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Customs - Case Laws
Showing 1 to 20 of 2047 Records
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2017 (12) TMI 1872
Failure to make pre-deposit of 7.5% to entertain appeal - SCN issued for non-fulfilment of export obligation - HELD THAT:- There are no merit in the review petition and the same is accordingly dismissed.
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2017 (12) TMI 1868
Seizure of goods - betel nuts that transported from West Bengal to New Delhi - imported goods or not - HELD THAT:- Petitioner's defence appears to be that the goods are not imported goods, but such as have been produced inside the country, therefore, the custom authority has no jurisdiction to detain or seize the same. While the aforesaid issue may be properly gone into in adjudication proceedings which are yet to be undertaken, at this stage, the goods being perishable in nature may not be detained by the custom authority any further. Accordingly, goods in question may be released in favour of the petitioner, subject to its furnishing security in the shape of other than cash or bank guarantee for the full value of the goods as estimated by the custom authority.
The instant writ petition is disposed of, leaving it open to the respective parties to raise all issues for adjudication in proper proceedings.
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2017 (12) TMI 1853
Exemption from CVD - Benefit of Notification No. 12/2012-C.E., dated 17-3-2012 - imported goods described as "solar inverter" - whether the description "solar generating system" covers the goods under import i.e. solar inverter? - Revenue has filed the appeal on the main ground that the goods under import cannot be included in the heading "solar power generating system" for the reason that there can be multiple users for such imported goods.
HELD THAT:- Sl. No. 332 of the Notification grants the benefit to non-conventional energy devices or system specified in the list. From the list A, we find that SI. No. 10 of the list covers "solar power generating system". The goods under import which are described as "solar inverter" performs the function of generating electricity when the same is exposed to sunlight, which, falls within the description of "solar power generating system" - there are no reason to interfere with the impugned order which is sustained.
Appeal filed by the Revenue is dismissed.
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2017 (12) TMI 1828
Refund of SAD - rejection of refund on the ground that there is discrepancy in the description between the goods imported and subsequent sale of goods in India - N/N. 102/2007-Cus. as amended - HELD THAT:- The issue is no longer res integra and it has been settled in a number of Tribunal decisions that minor differences in description of goods and sales invoices cannot disentitle the importer from availing benefit of Notification No.102/2007-Cus.
Reliance placed in the decision in the case of COMMISSIONER OF CUSTOMS (SEA EXPORT), CHENNAI VERSUS SHRI RAM IMPEX INDIA (P) LTD. [2013 (11) TMI 1354 - CESTAT CHENNAI] where it was held that There is no condition in the Notification that the Bill of Entry number should be mentioned in the sale invoice.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1814
Seeking grant of bail - smuggling - currency - currency seized from possession of the accused is not exceeding ₹ 1 crore the offence is bailable one, or not - offence under Section 135(1)(a,b,c) of Customs Act, 1962 - HELD THAT:- Having considered the submissions made by rival sides and the material made available for my perusal by way of case diary as well as the documents relied upon by the accused-petitioner but without expressing any final opinion on the merit and de-merit of the case, this is not found to be a fit case, wherein, indulgence of granting bail may be granted by this Court, hence, the application filed on behalf of accused-petitioner Arpit Jain u/s. 439 Cr.P.C. is rejected.
Application dismissed.
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2017 (12) TMI 1789
Seeking direction to the respondent to Adjudicate and to pass Final Order/order in original pursuant to the SCN, after due opportunity to the petitioner within a reasonable time that may be fixed by this Court - The respondent has filed a counter affidavit stating that after adjudication of the matter, pursuant to the show cause notice issued, final order has been passed by Order-in-Original after giving reasonable opportunity to the petitioner - HELD THAT:- It is open to the petitioner to apply to the respondent to issue to him a fresh copy of the Order-in-Original and on receipt of the same, it is open to the petitioner to take further action in accordance with law.
Petition disposed off.
