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2015 (12) TMI 1855
Validity of detention order - no copy has been served upon petitioner - HELD THAT:- Petitioner submits that he does not wish to press the present writ petition and he would seek appropriate remedy as available to him in accordance with law at the appropriate stage.
In view of the stand taken by learned counsel, present writ petition and all pending applications are dismissed as not pressed.
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2015 (12) TMI 1837
Assessment and clearance of imported goods - import of used tyres - HELD THAT:- Identical issue decided in the case of KADRI ENTERPRISE A PROPRIETOR CONCERN OF GULAM RASUL GULAM MUSTUFA SHAIKH VERSUS UNION OF INDIA & 2 [2015 (11) TMI 677 - GUJARAT HIGH COURT] where respondents are directed to forthwith permit assessment and clearance of the goods imported by the applicant - petitioner.
Situation being identical, in these petitions also, similar interim directions are issued subject to similar conditions as in the said order.
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2015 (12) TMI 1727
Cross examination - supply of documents - Held that: - learned counsel for the petitioner states that an appropriate application for the same would be filed before the adjudicating authority within a week and the adjudicating authority shall dispose of the said application in accordance with law within four weeks thereafter - petition disposed off.
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2015 (12) TMI 1700
Cancellation of Bail application - illegal storage and then export of red sanders, a prohibited item - case of respondent is that the accused respondents have correctly been granted bail and bail once granted is not liable to be cancelled - Held that: - the court below is found to have released the accused respondents on bail relying on the judgment rendered in the case of Sanjay Chandra v. CBI, [2011 (11) TMI 537 - SUPREME COURT], which was a case relating to telecommunication laws and telecom service license and spectrum obtained fraudulently, whereas in the present case, the offence committed by the accused respondents is an offence of social economic offence of international ramifications, which is very serious offence considering the fact that Red Sanders (Red Sandalwood) is included in the endangered list of plants in CITES, an international agreement signed by 180 countries, and the accused respondents are habitual offenders and the possibility of re-occurrence of offence of similar nature cannot be ruled out, particularly when red sandalwood has a lucrative market for smugglers and as per the details given by co-accused person, the Red Sanders of the value of ₹ 4-5 crores has been smuggled out of the India, the Court below is found to have committed error while granting bail to the accused respondents.
The cancellation of bail applications filed by the petitioner are allowed - decided in favor of Revenue.
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2015 (12) TMI 1696
Import of Gold jewellery - preferential rate of duty - case of petitioner is that there is no doubt regarding the credibility of the declaration given by the exporter; the country of origin certificates also bear a specific certification from the concerned authorities in Indonesia to the effect that the declaration of the exporter, that the goods are of Indonesian Origin, is correct; therefore, the goods ought to have been cleared by granting exemption in terms of the exemption notification, and the Origin Rules; however the goods, imported by the petitioners under the relevant Bills of Entry, were not cleared for home consumption - the petitioner has an effective and efficacious alternative remedy of an appeal under Section 128 of the Customs Act, without availing which they had invoked the jurisdiction of this Court under Article 226 of the Constitution of India - Held that: - Alternative remedy, Not a bar for invoking the jurisdiction of the High Court under Article 226 of the Constitution - The existence of an alternative remedy is merely a factor to be considered, and would not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed - As the petitioners question the adjudication order on the grounds of violation of principles of natural justice, and that the 3rd respondent lacks jurisdiction to pass the adjudication order even before a retroactive check is conducted, we see no reason to relegate them, after having heard the matter elaborately on merits, to the alternate remedy of an appeal under the Customs Act.
