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Showing 1 to 20 of 95 Records
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2023 (2) TMI 1295 - SC ORDER
Seeking the rectification of the order - classification of goods - Populated Printed Circuit Boards (PPCB) for DWDM Equipment – Photonic Service Switch - Small Factor Pluggable (SFP) - exemption under Notification No. 24/2005-Cus dated 1.3.2005 - Revenue submitted that the classification as has been done in the impugned order, has been accepted by the Department-Revenue - HELD THAT:- The civil appeals are dismissed.
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2023 (2) TMI 1291 - BOMBAY HIGH COURT
Recovery of SARFAESI dues - priority of claim over the claim of Respondent – Custom Authorities - Property under attachment of the Custom Authorities - HELD THAT:- The overriding effect of section 142A as regards the duty, penalty and interest under the Customs Act, 1962 is subject to the Central Act, State Acts provided in this section itself, which includes the SARFAESI Act. Therefore, the claim of Respondent–Custom Authorities for the overriding charge under section 142A of the Customs Act, 1962 itself makes an exception in respect of the SARFAESI Act. Therefore, learned counsel for the Petitioner is right in contending that the Petitioner would have the overriding priority over the charge of Respondent– Custom Authorities.
Petitioner states that the Petitioner bank would proceed to take measures under the SARFAESI Act and if any amount remains balance after satisfying the claim of Petitioner, the Petitioner is under a duty to distribute the balance amount as per the claims received. The statement made by learned counsel for the Petitioner on instructions is accepted - the Petitioner is permitted to proceed to take measures under the SARFAESI Act in respect of the property in question. The Petitioner–Bank will, if such a request is received from the Respondent–Custom Authorities to inform them about the action taken by the Petitioner and the quantum of sale proceeds, will give necessary information to the Respondent–Custom Authorities.
The writ petition is disposed off.
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2023 (2) TMI 1282 - DELHI HIGH COURT
Seeking release of Frames and Slides imported - import permission granted by the competent authority in the office of Directorate General of Foreign Trade (DGFT) - HELD THAT:- The matter requires a detailed hearing. The Learned Senior Counsel for the Writ Petitioner has stated before this Court that most of the supplies are to be made to Organizations under the Government of India i.e. Defence, Para Military Forces and Sports Ministry. It is stated that the Petitioner has already paid more than a sum of Rs. 1 crore as demurrage charges on the consignment and other related consignments which are the subject matter of the present LPA. It has also been stated that the consignment has been opened by the Delhi Police for inspection because of which rusting of small parts is taking place.
As an interim measure, the entire consignment which is subject matter of LPA 695/2022, be handed over to the Writ Petitioner on Supratnama, and the Writ Petitioner is directed not to dispose of even a single item therein without the directions of this Court.
List the present LPAs on 10.05.2023.
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2023 (2) TMI 1263 - CESTAT CHENNAI
Classification of goods - SCM 435 and C45E varieties of steel - eligibility for exemption provided under Sl. No. 190C of Notification No. 21/2002 - misdeclaration and suppression of facts - invocation of extended period of limitation - whether there was indeed a breach and if so whether it was committed with a view to evade tax by misdeclaration and suppression of facts or whether it was a bonafide dispute, without any fraudulent / reckless intention? - HELD THAT:- The import took place in the pre-self-assessment period. The obligation was on the part of the department to assess the imported goods. The Appellant had along with the Bills of Entry and invoices, furnished copies of inspection certificate as well. They had produced test certificate containing the composition of various alloys and the relevant invoice at the time of filing the Bills of Entry.
This being so the charge of misdeclaration and suppression of fact, fails. Since the onus of assessment was on the department and the Appellant had submitted the necessary documents to facilitate the same, they cannot be held responsible for suggesting a certain classification heading in the Bill of Entry. As held by the Hon'ble Supreme Court in NORTHERN PLASTIC LTD. VERSUS COLLECTOR OF CUSTOMS & CENTRAL EXCISE [1998 (7) TMI 91 - SUPREME COURT] that mere claiming the benefit of exemption or a particular classification under the bill of entry does not amount to mis-declaration or suppression of facts.
