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- 1999 (4) TMI 576 - CEGAT, MUMBAI
... ... ..... r, on payment of higher freight was an error on the part of the supplier. Mukesh Sharma in his statement had not said so, nor has the Commissioner (Appeals) recorded that this plea or was raised before him. Therefore it is not necessary to consider the conclusion on the commentary relied upon by the Commissioner. On the facts before us, it is difficult to escape the conclusion that the increased freight was arrived at mutually between seller and buyer and it has not been in any case claimed or shown due to mistake of shipment by supplier. Therefore the freight actually incurred should rightly form part of the assessable value. Since the part of the freight actually incurred was not disclosed, confiscation of the goods and imposition of penalty are justified. We do not find the redemption fine and penalty to be incommensurate with the gravity of the offence. 6. emsp Accordingly we allow the appeal, set aside the impugned order and restore the order of the Additional Collector.
- 1999 (4) TMI 562 - CEGAT, MUMBAI
... ... ..... adjudicating authority relying on the expert panel report dated 10-4-1995 without giving the same to the appellant. He, therefore, pleads before us that the matter may be remanded back to the adjudicating authority so that he may have full say before him and satisfy the adjudicating authority as to genuineness of the appellants rsquo case. 4. emsp We have heard Shri A.K. Chatterjee, the ld SDR. 5. emsp We are of the view that in this case there has been a failure to natural justice inasmuch as the hearing took place on 6-4-1995 and the adjudicating authority has relied upon the documents which were made after the hearing of the adjudication proceedings namely expert panel rsquo s report dated 10-4-1995. This was admittedly not given to the appellants. Hence we set aside the impugned order and send it back to the adjudicating authority for de novo determination after complying with the rules of natural justice according to law. 6. emsp Appeal is disposed of in the above terms.
- 1999 (4) TMI 561 - CEGAT, MUMBAI
... ... ..... gs into India goods from any place outside India this being the definition of the term ldquo import rdquo in Section 2 the expanded definition of importer as including the owner, any person who holds himself out to be importer prima facie, would apply to goods which are warehoused after importation and cleared from such warehouse by a person other than a person who actually imported the goods. We are not concerned with that type of situation. The judgment Union of India v. Sampat Raj Dugar did not deal with this aspect of the law of being concerned with. rdquo There is nothing to show that the facts were different in this case. 7. emsp Accordingly we direct deposit Rs. 7.5 lakhs by Ishaan Exports, Rs. 6 lakhs by Ashee Exports towards payment of duty and penalty within two months from the receipt of this order. We direct to deposit Rs. 15 lakhs towards penalty by Suresh Agarwal. On such deposits being made, we waive deposit of remaining amounts and stay their recovery thereof.
- 1999 (4) TMI 538 - CEGAT, MUMBAI
... ... ..... t for being broken up. Indeed, no such objection has been raised. 20. emsp The other provisions of chapter VI of the Act relating to conveyance carrying imported and export goods also do not place any restriction from the entry of such a vessel. No such permission was required. The permission which was asked for by the ship owner and refused by the Principal Collector therefore was not required to be taken by law. Therefore, the owner of the ship did not contravene any of the provisions of the Act. The ship itself was not carrying the goods liable to confiscation for any reason and the provisions of Section 115 therefore would not apply to it. For this reason, we do not consider it necessary to examine the other arguments raised by the appellants advocate for the ship owner that it was not a conveyance carrying the goods. Penalties were therefore not imposable on any of the appellants. 21. Appeals are therefore allowed. Impugned order set aside. Consequential reliefs, if any.
- 1999 (4) TMI 421 - CEGAT, NEW DELHI
... ... ..... taken place. The mitigating circumstances of labour unrest in the appellants factory during the relevant period and the possible mischief played by the staff of the appellant does not in any way reduce the legal liability of the appellants for the mis-declaration in the shipping bill. The contravention of Section 50(4) of the Customs Act read with the relevant provision of the Foreign Trade (Development and Regulation) Act and the rules is established beyond any doubt. As regards the quantum of the penalty, I do not find that considering the value of the goods which is approximately Rs. 4,33,775/-, the amount of penalty of Rs. 25,000/- is not on the higher side. Ld. Counsel submitted that the appellants had redeemed the goods on payment of redemption fine of Rs. 1,50,000/-. Taking all the circumstances into consideration, I find that the impugned order does not suffer from any infirmity. I find no reason to interfere with the same. 6. emsp The appeal is accordingly rejected.