Does the third respondent lack jurisdiction to pass the adjudication order without a retroactive check being conducted? - Held that: - From a reading of Clause 16(b), it is evident that the requirement of obtaining information of the documents, relating to the origin of the imported goods in accordance with its domestic laws and regulations, is a preclude to the request for retroactive check in terms of Clause 16(a). If the documents, sought for by the competent authority, are furnished by the importer and, if the concerned authority is satisfied with it, then preferential tariff can be extended to the importer. If, on the other hand, the information, or the documents furnished, are found not to be satisfactory, then, in terms of Clause 16(a), a retroactive check can be conducted - It is only after a retroactive check is conducted, and the concerned authorities are satisfied that the Certificate of Origin cannot be accepted, are they entitled, thereafter, to pass an adjudication order under the Customs Act. Without conducting a retroactive check, in terms of Clause 16(a) of Annexure-III to the 2009 Rules, it was not open to the 3rd respondent to pass an adjudicating order. The impugned orders dated 30-10-2015, passed even before conducting a retroactive check in terms of Clause 16(a), are without jurisdiction.
Was the adjudication order dated 30-11-2015 passed in violation of principles of natural justice? - Held that: - Reliance placed on documents, not made available to the assessee, violates principles of natural justice; and necessitates the impugned order being set aside on this ground also. - A person, against whom an order is passed, is entitled to a proper hearing which would include supply of the documents relied upon by the adjudicating authority. Only on knowing the contents of the documents, can he furnish an effective reply.
Does the judgment in Mahadev Metaliks Pvt. Ltd. [2015 (12) TMI 476 - ANDHRA PRADESH HIGH COURT], to the extent imported goods were directed to be released on payment of 30% differential duty, constitute a binding precedent? - Held that: - On provisional assessment, the assessee can only be asked to deposit a sum not exceeding 20% of the provisional duty. In addition thereto, it is open to the concerned officer to call upon the petitioner to furnish such security or surety or both as he deems fit. While the 2011 Regulations disable the concerned authority from requiring deposit of a sum exceeding 20% of the provisional duty, the nature of the surety and the extent of the security to be furnished is, under Regulation 4, left to the discretion of the proper officer - If the order in Mahadev Metaliks Pvt. Ltd. constitutes a binding precedent, this Court would be required to refer the matter to a Full Bench for resolution of the issue, even if it were to disagree with the view taken in the said judgment, for it is well settled that when a bench of coordinate jurisdiction disagrees with another bench of coordinate jurisdiction, whether on the basis of “different arguments” or otherwise on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety, forms the basis of judicial procedure and it must be respected at all costs - If, on an analysis of Regulation 4, the said regulation was misconstrued, it would then not have been a ground for impugning the authority of the earlier judgment. It is only because Regulation 4 was not considered, despite it being brought to their notice, and was not preceded by an analysis of the said Regulation, and no reasons were assigned for issuing such a direction, does the judgment, in Mahadev Metaliks Pvt. Ltd., not constitute a precedent binding on a co-ordinate bench.
Can an order, similar to that passed by the Supreme Court in “Commissioner of Customs v. M/s. Navashakti Industries Pvt. Ltd.” [2010 (5) TMI 592 - DELHI HIGH COURT], be passed in these writ petitions also? - Held that: - Exercise of the extraordinary jurisdiction, constitutionally conferred on the Supreme Court under Article 142(1) of the Constitution, can be of no guidance on the scope of Article 226 - It would be wholly inappropriate for us, therefore, to issue a direction, similar to that passed by the Supreme Court, with regards surety or security to be furnished by the assessee for release of the subject goods.
The High Court cannot substitute its views for that of the authority on whom the statutory regulations confer discretion - Discretion conferred by statutory regulations, must be exercised in a rational and reasonable manner.
The discretion conferred on the proper authority, under the 2011 Regulations, is not fettered by the C.B.E. & C. Circular dated 6-10-2015.
We wish to make it clear that we have not expressed any opinion on the amount which the petitioner must be asked to deposit or the nature of surety or the extent of security which the petitioner should be called upon to furnish for release of the imported gold jewellery, as these are all matters in the discretion of the proper officer under Regulation 4 of the 2011 Regulations. Suffice it to direct the third respondent to release the imported goods, after exercising his discretion in terms of Regulations 2 and 4 of the 2011 Regulations and assigning reasons therefor, with utmost expedition and, in any event, not later than two (2) weeks from today.