The charge of the Appellant having mis-declared the goods and supressed facts fails. The demand has hence to be restricted to the normal period and the penalty needs to be set aside. The impugned order is modified on the said terms. The appeal is disposed of.
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2023 (2) TMI 1213 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI
Classification of goods proposed to be imported - Optoma Creative Touch 3-series Interactive Flat Panel (IFP) (Model - 3652RK, 3752RK, 3862RK) - to be classified under sub-heading 8471 41 90 or not.
Whether the features and specifications of the subject goods under consideration meet the criteria as laid down in the Note 6(A) to Chapter 84?
HELD THAT:- From the open source available, it is understood that Automatic Data Processing (ADP) machines have storage capability and also stored programs which can be changed as per the performance of tasks. Digital machines process data in coded form. A code consists of a finite set of characters (binary code, standard six-bit ISO code, etc.). The data input is either automatic through the use of data media such as magnetic tapes or manual by means of keyboards, touch screen etc. The input data are converted by the input units into signals which can be used by the machine and stored in the storage units. The data is then operated by the CPU and operating system to produce output. From Para 2 and 2.1, it is evident that these machines have a main storage capability which is directly accessible for the execution of a particular program and which has a capacity sufficient to store those parts of the processing & translating programs and the data immediately necessary for the current processing run. Therefore, the goods satisfy the condition specified in Note 6(A)1.
As per Note 6(A) 2, the machine should be able to be freely programmed in accordance with the requirement of the user. From the product details submitted, it appears that these goods come configurable with off-the-shelf, end-user applications allowing the programming of the various functions in accordance with the needs of the user. As per the product details available on the website, these devices have pre-installed apps including Office Suite, which allows users to open and edit all Microsoft Office documents. Applications available include GoToMeeting, Firefox, Evernote, and many more. Therefore, the goods satisfy condition as per 6(A)2.
Creative Touch 3-Series Interactive Flat Panels, perform the arithmetical computations specified by the user which satisfy condition 6(A)(3) of the chapter notes.
Thus, the subject goods satisfy all the requirements as mandated under Note 6(A) [previously referred to as 5(A)] to Chapter 84 of the Customs Tariff Act, 1975. Accordingly, the subject goods are classifiable under CTH 8471 as ADP.
As the machines under consideration do not have a keyboard, they appear to be classifiable as other ADP machines under 2nd one-dash sub-heading. Sub-heading 8471 41 covers other ADP machines; comprising in the same housing at least a central processing unit and an input and output unit, whether or not combined. For the machines under consideration, the LED screen satisfies the requirement for output and the touchscreen satisfies the requirement for input apart from the CPU inbuilt into the device. Therefore, the subject goods appear to be classifiable under sub-heading 8471 41 and more specifically under sub-heading 8471 41 90 as “Other automatic data processing machines.
Optoma Creative Touch 3-series Interactive Flat Panels (IFP) (Model - 3652RK, 3752RK, 3862RK) merit classification under Heading 8471 and more specifically under sub-heading 8471 41 90 of the First Schedule to the Customs Tariff Act, 1975.
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2023 (2) TMI 1206 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI
Classification of goods proposed to be imported - Fire TV Stick, which is a HDMI digital media receiver - to be classified under sub-heading 8528 71 00 or under sub-heading 8517 62 90? - HELD THAT:- The device Fire TV Stick, having been designed for reception, conversion and transmission of voice, images or other form of data through the internet and not through satellite/cable/terrestrial sources merits classification under six-digit Tariff Entry 8517 62.
