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2021 (12) TMI 1473 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of imported goods - data projector (Optoma SA520) - to be classified under CTH 85286200 or under CTH 85286900? - applicability of Sr' No' 17 of Notification No. 24/2005-customs. dated 01.03.2005, as amended - HELD THAT:- A projector is an optical device that projects an image/video onto a surface, commonly a projection screen. The idea of a projector is to convert a small image into a much larger one so that a greater number of people can see it. A projector accepts a video/image as an input, processes it with the assistance of its inbuilt optical projection system consisting of a lens and optical source and projects the enhanced output on the projection screen' Therefore, the compatibility of a projector with input devices, such as a computer, a DVD player, etc' feeding images/videos to it and its ability to project these inputs accurately on the screen forms the most important attribute for the classification of a projector.
CTH 85286900 is a residual entry. CTH 8471 covers automatic data processing machines and units thereof; magnetic or optical readers' machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included. Chapter Note 5 (E) to Chapter 84 states that machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions. Therefore, projectors working in conjunction with devices under 8471 will be classified under heading 8528. The product data sheet lists computer graphics compatibility standards of the product, namely, WUXGA, UXGA, WXGA, SXGA+, SXGA, XGA, SVGA, VGA resized, !ESA, PC and Mac. Further, the VGA port facilitates the connection between the said projector and a laptop/ computer. Therefore it is evident that the projector in question is designed for use with an automatic data processing machine.
The projector under consideration has got certain additional ports such as HDMI, audio, composite, etc. Further, the product is compatible with an aspect ratio of 16:9, though the aspect ratio of 4:3 is native. These facts make it capable of being a video projector and consequently classifiable under CTH 85286900 also. GI Rule 3 states that "the heading which provides the most specific description shall be preferred to headings providing a more general description" - The projector imported by the applicant has got additional features such as composite port, HDMI port etc. Apart from this, it is also compatible with the 16:9 aspect ratio. The additional ports and compatibility with the 16:9 aspect ratio give additional utility in the form of an audio-video display. The differentiating features of data projectors compared to that of video projectors are discussed in table 1, which substantiates that the principal use of impugned goods, based on functions and features, is with automatic data processing machines. The presence of additional features cannot dis-entitle the impugned goods from classification under CTH 85286200.
Sr. No. 17 of Notification No. 24/2005-Customs, dated 01.03.2005, as amended, exempts all goods under subheading 85286200 of kind solely or principally used in an automatic data processing system of heading 8471. The impugned goods are solely or principally used with a computer or laptop, i.e., an automatic data processing machine. Therefore, the goods under consideration are entitled to the exemption.
The imported goods are classifiable under sub-heading 85286200 of the first schedule to the Customs Tariff Act, 1975 and would be eligible to avail benefit of Sr. No. 17 of Notification No. 24/2005-Customs, dated 01.03.2005, as amended.
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2021 (12) TMI 1471 - AUTHORITY FOR ADVANCE RULING CUSTOMS, MUMBAI
Classification of imported goods - HDMI Digital Media Receiver with Alexa Voice Remote Lite as a kit - HDMI Digital Media Receiver with All-new Alexa Voice Remote as a kit - Alexa Voice Remote Lite for HDMI Digital Media Receiver - HELD THAT:- The HDMI digital receiver has a 1.7 Ghz quadcore processor and 8GB of storage. It has dual band 2x2 802.11 AC Wi-Fi with support for 5GHz networks, allowing streaming at up to 1080p at 60fps. The receiver provides HD/HDR support on compatible televisions. The HDMI digital media receiver is described by the applicant as network appliance and entertainment device for streaming digital audio/video content from the internet to television. A user sends instruction either by way of speech through inbuilt microphone in the remote or by pressing buttons on the remote. Such instructions are to select the programme/movie/any other media that the user wants to watch - The applicant has categorically stated that the digital media receiver is not capable of receiving signals from satellite/cable/terrestrial source and convert them in a suitable form for display on televisions. The device in question also does not support cellular services. It requires internet to perform. The Alexa Voice Remote Lite (lst Gen.) receives audio signals from the user, converts them into radio signals and transmits securely and wirelessly to the digital media receiver for further demodulation/processing of such radio signals. The second type of wireless remote essentially performs the same functions as described above.
