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Customs - Case Laws
Showing 1 to 20 of 1954 Records
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2018 (12) TMI 1957
Smuggling - Gold Bars - reliability of statements of Mohammed Ibrahim and Siddique Gani - request for cross examination, denied - non-speaking order - HELD THAT:- The impugned proceedings are adjudicatory in character and they cannot be called as criminal proceedings. The persons against whom the adjudication proceedings are taken under Chapter XIV of the Customs Act cannot be labeled as accused.
In this regard, the learned senior counsel placed reliance on the decisions of the Hon'ble Supreme Court in DIRECTOR OF ENFORCEMENT VERSUS M.C.T.M. CORPORATION PVT. LTD. AND ORS [1996 (1) TMI 351 - SUPREME COURT]. No doubt, those proceedings pertain to Foreign Exchange Regulations Act, 1947. But then, the principle laid down in the said decision can be applied with equal force even to proceedings arising under the Customs Act of 1962.
A mere look at the order dated 20.02.2018 rejecting the writ petitioner's request for cross examination starts and ends by describing Siddique Gani and Mohammed Ibrahim as co-accused. The opening line reads as “With respect to the request for the cross examination of the co-accused” and it ends as follows, “the request for cross examination of the co-accused is denied”. Admittedly, the said Siddique Gani and Mohammed Ibrahim cannot be called as co-accused - In this case, there is absolutely no consideration of the petitioner's request at all. The order is virtually a non-speaking order.
The matter is remitted back to the file of the respondent to pass orders afresh in accordance with law - petition allowed.
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2018 (12) TMI 1923
Valuation of imported goods - Star Aniseeds - undervaluation of goods - rejection of declared value based on contemporaneous value - invocation of principle of sampling - demand of differential duty alongwith interest and penalty - HELD THAT:- The petitioner herein had imported vide as many as 59 bills of entry. The authority had some material to doubt the truth or accuracy of two of the transactions. The respondent chose to invoke the principle of sampling and determine all the 59 transactions on this basis. This is clearly not correct. The imported goods are agricultural commodities. It may not be anybody's case that the value of the goods prevailing in one month would be the same over a period also. Therefore, on the strength of some materials obtained in respect of a few transactions, the respondent could not have determined the value of the remaining 57 transactions also. Only in Statistics and Psephology, the sampling methods are adopted. In matters having serious civil and penal consequences, such sampling methods should not be adopted.
There are no hesitation to hold that the approach adopted by the respondent does not conform to the statutory procedure laid down in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. As already pointed out as per Rule 12, before passing an order of rejection, the authority must first ask the importer for further information. In this case, there is nothing on record to show that this Step-1 was performed. Once the declared value is rejected, the next step is to proceed sequentially in accordance with Rules 4 to 9. The respondent did not do so. As already shown, the respondent by not furnishing the authenticated copies of the documents with true translation has committed gross violation of the principles of natural justice.
The matter is remitted to the file of the respondent to proceed afresh in accordance with law - petition allowed by way of remand.
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2018 (12) TMI 1906
Release of detained goods - black pepper (kali mirch) - cardamom - Prohibited goods or not - Section 110A of the Customs Act, 1962 - HELD THAT:- The seizure order nowhere in specific terms make any averment that the goods which are being seized and detained are of third country (foreign origin) which were brought into Nepal and now are being imported in India.
Parties are directed to exchange pleadings within three weeks - List for admission/final disposal immediately thereafter.
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2018 (12) TMI 1860
100% EOU - Direction to second respondent to adjust the payment remitted by the petitioner to the Department towards the MOT charges - refund of the balance amount to the petitioner by considering the representation of the petitioner - HELD THAT:- It is not in dispute that the petitioner approached the respondent after having provided company license renewed periodically under Section 58 of the Customs Act 1962, and in-bond manufacture license under Section 65 of the Customs Act 1962 have agreed by their letter dated 23.02.2001 to the Cost Recovery Charges for the officer allotted to the unit, as prescribed by the department. No doubt, the petitioner has sought waiver of the Cost Recovery Charges, on the ground that the petitioner's unit was not function effectively till 31.05.2002 and commenced their operation only after 01.06.2002. However, the said claim made by the petitioner cannot be a ground to seek waiver as such having sought for appointment of an officer under the in-bond Manufacturing License. The petitioner is bound to pay the Cost Recovery Charges, even if the petitioner's company claims that no activity was commenced till 31.05.2002. The allocation of the officer to pay the Cost Recovery Charges for the officer allocated to the unit does not have any relation to the operational capacity of the petitioner's company. The petitioner's company is liable to pay the Cost Recovery Charges from the date of granting license and from the date on which, the officer was allocated to their unit to supervise the activities of the petitioner's unit.