From technology perspective it was brought on record by one of the respondent Commissionerates that the Wi-Fi frequency range is based on IEEE 802.11 protocol and is different from that of a television signal. Customs Tariff Heading 8517 specifically excludes apparatus for the transmission or reception of radio-broadcasting or television signal (Headings 85.25, 85.27 or 85.28). As far as the contending Tariff Entry 8528 is concerned, it appears to be an unsuitable tariff entry for classification of the device under consideration in the present proceedings insofar as the said entry is primarily suitable for receivers of television broadcast signals. Therefore, the views expressed for classification of applicant’s product under CTH 8528 viz. 8528 71 00 and 8528 73 90, examined on the background of technological facts discussed earlier, are not legally tenable.
The Amazon Fire TV Stick/HDMI digital media receiver with dual core processor, dedicated Videocore4 GPU, 1 GB of memory and 8 GB of storage having a dual band, dual antenna 802.11 AC Wi-Fi is classifiable under CTH 8517 62 90 of the First Schedule of the Customs Tariff Act, 1975.
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2023 (2) TMI 1185 - DELHI HIGH COURT
Scope of definition of ‘prohibited goods’ under Section 2(33) of the Customs Act, 1962 - petitioner contends that goods which can otherwise be imported albeit subject to licenses would not fall within the definition of ‘prohibited goods’ - HELD THAT:- The stand in this case appears to be contrary to the stand in that case. There is also lack of clarity as to which goods according to Union of India would be non-prohibited goods but, nonetheless, liable for confiscation.
List for further hearing on 16.03.2023.
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2023 (2) TMI 1138 - DELHI HIGH COURT
Refund of the Special Additional Duties of Customs (SAD) - rejection on the sole ground that the same were barred by the limitation - no SCN issued before rejection of appeals - principles of natural justice (audi alterem partem) - HELD THAT:- Concededly, no prior notice for rejecting the said appeals on the ground as aforesaid was issued to the appellant. Thus, there is merit in the contention that the appellant had no opportunity to address the ground on which the appeals were rejected by the Tribunal.
It is not considered apposite to examine this question in the present appeal. It is apparent that the appellant did not have sufficient opportunity to address the objections on which its appeals were rejected - matter remanded to the learned Tribunal to decide afresh after affording the appellant reasonable opportunity to meet the objections regarding any alleged discrepancies in the refund claims.
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2023 (2) TMI 1101 - DELHI HIGH COURT
Entitlement for Duty Credit Scrips under the Merchandise Exports from India Scheme (MEIS) - pure export - case of export within India from Domestic Traffic Area (DTA) unit to Special Economic Zone (SEZ)/ Free Trade Warehouse Zone (FTWZ) unit located in India or not - HELD THAT:- A perusal of the FTP would show that the same is meant for providing incentives for manufacture and export of goods from India. The exports made under this policy are to be rewarded, by issuance of MEIS scrips which can be encashed for exports, against custom duty which would be payable for future imports.
The clauses of the MEIS came upon consideration before the Hon’ble Madras High Court, in Jindal Drugs [2021 (7) TMI 1034 - MADRAS HIGH COURT] wherein the Petitioner - Jindal Drugs Pvt. Ltd. was involved in export to Ireland. In the said transaction, DHL logistics in Chennai was used as logistics support. In the context of the said facts, the ld. Single Judge of the Hon’ble Madras High Court held that DHL logistics, the FTWZ, merely offers a facility to the petitioner to warehouse its consignments that are to be exported. The destination is decided by UTEXAM, which is the ultimate purchaser, which has paid the petitioner in USD for the consignment. The stipulation in Clause (vii) deals with exports made by a unit in the FTWZ. DHL, the FTWZ does not export the consignments but only facilitates such exports. The exports are thus, by the petitioner through DHL to a destination abroad.
In the present case, the decision of Jindal Drugs would be clearly applicable. The company i.e. M/s Siddhartha Logistics is merely a FTWZ logistics company located in Andhra Pradesh. The said company was involved neither in the manufacture of the products nor the entire sale transaction. It was merely providing logistical support to enable the shipment move within India and ultimately to the French customer i.e. Dedienne Aerospace. Further, it is also noticed that M/s Siddhartha Logistics has already issued its no objection giving consent to the Petitioner to claim the drawback benefits.
