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Showing 21 to 40 of 84 Records
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2023 (1) TMI 1064 - BOMBAY HIGH COURT
Non-clearance of consignment of soyabeans imported by the Petitioner from Mozambique - petitioner has sought to contend that the Food Standards Act, 2006 being a later legislation would prevail over the Environment Protection Act, 1986 - HELD THAT:- Considering the larger implications of the issue at hand and that no specific stand of the Genetic Engineering Approval Committee and the Ministry of Environment and Forests and Climate Change (MoEF&CC) in respect of the subject matter is on record, it would be appropriate that the Food Safety and Standards Authority of India, the Genetic Engineering Approval Committee and the MoEF&CC are impleaded in this Petition. Accordingly, we grant leave to the Petitioner to add the Food Safety and Standards Authority of India, the Genetic Engineering Approval Committee, Ministry of Health & Family Welfare and MoEF&CC as party respondents. Amendment to be carried out within a period of two days. Re-verification is dispensed with.
If the Petitioner will give notice to the added Respondents and file the affidavit of service, stand over to 31 January 2023.
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2023 (1) TMI 1063 - DELHI HIGH COURT
Seeking a composite license for import and trading of restricted items and had paid the requisite fee for the same - actual user condition - permission to import and avail of the remaining guns which could not be imported, by way of an extension of the license by for a period of one year at least - HELD THAT:- Considering the fact that the reliefs sought in both the writ petitions, when they were filed, have almost being satisfied and the outstanding issues relating to extension of license are pending before the DGFT, it is deemed appropriate to direct the DGFT to take a decision on the said application for extension of the licence within a period of two months from today. The DGFT may afford the Petitioner a hearing and pass a reasoned order in accordance with the Act and Rules.
Demurrage which the Petitioner incurred during the period of late inspection and release of the consignment - HELD THAT:- Considering the fact that if there is a delay in inspection, as per Rule 88(6), the additional charge or demurrage incurred by the Petitioner would be attributable to the licensing authority, the Petitioner is permitted to seek refund of the demurrage charges in accordance with law. The said application may be filed within a period of two weeks and, if preferred, shall be decided within a period of four weeks.
Petition disposed off.
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2023 (1) TMI 1062 - BOMBAY HIGH COURT
Advance License Scheme - actual user condition - sourcing Lauryl alcohol either through indigenous purchase on payment of appropriate excise duty or it is imported under advance licence without payment of duty or it is imported on payment of customs duty - N/N. 30/97-CUS dated 1 April 1997 as amended by Notifications upto No.63/2004-CUS dated 14 May 2004 - HELD THAT:- The question of breach of paragraph 7.4(ii) of the EXIM Policy which clearly provides that Advance Licences and / or materials imported thereunder shall not be transferable even after completion of the export obligation would not arise. Also, the question of breach of paragraph 7.16 of the EXIM Policy which pertains to actual user condition and provides that the licences granted under this scheme are subject to actual user condition till endorsement of transferable by the Licencing Authority would not arise, as there has been no transfer in the instant case as the materials have been received by one of the Units of the Respondent - The Respondent has used the imported material for manufacturing in its own M-3 Unit at Tarapur and there is also no dispute as regards fulfillment of the export obligation. Therefore, the contentions of the learned Counsel for the Appellant appear to be misplaced.
There would be no violation of condition (i) or (vii) of the Notification No. 30/97-CUS dated 1 April 1997 as amended by Notifications upto No. 63/2004-CUS as there is no transfer in violation of the actual user condition, the discharge of export obligation not being in question.
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2023 (1) TMI 1061 - KERALA HIGH COURT
Amendment in the shipping bill - Export Obligation against the Advance Authorisation - Duty Drawback scheme - Section 149 of the Customs Act, 1962 - HELD THAT:- The judgment under appeal principally proceeded on the extent to which a Circular could prescribe the limits within which a request for amendment of Customs documents can be made. In the case on hand, respondents endeavour to elevate Circular No. 36/2010 to the level prescribed by the regulation. The definition clauses define what constitutes “prescribed” and ‘regulations’. The onus is on the respondents to demonstrate that irrespective of the year in which Circular no. 36/2010 was issued, the Circular still satisfies as one issued as a regulation under the Act by the Competent authority.