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2017 (12) TMI 1764
Provisional release of detained goods - authorities have not disclosed any reason contemplated therein to obstruct provisional release of the goods - CBEC Circular 35/2017-Customs dated 16th August, 2017 - HELD THAT:- Now that representation has been made by a partner of the firm who had imported the goods, the respondent no.1 is to consider and dispose of the same within ten days from date. For the purpose of dealing with the representation the said respondent will call for hearing of the person making the representation as well as DRI. In dealing with the representation the said respondent, if is to exercise discretion to deny provisional release of the goods, must take care to give reasons within the scope of the observations of the Madras High Court as mentioned in paragraph 3 of the said circular.
Appeal disposed off.
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2017 (12) TMI 1754
Interpretation of Staute - whether the Chief Commissioner is appointed as appellate authority or Revisional Authority under the Courier Imports and Exports (Clearance) Regulations, 1998 for hearing grievance of the aggrieved against the order of the Principal Commissioner, nothing is the outcome? - HELD THAT:- Although on 26-4-2017 Revenue was informed to ascertain the capacity in which the Chief Commissioner functions under the Courier Imports and Exports (Clearance) Regulations, 1998, there is no reply from the Board and such silence is adding to litigations before the Tribunal - Bar submits today that a like nature case was before the Hon’ble High Court of Gujarat in the case of Commissioner of Central Excise v. Girish B. Mishra [2013 (6) TMI 179 - GUJARAT HIGH COURT] and the Hon’ble High Court of Gujarat has dealt with the authority of Chief Commissioner in that case. It may be of great help for the Board to look into that case while replying to this Tribunal - We make it clear that if no reply is received by the Tribunal by 1st January 2018 it shall be treated that Chief Commissioner’s order under the above Regulation is an appealable order before Tribunal and Tribunal shall proceed with the matter as an appeal filed against his order.
Call the matter on 10th January, 2018.
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2017 (12) TMI 1747
Refund of SAD - applicability of period of limitation to claim refund - HELD THAT:- In the present case, the only ground of the Revenue is that the SLP filed by the Revenue against the said High Court's order was dismissed by the Hon'ble Supreme Court only on limitation. The question of law is kept open. Accordingly, the Commissioner (Appeals) should not have followed the decision of Delhi High Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT]. The Revenue preferred this appeal without appreciating the legal implication and making certain observations, which, apparently, are bordering on contempt of Court. In the appeal, it is submitted, "the judgment of Hon'ble High Court is not legally tenable" and "the Hon'ble High Court has failed to appreciate.".
The said High Court's decision has not been overruled by the Higher Court and neither there is any contrary order of another High Court. In such situation, the Revenue cannot make such observations, which shows the non-application of mind and casual approach in appreciating the legal position of binding precedents.
There is no infirmity in the impugned order, which followed the decision of the jurisdictional High Court in Delhi - The appeal of the Revenue is dismissed - Decided against Revenue.
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2017 (12) TMI 1739
Jurisdiction - power to issue SCN - whether Additional Director General, DRI is proper officer to issue SCN or not - HELD THAT:- The issue raised herein on the question of jurisdiction seems to be concluded in favour of the Revenue by the decision of this Court in SUNIL GUPTA VERSUS UNION OF INDIA AND OTHERS [2014 (12) TMI 151 - BOMBAY HIGH COURT]. However, as identical questions have been admitted post the order in Sunil Gupta, the issue raised herein would require consideration.
The hearing of this appeal is expedited - To be heard along with Customs Appeal No. 53 of 2016 and Writ Petition No. 2338 of 2016 [SUN POLYTRON INDUSTRIES LTD. AND ORS. VERSUS UNION OF INDIA AND ORS. [2017 (4) TMI 1449 - BOMBAY HIGH COURT]].
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2017 (12) TMI 1727
Penalty on CHA - it is alleged that appellant company's CHA has declared wrong classification - HELD THAT:- From the impugned order, it appears that importer Shri Raj Kumar Wadhwa is the controller of importer firm and on the basis of whatever documents he has sent, Bill of Entry was filed by CHA. Thus, in the instant case, no mala fide intention is on the part of the appellant and he filed Bill of Entry in bona fide manner.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1695
Restraint from encashing the Bank Guarantee furnished by the petitioner for securing the payment of custom duty - import of Hot Rolled Plates for Loharinag Pala Hydro Electric Power Project, Dist: Uttarkashi, Uttarakhand - HELD THAT:- It, prima facie, appears that the petitioner’s bank guarantees were to be released and NTPC Ltd. was required to furnish its bank guarantee(s) in lieu thereof.