The documents, which have been placed on record, leave no manner of doubt that the case of the Petitioner is clearly covered by the FTP, which has been extracted above. None of the exclusionary clauses would be applicable. The Petitioner was rightly issued the MEIS scrips. However, due to inexplicable reasons, the same was sought to be cancelled leading this long protracted litigation between the parties. The cancellation of MEIS scrips was done on 14th July, 2021 leading to the show cause notice proceedings, thereafter proceedings before the Appellate Authority of DGFT and also two writ petitions before this Court.
In this entire process, the Respondents failed to take into consideration the decision in Jindal Drugs. All these proceedings could have been easily avoided if the Respondents had taken into consideration the said judgment, which was binding upon it.
The action of the Respondent cancelling the MEIS scrips is also set aside. The Respondent is directed to revalidate the MEIS scrips which were granted to the Petitioner so as to enable the Petitioner to encash the same in its usual course of business - Petition allowed.
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2023 (2) TMI 1100 - CESTAT NEW DELHI
Exemption from countervailing duty [CVD] under the Notification No. 12/2012-CE dated 17.03.2012 and special additional duty of customs [SAD] under the Notification No. 21/2012-CUS dated 17.03.2012 - gold/platinum/silver findings, which are parts of jewellery - ‘parts of Articles of jewellery’ are covered in the phrase ‘Articles of jewellery’, when not separately specified, or not - ‘parts of Articles of silver jewellery’ are covered in the phrase ‘Articles of silver jewellery’, when not separately specified, or not.
HELD THAT:- It is not in dispute that the goods involved in these appeals, namely gold/platinum/silver findings that have been imported by the appellant are ‘parts of jewellery’. Chapter 71 contained in section XIV to the Customs Tariff Act deals with natural or cultured pearls, precious or semi-precious stones, precious metals, metals clad with precious metal, and articles thereof; imitation jewellery; coin - It would be seen that articles of jewellery and parts of articles of jewellery have been separately classified under the restrictive sub-headings of the Customs Tariff. They should, therefore, be treated as separate articles.
A perusal of the CVD exemption notification also shows that entry no. 199 of Chapter heading 7113 contains (I) articles of jewellery and (II) articles of silver jewellery. It does not exempt ‘parts of articles of jewellery’. When this entry is compared to entry no. 199, as amended by notification dated 26.07.2016, it is seen that ‘parts of articles of jewellery’ have been included. Such being the position, there is no manner of doubt that it is only w.e.f. 26.07.2016 that parts of articles of jewellery have been included in the CVD exemption notification. It cannot be urged that the amendment made in entry no. 199 on 26.12.2016 is clarificatory in nature - It is for the legislature, in its wisdom, to grant exemption from payment of CVD or SAD and an assessee cannot be permitted to urge that if articles of jewellery have been granted the benefit of exemption from payment of CVD or SAD, the benefit of such exemption should necessarily flow to ‘parts of articles of jewellery’ also.
The decisions of the Tribunal in Derewala Jewellery [2017 (3) TMI 5 - CESTAT NEW DELHI] and V.K. International [2012 (10) TMI 739 - CESTAT, NEW DELHI], on which reliance has been placed by the learned counsel for the appellant, do not support the case of the appellant. The issue involved in both the decisions was not whether ‘parts of articles of jewellery’ would be also entitled to benefit of the exemption notification if the benefit of such exemption was granted to articles of jewellery.
An exemption notification has to be strictly construed and the burden of proving that the case falls within the parameters of the exemption clause or the exemption notification is on the assessee; and if there is any ambiguity in the notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the assessee and it must be interpreted in favour of the revenue. This is what was observed by the Supreme Court in Commissioner of Cus. (Import), Mumbai vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT].
Similar would be the position with regard to the SAD exemption notification. Entry at serial no. 78 of Chapter heading 7113 describes the goods as articles of jewellery and not as parts of articles of jewellery. The Commissioner (Appeals) has recorded a finding that since they are different articles, an assessee cannot claim the benefit of SAD exemption notification on import of parts of articles of jewellery. The finding recorded by the Additional Commissioner and the Commissioner (Appeals), therefore, does not suffer from any legality.