Petition disposed off - decided partly in favor of petitioner.
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2015 (12) TMI 1606
Compliance with the order of the Settlement Commission - The petition seeks a mandamus to the respondent no.1 Union of India (UOI), respondent no.2 Commissioner of Customs (Import), respondent no.3 Directorate of Revenue Intelligence (DRI) and respondent no.4 Commissioner of Customs (Export) to release the Bank Guarantees/Bonds and cash payments in terms of the order dated 23rd September, 2015 of the Settlement Commission - The Settlement Commission had vide the aforesaid order directed for such release within 15 days of its order - Held that: - The respondent no.1 UOI which has no role in the matter should not be seeking time for filing counter affidavit without any cause and application of mind - In view of the aforesaid, the petition is disposed of by directing the respondents no.2 & 4 Customs Authorities to comply with the order of the Settlement Commission on or before 30th December, 2015 - The person occupying the Office of the Commissioner of Customs (Import) is made personally responsible for compliance of the order.
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2015 (12) TMI 1591
Implementation of Order of the CEGAT dated 26-7-1993 - Held that: - the ground on which the application for implementation of the order dated 26-7-1993 was rejected does not survive. Hence, there can be no alternative before this Court than to direct for release of the seized gold ornaments to the petitioner after observing necessary formalities within a period of three months from the date of this order - writ petition disposed off.
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2015 (12) TMI 1578
SEZ unit - Release of confiscated 12 kgs of gold bars - confiscation of gold bars - imposition of penalties - SEZ - mandatory intimation under the Trade Facilitation Notice No.02/07 dated 3.3.2007 to be sent to the Department - Whether the failure on the part of the passenger to adhere to the rules provided in Rule 29(5) of the SEZ Rules, 2006 and in the absence of valid permit or authorization, the detention of gold bars justified? - opportunity of being heard - applicability of section 51 - Held that: - the implication of section 51 of the SEZ Act is that anything inconsistent to the provisions of the SEZ Act will not be considered. As stated above, there is also a discrepancy relating to issuance of detention receipt. Since there was no case made out for confiscation of the goods as per Rule 29(5) of the SEZ Rules, earlier show cause notice was dropped. If at all any proceedings to be initiated, that can be initiated only under the provisions of the SEZ Act and Rules. Also, the unit is a SEZ unit, section 51 applicable.
Non consideration of CCTV footage by the Appellate Authority - Held that: - the CCTV footage was concealed by the Appellate Authority for the reasons best known to them. Though the burden lies upon the passenger to establish his defence, the Appellate Authority ought to have considered the said electronic evidence also, before penalising the Petitioner. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the adjudicating authority.
The charges levelled against were dropped, after considering the implication of Section 51 of the SEZ Act and also the electronic evidence of CCTV footage. Further, there is also a statutory compliance provided under Section 128A(3) of the Customs Act, which the Appellate Authority failed to comply with. Hence, the matter deserves reconsideration and re adjudication, as long as the SEZ Act and the Rules and the Acts relied on by the Respondents are inconsistent with each other.
Petition disposed off - matter remanded - opportunity of being heard to be provided to the petitioner.
