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Customs - Case Laws
Showing 61 to 80 of 1794 Records
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2016 (12) TMI 1310 - CESTAT BANGALORE
Imposition of redemption fine and personal penalty - valuation of goods - rejection of declared value as found to be abnormally low - is quantum and imposition of fine and penalty justified? - Held that: - the redemption fine and the penalties imposed in the present cases are not excess keeping in view the past conduct of the appellants. The goods imported are rightly confiscated under Section 111(d) of the Customs Act 1962 read with Section 3(3) of Foreign Trade (Development and Regulation) Act, 1992. The appellant had a mens rea in importing repeatedly the same thing knowing well that it is not permitted under the law. Therefore, the redemption fine and the penalty should be upheld - appeal dismissed - decided against appellant-assessee.
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2016 (12) TMI 1309 - CESTAT AHMEDABAD
Fraudulent sale of advance licence - Held that: - in absence of rebuttal of the charges leveled against them, the learned Commissioner had no option but to decide the case on the basis of the evidences available on record - I am of the opinion that M/s R.K. Impex be given an opportunity to defend their case before the Adjudicating Authority, to which both sides fairly accept - appeal allowed by way of remand.
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2016 (12) TMI 1308 - CALCUTTA HIGH COURT
Release of seized goods - denial on the ground of the impugned show-cause and the fact that, the documents to the goods, which were seized by the DRI, have not been made over by the DRI to the Customs Authorities - Held that: - the DRI had issued show-cause dated August 18, 2009 in respect of the very same goods directed to be released. The DRI had also applied for permission before the Division Bench to proceed with the show-cause. By an order dated October 16, 2012 such permission was denied and the application of the DRI for such purpose was dismissed. The order dated October 16, 2012 allows the DRI to take appropriate action as may be advised. No material has been placed on record to suggest that, the DRI has taken any steps subsequent to the show-cause dated August 18, 2009 - In view of the order dated October 16, 2012 passed by the Division Bench in relation to the show-cause dated August 18, 2008, in my view, the DRI is no longer in a position to proceed with such show-cause.
The DRI not having taken any further steps in terms of the order dated October 16, 2012, it would be appropriate to direct the DRI to make over the documents of title to the goods to the customs. The customs authorities on receipt of the same will make over the goods to the petitioner forthwith thereafter - petition disposed off - decided in favor of petitioner.
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2016 (12) TMI 1307 - MADRAS HIGH COURT
Refund claim - by N/N. 93/2008-Cus, dated 01.08.2008, the earlier Notification, dated 14.09.2007, came to be amended - despite passage of two months, the refund claims have neither been processed nor sanctioned nor rejected by the Office of the respondent - Held that: - in the light of the fact that already Refund Applications (alongwith necessary enclosures), dated 05.10.2016, 17.09.2016 and June 2016, are pending with the respondent, and in view of the submission now made by the learned counsel for the petitioner, without going into the merits or otherwise of the matter, this Court is inclined to pass refund orders - petition disposed off - decided in favor of petitioner.
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2016 (12) TMI 1270 - CESTAT MUMBAI
Denial of benefit of N/N. 17/2001-Cus. dated 01.03.2001 - import of the bulk drug i.e. PSS - denial on the ground that the imported goods was not used by the appellant in their own factory, there is a violation of the condition of said notification - the goods were used on behalf of the appellant in their loan licensee (job work factory) on behalf of the appellant only - whether denial justified? - Held that: - In the case of G.R. International [2006 (11) TMI 450 - CESTAT, CHENNAI], the Tribunal held that following common law principal that what is done by duly constituted agent will be treated as having done by the principal and thus the condition as to manufacturer set out in Customs (import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 will include the premises of loan licensee.
Even though the factory is of the loan licensee but use is on behalf the appellant therefore there is no violation of condition of the Customs Rules, 1996 - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1248 - PUNJAB & HARYANA HIGH COURT
Detention of goods - demand of detention and demurrage charges - import of defective/secondary cold rolled sheets/coils from South Korea - goods detained for inspection - whether goods were hot rolled steel or cold rolled steel, in dispute - thickness of product also in dispute - Held that: - The inspection report, as submitted by the Chartered Engineer clearly opined that the goods imported by the petitioner were cold rolled sheets/coils, as claimed by the petitioner in the bills of entry. There was some issue raised regarding thickness of part of the consignments which, according to the Chartered Engineer, was only to the extent of about 10%. As the requirement of DRI, Ludhiana for 100% examination of the consignments before release had been satisfied, the same should have been released. Minor variation of thickness in about 10% of the consignments could be expected for the reason that the material was defective/secondary cold rolled sheets/coils.
