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Customs - Case Laws
Showing 61 to 80 of 2047 Records
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2017 (12) TMI 1038 - CESTAT BANGALORE
Refund of Extra Duty Deposit (EDD) - denial on the ground of unjust enrichment - Held that: - Tribunal in the case of SKF Technologies (I) Pvt. Ltd [2016 (11) TMI 986 - CESTAT BANGALORE], has held that EDD (extra duty deposit) made during the pendency of investigation by SVB is in the form of a security and the doctrine of unjust enrichment is not applicable for the refund of EDD - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 984 - DELHI HIGH COURT
Whether the CESTAT was justified and correct in law in passing an order of remand to the original adjudicating authority to first decide the issue of jurisdiction, after decision of the Supreme court in Civil Appeal preferred against the decision of Delhi High court in Mangli Impex Limited v. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT]?
Held that: - It was recorded in the said order that the respondent-Revenue had no objection if the remand order passed by the Tribunal was set aside with a request to the Tribunal to decide the issue on merit without taking into consideration the decision of the Delhi High Court in Mangli Impex Limited - the Tribunal would independently apply its mind on the question of jurisdiction and decide the issue - decided in favor of appellant.
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2017 (12) TMI 983 - DELHI HIGH COURT
Revocation of CHA license - forfeiture of security deposit - issuance of bogus exemption certificate - Section 9(1) of the Customs House Agent Licensing Regulation, 2004 - Held that: - it was found that the CHA had received a copy of the bill of exchange with zero customs duty duly signed by the then Custom officer. The CBI has also stated in the charge sheet that the respondent CHA had retained photocopies of the said bill of exchange for its office records and had forwarded the original copies of the same along with his bill to the importer for getting payments, thus clearly implying that the CHA had performed its part of the duties and no role in the forging of the bill of exchange - respondent’s direct involvement with the importer i.e. the beneficiary was not established - appeal dismissed - decided against Revenue.
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2017 (12) TMI 982 - BOMBAY HIGH COURT
Provisional release of goods - Schedule C of Narcotics Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013 - prayer for interim relief - Held that: - Prima facie, it is very clear that no person is entitled to import any controlled substance specified in Schedule C without obtaining No Objection Certificate from the Narcotics Commissioner. Therefore, no interim relief can be granted as far as the prayer clauses (c2) and (c4) are concerned. The effect of grant of prayer clause (c5) will be that this Court has accepted that the provisions of the said Order of 2013 are not applicable to the third category of goods. Therefore, none of these reliefs can be granted.
The payer for interim relief will have to be considered only as regards those goods where the provisional release has been permitted. Therefore, the prayers for interim relief in relation to the said goods will have to be considered after amendment is carried out.
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2017 (12) TMI 981 - MADRAS HIGH COURT
Rate of tax - inter-state sale or not? - e-auction - Whether the clarification issued by the Commissioner dated 07.04.2006, is valid and proper?
Held that: - Merely because, one of the officers of the Customs Department, issued a receipt to the petitioner accepting 4% of the tax, that would not prevent the Commercial Taxes Department to take appropriate steps to recover the tax payable in the State of Tamil Nadu. It appears that only for that reason, when action was initiated by the assessing officer, the petitioner rushed to the Commissioner and sought for clarification. In the facts and circumstances, the clarification issued by the Commissioner is perfectly legal and valid and there is no reason to interfere with the same - petition dismissed - decided against petitioner.
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2017 (12) TMI 980 - CESTAT MUMBAI
Benefit of N/N. 64/2008-Cus dated 9.5.2008 - EPCG Scheme - violation of import condition - Vehicles - Held that: - While grievance of Revenue is that the car was not found in the premises of the hotel and no foreign tourists were found therein, but that was used for the personal purpose of the appellant hotel, there cannot be claim of notification benefit. There was no enquiry conducted to show that car was not used for such purpose, for which the plea of Revenue should not sustain - Revenue having failed to prove that the vehicle was not used for the purpose of foreign tourists and not also proved that there was no foreign exchange earned, the appellant should not suffer. It had maintained logbook and car was used for foreign tourists and foreign exchange was earned.
