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2023 (1) TMI 909
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 751
Scope of the Advance Ruling - Whether the matter (case) was pending - Rejection of representations made by DRI for treating the CAAR’s order dated 05.10.2021 as void ab initio - fraud and misrepresentation of facts - Section 28K(1) of the Customs Act - HELD THAT:- The proviso to Sub-Section (2) of 28-I of the Customs Act proscribes the CAAR from allowing any application filed for advance ruling, where question raised in the application is pending in the applicant’s case before “any officer of customs, the Appellate Tribunal or any Court” or if the said question has already been decided by the Appellate Tribunal or any Court. In the present case, DRI had not issued any pre-consultation notice or show cause notice which would indicate that the question regarding classification of any goods was pending before DRI. Thus, even if it is accepted that an officer of DRI is an officer of Customs, it cannot be accepted that the question raised by the respondent in its application under Section 28H of the Customs Act was pending ‘in the applicant’s case’ before DRI. In order for a question to be considered as pending before any officer of customs, it would be necessary for the question to be raised in any notice enabling the assessee to respond to the said issue.
Merely because an officer of customs contemplates that a question may arise, does not mean that the question is pending consideration. For a question to be stated to be pending, the concerned officer must formally set forth the same for the assessee to contest the same. Any preliminary exercise done by an officer of customs, to consider whether any question for consideration arises, would not preclude the CAAR from giving its advance ruling on that question. The possibility that a question would arise for consideration of a customs officer, appellate tribunal or court, is not a ground contemplated under Clause (a) of the proviso to Section 28-I(2) of the Customs Act. Clearly, a distinction must be made between that question pending consideration and a possibility of a question arising consideration.
There are no infirmity with the impugned order rejecting the representations made by DRI - appeal dismissed.
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2023 (1) TMI 699
Seeking release of imported consignment - payment of demurrage detention and any other charges - It is contended on behalf of the petitioner that the consignment comprising of “Knotted Woollen Carpets” was imported by the petitioners from the United States of America on 10.08.2021 - HELD THAT:- It is not in dispute that the seizure order now stands passed on 09.02.2022. As pointed out by the parties, the request for provisional release of the consignment was also considered and an order dated 20.09.2022, has already been passed, thereby, provisionally releasing the consignment. Whether the goods are required to be confiscated pursuant to the order of seizure or any other action required to be taken will be decided on adjudication of the Show Cause Notice.
Seeking direction against the respondent to either pay or waive the payment of demurrage during the time the goods were put on hold - HELD THAT:- The respondent relied upon the judgment passed by the Hon’ble Apex Court in MUMBAI PORT TRUST VERSUS M/S. SHRI LAKSHMI STEELS AND ORS. ETC. [2017 (7) TMI 977 - SUPREME COURT] which, in somewhat similar circumstances, held that the High Court could not in writ proceedings have directed DRI/Customs to pay the detention charges to the shipping line since these were to be paid on the basis of a contract between the respondent importers and the shipping line.
In the present case also, prima facie, the petitioner has not responded to the various letters and summons issued by the respondent. Therefore, it cannot be said on the basis of the record available in the present proceedings that the respondents were solely responsible for the delay caused. Therefore, no orders can be passed directing the concerned respondent to pay the demurrage charges, as prayed.
Petition disposed off.
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2023 (1) TMI 698
Seeking grant of customs broker License - increase in the cut off marks after the examination process had commenced - HELD THAT:- Similar issues related to the same examination were raised in three writ petitions wherein the ld. Single Judge of this Court had, by a detailed order in RAJESH KUMAR VERSUS UNION OF INDIA & ORS, PAWAN KUMAR VERSUS UNION OF INDIA & ORS AND MS. PRIYANKA RAI VERSUS DIRECTORATE GENERAL OF PERFORMANCE MANAGEMENT AND ORS. [2022 (3) TMI 516 - DELHI HIGH COURT], held that the cut off marks could not have been changed after the examination notice was issued.
In view of the fact that the identical issue has been decided by this Court in favour of the Petitioner it is directed that the Petitioner be issued the customs broker license, subject to verifying that the Petitioner has scored 50% and above in the oral examination. The verification process shall be conducted within two weeks and the license shall be issued within four weeks.
Petition allowed.