The reading of Circular No.36/2010 looks more like guidelines for the Officers under Section 149 of the Act. Therefore, the judgment under appeal does not warrant our interference.
It is taken note of the omission in excerpting Section 149 in the judgment under appeal. We have reproduced Section 149 of the Act effective from 01.08.2019 and tested the efficacy of Circular 36/2010 in the background of defined words under the Act. Circular No.36/2010 cannot be construed as a regulation issued under the Act. The power and scope of Section 149 are wide and have serious ramifications both for the revenue and the importer/exporter. Therefore, it is in the realm or jurisdiction of respondents herein to make Section 149 operable as prescribed by regulations subject to such terms and conditions as may be stipulated by the competent authority.
Appeal disposed off.
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2023 (1) TMI 1060 - KERALA HIGH COURT
Change in classification - buttons imported as snap buttons - consideration changed from Sl.Nos.232 to 282 - argument of petitioners is that the change of expression in Sl.No.282 of Notification No.12 of 2012 is not the deciding factor and the deciding factor is whether the entry under which the import has been permitted, and exemption has been extended continues to be in operation even under Notification No.12 of 2012 - HELD THAT:- The answer to the said question will not invite long deliberation. It may be noticed and recorded from the exhibits filed by the petitioner in the writ petition that the petitioner continues to import snap buttons. The product imported by the petitioners under the subject bills of entry is not claimed as stated differently from the goods imported by the petitioner in the first round of litigation. After appreciating the entries in Notification No.21 of 2002, the snap buttons imported by the petitioners by claiming exemption under the said notification, the adjudication as a matter of fact by this Court and confirmation by the Supreme Court, we are convinced that there is no disputed question of fact for verification by the appellate authority vis-a-vis the subject Bills of Entry and relegating the petitioners to work out the remedy of appeal.
Even other at this point of time such course is avoidable and unnecessary both from the point of view of the importer and the department. Hence, the judgment under appeal needs to be set aside, and accordingly, set aside and the Writ Petition stands allowed.
However, it is made clear that the relief granted to the petitioners shall be limited to the subject consignments. The revenue is free to examine each one of the consignments imported by the petitioners and verify whether the product imported by the petitioners as a fact would fall within the same category of product considered by this Court.
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2023 (1) TMI 1059 - CESTAT NEW DELHI
Levy of Anti-dumping duty - exports by Xinyi Energy - submission is that its exports to India by Xinyi Energy are not at dumped prices, and the determination of the dumping margin by the designated authority in the final findings is erroneous for the reason that it is based on a faulty determination of the normal value and export price.
Whether the designated authority was justified in making deductions from the export price of Xinyi Energy on account of liaison office? - HELD THAT:- A person who is not a resident of India can open a branch office or a liaison office only with the prior approval of the Reserve Bank of India and in accordance with the Regulations. Secondly, the liaison office cannot undertake any commercial/trading/industrial activity directly or indirectly. The domestic industry has not brought on record any evidence to suggest that Xinyi Glass carried out any commercial activity.
There was only one employee of Xinyi Glass in India who was merely looking after the registration process of the liaison office. It would, therefore, not be appropriate to examine the information referred to by the learned senior counsel to determine whether Xinyi Energy had a liaison office in India - the expenses, if any, incurred by Xinyi Glass would have no bearing or impact on the price at which the goods were exported.
Section 9A(1)(b) of the Tariff Act which deals with the definition of ‘export price’ provides for a construction of an export price where either on account of relationship between exporter and importer or a third party, the export price to India becomes unreliable. The present is a case where the exporter and importer are not related parties and the sale price to the Indian importer represents the true and full consideration for the sale. The findings recorded by the designated authority on this aspect, therefore, cannot be sustained.
n the absence of any opportunity or any specific request from the designated authority for furnishing such information, rule 6(8) would not be applicable in the present case.
Loading the Cost of Production - It is argued that the designated authority was not justified in making adjustment to the normal value by loading the cost of production - HELD THAT:- The rate offered by the Bank is 0.8% plus the Hong Kong Interbank Offer Rate [HIBOR] notified by the Hong Kong Association of Bank. The Hong Kong Association of Banks, has as its members banks such as Bank of America, Bank of India, Barclay’s Bank, PLC, Citi Bank NA, Credit Suisse AG. The HIBOR is an international Benchmark for lending and debt instruments issued in the Asian region - the interest free advances received from the parent company are for expansion of the production facility and future production activity, and not relatable to the production and export of subject goods to India during the period of investigation.
