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2020 (12) TMI 1396 - GUJARAT HIGH COURT
Challenged the Order in original, Appeal and Revision - Confiscation of Aluminum Coated Gold Wires - Penalty - failed to prepare any seizure report at the time of the seizure of the goods - seeking Release and return back to the petitioner the impugned goods (Aluminum Coated Gold Wire) in terms of section 125(1) of Customs Act, 1962 - violation of Section 112(a) - Whether the omission or failure on the part of the concerned officer to draw a separate seizure memo along with the panchnama would render the seizure illegal and thereby vitiate all the subsequent proceedings right upto the confiscation of the goods seized - HELD THAT:- There is no justification for the acceptance of the contention that omission or failure to draw a separate seizure memo u/s 110 of the Act is sine qua non for taking action u/s 124 of the Act. These two sections are entirely independent to each other. There is no substance in the contention that if no separate seizure memo under Section 110 of the Act is prepared, the same will render the seizure of the goods by itself illegal and the authority u/s 124 of the Act will also have no jurisdiction thereafter to proceed with the confiscation proceedings or with the imposition of penalty. The words used in Section 112 and Section 124 respectively of the Act are “any goods” and “any person”. These words are of the widest import and they cannot be given a restricted meaning. There is nothing in these provisions to indicate that the goods in respect of which an order of confiscation or penalty can be passed u/s 111 and Section 112 respectively must be the goods seized under the provisions of Section 110 of the Act.
It would be too much for this Court to take the view that in the absence of a separate seizure memo the authorities could not have proceeded further or assumed jurisdiction for the purpose of confiscation of the goods. “To confiscate” would mean to adjudge goods or property to be forfeited to the public domain and to deprive the owner of the right of ownership of the same. It cannot be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods. Similarly, personal penalty can be imposed even when the goods have not been seized. Such a situation is contemplated by clause (b) of Section 112 of the Act.
At the cost of repetition, we state that it would be too much to say that the omission or failure to draw or prepare a separate seizure memo along with the panchnama would render all subsequent proceedings bad in law. Thus, we reject the first contention of Mr.Shastry as regards Section 110 of the Act.
Whether clause (a) or clause (b) of Section 112 would apply or both, failing which the proceedings would be liable to be quashed - In our opinion, there is nothing in Section 112 which requires that means rea must be proved before penalty can be levied under that provision. If on facts, it is found that the assessee had made a false representation, Section 112 is with regard to penalty for improper importation of goods. It is the blameworthy and suspicious conduct which is, indeed, the sine qua non for invoking the provision of Section 112 of the Act. Once a finding is recorded by the competent authority that the writ-applicant herein attempted smuggling of gold by concealing the same without payment of the Customs duty, coupled with the fact that the writ-applicant had handed over the Indian Customs Declaration Form (Disembarkation Slip) declaring that he was not carrying/ having any dutiable articles before the Customs Officer on duty, that would clearly attract the provisions of Section 112 of the Act and, in our opinion, no further finding is required that the assessee had also the mens rea.
Whether, such goods are legally or illegally imported - fall within Section 11 of the Customs Act, 1962 - A conjoint reading Sections 2(33), 11 or 11A of the Act and other provisions in the Customs Act, 1962, and any other law, for the time being in force, would also make it clear that importation of goods, defined as illegal or prohibited or without complying with the conditions, or in violation of statutory provisions in the Customs Act, 1962 or any other law for the time being in force and in all cases, whether there is either total prohibition or restriction, in the light of the judgment of the Supreme Court in Om Prakash Bhatia's case [2003 (7) TMI 74 - SUPREME COURT] such goods should fall within the definition of Prohibited goods. When import is in contravention of statutory provisions, in terms of Sections 11 or 11A of the Customs Act, 1962 or any other law, for the time being in force and when such goods squarely fall within the definition 'illegal import', or the other provisions in the statute, dealing with prohibition/restriction, the same are to held as, "prohibited goods" and liable for confiscation.
