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Customs - Case Laws
Showing 121 to 140 of 162 Records
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2020 (2) TMI 357 - CESTAT MUMBAI
Refund of amount deposited with Customs - amount has been paid by appellant on their own account - Advance license scheme - violation of actual user condition, the condition on which license was granted - HELD THAT:- Although it is the case of the Appellants that the said amount has been paid by them under duress but it has nowhere mentioned in the letter dated 8.10.2007 or in any other communication by the Appellant to the Department nor any other communication which substantiate the argument of duress has been brought on record. It has been vehemently argued on behalf of the Appellant that the aforesaid amount has been paid by the Appellant from their own account, but the wordings of the order dated 18.4.2001 are on their own account. There is a big difference between the meaning of the words from their own account and on their own account.
The Appellant has to establish that the amount has been paid by them on their own account which they failed to establish through any of the documentary evidence produced by them. It is true that the revenue, in the Appeal filed by M/s. Kunal Overseas Ltd. before this Tribunal against the Order-in-Original dated 18.4.2001 opposed its request to reduce the pre-deposit amount by the amount of ₹ 20 lacs paid by the Appellants herein, but that does not mean that it is the stand of the Revenue or that it has been pleaded by the Revenue that the aforesaid amount of ₹ 20 lacs was paid by the Appellant herein on its own account and not on account of the importer. The Appellant has to stand on its own legs and establish that they have paid the aforesaid amount of ₹ 20 lacs on their own account, which they failed to establish.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 356 - CESTAT CHENNAI
Classification of imported goods - Closed Circuit Television (CCTV) Cameras - to be classified under CTH 8525 8010 or under CTH 8525 8090? - HELD THAT:- A close look at the above Bills-of-Entry reveals that there are differences as regards the descriptions of the imported goods are concerned. In any case, there is no dispute that the appellant itself had classified under CTH 8525 8090 in its Bill-of-Entry under dispute and thereby effectively prevented the Revenue from questioning further.
From the HSN Note read with the Customs Tariff Heading 8525, it is found that there is no entry specifically for CCTV cameras and it is nowhere even hinted that CCTV cameras, which according to the appellant are neither digital cameras nor video camera recorders, would fall under the category of television cameras itself and hence, this argument of the assessee cannot be accepted. For these reasons, they cannot be classified under television camera, but rightly under “Others” for the period in dispute, since we cannot add or substitute our views/opinions, to negate Revenue’s classification, just to go with appellant’s claim which is based only on arguments.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 355 - CESTAT CHENNAI
Levy of penalty u/s 112 (a) of the Customs Act, 1962 - smuggling of Gold - reliance placed on statements of co-noticees, which were later on retracted - call records also formed basis of demand - HELD THAT:- In the Order-in-Original, the Adjudicating Authority has, no doubt, explained very succinctly the modus operandi of the main accused and the involvement to some extent of Mr. Francis and Mr. Karunanithi, from where the role of the appellant kicks in, and as the Adjudicating Authority has extracted, both appear to have stated that the appellant knew about the gold smuggling. Their statements assume relevance since both of them have inter alia stated that they are working in the appellant’s service agency which fact has not been denied - Now, the appellant’s explanation regarding the call records coupled with the extracts of statements of persons apprehended on the early hours of the eventful day lead us to understand that considering the gravity and nature of the offence/activity alleged, the explanation offered in the form of reply is not at all sufficient to conclude as to the innocence of this appellant, as pleaded.
Considering the calls on record, the appellant cannot wash off his responsibility with a total denial that he did not know Mr. Khaja at all and that there was only a wrong call for about 6 seconds, etc. There has been some calls as well on 10.03.2015 between Mr. Khaja and the appellant, the appellant and Mr. Mathiarasu and again, the appellant and Mr. Khaja, which clearly leads to suspicion for which the appellant could only answer.
The Revenue has made out a case by linking the chain of events, phone calls, etc., towards the scheme planned well in advance for executing anti-national activity by defrauding the Revenue, as brought on record very succinctly by the Adjudicating Authority in the form of unchallenged statements and the call records - there are no reasons to interfere with the impugned order - appeal dismissed.