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2015 (12) TMI 1516
Seeking grant of bail - Consignment of gold seized - No procedure under Chapter XIV of the Act, has been initiated for confiscating the goods - Held that:- the applicant was arrested on 24.02.2015 and was in judicial custody pursuant to the lodgment of FIR by the police department, the Custom Department has arrested the applicant on 29.08.2015 i.e. after more than six months. There might be some investigation during this period, however it is desirable to comment anything about the reasons for not arresting the applicant for considerable long time. The complaint has also been filed on 60th day from his arrest. This also suggests that customs department has sufficient time to investigate the case i.e. from 24.02.2015 to 27.10.2015 i.e. date of filing the complaint before the learned Magistrate. As far as allegations that in past also, the applicant had indulged in similar activities, which is under investigation, that would not be the ground to reject the application, since the authority had sufficient time to complete the investigation. By relying upon the decision rendered by Apex Court in the case of State of Kerala V/s. Raneef [2011 (1) TMI 1396 - SUPREME COURT] and in the case of Sanjay Chandra[2011 (11) TMI 537 - SUPREME COURT], the applicant is behind bar since more than 10 months which is considered as long period and it is equally true that investigation is almost over. Therefore, this is a fit case to exercise the discretion and enlarge the applicant on regular bail and hence the applicant is ordered to be released on regular bail. - Decided in favour of appellant
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2015 (12) TMI 1435
Release of bank guarantee - Petitioner already surrendered its warehousing licence and is currently not holding any of the license - Held that:- The record of the case reveals that in connection with the warehousing activities, three cases came to be instituted against the petitioner which culminated into orders against the petitioner whereby the demand and/or the penalty came to be confirmed. The petitioner challenged the orders either before the first appellate authority or the Tribunal, as the case may be, and against the order passed by the first appellate authority, before the Tribunal. In all the three cases, the Tribunal has granted stay subject to pre-deposit of the amount stipulated in such orders, which the petitioner has already deposited. Therefore, in relation to all the three orders which have been passed against the petitioner, proceedings are pending before the Tribunal and such orders had been stayed. - If the respondents are permitted to retain the bank guarantees, it would amount to negating the stay orders granted by the Tribunal because the amount under the bank guarantee would be in addition to the amount directed by the Tribunal to be deposited by way of predeposit. Moreover, once the licence has been surrendered and no amount is outstanding and payable by the petitioner towards the warehousing licence and the bonds executed by the petitioner have been cancelled, the respondents are not justified in retaining the bank guarantees.
Petitioner has also placed on record a copy of the undertaking given by the petitioner to the respondents assuring the Customs Department that they would discharge any liability that may be finalised or arise against the petitioner and have also sought release of the bank guarantees aggregating to ₹ 10,00,000/-. Thus, the warehousing licence stands surrendered, the warehousing bonds stand cancelled, the demands raised by the orders passed against the petitioner in the three proceedings stand stayed by the Tribunal. Moreover, the petitioner has also given an undertaking to the respondents that it will discharge all liabilities that may be finalised or arise against the petitioner. In these circumstances, in the opinion of this court, the respondents are not justified in withholding the bank guarantees. - Decided in favour of appellant.
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2015 (12) TMI 1434
Writ petition against the order of Tribunal refusing to rectify the error which was apparent on record - Tribunal, which, by an order dated 6.2.2014 partly allowed the appeal by holding that the petitioner is eligible for the benefit of CVD as per Serial No.202A of Notification No.21/2002-Cus dated 1.3.2002. The Tribunal further held that since separate value of 16mm, 20mm, 25mm and 32mm TMT bars was not made available, separate duty cannot be assessed for 16mm TMT bars
Held that:- As can be seen from the impugned order dated 23.6.2014 passed on the rectification of mistake application made by the petitioner, the Tribunal has rejected the application on the ground that in the absence of separate value of 16 mm TMT bars, separate duty cannot be assessed for 16 mm TMT bars. As noticed hereinabove, the learned counsel for the petitioner has clearly demonstrated before the court that the relevant material to establish the value of 16 mm TMT bars was already there on the record in the form of the bill of lading indicating the quantity of goods as well as the commercial invoices indicating the price of the 16 mm TMT bars.
Therefore, the duty of 16mm TMT bars can easily be worked out on the basis of the available record. Under the circumstances, the finding recorded by the Tribunal in the order dated 6.2.2014 as well as in the impugned order dated 23.6.2014 made on the rectification application to the effect that separate value of 16 mm TMT bars was not available, is clearly incorrect and contrary to the record. Under the circumstances, to that extent the finding recorded by the Tribunal is perverse to the record of the case. The impugned order dated 23.6.2014 being contrary to the record of the case, therefore, cannot be sustained. - Decided in favour of assessee.