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2023 (1) TMI 697
Suspension of petitioner’s Importer Exporter Code - violation of Section 8 of the Foreign Trade (Development & Regulation) Act, 1992 - seeking grant of reasonable opportunity to make a representation in writing before any such action (suspension of license) is taken - HELD THAT:- Learned counsel for the DGFT states that after the petitioner’s IEC has been suspended, DGFT had issued show cause notice dated 15.11.2022, clearly setting out the grounds on which actions were proposed against the petitioner - A perusal of the said notice indicates that certain grounds for taking action against the petitioner have been set out. In terms of the said show cause notice, the petitioner has been called upon to show cause as to why penal action should not be taken against the petitioner under Section 13 & 14 for violation of Section 8 and 11 of the FTDR Act.
This Court considers it apposite to set aside the order dated 31.08.2022 and direct that the petitioner’s IEC be restored forthwith - Petition allowed.
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2023 (1) TMI 696
Dismissal of appeal - alleged defect, for non-compliance of mandatory pre-deposit in terms of Section 129E of the Customs Act - seeking grant of leave to maintain the appeals against the order of CESTAT and allow the same by quashing of the show cause notices - Levy of penalty under Section 114 of the Customs Act - HELD THAT:- As the appellants herein have failed to fulfill the pre-condition of 7.5% of the demanded duty/penalty as per the order of the Commissioner of Customs, NOIDA dated 18.10.2018, this had to necessarily result in dismissal of their appeals by the CESTAT. There was no discretion with the tribunal to condone the pre-condition of mandatory deposits on the ground of undue hardship. As far as lack of jurisdiction to issue show cause notice is concerned, the said issue could have been considered once the appellants were able to maintain their appeals by making mandatory pre-deposits before the CESTAT. The appeals before us challenging the orders of the CESTAT dated 29.8.2009 in dismissing three appeals as not maintainable on account of defect of mandatory pre-deposit under Section 129E, therefore, deserve dismissal.
Jurisdiction - whether any substantial question of law arises for determination in the instant appeal? - HELD THAT:- In view of the admitted fact that the confiscated gold jewellery from the factory and residential premises of M/s Ajit Exports and factory premises of M/s Vee Ess Jewellers two SEZ units were exported by M/s Deepu Jewellers and M/s Samrah Gold Factory, the Managing Director and the Director of whom was Sri Kishore Ratilal Dhakan at the relevant point of time, we are required to examine as to whether the penalty imposed upon the appellants herein under Sections 112, 114, 114AA is without jurisdiction - A conjoint reading of Sections 112 and 114 of the Customs Act which deal with penalty for ''improper import' and ''improper export' or attempt to export goods improperly clearly shows that the penalty can be imposed on "any person", not only such person who does or omits to do any act in relation to any goods liable to confiscation under Section 111 or 113, but would also include such person who abets the doing or omission of such an act. The penalty, thus, can be imposed under Section 112 or Section 114 upon not only the importer or exporter; respectively, but also upon ''any person' who commits an act of abetment, i.e. to help or aid exporters or importer in such wrong doing.
In the instant case, the appellants companies incorporated in Sharjah and Dubai which were limited liability companies, 49% of share of which were held by Indian Nationals namely its Managing Director/Director Sri Kishore Ratilal Dhakan and Deepak Ratilal Dhakan were doing illegal business in India through two SEZ units namely M/s Ajit Exports and M/s Vee Ess Jewellers. Sri Kishore Ratilal Dhakan was also the share holder of M/s Vee Ess Jewellers. The permission to import gold jewellery without Customs duty and Cess was with the specific condition that the old/outdated gold jewellery imported to carry out process of assembling, refinishing, plating and remaking would be sent back to the exporters the appellants herein - the offence of improper importation and attempt to improper export by diversion of gold jewellery in the local market under mis-declaration from SEZ units had been committed within the territorial limits of India as defined in Section 2(27) of the Customs Act, 1962, the issue of jurisdiction of the Customs Authorities in India to impose penalty upon the Appellants does not arise.
The appellants herein have submitted themselves to the jurisdiction of the Customs Act upon the notices issued to them under Section 108 of the said Act and filed appeals against the order of the adjudicating authority under Section 129A(a) of the Customs Act, 1962, without complying with the mandatory condition of pre-deposit under Section 129E(ii) of the Customs Act, 1962, the appeals filed by them have been rightly dismissed as non-maintainable for non-fulfillment of mandatory condition of pre-deposit.
