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Customs - Case Laws
Showing 41 to 60 of 1794 Records
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2016 (12) TMI 1435 - CESTAT MUMBAI
Valuation of imported goods - spares and components of Car audio systems - mixed lot of goods i.e. various spares and components of car audio system manufactured by different entities - goods undervalued - Held that: - the entire case of the revenue is built upon the enhancement of the value based upon the price list received from Kenwood Corporation, Sony India Ltd. and Pioneer. There is nothing on record to show that the consignments which are imported were procured by the appellant directly from the manufacturers. It is also seen from the records that the main appellant has been taking a consistent plea that these are stock lot purchased from a trader and they were outdated models, he has also been taking a consistent view that the supplier who had exported the consignment to him had collected all these items from different places and then collated and despatched at a value which is the transaction value. In our considered view, on the perusal of the consignment details, we find that the case of the main appellant needs to be accepted as the speakers and other spares of car audio accessories did indicate that consignment is of mixed lot. Since the appellant has already accepted the enhancement of the value in the first assessment after examination, we do not find any reason to further enhance the value as has been held by the adjudicating authority.
Reliance placed on the decision of the case of EICHER TRACTORS LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI [2000 (11) TMI 139 - SUPREME COURT OF INDIA], wherein the apex court has specifically stated the price list of the foreign supplier manufacturer is not a proof of the manufacturing value and existence of the price list cannot be the sole reason for rejecting the transaction value. In the case in hand, revenue s contest on the value of the goods which are imported in the consignment is not based on the finding that these were mixed lot and manufactured by different manufacturers.
Appeal is allowed upholding the value which has been accepted for assessment and discharge of duty in the first instance - decided in favor of appellant.
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2016 (12) TMI 1434 - CESTAT MUMBAI
Confiscation - penalty - goods cleared from SEEPZ area - Appellants removed garbage and sweeps from SEEPZ area and subsequently recovered precious metals from such garbage - Held that: - the appellant was not an authorised agent for removing of garbage and sweeps from SEEPZ area. The said contract was awarded to some other person and that person had outsourced the removal of garbage and sweeps from SEEPZ without any authorisation from authorities. This would indicate the appellants were undertaking the activity of removal of garbage and sweeps in unauthorised manner which itself calls for imposition of penalty on the appellant - appeal dismissed - decided against appellant.
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2016 (12) TMI 1433 - DELHI HIGH COURT
Maintainability of petition - Confiscation of 6452 grams of gold - Held that: - whether absolutely prohibited or banned items in respect of which Parliament’s intent is to be gathered should be seen after an overall consideration of the provisions of the Act as well as other authorities applicable. In the circumstances that exercise would be best left to be considered by the appropriate appellate authorities. In these circumstances, the court is of the opinion that this petition ought not to be entertained under Article 226 of the Constitution since the importer has an alternative efficacious remedy - It is open to the petitioner to file appeal to the Commissioner (Appeals) - petition dismissed as not maintainable.
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2016 (12) TMI 1432 - MADRAS HIGH COURT
Refund - Direction to the respondent to implement the final order passed by the Customs Excise and Service Tax Appellate Tribunal dated 11.06.2012 - order not implemented despite several representations - writ of mandamus - Held that: - the respondent is bound to comply with the direction. Accordingly, there will be a direction to the respondent to consider the representations of the petitioner dated 02.05.2013 ; 10.07.2013 ; 13.08.2013 and 02.09.2013 respectively and pass appropriate orders on merits and in accordance with law, as directed by the Customs excise & service Tax Appellate Tribunal within a period of eight weeks from the date of receipt of a copy of this order - petition allowed - decided in favor of petitioner.
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2016 (12) TMI 1431 - KARNATAKA HIGH COURT
Carriage of contraband item - baggage rules - brownish-green packet of a gum like substance wrapped in a transparent plastic sheet - hashish - it was presumed that the accused persons were found in possession of ‘Charas’ and hence the burden to prove that they were innocent, was shifted on them. Both the accused were charged with offences punishable under Section 8(c) read with Sections 21, 23(c), 28 and 29 of the NDPS Act, for entering into a criminal conspiracy to possess, smuggle and illegally transport the narcotic drug out of India.
