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Showing 101 to 120 of 162 Records
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2020 (2) TMI 612 - CESTAT KOLKATA
Import of Ordinary Portland Cement Clinker in Bulk under CTH 2523.10.00 form Indonesia claiming concessional rate of duty i.e. BCD @ 5% as per the said Notification - benefit denied on account of certain discrepancies in the certificate of origin - importer prayed for provisional assessment of the goods and got the goods cleared - Benefit of N/N. 46/2011-CUS dated 01.06.2011 - HELD THAT:- As per Sl.No.195 of the notification No.46/2011-CUS dated 01.06.2011, the concessional rate of duty is extended to the goods imported from Indonesia under CTH 252310 to 252321. The respondent has imported the goods from Indonesia which is evident from the Bill of Lading and Certificate of Origin issued under ASEAN-INDIA Free Trade Area (AIFTA) between Indonesia and Republic of India vide No.0000270/PDG/2018 dated 29.01.2018. We also find that the said Certificate was duly verified by the proper officer of Appraising General Unit dated 09.03.2018 & 13.04.2018. Also the Invoice No.PWD052-2k18/SII-A dated 23.01.2018 & Country of Origin (i.e. Indonesia) as mentioned in the said certificate is also mentioned in the Bill of Entry as declared by the respondent - The First Appellate authority has, in the impugned order, recorded cogent reasons for allowing the benefit of the notification. Even if the respondents had initially not claimed the benefit of notification, nothing prevents them for claiming it by filing an appeal against the assessment. Any assessment, including self-assessment can be appealed against.
It is now a well established legal principle that an assessment which is provisional, is provisional for all purposes. There is no provision in law to treat the same assessment as provisional for one purpose and final for another. Even if the respondent had not protested against denial of the benefit of the notification during finalization of the assessment, it does not stop them from claiming the benefit subsequently by filing an appeal against the assessment. The Appellate Authority was correct in examining such a claim and giving the benefit of Notification since he found them eligible for the same.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 611 - CESTAT CHANDIGARH
Imposition of penalty - illegal exportation of Red sanders - prohibited goods or not - proper investigation not carried out - principles of natural justice - HELD THAT:- It is quite evident that none of these persons were traced and investigated by the investigating authority/ DRI in the present case. Amongst the persons who have not been investigated the name of present appellant figures. However, even without questioning them, or causing investigation, these person have been made the party to the show cause notice.
The appellant have not been investigated in the case of present seizure and confiscation of red sanders. The statement that has been relied upon by the Commissioner, is also in case of some another investigation, seizure and confiscation. It is really irony that it has been admitted that even the true identity etc of the appellant has not been established in the present case and the Commissioner has imposed penalty even when the investigations against the appellant are still pending in the present case. It is also not under stood as to how and on basis of which evidence linkage has been established between the appellants and present consignment of Red Sanders confiscated in the impugned order.
Imposition of penalty - HELD THAT:- Section 114 of CA shows that this section is applicable only in respect of the person who has done any act of omission or commission qua the goods held liable for confiscation under Section 113. Any act performed by the person in respect of any other goods which may be similar/ same/ identical, but not the subject matter of the proceedings cannot be reason for imposition of penalty under this section. Thus without leading the evidence to the effect of establishing the act of omission/ commission in relation to the goods confiscated in these proceedings i.e. 15.010 MTs of Red Sanders, illegally exported, the penalty imposed under this section cannot be sustained.
The number of person including the present appellant have not been investigated in this case, and the investigation are kept open, our order setting aside the penalty herein should not be treated as exoneration of the appellant in the proceedings which follow on completion of investigations against those persons - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 566 - CESTAT BANGALORE
Valuation of imported goods - PVC Laminated sheets (PVC floor covering) - rejection of declared value - value re-fixed under Rule 5 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - penalty on Customs Broker u/s 117 of CA - HELD THAT:- In the show-cause notice the Revenue has alleged that the supplier of the goods M/s. K.H.I. Vanich Group Co., Bangkok appears to be a trader and not the manufacturer. For this allegation, in the show-cause notice, Revenue has no basis because the appellant has given the invoices issued by the said supplier and has submitted in the reply to the show-cause notice that the said supplier is the biggest manufacture of the impugned goods in the world. Further, we find that the goods have been imported by the appellant under ASEAN Agreement between two Sovereign States and if the Department has any cogent evidence to come to the conclusion that no such manufacturer exist, then they should have made proper enquiry to blacklist such a supplier but the same has not been done at all.