If there is a fraudulent evasion of the restrictions imposed, under the Customs Act, 1962 or any other law for the time being in force, then import of gold, in contravention of the above, is prohibited. For prohibitions and restrictions, Customs Act, 1962, provides for machinery, by means of search, seizure, confiscation and penalties. Act also provides for detection, prevention and punishment for evasion of duty.
The expression, 'subject to prohibition in the Act and any other the law for the time being in force.' in Section 2(33) of the Customs Act, has wide cannotation and meaning, and it should be interpreted, in the context of the scheme of the Act, and not to be confined to a narrow meaning that gold is not an enumerated prohibited good to be imported into the country. If such narrow construction and meaning have to be given, then the object of the Customs Act, 1962, would be defeated.
The Provisions in the Customs Act, 1962, dealing with prohibition/restriction or any other law for the time in force, have to be read into Section 2(33) of the Act. Section 11A of the Act, as to what is 'illegal import', cannot be thrown to winds, while interpreting, 'what is prohibited goods', in terms of Section 2(33) of the Customs Act, 1962. To add, while interpreting Section 2(33) of the Customs Act, 1962, as to what is prohibition, imposed in other laws, for the time being in force, one cannot ignore, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, rules framed by way of delegated legislation, like the Baggage Rules, 1998, framed in exercise of the powers conferred under Section 79 of the Customs Act, 1962 or for the matter, Section 77 of the Customs Act, 1962, which mandates, the owner of the baggage for the purpose of clearing the goods, to make a declaration of the contents of the baggage to the proper office and also the customs Notification No.3/2012, dated 16.01.2012, that only passengers of Indian origin or a passenger in possession of a valid passport, issued under the Passport Act, 1967, who have stayed abroad for six months and above alone are eligible to import gold of foreign origin and clear the same on payment of customs duty, at the rate prescribed.
Thus, in the overall view of the matter, we are convinced that no case is made out by the writ-applicant for grant of any relief as prayed for in this writ-application.
In the result, this writ-application fails and is hereby rejected.
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2020 (12) TMI 1328 - MEGHALAYA HIGH COURT
Permission to export the legally purchased auction of coal - purchase of auction coal with supporting documents or not - HELD THAT:- The petition is disposed of by passing following order:
i) Petitioner is at liberty to satisfy respondents No. 3-6 with supporting documents that;
(a) the coal in question is auction coal.
(b) the said coal was purchased by Shri. Pukash N. Sangma in public auction.
(c) he has purchased the said coal from Shri. Pukash N.Sangma.
(ii) On satisfaction that petitioner has validly purchased the auction coal from Shri. Pukash N. Sangma, respondents No. 3-6 shall permit the petitioner to export the said coal to Nepal.
Petition disposed off.
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2020 (12) TMI 1326 - SC ORDER
Principles of natural justice - opportunity of cross-examination - acceptance of classification - HELD THAT:- Issue notice, returnable within four weeks.
Dasti, in addition, is permitted.
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2020 (12) TMI 1278 - SUPREME COURT
Seeking grant of Bail - Smuggling - Gold Biscuits - offences punishable under Section 135 of the Customs Act, 1962 - HELD THAT:- The appellant is entitled to the facility of bail under Section 439 Code of Criminal Procedure. It is therefore, directed that
he appellant shall be produced before the Trial Court within three days from today and the Trial Court shall release him on bail on such conditions as the Trial Court may deem appropriate to impose; including
(i) That the appellant shall not go beyond the jurisdiction of the concerned Court without express permission of the Trial Court.
(ii) That he shall report to the concerned Police Station every Monday at 10.30 AM and shall make himself available and co-operate with investigation.
Appeal allowed.
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2020 (12) TMI 1245 - MADRAS HIGH COURT
Seeking direction to Assistant Commissioner/R1 to remove the alert operating against the petitioner in respect of demand notice - HELD THAT:- The learned Senior Standing Counsel for the Customs Department assures the Court, on instructions, that the alert will be removed forthwith. This is recorded. With this, the mandamus sought for stands achieved.
The writ petition disposed off.