Issue notice.
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2017 (12) TMI 1693
Freezing of Bank Accounts - conditional/unconditional de-freezing - HELD THAT:- Counsel for the petitioner submits that there has been a change in circumstance as show cause notice under Section 124 of the Customs Act has been issued and it is not alleged that the money in the bank accounts is liable to be confiscated. Notice under Section 121 of the Customs Act has not been issued in respect of the money. In these circumstances, the petitioner contends that the order of seizure of operation of the bank accounts deserves interference. Counsel also relies upon Section 110(2) of the Customs Act.
We would like the petitioner herein to first comply with the order dated 16th March, 2017 requiring the petitioner to furnish security for ₹ 10 crores. The said order has not been challenged by the petitioner. Once the said security is furnished, we would consider de-freezing the 43 bank accounts which were subject matter of Writ Petition.
Relist on 3rd January, 2018.
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2017 (12) TMI 1679
Refund of SAD - N/N. 102/2007-Cus., as amended - Rejection for the reason that claimant has submitted photocopies of T.R. 6 challans where the date of payment is not available which is mandatory for processing the claim and hence condition No. 2(e)(ii) of the notification has not been met - Held that:- It is evident that they have produced photocopy of bank challans evidencing payment of customs duty, extract from ICEGATE duly certified by Chartered Accountant as proof of payment. This being so, just because in the photocopy of T.R. 6 challan the date of payment is not clear, rejection of the refund claim only on this ground cannot be sustained, especially since the lower authorities very well have confirmed the fact of discharge of duty liability based on other documents submitted by the appellant - Moreover, appellants have not been found wanting in fulfillment of any of other conditions given under para (2) of the N/N. 102/2007-Cus.
In the absence of any other discrepancy or shortcoming, appellants are very much eligible for grant of the refund amount as claimed by them under N/N. 102/2007-Cus. - Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1675
100% EOU - Refund of customs duty - export final products on debonding - before final exit from 100% EOU, the raw material on which Customs duty was paid used in the final product and such product was exported - Held that:- The appellant had paid the Customs duty on the raw material after in principal permission of de-bonding but before final de-bonding under the EOU scheme. During the such period the appellant remained 100% EOU - As per 100% EOU, if any raw material is used in the export goods, Customs duty is exempted vide Notification No. 52/2003-Cus., dated 31-3-2003.
Though the appellant had paid the duty for the purpose of de-bonding but at the same time when goods manufactured, before the de-bonding, has been exported. Once the final product exported during the status of EOU, raw material used therein should not suffer Customs duty, therefore, whatever Customs duty paid on such raw material liable to be refunded to the appellant.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1670
Condonation of delay in filing revision application - whether delay of 89 days in filing the instant revision application is condonable in this case? - Held that:- As per sub-section (2) of Section 35EE of Central Excise Act, 1944, a revision application can be filed only within 3 months from the date of communication of the Commissioner (Appeal)’s order. Further, the delay of 90 days in filing the revision application can be condoned by the Government on the ground that the applicant was prevented by any sufficient cause from filing the revision application in time. The applicant has stated in their condonation of delay application that the applicant could not file the application with the Government on time because the file pertaining to present case was unfortunately misplaced in their office. The reason adduced by the applicant is manifestly very vague, casual and cannot be considered as sufficient cause which prevented them from filing the instant revision application on time as keeping the documents was entirely within their control. The applicant has not explained which document was missing because of which revision application could not be filed in time - the applicant’s case is not covered by the term ‘sufficient cause’ as is envisaged in Section 35EE and, therefore, the Government does not consider it serving case for condonation of delay. Hence the application filed by the applicant is time barred.
