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Customs - Case Laws
Showing 81 to 100 of 2047 Records
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2017 (12) TMI 730 - MADRAS HIGH COURT
Extra Duty Deposit (EDD) - matter was remitted back to the Lower Adjudicating Authority (LAA) for a fresh examination with a direction to collect EDD at 5% from the petitioner in respect of the Bill of Entries filed by them - Held that: - The Appellate Authority found that LAA has not gone into the aspect with regard to the impact of Rule 10(1)(c) of the Valuation Rules, 2007 and therefore, the matter requires re-examination and verification covering both direct payment and indirect payments to find out if they are related to imported goods and about the condition of sale - When such is the case, adding a rider to that order by directing the petitioner to pay EDD equivalent to 5% value in all the Bills of Entry filed by them would be without jurisdiction, as the lis before LAA is yet to be adjudicated and the matter is at the stage of remand.
The imposition of such duty of EDD equivalent to 5% on all the Bill of Entry filed by the petitioner would be beyond the scope of the order passed by the first respondent, as the petitioner succeeded before the LAA - petition allowed - decided in favor of petitioner.
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2017 (12) TMI 729 - CESTAT CHANDIGARH
Valuation - enhancement of value - contemporaneous imports - Held that: - The Department is interpreting admission by appellant no. 1 to enhance the value to US dollar 2.6 per kg. by the importer as evidence that the goods were undervalued. However, that enhancement was based on the email/proforma invoices and there is no evidence of contemporaneous imports as the basis to enhance the value - in the absence of actual contemporaneous imports of identical or similar goods, the email from DRI citing prices for different counts of yarn or the proforma invoice is not sufficient basis to redetermine the transaction value under Customs Valuation Rules 2007.
In the absence of any evidence of contemporaneous imports on record, the enhancement of value is completely unsustainable - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 728 - CESTAT MUMBAI
Principles of natural justice - penalty - case of Revenue is that appellant like Kirit Dhruv who is a repeated offender threaten the basic fabric of the society and any leniency towards them will encourage further fraudsters. - Held that: - it is expected that the appellant shall not follow any dilatory tactics but shall cause appearance before adjudication authority to reduce the litigation as expeditiously as possible - appeal is remanded to learned Adjudicating Authority - appeal allowed by way of remand.
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2017 (12) TMI 727 - CESTAT BANGALORE
Refund claim of amount paid under protest - denial on the ground of time limitation - case of appellant is that the amount paid by the appellant during the course of investigation is merely a deposit and this payment does not amount to a duty and Section 27 of the Customs Act, 1962 will not apply to deposits - Held that: - the amount was deposited during investigation and later on the Commissioner has held that the appellant was not liable to pay duty and thereafter the appellant filed the refund claim - in the case of Motorola India Pvt. Ltd. [2006 (4) TMI 390 - CESTAT, BANGALORE], it was held that when the amount is paid during the course of investigation, it is not the duty and it is only a deposit and Section 27 of the Customs Act, 1962 is not applicable to deposits made during investigations - unjust enrichment is not applicable nor it has been invoked by the Department.
Interest on delayed refund - Held that: - the assessee is entitled to interest from the date of expiry of three months from the date of filing the application for refund till the refund is granted.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 726 - CESTAT MUMBAI
Misdeclaration of value of imported goods - smuggling - case of Revenue is that the appellant failed to rebut without leading and cogent evidence to prove their innocence - Held that: - Learned adjudicating authority found that the misdeclaration caused serious prejudice to interest of Revenue and these appellants were consciously and deliberately involved therein to cause subterfuge to Revenue making illegal gain at the cost of Revenue. The bank accounts investigated reveal the money trail involved in the smuggling activities carried out by appellants. They could not detach themselves from the racket of smugglers. Whole evidence on record reveal that all these appellants were members of smuggling racket. Criminal prosecution was also launched by department against conspiracy made by these appellants - The documents recovered revealed commitment of offence against Revenue and movement of the goods also speak against the appellants as to their involvement in routing these smuggled goods to their destination.