Appeal dismissed.
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2023 (2) TMI 1050 - KARNATAKA HIGH COURT
Renewal of Customs Broker License - Tribunal had fallen in serious error for not having noticed the legal implication of the statutory regulation 11(d), 11(m), 11(n) of the CBLR, 2013 or not - Whether the Tribunal was right in directing the appellant to examine the application of the respondent for renewal of license? - misclassification/misdeclaration of goods - violation of principles of natural justice.
HELD THAT:- In the OIO it has recorded that on September 5, 2014, an opportunity of personal hearing was given to the respondent. Therefore, the view taken by the CESTAT that there has been violation of principles of natural justice and that no opportunity of hearing was given to the respondent is perverse.
It is not in dispute that the license was valid up to October 16, 2014 and it had expired when OIO was passed. The Commissioner has recorded that no application for renewal of the license was received from the Customs Broker. If this were to be the factual matrix, the direction issued by the CESTAT to consider the application is also perverse.
Appeal allowed.
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2023 (2) TMI 1049 - CESTAT NEW DELHI
Interest on the refund of differential duty deposited for the purpose of clearance, being successful in appeal - price escalation clause - consent given by the appellant to the enhancement made by the department in the value of the declared goods at the time of processing of the Bill of Entry or not - Revenue urges that deposit of differential duty without making a prior protest, amounts to acceptance or consent on the part of the appellant.
HELD THAT:- It is an accepted fact that appellant had deposited the differential duty as ordered by revenue, but have immediately filed the appeal and thus, the payment of differential duty was under protest, ipso facto. It is further found that such claim of the appellant of payment under protest was accepted by the Commissioner (Appeals) who remanded the matter for re-adjudication under Section 17(5) of the Act, by order dated 26.11.2013. In this view of the matter, the appellant is entitled to grant of interest on the refund amount under Section 129EE of the Act.
Hon’ble Supreme Court in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT], which have been followed by 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], grant of interest @ 12% P.A. has been upheld by Hon’ble Punjab & Haryana High Court in the case of COMMISSIONER OF CENTRAL EXCISE, PANCHKULA VERSUS M/S RIBA TEXTILES LIMITED [2022 (3) TMI 693 - PUNJAB & HARYANA HIGH COURT], wherein interest was granted @ 12% P.A. Accordingly, I allow the appeal and set aside the impugned order.
Thus interest is granted from the date of deposit till the date of refund @ 12% P.A. under Section 129EE of the Act, within 45 days of receipt of this order by the Adjudicating Authority - appeal allowed.
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2023 (2) TMI 1039 - CESTAT AHMEDABAD
Clandestine removal of the goods from trading unit at KASEZ - Revenue proceeded on the premise that Appellant was engaged in diversion of goods in DTA clandestinely and fabricated the records to show that said goods were exported - diversion of goods to DTA - existence of concrete evidences or not - HELD THAT:- The allegation of clandestine removal of the goods from trading unit at KASEZ, which was under the physical control of the department, to the Domestic market no cogent evidence was produced by the revenue. Not a single customer is brought on records who has received the clandestine removed goods. No documentary evidence is produced in the form of transport receipts, delivery challans or any other documents relating to removal of disputed goods. No evidences produced regarding the receipts of payment against the clearances of disputed goods in domestic market. No transporter or any person are brought on records who has transported the disputed goods in domestic market. It is well settled that the charge of clandestine removal of goods, cannot be established on assumptions and presumptions. Such a charge has to be based on concrete and tangible evidence.
Reference may be made to OUDH SUGAR MILLS LTD. VERSUS UNION OF INDIA [1962 (3) TMI 75 - SUPREME COURT], wherein the Apex Court has observed that demand of duty cannot be raised on the strength of assumptions and presumptions. There should be sufficient evidence of the removal of the goods alleged to have been manufactured and cleared without payment of duty. The charge of clandestine removal must be based on tangible evidence and not on inferences involving unwarranted assumptions.