Commissioner on its own has come to the conclusion that the raw material for the impugned goods is LDPE and LLDPE and the value of raw material ranges from UDS 1180 to USD 1270 per metric tonne without any basis. He has observed in the impugned order that it is available in the Public Domain that LDPE and LLDPE are the raw material for the impugned goods. Further, even in the test report obtained by the Revenue from CIPET, Cochin, it is not mentioned that LDPE and LLDPE is the raw material for impugned goods. The information relied upon by the Commissioner available in the Public Domain is not admissible as evidence in law when there is a specific test report available of authorized agency. Further, the certificate issued by the manufacturer which is also on record, shows that LDPE and LLDPE is not the raw material for the impugned goods but the same has not been considered by the Commissioner.
In the present case, the appellant has imported the material from Thailand whereas the Commissioner has relied upon the contemporaneous imports from China which cannot be considered as contemporaneous import at all. Further, the appellant himself earlier imported the same product and declared its value which was accepted and the goods were cleared from the same port. Instead of considering the same as contemporaneous import, the Commissioner has relied upon imports from China.
The impugned orders re-fixing the price than the price declared by the importer is not sustainable in law - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 565 - CESTAT BANGALORE
Valuation of imported goods - used Toyota Land Cruiser of 1998 model - non-compliance with the pre-import condition - rejection of declared value - redetermination of value - tampering of the chassis number - HELD THAT:- The Commissioner (Appeals) in the impugned order has considered all the aspects in detail and after considering all these grounds, the Commissioner (Appeals) has come to the conclusion that in the absence of any physical evidence of tampering, clarification of interested third party cannot be a sufficient reason for rejection of the invoice value. Further, in the first round of litigation this Tribunal remanded the matter to the adjudicating authority with a direction to afford an opportunity to the importer to cross-examine the signatory of the documents relied upon by the adjudicating authority. Further, we find that instead of the person who has signed the letter dated 19/12/2005 some other person was produced for cross-examination who during the cross-examination expressed ignorance about the contents of the letter dated 19/12/2005 and the reason for issuing the said letter.
There is no infirmity in the impugned order which is upheld by dismissing the appeal of the Revenue - Appeal dismissed - decided against Revenue.
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2020 (2) TMI 528 - DELHI HIGH COURT
Detention of goods - over-valuation of goods - petitioner has also preferred an application for provisional release of the goods - HELD THAT:- Supreme Court has in its recent decision in THE STATE OF UTTAR PRADESH & ORS. VERSUS M/S KAY PAN FRAGRANCE PVT. LTD. [2019 (12) TMI 95 - SUPREME COURT] has criticized the practice of writ Courts directing release of the seized goods where the statute provides for provisional release.
The respondents are directed to decide the application of the petitioner for provisional release of the goods in question in accordance with the rules, regulations and Government policies applicable to the facts of the case - petition disposed off.
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2020 (2) TMI 521 - MADRAS HIGH COURT
Imposition of fine and parallel penalty - alleged sale of 254 sewing machines out of the imported lot of 554 machines - HELD THAT:- Since two parallel proceedings were drawn against the Assessee on similar set of facts and one with the D.G.F.T., Department has resulted in favourable order at the hands of the competent authority under the Foreign Trade Development and Regulation Act, 1992, those facts and circumstances of the case deserve to be taken into account by the competent authority viz., Commissioner of Customs under the provisions of the Customs Act, 1962.
The Commissioner of Customs to decide the issue of imposition of fine and penalty de-novo uninfluenced by the order passed by the learned Tribunal, taking into account the subsequent circumstances which had developed in the case.
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2020 (2) TMI 483 - PATNA HIGH COURT
Illegal export - it is alleged that respondent (Inspector of customs) had connived with the exporters for helping them obtain certificate of export without actual export for fulfilling their export obligation as 100% EOU by issuance of export orders fraudulently - contravention of Rule 3(I)(II)(III) of the CCS Conduct Rules 1964 - HELD THAT:- The enquiry officer completely failed to appreciate that in a departmental enquiry, rule of strict evidence does not apply and the evidence so collected is to be appreciated on the principle of preponderance of probabilities. When paper transaction with respect to transport of goods was established, it matters not if specific names did not crop-up as to with whom the respondent collaborated or connived. The disagreement note of the disciplinary authority clearly reveals that it took note of the evidence that there was no export of goods in case of M/s Suvidha Polyesters Pvt. Ltd. and that M/s Jai Mata Di Transport Company was a nonexistent and fake company.