No infirmity could be found in the decisions of the Appellate Tribunal in dismissing the appeals as not maintainable - Appeal dismissed.
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2023 (1) TMI 695
Revocation of petitioner’s Customs Broker License - Period of limitation - whether time prescribed under the said Regulation for completion of the proceedings and passing of the final order within 90 days from the date of receipt of inquiry report is directory or mandatory - jurisdiction of the authority under the customs and Central Excise Duty Drawback Rules, 2017 relating to Duty Drawback on export transactions - ELD THAT:- Petitioner submits that adjudicating authority has usurped the jurisdiction of the authority under the customs and Central Excise Duty Drawback Rules, 2017 relating to Duty Drawback on export transactions - Such findings have been noted in the disagreement note and subsequently in the impugned order relating to Bank Realization Certificate (BRC), a certificate issued by a Bank to an exporter certifying realization of export proceeds.
The Inquiry Officer in his Inquiry Report under Regulation 17(5) of the said regulation has specifically found that the allegations of violation of Regulation 10(m), (n) and (q) under CBLR, 2018 against the petitioner as “not proved” except allegation under Regulation 10(d) was partially proved. It also appears from record that the order of suspension of petitioner’s license though it was set aside by the order of the Tribunal on 19th August, 2022 but before such order was passed by the Tribunal the respondent authority passed the impugned order of revocation of petitioner’s license.
The issues involved in this Writ Petition is a pure question of law with regard to interpretation of Regulation 17(7) of the CBLR, 2018 and as to whether time prescribed under the said Regulation for completion of the proceedings and passing of the final order within 90 days from the date of receipt of inquiry report is directory or mandatory and this Writ Petition on this legal issue should be heard on affidavits by the respondents.
The imagined order of revocation of petitioner’s license dated 11th July, 2022 shall remain stayed till 30th April, 2023 or until further order, whichever is earlier.
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2023 (1) TMI 645
Maintainability of petition - availability of alternative remedy of appeal - Smuggling of Gold - opportunity of personal hearing was provided or not - HELD THAT:- This writ Court after careful consideration in this matter is of the considered view that the captioned writ petition does not pass muster in the Admission Board and it deserves to be dismissed - this Court is of the considered view that it is for the Appellate Authority to examine the same if an appeal is preferred as the records would speak for itself. In the case on hand, several statements have been recorded including that of the writ petitioner and therefore, as the dates have been given with specificity seen in the light of a letter dated 28.07.2022 written by counsel for the writ petitioner to which the attention of this Court is drawn, this Court finds that personal hearing is a matter which turns on factual disputation and the same can be gone into by the Appellate Authority if the writ petitioner chooses to avail the alternate remedy of appeal. This answers NJP facet of the matter.
If the writ petitioner chooses to avail alternate remedy by filing appeal to the Commissioner of Customs (appeals) under Section 128 of said Act, the Appellate Authority shall consider the appeal (subject of course to pre-deposit and limitation) on its own merits and in accordance with law uninfluenced / untrammeled by the observations made in this order as the observations made in this order is for the limited purpose of disposal of the captioned writ petition.
The sequitur is captioned Writ Petition fails and the same is dismissed.
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2023 (1) TMI 601
Denial of rightful claim of refund of service tax being the Petitioner is an exporter coming under the Customs Act on the ground of hyper technicality when export have taken place actually - denial of statutory right of the Petitioner for mere procedural lapse - denial of just claim of the Petitioner in deviation of doctrine of precedent which is a fundamental constraint on judicial decision-making.
HELD THAT:- Under Section 2(20) of Customs Act the term ‘exporter’ would include any owner or any person holding himself out to be the exporter. In other words, the person holding out to be the exporter (in this case M/s. Liberty and M/s. RIPL) need not be the exporter. It could well include an entity like the present Assessee which in fact entered into the agreement pursuant to which the export took place.
Added to this fact is the finding of the Commissioner (Appeals), that for the limited purposes of facilitating the export, separate agreements were entered into by the Appellant with M/s. Liberty and M/s. RIPL whose limited role was to file the shipping bills for the purposes of export in their names. It has been being factually further found by the Commissioner (Appeals) that the entire cost of effecting the export was borne by the Appellant. It ran the risk of penalties if the goods were not exported or if there was delay in export or the goods were below the specifications. Importantly “the LC had been opened with the Bank by the Appellant”. The invoices of sale of goods was raised by the Appellant-Assessee on the buyers and it is the Assessee which had remittances in its own name pursuant to the exports made.