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2020 (2) TMI 353 - CESTAT CHENNAI
Refund of Countervailing Duty (CVD) and Special Additional Duty (SAD) - non-fulfilment of its export obligations - Section 142 (3) of the C.G.S.T. Act, 2017 - HELD THAT:- The availability of CENVAT paid on inputs despite failure to meet with the export obligation may not hold good here since, firstly, it was a conditional import and secondly, such import was to be exclusively used as per FTP. Moreover, such imported inputs cannot be used anywhere else but for export and hence, claiming input credit upon failure would defeat the very purpose/mandate of the Advance Licence. Hence, claim as to the benefit of CENVAT just as a normal import which is suffering duty is also unavailable for the very same reasons, also since the rules/procedures/conditions governing normal import compared to the one under Advance Authorization may vary because of the nature of import.
Admittedly, the inputs imported have gone into the manufacture of goods meant for export, but the export did not take place. At best, the appellant could have availed the CENVAT Credit, but that would not ipso facto give them any right to claim refund of such credit in cash with the onset of G.S.T. because CENVAT is an option available to an assessee to be exercised and the same cannot be enforced by the CESTAT at this stage.
There is no question of refund - Appeal dismissed - decided against appellant.
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2020 (2) TMI 345 - CESTAT KOLKATA
Quantum of redemption fine and penalty - Valuation of imported goods - enhancement of value - Confiscation of goods - HELD THAT:- The learned Commissioner(Appeals) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by the Tribunal in the case of M/S. OMEX INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (4) TMI 112 - CESTAT NEW DELHI (LB)] - The Tribunal has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of import violating Exim Policy Provisions.
There are no reasons to interfere with the findings of the learned Commissioner(Appeals) on the basis of such decision - appeal dismissed - decided against Revenue.
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2020 (2) TMI 289 - CESTAT CHENNAI
Refund claim - duty paying invoices - rejection of refunds on the ground that the refund claim was not based on the supporting documents and that the refund was sanctioned without verification of the supporting documents in respect of 24 Bills-of-Entry - HELD THAT:- It is clear that the Adjudicating Authority has sanctioned the refund after going through the original documents placed on record, a copy of which was also filed before the First Appellate Authority. The Revenue having not been able to locate the original documents, is apparently seeking indulgence at the cost of the taxpayer, which cannot be appreciated.
The First Appellate Authority has not suspected the arguments of the assessee as regards filing of necessary documents before the Adjudicating Authority, the acknowledged copy of the letter of which was also duly verified by him and the Revenue has not been able to disprove the above factual findings.
Appeal dismissed - decided against Revenue.
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2020 (2) TMI 284 - CESTAT MUMBAI
Validity of assessment order - order for auditing under section 17(6) by the proper officer - enhancement of value of imported goods - HELD THAT:- The Assessing Officer, on re-assessment was required to pass a speaking order, in terms of sub-section (5) specifying the grounds for such reassessment. In the present case Commissioner (Appeal) has while setting aside the order of reassessment directed the audit as per Section 17(6) ibid. Commissioner (Appeal) could not have directed such an audit in terms of sub section (6) because audit as contemplated is the internal function of the revenue, for purpose of safeguarding the revenue, in case where re-assessment has been done by way of speaking order or otherwise. In appeal Commissioner (Appeal) could have remanded the matter for a speaking order to be passed in terms of sub section (5) by the assessing officer.
The matter is remanded to the assessing officer for reconsideration and disposing of the matter with a speaking order as per sub-section (5) of Section 17 of Customs Act, 1962 - appeal allowed by way of remand.