When material facts came to record and that remained unrebutted by the appellants, it can be said that learned adjudicating authority having passed a very detailed order bringing out the evidence and fact in para 73 of his order, that does not call for any intervention - appeal dismissed - decided against appellant.
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2017 (12) TMI 725 - CESTAT ALLAHABAD
Smuggling - gold - non-declaration of goods before the customs authorities - Baggage Rules - section 80 of CA, 1962 - Held that: - any passenger entering into India is empowered to make a declaration of his baggage before entering into India as provided under Section 77 of Customs Act, 1962. Further if it is found that the goods accompanying him which are also called as baggage, import of which is prohibited and in respect of which true declaration has been made under Section 77 the proper officer may at the request of the passenger detain such articles for the purpose of being returned to him on his leaving India under Section 80 of Customs Act, 1962.
The appellant appears to have proposed such option before the officers of Land Customs Station, Sonauli. However, the said option was not exercised and officers seized the goods and detained the passenger - the appellant was entitled for the benefit of provision of Section 80 of CA, 1962 - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 676 - GUJARAT HIGH COURT
Exemption from payment of deployment of staff - cost recovery charges - Circular dated 10.04.2013.
Held that: - the Government of India, issued a circular providing for exemption from payment of cost recovery charges by the custodians of the ports subject to certain conditions. The basic condition was of satisfying the basic performance norms of minimum cargo and documents handled during a certain period. Such norms would show that for a set up of specified number of officers of specified cadres, the seaport should have achieved a minimum volume and the value of import and export cargo. The port should also have minimum number of documents of bills of entry or shipping bills annually. Para 5 of the circular is of utmost important. Clause (a) of para 5 provides that volume/value and number of documents in case of seaports must be met in each of the preceding two financial years. Clause (b) of para 5 provides that exemption from gross recovery charges would be prospective. Clause (c) of para 5 imposes an additional condition that no cost of recovery charges shall be outstanding.
The reference to no cost recovery charges shall be outstanding also has a bearing on this aspect of the matter. If on one hand, the Government of India expects that the custodian should pay up the charges and not be in arrears of such charges, when the application for exemption is being processed, the contention that such exemption even if later on granted, would only be prospective, would be incongruent. On one hand, the custodian would have to, pending finalization of the application for exemption, go on depositing the recurring charges with the Government of India, failing which, he would be stated to be breaching condition contained in clause (c) of para 5 of the circular, and on the other hand when such application is granted, the custodian would be told that no refund can be granted for such charges already deposited since the exemption is always prospective. Grant of exemption from the date of the application, if the application is in order and no delay can be attributed to the petitioners in either making the application or supplying necessary information to the department, cannot be stated to be retrospective operation of the order of exemption.
Pending such application for exemption, the custodian cannot discontinue depositing the charges with the Government. In a given case, it may happen that the application is ultimately rejected for valid reasons. It is possible to argue that in such circumstances, the Government of India, cannot be left uncovered for the period during which such application was made and was pending with the authorities. It is perhaps therefore correct on the part of the Government of India to insist that pending such application for exemption, the petitioners should have gone on depositing the recurring cost recovery charges. However, in the present case, nonpayment of the charges cannot be the base for rejecting the grant of exemption from the date of the application. This is so because admittedly all the while when such application was pending, the petitioners were never conveyed that such application shall not be processed, entertained or granted since the current charges are not paid.
The condition of grant of exemption under impugned order dated 15.12.2015 of the exemption being available from the date of the order is struck down. It is provided that such exemption for payment of cost recovery charges would be available from the date of the application i.e. 12.04.2013 - petition allowed - decided in favor of petitioner.