Even if the advances are to be treated as an interest free loan relatable to the subject goods, then too, the actual interest cost as per the loan agreement should be taken, but the designated authority took the interest cost based on a notional rate of interest prevailing in Malaysia, without rendering any finding as to why the actual interest cost is not acceptable for determining the interest foregone.
It is, therefore, not possible to accept the contentions advanced by the learned counsel for the appellant that Xinyi Energy should have been treated as a non-co-operating exporter by the designated authority and should have been relegated to residuary anti-dumping duty.
The matter has to be remitted to the designated authority to determine the export price by excluding the deductions from the export price of Xinyi Energy on account of the alleged liaison office in India. The designed authority shall also determine the normal value of the product in the light of the observations made in this order and forward the recommendations to the Central Government for issuance of a fresh notification under rule 18 of the 1995 Anti-Dumping Rules, if so considered necessary - Appeal allowed.
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2023 (1) TMI 1058 - CESTAT NEW DELHI
Benefit of exemption from health cess under Notification No. 08/2020-Cus have been wrongly refused to them - import of SPECTROMETERS (MODEL 800MB) and parts thereof - HELD THAT:- Admittedly, appellant have not claimed the exemption in the Bill of Entry, secondly, these new evidences have been brought before this Tribunal for the first time.
Accordingly, these appeals are allowed by way of remand to the Commissioner (Appeals), with the direction to peruse the evidence laid before him by the appellant-assessee and on being satisfied that these spectrometers have not been used for medical purpose, shall allow the exemption accordingly. Accordingly, the appeals are allowed by way of remand.
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2023 (1) TMI 1057 - CESTAT NEW DELHI
Interest on the refund amount of pre-deposit - rejection on the ground that original copy of bill of entry and TR-6 challan could not be made available - HELD THAT:- The learned Commissioner (Appeals) have rightly held that the amount remained with the revenue unadjusted by way of pre-deposit. It is further found under the facts and circumstances, that such pre-deposit was made under protest which is writ large on the face of the record. There is no merits on the grounds of appeal raised by revenue. Relying on the ruling of the Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], the Cross-objections with directions to the revenue to grant interest @ 6% per annum from the date of deposit till the date of refund. Such interest on refund should be granted within a period of 45 days from the date of receipt of copy of this order.
The appeal filed by revenue is dismissed and Cross-objection by assessee are allowed.
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2023 (1) TMI 1056 - CESTAT NEW DELHI
Violation of conditions of Exemption notification - ‘flying training' Aircraft - Allegation of misuse for ‘charter service’ - Confiscation of eight CESSNA 172R Aircrafts with redemption fine imposed - recovery of import duty forgone on the import of eight CESSNA Aircrafts import duty forgone on imports of spare parts for maintenance of the said aircrafts with interest - levy of penalty - acts of omission and commission - Jurisdiction of customs authorities to decide violation of the exemption notification.
HELD THAT:- the appellant had initially imported Aircrafts for flying training purpose and had given such an undertaking to the customs authorities. The DGCA had also granted permits to the appellant. It is subsequently on 23.04.2009 that the appellant submitted an application before the MCA for grant of a No Objection Certificate to operate non-scheduled (charter) services, which certificate was granted by the MCA on 15.06.2009 and on 28.07.2009 an endorsement was made in the permit.
The issue as to whether the customs authorities would have the jurisdiction to decide violation of the exemption notification was examined at length by a Larger Bench of the Tribunal in M/S VRL LOGISTICS LTD VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [2022 (8) TMI 720 - CESTAT AHMEDABAD (LB)] where it was held that the jurisdictional authorities under the Civil Aviation Ministry that alone can monitor the compliance of the conditions imposed and the Customs Authorities can take action on the basis of the undertaking submitted by the importer only when the authority under the Civil Aviation Ministry holds that the conditions have been violated.
It is not possible to accept the contention of the learned special counsel appearing for the Department that the decision of the Larger Bench of the Tribunal distinguishable on facts.