All the above factors go to show that it was in fact the Assessee which was the real exporter of the goods for the purpose of Section 2(20) of the Act - the Court is unable to concur with the view of the Tribunal that in the present case the Assessee was not entitled to the refunds since it was not the exporter.
The questions framed are answered in favour of the Assessee and against the Department.
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2023 (1) TMI 600
Determination of criteria for allocation of imported Raw Pet Coke - allocation of such imported RPC among various entities engaged in the business of using the imported RPC to produce Calcine Pet Coke - Appellant is aggrieved by the alleged excess allocation of RPC to Respondent No. 3, which the Appellant contends, has been made in excess of stipulated parameters - whether there was any actual change in the public notices on the basis of which the allocation was made? - HELD THAT:- Under the first Public Notice dated 26.11.2018, the importer had to apply for the import license to the DGFT along with the capacity of the unit and a valid consent certificate from the SPCB/PCC in the name of user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. It is pertinent to mention here that when Respondent No.3 made an attempt to seek for increase in their import on the basis of their increase in production capacity, the same was rejected by the competent authority. This Public Notice has to be read in consonance with the Judgment of the Apex Court and cannot be permitted to do violence with the Orders of the Apex Court in M.C. MEHTA VERSUS UNION OF INDIA & ORS. [2018 (11) TMI 1352 - SUPREME COURT].
On 22.03.2019, as per the second Public Notice, the eligible quantity desiring to avail quota of the total import of raw pet coke were to apply for the import license along with their capacity of the unit and a valid consent certificate from SPCB/PCC in the name of user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. This notice is more or less identical to the first Public Notice dated 22.11.2018 - The Appellant attempted to move the DGFT for the increase in their quota based on the increase in their production capacity which was rejected by the DGFT by Order dated 22.04.2019 on the ground that any change in the quota would be violative of the order of the Apex Court.
The reasoning of the learned Single Judge that the public notice dated 17.04.2020 makes a distinction between the certificate in the first part and the consent to operate in the second part and if both, the certificate and the consent to operate, were of the same document then there was no necessity to mention both in two parts of the public notice and, therefore, the certificate, granted by the Andhra Pradesh Pollution Control Board, stating that the Respondent No.3 had, as on 09.10.2018, the installed capacity for manufacture of calcined petroleum coke of 3.3 Million Metric Tonnes is reasonable, is contrary to the entire scheme as envisaged by the Apex Court - The certificate dated 04.05.2020 issued by the State Pollution Control Board only certifies that the installed capacity of Respondent No.3, as on 09.10.2018, for manufacture of calcined petroleum coke, was 3.3 Million Metric Tonnes per annum and is obviously immaterial. Even though the public notice dated 17.04.2020 is not under challenge but this Court cannot be a party to any interpretation that will have the effect of upsetting the rationale of the Apex Court in fixing 1.4 Million Metric Tonnes of raw petroleum coke which, as stated earlier, was based on the permissible capacity as on 09.10.2018.
In case, now, the production capacity has increased and its proportionate share has been increased, the DGFT has to bring this fact to the knowledge of the Apex Court and only the Apex Court can alter the figures. The learned Single Judge has, therefore, erred in coming to a conclusion that inter se allocation could have been changed by the DGFT more so because the DGFT has in its previous Minutes of Meetings rejected the claim of various applicants including Respondent No.3 for increasing their share of allocation as per their production capacities. Even though the capacity may have been increased by the order dated 29.11.2018, the permission to produce more than 2 Lakh Metric Tonne was not there on 09.10.2018, which is evident from the order dated 22.04.2017, which restricted Respondent No.3 from producing more than 2 Lakh Metric Tonnes of calcine pet coke.
The Respondents are directed to re-draw the allocation of Raw Petroleum Coke to the various calciners - Application allowed.
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2023 (1) TMI 582
Maintainability of petition - availability of alternative remedy - levy of penalty u/s 114 (iii) of the Customs Act, 1962 - appealable order under Section 128 of Customs Act, 1962 or not - HELD THAT:- In Hameed Kunju vs. Nizam [2017 (7) TMI 1414 - SUPREME COURT] the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others [2016 (3) TMI 1435 - SUPREME COURT] it is held that when there statutory appeal is provided, then the said remedy has to be availed.