The evidence which was taken note of by the disciplinary authority was that there was no evidence of any physical verification of the goods except for endorsement in the crossing register and the signature of the crossing officer on the bills of export. The invoices mentioned in the bills of export were in different formats which were signed by different authorized representatives of the exporter within a short period of time. No evidence was found by the disciplinary authority to establish the local custom of using tyre carts to export goods. The disciplinary authority also found that the enquiry officer blindly accepted the contentions of the respondent and submitted a report which was not at all fair, proper and acceptable.
The fact that the respondents at the relevant time was Inspector of Customs posted at Jogbani Land Custom Station, who were responsible for issuing export orders, it was incumbent upon them to have verified the contents of the commodities before issuing any such export order. The non-existent transportation firms whose services are stated to have been utilized for transporting goods and the other irregularities found during the course of investigation and enquiry do make out a case against the respondents and therefore, the punishment meted out to them by the disciplinary authority was absolutely justified and should not have been interfered with by the Tribunal.
The order of the disciplinary authority is restored - Petition allowed.
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2020 (2) TMI 482 - GAUHATI HIGH COURT
Imposition of Anti-Dumping duty - determination of the rates thereof - import of melamine - Notification F. No.14/35/2010-DGAD dated 01.06.2012 and from China as per Notification No.15/17/2014-DADD dated 05.12.2015 - principles of natural justice - HELD THAT:- The intervener GSFC had not filed the bills of entry for home consumption but had filed it for the purpose of warehousing and that the bills of entry for home consumption were directly filed by its small customers, who are referred as consumers, the designated authority by exercising its discretionary power had arrived at a conclusion that even though the intervener GSFC had imported and sold the subject articles, its focus had not turned to imports and the company is not behaving like an importer trader and its focus continues to be that of a producer engaged in its own production - Accordingly a conclusion was arrived that the intervener GSFC is a domestic industry within the meaning of Rule 2(b) of the ADR Rules 1995. The said conclusion of the designated authority can be found from paragraph 15 to paragraph 20 of the Notification dated 01.02.2012.
As regards the determination of normal value of melamine in China as per the notification dated 05.12.2015, the designated authority arrived at its conclusion that China being a non-market economy, the export price and the normal value were determined in terms of the 2nd proviso of paragraph-7 of Annexure-1 to the ADR 1995. In paragraph-32 of the said notification, it has been stated that the constructed normal value of melamine in China at ex-factory level was determined as USD*** per MT (Rs.*** per MT) and that the export price from China was determined as USD*** per MT(Rs.***per MT) - it is determinable that the designated authority had followed a procedure for determining the normal value of melamine in the exporting country China, as well as the non-injurious price of melamine for the domestic industry in India, but the procedure so adopted and also the normal value and non-injurious price would remain confidential and would not be made available. The reason for keeping the normal value and the non-injurious price confidential is that they were arrived at on the basis of the information provided by the domestic industry and therefore, it is confidential under Rule-7 of the ADR 1995.
Whether the information provided by the intervener GSFC in their application under Rule 5(1) of ADR 1995 and at other stages would be held to be confidential under Rule 7 to the extent that even the normal value, export price and non injurious price determined by the designated authority would not be disclosed in the course of the proceedings held by it as well as in the final findings? - HELD THAT:- Reading the whole of the provisions of Rule 7 including Rule 7(3) and the provisions of Rule 16 of the ADR 1995, we are of the view that the stand taken by the designated authority as well as by the respondents that the normal value, export price, margin of dumping and the non injurious price arrived at in the final findings are confidential in nature and that it cannot be disclosed to anyone at any stage, are unacceptable.
Whether the principles of natural justice had been violated by the designated authority? - HELD THAT:- As the normal value, export price, margin of dumping and the non injurious price as determined by the Designated Authority which formed the basis for the decision to impose the ADD and determine the rates thereof, was not informed to the petitioners prior to the opportunity of hearing being given, we are of the view that in the instant case, the principles of natural justice had been violated.
Whether the procedure adopted by the designated authority in arriving at a decision to impose ADD and to determine the rates thereof conform to the procedure prescribed under the ADR 1995? - HELD THAT:- On a conjoint reading of Rule 6(8) and 8 of ADR 1995, the inference thereof would be that if any information is provided by the interested parties, the designated authority is required to arrive at its satisfaction as regards the accuracy of such information and only upon arriving at such satisfaction, it may either accept or reject by providing its own reasons. But without undertaking such exercise to satisfy itself as regards its accuracy, it would be incorrect on the part of the designated authority to discard such information without even making an attempt to consider it and satisfy itself as regards its accuracy. - Only upon such information provided by the interested party being rejected on being not satisfied, the designated authority may record its findings on the basis of other facts available before it.
Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary? - HELD THAT:- Considering the procedure adopted by the designated authority in not making all the possible efforts to arrive at a correct determination as regards the normal value, export price and the margin of dumping as well as the non-injurious price, more particularly, in discarding such information that may be provided by the interested parties without even arriving at a satisfaction as to its correctness, we are of the view that the procedure adopted would not only be contrary to the provisions of Rules 6(8) and 8 of the ADR 1995, but would also be discriminatory and arbitrary.
Whether the intervener GSFC in view of its imports of melamine can still be considered to be a domestic industry? - HELD THAT:- In the facts and circumstance of the present case whether the intervener GSFC would continue to remain a domestic industry in spite of being indulging in import to a certain extent, in our view a discretion is required to be exercised by the designated authority and in doing so such discretion should neither lead to arbitrariness nor it violate the provisions of Article 14 of the Constitution of India.
Whether the evaluations of the ADD in terms of USD at an exchange rate as it prevailed in the year 2012 from countries under the European Union, Iran, Indonesia and Japan and at an exchange rate as it prevailed in the year 2015 from the Peoples’ Republic of China, as well as the determination of the normal value, export price, margin of dumping and the non-injurious price in terms of USD at its exchange rate as indicated above had brought in a situation which would be inconsistent with the factual situation that may be caused due to subsequent fluctuations in the exchange rate? - HELD THAT:- Without going much deeper into the question whether the determinations and evaluations made in terms of USD at an exchange rate as it prevailed in the year 2012 for imports from countries under European Union, Iran, Indonesia and Japan and at an exchange rate, as it prevailed in the year 2015 from China had created any inconsistent situation because of the subsequent fluctuations in the exchange rate, we merely express our concern that what would be the effect of such fluctuation on the evaluation of the landed price of the imported article in India and also on the amount of ADD imposed, if the evaluation of the landed price and the determination of the ADD is made in terms of USD pegged at an exchange rate in the given years when it was so evaluated and determined, in a situation where the landed price of the imported article as well as the total amount of ADD imposed in terms of INR keeps on fluctuating with every fluctuation of the exchange rate of USD - A simple analysis would indicate that if there is an increase in the exchange rate of USD, the landed price of the imported article would increase in terms of INR, which may reduce the margin of dumping requiring a lower imposition of ADD. But at the same time instead of the ADD being lowered, it being determined in terms of USD its total imposition in terms of INR would increase.
The designated authority may take a closer look at the aforesaid aspect and take its own decision so as to render the imposition of the ADD in consistent with the provisions of Section 9A(1) of the CTA 1975.
Maintainability of writ petition - HELD THAT:- The propositions as regards the maintainability of the writ petition in a situation where an alternative remedy is available in the form of an appeal had been culled out. Amongst the relevant circumstances whose presence may justify the entertainment of a writ petition under Article 226 of the Constitution of India in spite of the existence the provision for an appeal, are violation of the principles of natural justice, procedure adopted by the authorities is discriminatory and arbitrary, the question of law requires an interpretation, a constitutional issue is also involved and the pleadings are complete and the issues raised can be decided on the basis of affidavits, etc. - the procedure adopted by the respondent authorities including the designated authority did also include the question of violation of the principles of natural justice, it being discriminatory and arbitrary, there is also a question of violation of Article 14 of the Constitution, as well as interpretation of the relevant provisions of Rules 7, 6(8), 8 and 16 of the ADR 1995, which are questions of law. Further, the pleadings of the parties were complete and the issues raised can be determined even on the basis of affidavits without there being the requirement of any determination of fact.
The writ petition would be maintainable in spite of the provisions of Section 9C of CTA 1975.
Petition disposed off.
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2020 (2) TMI 481 - CESTAT AHMEDABAD
Import of Beta Napthol under DEEC and Target Plus Scheme - Benefit of N/N. 93/2004-Customs dated 10.09.2004 and N/N. 32/2005-Customs dated 08.04.2005 - Sale of imported goods or not - allegation of the department is that since the appellant have transferred the goods imported under DEEC and Target Plus Scheme to their job-worker, they have contravened the condition of the Notifications - HELD THAT:- The job worker has considered the total value including the value of Beta Napthol but since the Beta Napthol was given by the appellant to the job worker free of cost the value of the said Beta Napthol has been reduced from the total value and their final sale value does not include the value of Beta Napthol, therefore even as per the invoice of the job worker there is no sale of Beta Napthol to the appellant. It is obvious that when the appellant have not sold the Beta Napthol to the job worker there is no transfer of right in the property i.e. Beta Napthol from the appellant to the job worker. Consequently question of sale by the job worker to the appellant does not arise.