The Larger Bench of the Tribunal in VRL Logistics had arrived at the conclusion after placing reliance upon the decision of the Supreme Court in Titan Medical Systems Pvt. Ltd. vs. Collector of Customs, New Delhi [2002 (11) TMI 108 - SUPREME COURT].
It has, therefore, to be held that the customs authorities could have proceeded to recover the duty on the basis of the undertaking only when the competent authority in the DGCA found as a fact that the appellant had violated the conditions of the permit - In the present case, such a finding has not been recorded and on the other hand, the permits have been renewed from time to time.
Appeal allowed.
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2023 (1) TMI 1001 - GUJARAT HIGH COURT
Auction of goods - unpaid seller which had shipped Aluminium Scrap through shipping line - Seeking to permit the re-export of import container arrived at ICD Sabarmati as due to unavoidable circumstances - HELD THAT:- Considering the issue of right of the unpaid seller, we firstly need to direct the impleadment of the buyer Ghanshyan Metal Udyog, Survey No. 36/1, Kuha Road, Singarva, Ahmedabad 382430, Gujarat, India.
Let the amendment be carried out in the cause title. Issue Notice to the respondents making returnable on 20th January, 2023.
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2023 (1) TMI 1000 - KARNATAKA HIGH COURT
Seeking quashment of proceedings against Managing Director of the Company, one of the vendors of RFID e-seals - Tampered e-seals - it is alleged that the e-seals supplied by the Company were passing customs clearances even when it was not in a locked condition - liability of Managing Director of the Company in the alleged offence - HELD THAT:- The Company was in-charge of manufacture of RFID e-seals and tampering alert was in the control of the Company in which the 2nd petitioner is the Director. It becomes germane to notice the Circulars issued by Government of India in the Department of Revenue of the Central Board of Excise and Customs with regard to the export procedure and sealing of containerized cargo from time to time.
The communication was clear that the DRI has critically examined RFID e-seals supplied by M/s Leghorn Group, Italy and they have been found to be compromising in security requirements and was a serious issue and therefore, stopped all seals made by M/s Leghorn Group. Later, the crime come to be registered and a search is made in the office of the Company and at the time the seals are seized and were sent to their examination where it was found that since March 2018 the testing commenced and approximately 832 seals of the Company were faulty. The tamper status of the seals was covered up as the tamper alarm had been switched off.
The petitioners are alleged of compromising security of the container which contains what ought to be known to the Department, if not known and would passes muster, even if it is a narcotic drug, the menace of the threat looms large in that sector or that facet. Therefore, finding no merit in the contention that nothing has happened for the last 3 years and a co-ordinate Bench obliterating the proceedings against accused No.3 are of no assistance to the learned counsel appearing for the petitioners. The issue in the lis is shrouded with admissions and certain seriously disputed questions of fact, which will have to be thrashed out only in a full blown proceeding. It is rather surprising as to why the DRI has not proceeded further and filed its final report is a serious matter of the kind. It is for the DRI to conclude the investigation, if not already concluded and take the proceeding to its logical end.
Reference being made to the judgment of the Apex Court in the case of KAPTAN SINGH VERSUS THE STATE OF UTTAR PRADESH AND OTHERS [2021 (9) TMI 61 - SUPREME COURT] where it was held that the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
There are no merit to interfere or interdict the investigation, against the petitioners, as any interference would amount to putting a premium on the acts of the petitioners, for having compromised the security of the nation, which act sans countenance.
Petition dismissed.
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2023 (1) TMI 999 - CESTAT AHMEDABAD
Levy of Anti-Dumping Duty - effective date of the notification -import of two consignments of Propylene Glycol from USA falling under CTH 29053200 - N/N. 117/2009-Cus., dated 13-10-2009 extending the N/N. 105/2004-Cus., dated 8-10-2004 - HELD THAT:- The issue involved in the present matter is whether Anti-dumping duty on Propylene Glycol, which was imposed by Notification No. 105/2004 dtd. 08.10.2004 and which came to an end on 08.10.2009 by virtue of Section 9A(5) of the Customs Act, 1962, can be demanded in respect of goods imported after 08.10.2009, when the same had not been extended before the said expiry on 08.10.2009 and whether the extension after the said expiry by Notification No. 117/2009 dtd. 13.10.2009 is valid in law.