- 1999 (4) TMI 419 - CEGAT, MUMBAI
... ... ..... 4th July, 1995. Advocate for the appellant points out that in accordance with the instructions of the Board the benefit of notification would be available. 5. emsp Although the reply to the notice has been delayed, the fact remains that it was received in the Commissioner rsquo s office seven months before the order was despatched. The reply contains material having a bearing on the crucial aspect of the case. It should therefore have been taken into consideration before the final order was issued. In these circumstances, we are satisfied that the appellant should be given one more opportunity to present this case before the Commissioner. The Advocate for the appellant says he does not wish to make any written submission before the Commissioner and undertakes to appear for hearing on reasonable notice without seeking adjournment unnecessarily. 6. emsp Accordingly, the appeals are allowed, impugned order set aside. The Commissioner shall adjudicate the notice according to law.
- 1999 (4) TMI 405 - CEGAT, MUMBAI
... ... ..... ocate for the appellant before us were taken on record. The submissions would have been available before the Commissioner signed the copy of the order which was issued. They ought to have been considered. Advocate for the appellant says that they are of considerable significance in deciding the issue on which the Commissioner has found against the appellant that the goods were not exported. 5. emsp We are, hence of the view that the order has been passed in breach of the provisions of natural justice. Advocate for the appellant accepts that he does not want to file further submissions before the Commissioner and will be ready to appear before him for hearing after a fortnight rsquo s notice, and will not seek any adjournment which it is absolutely unavoidable. In these circumstances, we allow the appeal and set aside the impugned order in so far as it relates to the appellant before us. The Commissioner shall pass orders on the notice issued to the appellant according to law.
- 1999 (4) TMI 387 - CEGAT, MUMBAI
... ... ..... e found fault with. In addition, the contravention of provisions of Chapter IVA is advanced. The contention that this was a technical breach not justifying the confiscation cannot be accepted. The object of the provisions of Chapter IVA is to prevent smuggling by controlling movement of goods liable to be smuggled. Clause (b) of Section 111 specifically provides for confiscation of the goods in respect of which the provision of that Chapter have not been complied. Confiscation of the goods has to be sustained and the redemption fine of about 10 of the value is not excessive. The penalty of Rs. 50,000/-on this appellant is also not incommensurate with the value of the goods. 7. emsp There is no separate argument advanced to say that the other two appellants were not liable to penalty. The liability for penalty of these two appellants, therefore, has to be confirmed. Penalties imposed of Rs. 25,000/- on each of these appellants are also not excessive. 8. emsp Appeals dismissed.
- 1999 (4) TMI 357 - CEGAT, MADRAS
... ... ..... ding the issue under Regulation 18. 8. emsp We have also considered the submission of learned SDR regarding his technical objection of learned Advocate not being qualified to represent the appellant in this case in view of his having moved a Reference Application in another matter before this Tribunal when he was acting as Assistant Commissioner of Customs. We find that Reference application was moved by him in his capacity as a Customs Officer. After his retirement from Government service and thereafter his enrolment in the Bar, whatever acts were performed by him in another Proceedings before this Tribunal will have no bearing or limitation to prevent the Learned Advocate from representing the appellant in this case. In fact the CEGAT Procedure Rules provided that retired Customs Officers can even act as Consultants before this Tribunal. 9. emsp In view of the aforesaid analysis and findings, we set aside the Order-in-Original and allow the appeal with consequential relief.
- 1999 (4) TMI 340 - CEGAT, NEW DELHI
... ... ..... oods are understood in trade and common parlance as machines for uses ancillary to printing this factor cannot be ignored by the Customs House in classifying the item. In view of the submission made by the Counsel that subsequently the similar equipment was cleared by the Delhi Customs House accepting the classification under Heading 8443.60 as claimed by the assessee and no appeal has been filed by the Department against the said assessment. We are of the view that the issue of classification of the item covering under this appeal is required to be reconsidered by the jurisdictional adjudicating authority. With these observations, we are remanding the matter to the jurisdictional Assistant Commissioner to examine the issue afresh in the light of the above observations as well as subsequent clearance of similar equipment imported by the appellants and to pass an order accordingly, after providing an opportunity to the appellants. Thus, this appeal is allowed by way of remand.
