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Customs - Case Laws
Showing 1 to 20 of 1794 Records
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2016 (12) TMI 1904
Petition posted for orders on this day, for not having represented the batta with petition - HELD THAT:- This Court having granted time till 23-12-2016 as condition precedent and the said Advocate not having complied with the said direction of this Court, it is ordered that this petition do stand dismissed against the respondent.
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2016 (12) TMI 1877
Provisional release of vehicle - drill ship - vessel is deployed for operations of ONGC in India - HELD THAT:- Mr. Jetly, on instructions, has stated that so long as the vessel is deployed for operations of ONGC in India, the respondents would have no objection for such deployment within India. However, Mr. Jetly submits that in the event the vessel is required to be moved out of India, the petitioners would have to take all the requisite steps in accordance with law for obtaining the clearance from the Competent Authorities for such movements.
The notice of motion is disposed off.
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2016 (12) TMI 1801
Confiscation of Gold - redemption fine - penalty - N/N. 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, Show Cause Notices, dated 8th September, 2017 - HELD THAT:- The confusion appears to have arisen owing to the challenging by the petitioner of Notifications 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, and Public Notice 20/2015-2020, also dated 25th August, 2017, vide one writ petition, i.e., WP(C) 7839/2017, and the Show Cause Notice, issued in terms of the said notifications and Public Notice, vide the present writ petition, i.e., WP (C) 8205/2017. It was owing to this duplication of proceedings that this Court, under the impression that the Show Cause Notice dated 8th September, 2017 was not challenged, expressed its inability to quash the same.
As it happens, however, the Show Cause Notice dated 8th September, 2017, issued to the petitioner has, in fact, been challenged by the petitioner vide WP(C) No. 8205/2017, in which the present Review Petition has been filed. As such to maintain parity with the relief granted to M/s. Mink Tradecom Pvt. Ltd., it would be apposite that the Show Cause Notice dated 8th September, 2017 issued to the petitioner, be also quashed.
The Show Cause Notice dated 8th September, 2017, issued to the petitioner, is quashed and set aside - review petition allowed.
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2016 (12) TMI 1777
Condonation of delay of 696 days in preferring the tax appeal - Section 5 of the Limitation Act - HELD THAT:- Considering the fact that earlier the appeal was preferred, however subsequently, the applicant withdrew the same with a liberty to file miscellaneous application for review before the learned Tribunal and thereafter the learned Tribunal has decided and dismissed the said review application vide order dated 17-3-2016 and thereafter against the original order passed by the learned Tribunal, tax appeal has been preferred, the present application is allowed and the delay caused in preferring the tax appeal is hereby condoned.
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2016 (12) TMI 1743
Four weeks time as last chance is given to the sole respondent to file the counter affidavit - List the matter before the Honble Court as per rules after expiry of four weeks.
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2016 (12) TMI 1723
Classification of imported goods - Duty free Import or not? - import of disposable sterilized dialyser and micro barrier for filtering blood - Held that:- An identical issue has came up before Hon'ble Calcutta High Court in the case of Sanwar Agarwal vs. CC [2016 (4) TMI 621 - CALCUTTA HIGH COURT], wherein Circular No.19/2013 was set aside as it was not issued under statutory provisions. It was held that executive instruments which have no statutory force, cannot override the law.
Any notice, circular guidelines etc. which run contrary to statutory law cannot be enforced.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1717
Refund claim - Consequent upon the fulfilment of the obligation, the petitioner requested, vide letter dated 28.5.2003 that the bank guarantee be discharged - rejection of refund on the ground of time bar - Section 27 of the Customs Act - Held that: - The sequence of dates and events detailed would show that the assessee had made a request for release of Bank Guarantee as early as in 2003 after obtaining the Export Obligation Discharge Certificate, confirming the position that the export obligation has been duly complied with. However, it is only on 22.3.2007 that the Bank Guarantee was discharged by the Department, for reasons best known to them - No explanation is offered by the Revenue as to what were the circumstances that occasioned the delay of more than eight years. The Appellant has been unfairly deprived of the amount of ₹ 4,07,245/- from 2007 onwards till the order of the learned Single Judge on 22.7.2015 directing the grant of refund.