Held that: - the Bangalore International Airport being a busy place, the failure of the prosecution in taking down the contact details or address of the independent witnesses has committed a grave error in not complying with the mandatory provisions providing strict safeguards to the accused as the act alleged to have been committed amount to grave offences. This in turn leads this Court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872.
The reasoning of the trial court in coming to the conclusion that the accused were found in possession of the contraband and that they were trying to transport the same out of India without any legal permit and thereby convicting them under Sections 21(c) and 28 of the NDPS Act is found to be erroneous.
As the material seized during the proceedings forms the basis of the investigation, the inability of the prosecution to prove the case, especially the genuineness of the search and seizure proceedings, beyond all reasonable doubt, vitiates the case of the prosecution.
The accused are acquitted - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1430 - CESTAT MUMBAI
Valuation - related party transaction - fee paid to the foreign collaborator - Held that: - after examining the third party imports to different countries, the transaction value was accepted. It is seen that in the appeal before the Commissioner (Appeals), the Revenue as well as Royle Extrusion Systems Ltd. have not challenged this issue. In view of that it is not open to either party to challenge that Royle Extrusion Systems Ltd. and foreign collaborator are related and that relationship has affected the import price in terms of Rule 4 (3) of the Customs Valuation Rules.
Includability of fee paid to the foreign collaborator in terms of technical collaboration agreement in terms of Rule 9 of the Customs Valuation Rules - Held that: - rule 9 relates to the supply of engineering, development, art work, design work and plans and sketches, etc. by the buyer to the supplier. In the instant case, it is the supplier who has sent the technical know-how to the buyers. Thus, Rule 9 (1) (b) (iv) has been wrongly invoked in this case.
We set aside the impugned order and remand the matter back to the original adjudicating authority for deciding the issue afresh after giving an opportunity to the appellants - appeal disposed off - matter remanded back.
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2016 (12) TMI 1373 - CESTAT MUMBAI
Valuation - royalty - whether royalty to be added to assessable value or not where raw materials/inputs imported from collaborator? - Held that: - A plain reading of the agreement entered into by the appellant indicates that it is only a technical know-how agreement and running royalty is paid; no condition precedent that components cannot be imported from anyone else.
Reliance placed on the decision of the case of Schenectady Herdillia Ltd. [2016 (3) TMI 887 - CESTAT MUMBAI], where it was held that The said agreement does not talk about or restrict the appellant to purchase or procure raw materials only from the parent concern. The loading of the value of by the amount of royalty paid by the appellant is not in consonance with the law settled by the higher judicial fora.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1372 - CESTAT BANGALORE
Imposition of redemption fine and penalty - the redemption fine has been imposed exorbitantly without even conducting any market enquiry to ascertain the market price prevalent so as to determine the margin of profit, and were prayed to be set aside - Held that: - the appellant has declared values which are very much less than the minimum specified as above. Consequently, the import goods are liable for confiscation as has been held by the authorities below - however, the ends of justice will be met by reducing the redemption fine to 7.5% of the value of the goods approved for payment of duty. The penalties imposed are, however, upheld - decided partly in favor of appellant - appeal disposed off.
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2016 (12) TMI 1371 - CESTAT MUMBAI
Condonation of delay - Held that: - There was no occasion for appellant to file the appeal unless and until the corrigendum was issued. It is admitted position that the appeal was filed within seven days from the date of issue of corrigendum. Since the corrigendum is part and parcel of the impugned order the period for filing the appeal should be reckoned from the date of corrigendum - no delay in filing the appeal. Even if there is a delay, the condonation of delay application has to be allowed.
Application for early hearing - Held that: - even though it is the second round of litigation, the appeal is of 2016 only. This Tribunal is overburdened with cases running from the year 2005 onwards. Therefore, it will not be proper to take up the appeal of 2016 on out-of-turn.
COD allowed - early hearing dismissed - decided partly in favor of appellant.
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2016 (12) TMI 1370 - CESTAT MUMBAI
Refund claim - EPCG licence scheme - N/N. 1/91-Cus dated 01/06/1991 - tax leviable without the authority of law not to be retained by the government - Held that: - the appellant has no case on limitation as the Bills of Entry were finally assessed in 1991-92, we are at loss to understand how the said error was not noticed by the appellant till March 2003 when they filed the refund claim. Be that as it may, When the bills of entry were finalised and the goods were assessed under the Customs Act, 1962, any refund claim that arises in respect of such finally assessed bills of entry are governed by the provisions of Section 27 of the Customs Act, 1962 which provides for filing of refund claim within a period of one year from the ‘relevant date’ which is discharge of duty by the importer - section 154 also not applicable in the case - appeal rejected - refund rejected - decided against appellant-assessee.