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2020 (2) TMI 243 - GUJARAT HIGH COURT
Legality and validity of detention order - COFEPOSA Act - alleged smuggling of goods, abetting smuggling of goods and engaging in transporting or concealing or keeping smuggled goods - gold - cigarettes - betel nuts - inordinate delay in passing detention order - HELD THAT:- The detention order stands vitiated on account of inordinate and explained delay in passing detention order, non supply of vital material / documents, more particularly bail orders of the Competent Court and release of co-detenue Shri Ramnarayan Laddha, on identical fact situation, his detention order was revoked by the Advisory Board - So on these three grounds, present petition deserves to be accepted and accordingly, it is hereby allowed.
Detention order passed by respondent no.2 is hereby quashed and set aside. The petitioner shall be released forthwith, if he is not required in any other offence - petition allowed.
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2020 (2) TMI 242 - BOMBAY HIGH COURT
Revocation of CHA License - time limitation - enquiry not completed within 90 days - HELD THAT:- The Tribunal had revoked the suspension of the license and as on today the Petitioner continues to function as a broker. The period of 90 days therefore as far as the Petitioner is concerned cannot be considered as mandatory but it was more of a direction in the interest of the Respondents. Therefore, on this ground alone, the enquiry cannot be quashed.
In the reply affidavit the Respondents have explained the reason for delay. They have referred to the proceedings taken place at Jodhpur. Considering the explanation, it cannot be said that there is gross delay and a complete failure of the Respondent to complete an enquiry so as to warrant quashing of the proceedings.
The learned Counsel for the Respondents, on instructions, states that the Respondents will complete the enquiry within a period of 12 weeks, however, the Petitioner must co-operate with the same and as far as presence of witnesses is concerned, the Respondents will try their best to examine them but there could arise certain eventualities unforeseen by the Respondents, such as witnesses may take time - accepting the statement of the Respondents that an enquiry will be completed within a period of 12 weeks subject to availability of the witnesses and co-operation of the Petitioner, the Writ Petition is disposed of.
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2020 (2) TMI 241 - DELHI HIGH COURT
Detention of imported goods - over-valuation - Board's Circular No. 01/2011 Cus. dated 04/01/2011 - HELD THAT:- The goods have already been ordered to be provisionally released upon certain conditions and, therefore, we see no reason to entertain this writ petition.
The 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.
Since, an order of the provisional release is appealable order, hence also, we see no reason to entertain this writ petition - Petition dismissed.
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2020 (2) TMI 240 - BOMBAY HIGH COURT
Maintainability of appeal when the Appeal against such Order of the Chief Commissioner was voluntarily withdrawn by the same Appellant and no further remedy was sought against such order - Tribunal entertained the appeal - Maintainability of Appeal against an Order of the Principal Commissioner - speaking and reasoned Order - HELD THAT:- They seek to question the jurisdiction of the Tribunal to entertain the appeal from the Order-In-Original. It is the argument of the Appellant that when appeal against order of Chief Commissioner was withdrawn and no further remedy was sought, an appeal before the Tribunal from the Order-In-Original could not have been entertained. This submission cannot be accepted. The Tribunal has entertained the appeal against the Order-In-Original relying on the decision of the Division Bench of this Court in the case of THE PRINCIPAL COMMISSIONER OF CUSTOMS VERSUS BOMBINO EXPRESS PVT. LTD. [2018 (2) TMI 1509 - BOMBAY HIGH COURT]. In this case also an identical argument was advanced. The Appellant in this case also had approached the Tribunal after rejection of the representation. In the case of Principal Commissioner of Customs vs. Bombino Express Pvt. Ltd., objection was raised to the jurisdiction of the Tribunal on the ground that there was merger of the order passed under representation with the Order-In-Original and thereafter no appeal should have been entertained by the Tribunal.