From the features and functions described here-in-before, it is clear that the HDMI digital media receiver receives signals from Alexa Voice remote (lite 1st Gen./2nd Gen.) via Bluetooth. Such instructions are to select the content that the user wants to watch on his television. The digital media receiver receives instructions of the user, converts them into RF signals and transmits them to the cloud for processing by AVS. AVS converts the signals into a readable format, extracts the requested content from the Amazon cloud and transmits the same to the media receiver, which on receipt of the output, re-transmits the same for display on the user's television. Thus, HDMI digital media receiver is a device that transmits/receives RF signals and converts it into a format readable by the system and transmits the same which is displayed on the screen - the Customs Authority for Advance Rulings, New Delhi, for the identical device, considered and rejected the sub-heading 85287100 and held that digital media receiver discussed here is rightly classifiable under sub-heading 85176290.
Classification of wireless remotes - HELD THAT:- Te proper classification entry for Wireless Remote (for HDM1 Digital Media Receiver) Model No. L5B83H and Alexa Voice Remote Lite (1st Gen., Model No. H69A73), when imported separately, would be the sub-heading 85269200 and not 85176290, as originally contended by the applicant. However, when these wireless remotes are imported along with HDMI digital media receiver (Model No. S3L46N) as a kit, applying rule 3(b) of the General Rules for Interpretation of Customs Tariff, the classification of the entire kit would be sub-heading 8517620, on the ground that the digital media receiver, and not the wireless remote, gives the goods its essential character.
Benefit of exemption under serial no. 20 of the Notification No. 57/2017-Cus., dated 30-6-2017, as amended by the Notification No. 2/2019-Cus., dated 29-1-2019 - HELD THAT:- The latest amendment to the said exemption was vide Notification No. 3/2021-Cus., dated 1-2-2021, and also that the said notification provides a concessional rate of duty to all goods falling under sub-headings 85176290 and 85176990, except the following, (a) wrist wearable devices, commonly known as smart watches; (b) optical transport equipment; (c) combination of one or more of packet optical transport product or switch; (d) optical transport network products; (e) IP radios; (f) soft switches and voice over internet protocol equipment or VoIP phones, media gateways, gateway controllers and session border controllers; (g) carrier ethernet switch, packet transport node products, multiprotocol label switching transport profile products; (h) multiple input/multiple output and long term evolution products. Since, Fire TV Sticks do not appear to fall under any of the above exclusions, benefit of serial number 20 of the Notification No. 57/2017-Cus., dated 30-6-2017, as amended would be available to them.
Thus, HDMI Digital Media Receiver with Alexa Voice Remote Lite as a kit, HDMI Digital Media Receiver with All-new Alexa Voice Remote as a kit, are classifiable under sub-heading 85176290 of the first schedule to the Customs Tariff Act, 1975 - Alexa Voice Remote Lite and All-new Alexa Voice Remote, when imported separately, would be classified under sub-heading 85269200 - While the Fire TV Sticks of both the lst and 3rd generations would be eligible for the benefit of serial number 20 of Notification No. 57/2017-Cus., dated 30-6-2017, as amended; the wireless remote devices, when imported separately, wouldn't be eligible for the said notification benefit.
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2021 (12) TMI 1454 - BOMBAY HIGH COURT
Provisional release of seized imported goods - HELD THAT:- Purposes of this petition shall be served if this petition is treated as an application made under Section 110 A of the Customs Act, 1962 and decided appropriately.
The petition is partly allowed.
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2021 (12) TMI 1453 - GUJARAT HIGH COURT
Seeking amendment of shipping bills and to issue MEIS benefit on the basis of the amended shipping bills - it is the say of the petitioner that the Company was eligible for reward due to capturing of ”N” through an oversight in all the invoices except one, therefore, the Company was unable to claim MEIS benefits - HELD THAT:- Noticing the fact that in the instant case, the petitioner has already in the several shipping bills that he has presented explicitly expressed its intent of availing the benefits of the reward made under MEIS, the subsequent capturing of the same as “NO” instead of “Y” for the reward scheme once the shipping bills were electronically filed for export made by the petitioner Company during the period from 10.04.2019 to 27.07.2014 would have no bearing.