The demand confirmed by the adjudicating authority is not sustainable - Appeal allowed.
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2023 (1) TMI 998 - CESTAT, NEW DELHI
Classification of goods - 0.1 percent natural brassinolide fertiliser - Nature and scope of SCN under section 28 of Customs Act - power of proper officer to review the assessment under section 28 - Whether SCN under section 28 can be issued after the assessment is finalized (either through self assessment or through assessment by an officer) without first appealing against the assessment? - extended period of limitation - penalties.
Scope of remand - HELD THAT:- There is nothing in the order of remand to show that the Commissioner was required to examine Chapter Note 1(a) (2) of Chapter heading 3808 partly only to the extent of the submissions by the learned counsel. The submission of the learned counsel that the scope of the Tribunal’s order gets circumscribed by the appellant’s submissions during the proceedings cannot be accepted. The Commissioner was correct in examining whether the goods were preparations and such an examination was within the scope of the remand order.
Retail packages- scope - HELD THAT:- Both sides agree that retail packing is not defined in the tariff. Both sides refer to different Rules of the Legal Metrology Rules to interpret the term. According to the learned counsel for the appellant, the goods were not in packings meant for consumer and hence were not retail packings in terms of Rule 2(k) of the Legal Metrology Rules. According to the learned authorised representative for the Revenue, since only packages of more than 25 kg or 25 litres are excluded as per Rule 3 of the Legal Metrology Rules, the packages in question, being of up to 25 kg do qualify as consumer packings - while it is true that all packings over 25 kg are clearly excluded from the Legal Metrology Rules, it does not necessarily mean that all packings up to 25 kg are included from them and further that all such goods get covered by the definition of retail packings. There could be substances of much higher value, such as saffron or spices which will be sold even in wholesale in much smaller packings than 25 kg. Therefore, it needs to be seen if there is sufficient evidence on record to suggest that the goods which were imported were in retail packings - there are no sufficient evidence to hold so, if we exclude the survey on internet and e-commerce websites conducted by the Commissioner after concluding the hearing and before passing the impugned order which we already have found cannot be used against the appellant.
It is undisputed that the imported goods were brassinolide. Its strength is only 0.1% and the rest is not made up of impurities but other inert material. It has been stated in the statement of Smt. Rashmi Jain, that it should be mixed in the proportion of 1 gram in 10 litres water and sprayed which makes it clearly a preparation of Brassinolide. Even if the submission of the learned counsel that it is sold to other companies which prepare further preparations is considered, the imported goods will be intermediate preparations which are also squarely covered by CTH 3808 as per the explanatory notes to HSN 3808. The imported good was clearly a preparation of Brassinolide and was not excluded from CTH 3808 by Chapter note 1(a)(2) to Chapter 38.
Merits of classification - HELD THAT:- The brassinolide imported by the appellant is a plant growth regulator is no longer in dispute. Although it was described as ‘fertilizer’ in the invoice and documents of the Chinese supplier and also in the Bills of Entry by the appellant, after importing, the appellant sold the goods as ‘plant growth regulator’. Evidently, it is understood as plant growth regulator even in the trade. This is consistent with the expert opinion from IARI and the CBEC’s Circular based on which the SCN was issued. The appellant had not contested this fact before us or before this Tribunal in the earlier round of appeal.
The Chapter Note excludes specially defined chemicals from Chapter 38, except when they are put up in forms described in 3808 viz., as retail packings, as preparations and as articles. Of these, there is no dispute that the imported brassinolide were not articles which leaves with retail packings and preparations. We have already found that the imported brassinolide was a preparation. Since the brassinolide is in the form indicated in CTH 3808 by being preparation, it is not excluded by Chapter Note 1 (a) (2). Therefore, it falls under CTH 3808.
Extended period of limitation - HELD THAT:- As far as the description of the goods, quantity, etc. are concerned, the importer is bound to state the truth in the Bill of Entry. Thus, simply claiming a wrong classification or an ineligible exemption notification is not a mis-statement. Assessment, including self-assessment is a matter of considered judgment and remedies are available against them. While self-assessment may be modified by through re-assessment by the proper officer, both self-assessment and the assessment by the proper officer can be assailed in an appeal before the Commissioner (Appeals) or reviewed through an SCN under section 28. Therefore, any wrong classification or claim of an ineligible notification or wrong self-assessment of duty by an importer will not amount to mis-statement or suppression.
