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Customs - Case Laws
Showing 161 to 180 of 188 Records
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2018 (2) TMI 291 - CESTAT BANGALORE
Refund claim - validity of SCN - new case made against appellant after issuance of SCN - Held that: - the decision of the Commissioner (Appeals) dated 29.03.2004 holding that the claim is within the period of limitation has become final and the Revenue has not filed appeal against the same. Therefore, the Revenue has to refund the entire amount of refund claim of ₹ 8,23,824/- whereas the Revenue has only refunded the amount of ₹ 2,22,444/- on their own.
In view of the decision of the Madras High Court in the case of Commissioner of Central Excise Vs. EL.P. EM. Industries [2017 (9) TMI 702 - MADRAS HIGH COURT] wherein it has been held that in the earlier proceedings, the adjudicating authority cannot raise the fresh ground for which the assessee has not been given any notice.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 248 - GUJARAT HIGH COURT
Condonation of delay of 82 days in filing Appeal - Held that: - the order in original is dated 08.03.2016 which was received by hand delivery by the Advocate of the petitioner on 22.06.2016. The Appeal was required to be filed on 22.09.2016, whereas the same is inwarded on 13.12.2016. It has come on record that the petitioner was arrested on 22.06.2016 and was enlarged on bail on 24.08.2016. The Court finds that such an explanation was very much on the record of CESTAT in the form of Affidavits - delay condoned - petition allowed.
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2018 (2) TMI 247 - CESTAT MUMBAI
Import of base paper by availing DEEC exemption - It was alleged that no nexus in the imported goods and exported goods - demand only on the ground that material use for export was white base paper whereas the material imported the paper was having design/colour - Held that: - Circular No. 39/97-Cus. dated 16.09.1997 clearly prescribed that it is not necessary that the goods imported should match exactly those used in the export product provided that the inputs are commercially known to be useable in the product exported.
The adjudicating authority has held that the requirement of nexus is limited to the extent it is appearing in the relevant licence. In the subject case the licence does not qualify the base paper with any particular colour. Hence the contention in the SCN that the noticee should have imported a particular colour of base paper only, does not appear to be legally sustainable.
Demand set aside - appeal allowed.
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2018 (2) TMI 246 - CESTAT MUMBAI
Refund of export duty - change in Rate of tax vide Notification - As per N/N. 66/2008-Cus dated 10.5.2008, the effective rate of export duty was 10%. The exports were taken place on 23.5.2008 and 26.5.2008. The said 10% rate of duty was become NIL vide N/N. 77/2008-Cus dated 13.6.2008 - Held that: - merely by interpretation, the duty cannot become NIL, which was prevailing as per the statute. If at all, there is any intention of the Govt. not to levy duty during the said intervening period, right course of action is that the Govt. should have issued the retrospective amendment Notification by exercising the power vested under Section 28A of the Customs Act, 1962 - In present case, the Section 28A was not exercised by the Govt. and as per the law prevailing in terms of N/N. 66/2008-Cus, the duty of export on Iron & Steel pipes/tubes was very much chargeable @10%.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 245 - CESTAT CHENNAI
Violation of import conditions - import of goods like rubber pads, slates and support plates etc., without payment of duty - Revenue held a view that the condition of value addition cannot be achieved if significant portion of manufacture involves indigenous items - N/N. 32/97-Cus. dated 01.04.1997 - Held that: - Relying on the decision of the Tribunal in the case of Saptagiri Leathers Vs. CC, Chennai [2002 (12) TMI 338 - CEGAT, CHENNAI], the Commissioner (Appeals) held that there is no violation of the import conditions by the respondent - there is no violation of the conditions of concessional import by the respondents - appeal dismissed - decided against Revenue.
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2018 (2) TMI 244 - CESTAT HYDERABAD
Goods found short in the duty free shop - demand of duty - Charge of clearing of duty free goods and unaccounted goods from duty free stores of this appellant - Held that: - the 1st Appellate Authority has correctly held against the appellant and findings are very relevant and in detail - it was held that the evidence on record in the form of oral evidence of the employees which have been elaborately discussed in the earlier Order-in-Original dated 25.04.2012 as well as the impugned order clearly show that there was concerted manipulation of accounts, stock-registers etc., which resulted in excess and/or shortage of goods which were detected by DRI. Such commission of offence cannot but be punished appropriately under law as provided in Section 112 of the Customs Act, 1962. In the facts of the case, it has to be held that the employer has been irresponsible for ensuring proper conduct by employees and employer has been irresponsible for ensuring proper conduct by employees and cannot absolve himself of the liability - the factual findings of the 1st Appellate are not controverted in any manner.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 243 - CESTAT CHENNAI
Classification of imported goods - coal - the appellants were importing coal from different countries, especially from Indonesia classifying as steam coal falling under CTH 2701 1290. The steam coal attracted nil rate of duty whereas the bituminous coal falling under CTH 2701 1200 attracted 5% duty as per Notification No.12/2012-Cus. dated 17.3.2012.