Since, the transaction of the Beta Napthol by the appellant to the job worker does not fall under the term either “sale” or “transferred in other manner”. Therefore, there is no contravention of the condition attached to the N/N. 93/2004-Customs dated 10.09.2004 and N/N. 32/2005-Customs dated 08.04.2005.
In an identical case of TETRA PAK (I) LTD. VERSUS COMMISSIONER OF CUSTOMS, NHAVA SHEVA [2005 (4) TMI 182 - CESTAT, MUMBAI] dealing with the duty free imported goods under DEEC scheme the Tribunal-Mumbai Clearly held that advance license holder cannot be prohibited from out sourcing goods imported duty free for manufacturing to other persons even in the said case the goods imported duty free under DEEC scheme was sold to job worker on cost basis and returned as sale by Job Worker after processing/conversion of cost of other material and labour basis. The tribunal held that this was not violative of the prohibition of selling/transferring such goods - The present case is on a better footing as admittedly the appellant has neither sold Beta Napthol to the job worker nor purchased back the same from job worker.
The appellant have not contravened the condition of Notification nos. 93/2004-Cus & 32-2005-Cus. Hence, the demand of duty, interest and consequential penalties are not sustainable - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 480 - CESTAT MUMBAI
Valuation of imported goods - undervaluation of Zinc and aluminium scrap imported - rejection of declared value - re-determination of the value of scrap items based on the fact that the import price of the said items were much lower than the prevailing prices contained in the bulletin published by the London Metal Exchange (LME) - admissibility of evidence - imposition of penalty u/s 112(a) of CA.
HELD THAT:- In the case in hand, the appellant M/s Sunland Alloys had entered into contract with the overseas suppliers for importation of the scrap items in question. Pursuant to the contractual norms, the goods were supplied by the overseas entities under the cover of commercial invoices, bearing the reference of description of goods, quantity, price etc. On the basis of the import documents, the appellant had filed the Bills of Entry before the jurisdictional Customs Authorities for duty assessment and for clearance of the imported consignments for home consumption. It is not the case of Revenue that over and above the contractual amount, the appellant had paid any other amount either to the overseas supplier or any other person in context with importation of the subject goods. Further, Revenue has also not alleged that the appellant had any interest in the business of the overseas suppliers and vice-versa.
The assessment has to be made under Section 14 ibid read with Rule 4(1) of the Customs Valuation Rules, 1988 and the provisions of Rule 3(ii) ibid should not be applicable for re-determination of the declared value. In this context, the Hon’ble Supreme Court in the case of EICHER TRACTORS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2000 (11) TMI 139 - SUPREME COURT] have held that when the transaction value under Rule 4 is rejected, then under Rule 3(ii), the value shall be determined by proceeding sequentially through Rule 5 to 8 of the Rules; conversely, if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), then there is no question of determining the value under the subsequent rules - the department has not made any valid case for rejection of the declared transaction value.
Admissibility of evidence - HELD THAT:- The learned counsel for the appellants has challenged the validity of the printouts taken from the Laptop of Shri Jhingon on the point that mandatory provisions and conditions of Section 138C of Customs Act, 1962 have not been complied with. We find that the Panchnama dated 25/04/2006 simply mentions that the DRI officers also searched one Laptop of Shri Tarun Jhingon and one CPU for further investigation. Details of seized documents and laptop and CPU were given in the Annexure to Panchnama. It is evident from the Panchnama that the seizure of the Laptop was not in terms of Section 138C ibid. Moreover, we find that such evidence was declared to be not admissible
On perusal of the relevant contents of the certificate dated 29.10.2008, it transpires that ISRI has not prescribed any specific discount band on the price fixed by the LME for consideration of transaction value of the scrap items in question. Further, the impugned order has also relied upon the Alert Circular No. 14/2005 dated 16.12.2005 issued by Director General of Valuation for re-determination and enhancing the declared value. The said circular only provides for average price difference between the price of prime metal and different grades of scrap as determined on the basis of study of difference in prices of scrap and prime metal. The circular only requires the department staff to check possible under valuation, after ensuring all relevant specifications. However, the said circular cannot have over riding effect on the valuation provisions contained in the customs statute and as such, the transaction/declared value cannot be rejected merely on the basis of specifications provided in the DGOV Circular dated 16.12.2005.
Revenue has concluded on the basis of stray third party evidences as above have alleged undervaluation on the basis of the statements of the concerned persons alone, which are not corroborated by any documentary evidence and therefore, their reliability, is not free from doubt.