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2017 (12) TMI 628 - MADRAS HIGH COURT
Provisional Release of goods - Section 110 (A) of the Customs Act, 1962 - Held that: - The factual matrix of the present case appears to be not in dispute, as the allegation was not pertaining to mis disclaration of the nature of the goods, but with regard to retail selling price of the products. Thus, if ultimately, on adjudication, it is found that that the retail selling price declared by the petitioner, in the Bill of Entry is lower than the actual retail price, then, it would result in changes in the valuation of the goods, demanding higher rate of tax, penalty and other charges.
As far as the adjudication levies in respect of live consignment are concerned, it is yet to be quantified. Though the Board's Circular provides for such adjudication levies, there can be no question of quantifying the same at this stage, without opportunity to the petitioner. Further, the amount of ₹ 30,00,000/- for the duty liability in respect of the past imports cannot be insisted upon at this juncture, as no proceedings have been initiated against the petitioner, in respect of those consignments, which were already cleared.
Petition disposed off.
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2017 (12) TMI 624 - MADRAS HIGH COURT
Suspension of CHA License - Regulation 19(2) of the Customs Broker Licencing Regulation 2013 (CBLR) - the allegation against the petitioner in the instant case is that they have contravened Regulation 11(d) & Regulation 11(e). In as much as the petitioner did not advice their client to comply with the provisions of the Act and failed to exercise due diligence to ascertain the correctness of the information and even assuming ultimately, an order has been passed.
Held that: - There can be no dispute over the settled legal position that there is no res judicata in matters pertaining to tax for different assessment years. However, the facts of the present case, calls for a different approach. The allegation against the petitioner was that in the bill of entry, the word 'computer', was deliberately added to the item description of goods, at the behest of the importer in violation of Section 46(4) of the Customs Act, with a view to claim duty exemption benefit. At the first blush, it appears the insertion of word computer, in the bill of entry, though alleged to be deliberate, cannot be construed as a serious matter.
The respondent stated that the petitioner failed in his obligations contemplated under Regulation 11 by adding the word computer , to the 'item description' without seeking proper explanation from the importer, thereby violating Section 46(4) of the Customs Act. In such circumstances, it cannot be stated that the respondent did not properly exercise its discretion, while suspending the petitioner's licence under Regulation 19(1), nor it can be stated that the interpretation given by the respondent was either perverse or arbitrary not to bring the petitioner's case within the ambit of appropriate case in Regulation 19(1) .
Considering the conduct of the petitioner and the facts, the first respondent has exercised his powers and found the petitioner's case to be an appropriate case for immediate suspension. After the petitioner was afforded an opportunity, he was given a hearing and the order of suspension has been directed to be continued and the reasons assigned in the impugned order are just and germane to the allegations made against the petitioner - Petition dismissed - decided against petitioner.
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2017 (12) TMI 616 - CESTAT CHENNAI
Quantum of redemption fine and penalty - Import of vehicle - Department was of the view that necessary Type Approval Certificate have not been produced and the conditions have not been complied with - Held that: - the commissioner has observed that substantial part of the conditions in Sl. No. 2 of ITC (HS) Policy to Chapter 87 has been complied and only the conditions (b) and (c) of the said policy have not been complied. There is no dispute that the vehicle was imported for the personal use of the company Chairman - Taking into consideration all these facts along with the fact that the vehicle has been imported for use of special need person, the Commissioner has imposed the redemption fine of ₹ 5,10,000/- and penalty of ₹ 1,00,000/- - impugned order upheld - appeal dismissed - decided against Revenue.
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2017 (12) TMI 564 - GUJARAT HIGH COURT
Effective date of notification - petitioner has prayed for a declaration that the Notification No. 43 of 2010 dated 09.04.2010 granting the exempt from payment of customs duty came to withdrawn become effective only from 20.04.2010 and not earlier and therefore, cannot be applied to the shipping bills of the petitioner for which let orders were issued by the authorities before such date.