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2020 (12) TMI 1229 - CESTAT MUMBAI
Application for conversion of shipping bills - time limitation - claim for conversion of drawback to that of entitlement to benefits under the ‘duty-free import authorisation (DFIA)’ scheme of the Foreign Trade Policy - rejection solely on the ground that conversion had not been sought within the period prescribed in circular no. 36/2010 dated 23rd September 2010 of Central Board of Excise & Customs - HELD THAT:- The imperative of implementing schemes of export promotion under the Foreign Trade Policy even at the cost of foregoing revenue mandates facilitation that may seemingly be in conflict with the remit of the taxing authority; a post-exportation conferment of that escapement is even less likely to facilitated and circular no.36/2010- Cus dated 23rd September 2010 is but a pathway to the larger objectives of governance. It is moot, therefore, if the intent of the circular is to be perceived in its letter, as held by the ‘proper officer’, rather than in its spirit as claimed by the appellant.
Circular no. 36/2010-Cus dated 23rd September 2010 was preceded by circular no. 4/2004-Cus dated 16th January 2004 of Central Board of Excise & Customs which it also superseded. The impetus for the original circular was the disadvantage at which an exporter was placed on disallowance of eligibility for a particular scheme by the Director General of Foreign Trade and consequent inability to seek the privileges of another scheme owing to the absence of any authority that customs formations could take recourse to. Several years later, the facility of migration, contingent only upon such rejection, was, upon representation by the exporting community, considered to be ripe for availment as a commercial option to be exercised by the exporter. The timeframe of one month, in the first of the circulars, kicking in from rejection by the Directorate General of Foreign Trade, could no longer be the benchmark and a longer span of three months from the date of ‘let export order (LEO)’ was considered to suffice for the exercise of such option. Hence, it is apparent that the more recent circular was intended to liberalise the migration from one scheme of the Foreign Trade Policy to another.
The bar of limitation could be invoked only in the absence of any mitigating circumstances offered up in response to clarification sought by the ‘proper officer’ from the appellant for an appropriate decision - It is evident that the impugned order is bereft of a comprehensive appreciation of the schema of amendment to, and conversion of, shipping bills. The cryptic, and even peremptory, disposal of the request, without conforming to the reasonableness and judiciousness, mandated by section 149 of Customs Act, 1962 and disregarding the spirit in which the guidance was offered in the circular of Central Board of Excise & Customs, is not an outcome of responsible discharge of authority devolving upon the Commissioner of Customs. The applicant was not informed of the deficiencies, if any, that precluded them from being eligible for conversion; nor were they afforded an opportunity to demonstrate that their eligibility for coverage under the intended scheme was unimpeachable.
The impugned order is set aside for the application to be returned to the Commissioner of Customs for fresh determination of eligibility for conversion - Appeal allowed by way of remand.
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2020 (12) TMI 1139 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution.
There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - this Court is not inclined to delve into the merits of the controversy involved in this case, touching upon disputed questions of fact for effectual and complete adjudication of the matter.
Petition dismissed.
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2020 (12) TMI 1138 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution.
There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - this Court is not inclined to delve into the merits of the controversy involved in this case, touching upon disputed questions of fact for effectual and complete adjudication of the matter.
Petition dismissed.
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2020 (12) TMI 1099 - GUJARAT HIGH COURT
Principles of Natural Justice - permission to re-export of goods - Nutrition Supplements - grievance of appellant is that till this date, the appeal has not been taken up for hearing despite repeated request for the same - HELD THAT:- As statutory appeal has already been filed by the writ applicant against the final order of confiscation passed by the adjudicating authority, the request to reexport the goods also should be made before the appellate authority.