Held that: - in view of the conflicting decisions, the matter was referred to the Larger Bench and vide order dated 16.1.2017, the issue was taken up for consideration by the Larger Bench. On such date, taking note of the fact that the decision rendered by the Bangalore Bench in the case of M/s. Maruti Ispat and Energy Pvt. Ltd. was appealed before the Hon’ble Apex Court, vide Civil Appeal Nos. 28937/2014 and 9725/2014, the Larger Bench directed that the matter being subjudice before the Hon’ble Apex Court, the assessees were granted opportunity to come again before the Tribunal after the verdict from the Hon’ble Apex Court - The CESTAT, Hyderabad has remanded the matter directing the adjudicating authorities to conduct denovo proceedings after the outcome of the decision of the Hon’ble Apex Court.
The appeals require to be remanded to the adjudicating authority for denovo consideration basing upon the outcome of the decision of the Hon’ble Apex Court in Maruti Ispat and Energy Pvt. Ltd., as laid down by the Larger Bench of the Tribunal - appeal allowed by way of remand.
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2018 (2) TMI 242 - CESTAT CHENNAI
Valuation of imported goods - Barudan Multi Head Computerized Embroidery machine Model BED XH-YNB 20 head, 9 colour - similar goods - basis of enhancement of value was a purported identical model imported by different importer vide their Bill of Entry No.731210 dt. 20.12.2004 wherein the import price was ₹ 39,85,800/- - Held that: - appellant had produced catalogue, explanation of the supplier for the price variation and also outlined the differences between the two models. They had also produced the proforma invoice from the foreign supplier which matched the final commercial invoice. Copy of the insurance policy for the goods imported has also been produced. The lower authorities have however not addressed these evidences nor have they distinguished or demolished the same - in any case, the difference between the declared value and enhanced value is around 27% which could be ascribed not only on account of differences in the features between the two machines but also on account of the five months interregnum period between the two imports.
Reliance is placed on the ratio of the Apex Court judgment in Basant Industries Vs Addl. Collector of Customs, Bombay [1995 (1) TMI 89 - SUPREME COURT OF INDIA] wherein it has been laid down that mere comparison of invoices received by the importer with the invoices of imports of same goods by other importer is not conclusive for determination of undervaluation.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 241 - CESTAT CHENNAI
Import of restricted item - iron steel plates which were secondary hot rolled sheets in different sizes and thickness - Department took the view that the goods being seconds, they cannot be imported through Tuticorin port in view of the restrictions in para-4 of the Import Licensing Notes to Chapter 72 of ITC (HS). - Held that: - In a situation, where importers themselves have admitted, not only before the adjudicating authority, but also before the lower appellate authority, that the imported goods are nothing but seconds, it also means that they are in agreement with the outcome of examination of the goods conducted by the department. In such a situation, where the nature of the goods as imported, is not being contested by the importer, there may not be any requirement of getting the goods tested. Viewed in this light, the appellant cannot now argue that the goods were actually prime, or for that matter, that the goods have not been proved to be seconds by the department by way of test etc. - the goods held as seconds and duty liability thereon upheld.
Redemption fine - penalty - Held that: - appellants have been fair in admitting before both the lower authorities that the goods are seconds. They have also conveyed that what has arrived is seconds because of mistake of despatch and they have only ordered for primary goods - the quantum of redemption fine and penalty reduced.
Appeal allowed in part.
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2018 (2) TMI 240 - CESTAT CHENNAI
Classification of imported goods - “Shriram” Brand water dispensers model YLRS1-5K/B-20 - whether classified under CTH 84186920 as refrigerator or otherwise? - N/N. 14/2008-CE(NT) dated 01.03.2008 - Held that: - Indubitably, the impugned goods are composite goods, and hence, the component which provides the machine its essential character will be determined the factor for classification. The principal function of the goods is that of a dispenser of hot and cold water with an added feature of a mini refrigerator. Hence, the lower appellate authority is spot on in his conclusion that the impugned items are required to be classified as water dispenser and not as a refrigerator - appeal dismissed - decided against Revenue.