The allegation of undervaluation is not sustained. Consequentially, the seizure, demand of differential duty, fine and penalty on M/s. Sunland Alloys do not survive - the seizure and duty demand are not sustainable and as a corollary, the penalties also are liable to be set aside.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 462 - MADRAS HIGH COURT
Maintainability of appeal - time limitation - HELD THAT:- Both the appellate authorities, did not decide the merits of the case against the adjudication order, but dismissed the appeal as time barred. The order of the Commissioner of Customs (Appeals-II), Chennai dated 02.02.2010 is on record.
The matter deserves to be remanded to Commissioner of Customs (Appeals-II), Chennai for deciding the appeal on merits - Appeal allowed by way of remand.
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2020 (2) TMI 438 - CESTAT MUMBAI
Confiscation/seizure of imported goods - misdeclaration of description of the goods - goods mis-declared as being procured as waste/ condemned goods of coastal run vessels whereas actually they had been procured as condemned goods/ ship stores of foreign going vessel - HELD THAT:- Undisputedly the goods have been seized, from the godown/premises which are not located in the customs area. Also on the goods seized there are no markings etc., to establish that these goods were of foreign origin. It is also not disputed that these goods were not amongst the notified goods under Section 123 of Customs Act, 1962. In absence of the notification, notifying the goods under Section 123, the burden to prove that the impugned goods were of foreign origin and were imported/ cleared from the customs area illicitly without payment of duty, is on the revenue.
From the facts recorded though Commissioner has recorded the existence of such documents he has brushed asides the same stating that the documents could not be co-related with the goods under seizure, without specifying anything further. The department has failed to discharge the initial burden cast on them to prove that the goods were illicitly cleared by the appellants.
Confiscation do not sustain - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 437 - CESTAT NEW DELHI
Liability of bonafide importers who purchased the duty script from the market and used to pay customs duty - Misuse of various Export Promotion Scheme - Fake export - duty credit licenses, such as, DEPB/ FPS/DFIA/ VKGUY etc - Legal import or not - forged/fake documents - purchase of forged TRA alongwith DEPBs issued based on forged/fake export documents - whether the appellants had validly imported the consignments duty free on the strength of the licenses involved in these appeals?
HELD THAT:- The bona fide of imports which were made under the various export promotion schemes under Chapter 3 and 4 of the Exim Policy has to be examined. The importers purchased these licenses, which were transferrable from the license brokers. After the purchase of license, the importers did not apply for the issue to Telegraphic Release Advice (TRA) from the port of Registration (POR) as was required to be obtained the TRAs from the brokers. Not only that, they also failed to ascertain the veracity of such TRAs from the Port of Registration. Thus, the due diligent that was required to be exhibited by the importer was not carried out.
The entire racket has been carefully planned and executed by Paresh Daftary, Prabir Ghosh and Jyoti Biswas. These three persons circumvented all the laws, be it Customs, Foreign Trade or Exim Policy. They attempted to hoodwink all the government agencies and committed a fraud, which could only be detected, subsequently, in the investigation by the DRI. The appellants have not asserted that the exports had not been effect for they only contend that they were not a party to the fraudulent activities. The Adjudicating Authority has taken great pains to evaluate the entire sequence of events.
In EAST INDIA COMMERCIAL CO. LTD., CALCUTTA VERSUS COLLECTOR OF CUSTOMS, CALCUTTA [1962 (5) TMI 23 - SUPREME COURT], the Supreme Court noticed that the goods were imported under a valid license and, therefore, it was not possible to hold that the goods imported were prohibited or restricted under Customs Act. This case pertained to Sea Customs Act, 1872, while the present case is under the Customs Act, 1962 - It is manifestedly clear that the case at hand is distinguishable since there was no issue of TRA and the involvement of transferee had not been brought on record in the investigation. Thus, this case would not help the appellants.
In TAPARIA OVERSEAS (P) LTD. VERSUS UNION OF INDIA [2003 (1) TMI 127 - BOMBAY HIGH COURT], the original license was obtained by the transferee fraudulently which were subsequently transferred to the transferee. It was held that since the goods had been imported under a valid license, the duty liability would not accrue on the transferee - As the issue of forged TRA was not the issue before the Court, the case would have no application.
In COMMISSIONER VERSUS LEADER VALVES LTD. [2008 (3) TMI 665 - SC ORDER], the issue was identical as the DEPB was issued by the DGFT on the basis of forged document, bank realization certificate. The appellant was not a party to the fraud and had purchased DEPB from open market under a bona fide belief that it was genuine. The appellant paid full prices and availed the benefit. Merely because at a later stage the DEPB has been found to be fabricated, the assessee could not have been deprived of the benefit.