This writ application is disposed off with a direction to the respondent No.5 to take up the appeal preferred by the writ applicant at the earliest and decide the same in accordance with law - Mr. Kapoor, the learned counsel is permitted to prefer an appropriate application before the appellate authority with a prayer to reexport the goods, as prayed for, in this writ application
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2020 (12) TMI 1092 - CESTAT NEW DELHI
Valuation of imported goods - The Commissioner (Appeals) set aside the order of enhancement in value - polyester knitted fabric of different weights and colours - enhancement of assessable value, on the basis of contemporaneous imports data - HELD THAT:- In the present case, the proper officer doubted the truth or accuracy of the value declared by the importer for the reason that contemporaneous data had a significantly higher value. It was open to the importers to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared by them and seek a reasonable opportunity of being heard, but they did not do so. On the other hand, the importers submitted in writing that though they had declared the value of the imported goods at 1.20 USD per kg., but on being shown contemporaneous data, they have agreed that the value of the goods should be enhanced to 1.80 USD per kg for Hanuman Prasad and to 1.94 USD per kg. for Niraj Silk. The importers also specifically stated that they did not want to avail of the right conferred on them under section 124 of the Customs Act and, therefore, they did not want any show cause notice to be issued to them or personal hearing to be provided to them. The importers also specifically stated that they did not want a speaking order to be passed on the Bills of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance in writing.
It is non-consideration of the factual position emerging from the statements made by Hanuman Prasad and Niraj Silk that led the Commissioner (Appeals) to believe that the declared value could be rejected only on the basis of reasonable and cogent evidence, which burden the Revenue failed to discharge as it could not prove that the invoice did not represent the true transaction value in the international market.
The very fact that the importers had agreed for enhancement of the declared value in the letters submitted by them to the assessing authority, itself implies that the importers had not accepted the value declared by them in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the importers had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules - here, the importers had accepted the enhanced value and there was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially.
The general observations made the Commissioner (Appeals) in the impugned order that the value declared in the Bills of Entry were being enhanced uniformly by the Department for a considerable period of time was uncalled for. The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case - the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 966 - BOMBAY HIGH COURT
Unconditional release of the detained silk fabric and carpets covered under various shipping bills - export consignments of the petitioners kept on hold - prohibited goods or not - HELD THAT:- Clearance of export goods are dealt with in sections 50 and 51 of the Customs Act, 1962. Once the exportable goods are entered in the customs automated system by generating shipping bill in terms of section 50, the proper officer is required to clear the goods under section 51. As per sub-section (1) of section 51, where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty if any assessed thereon and any charges payable under the Customs Act, 1962, the proper officer may make an order permitting clearance and loading of the goods for exportation - If there is no seizure of the exportable goods of the petitioners, there cannot be any good reason for withholding of the exportable goods, the same admittedly being not prohibited goods.
Stand over to 12.01.2021.
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2020 (12) TMI 965 - BOMBAY HIGH COURT
Principles of Natural Justice - grievance of the petitioner is that though two dates of hearing were granted by the adjudicating authority, no hearing has taken place till date - import of peas - HELD THAT:- Since show-cause notice has been issued under section 124 of the Customs Act, 1962 to which petitioner has submitted reply, we are of the view that it would meet the ends of justice if the adjudicating authority adjudicates the matter in accordance with law and passes the order in original expeditiously.
Let the adjudicating authority pass a speaking order of adjudication after hearing the petitioner and upon independent application of mind considering all aspects - Petition allowed by way of remand.
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2020 (12) TMI 964 - CESTAT KOLKATA
Confiscation of goods - imposition of redemption fine and penalty - absence of valid PSI certificate - import of Tin Waste and Scrap (Light Melting Scrap) - misdeclaration of goods - appellant further submits that there was neither any knowledge nor reason to believe on the part of the appellant herein w.r.t. the alleged mis-declaration of the goods so imported - HELD THAT:- It is apparent that the goods declared as Tin Waste and Scrap (Light Melting Scrap) were on verification by the qualified Chartered Engineer certified as Tin Plated Steel Scrap since steel predominates by weight. The appellant had not asked for any re-test or alike at the relevant point of time. On the contrary under letter dated 24.01.2013 (page no. 23 of the appeal memorandum) the appellant/ importer had waived his right of show cause notice and/or hearing at the stage of adjudication and hence, the contention on behalf of the appellant before me that the certificate was issued by the Chartered Engineer on visual examination, cannot come to rescue of the appellant with regard to the proper description of the goods.