- 1999 (4) TMI 336 - CEGAT, MUMBAI
... ... ..... nd not toys. Only one of the presence of the ISBN number. Apparently the decision shows that a letter was produced from the ISBN. We do not know what are the contents of that letter. The decision will have to be limited to the facts of that case. 9. emsp It follows from the above that the goods in question are classifiable both with regard to tariff as well as the Import Policy which is aligned to the tariff under Heading 49.09 as greetings card. Hence the Commissioner (Appeals) order classifying them as books is set aside. 10. emsp Since they require a licence for importation, the order of the Assistant Commissioner confiscating them and of his order classifying them for purpose of tariff under Heading 49.09 is restored. However, we accept the argument of the Advocate for the respondent that there was no case for imposition of penalty, since the importer had imported goods in the bonafide belief that they are books. That portion of the order imposing penalty is not restored.
- 1999 (4) TMI 308 - CEGAT, MADRAS
... ... ..... ely the Orders-in-Original do not demonstrate this to me. Learned SDR has submitted that prices may fluctuate in the Spices market. I have no quarrel with this argument in principle. However if prices have fluctuated, it was the duty and responsibility of the original authority to have placed evidence before the importers to that effect. Without consideration of such an evidence, the imposition of 100 RF cannot now be sustained in the face of the precedent judgment of this Tribunal which recognised that during this period the RF should be at 85 . Therefore respectfully following the ratio of this Tribunal rsquo s Final order the case of Diamond Traders supra and particularly noting that the period of import is approximately the same as was involved in that import, I order that the Order-in-Appeal impugned is modified to the extent that the redemption fine is reduced from 100 of CIF value to 85 of CIF value. The appeals succeed accordingly with consequential relief as per law.
- 1999 (4) TMI 306 - CEGAT, NEW DELHI
... ... ..... ischarged the initial burden and the same is not shifted to the appellants that these are not smuggled goods. The Government of India also, while exercising Revisionary Powers under Customs Act had in Re. D.E. Borthwick Order No. 3328/75, dated 11-6-1975 (relied upon by the learned Advocate) , released the seized ball bearings observing that the Department had not led any evidence to show that the ball bearings had been smuggled into India. The goods cannot be confiscated under Section 111(d) of the Customs Act merely on suspicion. The burden is initially on the Department to prove that the impugned goods were smuggled into country. Only once such a burden is discharged by the Department, then the burden of proof shifts to the party and not otherwise. The Department, we feel, had not adduced sufficient evidence, circumstantial or direct as to prove the smuggled nature of the goods. Accordingly, we set aside the order passed by the Commissioner of Customs and allow the appeal.
- 1999 (4) TMI 299 - CEGAT, MUMBAI
... ... ..... t substantiated by any material. Under these circumstances, the applicants are required to make a pre-deposit to take up the appeal for final hearing. Hence we pass the following order. ORDER For the reasons discussed above, the applicant EOL (C/Stay-1582/97 in C/1115/97) is directed to deposit Rs. 2.50 crores duty amount and (in C/Stay-910 in C/395/98) to deposit Rs. 1,25,000/- the duty amount and applicant ACO (C/Stay-1580 in C/1113/97) is directed to deposit Rs. 1.25 crores by way of duty and (in C/Stay-909 in C/394/98) to deposit Rs. 1,25,000/- duty amount and applicant AML in C/Stay-1581 in C/1114/97 is directed to deposit duty amount of Rs. 20 lakhs by way of pre-deposit within 3 months from today. On the deposit being made, the deposit of the penalty amount against these parties in the above cases, are waived. The department should maintain the statusquo regarding the order of confiscation and interest in the case number C/394 and 395/98 pending disposal of the appeal.