Looking to the fact of availability of an efficatious alternative remedy, it is not found proper to entertain these petitions - petition dismissed.
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2023 (1) TMI 558
Maintainability of petition - availability of alternative remedy - seeking to quash levy of penalty under Section 114 (iii) of the Customs Act, 1962 - appealable under Section 128 of Customs Act, 1962 - HELD THAT:- In the present case, personal hearing was not granted to the petitioner before passing the impugned order, even the authority without invoking Section 113 of the Customs Act, went-on to pass order under Section 114 of the Customs Act. The value of goods was not assessed or determined before passing the impugned order - In such a situation, the order passed in W.P. No.11973/2022 and connected cases are not applicable to the facts and circumstances of the present cases. The writ petitions could not be dismissed on the ground of alternative remedy.
So far as delay in deciding the issue is concerned, sufficient reasons have been assigned for the same.
Learned counsel for the respondents relied on the judgment of Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others [2014 (9) TMI 585 - SUPREME COURT] in which it is held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam [2017 (7) TMI 1414 - SUPREME COURT] the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal.
In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others [2016 (3) TMI 1435 - SUPREME COURT] it is held that when there statutory appeal is provided, then the said remedy has to be availed.
Looking to the fact of availability of an efficacious alternative remedy, it is not deemed proper to entertain these petitions - petition dismissed.
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2023 (1) TMI 557
Seeking provisional release of seized goods - import of consignment of mobile parts - difference in the description and quantity of consignment - HELD THAT:- The issue is decided in the case of M/S. NORTH AND SOUTH TRADING COMPANY, M/S. ALAMS MOBILES VERSUS THE ADDITIONAL COMMISSIONER OF CUSTOMS (GR. 5A) , THE DEPUTY COMMISSIONER OF CUSTOMS (GR. 5A) [2023 (1) TMI 396 - MADRAS HIGH COURT] where it was held that On instructions learned Solicitor goes on to submit that Additional Commissioner of Customs, Air Cargo Complex, Meenambakkam, Chennai-600 027 is the 'Adjudicating Authority' for the purposes of Section 110A read with Section 2 (1) of said Act, he would pass orders afresh qua provisional release sought for by the writ petitioners under Section 110A and the orders would be served under due acknowledgement in an acceptable mode to writ petitioners within two working days from today i.e., on or before 06.01.2023.
Petition is disposed off with similar order as mentioned above.
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2023 (1) TMI 513
Levy of penalty - liability of the "Carrier" - short-landing of goods loaded in a conveyance for importation into India - HELD THAT:- As per Section 116 of the Customs Act, the person in charge of the conveyance is responsible for short-landing. This has to be read with Section 148, which deals with the liability of an agent appointed by the person in charge of a conveyance. It lays down that where the Act requires anything to be done by the person in charge of a conveyance, it may be done on his behalf by his agent. An agent appointed by the person in charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person in charge, and is accepted as such by that officer, shall be liable for the fulfillment in respect of the matter in question of all obligations imposed on such person in charge including penalties and confiscations which may be incurred.
The Petitioner in response to the show cause notice has taken this defence and had even given the details of the slot agents M/s. Liberty Marines Syndicate Pvt. Ltd., Globe Link W.W. India Pvt. Ltd. and M/s. Schenker India Ltd. These slot agents were directed to remain present for the hearing before the Assistant Commissioner, and the Assistant Commissioner (Customs) had given them the opportunity and heard the slot agents as well. Thereafter, the Commissioner (Customs) passed an order wherein there was no bifurcation of liability though the order was sent to the Petitioner and these three slot agents. It is the Petitioner who took up the challenge to the order, as according to the Petitioner, since the Petitioner is a reputed firm, it did not want the stigma of the order of penalty. The factual aspect as to the role of enquiry thereafter was not undertaken, and by the order in Appeal and the Revisional orders, the Order-in-Original was confirmed.
Prima facie there appears to be a practice of holding an enquiry to ascertain whether it is the steamer agent who has filed the IGM should be held liable for the penalty in the case of short-landing or the liability should be fixed on the slot agent. There are no reason on record why this course of action is adopted in this case when the Petitioner has been consistently demanding the same. Thus, the appropriate course of action would be to set aside the impugned order and restore the Revision.
The impugned order dated 9 May 2012 passed by the Joint Secretary, Revisional Authority, is quashed and set aside, and the revision filed by the Petitioner is restored to the file.