It is also not in dispute that for importation of steel scrap, Pre Shipment Inspection Certificate was mandatory in terms of the Foreign Trade Policy, 2009-14. The subsequent communication from the Overseas Supplier together with PSI Certificates cannot come to the aid of the appellant w.r.t. the confiscation of the goods under Section 111(d) of the Customs Act, 1962 since there was restriction under Foreign Trade Policy, 2009-14 in importation of steel scrap. The importation was permitted only against Pre Shipment Inspection Certificates and it is settled position of law that conditions for import, if not fulfilled, the importation is not permitted - In the present case, at the time of importation of the goods, admittedly, Pre Shipment Inspection Certificates were not available and the goods were wrongly described as scrap of tin instead of scrap of steel. The appellant could not even produce such certificates prior to adjudication and as such, the order of confiscation of the imported goods are proper and correct under Section 111(d) of the Customs Act, 1962 and thus upheld.
Imposition of penalty - Section 112 of the Customs Act, 1962 - HELD THAT:- There is nothing on record to suggest any prior knowledge or reason to believe about the confiscable nature of the imported goods under Section 111 of the Customs Act, 1962. Moreover, the goods imported in January, 2013 by the appellant have already lost its market value of ₹ 21,73,643.25(as declared) and the appellant /importer has already suffered substantial loss and injury for no fault on his part. The law requires existence of mens rea and maintenance of balance of convenience prior to imposition of penalty upon any person. In the present case, neither there is any existence of ingredient of section 112 of the Customs Act, 1962 nor any mens rea and hence, the imposition of penalty upon the appellant is bad in law and liable to be quashed.
The order of confiscation of the imported goods under section 111(d) of the Customs Act, 1962 upheld - penalty imposed upon the appellant under Section 112 of the Customs Act, 1962 - appeal allowed in part.
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2020 (12) TMI 963 - CESTAT KOLKATA
Permission to re-export confiscated goods - redemption fine and penalty - import of Run Flat Tyres from Dubai, UAE - goods were found to be branded radial car tyres and seized - case of Revenue is that wrongdoing on the part of the foreign exporter cannot be treated as bona fide act on the part of the importer and onus lies upon the importer to prove that it is the bona fide act and no mala fide intention existed - HELD THAT:- The lower authority has concluded that though there was mis-declaration of brand and quality of goods imported, there was nothing on record to show that there was a malafide intention on the part of the importers. In fact, immediately after the fact of mis-declaration came to light, the importer conveyed the same to the foreign supplier who has instantly admitted mistake on their part and they were ready to take back the goods - Under such circumstances, the learned Commissioner (A) has rightly held that there was no malafide intention on the part of the importer and as such, imposition of penalty and redemption fine was not warranted.
Imposing redemption fine and permission to re-export simultaneously - HELD THAT:- Learned Commissioner (A) held that as there was no malafide intention on the part of the importer and re-export being permitted, imposition of redemption fine and penalty was not warranted - it is found that once the goods are allowed to be redeemed on payment of fine in lieu of confiscation, it is not open to the adjudicating authority to impose further conditions on the goods. Putting such a condition, would cause double jeopardy to the appellant. In the fact of absence of malafide intentions being established conclusively, and in the absence of no evidence to the contrary, redemption fine is not imposable on the impugned goods.
Appeal dismissed - decided against Revenue.
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2020 (12) TMI 962 - CESTAT NEW DELHI
Right of department to file any appeal or cross-objections before the Commissioner (Appeals) - Section 128 of the Customs Act - Deputy Commissioner had sanctioned the refund amount but a direction was given that this amount should be credited to the Consumer Welfare Fund in terms of section 27(2) - HELD THAT:- A perusal of section 128 of the Customs Act shows that any person aggrieved by any decision or order passed under the Act by an officer of customs lower in rank than a Principal Commissioner or Commissioner may appeal to the Commissioner (Appeals). This section does not provide for filing of cross-objections, unlike sub-section of (4) of section 129A of the Customs Act which, in regard to Appeals to the Appellate Tribunal, provides for filing a memorandum of cross-objections against any part of the order appealed against and also provides that such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified.