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2016 (12) TMI 1369 - MADRAS HIGH COURT
Detention of goods due to dispute in country of origin - provisional release - denied on the ground that an order of provisional release was passed by the respondents on 16.12.2015, but the petitioner did not utilize the opportunity and complied with the conditions therein - Held that: - this Court suggested that if the interest of revenue is safeguarded, the prayer for provisional release can be considered by them. The gap between admitted duty and penal duty is wide. The petitioner is not in a position to make any reasonable offer to safeguard the interest of revenue. Therefore, the only option available is to direct the respondents to finally adjudicate the matter. When this suggestion was put to the petitioner, the petitioner has agreed to cooperate for adjudication process, provided strict time lines are followed - petition disposed off.
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2016 (12) TMI 1368 - CESTAT MUMBAI
Unjust enrichment - Held that: - the price of the final product manufactured by the appellant was the same as the price of the other manufacturers/suppliers. Therefore, incidence of duty was not included in the price of the final product and was not passed on to any other person - reliance placed in the decision of the case of Commissioner of Customs (Import) v. Pudumjee Plant Laboratories Ltd. [2007 (10) TMI 196 - HIGH COURT BOMBAY], where it was held that if the price of the final product of the assessee is matching with the price of the other sellers in the market, the duty element cannot be said to have been passed on to the customers - the facts and the issue considered in the said judgment was not before the lower authority. Therefore, in our view the matter needs to be remanded. We remand the matter to the original authority for reconsideration of the whole issue in the light of the judgment of the Hon’ble High Court in the case of Pudumjee Plant Laboratories Ltd. - appeal allowed by wy of remand.
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2016 (12) TMI 1367 - CESTAT HYDERABAD
Refund claim of 4% Additional Duty of Customs (SAD) - Notification No.102/2007 - imported timber logs were sold as “cut sizes” - refund was rejected in regard to timber logs sold as “cut sizes” on the ground that there was no correlation with the goods imported and the goods sold - Held that: - The appellants have presently put forward the contention that dimensions shown in the sales invoices may differ for the reason that the logs are cut to facilitate transportation. This contention is put forward in the appeal filed in the Tribunal. As the appellants were denied a show-cause notice, I am of the view that this contention raised at appellate stage is acceptable - In obedience to judicial discipline following the dictum laid in the case of M/s. Variety Lumbers Pvt. Ltd.[2013 (11) TMI 1013 - GUJARAT HIGH COURT], I find that the appellants are eligible for refund. The denial of refund is unjustified - Decided in favor of assessee.
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2016 (12) TMI 1366 - CESTAT NEW DELHI
Illegal import - baggage rules - mis-declaration of description as well as value of goods - Held that: - For sustaining the allegation of misdeclaration of the imported goods as well as undervaluation thereof, the records needs to be corroborated on the basis of independent evidence. Testing of samples with imported goods could have been done to establish the correct nature of the imported goods. The documents recovered from respondent No. 3 have never been corroborated or supported by any statements from the exporters. It is also placed on record in the adjudication proceedings as well as criminal proceedings initiated, that the respondent No. 3 stands exonerate - order passed by the Commissioner (Appeals) justified - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1365 - CESTAT NEW DELHI
Valuation - related party transaction - invoice value influenced by the relationship between parties or not? - Held that: - The original authority have carefully gone into the agreement between the importer and related supplier and after going through in detail other connected documents, has come to the conclusion that the invoice value of the goods imported are not influenced by that relationship.
Invoice value accepted - appeal rejected - decided against Revenue.
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2016 (12) TMI 1364 - CESTAT HYDERABAD
Unjust enrichment - whether the refund arising out of provisional assessment prior to 13-07-2006 would be hit by the doctrine unjust enrichment? - Held that: - reliance placed on the decision of the case of case of CCE, Kandla Vs Hindustan Zinc Ltd [2009 (2) TMI 100 - CESTAT AHMEDABAD], where it was held that when provisional assessment is finalized, the assessee is entitled to refund and he does not have to make the claim, the provisions of Section 27 is not attracted.