As the amount of Cost Recovery Charges demanded from the petitioner as the same as also incurred by the department towards the pay of allowance of one post of bond officer created for the service of the petitioner's unit as per their request it is also clear that it is not for the petitioner to dispense with the allocated bond officer when they do not require such services.
This Court finds no infirmity in the orders passed by the second respondent and the second respondent order is a well reasoned one and there is no perversity as alleged by the petitioner. Next point to be considered regarding the issue of alternative remedy available as argued by the learned counsel for the respondents is power relating to alternative remedy is never a rule of law despite the existence of alternative remedy within a jurisdiction of description of this High Court to grant relief under Article 226 of the Constitution of India, since the petitioner has pleaded the jurisdictional error - In the present case, the petitioner has not made out any extraordinary circumstances for bypassing efficacious alternative remedy available and to grant relief under Article 226 of the Constitution of India. The order of the respondents is sustained and the writ petition is pending for the last ten years and it may not be appropriate to direct the petitioner to file before the Commissioner of Customs Appeal.
Petition dismissed - decided against petitioner.
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2018 (12) TMI 1859
Provisional release of goods - Levy of admitted duty plus differential duty - Section 18 of the Customs Act, 1962 - HELD THAT:- Since the directions contained in the impugned communication dated 7-4-2018 were for provisional release of the goods and in absence of final determination of the duty liability, the appeal filed by the appellant can be considered as pre-mature and cannot be entertained by the Tribunal at this juncture.
Appeal dismissed.
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2018 (12) TMI 1856
Interest on delayed refund - appellant submitted that the amount in question deposited by the appellant during the course of investigation was neither a duty of Customs nor pre-deposit made pursuant to any order passed by the department - Section 128 of Customs Act - HELD THAT:- Insofar as filing of appeal before the Appellate Tribunal is concerned, Section 129A of the Act mandates that an order passed by the Commissioner (Appeals) under Section 128A of the Act can be appealed against before the Tribunal. Thus, the appellant has correctly filed the present appeal before the Tribunal. Shri Mondal has expressed his view point that the appellant has raised altogether the new ground before the Tribunal, which was not urged at the first appellate stage and thus, the appeal is not maintainable before the Tribunal. We are not in agreement with such submissions made by the Learned Special Counsel inasmuch as the issue dealt with by the Learned Commissioner (Appeals) in the impugned order concerning the period for entitlement of the interest amount was only agitated by the appellant through this present appeal - Even otherwise, in terms of Rule 10 of the CESTAT (Procedure) Rules, 1982, the Tribunal is empowered to consider new plea or grounds involving question of law urged at the time of hearing of appeal.
The interest amount is payable from the expiry of three months of the order of Hon’ble Bombay High Court i.e. from 15-10-2015 to the payment of refund - appeal is allowed in favour of the appellant, holding that it should be entitled for the interest amount from May, 1986 to 22-12-2015 as quantified by the Original authority.
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2018 (12) TMI 1848
Confiscation of goods on the second charge of misdeclaration of value - reduction in redemption fine and penalty - non-possession of a valid licence - Department could not bring any evidence which showed that the value declared in the subject bills of entry were misdeclared - HELD THAT:- Commissioner (Appeals) has held that the redemption fine has been imposed on higher side. The imported goods were old and used garments and no proper market enquiry was conducted to ascertain the actual margin of profit (MOP), beside this, approximately 25% value was extra loaded without any reasonable justification and same was accepted by the importer who also incurred demurrage for more than one month. In these circumstances the redemption fine should have been of the lower amount. There is no miss-declaration of value and goods are not liable for confiscation under Section 111 (m) of the Act and appellant had accepted the enhanced value and duty was paid in excess on enhanced assessable value from declared value to USS 1.316 (when they only agreed up to USD 1.10) and the importer had paid the extra duty - The quantum of redemption fine and penalty also reduced.
There are no infirmity with the impugned order and the same is hereby sustained - appeal of Revenue dismissed.