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2018 (2) TMI 160 - CESTAT MUMBAI
Refund of security deposit made towards the provisional assessment of Bills of Entry - unjust enrichment - Held that: - Bills of Entry was provisionally assessed during the period 9.2.2004 to 2.12.2004 and the consignment was finally assessed by the Appraising Group VI on 23.5.2007. At the time of provisional assessment, there was no provision of unjust enrichment in case of a refund arising out of the final assessment in terms of Section 18 of the Customs Act, 1962 - as the provisional assessment was made in 2004, the unjust enrichment provision is not applicable.
Once it is proved that the amount of refund has been shown as receivable, then it is not possible that the same amount could have been recovered by any other means. Therefore, the treatment of this amount shown as receivable is evidence that the incidence of refund amount has not been passed on.
We direct the adjudicating authority before re-processing the refund as to make sure that the amount shown as receivable from Customs under the head of Loan and Advance covered the amount of present refund. If it is found correct then the appellant is prima facie entitled for the refund and such amount will not be hit by unjust enrichment - appeal allowed by way of remand.
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2018 (2) TMI 159 - CESTAT MUMBAI
Benefit of N/N. 66/2004-Cus. (serial No. 152-B) - it was alleged that the appellant was misusing the benefit of the exemption notification as amended by N/N. 66/2004-Cus. by using the imported waste paper in the manufacture of paper other than newsprint - Held that: - there is no deliberate violation of the conditions of the exemption notification in question - the diversion of about 10% of the imported waste paper is only incidental and does not call for any adverse inference on the part of the appellant - there is no case made out against fraud, suppression of facts and/or falsification of record. In this view of the matter, the appellant has not violated the conditions of N/N. 21/2002-Cus. as amended.
Penalty on Director u/s 112 - Held that: - he should have been more vigilant and should have suo motu informed the Revenue of the utilization of the imported waste paper for manufacture of paper other than newsprint - penalty upheld but quantum reduced.
Appeal allowed in part.
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2018 (2) TMI 158 - CESTAT CHENNAI
Importer - SCN issued to the appellants along with M/s. Maruti Wood Industries, Arunesh Saw Mills, and the overseas suppliers contending that M/s. Maruthi Wood Industries are not the true importers who caused the import of the logs but their name were used by the appellant fraudulently - the case of department is mainly based on the statement given by proprietor Shri B. Dinesh of M/s. Maruti Wood Industries. In the statement given on 26.11.2013, the said person denied issuing no objection letter. Statements from staff of the appellants (Custom Broker), was also recorded.
Held that: - At the time of hearing, the Id. counsel has submitted that appeals were filed by the new importer on whom redemption fine was imposed. That these appeals have been remanded to the adjudicating authority vide Final Order No.40611 to 40615/2017 dt.31.03.2017. It is seen that the authorities below have failed to take note of the fact that the statement given by proprietor Sh. B. Dinesh was retracted. The appeals filed by new importers were remanded, inter alia, on such grounds. Therefore, I am of the view that these appeals also require to be reconsidered by the original authority. In such denovo proceedings, the appellants shall be given opportunity to adduce evidence and for personal hearing. The adjudicating authority shall, after due process of law, pass a reasoned speaking order - Appeals are allowed by way of remand to the adjudicating authority.
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2018 (2) TMI 157 - CESTAT CHENNAI
Valuation - rejection of declared value - safari brand wafer bars - Held that: - Though a search was conducted in the premises of the respondent, nothing incriminating was unearthed. The value has been proposed to enhance on the basis of the price available in the local market and on cash bills for purchase of safari chocolates. It is not clear whether the cash bills pertain to safari chocolate or safari wafers - there are no reasons to reject the price declared by the respondents - appeal dismissed - decided against Revenue.
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2018 (2) TMI 119 - GUJARAT HIGH COURT
Bail application - Held that: - considering the nature of allegations, role attributed to the applicant, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail - application allowed.