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2023 (1) TMI 396
Seeking provisional release of goods - import of consignment of mobile parts - difference in the description and quantity of consignment - HELD THAT:- On instructions learned Solicitor goes on to submit that Additional Commissioner of Customs, Air Cargo Complex, Meenambakkam, Chennai-600 027 is the 'Adjudicating Authority' for the purposes of Section 110A read with Section 2 (1) of said Act, he would pass orders afresh qua provisional release sought for by the writ petitioners under Section 110A and the orders would be served under due acknowledgement in an acceptable mode to writ petitioners within two working days from today i.e., on or before 06.01.2023. This submission is also recorded.
Though obvious it is made clear that this Court has not expressed any view or opinion on the merits of the matter and as regards orders to be made by aforementioned officer i.e., 'Adjudicating Authority', all rights and contentions of both sides including the prayers made in the captioned writ petitions are preserved.
Petition disposed off.
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2023 (1) TMI 310
Seeking release of the consignment - sale of goods after import - seeking cancellation of the previous bill of entry filed with the customs, and permit the Petitioner to file a new bill of entry as per new consignee - levy of demurrage charges - HELD THAT:- The situation in the present case is that though the out-of-charge process was undertaken by the importer way back in August, 2022, the said importer has not paid the customs duty and taken clearance of the goods. In effect therefore he has abandoned the goods. The importer has also not paid the detention/demurrage charges and till date the goods are lying with the customs authority. The Petitioner has already received the original bill of entry and other documents from the Bank, which would therefore show that the title of the goods has, in fact, passed to the Petitioner.
A perusal of the judgment in Agrim Sampada [2004 (1) TMI 86 - HIGH COURT OF DELHI] clearly shows that the original importer in the said case, who had to make payment on cash against delivery basis, had abandoned the same and under such circumstances, the Court had held that the party similarly situated as the Petitioner is entitled to present the original bill of entry to the customs authority, upon which the goods have to be cleared.
The issue of payment of demurrage has been considered by several decisions of the Supreme Court and of this Court. On the question of demurrage, the Supreme Court in INTERNATIONAL AIRPORTS AUTHORITY VERSUS GRAND SLAM INTERNATIONAL OF INDIA [1995 (2) TMI 70 - SUPREME COURT], held that the demurrage would be liable to be charged even if there was fault on the part of the customs authority.
Whether the demurrage would be liable to be paid by the Petitioner insofar as the customs duty and the interest? - HELD THAT:- These circumstances would clearly show that until December, 2022, the abandonment could not have been concluded by the Customs authorities, at the importer's instance as the out-of-process charge had already been done. Therefore, the customs authorities could not have presumed change in ownership till December 2022. If the goods are not released to the Petitioner, the authorities would follow the procedure prescribed in law and recover the demurrage which they are obviously entitled to recover. However, the Petitioner herein is seeking release of goods due to change in ownership of goods on the strength of the original documents having been released in its favour and the Importer having not cleared the goods. The short question that arises is whether, the Petitioner can claim that it is not liable to pay any demurrage.
The Petitioner shall pay the customs duty and interest - Insofar as the detention/demurrage charges are concerned, since there is no explanation for the delay between September 2022 to December, 2022 and the first representation itself was made on 3rd December, 2022, the Petitioner would be liable to pay 50% of the detention/demurrage charges payable till 3rd December, 2022 as also demurrage charges for the period from 3rd December, 2022 till date - petition disposed off.
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2023 (1) TMI 309
Smuggling - Gold Bars - proceedings initiated against the Petitioner under Section 135 of the Customs Act - HELD THAT:- When the case was taken up for hearing, the learned Counsel for the Petitioner seeks indulgence of this Court to call for remarks from the learned Judicial Magistrate No.I, Alandur regarding the pendency of the case in R.R.No.27 of 2014 where the criminal case is said to be pending against the Petitioner. Therefore, the Registry was directed to call for remarks from the learned Judicial Magistrate No.I Alandur regarding the pendency of the case in R.R.No.27 of 2014 in respect of the Petitioner herein/A2. Accordingly, remarks were received from the learned Judicial Magistrate No.1, Alandur stating that since in the year 2019, Special Court for Exclusive Trial of Customs Act was constituted, the case in R.R.No.27/2014 was transferred to the file of the learned Judicial Magistrate, Special Court for Exclusive Trial of Customs Act, Alandur. In pursuance of the same, by order dated 06.10.2022, the Registry was directed to call for remarks from the learned Judicial Magistrate, Special Court for Exclusive Trial of Customs Act Cases, Alandur regarding the stage of the case relating to R.R.No.27/2014 in respect of the Petitioner herein/A2 in F.No.DRI/CZU/VIII/48/ENQ-1/INT44/2014 on the file of the Respondent, by e-mail on or before 13.10.2022.