Mere use of the car by Directors in exigency does not debar the appellant from the notification benefit. A plethora of documents submitted by the appellant could not rule out use of the vehicle for the foreign tourism and stray use of the vehicle by Director shall not dis-entitle the appellant when appropriate foreign exchange earning remain undoubted and uncontroverted by the Revenue.
Reliance placed in the case of Hotel Excelsior Ltd., Jagdish Rai Sood, Director, Raman Kumar Sood, Director, Ajay Kumar Sood, Director, Satish Kumar Sood, Erstwhile Director Versus Commissioner of Customs (I And G), New Delhi And Vica-Versa [2015 (12) TMI 1045 - CESTAT NEW DELHI], where it was held that proceedings initiated against HEL and its Directors for violation of condition of notification or the EPCG licence are not sustainable as the same are pre-mature as HEL is still in possession of the cars and registered the same as tourist vehicle.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 979 - CESTAT MUMBAI
Cancellation of permission issued by the concerned authority - case of appellant is that the cancellation of the permission on 29/11/2005 was not communicated to it by the above said authority for which that matter has been agitated before the appellate authority - Held that: - action of the appellant in importing the material against a withdrawn import permit, should not prejudice the decision on their fresh application by the Registration Committee for fresh imports - The appellate order of the Agricultural Ministry having resulted in remand of the matter to the Registration Committee, learned adjudicating authority shall enquire as to the fate of that remand and appropriately consider result thereof while re-adjudicating the matter.
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2017 (12) TMI 978 - CESTAT BANGALORE
Rectification of mistake - this Tribunal while remanding the appeal has relied upon the decision of the Hon'ble Supreme Court in the case of Chandana Impex Vs. CCE, Delhi [2011 (7) TMI 88 - SUPREME COURT OF INDIA] wherein the case was remanded to the Tribunal with a direction to examine the issue of jurisdiction afresh in the light of the decision in CCE Vs. Sayed Ali [2011 (2) TMI 5 - Supreme Court] - Held that: - there is no error apparent on the face of the record which needs to be corrected under the scope of ROM application filed by the appellant - the scope of ROM application is limited to the rectification of error which is apparent on the face of the record - ROM application dismissed.
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2017 (12) TMI 906 - BOMBAY HIGH COURT
Delay in adjudication of SCN - delay of 15 years - call book - whether there is no deliberate or malafide attempt on the part of the respondents in not adjudicating the show cause notice?
Held that: - Unless and until the Revenue establishes that there is a law mandating taking cognizance of these procedural requirements or these procedural requirements have been engrafted into the applicable legislation so as to enable the Revenue/Department to seek extension of time, in writ jurisdiction, we are not obliged to take notice of these procedural delays at the end of the Revenue/Department. Accepting that case would defeat the rule of law itself - We have not found from any of these averments and statements in the affidavit that there was a bar or embargo, much less in law for adjudicating the show cause notice. This Court indulged the Revenue enough and by giving them an opportunity to file an additional affidavit. The additional affidavit as well, does not indicate as to why the Revenue took all these years, and after conclusion of the personal hearing in the year 2004, to pass the final order.
The Revenue/Department has not been able to justify its lapse in not adjudicating the show cause notice issued on 28th March, 2002 for more than 15 years. There may be reasons enough for the Revenue to retain some matters like this in the call book, but those reasons do not find any support in law insofar as the present petitioner's case is concerned. Merely because there are number of such cases in the call book does not mean that we should not grant any relief to the petitioner before us - petition allowed.
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2017 (12) TMI 905 - GUJARAT HIGH COURT
CENVAT credit of CVD availed by debiting and adjusting in DEPB account - denial on the ground that in terms of EXIM policy 20022007 and in particular para 4.3.5 thereof where additional customs duty was adjusted from DEPB, no benefit of CENVAT or draw back would be available - Held that: - as per the SCN, the petitioner had wrongly availed the CENVAT credit. This provision was made in the earlier Foreign Trade Policy of 200207. However later in the new policy, by virtue of amendment in the policy, such benefit was made available again. Circular dated 21.10.2004, of course, provided that such benefit would be available with respect to licenses issued under the new policy - whether in case of the petitioner, all the licenses were issued under the new policy or not is a question of fact, which requires examination - matter placed on remand for re-examination - petition allowed by way of remand.
