did not cover Singanallur and therefore the assessees could not have utilized DEPB credit against the DEPB licences under which the goods were imported - Held that:- DEPB scrip was registered at Singanallur and therefore the question of following TRA facility as per Circular No. 16/99 dated 7.4.1999 as amended by Circular No. 70/99 dated 6.10.1999 does not arise - Decided in favour of assessee.
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2011 (1) TMI 877 - CESTAT, AHEMDABAD
Classification of imported goods Condensate - Commissioner has held that imported goods are correctly classifiable under CTH 27101990 and has confiscated the goods and allowed the same to be redeemed on payment of fine of Rs. 5.50 Crores. He has also demanded duty of Rs. 4,45,37,500/-. Further, penalties were imposed on seven firms/ persons and all of them are in appeal. - held that:- there is no doubt that in the warehousing bills of entry filed and also in the IGM goods have been mis-declared. But for the elaborate investigations, this could not have been brought out. Therefore, the re-classification of the goods and confiscation thereof has to be upheld. We find that total value of the goods is Rs. 11,03,06,866/-, whereas the Commissioner has imposed redemption fine of Rs. 5.5 Crores. - Redemption find reduced - while upholding demand, interest and penalty on firm, personal penalties reduced. Admission of additional evidences - held that:- In the normal course the expert opinion would have been rejected. However, in the interest of justice and also in view of the fact that the expert opinion is only comments on the test reports, we find that there is no harm in allowing this application. Accordingly, this application for inclusion of evidence is allowed.
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2011 (1) TMI 876 - CESTAT, BANGALORE
Section 128 and 129 D(2) - There is no dispute that provisions in the Act pertaining to levy, collection, refund etc. apply to levy, collection, refund etc of cess levied under the APFPEC Act - As provisions relating to levy and collection are borrowed, the provisions relating to short levy, short payment, concomitant disputes and the remedies provided in Section 128 and 129 D(2) of the Act should also be held to have been borrowed for the purpose of APFPEC Act by virtue of the above sub-section - Therefore, reject the objection raised by M/s. Al Gyas Exports Pvt. Ltd. As regards the claim that a refund claim for excess duty paid can be validly made without challenging assessment under the act relying on the judgment of the Apex Court in the case of Karnataka Power Corporation Ltd. Vs. CC(Appeals) [2002 -TMI - 46268 - SUPREME COURT OF INDIA], note that a Larger Bench of the Tribunal had considered the ratio of the above decision and held that a refund claim was not maintainable unless the assessment order in pursuance of which duty paid was challenged and modified / set aside.
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2011 (1) TMI 869 - CESTAT, DELHI
Reduced the redemption fine and quantum of personal penalty - Appellant has imported Incomplete Used & Rusted Diesel Engines with Gear Box & Self and have not misdeclared the description of goods - Appellant referred that the same adjudicating authority in its order dated 04.03.2006 has taken the assessable of the same goods to be Rs. 6,150/- per piece and market value to be Rs. 8,500/- per piece, whereas in the present case the same goods were assessed at Rs. 7,900/- per piece and market value at Rs. 12,500/- per piece - Appellants have cited Hon’ble Tribunal Final Order No. 1071/06-SM(BR) dated 03.07.06 in the case of M/s. Supreme Enterprises, Delhi and No. 1590/06-SM (BR) date d31.10.2006 in their own case wherein the Tribunal has upheld the Order-in-Appeal passed by the Commissioner (Appeals). Central Excise, Chandigarh wherein redemption fine and penalty were substantially reduced - Decided in favour of assessee.
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2011 (1) TMI 863 - CESTAT, DELHI
Reduction of redemption fine and penalty- Appellant has imported "Old & Used Incomplete Photocopier Incorporating Optical systems-Low Duty" and have not misdeclared the description of goods - They have contested the assessable value determined by the Chartered Engineer as well as market enquiry conducted by the department, without taking them into confidence - Held that:- appellants have cited Hon'ble Tribunal Final Order NO. 171/06-SM(BR) dated 03.07.06 in case of M/s. Supreme Enterprises, Delhi, wherein the Tribunal has upheld the Order-in-Appeal passed by the Commissioner (Appeals), central Excise, Chandigarh wherein redemption fine and penalty were substantially reduced - Also,held that the appellant have not misdeclared the description of goods and impugned order does not disclose mens rea of any high degree against the appellant and thus, penalty needs to be reduced - Decided in favour of assessee.