The decision of this Court in case of M/S. RAJ AND COMPANY VERSUS UNION OF INDIA [2021 (2) TMI 1101 - GUJARAT HIGH COURT] would squarely cover the issue so far ticking of these EDI shipping bills are concerned. Moreover, the Court cannot be oblivious of the fact that it was a time when software for online filing was merely introduced after converting port into EDI port and therefore, not only there is possibility of the technical glitch, but, the person in whose benefits this had been done also, may not be aware of the procedure and the manner of operation, which may have resulted into depending on some other agencies for committing mistake. And that, by no means can take away the right of the parties, more particularly, when in the manual shipping bills, they had categorically requested for grant of benefits of scheme and that leaves no room of doubt about the intent. Authority once can make out from manner shipping bills, they must not carry the mindset even with reiterative requests from the exporters to avail benefit of Scheme to deny such benefits on sheer technicality.
The respondent Authority concerned while passing the order has been oblivious of this initial hiccups and also has overlooked the clear intent expressed in Manual shipping bills insisted by the petitioner. Every time the petitioner indicated from transaction to avail benefits, the same shall need to be looked at and to be dealt with a pragmatic approach and here is a case where otherwise the incident of export is not being questioned or doubted.
There will be need for indulgence of this Court by quashing and setting aside the order passed on16.07.2021. The respondent No.2 shall allow the amendment of those bills which had been uploaded online and if not feasible due to technical reasons, on accepting the original shipping bill, let the same be compared and avail the benefits on the strength thereof - the respondent are directed to issue MEIS benefit on the amended bill if otherwise is found in accordance with law.
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2021 (12) TMI 1404 - KERALA HIGH COURT
Seeking provisional release of goods - vehicle was seized by the 3rd respondent alleging that the vehicle was imported to India in violation of the Customs Act, and for alleged non payment of customs duty - HELD THAT:- Having considered the submissions as well as the spirit of the order No.S/26-Misc.938/2021- 22/Grp.5(F.I.V) JNCH dated 26.11.2021, this Court is of the opinion that, in view of Ext.P3 and in view of the seizure of the vehicle from petitioner's possession, petitioner can be treated as the owner for the purpose of payment of the amount demanded under the provisional release order. Accordingly, petitioner is permitted to comply with the conditions directed in order dated 26.11.2021 and on such compliance, the vehicle shall be released to the petitioner, to enable him to carry out the registration of the vehicle in his name.
This writ petition is disposed off.
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2021 (12) TMI 1389 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classifications of a group of products - measuring devices - flowmeters and level measurement instruments - Section 28-I(2) of the Customs Act, 1962 - HELD THAT:- According to Section 28-I(2) of the Customs Act, 1962, the authority shall not allow the application where the question raised in the application is either already pending in the applicant’s case before any officer of customs, the Appellate Tribunal or any Court; or has already been decided by the Appellate Tribunal or any Court. It is true that there is an appeal of the applicant pending before the CESTAT. The pending appeal is in respect of products that are not involved in any of the 21 applications involved in the present proceedings. The term “advance ruling” is defined in the Act as a written decision on any of the questions referred to in Section 28H raised by the applicant in his application in respect of any goods before their importation or exportation - It has to be kept in mind that the process of advance rulings is not a dispute settlement mechanism, but is purely a facilitative nature and seek to enhance ease of cross border trade by indicating entry tax liabilities before import or export. In such circumstances, if the present applications are rejected only because an appeal is pending in respect of similar products, that would be a travesty.
The items under consideration are stated to be measuring instruments consisting of 20 applications of flowmeters and one application of a level measuring device. Flowmeters are devices that measure/check the mass flow of liquids and gases, along with other parameters such as temperature, specific gravity etc. The level measuring instrument is used for point level/interface detection of different liquids. The product catalogues submitted with these applications are also in agreement with the averments of the applicant. The applicant has explained the basis of groupings of the instruments/devices as common sensor and each group of products are intended for different applications/industries - Measuring or checking instruments or apparatus of this heading combined with taps, valves, etc., are to be classified as indicated in the Explanatory Note to Heading 84.81. “APPARATUS FOR MEASURING OR CHECKING THE FLOW OR RATE OF FLOW OF LIQUIDS OR GASES”.
Apparatus for measuring or checking the flow or rate of flow of liquids or gases - HELD THAT:- The HSN Explanatory Notes to Heading 90.26 states that apart from specific exclusions as mentioned, Heading 90.26 covers instruments and apparatus for measuring the flow, level, pressure, kinetic energy or other process variables of liquids or gases. From the product description, it is evident that the flowmeters under consideration indicate the rate of flow. They are fitted with a sensor that is sensitive to the variations in the quantity to be measured. These variations are converted into electrical signals - The HSN explanatory notes specifically include flowmeters working on the principles of magnetic field (applications at Sr. Nos. 1-7), ultrasound (applications at Sr. Nos. 13-16), heat (applications at Sr. Nos. 8-12) and differential pressure (applications at Sr. Nos. 17-20). These flowmeters do not fall under the exclusion criteria specified in explanatory notes.