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2015 (12) TMI 1433
Request for permission to sell an aircraft - Concessional rate of duty - Customs authorities formed a belief that the valuation declared by the petitioner at the time of import was not accurate and further that the petitioner had breached the condition on which the concessional rate of duty was applied - Held that:- Principal duty liability as indicated in the show cause notice is ₹ 8.78 crores. This principal amount of duty may further invite interest and penalties. However, it is not necessary that in every case maximum penalty would be levied. There is also a proposal for confiscation, of course, with the statutory provision of permitting redemption fine in lieu of confiscation. In totality of the facts of the case, we would adopt sum of ₹ 20 crores in all which would safeguard the interest of the revenue. In other words, as long as the petitioner offers full security for such sum, the permission for sale of the aircraft should be granted. - petitioner has already provided the bank guarantee of ₹ 10 crores to the department in addition to bond of ₹ 30 crores. The first condition would therefore be that these guarantees would be kept alive till the disposal of the show cause proceedings. - Petition disposed of.
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2015 (12) TMI 1432
Suspension of the Customs Broker Licence of the Petitioner - Petitioner is under invoicing the imports and thus, is evading payment of customs duty - Forfeiture of security - Bar of limitation - Held that:- Customs Broker Licensing Regulations, 2013 were promulgated in exercise of powers conferred under Sub-Section (2) of Section 146 of the Customs Act,1962. It is only under the regulations, the licence is granted and the regulations also contain various provisions to regulate the affairs of the customs broker including the revocation of the licence. The Regulations contemplates action against the customs broker dehors the provisions under the Customs Act. Therefore, the regulations cannot be treated as sub-ordinate legistlation. Moreover, every implementing authority of any fiscal statute is only performing a public duty. Therefore, it cannot be said that the provision is to be termed as directory just because its adherence is in the nature of performance of a public duty. What is to be considered is the object of the enactment in prescribing a period for the performance of such public duty. - an independent right is issued to the Commissioner to initiate action dehors the enquiry under other Regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited 2000 (11) TMI 144 - HIGH COURT OF JUDICATURE AT MADRAS, but the same has to be in strict compliance with the provisions. The law of limitation is common to both the parties. The provision not only enables the respondent to levy penalty, but also empowers the respondent to revoke the license, which is an extreme step curtailing the right to carry on any trade or profession as guaranteed by the Constitution of India.
Every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word shall in Regulation 11 as mandatory and not directory . Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term shall cannot be termed as directory . It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 08.04.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.01.2014.
Impugned show cause notice dated 13.7.2015 has been issued after 90 days from the date of the suspension order dated 27.3.2015 and the report of the investigating agency dated 17.3.2015 or in other words, from the date of knowledge of the offence. - court is of the view that the impugned show cause notice issued by the respondent is without jurisdiction, as it has been issued beyond the period prescribed in the regulations, which have statutory force and hence, not sustainable. - Decided in favour of Appellant.
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2015 (12) TMI 1431
Restoration of petitioner's courier license - seizure of goods since the goods were smuggled into India through a false declaration and in violation of Foreign Trade Policy, 2009-14 and the Customs Act, 1962 - unauthorized criminal act of an employee outside the purview of his employment - Held that:- Similar courier parcels were smuggled for 85 times for the past several months in the same modus by the Petitioner and that the Petitioner cannot claim to be unaware of the happenings when their employee was manipulating the system and entries made therein for over a period of several months. It is the specific case of the respondents that the Petitioner has not carried out the courier operations with due diligence and not complied with the Regulations under which the Petitioner was issued with the licence and has violated the provisions of the Act
Contentions of the Petitioner cannot be a basis to circumvent the appeal remedy available for the petitioner as per Section 129(A) of the Customs Act, 1962, since the said Section provides an efficacious alternative remedy before the Appellate Tribunal against the impugned order. There is also no justifiable grounds to bypass this appeal remedy. Further the issues pointed out by the Petitioner as well as the Respondents are questions of fact and the allegations that the Petitioner had earlier involved around 85 times and illegally cleared such goods against the Regulations, which have to be established by the Parties by producing records and could be examined by the appellate authority. That apart, in the impugned order itself, it has been clearly stated that any person aggrieved by the order can prefer an appeal to the CESTAT under Section 129A of the Customs Act.