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2017 (12) TMI 904 - CESTAT NEW DELHI
Importer of goods - unclaimed consignment - SCN’s issued in this regard, were adjudicated vide order dated 27.02.2014, holding that Sh. Loveleen Sawhney is the importer of impugned goods and by his acts of omission and commission, has rendered such goods liable to confiscation under Section 111(f), (l) and (m) of the CA, 1962 - penalty - Held that: - Since Sh. Loveleen Sawhney has not filed any documents in respect of clearance of the imported consignments. Thus, he cannot be termed as ‘importer’ under Section 2(26) of the Customs Act, 1962 - Department has not adduced any concrete evidence that the appellants have active participation or role in illegal importation of the subject goods in question.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 903 - CESTAT NEW DELHI
Mis-declaration of description of goods - undervaluation - main ground agitated is that no confiscation can be ordered of the goods without seizing the same - Held that: - the imported goods are in the custody of customs till such time the goods are allowed to be cleared. In the present case such clearance has been allowed only after the execution of bonds and bank guaranty, pending adjudication of offence - confiscation for misdeclaration upheld - redemption fine and penalty also upheld - appeal dismissed - decided against appellant.
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2017 (12) TMI 846 - GUJARAT HIGH COURT
Refund claim of duty paid but actual export could not take place - time limitation - export of goods in terms of the shipping bill - It is the case of the petitioner that the export actually could not take place for the reasons which we are not directly concerned with - case of Revenue is that the application for refund of the duty was filed beyond a period of one year from the payment of duty and the application was thus, hit by the limitation prescribed under section 27 of the Customs Act.
Held that: - the export of goods would take place upon the same being taken out of India to a place outside India. The definition of 'exporter' under section 2(20) of the Customs Act would make it clear that there is a clear distinction between the stage when the goods meant for export are entered for export and they are actually exported. During this period, any owner, beneficial owner or any person holding himself out to be so, would be considered as an exporter. Subsection (1) of section 12 authorizes the Customs authorities to levy customs duty at the prescribed rates for goods imported into or exported from India. Thus, the incident of levying of customs duty is on export of goods. It is however true that in terms of subsection (1) of section 16 of the Customs Act, the rate of duty and tariff valuation would be determined as applicable to any export goods on the date on which, upon such goods being entered for export, the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51.
Reverting back to the facts of the case with this statutory scheme in mind, what actually happened was that the petitioner applied for permission of export of filing shipping bills and depositing self assessed tax. The Customs authorities satisfied that all the requirements are fulfilled, granted permission for export as envisaged under subsection (1) of section 51. However, the export never took place. The assessment of tax be it self assessed or assessed by the Customs authorities would be in terms of section 16 on the basis of the valuation and rate applicable at the time of entry of goods for export. The levying of tax however, would be under section 12 upon the actual export of goods. Subsection (1) of section 51 does require that before the proper officer grants permission for export of goods, he would have to be satisfied that the exporter had to be paid the duty assessed on such goods and other charges payable under the Act. Naturally since the permission for export cannot be granted unless the duty is actually paid, nevertheless, the amount so deposited would be appropriated towards duty only upon exportation of the goods.
Under subsection (1) of section 27, the person claiming any refund of the duty or any interest thereof paid or borne by him can make an application in prescribed form to the competent authority before expiry of one year from the date of duty or interest thereof. If the amount deposited by the petitioner is treated as a duty paid and literal interpretation of subsection (1) of section 27 is adopted, the authorities perhaps would right in contending that the application for refund was beyond the period of limitation prescribed. However, such interpretation would lead to anomalous and unintended consequences and must be avoided. In the present case, the petitioner's right to seek refund or in other words the cause for filing application for refund arose only when the export actually failed. Till then, he petitioner could not have applied for return of amount already deposited. If in the meantime, as in the present case, more than a year is passed, the literal interpretation of application of subsection (1) of section 27 would amount to a situation where the cause of action for filing refund application even though had not arisen within one year from the date of deposit of the duty, the applicant for refund would be told that his refund application is barred by limitation.