Instruments for measuring or checking the level of liquid or gases - HELD THAT:- The HSN explanatory states that level indicator includes inter alia, electrical type based, for example, on the variations of resistance, capacitance, ultrasound, etc. This heading covers not only level indicators for closed reservoirs or tanks, but also those for open basins and canals (hydroelectric works, irrigation systems, etc.). Instruments for measuring or checking the level of solid materials are excluded (Heading 90.22 or 90.31, as the case may be). From the product description, it is evident that the liquicap (application at Sr. No. 21) is used to measure the level of liquid using variations of capacitance. A transmitter is also fitted for communication purposes. Further, this level instrument does not fall under the exclusion criteria specified in explanatory notes - Thus, the impugned goods are classifiable under Heading 90.26 of the Customs Tariff Act, 1975, the flowmeters are classifiable under sub-heading 9026 10 10 and the level measuring instrument is classifiable under sub-heading 9026 10 20.
The flowmeters under consideration appear to only measure the flow rate and make available the measured value in the required signal format for further processing/information, based on the requirement of the end customer. There is nothing on record, or available in the product catalogues to indicate that these devices/instruments have the capacity to perform additional functions of automatically controlling or regulating the flow of liquids. In the context of explanatory notes, these devices lack 2 essential components, viz, a control device and a stating/stopping/operating device. Therefore, it appears that the goods under consideration do not fulfil the criteria laid down in explanatory notes and are consequently not classifiable under Heading 9032.
The instruments/devices under consideration merit classification under Heading 90.26 and more specifically, devices listed at Sr. Nos. 1 to 20 of Table 1 under sub-heading 9026 10 10 of the First Schedule to the Customs Tariff Act, 1975 and devices at Sr. No. 21 of the said table under sub-heading 9026 10 20 of the first schedule to the said act - Application disposed off.
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2021 (12) TMI 1373 - CESTAT AHMEDABAD
Territorial Jurisdiction - impugned order is passed by the Additional Director General, (Adjudication), DRI, Mumbai - order appealable before this bench or not, since it was passed by the ADG, DRI, Mumbai the correct jurisdiction is CESTAT Mumbai - HELD THAT:- The impugned order was passed by the ADG (Adjudication), DRI, Mumbai. Accordingly, the appeal lies in the Mumbai bench and this Ahmedabad bench has no jurisdiction to entertain this appeal.
Accordingly, the appeal is dismissed as non maintainable.
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2021 (12) TMI 1366 - CESTAT NEW DELHI
Permission for withdrawal of appeal - monetary amount involved in the appeal - amount involved in this appeal is much less than the threshold limit of Rs. 50 lakhs - circular dated 22.08.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) - HELD THAT:- The appeal is accordingly, dismissed as withdrawn.
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2021 (12) TMI 1364 - RAJASTHAN HIGH COURT
Seeking grant of Bail - Smuggling of Gold - statement under Section 108 of Customs Act - it is submitted that as per statement of the petitioners under Section 108 Customs Act, they are habitual in same transaction - HELD THAT:- Taking into account the facts and circumstances of the case and without expressing any opinion on the merits of the case, this court deems it just and proper to enlarge the petitioners on bail.
It is ordered that the accused-petitioners Shivram Meena S/o Shri Vishram Meena and GyanchandMeena Son Of Nandlal Meena shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so - Bail application allowed.
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2021 (12) TMI 1363 - KARNATAKA HIGH COURT
Right to claim refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act - TIME LIMITATION - can Section 27 of the Customs Act, 1962 nor Notification No.93/2008 dated 1-8-2008, impose limitation on the right to claim refund? - limitation of one year for claiming refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act would commence from the date of sale or from payment of duty contrary to the Notification No.93/2008 dated 1-8-2008 issued in exercise of powers under Section 25(1) of the Customs Act 1962?