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2018 (12) TMI 1841
Penalty u/s Section 112(a) of the Customs Act, 1962 on CHA - It has been contended in the appeal memorandum that since the goods were imported against advance license and the benefit of exemption were extended to such imports, the said CHAs were responsible for due compliance of the requirement of conditions laid down in Notification No. 43/2002-CUS., dated 19-4-2002 - HELD THAT:- Imposition of penalty under Section 112(a) ibid will not be justified on the ground that their role and duties are not extendable up to the stage of manufacture of the final product by the respondent and exportation thereof. Hence, we do not find any infirmity in the impugned, in so far as it has dropped the show cause proceedings against the CHA’s, seeking for imposition of penalty.
With regard to the issue of imposition of penalty on Shri Jagdish Sharma, Manager of the respondent, Revenue has contended that he was having an ID Card for collecting the licenses from DGFT, which implies that he was well aware of the provisions of “Export and Import Policy” and accordingly, is exposed to the penal consequences provided under Section 112(a) ibid. We find that the Revenue has not brought on any iota of evidence to substantiate the fact of that the said employee of the respondent did any act or omission which have rendered the imported goods liable for confiscation. Since, the department specifically alleged that penal provisions have rightly been invoked against the said employee, the onus entirely lies with the Revenue to prove that the conditions of the statute have been contravened, justifying for invocation of Section 112 ibid.
The non-imposition of penalty on Shri Jagdish Sharma in the impugned order is proper and justified. With regard to the grounds urged by Revenue that penalty under Section 114A ibid should be calculated, taking into consideration the duty and the interest amount, we are of the view that such interpretation of Revenue cannot be sustained in view of the clear and un-ambiguous wordings used in the said statutory provisions - Section 114A ibid mandates imposition of equal penalty of the duty or interest determined under Section 28 ibid. Since, the word “or” is finding place between duty and interest, it cannot be interpreted that penalty should be imposed equal to the duty and interest so determined in the course of adjudication.
The impugned order has correctly interpreted the provisions of Section 114A ibid in imposing equal amount of penalty in respect of the confirmed duty demand - Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1840
Maintainability of appeal against the impugned letter, which has been addressed by one officer to the other officer within the department - provisional assessment of the goods - HELD THAT:- Section 129A of the Customs Act, 1962 provides the manner and procedure for filing of appeal before the Appellate Tribunal. Sub-section (1)(a) in the said section provides that any person aggrieved by a decision or order passed by the Commissioner of Customs as an adjudicating authority, may appeal to the Appellate Tribunal - In the present case, the impugned letter dated 21-3-2018 has been addressed by one officer to the other officer within the department. Copy of such letter has also not been endorsed to the appellant, enabling it to file appeal before the Tribunal. Further, on perusal of the contents in the said letter, it transpires that the same cannot be considered as a decision or order passed by the Commissioner as an adjudicating authority.
The appeal against the said letter dated 21-3-2018 cannot be maintainable before the Tribunal in terms of the mandates provided under Section 129A ibid - appeal dismissed - decided against appellant.
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2018 (12) TMI 1837
Validity of SCN - Quantum of penalty - Valuation of imported goods - Fitness/Health Equipments - rejection of declared value - under-invoicing of imports - confiscation - Whether the order of the adjudicating authority insofar as it relates to imposition of lesser penalty than mandatorily prescribed under Section 114A of the Customs Act, 1962, is legal and proper? - HELD THAT:- In this appeal, Revenue has not assailed the impugned order on the ground that quantum of penalty imposed under Section 112(a) & (b) ibid is not corresponding to the gravity of offence. Rather, prayer has been made that mandatory penalty prescribed under Section 114A ibid should not be at a lesser side. Since, the issue involved in the case relates to confiscation of goods and related contravention of the statutory provisions, Section 114A ibid cannot at all be invoked.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1827
Non-deposit of fine imposed - petitioner further submitted that the only concern of the petitioner is that the respondent should come back - HELD THAT:- Issue notice to the respondent, on the petitioner taking steps today itself by all modes, returnable on 8.1.2019.
Till the next date of hearing, operation of the impugned order dated 17.11.2018 is stayed.
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2018 (12) TMI 1801
Levy of ADD - Imports of consignments of “Polished Porcelein Vitrified Floor Tiles” - Department contended that the imported goods cannot be treated as originating from Sri Lanka but rather to be treated to be originating [from] China. Therefore, the benefit of Notification No. 72/2005 is not available to the respondent and that they are however liable to pay anti-dumping duty.