Detention and demurrage charges - Held that: - once it is found that detention of goods was not on account of any fault of the petitioner, rather, found to be illegal action on the port of DRI and customs, the petitioner cannot be burdened for detention and demurrage charges and the liability has to be put on customs department, who shall be at liberty to seek waiver thereof.
The Authority, as constituted under the 1963 Act, is only meant to fix the rates to be charged by the port authorities. Under Section 53 of he 1963 Act, the Board can deal with only such cases which seek waiver of charges. In the case in hand, the direction of the Government is as a matter of policy, which is applicable uniformly in all cases, where detention of goods is by customs and the certificate is issued. It is not in dispute that in the case in hand, the certificate has been issued, hence, in terms of Regulation 6(l) of the 2009 Regulations, which are binding on the Port Trust, customs can waive off the demurrage charges.
Malafide of respondent No.7-Santokh Singh Senior Intelligence Officer and respondent No. 8-Roopesh Kumar, Intelligence Officer, DRI - Held that: - This court is not going into much detail on this aspect, but it can safely be opined that the action was not bonafide, if not strictly mala fide. Things could have been taken in right perspective with positive attitude ensuring that neither the revenue suffers any loss nor the importer on account of merely delay of clearance of goods. The instructions issued by the department, time and again, were blatantly violated. The stand taken by the petitioner was vindicated when finally the goods were found to be cold rolled steel. It was never the case of the department that the goods imported were prohibited. The only issue raised about these being hot rolled or cold rolled steel or its thickness could be taken care of without any delay.
Payment of detention charges of Shipping Line - Held that: - No doubt, the 2009 Regulations are not applicable on the Shipping Line, however, once it is found that detention of goods for inordinate period was not on account of any fault on the part of the petitioner, he is not liable to be burdened with that cost. It is only the DRI and customs, who should bear the cost, demanded by the Shipping Line.
Petitions allowed - The amount of customs duty having already been paid by the petitioners, the respondents are directed to release the goods. The Port Trust cannot charge any demurrage in view of Regulation 6(l) of the 2009 Regulations, customs having issued the detention certificate. The detention charges demanded by the Shipping Line shall be borne by DRI and/or customs. However, they shall be entitled to get the same waived off or reduce from the Shipping Line. The petitioners shall be entitled to cost of Rs. 50,000/- each to be paid by the department, however, with liberty to recover from the guilty officer/official(s) - decided in favor of petitioner.
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2016 (12) TMI 1209 - CESTAT MUMBAI
Project import - denial of benefit on the ground that appellant have not submitted the re-conciliation statement in respect of setting up the project as required under clause 7 of the Regulations - Held that: - as regard the Rule 7 requirement of filing of re-conciliation statements, the same was inserted w.e.f. 7/1/1992 in the Project Import Regulations, 1986 therefore the requirement of Rule 7 per say cannot be made applicable - even though Rule 7 is not applicable but otherwise also the appellant is require to submit the documents which establish that the goods imported under Project Import Regulations has been used for setting up project as declared by the appellant at the time of import of the goods - appellant is granted one more opportunity to submit their documents as required by the department, therefore matter needs to be remanded - appeal allowed by way of remand.
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2016 (12) TMI 1208 - CESTAT MUMBAI
Whether the appellant is entitled for interest on delayed sanction of refund of SAD under N/N. 102/07-Cus DATED 14/9/2007? - Held that: - the very same issue has been considered by the Hon’ble High Court of Madras in the case of Ksj Metal Impex (P) Ltd [2013 (6) TMI 148 - MADRAS HIGH COURT] where it was held that the appeallant is entitled for the refund of interest on delayed sanction of refund under Notification No. 102/07-Cus. As regard the Circular No. 06/2008 relied upon, Hon'ble High court has held the said circular as ultra virus - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1207 - CESTAT MUMBAI
Release of confiscated vessel - MV Seamec II - MV Seamec III - permission to take “MV Seamec III” out of the country for undertaking a project to offset heavy expenditure incurred to maintain the vessel in idle condition - release of vessel on same terms as offered earlier - Held that: - We do not wish to deprive the appellant of an opportunity to deploy an asset for performance but safeguard of public revenue is our paramount concern. Undoubtedly, the retention of the vessel in idle condition does not serve anybody’s interest and may well accelerate its deterioration - the plea of the appellant for release on terms similar to that on the earlier occasion may not be appropriate.