Further, in RADHA MADHAV CORPORATION LTD. VERSUS COMMISSIONER OF C. EX., DAMAN [2013 (6) TMI 395 - CESTAT, AHMEDABAD], the issue was raised in a case where the allegation was that there was clearance of plastic film in the guise of Lay Flat Tubing (LFT). After examining the facts of the case at length, it was held that a link between the documents recovered in the search and the activities of the appellant in their factory is required to be proved.
Thus, the present demand which has been confirmed against Appellant by the impugned order, is not based on evidence. Unless there is conclusive evidence that Appellant has clandestinely cleared the disputed goods without payment of duty, liability cannot be placed on Appellant on the basis of conjectures and surmises. Therefore, the demand based on assumption and presumption is not sustainable.
In the present case, it is not proved that the original goods were loaded in the container and the same was cleared from SEZ. If the contention of the revenue is presumably accepted that the appellant have cleared the original goods from their SEZ then, as per the allegation of investigation that the appellant have attempted to export the inferior quality of goods, the investigation could not bring on record particularly from the SEZ records that the disposal of the original goods and procurement of low quality goods in the guise of original goods. The entire case was based on the document but no physical movement or diversion could be established. In this fact, the demand of customs duty is not sustainable and consequently, the confiscation of goods is also incorrect and illegal.
Appeal allowed.
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2023 (2) TMI 1038 - CESTAT NEW DELHI
Valuation of import goods - Alloy Wheels of motorcycles - rejection of declared value - redetermination of assessable value - market survey was actually conducted in the presence of the proprietor and as per the opinion given by the shopkeepers, the retail sale price was ascertained - HELD THAT:- It is no doubt true that the value of the imported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the rules to be made in this behalf. The Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may ask the importer to furnish further information. Rule 12(2) stipulates that it is only if an importer makes a request that the proper officer shall, before taking a final decision, intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared and provide a reasonable opportunity of being heard - Explanation 1(iii)(a) provides that the proper officer can have doubts regarding the truth or accuracy of the declared value if the goods of a comparable nature were assessed at a significantly higher value at about the same time.
The very fact that the importer had agreed for enhancement of the declared value in the statements made under by section 108 of the Customs Act, itself implies that the importer had not accepted the value declared in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the importer 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. This is for the reason that it is only when the value of the imported goods cannot be determined under sub-rule (1) of rule 3 for the reason that the declared value has been rejected under sub rule (2), that the value of the imported goods is required to be determined by proceeding sequentially through rules 4 to 9.
However, in the present case, not only did the proprietor make a statement on April 27, 2017 that a market survey should be conducted, since the value and the retail price of the goods imported were not in consonance with the market price of such goods sold in the Indian market, but a market survey was actually conducted in the presence of the proprietor and as per the opinion given by the shopkeepers, the retail sale price was ascertained, which price was accepted to be correct by the proprietor in the statement made on April 27, 2017. When he was shown details of how the value was calculated, the proprietor admitted that it was based on the value ascertained during the market survey and agreed to pay the differential duty with interest.
When the proprietor had admitted the re-determined value and also paid the differential duty with interest and penalty imposed by the competent authority, it is not open to the appellant to now contend, after goods have been cleared, that the market value could not have been re-determined - the value has been re-determined on the basis of the opinion given by the shopkeepers during the market survey, which value was accepted by the appellant. It is, therefore, not a case where only the statement of the proprietor has been relied upon. The provisions of section 111(m) of the Customs Act have been correctly invoked as the value of the goods imported by the appellant do not correspond with the value given by the appellant in the Bills of Entry.
Appeal dismissed.