Since the disputed questions cannot be gone into by this Court, leaving it open to the Petitioner to avail the statutory appeal remedy provided under the Act - Decided against Appellant.
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2015 (12) TMI 1430
Suspension of CHA License - Bill of Entries were filed by the Petitioner on behalf of M/s.Shahi Foods, Chennai and M/s.High Regards International, Chennai, declaring the goods as biscuits, juices, confectionery, cheese, sausages and beverages without obtaining authorization and without verifying the antecedents, correctness and identity of their clients and violated the provision of Regulation 13(a), 13(b), 13(d), 13(e) and 13(k) of CHALR 2004 (Regulation 11(a), 11(b), 11(d), 11(e) and 11(k) read with Regulation 18(b) of CBLR 2013) that the said importers mis-declared the value and retain sale price to evade the custom duty and hence, the Petitioner was suspended from working/performing the customs related activities - Held that:- The suspension of CHA licence was made on 19.11.2014, which was not within 15 days from the date of receipt of the report from DRI. On the representation of the Petitioner, the suspension was revoked by order dated 23.12.2014, accepting the delay of one year. However, by notice dated 23.12.2014 under Regulation 20, it was proposed to impose penalty and to forfeit the security, which is also barred by limitation. Despite the same, it is the case of the Respondents that on intelligence, it was found that the Petitioner misdeclared and undervalued the goods and has violated the provisions of the CBLR. - without going into the merits of the case, since the stay granted by this court in the other Writ Petition filed by the Petitioner is still in force and the subject matter of the said Writ Petition is also to be considered on merits and the application for renewal is also pending, pending consideration of renewal application, the Respondents are directed to permit the Petitioner to continue his business operations - Petition disposed of.
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2015 (12) TMI 1429
Rejection of the renewal application of the Petitioner to renew the Customs Broker Licence - Denial on the ground of partnership dispute - Held that:- When the Petitioner applied for renewal on 8.9.2014, it was not processed by the Respondent Department on the grievance made by one of the erstwhile partners Suresh Kumar Sain. Thereafter, in order to find out the genuineness of the grievance and enquire into the matter, the erstwhile partners, P.Manikandan, Amit Manchanda, Suresh Kumar Sain, Pradeep Kumar Sain and Balachandran and the Manging Partner were summoned and their statements were recorded on 29.12.2014, 30.12.2014 and 9.1.2015. All the erstwhile partners, in their respective statements, have categorically stated that they are not aware of the reconstituted partnership deed dated 2.4.2012 and the signatures contained in the said reconstituted partnership deed and their resignation letters dated 31.3.2012 were forged. Hence, on the suspicion that their signatures were forged, the said partnership deed dated 2.4.2012, the resignation letters dated 31.3.2012 and the statements were sent to the Forensic Department for expert opinion.
After analysis, the Forensic Department submitted a report dated 26.3.2015, opining that the signatures in question have been imitated and differ significantly from the standard in the handwriting characteristics and there was forgery of signatures. On the other hand, the Petitioner failed to disprove the forgery and the misconduct, by producing valid evidence. Therefore, ultimately it was held that there was no consensus among the partners of the Petitioner firm and the performance or act of the Petitioner was rightly held to be not satisfactory in terms of Regulation 9(2), inasmuch as the Petitioner contravened the said regulation, by submitting forged documents, which was proved by the forensic report and that claiming change in the constitution by forgery document would amount to misconduct and accordingly, the renewal application of the Petitioner was rejected and there is no illegality or infirmity in the impugned order. - Decided against Appellant.