Held that: - it is an admitted position that the shipping bills of the petitioner filed with the authorities on 08.04.2010 were processed and let orders were passed by the concerned authority on 09.04.2010. It is not in dispute that the question of charging duty on such exports would have to be decided on the basis of the law prevailing on such dates.
In several judgements, the Supreme Court has held that both the conditions contained in sub-section (4) of section 25 as it stood at the relevant time must be satisfied for the notification to become effective in the present case.
The date of publication of the notification in the official gazette which admittedly happens to be on 20.04.2010. The notification would be effective only from such date and not earlier. The withdrawal of the exemption from export duty would therefore take effect from 20.04.2010 and onwards alone. For the petitioner's exports made before such date, customs duty cannot be levied.
Petition allowed - decided in favor of petitioner.
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2017 (12) TMI 563 - CESTAT MUMBAI
DEEC Scheme - Appellant falsely claimed that M/s Watan Tanning Industries Pvt. Ltd., (WTIPL), was supporting manufacturer of the appellant making use of the imports made by it. When investigation was made, WTIPL was found to be non-existent - Held that: - Appellant no where brought out existence of any machinery or infrastructure facility of its own carrying out manufacturing activity. Nor it proved existence of manufacturing facility of supporting manufacturer - It has not come out with clean hands to establish it claim that the goods imported were not diverted to the market - appeal dismissed - decided against appellant.
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2017 (12) TMI 513 - CESTAT HYDERABAD
Smuggling - Gold Strip (Vaddanam) worn on their waist - It was alleged that the Appellants attempted to smuggle the same and thus the impugned goods are liable for confiscation - Baggage Rules - Held that: - the Appellants were wearing the gold strips i.e Vaddanam on their waist and the same was not carried by them in their baggage. However the same was not disclosed to the officers and after enquiry by the officers the same was revealed to the officers - The adjudicating authority in his findings has held that the Gold strip was only covered by the Appellants for safety purposes and has not concealed them ingeniously with an intention to escape detection by the customs authorities and the same may not have been declared to the department may be due to ignorance of law - the Appellant did not intend to smuggle the goods.
Applicability of baggage rules - rate of duty - Held that: - the Hon’ble High Court of Kerala in case of VIGNESWARAN SETHURAMAN Vs. UNION OF INDIA [2014 (12) TMI 268 - KERALA HIGH COURT] held that the ornaments worn on the person cannot be considered as baggage - the goods in question cannot be classified and taxed as Baggage - the impugned goods shall be liable for duty at the tariff rate i.e 15% adv. as was in force at the material time.
Redemption fine - penalty - Held that: - the intention to evade duty was absent in the present case - the Appellant be charged with reduced amount of redemption fine and penalty u/s 112 (a) - penalty u/s 114AA set aside.
Appeal allowed in part.
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2017 (12) TMI 512 - CESTAT AHMEDABAD
100% EOU - Conversion of shipping bills - free-shipping bill into DEPB shipping bill - Held that: - conversion of free shipping bill into DEPB shipping bills, through amendment as provided under Sec. 149 of CA,1962, is inadmissible and has been rightly rejected by the authorities below - reliance placed in the case of Arise Exports, Trident Creation Versus C.C., Ahmedabad [2017 (8) TMI 145 - CESTAT AHMEDABAD] - appeal dismissed - decided against appellant.
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2017 (12) TMI 511 - CESTAT CHENNAI
Benefit of N/N. 4/2006 - Classification of imported goods - Polished Marble Slabs - classified under CTH 68 02 2110 or under CTH 680221 90? - Held that: - the notification mentions only 6802 2110 and does not mention 6802 2190 - vide Circular No. DOF. No. 334/03/2012-TRU, dated 16.03.2012 the Board has clarified that "Polished Marble Slabs are classifiable under CTH 6802 2190 and the benefit of Notification No.4/2006-CE, dated 01.03.2006 is available to "Polished Marble Slabs. - The Hon'ble Apex Court in the case of M/s. Suchitra Components Ltd. [2007 (1) TMI 4 - SUPREME COURT OF INDIA] has held that beneficial Circular is to applied retrospectively.