HELD THAT:- The issue involved herein is no more res integra in view of the order passed by this Court in THE COMMISSIONER OF CUSTOMS, BANGALORE VERSUS M/S. MOLEX INDIA PVT. LTD. [2021 (10) TMI 342 - KARNATAKA HIGH COURT], whereby the Co-ordinate Bench of this Court (Hon’ble SSJ was a member) has categorically observed that neither Section 27 of the Act of 1962 nor a notification under Section 25(1), such as the amended notification No.93/2008-Cus can be used to impose a limitation period and the right to claim refund.
In the present case, the contention of the Revenue that the period of one year during the relevant period is the period of limitation prescribed under Section 27 of the Act of 1962 for refund of claim as per Notification No.102/2007 is wholly untenable for the reason that the refund of SAD would be claimed by the assessee subsequent to completion of the assessment. In many cases, as the SAD would be refundable only on subsequent sale, which is not in the control of the assessee.
It is, thus, clear that no limitation period can possibly be imposed for advancing a refund claim, since SAD levied under Section 3(5) of the Customs Tariff Act, 1975 is refundable only on completion of subsequent sale. Given the vagaries of the market, the importer has limited control over the sale when it would be complete.
Appeal dismissed - decided against Revenue.
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2021 (12) TMI 1362 - CALCUTTA HIGH COURT
Violation of principles of natural justice - cross-examination of witnesses denied upon whose statement respondent authority has relied before passing the impugned adjudication order which is adverse to the interest of the petitioner - HELD THAT:- Considering the submissions of the parties and in view of the fact that factual and legal questions are involved in this writ petition and this is not such type of a case which can be thrown out at motion stage, this writ petition is entertained and respondents are directed to file affidavit-in-opposition within 17th January, 2022, petitioner to file reply thereto, if any, within 24th January, 2022. List this matter on 25th January, 2022 for final hearing.
Respondents shall not take coercive action on the basis of impugned adjudication order till 1st February, 2022 or until further orders whichever is earlier.
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2021 (12) TMI 1346 - KARNATAKA HIGH COURT
Violation of principles of natural justice - auction of goods under seizure and confiscation - HELD THAT:- Respondent No.2-Appellate Authority has clearly committed grave and serious error of law in coming to the conclusion that an opportunity was not required to be given before passing the impugned orders, to say the least, this approach of respondent No.2 – Appellate Authority is clearly opposed and contrary to the principles of natural justice and the impugned order deserves to be quashed on this ground alone.
The petition is hereby allowed.
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2021 (12) TMI 1339 - GUJARAT HIGH COURT
Seizure of export consignments - nut, bolts, washer, hand tools, etc. - duty drawback scheme - over-weighed goods - proper classification of goods not done - to be classified under 7308 or under 7318 of CTA - HELD THAT:- In the instant case, the grievance on the part of the petitioners is that the Order-in-Original does not recognize the issue of limitation although the same being the settled law. Here the petitioners have exported the articles from Mundra Port and had claimed that drawback and benefit under the Focus Product Scheme (FPS). The allegation has been that it had indulged in misuse of drawback scheme and FPS and other exports incentives by way of making export of scaffolding items falling under CTH No.7308 by placing under CTH Nos.731816000, 39235010, 39269099 and 82057000 with the allegation of export of less quantity of goods than what was declared and over valuing of the export products. After the proper officer had allowed the export to be made, the DRI has initiated the action.
Admittedly, the export of goods covered under shipping Bill Nos.6982047 and 6982039 both dated 01.01.2015 and export goods covered under shipping Bill Nos.6998694 and 6997757 both dated 02.01.2015 had been seized carrying out the panchnama dated 08.01.2015. The DRI had allegedly noticed the shortage of 3205 Kg and 2990 Kg than what had been declared in the shipping bills. The goods were detained pending the inquiry and were handed over for safe custody. After the seizure of the goods as per Section 110 of the Customs Act, the DRI, Ahmedabad wrote a letter to the Joint/Additional Commissioner of Customs for giving ‘No Objection’ for provisional release of seized goods - On execution of bond of 100% FOB value of goods along with 25% security in the form of Bank Guarantee, the same had been permitted.
The show cause notice is issued by the authority for the shipping bills from the years 2011 to 2015. The list of shipping bills has been given & barring a very few shipping bills which have been submitted here duty drawback has been paid to the petitioner for numerous shipping bills from 2011 to 2014 long before and therefore, any show cause notice issued after a period of three years from the date when drawback came to be paid, cannot be sustained. This is also one serious breach deserving indulgence. In relation to most of the shipping bills, duty drawbacks have been paid where this decision would come to the rescue of the petitioner.