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2015 (12) TMI 1390
Goods imported against advance authorization scheme - claim of exemption towards (1) whole of the Customs Duty leviable thereon; (2) whole of the Additional Duty under section 3 of the CTA, 1975; (3) Anti- Dumping Duty under section 9A of the CTA, 1975; and (4) Safeguard Duty under section 8B of the CTA, 1975 subject to the terms and conditions set out in the said Notification. - Notification No.96/2009-Cus. dated 11th September, 2009 - Held that:- in the Foreign Trade Policy 2015-2020, the Government for the first time in its Policy decided to also exempt the Transitional Product Specific Safeguard Duty (imposed under section 8C), in addition to Safeguard Duty (imposed under section 8B). This Transitional Product Specific Safeguard Duty is the duty imposed under section 8C of the CTA, 1975 for imports from the People's Republic of China.
Up until 2015 no exemption was ever granted from payment of Safeguard Duty levied under section 8C of the CTA, 1975. Notification No.96/2009-Cus. dated 11th September, 2009 only granted exemption from payment of Safeguard Duty imposed under section 8B. This being the case, we, in our jurisdiction under Article 226 of the Constitution of India, cannot direct the Government to grant an exemption that was never granted earlier. No person has a vested right in the grant of an exemption. An exemption by its very nature is a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption under a statutory provision in a taxing statute is by its nature a concession granted by the Government so that the beneficiaries of such a concession are not required to pay tax or duty they were otherwise liable to pay under such statute. The recipient of the concession has no legally enforceable right against the Government to grant of such a concession, save and except to enjoy the benefits thereof during the period of its grant.
Even if the Petitioner is called upon to pay the Safeguard Duty levied under section 8C on Carbon Black imported by it from the People s Republic of China, no prejudice would be caused to the Petitioner because the Petitioner could always claim a drawback of the same on establishing that the very same product imported on payment of Safeguard Duty was ultimately used in the manufacture of final products that were exported out of India. In fact, to be fair to the Respondents, this is also the stand taken by them in their affidavit in reply to this Writ Petition. We therefore do not think that in these circumstances, this is a fit case where we ought to exercise our equitable, extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India in favour of the Petitioner.
Provisions of sections 8B and 8C of the CTA, 1975 operate in two different fields. The Safeguard Duty imposed under section 8B is on a specific article that may be imported from any country. On the other hand, the Transitional Product Specific Safeguard Duty under section 8C is not only article specific but also country specific. In other words, the Safeguard Duty imposed under section 8C is on a particular article specifically imported only from the People s Republic of China. There is therefore a clear distinction between the Safeguard Duty imposed under section 8B and under section 8C. The two sections operate in a totally different fields and are a category by themselves. It is not as if by granting exemption from payment of Safeguard Duty imposed under section 8B and denying the exemption from payment of Transitional Product Specific Safeguard Duty imposed under section 8C, the Government has created any sub-classification excluding one sub-category even when both the sub-categories are of same genus. The Safeguard Duty imposed under section 8B and 8C fall in separate categories by themselves and can never be classified as sub-categories of the same genus.
It is not as if the payment of Transitional Product Specific Safeguard Duty imposed under Section 8C was exempted under the Notification No.96/2009-Cus. dated 11st September, 2009 and the same was thereafter retracted without any justification. As stated earlier, this exemption was never granted by the Government. In fact, it is the case of the Petitioner that by not granting this exemption the Government has committed an error or mistake. A party can never have a vested right in claiming an exemption that was never granted in the first place as held by the Supreme Court in the case of J. K. Udyog. ( 2004 (9) TMI 381 - SUPREME COURT OF INDIA) In this view of the matter, we find that the reliance placed by Mr. Sridharan on the decision of the Supreme Court in the Indian Express Newspaper s case (1984 (12) TMI 65 - SUPREME Court) is of no assistance to the Petitioner. - Supreme Court held that there must be rational basis of discrimination between one commodity and another for the purpose of imposing or not imposing the tax. As stated earlier, in the present case, any Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975 was never exempted under Notification No.96/2009- Cus. dated 11th September, 2009. It is not as if the exemption was initially granted and was thereafter withdrawn without any justification. In the case before us, the Petitioner seeks a mandamus, which in effect, would be to direct the Government to grant an exemption which was never granted earlier. In these facts, we find that the judgment of the Supreme Court in the case of Deepak Fertilizers (2007 (5) TMI 323 - SUPREME COURT OF INDIA) has no application to the facts of the present case and the reliance placed thereon is also wholly misplaced.