Classification of goods - export of ladies knitted blouse - the contention of the applicant that their exported product are classifiable under CTH 6106 03A and the adjudicating authority has wrongly classified the same under CTH 6114 02 03A - Held that:- The contention of the applicant is not found supported by any concrete material. They have merely cited description of the goods as was given in the Shipping Bill and relied upon Public Notice No. 22/2012, dated 6-7-2012 issued by Commissioner of Customs, Air Cargo (Exports), NCH, New Delhi, wherein garments of different description have been discussed for the guidance of trade and departmental officers. However, reliance on Public Notice is not sufficient here and the classification of applicant product is to be determined by the actual make, dimensions, size and other features of the products only - The sample of the exported goods was not produced before the first appellate authority and it is not produced even before the Government along with revision application or even during the personal hearing. Hence, it is not feasible for the Government at this juncture to accept the above claim of the applicant merely on the basis of the description of the exported garments given in the revision application.
Revision application not maintainable on merits as well as on limitation.
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2017 (12) TMI 1632
Appeal dismissed on the ground of time bar - assessments of Bills of Entry were done prior to 1-12-2009 and the appeals were filed before the Commissioner (Appeals) only on 10-3-2010 - Held that:- All the six Bills of Entry were assessed and communicated to the appellant on various dates which were prior to 1-12-2009 and the appeals were filed before the Commissioner (Appeals) on 10-3-2010 only. This is much beyond the time-limit prescribed under the Act for filing appeals before the lower appellate authority - the request to issue a speaking order has been given to the department which is dated 22-3-2010. This letter is after filing the appeal before the lower appellate authority. It can be reasonably inferred that such letter was given as afterthought to circumvent the delay in filing the appeal.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 1630
Recall of order - appeal was decided ex parte, without proper notice of hearing to the respondent - principles of natural justice - Held that:- On perusal of the case records, we do not find any notice has been communicated to the respondent, fixing the date of hearing on 22-11-2016. Thus, we are of the view that Final Order dated 22-11-2016 passed by this Tribunal ex parte can be recalled in the interest of justice - Decided in favor of Revenue.
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2017 (12) TMI 1606
Refund of SAD - rejection on the ground that there is no endorsement in the invoices to the effect that no credit has been availed in respect of the imported goods as required under para 2(b) of the N/N. 102/2007-Cus. dated 14.09.2007 - Held that:- The issue is decided in the case of NARASINGH DASS & CO. (P) LTD. VERSUS COMMR. OF CUS., TRICHY & CHENNAI [2017 (4) TMI 315 - CESTAT CHENNAI], wherein reliance placed in Larger Bench of the Tribunal in the case of Chowgule & Company Pvt. Ltd. v. Commissioner of Customs [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] which has held that such an endorsement may not be necessary since the invoice do not carry the duty element - refund allowed.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1599
Import of Contraband goods - prosecution case is that on 7-2-2017, the petitioner illicitly imported huge quantity of 180 Kgs. of “khat leaves” of African origin to India - petitioner seeks orders on the ground that the “khat leaf” does not come under the definition of Psychotropic Substance or Narcotic Drug under the NDPS Act - whether the substance seized from his possession is Psychotropic Substance or not?
Held that:- Admittedly, it is a quantity of 180 Kgs. of khat leaves. The substance was subjected to analysis at the laboratory. On analysis, it was found containing “cathinone” and “cathine”. These two are Psychotropic Substances included in the Schedule to the NDPS Act. Cathinone is listed as item No. 125 in the Schedule, and cathine is listed as item No. 171 in the Schedule. Of course, khat leaves, by that name is not seen listed in the Schedule to the NDPS Act.
The question for consideration is not how the substance is called, or what is its scientific name or botanical name, but what does it contain. The substance allegedly seized from the hands of the accused was found containing two prohibited Psychotropic Substances listed in the Schedule to the NDPS Act - The Court cannot take things technically and mechanically quash the prosecution saying that the substance by name “khat leaves” is not included or listed in the Schedule to the NDPS Act.
Petition dismissed.
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