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Customs - Case Laws
Showing 101 to 120 of 188 Records
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2018 (2) TMI 952 - CESTAT, BANGALORE
Valuation - ship demurrage charges - includibility - Held that: - the issue of ship demurrage charges has been settled by the Hon’ble Supreme Court in favour of the assessee in CCE, Mangalore Vs. Mangalore Refinery and Petrochemicals Ltd. [2016 (1) TMI 325 - SUPREME COURT], where it was held that The demurrage charges are admittedly incurred after the goods reached at Indian ports and, therefore, it is a post-importation event. Such charges, therefore, cannot form part of the transaction value - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 951 - CESTAT BANGALORE
Classification of the imported goods - Insoluble Sulphur - Department was of the view that because of the presence of oil, the goods will not be classifiable under Customs Tariff Entry 2503 0010 which is applicable to Sulphur but will be classifiable under CTH 3812 3030 - Held that: - The imported goods have been declared as Insoluble Sulphur but the doubt in classification has arisen because of the presence of 20% oil as found during testing of the sample of the imported goods - classification of the goods ordered under CTH 2503 0010 - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 949 - CESTAT, BANGALORE
Absolute confiscation - Gold - smuggling - restricted goods - penalty - Held that: - the course of investigation made they submit that they have procured the gold from the dealers in open market but could not identify or could not produce any licit document for procurement of gold from the dealers in open market. As per Section 123 of the Act, the burden is on M/s. Keshavlal Khemchand to show the source of procurement of the said gold which they have failed to do so - the penalty on Keshavlal Khemchand is rightly imposed.
Confiscation of Gold - Held that: - the source of procurement of the gold has not been established - the gold is rightly confiscated.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 948 - CESTAT, BANGALORE
Penalties u/s 114AA of the Customs Act 1962 - smuggling of MOP in the guise of ‘Bentonite Powder’ - penalty on N.A. Jayaram - charge against the N.A Jayaram is that he has issued invoices of Muriate of Potash (MOP) in the name of ‘Bentonite Powder’ - Held that: - it is admitted by the appellant that they have issued invoice from Sakaleshapur as the invoice in question has been issued by the appellant in the case of MOP in the guise of ‘Bentonite Powder’ and without detection of DRI the said activity of the appellant could not have been reliable - penalty rightly imposed.
Penalty on Mehaboob Khan has been imposed on the basis of transaction between Shri N.A. Jayaram and Shri Mehaboob Khan - Held that: - Revenue has no positive evidence against the Mehaboob Khan therefore penalty against Shri Mehaboob Khan is set aside - penalty set aside.
Penalty on N.J. Shyla - allegation against Smt N.J. Shyla is that he has taken godown on rent in which MOP was stored by Shri N.A. Jayaram - Held that: - The fact of storage by N.A. Jayaram has not been disputed and it is a case of smuggling of MOP therefore the penalty on Shri N.A. Jayaram is imposed - quantum of penalty reduced.
Penalty on Rajesh Balar - allegation against Shri Rajesh Balar is that he has provided details of overseas buyer and also provided test reports of Bentonite Powder of M/s. SGS India Pvt. Ltd. Chennai - Held that: - the fact on records that the test report has been provided by Shri Rajesh Balar therefore the culpability of Shri Rajesh Balar stands proved - penalty upheld but quantum reduced.
Appeal allowed in part.
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2018 (2) TMI 854 - SC ORDER
Condonation of delay in filing appeal - Refund claim - the decision in the case of MRF Ltd. Versus Commissioner of Customs, Chennai [2017 (5) TMI 1324 - CESTAT CHENNAI] contested - Held that: - Delay of 174 days in filing the appeal is condoned subject to payment of costs of ₹ 2,00,000/- to be deposited by the petitioner with the Cancer Institute (WIA), Adyar, Chennai, Tamilnadu within four weeks.
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2018 (2) TMI 853 - BOMBAY HIGH COURT
Interest u/s 27(a) of the Customs Act, 1962 - Iranian National - Baggage Rules - foreign currency - Smuggling - section 27 and 27(a) of the CA - Held that: - any person claiming refund of any duty or interest paid by him or borne by him may make an application in such form as may be prescribed for such refund to the named authority before the expiry of one year from the date of payment of such duty or interest. How that application should be made, what it should accompany and later on how it is to be dealt with, is set out in sub-section (2) of Section 27 of the Act - Section 27A sets out the obligation on delayed refund. That opens with the words “if any duty ordered to be refunded under sub-section (2) of Section 27 to an applicant is not refunded”.
Merely because such a refund application has been considered on the basis that the power to confiscate and impose redemption fine and penalty would include within its purview a power to grant the refund of the excess amount, still for such delayed refund interest cannot be granted or awarded, absent a specific provision in the statute. Section 27 of the Act is not such a provision and that is erroneously relied upon. Once that provision together with Section 27A deals with specific cases of refund application claiming refund of duty or interest paid or borne by the applicant, then, that refund being sanctioned, delayed payment of that amount carries interest. Such is not the nature of the amount recovered from the petitioner nor borne by him. Once that is the admitted position, then, in the given facts and circumstances, we do not see how a claim for interest can be considered, leave alone granted.