In the present case, as the period involved is prior to 13-07-2006, the refund is not hit by the doctrine of unjust enrichment - appeal rejected - decided against Department.
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2016 (12) TMI 1314 - CESTAT MUMBAI
Benefit of nil rate of duty under Notification No. 21/2002 - interpretation of notification - denial on the ground that appellant is not appointed as a contractor or as a sub-contractor - Held that: - the lower authorities have erred in conceiving the exemption Notification. On perusal of the records we find that the agreement entered into between MSRDC, a Government of Maharashtra undertaking, and the appellant herein clearly indicates that the appellant is the contractor for collection of toll on various toll stations. The said contract is a tripartite contract between MSRDC, M/s Ideal Road Builders Pvt. Ltd. and the appellant herein M/s MEP Toll Road Pvt. Ltd.
Reliance placed on the decison of the case of ITS SOLUTIONS INDIA PVT. LTD. Versus COMMISSIONER OF CUS., CHENNAI [2010 (10) TMI 149 - CESTAT, CHENNAI], where it was held that appellants contractor in the contract between the Govt., of Tamil Nadu and the Tamil Nadu Road Development Corporation (TNRDC) and hence they are satisfying clause (a)(iii) of Condition No. 40 of notification no. 21/2002, and entitled for benefit of notification.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1313 - CESTAT MUMBAI
Imposition of penalty u/s 112(a) and (b) of the Customs Act, 1962 - seperate penalties imposed on firm and partners of the firm - Held that: - M/s Navmi Enterprises and its partner Shri Vinod Manjrekar were actively involved in helping for smuggling of contraband goods. Therefore the adjudicating authority has rightly imposed the penalty on M/s Navmi Enterprises.
As regard penalty on Shri Vinod Manjrekar partner of the partnership firm M/s Navmi Enterprises, the partnership firm consists of it’s partners, the firm does not have an independent status without the partners. If any liability arises against the partnership firm i.e. shifted on partners of partnership firm in the sharing ratio of the partners, therefore, the partners cannot be treated different then the partnership firm. With this logic if the penalty imposed on the partnership firm, a separate penalty on the partner will tantamount to double penalty on the same person - if the penalty is imposed on the partnership firm, a separate penalty on its partners should not be imposed.
Appeal disposed off - penalty on firm upheld, whereas penalty on partner withheld.
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2016 (12) TMI 1312 - BOMBAY HIGH COURT
Seeking of permission to make amendment in IGM - Held that: - it is entirely for the authorities to act in terms of the powers conferred by the Act of 1962. The authorities cannot refuse to act merely because there is an allegation of a wrongful act or there is a protest raised. There is nothing in the Act of 1962 which would enable the authorities to adjudicate any civil dispute and as if it is a Court of law - the concerned authority directed to consider the application for amendment or substitution to the Import General Manifest, provided, the petitioner executes an indemnity bond in favour of the authorities indemnifying them of the claims and protests raised by the private parties regarding the goods in question - petition allowed - decided partly in favor of petitioner.
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2016 (12) TMI 1311 - CESTAT AHMEDABAD
Import of restricted item - classification of imported goods in dispute - confiscation - whether the imported goods were Rubber Crumb under CTH 4017 00 90 or were ground waste of vulcanized rubber tyre powder under CTH 40040000 and is restricted item for import? - Held that: - The entry under CTH 4017 reads as “Hard rubber (for example, ebonite) in all forms, including waste and scrap; articles of hard rubber.” - The Commissioner (Appeals) has rejected the said claim of classification of the goods under CTH 4017 00 90 as the goods imported were “other than hard rubber” according to the test report. He classified the goods under CTH 40040000 – “waste, parings and scraps of rubber (other than hard rubber) and powders and granules obtained therefrom.” The appellants have not produced any evidence to contradict the test report - Since the goods under CTH 4004 are “Restricted” and needs license for import of the same, there is also no infirmity in holding the goods liable to confiscation - redemption fine reduced to ₹ 15,000/- on fair consideration - penalty also waived - appeal partly allowed - decided partly in favor of appellant.
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