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2011 (1) TMI 821 - GOVERNMENT OF INDIA
Revision application under Section 129DD - Imposed penalty under Section 116 of the Customs Act, 1962 - Short Landing of Goods - The Government is convinced that any Loading arrangements from consigner side can not have a binding effect for nature/category of the containers and that the cargo was de-stuffed from LCL Container therefore as per Bombay High Court’s Order in the case of M/s. Shaw Wallace[1986 -TMI - 41750 - HIGH COURT OF JUDICATURE AT BOMBAY], guidelines has been issued for the Customs authorities exercising powers under Section 116 of Customs Act, 1962 - New Custom House also issued Public Notice No. 50/92 following these guidelines that - “Regarding LCL Containers-that if the seal is intact at the time of discharging and de-stuffing of container than the carrier should be responsible for the difference between the manifested quantity and the de-stuffed tally - In the present case, it was a LCL container therefore the Shipping Agent is liable for action under Section 116 of Customs Act, 1962 - Thus, the Revision Application is allowed.
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2011 (1) TMI 783 - GOVERNMENT OF INDIA
Revision applications - Re-export of cigarettes - In the cited cases where the goods were allowed for re-export by the Govt. of India and goods were disposed off by the Deptt., the redemption fine should not be deducted and only personal penalty may kindly be deducted from the sale proceeds/CIF value of the goods - The adjudicating authority has shown with calculation that the duty itself was more than the sale proceeds - Therefore he rightly rejected the refund claims. Moreover, the GOI order No. 452-454/08 dated 26-11-08 had specified that export option may be exercised within 60 days of the issue of said order - Since the re-export option could not be exercised within said stipulated period, the said orders cannot be made applicable for clearance of goods for home consumption - As such the impugned orders-in-appeal remains legally enforceable for clearance of goods for home consumption -The revision applications are therefore rejected.
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2011 (1) TMI 770 - CESTAT, BANGALORE
Penalty u/s 112(a) and 112(b) - Find that unloading of un-manifested cargo without the supervision of the proper officer and delay in filing the manifest by the carrier is purely due to human error and no malafides can be attributed on them - The adjudicating authority has himself held that action of appellant of unloading cargo at Hyderabad was due to human error and no malafides can be attributed - Therefore, the penalty imposed on the appellant under Section 112(a) and 112(b) of the Customs Act, 1962 is excessive - Since the appellant has themselves taken into themselves the unloading of the goods without the supervision of the officers, they should be penalized - But the penalty imposed under Section 112 of the Act is excessive, reduce it to Rs.25,000/- As regards the penalty imposed under Section 30 - Penalty is unwarranted as the appellant has informed the Department his intention that the goods were to be unloaded at Hyderabad as they were not able to unload at Bombay - Thus, the penalty imposed under Section 30 of the Act is set aside.
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2011 (1) TMI 733 - CESTAT, BANGALORE
Refund claim - Excess amount of duty was paid on account of incorrect mentioning of unit price as 9.9 Euro instead of actual unit price of 0.30 Euro - To substantiate their claim appellant produced revised Invoice bearing No. 8548350 dated 13.4.05 issued by the supplier of the goods - They also claimed that the mistake was due to clerical error and could be corrected as per Section 154 of Customs Act, 1962 and requested for refund - The provisions of Section 149 of the Customs Act would not apply to this case, as that section clearly mandates for correcting arithmetical error based upon the document at the time of clearance - Since the document was produced subsequent to the clearance, the provisions of Section 149 of the Customs Act cannot be invoked - Decided against the assessee.
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2011 (1) TMI 719 - CESTAT, NEW DELHI
Sun glasses - Classification - Notification No. 10/2006-C.E., dated 1-3-2006 - Held that:- sunglasses as one variety of goggles - Notification No. 10/2006 extends exemption to ‘sunglasses for correcting vision and goggles’. - the exemption claimed by the appellants deserves to be extended.