The appellant to execute bank guarantee of ₹ 3,00,00,000/- in addition to existing bank guarantee of ₹ 8.12 corers for MV Seamec - II to approximate the redemption fine of ₹ 12,00,00,000/-, the interest of justice will be advanced by allowing the MV Seamec - III to be taken out for commercial purpose and dry docking for a period of six months upon execution of bank guarantee of ₹ 7,00,00,000/- in favour of Commissioner of Customs, Mumbai and bond for value of the vessel - appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1206 - CESTAT MUMBAI
Valuation - enhancement of value of imported goods - principles of natural justice - Held that: - On a perusal of the order-in-original we find that it is replete with assumptions and presumptions which render the conclusions shaky. We also observe that both the lower authorities have not taken into consideration the decisions of this Tribunal which restrict the inclusion of royalty and technical know-how in assessable value to appropriate situations in accordance with the terms of the agreement relating to these fees.
In the matter of goods imported for trading as such, it would appear that both the lower authorities have proceeded to enhance the declared value without any elaboration as to the manner or rationale for computation. It would also appear that it is the alleged relationship between exporter and appellant, and not misgivings about the declared value, that prompted the enhancement
A remand to the original authority would entail a reopening of the entire investigation which would not be equitable given the lapse of time since the proceedings were initiated - appeal allowed by way of remand.
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2016 (12) TMI 1205 - CESTAT MUMBAI
Whether the first appellate authority has erred in coming to such a conclusion in enhancement of the value holding the supplier and the respondent-assessee as related person is wrong? - Held that: - it can be seen from the findings of the first appellate authority that there is no equity participation to the tune as had been recorded by the adjudicating authority. There is absolutely nothing on the record that findings of the first appellate authority were erroneous, we agree with the findings recorded by the first appellate authority that just because there is an equity participation in the importer-respondent company, it cannot be held that importer and supplier are related person - appeal rejected - decided against Revenue-appellant.
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2016 (12) TMI 1204 - CESTAT MUMBAI
Valuation - rejection of value based on contemporaneous imports - Rule 8 - Held that: - The reliance placed for enhancing the value seems to be incorrect as the prices of the same product during May, 2004 may not be the same in January, 2005 - Secondly, for rejecting the declared price reliance was placed on the imports made in May, 2004 while arriving at the conclusion of under valuation, the adjudicating authority as well as the first appellate authority relied upon imports during January, 2005 to March, 2005. This would indicate for rejecting the transaction value during January, 2005 there was no data available as the data was relied upon in the Order-in-Original was of April, 2005 was not indicated to the importer - Thirdly, on perusal of details of contemporaneous imports as relied upon by the adjudicating authority to enhance the value from $2.4/Kg to $3.18/Kg., is also on wrong footing as the details lack the quantity of imports, the country of origin and manufacturer of the goods - the same cannot be held as contemporaneous imports to reject the value declared by the appellant-importer - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1158 - CESTAT MUMBAI
Valuation - enhancement of value - Mis-declaration of quantity of goods - import of 46 units of old and used cannon photocopier machines - Held that: - As regard the enhancement of value done by the adjudicating authority, we find that sole basis for enhancement of value is based on the value suggested by DRI which relates to some other investigation. It is also observed that the Adjudicating authority accepted the price suggested by the DRI but did not bother to call for the basic evidence from where the DRI has obtained the price. Therefore price suggested by the DRI should not have been applied for enhancement of the impugned goods. Moreover goods imported is a second hand photocopier. Every second hand goods varies from each other depending upon the duration of use, manner of use and condition of the machine therefore price of one second hand goods cannot be applied to other second hand goods without ascertaining the physical parameter of both the machine - enhancement of the value is arbitrary and without any basis hence the same is not sustainable.
As regard the issue of mis-declaration of the quantity of the goods, we find that though in some of the model, quantity declared and the actual quantity are different but total quantity of the photocopier imported and declared by the importer are matching i.e. 46 number of photocopiers. We also find that in the discrepancy of the quantity in one model, it was observed that value declared in both the case is same therefore it cannot be said that appellant has intentionally mis-declared the quantity of goods.