The petitioner may lay a claim for interest on receipt of such amount belatedly - petition dismissed.
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2018 (2) TMI 852 - KERALA HIGH COURT
Drawback u/s 75 of the CA 1962 - the second ingredient copper that goes into the manufacture of their products is procured indigenously from local producers. Since the products exported by the respondent contained copper, the respondent claimed drawback - powers conferred by Section 75(1A) of CA.
Held that: - power u/s 75(1A) is to declare through a notification to be published in the official gazette that the material contained in a particular category of goods exported was imported. The concept of deemed import is to be applied in cases where the conditions stipulated by Section 75(1A) stands satisfied. It is on the basis of such a satisfaction that Ext. P7 notification has been issued. Ext. P7 notification is not under challenge.
It is not in dispute that, copper is contained in the manufactured product of the respondent. Therefore, going by the terms of Ext. P7 the respondent is entitled to claim the benefit of Ext. P7. In other words, in terms of Ext. P7 the respondent is entitled to claim that the whole of the copper content in its manufactured product should be treated as “deemed to be imported material”, for the purpose of sub-section (1) of Section 75 of the Act. Availing of the Cenvat credit also does not disentitle the respondent from claiming the above benefit since there is not such restriction in Ext. P7.
Whether it is the “all industry rates” stipulated by Rule 3 of the Rules or what is commonly called “the brand rates” to be fixed under Rule 6 of the Rules, that should apply in computing the rate of drawback applicable to the respondent? - Held that: - the rate applicable to the respondent would have to be determined separately under Rule 6 of the Rules. In Ext. P9, the second respondent has proceeded on the basis that fixation of the rate under Rule 6 should be only on the basis of the actual customs duty suffered by the product - the said reasoning is not sustainable in view of the clear wording in Ext. P7 notification.
The rate of drawback applicable to the respondent’s product would have to be fixed in exercise of the powers under Rule 6 of the Rules.
Appeal dismissed.
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2018 (2) TMI 851 - CESTAT CHENNAI
100% EOU - benefit of N/N. 53/97-Cus. dated 03.06.1997 - demand on the ground that cotton waste generated (32.10%) out of duty free imported raw cotton was over and above the permissible limit of 25% - Held that: - once the manufactured goods which are excisable are allowed to be sold in accordance with Exim Policy no demand of customs duty can be raised - In the present case cotton waste which is cleared to DTA is an excisable goods falling under Chapter heading 52.02 of CETA, 1985. The said clearance of waste is also permissible as per para 6.8(d) of the Exim Policy 2002-07 within the overall limit of 50% of the FOB value. Hence the present demand of duty is untenable under the above Notification - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 850 - CESTAT NEW DELHI
Classification of imported goods - Thermistor, Thermistor-sub assembly/ assembly - appellant claimed the classification under CTH---85334030, Thermistors - Revenue objected to the said classification holding that these ‘Thermisters’ are used in automobiles and are accordingly to be classified under Chapter heading 84159000 as parts of auto air conditioners.
Held that: - identical issue decided in appellant own case CC, Patparganj Versus M/s Subros Limited [2018 (1) TMI 1023 - CESTAT NEW DELHI], where it was held that The present case, Note 2(a) has relevance and the impugned order correctly following the said Section Note alongwith explanation given under HSN to classify the resistor under Chapter 85.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 849 - CESTAT NEW DELHI
Suspension of CHA License - validity of proceedings - time limit as per CBLR 2013 - Regulation 20 of CBLR, 2013 - Held that: - In the present case, the said notice has been issued, admittedly, on 9.12.2016 only, much later than 90 days limit. We note that by now, it is well settled principle that has been upheld by the various High Courts as well as by this Tribunal that the time limit mentioned in the CBLR, 2013 are mandatory and are to be statutorily enforced in proceedings against Customs Broker.
The present proceedings are not sustainable for violation of period of limitation as per CBLR 2013 - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 848 - CESTAT NEW DELHI
Classification of import goods - Detention of goods - imported “Polyester Quilt cover” from China - Held that: - the “quilt covers” usually comes in pieces but in the instant case, it is in length. When the cloth is in 280 bales having the weight of 25900 Kgs., one cannot be identified as what is the length of quilt and its weight. Moreover, Apparel Export Promotion Council (AEPC) by its letter dated 1.04.2015 has declared the goods as “Upholstery Fabrics”. The AEPC has declared the imported bales as fabrics and not as “quilt covers” as there was no individual weight and/or length - imported items cannot be covered as “quilt covers” as there was no reference to composition, nature, structure to be identified as „quilt cover‟.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 760 - MADRAS HIGH COURT
Refund claim - rejection for want of re-assessment under Section 27 of the Customs, Act, 1962 - Held that: - As this Court has found that the impugned order is not consonance with the earlier direction issued by the Court, in W.P.No.3486 of 2016, dated 18.04.2017, and the Department themselves have realized the same, this Court is inclined to allow the Writ Petition - the matter is remanded to the Lower Adjudicating Authority for de nova adjudication, who shall consider the petitioner's refund claim and proceed with in accordance with law - petition allowed by way of remand.