Extended period of limitation can be invoked in case of collusion or any willful mis-statement or suppression of facts. According to the Revenue, the appellant had wrongly declared the imported goods as fertilizers and they were also declared so in the invoices, packing lists, etc. supplied by the Chinese suppliers. The appellants were fully aware that the imported goods were plant growth regulators and were also selling the goods as plant growth regulators. Therefore, according to the Revenue, the appellant has willfully mis-stated the nature of the imported goods in the Bills of Entry as fertilizers and hence extended period of limitation was correctly invoked.
It is equally true that the assessing officers were also aware of the nature of the goods and had, on more than one occasion, called for the technical literature on the product which the appellants had provided. After studying the technical literature, the officers cleared the goods as fertilizers. Balancing these two facts on record, we do not find that sufficient grounds exist to invoke extended period of limitation in this case - the extended period of limitation could not have been invoked in the present case.
Penalties - HELD THAT:- As may be seen the ingredients necessary for imposing a penalty under section 114A are identical to the ingredients necessary to invoke extended period of limitation. The extended period of limitation cannot be invoked in these cases. Logically, the penalty under section 114A imposed on the appellant importers also cannot be sustained for the same reason - As far as the penalty under section 112 is concerned, it is imposable on any person whose acts or omissions render the goods liable to confiscation under section 111 or who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111. In these cases, goods were held liable for confiscation under section 111 (d) and (m) and consequently penalty was imposed under section 112.
As far as section 111(d) is concerned, there is nothing on record to show that there was any prohibition on import of the goods and so it does not apply to the present case. As far as 111(m) is concerned, there are no misdeclaration of the goods, although they deserved to be classified under CTH 3808 as “plant growth regulators” but all the documents including literature was made available to the officer during assessment. It is also found that section 111(m) does not apply. Consequently, penalties under section 112 cannot be sustained - The penalties under sections 114A and 112 imposed on the appellants are not sustainable and need to be set aside.
Appeal disposed off.
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2023 (1) TMI 949 - BOMBAY HIGH COURT
Illegal smuggling of goods - Seeking grant of Injunction restraining the Respondents, their Agents, Servants and Subordinates from acting and/or taking any action of any nature whatsoever, pursuant to or in furtherance of the Impugned order - HELD THAT:- It is pertinent to note that the Division Bench also considered the contention of the Petitioners therein of entertaining the Petition in writ jurisdiction in light of the grievance of non-granting of cross-examination. After considering this grievance, the Division Bench opined that an Appeal was maintainable and passed necessary orders regarding the filing of an appeal and pre-deposit as stated above. To maintain consistency, since this Court has taken a particular view in the case of other noticees with similar grievance, we are inclined to dispose off the Writ Petition with the same reasoning as in the order dated 6 June 2019.
The Writ Petition is disposed off directing that the course of action indicated in paragraphs 7 and 8 of the order dated 6 June 2019 would apply to the case of the Petitioner as well.
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2023 (1) TMI 948 - CESTAT NEW DELHI
Confiscation of imported aircraft - non-scheduled operator permit (charter) issued by the Directorate General of Civil Aviation [DGCA] - levy of customs duty and penalty under section 112 of the Customs Act - HELD THAT:- Aircrafts and helicopters are classified under Customs Tariff Heading 88 of the First Schedule to the Customs Tariff Act, 1975. The tariff rate of duty till 28.02.2007 on the import of aircraft was 3%/12.5%. Subsequently, pursuant to the proposal made in the Finance Bill 2007, exemption notification no. 20/2009 dated 01.03.2007 was issued inserting Entry 346B and Condition No. 101 in the earlier exemption notification dated 01.03.2002, whereby, the effective rate of duty on import of aircraft for scheduled air transport service was made ‘nil’. No exemption was, however, granted to nonscheduled air transport service and private category aircraft. However, with the issuance of the exemption notification dated 03.05.2007, the effective rate of duty on the import of aircraft for non-scheduled air transport service was made ‘nil’.