Benefit of notification allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 463 - CESTAT NEW DELHI
ADD - Elastomeric Filament Yarn (EFY) - import from China PR, Korea, Taiwan and Vietnam (subject countries) - It is claimed that there is no injury to the DI and there is no reason for imposition of AD duty. The thrust of the argument is that the DI is doing well and is having good commercial return and there is no apparent injury caused to the DI due to import of the subject goods - Held that: - There is no ground to support the claim of the appellants that there is no material injury to the DI due to imports of subject goods. It is clear that a comparison of landed values with the non-injury prices of the DI reveals significant price under selling. The DA had concluded that the performance of DI remained negative in respect of profit, return on investment and inventory level. In the face of such conclusion based on facts we have no reason to arrive at any contrary finding.
It is relevant to note that there is only one unit in the DI which started operation in the year 2012 and engaged in commercial production and sale of the PUC with gradual increase in production and sales in India. The various relevant parameters which will determine the material injury of the DI has been examined by the Original Authority and as already noted, we have no reason to interfere with the same. Accordingly, there is no merit in the appeals filed by the user–importer of PUC in India.
On the appeals filed by Hyosung Corporation, Hyosung Vietnam we note that Hyosung group had stated that no commission has been paid to Hyosung Delhi office, however, Hyosung Vietnam provides monetary support to Hyosung Delhi office which undertakes various activities on their behalf. We note that the DA had asked Hyosung Corporation and Hyosung Vietnam to respond to the representation of DI regarding payment of large commission to their Delhi office - The adjustments on account of inland freight, overseas freight, handling charges, marine insurance, credit cost, bank charges and drawback reimbursement have been accepted after necessary verification. An additional adjustment has been made on account of commission paid to their Delhi office. The DA accordingly arrived at normal value and export price for the producer/exporter. We find no infirmity in such process. Accordingly, there is no merit in the appeal filed by Hyosung Vietnam.
On the appeal filed by Hyosung Corporation, Korea we note the DA had recommended nil duty rate for PUC produced and exported by Hyosung Corporation from South Korea. The Customs notification also did not impose any anti dumping duty on such imports - we find no justification in the claim made by the appellant for termination of the investigation only for them. In any case, as already noted no AD duty has been recommended or imposed on the exports made by the Hyosung Corporation, as mentioned in Sl. No. 7 of the table attached to the Customs Notification dated 03/05/2017. As such, there is no merit in the present appeal.
Appeal by the DI - The DI is partially aggrieved by the impugned final findings and customs notification - Held that: - In the absence of specific instances, we could not identify the source of grievance for the DI. The applicability of Rule 7 of AD Rules to various data submitted by interested parties have been examined by the D.A. The sufficiency of the claim of confidentiality has been recorded by D.A. As such, we find no merit in the present appeal filed by the DI.
Principles of Natural Justice - Held that: - We note that more than one hearing was held with due notice. The appellants did submit their side of the case. In our opinion, there is no breach of due process in the present case.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 462 - DELHI HIGH COURT
Exemption from customs and excise duty - continuation of exemption under GST regime - continuation of exemption until the validity of registration granted to the petitioner’s R&D centre - Held that: - This Court is prima facie of the view that an exemption cannot be claimed as a matter of right in terms of the judgment of the Supreme Court in Union of India v. Parameswaran Match Works [1974 (11) TMI 40 - SUPREME COURT OF INDIA].