The proper officer who assesses the shipping bills will be in a position to reopen the same provided that there is such a stage of reopening the shipping bill filed once are self assessed, that would attain finality upon the proper officer clearing the same. Had there been any discrepancy, the proper officer would not consider the self assessment final and would obviously assess the shipping bill before finalizing - In the instant case, the shipping bills had been finally assessed and the assessment had attained finality. The aggrieved party having any issue on the classification would need to approach the appellate authority instead of reopening the assessment by issuing the show cause notice. The appeal appears to have become time barred as averred by the petitioners, the show cause notice is on account of the misclassification.
The initiation of the action on the part of the DRI on an intelligence of is severally questioned when the proper officer has already held in favour of the assessee classifying the item of export under a different head - Even without touching the ratio laid down in case of M/s.Cannon India Private Limited [2021 (3) TMI 384 - SUPREME COURT] as this decision came recently, on non consideration of the ground of limitation also, interference is desirable.
The action of the respondent authority of issuance of the SCN dated 09.02.2018 is interfered with. The SCN in the present form is quashed and set aside - Petition allowed in part.
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2021 (12) TMI 1338 - CESTAT CHENNAI
Rectification of Mistake - error apparent on the face of record or not - HELD THAT:- The applicant is referring to one of the Bills-of-Entry filed by M/s. Honeywell International India Pvt. Ltd., but it is found that there are multiple Bills-of-Entry placed on record, based on which a finding is arrived at. A single Bill-of-Entry cannot, therefore, decide the issue, especially in the facts of this case and on the documentary evidences placed on record in this case.
There are no error in finding that the Bills-of-Entry of other importers are irrelevant since, the same cannot be held to be conclusive proof to decide the appellant’s case. Moreover, there is no dispute as regards the description contained in the other Bills-of-Entry, which are different, as observed in the impugned Final Order. It is made clear that the finding is based on the contents of the documents placed and not just one bill of entry or the classification, per se. The impugned Final order cannot be re-visited under the guise of rectification of errors, since the same amounts to review which is not permitted.
The errors, if any, as pointed out, would not materially affect the findings arrived at in the impugned Final Order and therefore, there are no merits in the appellant’s application for rectification of mistake.
The application for rectification of mistake is rejected.
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2021 (12) TMI 1315 - DELHI HIGH COURT
Seeking time to file reply - learned counsel accepts notice on behalf of Respondents and seeks time to file reply - HELD THAT:- Time as prayed for is granted.
List on 28.02.2022.
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2021 (12) TMI 1312 - CALCUTTA HIGH COURT
Maintainability of appeal - seeking waiver of pre-deposit - it is claimed that both the appellants were only courier boys and they have no means to effect such huge amount of pre-deposit to enable them to prosecute the appeals before the Tribunal - Levy of penalty u/s 112(b) of the Customs Act, 1962 - smuggling - HELD THAT:- Section 129E of the Act deals with deposit of certain percentage of duty demanded or penalty imposed before filing the appeal; the provision states that the Tribunal shall not entertain any appeal if the appellant has not deposited required percentage of the duty in case where duty or duty and penalty are under dispute or penalty is in dispute, in pursuance of the decision or order appealed against - The second proviso to Section 129 E curves out an exception only in respect of appeals which were pending before the appellate authority prior to the commencement of Finance (2) Act of 2014.
Admittedly, appeals filed by the appellants before the Tribunal are not covered under the second proviso. If that is so then there is no discretion vested with the Tribunal to waive the mandatory pre-deposit contemplated under the Act. Therefore, it is found that there is no error in the order passed by the Tribunal.
Considering the submission of the learned Counsel for the appellants that the appellants are in indigenous circumstances, one opportunity is granted to the appellants to pay the mandatory pre-deposit not later than 25th February, 2022 - appeal dismissed.
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2021 (12) TMI 1280 - MADRAS HIGH COURT
Extended period of limitation - Certificate of Origin furnished by the petitioner was valid or not - actual Regional Value Content (RVC) of Tin Ingots - mis-statement or misdeclaration by the petitioner at the time of import or not - HELD THAT:- The facts as to whether a case was made out for suppression of facts or wilful mistatement with an intent to evade of payment of duty or not is a question of fact which has to be decided by the hierarchy of the authorities under Customs Act, 1962. The petitioner has to establish the case for interference only before the Appellate Commissioner under Section 128 of the aforesaid Act. Even if the Appellate Commissioner does not accept the contention of the petitioner, the petitioner is not remedyless. The petitioner can recover the same from the 2nd respondent in accordance with the provisions of the Sale of Goods Act, 1930.