The delay in granting refund was inordinate, unjustified and wholly unacceptable - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1688
EOU - Confiscation - import of second-hand tractor - it has been alleged that goods had been imported in violation of the licensing note (1)(ii)(d)(iv) in Chapter 87 of the ITC HSN appended to the Foreign Trade Policy - Held that: - It is apparent from the licensing notes in Chapter 87 that the restrictions therein are intended for vehicles that are imported for use as such on the roads in India. The appellant is a unit that is engaged in the manufacture of tractors and is not a user of the said tractor except in relation to its manufacturing activity. It would therefore not be in violation of the licensing notes referred to in the impugned order - the confiscation of the tractor is without authority of law and is set aside - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1687
Recovery of refund sanctioned earlier - it was found that Revenue instead of reviewing the respective refund orders and filing appeals before the Commissioner (Appeals) issued demand notices to the assessee to realize the amounts erroneously refunded - unjust enrichment - Held that: - When the assessee respondent gave a Chartered Accountant’s certificate saying that the burden of 4% CVD was not passed on by the importer to any other person, it is difficult to accept the Revenue’s argument against the assessee respondent without there being any documentary evidence to such effect.
Also, the department has not given any evidence either to prove the fact of such habitual and repeated offences by the present assessee respondent or to substantiate the fact of case of unjust enrichment on the part of the assessee respondent.
Appeal dismissed - decided against Revenue.
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2016 (12) TMI 1685
Rectification of Mistake - rectification sought mainly on the ground that while disposing of the Final Order No. A/90720-90723/16/CB, dated 4-10-2016 the Bench has not considered the opinion given by the Department of Electronics and Information Technology, Govt. of India and some other relevant materials, which were relied upon and produced during the hearing before Bench - Held that: - it is noticed that the clarification issued by Department of Electronics and Information Technology, GOI though produced before us, escaped our attention while recording the order, as also other materials like orders of first appellate authority on the same issue for subsequent periods. The said clarification of the Department of Electronics and Information Technology, GOI and other materials may throw some light as to the classification of the products in question.
The order dated 4-10-2016 to the extent it is in respect of these applicants needs to be recalled. In the interest of justice and to be fair to both the sides, we recall our Final Order Nos. A/90720-90723/2016/CB, dated 4-10-2016 and direct the Registry to relist the appeals for fresh hearing.
ROM application disposed off.
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2016 (12) TMI 1682
Benefit of N/N. 25/99-Cus., dated 28-2-1999 - denial on the ground that as per clarification issued by TRU vide F. No. 345/40/2001-TRU, dated 7-12-2001, the appellant is not entitled for the benefit of above said notification - Held that: - it is clear that the appellant is entitled for the benefit of notification if they are manufacturing RF/IF transformers. Admittedly, the appellant is not manufacturing the said transformers. Therefore, the appellant is not entitled for such benefit of notification - appeal dismissed - decided against appellant.
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2016 (12) TMI 1681
Penalty u/r 26 of the CER, 2002 read with Section 112 of the CA, 1962 - the appellant has been considered as a mastermind in floating unit viz. Universal Impex (100% EOU) and by utilizing the status of 100% EOU, imported goods which were not used for manufacturing and export of the goods, but were diverted and clearance of finished goods, which were not manufactured out of the imported raw materials - Held that: - one of the employees of Universal Impex (100% EOU) in the presence of independent panch witness, categorically stated that he had prepared the invoices and AR-3As on the directions of the appellant and only invoices and AR-3As were to be sent and there was no material movement conducted and has to be handed over to such person sent by the proprietor or the appellant - On the face of such a categorical statement of the employee, which is not controverted by the appellant, impugned order upheld - appeal dismissed.
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2016 (12) TMI 1652
Misdeclaration of goods - redemption fine - demand of DEPB credit - Held that: - the appellants have declared the exact chemical formula of the product and the same has not been found to be incorrect or to be improper. The appellants have also given the description of the product as JADE Green. The DEPB rates for the description to be JADE Green (synthetic dye stuff) and exact chemical formula is different. The appellant have clearly mentioned both the descriptions. In these circumstances, so long as the appellants have specifically mentioned the chemical formula of the product exported by them, it cannot be led that there is any misdeclaration on part of the appellant.
The goods are not available for confiscation and the same have not been seized or provisionally released, thus no redemption fine can be imposed.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1651
Mis-declaration of its description in their export consignment - appellant case is that since they have already lost DFRC benefit in this case, leniency in redemption fine and penalty may be given - Held that: - it is a case of blatant mis-declaration of export products. The composition of the product was declared to be approximately 90% silk and 10% viscose yarn, whereas on testing it was found to be opposite - It is difficult to believe that the difference in the stated description and the description found on examination can be due to inadvertence. The marginal difference can be result of inadvertence in taking the sample from different places of the consignment. In the case, the difference of this magnitude, it cannot be due to inadvertence.
The case is of blatant mis-declaration in order to defraud the Revenue, therefore, penalty imposed on M/s. Rainbow Silks and its partner is upheld - however, quantum of redemption fine reduced.