Whether the Honourable CESTAT’s Order is legal & proper in its conclusion that no inquiry was conducted pursuant to suspension of the registration when it is clearly detailed in the Order in Original dated 26-11-2015 that, the decision to grant no further license was being ordered with attendant forfeiture and penalty based on the inquiry/investigation conducted by issue of SCN dated 12-12-2014 as adjudicated by Order in Original dated 26-10-2015? - HELD THAT:- It takes exception to the observations of the Tribunal that procedure as contemplated under the Regulation 14 was not followed while revoking the registration of the Respondent. This submission also cannot be accepted. The operative part of the Order-In-Original is ambiguous. It only states that no license to operate be granted to the Respondent under Regulation 10. The learned Counsel for the Appellant submitted that the Order-In-Original revokes the license and there is ample material on record to show that the revocation was justified. There is no debate on the factual position that, after suspension of the license there was no further inquiry giving opportunity to the Respondent before passing the Order-In-Original - The second proviso to the Regulation 14 states that if Principal Commissioner or Commissioner of Customs is of the opinion that grounds cannot be established prima facie without an inquiry, he may conduct an inquiry and in the meanwhile may suspend the registration. If suspension of the license takes place then the proviso contemplates an inquiry.
Appeal dismissed.
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2020 (2) TMI 239 - MADRAS HIGH COURT
Service of SCN - Refund of SAD - Section 3(5) of the Customs Tariff Act, 1975 in terms of N/N. 102/2007-Cus dated 14.09.2007 - purported failure on the part of the petitioner to correct the deficiencies pointed out in the respective memos issued to the petitioner on 10.07.2012 in terms of Public Notice No.39/2011 dated 14.06.2011 - principles of HELD THAT:- Since the refund claims were to be rejected, the respondent ought to have issued proper notices to the petitioner and called upon the petitioner to show cause as to why the refund claims of the petitioner should be rejected, even if the deficiencies pointed out in the respective memos were not rectified by the petitioner.
In VASTA BIO-TECH PVT. LTD. VERSUS ASSISTANT COMMR. OF CUS., CHENNAI [2018 (1) TMI 1437 - MADRAS HIGH COURT], this Court under a similar circumstances had set aside the order stating that the order was passed in violation of principle of natural justice - in this case also there is violation of principle of natural justice though the petitioner failed to remove the deficiencies pointed out in the respective memos.
The impugned orders dated 14.08.2012 may be treated as show cause notices - petition disposed off.
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2020 (2) TMI 238 - DELHI HIGH COURT
Selection of petitioner in the examination of Customs Broker - submission of the learned senior counsel for the petitioner is that under the Customs Brokers Licensing Regulations, 2013, the applicants who were successful in the written examination, were entitled to be called for oral examination within two years from the date of declaration of the result of the related written examination - Section 6 (c) of the General Clauses Act, 1987.
HELD THAT:- The contention of the petitioner is completely misplaced. It seems that the petitioner comprehends that merely because under the 2013 regulations, the petitioner was entitled to seven attempts to clear the examination for getting custom broker license, he has a vested right to claim such number of attempts, and the respondents could not have brought in the 2018 regulations which reduced the number of attempts only to six. Similarly, the petitioner is under a misconception that merely because under the 2013 regulations, he is entitled to two attempts at interview, the same could not have been cut down. His submission that-since under the 2018 regulations, a candidate has to clear the interview in a single attempt, the same violates his fundamental rights enshrined under Article 14, 19(1)(g) and 21 of the Constitution of India is completely untenable. Petitioner cannot question the curb put by the respondents in respect of the number of attempts for clearing the interview. In our considered opinion, the arguments of the petitioner are inherently flawed. The petitioner has concededly not cleared the examination whilst the 2013 regulations were in force. He did make five attempts, but was unsuccessful. Therefore, in that sense of the matter, no right whatsoever, much less vested right can be said to have accrued in favour of the petitioner under the said regulations.
Since the petitioner did not clear the examinations whilst the 2013 regulations were in operation, the same cannot be the basis of impugning the fresh regulations, even if the same superseded certain clauses of the 2013 regulations, that enabled the Petitioner better opportunities. The principle of law being pressed into service that a vested right cannot be taken away, is not attracted in the present case - Merely because 2013 regulations provided for seven opportunities to clear the written examination, and two for oral examination, does not mean that such regulations have to remain effective in perpetuity, and that the respondents cannot introduce fresh regulations. If we were to construe that a right would accrue or vest in favour of a person merely because a particular rule, regulation or a legal provision enables him/her to avail of an opportunity as provided, and that the same cannot be modified or altered, it would amount to holding that no rule or regulation can be superseded or modified under any circumstances. The respondents are at freedom to bring a change in the regulations, if the circumstances and the need so arises, and the same has to be done in accordance with law. The provisions of such regulations cannot be declared to be ultra vires only for the reason that certain clauses which existed prior thereto have been modified.