The petitioner claims to be a Non-commercial Research Institution recognized by the Department of Scientific and Industrial Research, Ministry of Science & Technology. Imports by Non-commercial Research Institutions are completely exempt from payment of customs duty as also payment of Integrated tax which is clear from a reading of N/N. 27/2017- Customs dated 30th June, 2017 - However, insofar as local purchases made by Non-commercial Research Institutions are concerned, the exemption from payment of excise duty, stands rescinded vide N/N. 9/2017- Central Excise dated 30th June, 2017. The matter requires elucidation and the Government should respond as to the basis of the said rescission to Non-commercial Research Institutions.
The matter requires elucidation - The Court is of the opinion that notice should be issued to the respondents.
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2017 (12) TMI 461 - BOMBAY HIGH COURT
Refund claim - duty paid under protest - claim of the appellant on the basis of proviso to subsection (1) of Section 20 of the said Act was that the benefit of the proviso will be available and no duty will be payable on reimported goods - It is alleged that in absence of the failure to establish identity at the time of importation, benefit of the proviso could not be made available - Held that: - Sub-Section (1) of Section 20 lays down the rule with regard to reimportation of goods produced or manufactured in India which are imported into India after exportation therefrom. Such goods are liable to duty and are subject to such conditions and restrictions, if any, to which goods of the like kind and value not so produced or manufactured are liable or subject, on importation thereof.
The proviso is by way of an exception to the general Rule under Sub Section (1) of Section 20. Only if the conditions of the proviso are satisfied, reimport without payment of duty is permissible. The proviso is applicable provided satisfaction is recorded by the Assistant Collector of Customs that the goods are the same which were exported. In fact of the case and even in the reply, the appellant accepted that the goods are not the same, in the sense that what was exported was the Nylon yarn and by adopting a process, the same was converted into Tyre cord. Thus, going by the stand taken by the appellant, this is not a case of slight or minor transformation of the goods. In this case, goods were exported in one form and re-imported in another form. Thus, it cannot be said that the goods imported are the same.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 460 - CESTAT NEW DELHI
Classification of goods - unbranded Micro SD Cards - classified under CTH 85235220 or CTH 85235100? - Held that: - the CBEC vide Circular dated 20.07.2016 has also clarified that the benefit of the said notification is extendable to Micro/Mini SD cards classified under CTH 85235100. Thus, it is apparent that change in classification of subject goods by the Department will not create any additional Basic Customs Duty liability for the appellant - the appellant is not liable to pay the Basic Customs Duty on the imported goods, even under the classification made by the Department, which was different than the classification made by it.
So far as the issue of confiscation of impugned goods is concerned, we are of the view that the provisions of clause (m) of Section 111 ibid is attracted, inasmuch as, the value and declaration of the goods made in the post parcel do not correspond to the actual goods imported by the appellant. Thus, confiscation of goods and imposition of redemption fine in the impugned order is sustainable under the law - however, the quantum of redemption fine need to be reduced.
Penalty u/s 112 and 114 AA of the Act - Held that: - the statute mandates that penalty can be imposed for use of false and incorrect material, the authorities have to prove that in fact, the person concerned has deceived the exchequer for his wrongful gain - In this case, the Department has not brought on any evidence to prove appellant's guilt in mis-declaring the goods - in absence of any specific substantiation regarding the involvement of the appellant in fraudulent activities like mis-declaration in the present case, penalty set aside.
Appeal allowed in part.
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2017 (12) TMI 459 - CESTAT NEW DELHI
Penalty u/s 114AA of the CA, 1962 - imposition of penalty on the ground that the premises of the appellant showed that the goods were clandestinely diverted by him to M/s. ESS ESS Traders, which were imported under the cover of Bill of Entry dated 29.11.2012 - Held that: - it cannot be said that the appellant had provided certain false or incorrect material in relation to such import. Further, the Department was also in doubt as to the persons, who were actually filed the Bill of Entry for assessment purpose - Since contradictory stand has been taken by the Department at page 13 and at page 16 in the adjudication order, it cannot be said that the appellant is the importer of the goods and has made false declaration in context with the subject import - penalty set aside - appeal allowed - decided in favor of appellant.
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