The adjudicating authority, in the impugned order, has wrongly held that the appellants have utilized forged TRA, although the issue pertained to the utilization of FPS licenses. Thus, the appeals filed by the department are allowed and they are remanded to the adjudicating authority for a fresh decision after granting a hearing to the appellants.
Appeal allowed by way of remand.
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2020 (2) TMI 409 - BOMBAY HIGH COURT
Penalty u/s 112 (a) and/or 112 (b) of the Customs Act, 1962 - alleged evasion of duty - fraud - HELD THAT:- The Commissioner has observed that the Petitioner along with other persons aided Mr. Pravin Mody in the evasion of duty and fully aware of the fraud. The Commissioner, after assessing the facts on record held that the deposit was not made by the Petitioner but by Mr. Pravin Mody. If it is the case of the Petitioner that the amount was not deposited by Mr. Pravin Mody, it would be a case of wrong forfeiture of the deposit. Nothing is shown as to why this ground cannot be agitated in the pending appeal filed by the Appellant. Since this remedy of Appeal is available and already availed of, it is not necessary to examine this issue in this Petition.
Petition disposed off.
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2020 (2) TMI 408 - BOMBAY HIGH COURT
Maintainability of appeal - Ocean going survey vessel or not - HELD THAT:- The appeal was admitted by the Supreme Court and when it came up for hearing, it was pointed out by the learned Counsel for the Appellant that appeal had to be filed in the High Court in view of section 130 of the Customs Act, 1962 and therefore, the appeal was dismissed giving liberty to the Appellant to approach the High Court. Hence, the present Appeal.
Appeal admitted.
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2020 (2) TMI 400 - CESTAT AHMEDABAD
Date on which Notification coming into force - N/N. 120/2003 dated 01.08.2003 - whether the Notification is effective from the date of publication i.e. 01.08.2003 as proposed by the revenue or from the date of offer for sale of the said notification i.e. 04.08.2003 as claimed by the appellant?
HELD THAT:- From section 25, particularly from clause (b) it is clear that the notification shall come into force when the notification is issued, published in the Official Gazette and also offered for sale. Therefore, all the three event are necessary i.e. notification should be issued, published in the Official Gazette of Central Government and offered for sale, that means the date on which the notification is offered for sale shall be the relevant effective date of notification, even though, the date of issue of notification and publication is prior to the date of offer for sale.
From the perusal of the Gazetted Notification it is clear that the reply is in respect of Notification No. 120/2003-Cus dated 01.08.2003 GSR 622 (E), Serial no. 365 and bearing GI No. 2195 dated 01.08.2003. With the above documents it is clear that the Notification No. 120/2003-Cus though issued on 01.08.2003 and published on 01.08.2003 but offered for sale only on 04.08.2003. Therefore, the same came into effect on 04.08.2003, whereas the Bills of Entry were filed on 01.08.2003 therefore, the benefit of unamended Notification No. 21/2002-Cus dated 1st March, 2002 was available to the appellant.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 394 - CESTAT NEW DELHI
Anti-dumping duty - time limitation - an appeal can be filed before the Tribunal within 90 days of the passing of the order under appeal - Section 9C(i) of the of the Customs Tariff Act, 1975 - HELD THAT:- As the appeal was filed beyond a period of 90 days from 09 April, 2019, it was accompanied by an application for condoning the delay in filing the appeal.
The Notification was issued by the Central Government on 09 April, 2019. The appeal should have, therefore, been filed within 90 days from this day as contemplated under Section 9C(2) of the Act. The appeal was, however, filed only on 07 October, 2019. The normal period prescribed for filing the appeal expired on 08 July, 2019. All that has been stated in the application that has been filed for condoning the delay is that, a Writ Petition was filed in the Punjab & Haryana High Court against the Notification dated 09 April, 2019 by a related and an unrelated party which Petition was dismissed as withdrawn on 05 September, 2019 - the date of filing of Writ Petition has not been mentioned in the delay condonation application, but even otherwise there is no reason as to why the Appellant could not have filed the appeal during the pendency of the Writ Petition filed by other parties.
We are not satisfied with the explanation offered by the Appellant for condoning the delay. The delay condonation application is, accordingly, rejected - Appeal dismissed.