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2018 (2) TMI 90 - GUJARAT HIGH COURT
Bail application - Offence punishable u/s 135 of the Customs Act, 1962 - in the instant case the muddamal allegedly belonging to the petitioner was seized on 01.08.2017 when the petitioner was already in custody in respect of other offence - Section 108 of the Customs Act - Held that: - True it is that, Sanjay has retracted the said statements; but at this stage of the proceedings, this Court would not discount the statements made by the said accused on the mere ground of retraction; inasmuch as, retraction of a statement can be no impediment for investigation of a case on such statement. It cannot be disputed that statements under Section 108 of the Customs Act are admissible in evidence and under what circumstances the said statements were made and retracted can only be appreciated during the trial, if at all, the case goes to trial. For the present, the revealations under Section 108 of the Customs Act are relevant for the respondent to carry on the investigation.
It is within the domain of the investigator to seek remand of a person. The requirement of the remand would depend upon the facts and circumstances concerning the individual / accused. The investigator may decide not to obtain remand if he is satisfied with the information he required for prosecuting a person has formed the record. Therefore, petitioner has no right to contend that in absence of remand of co-accused, the respondent has no case to plead against the petitioner.
Bail application fails.
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2018 (2) TMI 89 - CESTAT CHENNAI
Education cess on Clean Energy Cess - imported steaming (non-coking) coal - Held that: - Education Cess and Secondary & Education Cess as duty of Excise and duty of Customs are two different levies and as such Education Cess and Secondary & Education Cess as duty of excise is exempted but not as duty as Customs - The legal provisions for calculation of aggregate duty of Customs and Education and Higher Education Cess leviable on such duty of customs are clear and there is no ambiguity in the same - appeal dismissed - decided against appellant.
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2018 (2) TMI 88 - CESTAT CHENNAI
Valuation - related party transaction - identical/similar goods - Held that: - it emerges that the appellants are 100% fully owned subsidiary of M/s. Biesse SPA, Italy, who is the supplier and seller. There is no doubt that the buyer and seller are related in view of Rule 2(2) of the CVR, 1988, for the purpose of Customs Act, 1962. The foreign supplier has procured the goods from third party suppliers and sold the same to the appellants at more or less the same price and in addition to ocean freight - we are not able to fathom, how in an international trade transaction, the freight cost incurred by the foreign supplier in procuring the goods within country of origin, or, for that matter, the margin of profit will not be added to local purchase cost to arrive at selling cost to Indian buyer, the appellant. This would certainly be the case if M/s.Biesse SPA, Italy would have sold the goods to any non-related buyer in India or in any other part of the world.
Appellants have also not been able to establish that M/s. Biesse SPA, Italy sold identical or similar goods to other importers in India at the same price. They have themselves not able to satisfy the requirements of Rule 43 A & B of the CVR, 1988.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 87 - CESTAT CHENNAI
Refund claim - interpretation of statute - sub-section (2) of section 129D of the Custom Act, 1962 - case of Revenue is that review order was mechanically issued without application of mind; hence, the review order falls foul of the requirements of sub-section (2) of section 129D of the Customs Act, 1962 - Held that: - It is not the dispute of the respondent that the grounds of appeal were different from the points or reasoning given in the file note sheet - the drafting of the appeal papers in the form CA2 required is just a procedure to implement the directions given by the Commissioner for filing the appeal. The legal requirement embedded in sub-section (2) of section 129D ibid has very much been followed and complied with.
The matter is remanded back to the lower appellate authority to consider the appeal filed by the department afresh on merits - appeal allowed by way of remand.
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2018 (2) TMI 36 - PUNJAB AND HARYANA HIGH COURT
Entitlement of interest - relevant date for calculation of interest - Refund claim rejected on the ground of unjust enrichment - Section 27 and 27(A) of the Customs Act, 1962 - Held that: - issue is covered by the decision in the case of Ranbaxy Laboratories Ltd. Versus Union Of India and Ors. [2011 (10) TMI 16 - Supreme Court of India], where it was held that liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made - Even assuming that the petitioner furnished the evidence with respect to the issue of unjust enrichment later it would make no difference as Section 27A mandates the payment of interest from the date of the application. The revenue in any case does not suffer any loss as it has the benefit of the use of the money, in fact, even prior to the date of the filing of the application for refund under Section 27(1).
The petitioner shall be paid interest from 23.10.2007 i.e. 90 days after the date of the application under Section 27(1) viz. 23.07.2007 till payment - petition allowed.
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