In the present case, no right whatsoever has accrued in favour of the petitioner that permits him to avail seven attempts to crack the examination in question, and two chances to appear in the interview, even though the Rules have changed. Examinations held under the regulations of 2018 cannot be treated as those undertaken under the 2013 Regulation. They are strictly governed by their own regulations. The 2018 Regulations are prospective in their nature and have been applied prospectively.
Petition dismissed - decided against petitioner.
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2020 (2) TMI 237 - MADRAS HIGH COURT
Rejection of revision application - Duty Drawback - Section 129 DD of the Customs Act, 1962 - delay in getting foreign remittance - imposition of penalty u/s 117 of CA - HELD THAT:- In this case a SCN was issued to the Petitioner on 27.08.2010. The Petitioner had failed to file the relevant BRCs/extensions from Reserve Bank of India in time. Therefore, the Third Respondent was justified in issuing the above mentioned Show Cause Notice to the Petitioner. The fact however, remains that the Third Respondent has come to a conclusion that there was export realization though belatedly and therefore dropped the proceeding but at the same time has imposed of penalty for late realization of the export proceeds. Section 117 makes it very clear that penalty is to be imposed where there is failure to comply or where there is a violation in law, penalty can be imposed. The exporters do face difficulties in realization of export proceeds and therefore not all cases where there is a delay in producing BRCs penalty is to be imposed. Further, imposition of penalty may result in denial of export incentive indirectly in several cases.
This is not a fit case for imposition of ₹ 25,000/- as there is a realization of the export proceeds. However, since there is a failure of penalty imposed under Section 117 of the Customs Act, penalty of ₹ 25,000/- is reduced to ₹ 5,000/- - Petition disposed off.
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2020 (2) TMI 236 - ANDHRA PRADESH HIGH COURT
Import of Pigeon (peas (Cajanus cajan) / Toor Dal - Import of restricted item or not - sections 3 and 6 of Foreign Trade (Development and Regulations) Act, 1992 - validity of N/N. 19/2015-2020 dated 05-08-201897 - principles of natural justice - HELD THAT:- Section 3 of the Act confers the power on the Central Government to make orders and polices. Section 6 of the Act prohibits the exercise of this power, particularly under Section 3 of the Act by any other Officer. The powers under Section 3, 5, 15, 16 and 19 of the Act, cannot be exercised by any one else or be delegated. But if the impugned notifications are seen, they very clearly state as follows: “the Central Government hereby amends”. Thus, it is clear that it is the Central Government alone that has amended these rules. Apart from that, the points raised by the learned Assistant Solicitor General also deserve consideration. The Central Government has to function through a human agency, who has to sign and authenticate these orders. The Government, therefore, passed the orders in the name of President of India called the Authentication of orders and Instruments Rules, 2002.
As far as the DGFT is concerned, the power has been given to the Director General of Foreign Trade, the Additional Director General and others to sign to authenticate all instruments made and executed in the name of the President of India (Rule 12). The rule about authentication is very clear and admits of only one interpretation.
This Court is therefore of the opinion that there is no merit in the contention urged by the learned counsel for the petitioner. The notification clearly states that it is issued by the Central Government. 2002 Rules that are produced permit the authentication thereof by the DGFT - this Court holds that the challenge to the notification has to fail.
Petition dismissed.