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2020 (2) TMI 383 - DELHI HIGH COURT
Detention order - Section 3(1) of COFEPOSA Act - Smuggling - foreign currencies - baggage rules - detenue's statement is that he used to smuggle around 300 cartons of cigarettes from Dubai/Kabul on his arrivals - seizure of detenue's passport - HELD THAT:- In the instant case, authorities after investigation and on evaluation of the evidences i.e. i. His 11 visits between Delhi and Dubai as per his passport; ii. Video clippings from detenu's mobile showing his involvement in smuggling of foreign currency with help of certain other persons; iii. Materials produced by Orient Exchange Company (LLC) showing declaration by detenu for his dealing in foreign exchange; was subjectively satisfied that detenu is engaging himself in smuggling of foreign currency and if he is released on bail, there is every likelihood of his indulgence in prejudicial activities, therefore, it was necessary to detain him in order to prevent him from engaging in such activities.
Petition dismissed - decided against petitioner.
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2020 (2) TMI 359 - CESTAT AHMEDABAD
Anti-Dumping Duty - Final levy of duty is higher than the provisional levy of duty - demand of differential duty - Interpretation of statute - Rule 21 of Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 issued vide Notification No. 2/95-Cus. (N.T.), dated 1st January, 1995 - finalization of duty by N/N. 88/2007-Customs, dated 24.07.2007 whereby the Final Antidumping Duty was fixed - HELD THAT:- From the plain reading of the above rule 21(1) it is clear that in case where the Central Government has imposed Anti-dumping Duty on provisional basis and at the time of finalization if the Anti-dumping Duty is fixed on the higher side then the differential duty shall not be collected from the importer.
In the present case though as per provisional Notification No. 106/2006-Cus the lower Anti-dumping Duty was imposed and by final Notification No. 88/2007-Customs, the rate of Anti-dumping Duty was higher, the provisional Anti-dumping Duty was very much considered in the Bills of Entry filed by the appellant and since the price declared by the appellant in the Bill of Entry was not lower than the Anti-dumping value the Anti-dumping Duty shown in the Bills of Entry is ‘nil’. In this case it is very clear that at the time filing of Bills of Entry there was Anti-dumping Duty imposed and since the Anti-dumping Duty arrived at is zero, there was no need of any payment on assessment of Bills of Entry.
There is cleared imposition and collection of Anti-dumping Duty at the time of assessment of Bill of Entry. Moreover, as per our interpretation if there is any difference between the rate of Antidumping Duty in the provisional notification and final notification the differential amount of Anti-dumping Duty shall not be collected, therefore, only because in the appellant’s case at the time of assessment there was ‘nil’ Anti-dumping Duty, the differential Anti-dumping Duty as per the Final Notification cannot be demanded.
Identical issue decided in the case of MERCHEM LTD. VERSUS COMMISSIONER OF CUSTOMS, COCHIN [2014 (5) TMI 523 - CESTAT BANGALORE] where the Tribunal has taken a view, in such circumstances differential Anti-dumping Duty is not payable - Though the aforesaid decision is Interim Stay order but we agree with the view expressed by the Tribunal.
Thus, in terms of Rule, 21(1) the appellant are not liable to pay the differential Anti-dumping duty - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 358 - CESTAT MUMBAI
Compounding of offences - Section 137(3) of the Customs Act, 1962 - Appellant filed an application under the said Rules for compounding of offence on 10/02/2006 but since the offence committed by the Appellant is punishable under Section 120B IPC r/w Section 135 of the Customs Act, 1962 therefore the said application was not considered being outside the purview of the then Compounding of Offences Rules, 2005.
HELD THAT:- The purpose of compounding of offences against payment of compounding amount is to prevent litigation and encourage early settlement of dispute. In the guidelines issued vide Circular No. 15/10/2009 no prohibition has been imposed against deciding the application for compounding of offences which were earlier rejected on the technical ground being outside the purview, nor there is any embargo that if the application has been rejected earlier the same cannot be entertained again even if it falls within the purview of compounding of offences as per the guidelines of 2009. A perusal of the said circular/guidelines makes it clear that it is not applicable only qua those case which has been specifically excluded in that circular/guidelines from the purview of compounding. It is not the case of the Appellant that the offence committed by him is no longer an offence. His only plea is that now the offence under the Provision of IPC can also be compounded as per the Circular of 2009.
Going by the reasoning given by the learned Commissioner, the very purpose of compounding of offence i.e. to prevent litigation and encouraged earlier settlement of dispute, will be defeated. The Application for compounding of offences can be rejected only on the grounds mentioned in the guidelines issued by Circular dated 2009 and not otherwise. After going through the guidelines issued by Circular dated 2009, I am of the view that the Application filed by the Appellant for compounding falls within the four corners of the Circular dated 2009 and the same deserve to be allowed.
Appeal allowed - decided in favor of appellant.
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