Applicability of section 26 - Held that: - In the present case, the goods were never exported. Even otherwise, clauses (a) and (b) of section 26 cover entirely different situations. Under clause( a), the duty would become refundable on the goods being returned after exportation. Otherwise then by resale. Clause( b) would cover a situation where the goods are reimported within one year from the date of exportation. The right of the petitioner to seek return of the amount deposited while filing the shipping bill thus stems from the fact that the anticipated export never took place.
Refund allowed with interest - petition allowed - decided in favor of petitioner.
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2017 (12) TMI 843 - CESTAT NEW DELHI
Valuation of imported goods - air conditioners of O-General brand - SCN alleged that the imported goods were under-valued for customs duty purposes; the value was sought to be enhanced - Held that: - Rule 12 of the Valuation Rules can be invoked when the appellants failed to produce manufacturer's invoice and other supporting evidence in order to substantiate their declared value, re-determination of assessable value based on contemporaneous imports is to be done, considering similar commercial level in transactions - It is the submission of the appellant that the quantities imported and the country of export were all different. The commercial levels in the transactions were also different. We are of the opinion that this requires a more detailed examination.
Regarding comparison of value with reference to imports by EGPL, the appellant contested certain factual findings recorded in the impugned order. Based on a letter received from M/s. RAACO ONE, who is a non-authorized dealer of the air-conditioners, a conclusion was drawn regarding the nature of transaction of air-conditioners in India - this fact requires further examination.
Confiscation of goods - Held that: - It is now a well settled legal principle that the Adjudicating Authority cannot order the confiscation of the goods, which were neither seized /detained nor released on a specific bond executed by the owner. In other words, the goods, which were not seized and cleared with no reference of detention or bond cannot be ordered to be confiscated.
Appeal allowed by way of remand.
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2017 (12) TMI 821 - CESTAT MUMBAI
Valuation of imported goods - misdeclaration of description of goods - demand of differential duty, redemption fine and penalty - Held that: - Heavy melting iron scrap misdeclared as articles of iron and steel suggests that appellant had a pre-determined mind to suppress the actual description of the goods as well as value thereof - there shall be no question of interference to the valuation adopted by the adjudicating authority - demand upheld - appeal dismissed - decided against appellant.
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2017 (12) TMI 783 - DELHI HIGH COURT
Non-fulfillment of export obligations within time - extension of export obligation period - the stocks of white sugar produced by the petitioner were placed under the control of the District Magistrate and the petitioner was unable to export the same - Held that: - this Court is not persuaded to accept that the petitioner was entitled to any extension of the export obligation period and this Court finds no infirmity in the decision of the respondents to reject such request - it is not necessary to consider the petitioner's contention regarding the applicability of HoP/FTP 2015-20 to the Advance Authorisation in question. However, for the sake of completeness, it would be apposite to consider the said question as well.
The petitioner has no vested right for grant of extension of the export obligation period and thus its application for extension would necessarily have to be considered as per the policy in force. Undisputedly, as per the policy applicable on 23.06.2015, an extension for purpose of discharging the export obligation in respect of import of raw sugar could not be granted beyond a period of six months. Thus, even if it is assumed that the petitioner had made out a genuine case of hardship – which this Court finds that the petitioner has not – no extension beyond a period of six months for completion of the export obligation could be granted.
Petition dismissed.
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2017 (12) TMI 782 - CESTAT BANGALORE
Amendment of bill of entry - Time limitation - refund of excess duty paid by mistake - Held that: - I have perused the invoice which is on record as well as the previous Bill of Entry wherein the identical product was cleared under actual price whereas in the present case, the price was wrongly quoted, as a result of which excess duty was paid - the Revenue has wrongly rejected the application on the ground of delay whereas the delay has been properly explained and moreover no time limit is prescribed under Section 149 For seeking amendment in the Bill of Entry - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 733 - BOMBAY HIGH COURT
Whether any vested right is accrued on the basis of the extended licences obtained by the petitioners? - whether the subsequent policy will affect the additional licences which were valid on 1st April 1990 when the subsequent policy came into force?