The exemption notification dated 03.05.2007 inserted Condition No. 104 which requires at the stage of import, an approval from MCA to import the aircraft for non-scheduled (charter) service and an undertaking by the importer to the customs authority that the aircraft would be used only for non-scheduled (charter) services and that the operator would pay on demand, in the event of his failure to use the aircraft for the specified purpose, an amount equal to the duty payable on the said aircraft but for the exemption under the notification.
The customs authority cannot demand duty in the absence of proceedings initiated by DGCA. In the present case, proceedings have not been initiated by DGCA against the appellant and in fact the permits have been renewed time to time - the impugned order also holds that non-revenue flights undertaken by the aircraft carrying Chairman and other employees are private flights and though such flights may be permissible under the Civil Aviation Law but the same cannot be interpreted to be also permissible under the exemption notification.
Thus a demand can be made under the Undertaking only when DGCA finds that the use of the aircraft is not in accordance with the permit granted by the DGCA. In the present case, DGCA has not initiated any proceedings against the appellant and in fact has renewed the permit from time to time - Once it is held that the demand could not have been confirmed, the penalties imposed upon the Chairman/Managing Director and the Vice President of the appellant cannot also be sustained.
Appeal allowed.
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2023 (1) TMI 927 - BOMBAY HIGH COURT
Seeking release of smuggled confiscated goods - Whether the Tribunal was justified in recording a finding that the fact that seized fabrics might have lost its importance due to storage for more than four years without there being any evidence on record to support that finding? - HELD THAT:- The Appellant is not entitled to succeed even on the re-framed questions of law. Though the learned Counsel for the Appellant has sought to address us as to the various factual aspects, we have to keep in mind the scope of the appeal. Whether the goods seized under a panchanama were validly imported is a question of fact. It is settled that the scope of reversing an order of the Tribunal on a finding of fact is extremely limited and is restricted to ascertaining whether the finding of fact is demonstrably perverse or that it is not possible to reach such a finding and it is contrary to the record on the face of it. It is also settled that if a possible view is taken by the Tribunal based on the analysis of the factual material then a question of law would not arise.
In the present case, the Commissioner has undertaken the exercise of tallying the details of the seized goods as per the panchanama and details of the goods as per the concerned Bills of Entry. The Commissioner found that they did not match and there are only six entries that are common between the two and therefore, it is clear that the seized goods are not the same as imported under the two Bills of Entry - Tribunal has taken a particular view on fact, which cannot be stated that as perverse. The endeavour of the Appellant is only to persuade us to take another view upon re-appreciating the same material on record. Once we find that the Tribunal's view cannot be stated to be perverse, no question of law arises for consideration and only questions of facts arise.
Appeal dismissed.
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2023 (1) TMI 910 - MADRAS HIGH COURT
Freezing of Bank Account of petitioner - non-release of the export shipment made by the petitioner - representation requesting for de-freezing of his bank account as per the provisions of the section 110A of the Customs Act, 1962 not been considered - HELD THAT:- No prejudice would be caused to the respondents, if the petitioner's representations seeking for release of the subject export consignment as well as for de-freezing the petitioner's bank account is considered on merits and in accordance with law, within a time frame to be fixed by this Court.
This Court is not expressing any opinion on the merits of the petitioner's representations as it is contended by the learned Standing Counsel appearing for the respondents that Air Customs Investigating Unit is investigating the subject export consignment of the petitioner as well as the previous exports made by the petitioner - Since the petitioner has not given separate representation for de-freezing of its bank account by the respondents, this Court is of the considered view that the petitioner will have to send a fresh comprehensive representation to the respondents requesting them to release the subject export consignment of the petitioner as well as for de-freezing of the petitioner's bank account.
The bank accounts and goods are directed to be released - petition disposed off.