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2023 (2) TMI 1037 - CESTAT NEW DELHI
Quantum of levy of penalty and redemption fine - low amount of redemption fine and penalty imposed - use of Dummy IEC - Attempt to export helicopters without obtaining an IEC from the DGFT as required under the Foreign Trade Policy - whether the alleged violation, which resulted in confiscation of the goods, is a technical violation or substantial violation calling for enhancement of fine and penalty? - HELD THAT:- On confiscation, the property of the goods will vest in the Central Government and the individual or entity is deprived of its property which is a very serious punishment. The Adjudicating Authority has to, in the first place, decide if the goods attempted to be exported fell under one of the clauses of section 113. If they do not, this section does not apply at all. If the goods fall under one of the clauses under section 113, the goods will be liable to confiscation but the adjudicating authority must use his discretion to decide whether or not to confiscate them. Even if the adjudicating authority finds that the goods fall under one of the clauses of section 113, he does not find the offence serious enough to warrant the punishment of confiscation, he does not have to confiscate them. Considering the nature of the contraventions and the aggravating and extenuating factors, the adjudicating authority can decide to confiscate or not confiscate the goods.
The Madras High Court examined the scope of the expression ‘liable to confiscation’ which was used in the predecessor law, Sea Customs Act, 1878 in SHA RIKABDOSS BHAVARLAL VERSUS COLLECTOR OF CUSTOMS, MYSORE [1961 (5) TMI 2 - MADRAS HIGH COURT] and held that the expression does not mean that the goods should be confiscated.
Thus, the settled legal position is that ‘liable to confiscation’ does not mean ‘shall be confiscated’ and the adjudicating authority or the assessing officer has to exercise his/her discretion and decide (a) if the goods fall under section 113 (or section 112 in case of imported goods); and (b) if they fall under section 113 (or 112, as the case may be), decide whether or not to confiscate them. It is NOT NECESSARY for the adjudicating authority to confiscate all the export goods which fall under section 113 or all imported goods which fall under section 112.
In this case, the Commissioner found that there was only a technical violation which rendered the goods liable to confiscation under section 113. If that be so, he had the complete discretion to have not even confiscated the goods. However, he decided to confiscate the goods and this confiscation is not under challenge - If the adjudicating authority confiscates the goods and if the goods are not prohibited goods, he has to allow them to be redeemed on payment of fine under section 125. Even if they are prohibited goods, he may still allow the goods to be redeemed on payment of redemption fine. There is no formula to determine the quantum of redemption fine nor is there a minimum fine but the fine cannot exceed the market value of the goods. The quantum of fine must be determined based on the facts and circumstances of the case.
Similarly, any person will be ‘liable to penalty’ under section 114 for actions and omissions which rendered the goods ‘liable to confiscation’ under section 113. Again the law is the person is ‘liable to penalty’ and not that a penalty shall be imposed on the person. So, it is open for the adjudicating authority to impose penalty under section 114 or not. If he decides to impose the penalty, he cannot exceed the maximum prescribed - In this case, considering the facts of the case, the Commissioner imposed a penalty of Rs. 50,000/- only. Revenue’s case is that the penalty is too low and hence needs to be increased. The penalty imposed is only on account of the perceived technical offence’ and the Commissioner did not have to impose any penalty at all. However, he imposed a penalty of Rs. 50,000/- only, calls for no enhancement.
Appeal of Revenue dismissed.
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2023 (2) TMI 999 - DELHI HIGH COURT
Levy of penalty u/s 114 of the Customs Act, 1962 - Over-valuation of goods to avail a higher duty drawback - HELD THAT:- The reasons provided by the appellant for withdrawal of the export shipments was that the buyer had cancelled both the shipments / cargo due to late delivery. This did not conform with the explanation that the appellants had sought permission to withdraw the shipments on becoming aware that the goods being dispatched were old and over-valued.
There is no dispute that the goods were over-valued. Therefore, the questions involved in the present appeals, essentially, are whether the letter dated 31.01.2017 was, in fact, sent and, if so, what is the import of the said letter.