Appeal allowed in part.
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2016 (12) TMI 1641
Penalty u/s 112(a) of the CA, 1962 - case of appellant is that once the goods sold to BPCL in line with OCL directives to make use of the subject imported SKO meant for PDS supply, the IOCL being a canalising agent only cannot be made responsible and liable to penalty u/s 112(a) as such and the same is not tenable - Held that: - it is evident that the M/s.IOCL sold the goods to BPCL in compliance of the conditions of the Notification. It is noted that M/s.IOCL had already paid the duty, which was appropriated by the adjudicating authority. In such situation, the imposition of penalty on the appellant is in my view, unjustified - penalties set aside - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1623
Export of prohibited item - “Kerao” - Revenue claimed that the goods are a kind of pulse and is prohibited for import whereas case of respondents are that the subject goods were under category of vegetables - Held that: - The original adjudicating authority dropped the proceedings mainly on the ground that relied upon test report is not that of the true representative of the goods alleged to have been attempted for export - there are no substantial reasonings given by the department to reverse the findings given by the Commissioner (Appeals) in the impugned Order-in-Appeal. When there are no substantial reasons available to contradict the findings of the Commissioner (Appeals), the order passed by the Commissioner (Appeals) is agreed upon - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1620
Penalty u/s 112 (b) of the CA, 1962 - smuggling of goods - case of appellant is that there is nothing on records to suggest that they had any knowledge of the vehicles being used in smuggling of goods - Held that: - the drivers, Khalasi and lineman having had complete knowledge of carrying the contraband goods, did not come forward with any material in support of their contention. Shri Bijoy Ghosh had also not refuted the statement of the three co-noticees - the innocence of the appellants cannot be accepted, without any cogent reason - the said vehicles were used for carrying the contraband goods and the confiscation of the vehicles and redemption fine is justified.
Penalty - Held that: - Owners of the vehicles have not come forward with their bonafide. So, imposition of penalty is warranted - the quantum of penalty should be reduced taking into account the employment and livelihood.
Appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1594
Presence of counsel for the petitioner during the recording of statement under Section 108 of the Customs Act, 1962 - Summon to appear personally with desired documents - Held that: - the Supreme Court and this Court have routinely permitted the counsel of the noticee to remain present at the time of interrogation/questioning of the noticee u/s 108 of the Act, subject to the condition that the counsel shall be placed at a visible distance, but beyond audible distance from the place of inquiry, so that the counsel may be able to see that the noticee is not subjected to any physical harm, but he is not able to hear the process of interrogation/inquiry undertaken by the authorities.
The inquiry shall be conducted uptill 5:00 p.m. and if the same is required to be continued, the same may be continued on a day to day basis during office hours only. The same shall be conducted in the presence of a lady officer of the DRI. Counsel for the petitioner shall be permitted to accompany her - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1593
Presence of counsel for the petitioner during the recording of statement under Section 108 of the Customs Act, 1962 - Held that: - Let the petitioner appear before respondent no.3 for inquiry on 03.01.2017 at 11:00 a.m. for her questioning along with all the documents required of her in the earlier notices issued to her - petition disposed off.
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2016 (12) TMI 1592
Provisional release of goods - Circular No.01/2011-Customs, dated 04.01.2011 - communication to SIIB according to 'Let Export Order' - whether it is a fit case to allow provisional release of the subject goods, by relaxing the rigour of the condition contained in clause (i) of paragraph 6 of the impugned order? - Held that: - taking notice of the fact that the goods in question are newsprint which is perishable in nature, we issue a direction that the goods of the respondents shall be cleared by the appellants herein on the respondents' furnishing a bank guarantee of 30% of the differential duty to the satisfaction of the Commissioner of Customs. The goods shall be released in terms of this order immediately on furnishing of the aforesaid bank guarantee and satisfaction of the concerned Commissioner of Customs.
Clause 2.2. (c) of the Board's Customs Manual, clearly says that save and except in exceptional cases, pending investigation, wherever, importer or exporter is willing, he should be allowed provisional clearance of goods, by furnishing a bond for full value of the goods supported by an adequate Bank Guarantee, as may be determined by the proper Officer.
The condition imposed sub clause (i) of paragraph 6 of the impugned order can be relaxed, by substituting the said condition, with an option being given to the petitioners to seek release of the subject goods/consignments by furnishing a Bank Guarantee of a nationalised bank equivalent to 30% of the export duty. This is so, as finished leather, as per the extant policy, is freely exportable, while, generally, unfinished leather, i.e., hides, skins, leather - tanned and untanned, are subject to export duty, at the rate of 60%.
Petition allowed - decided in favor of petitioner.
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