The photocopier is capital goods and importable freely therefore there is no violation of provision of policy - the enhancement of value and mis-declaration held by the lower authorities are not sustainable - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1157 - CESTAT MUMBAI
Confiscation and penalty - mis-declaration of value of goods - evasion of duty - import of Pioneer brand automobile speaker - Held that: - reliance placed on the decision of the case of Mytri Enterprises Vs. Commissioner of Customs, Mumbai[2004 (7) TMI 182 - CESTAT, MUMBAI] where the value of same pioneer brand speakers was enhanced on the basis of same quotation of traders of Dubai and prices available on the website - In the present case also same quotation and prices available on websites were relied upon therefore decision of Mytri Enterprises directly applicable to the facts of the present case - it was held in the case that the Custom Officer has rightly rejected the price of speakers imported by the appellant as declared in the Bill of Entry, applying Rule 10A of the Valuation Rules. We are also satisfied that in such an eventuality, the prices which are fixed is based on concurrent findings of facts.
From the above judgments it can be observed that products are identical i.e. Pioneer brand speakers, the facts such as product specification, declared price, enhanced price, evidences such as quotation, price available on website etc. are identical therefore aforesaid judgment is directly applicable in the present case. Taking into consideration the overall facts and aforesaid judgment, we are of the view that lower authorities have rightly enhanced the value and confirmed the differential duty. Since the appellants deliberately suppressed the value by mis-declaring, the goods were liable for confiscation. Though the redemption fine was not imposed, for purpose of imposition of penalty, availability of the goods which was liable for confiscation is not necessary, therefore penalty was rightly imposed in lieu of confiscation. Since differential duty rightly confirmed under proviso to Section 28 (1) of the Customs Act, penalty imposed under Section 114A is inevitable. As per our above discussion and the settled legal position, the impugned orders are upheld and appeals are dismissed.
Appeal No. C/1349/05 - appeal of Star Audio - stands abated for the reason of demise of proprietor of the said firm.
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2016 (12) TMI 1156 - CESTAT MUMBAI
Revocation of CHA licence - forfeiture of security deposit - Regulation 19 (1) of CBLR, 2013 - Time limitation - The Ld. Counsel emphatically argued the case on limitation i.e. right from initiation of the proceedings till the passing of order of revocation of CB Licence of the Appellant, the department has not complied with the condition of the time limit prescribed not only for stage wise time limitation but also for over all time limit of 9 months for revocation of CB License. Therefore, the impugned order is not sustainable only on time limit without going into the merit of the case. Therefore we take up the case for decision on limitation.
Held that: - it can be seen that the offence report was received by the office of the Commissioner on 05.07.2013 - The inquiry officer filed his report on 23.04.2015 i.e almost after 200 days from the date of Notice date 04.10.2013.It is observed that the inquiry officer not only defied the time line prescribed in the regulation but also disobeyed the direction given by the Commissioner to the inquiry officer. The Ld. Commissioner passed the order for revocation of the CB licence on 02.07.2015. The overall period prescribed for the entire proceeding is 9 months or 270 days from the date of receipt of offence report. As the facts discussed above the total period taken for entire proceeding till the date of passing of order is 728 days. The order for revocation was passed beyond the prescribed time limit of 270 days. Therefore the order is not maintainable on limitation itself.
As regard the debate that whether the time line prescribed under the regulation is directory or mandatory, we are of the view that in the circumstances that the specific time limit prescribed under the regulation and no power for condoning the delay was provided, the time line prescribe in mandatory. It is a strite law that in a particular act if specific time limit is prescribed for any action to be taken under such law that will prevail even over the provision of limitation Act. The CHALR/CBLR, 2013 have been enacted under the Custom Act 1962.
Under no circumstances time limit prescribed under any statutory provision can be relaxed. Therefore the commissioner was bound to insure that the entire preceding should have been completed within overall stipulated 270 days, which the adjudication authority failed to comply. Therefore the order of revocation passed after stipulated period of 270 days from the date of receipt of offence report cannot sustain.
Since we decide this appeal on the ground of limitation itself, it is not necessary to address other issues such as merit of the case, quantum of punishment etc. - we are of the view that the impugned order is not sustainable on the ground of limitation.
The impugned order is set aside - appeal allowed - decided in favor of appellant-assessee
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2016 (12) TMI 1155 - CESTAT NEW DELHI
Rejection of refund claim - SAD - N/N.102/07-Cus dated 14.09.2007 - rejection on the ground that violation of actual user condition - Held that: - Notification does to debar the sale of the imported goods if the same are imported under the actual user condition. If the Revenue is of the view that actual user condition stand violated by the assessee, they were within their rights to initiate action against the assesse for violation of the said condition - appeal rejected - decided against Revenue.