It was only in the Foreign Trade Policy 2015-2020 that Transitional Product Specific Safeguard Duty imposed under section 8C of CTA, 1975 was sought to be exempted so long as the goods imported were used in the manufacture of final products that were exported out of India. Keeping in tune with this Foreign Trade Policy, a Notification was issued on 1st April, 2015 whereby apart from the Safeguard Duty imposed under section 8B, Transitional Product Specific Safeguard Duty imposed under section 8C was also exempted. It is in this light that we have come to the conclusion that there was no conflict between the Foreign Trade Policies framed by the Government of India from time to time and the corresponding Notifications issued to implement the said Policies. - There is no doubt that the exercise of power, whether legislative or administrative, would be set aside if there is a manifest error in exercise of such power or the exercise of the power is manifestly arbitrary. We do not find any such case before us. In fact, in the present case, the Petitioner in effect wants us to direct the Government to grant an exemption which was never granted in the first place until it framed the Foreign Trade Policy 2015-2020. - no merit in this Writ Petition - Decided against assessee.
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2015 (12) TMI 1303
Validity of Ex-parte decision of the tribunal to dismiss the appeal - CVD was paid utilizing DEPB Scrips - imported items were capital goods or not - Held that:- In a matter of this nature, where an ex parte decision has been rendered by the Tribunal, the prolongation of a decision on the same is not beneficial to either of the parties. After all, the appellant seeks an opportunity to appear before the Tribunal. It is not recorded in the order of the Tribunal that the appellant herein was habitually absented themselves before the Tribunal. In para 2 of the impugned order, it is just stated that the matter was adjourned on earlier occasions and nobody turned up on behalf of the respondent(assessee). But, it is seen from the tabular column given by the appellant herein that after 3rd September 2013, the date on which the adjournment was sought for by the appellant, the case was taken on two occasions viz., on 24.12.2013 and 25.9.2014 and the Tribunal rendered the decision. Therefore, we are of the considered view that one opportunity can be granted to the appellant, especially, in view of the fact that the benefit granted to the appellant by the Commissioner (Appeals) was confined only to one of the scrips, that was issued prior to the public notice issued by the DGFT. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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2015 (12) TMI 1302
Demand of differential duty - Release of goods - Held that:- Following the precedent of this court, there shall be a direction that the differential duty is to be assessed by the authorities and on such assessment and intimation, the same shall be paid by the petitioner along with actual duty payable. On such payment, the goods shall be released forthwith leaving the other issues open to the respondents to proceed in accordance with law. The assessment of differential duty shall be completed by the respondent concerned within a period of one week - Petition disposed of.
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2015 (12) TMI 1301
Detention of goods - Smuggling of goods - Misdeclaration - Confiscation - Imposition of redemption fine - Held that:- Admittedly, the representation of the petitioner followed by the reminders have not been considered. The respondents are obligatory under law to take a decision for allowing re-export of the goods on payment of aforesaid fine and penalty. Not having done so, has caused serious prejudice and hardship to the petitioner, despite the order of the first respondent, allowing redemption of the goods under seizure for confiscation for re-export. The petitioner has not received any notice from any higher forum than the first respondent, by which, the order in adjudication passed by the first respondent is under challenge. In the absence of any appeal against the said order of the first respondent, there is no legal impediment for the respondents to act in terms of the order in adjudication dated 14.7.2010 and cause release of the confiscated goods on payment fine and penalty for the purpose of re-export. - There is no denial with regard to the availability of the goods by the customs authorities even after a period of 5 years. The note issued by the Superintendent of Customs dated 21.09.2015 supports the claim of the petitioner. The inaction on the part of the authority is not explained properly in the counter affidavit. In this view also, the continued detention and non-release of the goods at the hands of the respondents cannot be sustained or countenanced - Assessee directed to pay redemption fine - Petition disposed of.
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