Thus, it is evident that even on 17.04.2021, for not taking steps by the complainant to file the complaint, the complaint itself was closed. Therefore, nothing survives for adjudication by this Court. When the complaint itself is not pending, the challenge made by the Petitioner to the remand report had to be allowed.
The Criminal Original Petition is allowed.
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2023 (1) TMI 156
Refund of amount with interest from the date of levy till final payment at the rate of 15% per annum - rejection of refund claim of the petitioners in the remand proceedings on the ground that the claim of the petitioners is not maintainable as the petitioners did not challenge the assessment order under three Bills of Entry and in absence of challenge to the assessment orders by which Anti Dumping Duty was levied - HELD THAT:- It appears that the petitioners paid the Anti Dumping Duty as per the directions of the respondent authorities to clear the goods imported on 21.05.2015. Admittedly on that date, Notification No.15/2014 dated 11.4.2014 levying Anti Dumping Duty for a period of six months was not applicable. The contention raised on behalf of the respondents that Notification No.21/2015 dated 22.5.2015 is issued with effect from 11.04.2014 is not tenable in law in view of decision of the Apex Court in case of G.M. Exports [2015 (9) TMI 1162 - SUPREME COURT], wherein the Apex Court decided the question of law as to whether Anti Dumping Duty imposed with respect to imports made during the period between the expiry of the provisional Anti Dumping Duty and the imposition of the final Anti Dumping Duty is legal and valid or not and while deciding such a question of law.
As the respondent authority has not carried out the directions issued by the appellate authority and has tried to justify the order which is set aside by filing the affidavit in reply on merits in this proceeding, it would be a futile exercise to direct the respondent n.2 for passing the order as per the directions of the appellate authority - the assessment orders which are in form of bill of entries filed by the petitioners are not required to be modified or reassessed as the same are filed without inclusion of levy of anti dumping duty. The petitioners were compelled to pay such duty only after filling bill of entries so as to release the goods.
The respondent authorities are directed to refund amount of Rs.23,62,796.00 with interest at the rate of 6% per annum from the date of levy till final payment within eight weeks from the date of receipt of copy of this order - Petition allowed.
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2023 (1) TMI 115
Levy of duty on expiry of warehoused goods - Whether the tribunal was justified in holding that, even though the duty was confirmed by adjudication process, the same is payable only when goods are cleared for home consumption? - re-export of the goods without payment of duty - extension of warehousing period - board circular 03/2003-Cus dated 14/1/2003 - review of order.
Whether the Hon’ble Tribunal was justified in entertaining an appeal against the Chief Commissioner’s letter under Section 129A of the Act which mandates appeal against the Order of Commissioner /Commissioner (Appeals)? - HELD THAT:- In the instant case, the thrust of the arguments of the learned counsel appearing for the revenue is that there was no order adjudicating right of the parties which gave cause of action for the respondent herein to file an appeal before the CESTAT by invoking Section 129A of the Act. He has drawn the attention of the Court to the communication dated 07.03.2019 which was impugned before the Tribunal whereunder the Additional Commissioner of Customs with the approval of the Chief Commissioner has referred to the communications dated 14.02.2019 and 15.02.2019 addressed by the respondent herein requesting for reconsideration of the request for extension of the warehousing period and held such consideration would not arise as the matter had already attained finality - The Tribunal entertained the appeal under Section 129A(1) of the Act and impugned order was set aside and matter was restored to the Commissioner of Customs for deciding the issue afresh. Challenging the said decision, an appeal under Section 130A of the Customs Act was filed and it is in this background, High Court of Bombay has held that Section 110A of the Act is required to be viewed and the decision in the letter dated 25.09.2017 is in terms of Section 110A.
A taxing statute is to be strictly construed. In a taxing statute, one has to look merely what is clearly said in the provision. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing has to be read in, nothing is to be implied. One can look only fairly at the end use - substantial question of law will have to be answered in the negative that is in favour of the appellant revenue and against the respondent.
Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that even though the duty was confirmed by adjudication process, the same is payable only when goods are cleared for home consumption, considering the provisions of section 72 of the Customs Act, 1962? - HELD THAT:- In the instant case, undisputedly the goods remained in the warehouse beyond the period of extension granted and the prayer for further extension was not acceded to or in other words not granted and as such they did not qualify to be construed as goods warehoused in due compliance of Section 72 and in the facts obtained in the present case it would also emerge from the records that on account of such goods having continued in the warehouse beyond the period permitted it is deemed to have been removed improperly attracting the penal provision which resulted in show cause notice being issued and same being adjudicated which resulted in orders being passed and assailed by the respondent before the appellate authority and also before the Tribunal which had resulted in its dismissal is a clear mirror to the fact that duty demand had been confirmed and as such, Tribunal was not justified in arriving at a conclusion that though duty demand was confirmed by adjudicating process, same would become payable only when it is cleared for home consumption.
The Tribunal was not justified in holding that even though the duty was conferred by adjudication process, section 69 would be applicable and as such finding recorded by the Tribunal requires to be set aside. Hence, the substantial question of law answered in the negative namely in favour of Revenue and against the respondent.
Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that in terms of the board circular 03/2003-Cus dated 14/1/2003, the Respondent was entitled to re-export of the goods without payment of duty and consequently also entitled for extension of warehousing period? - Whether in the facts and circumstances of the case and law, the Tribunal was justified in entertaining and allowing the appeal which is against its own Order dated 25.11.2002 that had attained finality and thus reviewing their own order? - HELD THAT:- In the instant case that entire adjudicating process with regard to liability of respondent to pay duty - penalty had got crystallised and had attained finality and as such by taking aid of the circular dated 14.01.2003 and reading the same disjunctively, no undue benefit could have been extended to the respondent by impugned order. Hence, we are of the considered view that Tribunal committed a gross error in entertaining the prayer of the respondent.
A taxing statute is to be strictly construed. The Courts have stated greater latitude to the legislature is to be extended in formulating its tax policy either directly or by delegated legislation - The appellant has made out a strong case to accept the appeal. Hence, substantial questions of law are answered in the negative viz. in favour of the Revenue and against the respondent.
Application disposed off.
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2023 (1) TMI 114
Maintainability of the PIL - Imposition of fee for availing benefit of Online Queue Management System upon the transporters/exporters exporting their goods to Bangladesh from various international border checkposts located at Indo-Bangladesh Border - validity of notifications dated 12th of July, 2022 and 29th of September, 2022 - HELD THAT:- The record reflects that the writ petitioner is a practicing advocate of this Court unconnected with the business of export. A perusal of the writ petition reveals that in this public interest petition, cause of the exporters has been taken up by projecting the problems which may be faced by them on account of imposition of fee by the impugned notification. The issue of quid pro quo has also been raised which is mainly concerning the exporters. Nothing prevents the exporters to approach the competent Court and raise their grievances. Learned Advocate General has also raised the plea that the impugned levy infact has facilitated such exporters. No exporter is before this Court even in the representative capacity to ascertain this fact.
A PIL on such an issue at the instance of an advocate practicing in this Court having no connection with the issue cannot be entertained especially when the affected persons are adequately well off to raise their personal cause in the appropriate judicial proceedings.
So far as reliance of learned counsel for the petitioner in the matters of AHMEDABAD URBAN DEVELOPMENT AUTHORITY VERSUS SHARAD KUMAR JAYANTIKUMAR PASAWALLA AND OTHERS [1992 (5) TMI 175 - SUPREME COURT], FEDERATION OF INDIAN MINERAL INDUSTRIES & ORS. VERSUS UNION OF INDIA & ANR. [2017 (10) TMI 1519 - SUPREME COURT], these judgments relate to the issue of a levy without authority of law which is an issue on merit which can be raised by the effected parties in appropriate maintainable proceedings. Even if the rule of locus is relaxed in a PIL, yet the issue which is involved in the present petition cannot be permitted to be raised at the instance of a person totally unconnected with the issue and unaffected by the notification.
The preliminary objection raised by the learned Advocate General is sustained and present public interest litigation is held to be not maintainable which is accordingly dismissed, however, making it clear that if any affected party approaches the competent Court, then the issue will be decided on its own merit without being influenced by any observation made in this order - Petition dismissed.
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