- 1999 (4) TMI 274 - CEGAT, NEW DELHI
... ... ..... catalogue with reference to the car was available or not during the relevant time. Furthermore, the price indicated in the Parker rsquo s Car Price Guide is also not forthcoming in the order passed by the Assistant Collector. In these circumstances, we are of the view that the matter will have to go back for reconsideration with reference to the determination of the value of the car. As regards redemption fine and penalty, we do not find any justification in imposing the same and, accordingly, we set aside the redemption fine and penalty. With these observations, we are remanding the matter to the jurisdictional Assistant Collector to redetermine the value of the car and to pass an order in accordance with law after providing an opportunity to the appellants. The appellant may make use of this opportunity and adduce evidence and case law in support of their case during the re-adjudication proceedings. 6. emsp Thus, this appeal is allowed by way of remand. Ordered accordingly.
- 1999 (4) TMI 267 - CEGAT, CALCUTTA
... ... ..... the last date of hearing i.e. on 24-3-1999 nobody had appeared and the matter was adjourned to today in the interest of Justice. Neither is their any request on record for adjournment. It seems that the appellants are not interested in pursuing the appeals. Accordingly I dismiss both the appellants rsquo appeals for non-prosecution.
- 1999 (4) TMI 258 - CEGAT, MUMBAI
... ... ..... roll pipes. The comparative brand name used by M/s. Parkman Polymer Industries on the other hand is a perfect circle and the name ldquo Parkman rdquo has been shown in an ornamental font. In addition the identification of the product is shown by the present applicants to be ldquo rice mill rubber roll pipe rdquo and the other unit has ldquo paddy dehusking roll rdquo . Looking at these two stickers together prima facie it appears that they are not suggestive of the same goods being manufactured by two different assessees. 9. emsp Reference was made to a large body of case law about distinction being made between two identical or similar trade marks on the basis of additions or subtraction of certain parts. Although that would have to be gone into in detail at the time of final hearing of the appeal, at this stage the appellants have made a prima facie case in their favour. We therefore allow the applications and grant unconditional stay of the operation of the order impugned.
- 1999 (4) TMI 252 - CEGAT, MUMBAI
... ... ..... , the panchanama is no evidence of value. However, it does suggest some but the value, particularly the same value in the panchanama has been accepted in the order. In any event, the appellant was entitled to be told the basis (and especially on his asking) for the value of the goods. 4. emsp No reason has been indicated by the Commissioner for absolute confiscation of the goods. Import of these goods was not prohibited at that time and therefore it was mandatory to give an option to redeem them as provided in Section 129 of the Act. In the absence of such details as to the margin of profit, we are unable to fix the redemption fine, think it proper to be determined by the Commissioner. 6. emsp Accordingly, appeal is allowed and impugned order set aside. The Commissioner shall, after disclosing the material relied upon by the department to the appellant both with regard to the value and the margin of profit, decide upon the value, margin of profit and consequently the penalty.
- 1999 (4) TMI 244 - CEGAT, NEW DELHI
... ... ..... b-heading 2907.11 of the schedule to the Customs Tariff. 3. emsp Heard both sides. 4. emsp The Collector of Customs (Appeals), vide impugned order, disposed of the two appeals filed by the present appellants and one filed by M/s. Shubham Dyes and Chemicals, Delhi. The Tribunal vide Final Order No. 1145/98-C, dated 6-11-1998 1999 (106) E.L.T. 215 (Tribunal) upheld the impugned order. While dismissing the appeal filed by M/s. Shubham Dyes and Chemicals, the Tribunal held that coal tar distilled phenol (hydrated) is classifiable under Chapter Heading 2907.11 of the Schedule to the Customs Tariff. Respectfully following the above mentioned decision of the Tribunal, we find no force in the present appeal. The appeal is dismissed.
- 1999 (4) TMI 222 - CEGAT, MUMBAI
... ... ..... ment and others on that price list but does not cite any instance of such import. Nor it possible to say that details of such imports were given to these importers. It is settled law that value of imported goods cannot be increased merely on the basis of quotation or offers in the price list and that there must be evidence of actual importation of goods at the prices proposed to be adopted. It is also to be noted that the valuation of the goods was done following the finding that they were complete photographic enlargers. There is nothing in the material produced before us to show that the price adopted was specific for parts. Parts which were not imported, which required to make a complete enlarger would contribute the value of the enlarger. Inclusion of that component in the price list is not justified. Therefore, there is no basis for not accepting the values declared in the invoice. 8. emsp Accordingly, appeals are allowed. Impugned orders set aside. Consequential relief.