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2011 (1) TMI 713 - MADRAS HIGH COURT
Provisional anti-dumping duty - According to the petitioner, the complainant himself is an importer and therefore, he does not fall within the fold of a ‘domestic industry’ so as to maintain the complaint - in view of the fact that serious disputed questions of fact regarding the stature of the complainant, which will have the impact of cutting the root, are involved in the matter, we set aside the orders date 19-4-2010 and 21-5-2010 passed by the third respondent and direct the first respondent/Government of India to-appoint/nominate another officer in the place of the third respondent to act as a Designated Authority for this case, within a period of four weeks from the date of receipt of a copy of this order.
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2011 (1) TMI 712 - CESTAT, MUMBAI
Demand - whether the iron ore pellets exported by the appellant are classifiable as “iron ores and concentrates, all sorts” under Heading No. 11 of the Second Schedule to the Customs Tariff Act - The literature nowhere says that pelletisation of iron ore will change its chemical composition. It only brings about a physical change to facilitate the charging of the ore into the blast furnace as part of metallurgical operations for extraction of elemental iron (Fe) - It is nobody’s case that the same circumstances prevailed in 2007-08 after almost half a century or that the intention of Chowgule & Co. survived the tenure of the contract - The meaning of “iron ore” in trade parlance today cannot be the same as what it was half a century ago, and there is no reason why it should exclude iron ore pellets - It is obvious that the affidavits were solicited to suit the appellant’s purpose, such documents cannot be relied upon - Appeal is dismissed
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2011 (1) TMI 711 - CESTAT, BANGALORE
Conversion of shipping bills from “ZERO duty EPCG scheme” to “ZERO duty and drawback scheme” - Dual benefit - Held that:- It is undisputed that the respondent had claimed the drawback of the goods exported under the category of “All Industry Drawback rate”. It is also undisputed that the respondent had imported capital goods under the EPCG scheme. - Conversion of shipping bill allowed - Revenue in the grounds of appeal has not rebutted the finding that the assessee is entitled for benefit of Zero duty EPCG and drawback scheme or all industry drawback rate, and there is no reason or provisions to prohibit such availment of the benefit by the assessee.
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2011 (1) TMI 665 - CESTAT, MUMBAI
Levy of CVD (countervailing duty) equal to duty of excise - Notification No. 30/2004-C.E., dated 9-7-2004 - The respondent had imported grey cotton fabrics in a consignment covered by one Bill of Entry and cotton/lycra fabrics in six consignments covered by six Bills of Entry during the period from April to August, 2008. - where the inputs contained in the imported commodity are shown to be not chargeable to duty of excise in India, there is no question of an Indian manufacturer of such commodity availing CENVAT credit and, consequently, there is no question of levy of countervailing duty on the imported commodity.
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2011 (1) TMI 648 - CESTAT, AHEMDABAD
Power of remand - Commissioner (Appeals) was not empowered to remand the matter - reliance in this regards placed on the Hon'ble Supreme Court judgment in the case of MIl India Limited vs. Commissioner of Central Excise, Noida (2007 -TMI - 1196 - SUPREME COURT OF INDIA).
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2011 (1) TMI 634 - CESTAT, MUMBAI
Waiver of pre-deposit - Application for stay - Principle of natural justice - Confiscation - It is settled law that cross-examination of witness cannot be claimed as a matter of right by any person involved in an adjudication proceedings - Once a witness has been cross-examined, it is open to either side to claim support from the record of cross-examination, at the final hearing stage - In case the originals of any of such documents are required to be retained for purposes of prosecution, or any on-going investigations relating to these appellants, such documents shall be retained and copies thereof should be supplied to the appellants - Held that: Commissioner shall have no liability to furnish any information to the appellants if he finds that such information belongs to extra-departmental authorities - The obligation of the Commissioner pertains exclusively to the documents which are within his command - Decided in favor of the assessee
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2011 (1) TMI 604 - CESTAT, AHEMDABAD
Transaction value - modifying the earlier memorandum of agreement - purchase of vessel MV WESTMED - the price actually paid to the foreign supplier is the transaction value as per Rule 4(1) of Valuation Rules and the same has to be accepted under Rule 4(2) of the said Rules - the issue is no more res-integra it stands held in the respondents own case reported as Commissioner of Customs, Bhavnagar Vs. Mahavir Ship Breakers reported in 2009 (234) ELT 176 (Tri. Ahmd.) that the reduction in the transaction value after the import of the vessel by modifying the earlier memorandum of agreement is not acceptable for the purpose of reducing the price - Decided against the assessee.
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