Section 128 of the Customs Act dealing with Appeal to Commissioner (Appeals) provides that any person aggrieved by any decision or order may appeal to the Commissioner (Appeals). The right to file cross-objection is a substantive right conferred by a statue and can be exercised only in accordance with the provisions of the statue. Thus, neither could the Department have filed any appeal against the order of the Deputy Commissioner as it could not have considered itself to be aggrieved by the order since the Deputy Commissioner had not directed for the amount to be paid to Vivo Mobile but had directed to be credited in the Consumer Welfare Fund, nor was it permissible in law for the Department to have filed cross-objections in the appeal filed by the Vivo Mobile before the Commissioner (Appeals) since cross-objections cannot be filed before the Commissioner (Appeals).
It is, therefore, more than apparent that the Department could neither have filed an appeal before the Commissioner (Appeals) against a part of the order passed by the Deputy Commissioner nor it could have filed cross-objections in the appeal filed by the Vivo Mobile before the Commissioner (Appeals) against that part of the order sanctioning the refund amount since the right to file cross-objection has not been conferred under section 128 of the Customs Act, which deals with appeal to the Commissioner (Appeals).
The appeals may now be listed for hearing on 06 July, 2020.
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2020 (12) TMI 923 - BOMBAY HIGH COURT
Mandatory injunction seeking release of bills of lading illegally withheld by the defendants - Section 13(1-A) of the Commercial Courts Act, 2015 read with Order 43 Rule 1 (2) of the Code of Civil Procedure, 1908 - Right to retain shipment - Defendant are freight services agents - HELD THAT:- Upon reading the text messages of 1st, 2nd and 3rd June together, it is to be observed that after receiving ₹ 4,35,000/-, defendants made, the release of consignment, conditional and exercised “right to retain goods” under Section 171 of the Indian Contract Act, 1872. However, messages of 3rd June, 2020 show that the defendants had not exercised a ‘particular liens but ‘general liens. If read carefully, 3rd June message, does not suggest, goods were retained for not making payment of sea freight for second consignment. In fact, evidence and the circumstances emerging and flowing were indicative of the fact that ₹ 4,35,000/- were paid towards freight charges of second consignment and not against dues, however, in breach of assurance/promise, defendants, adjusted it against dues and declined to release bills. The question nos.15 (i., (ii. and (iii. are answered accordingly, in negative.
Whether defendants were entitled to exercise lien under Section 171 of the Indian Contract Act, 1872? - HELD THAT:- It may be stated that defendants were not entitled to exercise general lien being not banker, factors, wharfingers, attorneys and also broker - In the case in hand, pleadings of either party do not suggest that bailee was empowered to exercise the general lien envisaged under Section 171 of the Indian Contract Act, 1872 - Goods cargo in the second shipment is a paper, a perishable product, which may loose its utility if kept for long period. Even otherwise, plaintiffs have paid sea freight for second consignment. Therefore, it is just and proper to direct defendants to release bills of lading immediately. In fact, it appears, that since second consignment has not been released within reasonable time, plaintiffs vendees have cancelled the orders. Therefore, the balance of convenience also tilts in favour of the plaintiffs.
Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 922 - DELHI HIGH COURT
Provisional release of seized goods - enhancement of Bank Guarantee required to be furnished by the Petitioner - HELD THAT:- The Petitioner is required to furnish a Bank Guarantee in the sum of ₹ 15 Crores, pursuant to which the Respondents are required to release the seized goods in terms of the order of CESTAT dated 13.11.2019 as modified by the Supreme Court - It is thus open to the Petitioner to furnish a Bank Guarantee in the sum of ₹ 15 Crores to the satisfaction of the Competent Authority. The Competent Authority shall thereafter forthwith release the seized goods to the Petitioner, provisionally, on furnishing the requisite Bond as directed by CESTAT.
Contempt petition disposed off.