Held that: - In this case, the licence in question was issued on 29th June 1981 when import policy of 8182 was in force. On the basis of the public notice dated 5th June 1981, a notice was issued by the Department to the assessee. Notice was issued on the basis of the contention that after 5th June 1981 import of beef tallow was not permissible. An order of confiscation was passed by the Collector of Customs on the ground that import of beef tallow was not permissible. Accordingly, the assessee preferred an Appeal. The Tribunal held that right to import the goods under OGL is a statutory right and cannot be overruled by a public notice and that the import of beef tallow which ceased to be OGL item when it was canalized by the public notice is governed by the import policy when the licence was issued and not by the public notice.
We have already referred to the subsequent policy which came into force on 1st April 1990. Sub-clauses 1 of both clauses 223 and 224 thereof provide that additional licences issued to export/trading houses prior to 1st April 1990 shall cease to be valid on or after 1st April 1990. In these petitions under Article 226 of the Constitution of India, there is no challenge to sub-clauses 1 of clause 223 and 224 of the subsequent policy. However, subclauses 2 of clauses 223 and 224 protect imports made after 1st April 1990 subject to the conditions mentioned therein. Both the clauses, provided that the restriction imposed by subclauses 1 of clauses 223 and 224 will not apply to those licence holders who have already made firm commitments by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange on or before 31st March 1990 - the petitioners are entitled to relief in respect of the cases which are governed by the subclauses 2 of clauses 223 and 224 of the subsequent policy (199093).
In view of sub-clause 2, the import under the additional licences could have been permitted after 1st April 1990 only if the petitioners had made confirmed commitment by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange prior to 1st April 1990. However, if an extension thereafter is made after 31st March 1990, the same shall be treated as a fresh commitment to which protection under subclause 2 will not apply.
In these writ petitions, we cannot go into the question of fact whether the petitioners had already made confirmed commitments by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange prior to 1st April 1990.
Petition disposed off.
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2017 (12) TMI 732 - MADRAS HIGH COURT
Validity of summons - The grounds of challenge was that the petitioner had appeared before the second respondent and co-operated with the investigation and submitted all documents, however, he was brutally handled by the officers of the second respondent and issuing further summons calling upon the petitioner to appear without disclosing the reasons for such appearance is not sustainable - whether a Writ Court can injunct or quash the summons and after taking note of the Hon'ble Supreme Court in the case of Commissioner of Customs, Calcutta, vs. MM Exports, [2007 (3) TMI 265 - SUPREME COURT OF INDIA], where it was held that the Writ Petition was not maintainable.
Held that: - Though the petitioners seek for issuance of a Writ of Mandamus to prohibit the second respondent from proceeding with the enquiry pursuant to the summons dated 06.11.2017, it is an indirect challenge to the summons. The petitioner having been unsuccessful in its earlier attempt, cannot now maintain these Writ Petitions and indirectly challenged the summons issued by the second respondent. Therefore, the petitioner is estopped from approaching this Court for an identical relief for the second time.
In the instant case, the exercise done by the second respondent is investigation and it does not pertain to a single consignment imported by the petitioners. By the summons, dated 06.11.2017, the petitioners have been called upon to produce documents pertaining to the imports done for the period from 2013-14 to 2016-17. Infact, this Court in the earlier Writ Petition specifically directed that the summons should set out reasons for which the petitioner is being summoned. This has been explicitly stated with summons dated 06.11.2017. Therefore, it is not a singular transaction, which is being investigated, but past transaction as well.
The petitioners have not made out any case for grant of any relief in these Writ Petitions - petition dismissed - decided against petitioner.
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2017 (12) TMI 731 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Hon'ble CESTAT has passed a cryptic and non-speaking order without showing any reasoning or deliberation of the materials that were placed before it for consideration?
Held that: - reliance placed in the case of M/s. A & S Textiles Ltd. Versus The Commissioner of Central Excise, Coimbatore [2017 (9) TMI 352 - MADRAS HIGH COURT], where it was held that Decision in NGA Steels (P) Limited's case [2016 (7) TMI 127 - MADRAS HIGH COURT], squarely applies to the case on hand, where it was held that When a specific plea regarding violation of principles of natural justice is raised, CESTAT, Chennai, is bound to record a specific finding, which is conspicuously absent.
Appeal allowed - decided in favor of appellant.
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