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2023 (1) TMI 909 - KERALA HIGH COURT
Jurisdiction of Customs Officers for seizure or recovery of material in a search carried out in a DTA - Smuggling - Clandestine movement of gold - search and seizure proceedings - HELD THAT:- Section 21 of SEZ Act deals with the notified offence or offence occasioning in an SEZ. The circumstances stated in the show cause notice are accepted as true and correct; it cannot be said that the subject violations happened in SEZ and were terminated in SEZ. Therefore, only the authorities under the SEZ Act have jurisdiction to act against the importer. In a situation as the present, this Court is of the view that for alleged unauthorized movement of goods/gold, the Development Commissioner etc., would have jurisdiction on the establishment and continuance of a unit in an SEZ and for importing goods/gold into DTA without paying customs duty, the Customs Department have jurisdiction on the information gathered in a DTA in the search carried by them. The CESTAT reasons that when two interpretations are possible, the interpretation favourable to a taxpayer must be accepted is entirely out of context. Jurisdiction, in fact, or law, irrespective of the nature of the enactment, has different manifestations.
In the case on hand, the search and seizure have occasioned in DTA. Therefore, the Officers of the Customs Department, vis-à-vis the alleged illegality noted against both the importer and the individuals who handled the gold moved out of SEZ, have jurisdiction under Act 1962. The denial of jurisdiction to the Officers of the Customs Department for offences or violations noticed in DTA would enhance the area of an SEZ and diminish the jurisdiction of the Act 1962.
There are two aspects for independent and objective consideration: search and seizure in DTA and, conversely, an investigation into commissions or omissions in an SEZ. The circumstance is that 4 Kg of gold was imported by the AGPL/importer when it had authorization and permission. The imported gold was lying in an uncleared area at the Air Cargo Complex at Nedumbassery, Cochin Airport. Stock, goods or gold lying in an uncleared area cannot be confiscated on the ground that upon completion of import, the said goods could also be used for a purpose otherwise provided for by law - the Order-in-Original, in anticipation of the 4 Kg of gold being misused or moved out of CSEZ, has been confiscated. It is considered that the reasoning of the CESTAT, insofar as 4 kg gold is concerned, is contextual, correct and tenable. Hence, to this limited extent, the said finding does not warrant interference.
Application disposed off.
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2023 (1) TMI 908 - CESTAT NEW DELHI
EPCG scheme - Failure to fulfill the conditions of the Notification as the Export Obligation Discharge Certificate [the EODC] was not submitted within the stipulated time - HELD THAT:- It is not in dispute that the license that was issued to the appellant under the EPCG Scheme mentions the export obligation period is twelve years. This fact has neither been disputed in the show cause notice nor in the two orders passed by the Additional Commissioner and the Commissioner (Appeals). The show cause notice, in fact, does not even mention the obligation period and only makes a general allegation that the appellant had failed to fulfill the conditions of the notification and submit the requisite evidence within the prescribed period regarding fulfillment of export obligation - It is non-submission of the Certificate of fulfillment of export obligation that has been stressed by the Additional Commissioner since the order holds that despite time having been granted to the appellant to submit the Certificate it was not submitted.
It appears that show cause notice was issued to the appellant treating the total export obligation period to be eight years from the date of issuance of the license - It is also not disputed that the appellant had applied for the issuance of the Certificate on November 09, 2016 before the expiry of ten years but it was issued to the appellant by the DGFT only on December 09, 2016. The appellant cannot be blamed for delay of three days since the appellant had admittedly applied for issuance of the certificate on November 09, 2016.
It cannot be said that the appellant had violated any of the conditions of the notification - Appeal allowed.
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2023 (1) TMI 878 - CESTAT NEW DELHI
Refund of SAD - non-submission of Calculation-Cum-Co-relation sheet, Sale invoices for respective Bills of Entry, VAT/CST challan and returns, Summary of sale invoices and Authority letter - CA certificate not available - HELD THAT:- The issue herein is squarely covered by the interpretation of the Larger Bench of this Tribunal in the case of CHOWGULE & COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] in favour of the appellant-assessee where it was held that A trader-importer, who paid SAD on the imported goods and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus, notwithstanding the fact that he made no endorsement that "credit of duty is not admissible" on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein.
It is apparent from the copy of receipt for filing refund claim that the appellant had filed the copy of sale invoices and also summary of sale invoices etc. Thus, the refund claim has been rejected without any reason and on flimsy ground. Further, such rejection of refund is bad in law and also ignoring the binding judgment of this Tribunal in the case of Chowgule & Company Pvt Ltd.
The Adjudicating Authority is directed to grant the refund within a period of 60 days from the date of receipt of the copy of this order, alongwith interest as per rules - Appeal allowed.
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