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2020 (12) TMI 921 - KARNATAKA HIGH COURT
Condonation of delay in filing appeal - application of the appellant rejected on the ground that the same is barred by limitation and no sufficient cause for condonation of delay of 455 days in filling the appeal - HELD THAT:- It is well settled in law that the expression 'sufficient cause' should receive liberal consideration so as to advance the cause of justice and the same should not be used as a penal statute to punish the erring parties.
Reference can be made to the case of PERUMON BHAGVATHY DEVASWOM, PERINADU VILLAGE VERSUS BHARGAVI AMMA (DEAD) BY LRS & ORS. [2008 (7) TMI 836 - SUPREME COURT].
In the application for condonation of delay, the appellant had stated that on account of the financial difficulty, he could not arrange the amount and the delay had caused - Taking into consideration that expression 'sufficient cause' should receive liberal consideration so as to advance the cause of justice, the substantial question of law framed in this appeal is answered in favour of the assessee and against the revenue.
The matter is remitted to the Tribunal for decision on merit after affording an opportunity to the parties.
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2020 (12) TMI 920 - KERALA HIGH COURT
Import of Multi Function Devices (MFDs) for use within the country - contravention of the provisions of the Foreign Trade (Development & Regulations) Act, 1992 read with the Foreign Trade Policy, Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016, e-Waste (Management and Handling) Rules, 2011 and Environment (Protection) Act, 1986 - HELD THAT:- The goods were released based on Annexure-3. However, in Annexure-3, there was a specific direction to intimate the DGFT about the import not being supported by an import licence from the DGFT, which could lead to confiscation proceedings being initiated under the Foreign Trade Act. It was also directed that a surety bond be executed for the market value of the goods, minus that imposed on the importer as redemption fee by the Commissioner of Customs and modified by the Tribunal.
We direct the respondents who have already cleared the goods on the basis of the interim orders to execute such surety bonds within a period of two months from the date of receipt of a certified copy of this judgment failing which the Customs authorities could initiate proceedings for return of goods, the location of which should be in the knowledge of the respondent/importer as per the Extended Producer Responsibility Authorization.
Petition disposed off.
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2020 (12) TMI 919 - CESTAT KOLKATA
Levy of penalty under Section 112 of the Customs Act, 1962 - proceeding of adjudication without supplying the relied upon documents - Alleged recovery and seizure was initially made by the BSF and subsequently was handed over to the Customs authority - burden of proof in terms of Section 123 of the Customs Act, 1962 - HELD THAT:- The learned Commissioner (Appeals) should have verified the facts prior to dismissal of the appeal of the appellant. It is not in dispute that the Show Cause Notice dated 14.8.2018 was issued without appending any relied upon documents though it had placed reliance upon several documents such as BSF seizure, Customs inventory, statements of different persons, Assay report etc. The imposition of penalty upon the present appellant by the Adjudicating authority is based upon such documents - It is a settled position of law that a Show Cause issuing authority is required to provide copies of all relied upon documents along with the Show Cause Notice. When the authority wants to rely upon such documents, it is incumbent upon them to provide copy of such documents to the noticee and non-supply of such copies of relied upon documents to the noticee renders the process of adjudication void ab-initio.
In the present case also, order passed by the Lower adjudicating authority without supplying such relied upon documents along with the Show Cause Notice and finalizing adjudication of the matter w.r.t. the present appellant was bad in law. However, the Adjudication Order has already merged in two separate Orders-in-Appeal with respect to different noticee as recorded hereinbefore. Pertinent to observe that there is no appeal against Order-in-Appeal No. KOL /CUS (CCP) /AA /293 /2019 dated 01.05.2019 w.r.t. noticee no. 2 of the Show Cause Notice dated 14.08.2018. Since such Order-in-Appeal setting aside penalty upon the said noticee has reached its finality, no fresh proceeding against such noticee can be drawn at this stage.
The matter remanded to the original Adjudicating Authority i.e. the Assistant Commissioner of Customs, Maldah Customs Division, Maldah for adjudication of the case afresh w.r.t. the present appellant being noticee no. 1 in the Show Cause Notice dated 14.8.2018 after providing authenticated copies of all relied upon documents to the present appellant - appeal allowed by way of remand.
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