The writ petition is liable to be dismissed and it is dismissed.
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2021 (12) TMI 1243 - MADRAS HIGH COURT
Enhancement of penalty, levied on Employee of CHA - appellant was reckless and negligent in using the Customs House Agent Licence of his Employer. - Smuggling - red Sander Woods - liability of Customs House Agent for mis-declaration or misuse of the licence - HELD THAT:- From the records and the admission of the appellant and his Employer, it is clear that the appellant had not discharged these obligations, which cast on him. It is a case where under the guise of Coco Peats, prohibited goods namely, Red Sanders weighing 10.760 MTs. has been transported. The DRI based on the intelligence gathered, had rescued the goods and found the Cargo was transported based on the Annexure-A, prepared by the Appellant herein, containing the signature of the employer of the appellant. Therefore, mis-declaration of goods and attempt to export such goods is punishable under Section 114 of the Customs Act. A person, who is a party to the mis-declaration, is liable to pay penalty not exceeding three times of the value of the goods mis-declared. The first respondent Tribunal is empowered to enhance the penalty imposed, if the penalty imposed is not adequate. Section 117 of the Customs Act is a residuary provision for imposing penalty for contravention. When penalty is prescribed elsewhere in the Act, the maximum cap of Rs.One Lakh fixed under Section 117 is not applicable.
The submission of the Appellant that penalty of ₹ 5,00,000/- is excessive and beyond power is ex facie untenable. Further, the provisions under the Regulations to punish a person for violation and contravention of the Regulations is in addition to the penal provisions prescribed under the parent act, namely, the Customs Act. Therefore, it is incorrect to say that the Appellant is liable only under the Regulations for any violation and contravention and if the action under the Regulations is not sufficient for the grave offence, there is no legal impediment to proceed against the employee / appellant of the Customs House Agent under the Customs Act besides action under the Regulations.
There is no mala fide or infirmity in the order of imposition penalty at ₹ 5,00,000/- - appeal dismissed.
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2021 (12) TMI 1242 - CESTAT BANGALORE
Classification of imported goods - Hankook off the road mining tyres 31 x 10.5 R 15 - to be classified under CTH 40118080 or under CTH 40111010? - restricted item or not - DGFT Notification No.12/2015-2020 dated 12.06.2020 - crux of the Department’s argument is that the impugned tyres are not a kind used in mining etc. and are usable in on-road conditions - HELD THAT:- The impugned tyres are not normal tyres. This fact is also not disputed by the Department. It is the contention of the Department that the tyres are claimed to be used in in vehicles like Gorkha Force Thar etc. which are vehicles for on-road use only and moreover vehicles used for racing etc. are also classified under motor vehicles and therefore, the impugned tyres are rightly classifiable under CTH 40111010. On perusal of the literature made available on record and the clarifications given by some purchasers, it is clear that the impugned tyres are of a different kind from normal tyres notwithstanding the fact that they are also usable for on-road purposes.
The impugned tyres are used for replacing the existing tyres whenever the vehicle is used in muddy or off terrain. It can be seen that even Tractors, Dumpers etc. which are primarily designated for off the road used also travel some distances on the road till they reach the place of their use. By no stretch of imagination such vehicles and the tyres thereof can be regarded to be for on-road purposes.
The Department opines that the impugned tyres are not of a kind used in vehicles which are used for mining etc - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1191 - CESTAT NEW DELHI
Refund claim of Special Additional Duty (SAD), which is in lieu of sales tax - rejection on the ground of time limitation - HELD THAT:- The facts are not in dispute and admittedly, the appellant importer has filed refund claim after more than one year or may be by few days more from the date of payment of SAD.
Hon’ble Delhi High Court judgement in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] where it was held that In the absence of specific provision of Section 27 being made applicable in the said notification, the time-limit prescribed in this section would not be automatically applicable to refunds under the notification.
The Hon’ble Delhi High Court has also held that in the matters which deal with substantive rights, such as imposition of penalties and other provisions, that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or Rules cannot prevail, or be made in such case.
The appeal filed by the appellant is allowed - decided in favor of assessee.
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