HELD THAT:- The Learned DR for the Department has submitted that there is also an issue of anti-dumping duty in the case as at the relevant time there was anti-dumping duty notification on the Porcelein Tiles imported from China. However, we do not find that issue has neither been discussed in the impugned order which is before us for consideration nor the same is mentioned in the grounds of appeal filed by the Department. The only issue raised in the grounds of appeal by the Department is that the issue clarified that Sri Lankan authorities vide letter dated 22-12-2004 that the supplier do not import raw materials for manufacture of Porcelein Tiles, but they import semi-finished tiles, which has essential character of a finished tile for classification purpose.
In the remand proceedings the Commissioner (Appeals) has observed that the benefit of notification is available to the respondents it appears that, though not explicitly stated the Commissioner (Appeals) held that the Notification No. 72/2005 is very much applicable even if the goods originated in China and that the products did not reach the stage in China whereupon anti-dumping duty could be imposed. As the issue of anti-dumping has not been specifically raised in the grounds of appeal, we are inclined to discuss the issue deeming it to be closed.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1791
Confiscation of 5 items out of imported consignment - Auto Hematology Analyzer -Semi-Automatic Chemistry Analyzer - LED Surgical Light - Digital Forehead Thermometer - Picture Display - non-compliance of requirements contained in BIS/Legal Metrology Act, 2009/Medical Devices Rules, 2017 - HELD THAT:- The description of the goods as per bill of entry dated 24-8-2017 shows 53 items out of which major part of the items are Medical Equipments. The five items, which are shown in the table above have been [detained] by Customs officers alleging non-fulfilment of conditions of BIS/Legal Metrology Act, 2009/Medical Devices Rules, 2017, it is pertinent to mention that the appellants have not issued a show cause notice prior to adjudication.
Auto Hematology Analyzer - Semi-Automatic Chemistry Analyzer - HELD THAT:- The Learned Counsel for appellants been at pains to give a detailed description of the goods imported by producing the literature as well as pictures of the goods imported. The relevant Rules under Medical Devices Rules, 2017 has come into effect only on 1-1-2018 - the allegation that the appellants have not obtained certificate under the said Rules in respect of Auto Hematology Analyzer and Semi-Automatic Chemistry Analyzer cannot sustain as the imports are prior to this date. The confiscation and penalties imposed on these goods are set aside.
LED Lights - HELD THAT:- The goods are in the nature of lights used in hospitals/operation theatres. It can be easily inferred that such lights are Shadowless Lights, LED Operating Lamps. The specification of the goods have been also furnished by Learned Counsel for the appellants. Therefore, the allegation that these items require compliance under Compulsory Registration Order of BIS is incorrect.
Digital Forehead Thermometer - HELD THAT:- As per Import Policy, Clinical Thermometer requires certificate under BIS/Legal Metrology Act, 2009. Clinical Thermometer is of two types and is different from Digital Forehead Thermometer. As per the Clinical Thermometers (Quality Control) Order, 2001, dated 9-11-2001, the restrictions are applicable only to Clinical Thermometer, which are in the nature of Solid Stem Type and Enclosed-Scale Type. It does not cover Digital Forehead Thermometer. Therefore, confiscation of these goods alleging violation of the said Acts cannot sustain.
Picture Display - HELD THAT:- From the BIS Compulsory Registration Order Schedule, it is seen that Picture Display imported by the appellants are not covered in Sl. No. 39. The goods covered in Sl. No. 39 are Plasma/LCD/LED Television. Merely because the Digital Display is in the nature of LED/LCD, the department has alleged that these goods require certification under BIS. The goods are nothing but vertical touch screen LED Display Panel, which is programmable for customer requirements. It cannot be equated with LED Television and the confiscation of this item alleging requirement of BIS certification is incorrect.
The confiscation of the goods as well as the redemption fine and penalties imposed cannot sustain - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1790
Maintainability of appeal - section 130 of CA - pre-deposit as required is deposited - Imposition of penalty - HELD THAT:- The appeal is admitted on the substantial question of law.
List the appeal for hearing on 6th February, 2019.