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2018 (2) TMI 759 - MADRAS HIGH COURT
Drawback - time limitation - demand on the ground that the petitioner failed to produce evidence of realization of export proceeds in respect of the exported goods within the period allowed under the Foreign Exchange Maintenance Act (FEMA) and Central Excise Duties and Service Tax Drawback Rules, 1995 - Held that: - if the petitioner produces evidence to show that the sale proceeds have been realized within the time provided by the R.B.I., which is one year in the instant case, then, the petitioner would be entitled for being repaid the amount, so recovered. However, it is not very clear as to whether such recovery has been done from the petitioner.
The matter is remanded to the first respondent for fresh consideration - petition allowed by way of remand.
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2018 (2) TMI 754 - RAJASTHAN HIGH COURT
Whether the Tribunal can override the statutory provisions enshrined in the law inasmuch as the second proviso to Section 114A of Customs Act, 1962, has been ignored in reducing the penalty wherein specific provisions are enlisted that the benefit of reduced penalty shall be available only when penalty is paid within 30 days of the date of communication of the Order which is not in the present matter?
Held that: - the issue squarely covered by the decision in the case of Commissioner of Central Excise, Jaipur-I Versus. M/s. Lucky Plast Ltd. and others [2015 (9) TMI 825 - RAJASTHAN HIGH COURT], where it was held that The central excise duty is payable on the manufacture of excisable goods. It is not payable on the issuance of the show cause notice, or at any time thereafter. The Proviso to Section 11AC is applicable, if the payment is made within 30 days of communication of the order levying penalty, and not from the date of issuance of the show cause notice.
Appeal allowed - decided in favor of Revenue.
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2018 (2) TMI 753 - MADRAS HIGH COURT
Smuggling - illegal export of red sanders in artifact form - Held that: - only where a company, which as per the explanation includes also a firm, was found guilty of an offence would those in charge of and responsible to it in the conduct of its affairs, be liable - As in the instant case, the firm M/s. Rare Crafts, of which petitioners are partners has not been arrayed as an accused, no liability could be fastened to petitioners. - revision allowed.
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2018 (2) TMI 752 - BOMBAY HIGH COURT
Smuggling - Gold - petitioners’ case is that while it is true that they were carrying gold, this was in no sense contraband and there was no attempt to smuggle gold - denial of opportunity to declare their goods because they were purportedly arrested at the aerobridge ramp at the exit of the aircraft even before they arrived at the immigration counters and before they could approach the custom desks to declare their goods - Held that: - it is always open to the Adjudicating Authority, after viewing the additional material, to reiterate his previous conclusion if he finds that there is no material on DVDs to support the petitioners’ case, or to hold that in any view of the matter, the petitioners’ submissions even after viewing the sufficient material cannot be sustained - appeal allowed by way of remand.
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2018 (2) TMI 751 - BOMBAY HIGH COURT
Suspension of CHA License - Regulation 19(2) of CBLR, 2013 - time limitation - Held that: - In fact, there is a gross delay in concluding the enquiry for which there is no explanation. Even as of today, no final order has been passed on the basis of the Enquiry Report. Therefore, there is no reason to interfere with the findings of fact and ultimate order passed by the Tribunal - appeal dismissed.
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2018 (2) TMI 750 - MADRAS HIGH COURT
Recovery of differential duty - fulfillment of export obligation - Held that: - Admittedly, the petitioner has not replied to the show cause notices issued to them. The redemption certificates, which are required to be submitted by the petitioner, to fulfil the export obligations, has been obtained by the petitioner, only after the first respondent-Original Authority passed the orders-in-original - in order to provide an opportunity to the petitioner, this Court is inclined to set aside the orders impugned herein and remand the matters to the first respondent-Original Authority to redo the entire exercise - appeal allowed by way of remand.
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2018 (2) TMI 749 - RAJASTHAN HIGH COURT
EPCG Scheme - Whether the goods declared for export under EPCG Scheme as Marble Block, which were subsequently found as “Silicified Limestone” on the basis of GSI test report are to be treated as “Marble Block”? - Held that: - The man has taken license or mining lease from State of Rajasthan as a marble exporter but merely chemical test has given it limestone as discussed by the Tribunal by referring to meaning of Wikipedia the marble is also one kind of limestone - the view taken by the Tribunal is just and proper - appeal dismissed.
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2018 (2) TMI 703 - CESTAT ALLAHABAD
Export of Basmati Rice - Circular No. 33(RE-08)/2004-09 dated 30/09/2009 - Held that: - Tribunal had directed to get the samples tested through Agmark approved laboratories in view of the fact that M/s SGS India Pvt. Ltd. was not a qualified laboratory as per the Circular issued by the DGFT Revenue should not have once again relied on the test report given by M/s SGS India Pvt. Ltd. for adjudication in the present matter - It was held by this Tribunal by affirming the order dated 31/03/2010 passed by ld. Commissioner (Appeals) that report given by M/s SGS India Pvt. Ltd. was not qualified to adjudicate the matter - appeal allowed - decided in favor of appellant.
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