The question whether the said letter has been received by the concerned authorities is solely a question of fact. There is no dispute that the said letter was not produced before the adjudicating authority. The Commissioner (Appeals) had found that the delivery of the letter to the department is itself doubtful apart from the fact that the letter did not corroborate the explanation as provided by the appellant. This being a finding of fact, no substantial question of law arises in the present appeals.
Appeal dismissed.
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2023 (2) TMI 998 - DELHI HIGH COURT
Seeking return of Demand Drafts - amount paid voluntarily or not during investigation by DRI - According to the petitioner, the said amount was recovered by coercion, without any order determining the said liability or raising any demand - HELD THAT:- Considering the controversy involved in the present case, the learned ASG, on instructions, states that there would be no difficulty in returning the amounts collected while reserving the rights of the respondents to take any further action in accordance with law, including for protection of revenue and for recovery of any amounts that may be determined as due from the petitioner.
The respondent shall refund the amount of ₹79,00,000/- collected from Mr. Gautam R. Barmecha, by remitting it into his personal savings bank account, from where the amounts were drawn - It is clarified that the respondents are not precluded from taking any other action in accordance with law for preservation of revenue or for recovery of any amount that may be found due from the petitioner.
Petition disposed off.
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2023 (2) TMI 997 - BOMBAY HIGH COURT
Right to receive documents - Petitioner’s request for supplying certain documents was denied - HELD THAT:- The procedure is now governed by the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, wherein a detailed methodology is laid down. If the Petitioner files a reply including submissions made in the writ petition, it is expected that the Respondents-authorities will proceed as per the mandate of the Rules of 2007. If there is deviation therefrom to the prejudice of the Petitioner, the Petitioner would have its right open to filing an appeal.
The learned Counsel for the Petitioner states that adjudication of the show cause notice should be by a reasoned order. It is not found that apprehension is warranted as the authority is expected to pass a reasoned order.
Petition disposed off.
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2023 (2) TMI 996 - CESTAT AHMEDABAD
Exemption from customs duty - preferential Trade Agreement with Asian Countries - Whether the defect of non mention of invoice number in the Certificate of Origin can be enough to reject the certificate of origin and debar the appellant from benefit of Notification No. 46/2011-Cus dated 01.06.2011? - HELD THAT:- It is not in dispute that the consignment was imported by MV Intrepid which sailed on 04.11.2011 from Indonesia carrying 51,397,979 MT of steal coal (non-coking). It is also not in dispute that the consignment imported by the appellant is part of the same cargo. The appellant have sought to rely on the country of origin certificate which contains these details relating to date of sailing and name of ship and the quantity of cargo. The said certificate does not contain the invoice number of either the original purchaser or of the appellant.
Mere non-mention of the invoice number in the certificate of Origin is not sufficient reason to deny the benefit of Notification No. 46/2011-Cus dated 01.06.2011. The purpose of the Notification is to grant exemption under the preferential Trade Agreement with Asian Countries and from the certificate of country of origin produced by the appellant. It is sufficiently established that the goods have indeed originated in Indonesia and were wholly obtained in Indonesia.
Appeal allowed.
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2023 (2) TMI 955 - SC ORDER
Seeking grant of bail - Smuggling - Non Resident Indian - allegation is that on crossing green channel at the airport on 05.10.2022, the officers of the Investigating Agency apprehended him with dutiable goods including watches of admitted foreign origin - HELD THAT:- It is pertinent to note that the watches are amongst other goods as specified under Section 123(2) of the Customs Act, 1962. The Petitioner was arrested and was subsequently enlarged on bail.
Learned counsel for the petitioner contends that despite the petitioner presenting himself as and when required to do so and full cooperation till date, no show cause notice has been issued. It is further submitted that since the petitioner is desirous of taking statutory route prescribed in the statute for settlement of cases under Section 127(B) of the Customs Act, 1962 but for want of a final show cause notice, he is unable to make an application seeking settlement of the case.
Application disposed off with the direction to Respondent No. 2 to issue a final show cause notice to the petitioner within a period of one week from the date of receipt of this order.
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