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2020 (2) TMI 235 - CESTAT BANGALORE
Imposition of redemption fine and penalty - mis-declaration of ‘country of origin’ of goods in the bills of entry - import of Bitumen - prohibited goods or not - HELD THAT:- In the present case there is no dispute that the impugned goods i.e., bitumen is not prohibited goods either under the Customs Act or Foreign Trade Policy or any other law in force at the time of importation of goods and the Customs in the show cause notice has admitted this fact. It is also a fact that there is no prohibition of impugned goods from Iran either under the Customs Act or Foreign Trade Policy - Further, the only allegation against the appellant in the present case is that in the bill of entry filed by them, they have wrongly mentioned the ‘country of origin’ as “UAE” whereas in fact the ‘country of origin’ is from Iran - After perusal of various statements made by the various persons during the course of investigation including that of the appellant, it is found that nobody has spoken against the appellant that the appellant is in any way involved in the manipulation of changing the ‘country of origin’ documents.
The appellant has filed the bill of entry and showed the ‘country of origin’ as “UAE” on the basis of documents supplied to him by the supplier based at UAE. Further no document has been produced by Revenue on record to show the involvement of appellant in any way in the said mis-declaration. Further, in the present case the appellant has not claimed any preferential rate of duty. After examining the provisions of Section 111(d) and 111(m), it is found that both the provisions are not applicable in the fact and circumstances of this case. Further, no mala fides has been brought on record on the part of appellant so as to impose penalties on the appellant under Section 112(a) and Section 114AA of the Customs Act, 1962.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 234 - CESTAT HYDERABAD
Export of goods under DEPB Scheme - mis-classification of export products under the DEPB schedule with the intention of claiming higher DEPB credit - confiscation - redemption fine - penalty - HELD THAT:- It is not in doubt that the goods were declared in a particular manner in the export documents and that they were cleared by the department officers after assessment and examination. As per the description given in the documents, the DEPB schedule under which they claimed credit matched. There is nothing on record to show that the duplicate set of invoices which they prepared for the overseas importers were presented before the customs officers. Only subsequent investigations by the DRI resulted in unearthing of the documents including the duplicate set of invoices - the First Appellate Authority has not considered this aspect or given any findings thereon.
Confiscation - redemption fine - HELD THAT:- During the relevant time Customs Act, 1962 extended to the whole of India [Section 1(2)]. There was no extra territorial jurisdiction to the Customs Act during the relevant period. A plain reading of Section 1(2), 2(19) and Section 113 shows that during the relevant period since the Customs Act extended only to the whole of India and not beyond, action under this act could be taken only within the country and not outside. Therefore, only the export goods, i.e., the goods which are to be exported could be confiscated. There was no provision to confiscate the goods which have already been exported. Therefore, in the present case, the First Appellate Authority was correct in setting aside the confiscation of the goods under Section 113 as this section did not provide for such confiscation - Since the goods cannot be confiscated under Section 113, the question of the order imposing a redemption fine under Section 125 also does not arise.
Penalty - HELD THAT:- The penalty under Section 114 is dependent upon the goods being held liable for confiscation under Section 113 this penalty also does not sustain.
This is a fit case to be remanded to the First Appellate Authority with a direction to give a specific finding with regard to the mis-declaration of the goods by way of duplicate set of invoices and the consequences of such mis-declaration on the eligibility of DEPB credit at the rate claimed by the respondent - The impugned order is upheld to the extent of setting aside confiscation imposition of fine and penalties are cancelled - Appeal allowed by way of remand.
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2020 (2) TMI 233 - CESTAT MUMBAI
Fraudulent removal of imported goods without payment of proper customs duties - contravention of the provisions of Section 12 of Customs Act, 1962, read with Notification no. 34/97 dated 07.04.1997 - Wilful presentation of wrong documents - Confiscation - penalties - HELD THAT:- The Show Cause Notice dated 13.03.2009 demanded only part of duty that has been debited by the respondents, from the DEPB License in respect of the Ex-Bond Bill of Entry. The demand made in the Show Cause Notice dated 11.03.2010 was in respect of the entire amount of duty that was to be paid in respect of the said ex-bond Bill of Entries. Commissioner has by removing the Ex Bond Bill of Entries covered by the Show Cause Notice dated 13.03.2009 from the demand made in the Show Cause Notice dated 11.03.2010, has without considering the demand made in respect of said Ex Bond Bill of Entries by the second show cause notice limited the demand to the amount shown to be paid by utilizing the DEPB License.