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2018 (12) TMI 1740
Valuation of imported goods - finalisation of the assessment in respect of the shipping bills - Revenue has preferred the present appeal inter alia, on the ground that assessment done by the original authority based on the price actually payable as per the formula prescribed under the contract is the correct transaction value for the purpose of determination of the duty liability - HELD THAT:- The impugned order was reviewed by the Committee of Commissioners and vide order dt. 8.9.2016, the said Committee had taken the view that no appeal shall be filed against the impugned order dt. 31.05.2016. Subsequently, the matter was referred by a newly constituted Committee of Commissioners, who vide Review Order dt. 8.8.2017 have held that the impugned order passed by the Ld. Commissioner (Appeals) is not legal and proper and accordingly, directed the concerned officer for filing of appeal before the Tribunal. In the impugned Review Order, no such statutory provisions were mentioned, which empowers the authorities to again review the order, which was already reviewed earlier by the competent authorities. Once, a review committee has taken a decision not to file the appeal before the Tribunal, then in such circumstances, they become functus officio inasmuch as such Committee of Commissioners has no power to review its decision and such a review on re-examination of facts or position of law cannot be allowed.
It is evident that the said review order has been passed after 13 months from the date of passing of the impugned order. Insofar as reviewing the order of the appellate Commissioner is concerned, sub-section (3) of Section 129D ibid mandates that the review order shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority. Proviso clause appended to the said sub-section provides that the Board may, on sufficient cause being shown, extend the said period by another thirty days.
Time limitation - HELD THAT:- On careful reading of the said statutory provisions, it reveals that beyond the period of four months from the date of receipt of the impugned order, the appeal cannot be preferred by Revenue before the Tribunal. Further, no powers have been vested on the Tribunal to condone the delay in passing of the Review order beyond the prescribed time frame. Since Tribunal is a creature under the statute, it has to strictly follow the statutory provisions in entertaining the appeal filed before it - on the ground of limitation also, the appeals filed by Revenue are not maintainable.
There are no merits in the appeals filed by Revenue on the ground of maintainability as well as limitation - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1738
Levy of IGST on imported goods - Import under Advance authorization scheme - the bill of entry was not being assessed either on self assessment, provisional assessment or reassessment - it was held that the respondent extended benefit of exemption notification which had hitherto prevailed to levies under the Integrated Goods and Service Tax (IGST). That levy did not exist at the time the amended customs notifications were issued i.e. 29.06.2017.
HELD THAT:- The Special Leave Petition is dismissed.
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2018 (12) TMI 1721
Interrogation by the officers of DRI - HELD THAT:- The matter is still pending before the Apex Court.
Till next date, no coercive action shall be taken against the petitioner in respect of the File - the advocate of the petitioner are directed to accompany the petitioner at visible but not audible distance during their interrogation by the officers of DRI in accordance with the general direction.
Writ Petition is adjourned to 10th January, 2019.
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2018 (12) TMI 1633
Classification of imported goods - Faceted Glass Beads - whether classified under Tariff Item 7018 10 20 leviable to nil rate of duty or under Tariff Item No. 7018 10 90 of the Customs Tariff Act, 1975? - Held that:- It stands held in the decision of the Tribunal in the case of Starlite Corporation, Bombay v. Union of India [1985 (12) TMI 61 - HIGH COURT OF JUDICATURE AT BOMBAY] that ‘chatons’ are classifiable as glass beads and eligible for exemption - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1632
Mis-interpretation of case law - power of Commissioner (Appeals) to condone delay - Held that:- The Revenue has misinterpreted the ratio of Hon’ble Supreme Court judgment in Thakker Shipping P. Ltd. [2012 (11) TMI 39 - SUPREME COURT]. The said judgment relates to powers of condonation of delay of appeals filed before the Tribunal - To extrapolate that ratio of the judgement to condonation of delay or otherwise by Commissioner (Appeals) is not correct in law. In the circumstances, no merit is found in the appeals filed by the Revenue on this score - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1626
Monetary limit involved in the appeal - Board Circular F.No.390/Misc./163/2010-JC dated 17.12.2015 - Held that:- Considering the fact that the circular itself carves out certain exceptions, we are of the view that the Department should not be foreclosed from raising such a plea before the Tribunal and if the Tribunal is satisfied that the case would fall within the exceptional circumstances, then the matter needs to be dealt with on merits or otherwise, the Tribunal will be well within its jurisdiction to close the appeal on the ground of low tax effect - the matter should be remanded to the Tribunal for a fresh consideration.
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