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2016 (12) TMI 1154 - CESTAT MUMBAI
Irregular importation of marble slabs - mis-declaration of value - redemption fine - penalty - Held that: - The adjudicating authority has redetermined the value and importer appellant has discharged the customs duty accordingly - the imported consignment of marble is liable for confiscation under Section 111(d) of Customs Act, 1962 due to misdeclaration of the value.
Redemption fine - redemption fine of ₹ 16 lakhs as against the value of ₹ 47,21,686/-, is excessive as normally when the redetermination of value is accepted and customs duty liability is discharged if there is no allegation that there was misdeclaration of quantity, tribunal has been taking a consistent view that the redemption fine should be 20% of the enhanced/combined CIF value - the redemption fine reduced to ₹ 10 lakhs.
As regards penalty, we hold that penalty imposed by the adjudicating authority of ₹ 10 lakhs is excessive and accordingly, we reduce the same to ₹ 5,00,000/-.
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 1153 - CESTAT MUMBAI
Demand of duty with interest and penalty u/s 112(a) of the Customs Act, 1962 - import of goods based on value based advance licences - demand raised on the ground that manufacturer, has availed the benefit of modvat/cenvat credit - Held that: - In our considered view, the impugned order is unsustainable for the reason that it does not bring forth any evidence to indicate that the original manufacturer licence holder and exporter had availed modvat credit on the inputs purchased by them. In the absence of any such evidence the allegation in the show-cause notice that the imported goods against such advance licence are liable to customs duty is unacceptable; secondly, we find that the appellant is a transferee of the licence. It is beyond any stretch of imagination to hold that the appellant should have, during the relevant period, ascertained that the manufacturer exporter had not availed the modvat credit on the inputs.
Reliance placed in the case of CJ Shah & Co. Versus Commissioner of Customs (EP) , Mumbai [2016 (11) TMI 1322 - CESTAT MUMBAI], where similar issue decided and it was held that the appellant had purchased the advance licenses from the manufacturer exporter and hence, asking the appellant to evidence that original manufacturer exporter had not availed the modvat credit, is a far fetched proposition well neigh impossible act.
Impugned order is set aside and the appeal is allowed - decided in favor of appellant.
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2016 (12) TMI 1152 - CESTAT MUMBAI
Seizure - arms and ammunition - Redemption fine - Penalty - Held that: - I find that the Bill of Entry was filed on 29.4.2006 for the LMS Pressed Bundle Scrap from Hodeidah Port, Yeman and received under invoice dated 10.4.2006; the said invoice along with the packing list was accompanied by a pre-shipment inspection certificate from the Registered Inspecting Authorities; on 100% examination, the description of the goods as declared was found to be correct except that they were not in shredded form - It can be seen from the clause 2.32 of the Handbook of Procedure (Vol-I) that it gives a window of two months for importing the goods subject to the condition that pre-shipment inspection certificate is accompanied the goods - also, there are no arms and ammunition found in the said scrap which has been imported - Appeal allowed.
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2016 (12) TMI 1151 - CESTAT HYDERABAD
Imposition of redemption fine and penalties - clandestine removal - whether the imposition of redemption fine of ₹ 2 lakhs is legal for the reason that the goods are not available for confiscation? - Held that: - reliance placed on the decision of the case of Dev Anand Agarwal Versus CC, New Delhi [2016 (3) TMI 513 - CESTAT NEW DELHI], where it was held that no redemption fine can be imposed when the goods are not available for confiscation - imposition of redemption fine of ₹ 2 lakhs is not within the provisions of law and therefore is set aside.
Whether the penalty of ₹ 1,10,000/- imposed on M/s. EPVL and ₹ 50,000/- imposed on Shri Aman Garg are sustainable? - Held that: - the acts committed by the appellants with regard to removal of logs, it has to be stated that there is some amount of intention to remove the logs without seeking permission and against the law applicable to the situation of bonded warehouse. The act of the appellants in bringing wood cutting machine and generator to the premises in order to tamper with the logs and cutting them into pieces before the inspection by the Customs officers has to be viewed seriously - penalty of ₹ 1,10,000/- imposed on M/s. EPVL is sustained - the penalty of ₹ 50,000/- imposed on Shri Aman Garg, is on the higher side. Thus, the imposition of penalty of ₹ 20,000/- on Shri Aman Garg would meet the ends of justice.
Appeal partly allowed - decided partly in favor of appellant.
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