Since Commissioner has instead of reducing the overlapping demand made by the two show cause notice, removed the entire demand made against those ex-bond Bill of Entries by Show Cause Notice dated 11.03.2010, which were covered by earlier Notice dated 13.03.2009 we are not in position to uphold the impugned order in this respect. In our view Commissioner should have recorded finding in respect of each Bill of Entry covered by Show Cause Notice dated 11.03.2010 and then confirmed our dropped the demand made. If there was any overlapping demand in the two show cause notices, then the demands should have been adjusted to the extent of overlap. Thus the matter needs to be remanded back to the adjudicating authority to re-determine the issues in respect of the Bill of Entries covered by 2nd Show Cause Notice, which have been removed by him for the reason of their being covered by 1st Show Cause Notice.
Imposition of penalties u/s 112(a) of CA - HELD THAT:- From the findings recorded by the Commissioner, it is evident that he has imposed the penalty on Appellant, CHA, for his failure to discharge the obligations cast on him in terms of Regulation 13 of Custom House Licensing Regulation 2004 and also certain activities of one of his employee namely Shri Rajesh Bhanushali - However, Hon’ble Delhi High Court has in case of COMMISSIONER OF CUSTOMS VERSUS SHIVA KHURANA [2019 (1) TMI 838 - DELHI HIGH COURT] has held there is nothing in the Regulations nor in the Customs Act which can cast such a higher responsibility as are sought to be urged by the Revenue. In the absence of any indication that the CHA concerned was complicit in the facts of a particular case, it cannot ordinarily be held liable - penalty cannot be upheld and is set aside.
Appeal allowed by way of remand.
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2020 (2) TMI 204 - BOMBAY HIGH COURT
Jurisdiction - power to reopen an appeal - power to review an order - Whether CESTAT could reopen an appeal for hearing which was already finally disposed of by its own previous order? - Whether CESTAT has power to review its own order and pass fresh final order in the absence of any petition for review?
HELD THAT:- It is obvious that very taking up the Appeal by the Tribunal on 19th April, 2007 was an exercise in excess of jurisdiction. Since the Appeal had already been disposed of by the order dated 10th July, 1998, there was really no occasion for taking up such appeal for reconsideration. It is obvious that such taking up of the Appeal was a result of miscommunication. It is obvious that the factum of disposal of the Appeal by order dated 10th July, 1998 was not brought to the notice of the Tribunal, either by the SDR or the staff of the Tribunal. For these reasons alone, the impugned orders dated 19.04.2007 in both these appeals are liable to be set aside and are hereby set aside.
It is not necessary to go into the larger issue as to whether the Tribunal has any power to review its own Judgments and orders. However, we must note that Ms. Desai did place reliance upon the decision of the Madras High Court in CP. AQUACULTURE (INDIA) PVT. LTD. VERSUS PRESIDENT, CESTAT [2010 (11) TMI 166 - MADRAS HIGH COURT] to submit that the Tribunal is not vested with any such power of review.
The substantial questions of law are liable to be answered in favour of the Appellant and against the Respondent.
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2020 (2) TMI 203 - GUJARAT HIGH COURT
Condonation of delay in filing appeal - financial hardships of the appellant not considered - principles of natural justice - HELD THAT:- Although the sufficient cause assigned may not be quite convincing, yet having regard to the merits of the main matter and also with a view to give one opportunity to the appellant to make good his case in appeal before the Tribunal, we are inclined to exercise our discretion in favour of the appellant.
The delay in preferring the appeal before the Tribunal is hereby condoned. The impugned orders passed by the Tribunal are hereby quashed and set aside. The main appeal is restored to the original file of the Appellate Tribunal - decided in favor of appellant.
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