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Customs - Case Laws
Showing 141 to 160 of 162 Records
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2020 (2) TMI 202 - CESTAT AHMEDABAD
Conversion of shipping bills - conversion from Drawback scheme to Duty Free Import Authorization (DFIA) Scheme - request for conversion was rejected on the ground that the appellant exporter made the request for conversion after three months from the date of let Export Order in violation of period prescribed under Board Circular No 36/2010-Cus dated 23.09.2010 - HELD THAT:- From Section 149 of Customs Act 1962 it is clear that no time limit is prescribed. The request of the appellant for conversion was rejected on the sole ground of limitation as prescribed under Board Circular No. 36/2010-Cus. Since the time limit has not been prescribed under the act, the same cannot be fixed by way of the circular. Therefore, if at all there is a time limit by way of circular it is only procedural requirement. Therefore, on this ground of limitation, application could not have been rejected, particularly when circular prescribing time limit is without authority of any statutory provision, act and rules supported.
It is settled law that the time limit prescribed by the Board Circular is not binding as same is not statutory provision in terms of section 149 of the Customs Act 1962.
The appellant is legally entitled for conversion of drawback Shipping Bills to DFIA Shipping Bills in respect of 184 Shipping Bills as per the list provided in appeal along with the appeal memo - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 201 - CESTAT CHENNAI
Penalty u/s 114 of CA - Smuggling - prohibited item or not - red sanders logs and the cabbage bags - allegation that the penalty has been levied based solely on the inculpatory statements - HELD THAT:- The statement of the appellant Shri. Karuppiah recorded on 09.10.2013 under Section 108 of the Customs Act reveals the modus operandi and this appellant has very clearly explained not only the whole transaction but also named various persons involved, in the smuggling activity and has also clearly identified the destination i.e., foreign buyer M/s. Haiphong Petro Trading JSC, No. 782, Chua Ve, Doana, 2nd Street, Dong Hai, 1 Ward, Hai An Dist. HP, Vietnam.
Revenue has linked each and every chain in the whole loop of the master plan to smuggle the contraband by identifying the involvement and role of each and every person whereas nothing is brought on record by the appellants to dislodge even a small link in the above chain. Their contention that they did not claim ownership nor did they have wherewithal, etc., would not help them since in an activity of the nature involved in the present case, the recipient/buyer would be least interested in knowing this. Because, otherwise, the buyer would have right royally bought from the open market after paying all necessary/applicable duties rather than choosing a shortcut of smuggling.
Appeal dismissed - decided against appellant.
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2020 (2) TMI 200 - CESTAT BANGALORE
Refund of SAD - Benefit of N/N. 102/2007-Cus dt. 14/09/2007 - HELD THAT:- This issue is no more res integra and has been settled by various decisions of the Tribunal including the decision of this Tribunal in the appellant’s own case VALLABHDAS AND CO. BALAKRISHNA SALES CORPORATION VERSUS COMMISSIONER OF CUSTOMS COCHIN [2017 (5) TMI 1371 - CESTAT BANGALORE] wherein the Tribunal has allowed all the appeals by relying upon the earlier decisions of the Tribunal. Besides this, both the authorities have wrongly relied upon the decision of the Apex Court which was in respect of N/N. 34/1998-Cus. dated 13.06.1998. Further, the said Notification 34/1998 has been subsequently rescinded by N/N. 58/1998-Cus. dated 01.08.1998. Therefore, reliance by both the parties on a Notification which has been rescinded is not tenable in law.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 199 - CESTAT NEW DELHI
Valuation of imported goods - rejection of declared value - prohibited goods or not - contemporaneous imports/NIDB data - HELD THAT:- The tyres are not prohibited item under Exim policy, and can be imported freely. Further as the tyres are generally required all over the country there are several importers of identical/similar goods. It is trite law that since the goods were assessed by proper officer based on transaction value, onus lies on the Revenue to prove undervaluation, which it has failed miserably to do so since it did not show any contemporaneous import data of identical or similar items or NIDB data to indicate undervaluation and therefore the invoice value is required be accepted and the transaction value itself and hence could not have been discarded.
No copy of the emails on which the Department seeks to rely has been made as RUDs. Emails and other electronic evidence cannot be relied upon to prove undervaluation in absence of compliance of provisions of Section 138C of the Act - Thus statements of Shri H S Chadha cannot be relied upon and given credence to substantiate the Departments claim of undervaluation without any corroborative evidence and the charge of undervaluation cannot be made out on mere assumptions and presumptions especially since he himself has stated on various occasions that there is no undervaluation and these are quotations. Tyres are regularly imported all over the country and therefore the Department could have easily garnered evidence of contemporaneous imports which it admittedly did not do.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 198 - CESTAT NEW DELHI
Request of adjournment - non-prosecution on the part of appellant - HELD THAT:- The appellant is not interested in giving any explanation about contradiction, if any, in the decision of two coordinate benches nor seems aggrieved thereof despite the opportunity was given vide the final order dated 5 March 2019. Thus the absence of the appellant consecutively for almost five times since the impugned final order is sufficient to hold non-prosecution on the part of appellant.
Apparently the said order was not only pronounced in open court but was dictated as a whole in the open court. The recording in para 12 of the said decision is inter-se the Members presiding the said bench it is post pronouncement but before signing the said final order and it was in the interest of justice that the opportunity to both the parties was given to put-forth their stand about the acceptance or denial of those observations in para 12 of the impugned final order. Once the appellant opted to not to appear for the purpose, the final order of 5 March 2019 is definitely a judgment as was pronounced in the open court which should have been operated since the day of its pronouncement.
Appeal dismissed.
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2020 (2) TMI 197 - CESTAT MUMBAI
Smuggling - television of brand name of ‘Sony’ and ‘Samsung’ were found in their premises which were kept for sale - HELD THAT:- In this case, during the course of search, 228 pieces of television sets of ‘Sony’ and ‘Samsung’ were recovered from the premises of the appellant. Revenue made vague allegations against the appellant alleging that these are smuggled-one. In fact, these television sets are having serial numbers and in the case of Samsung Malaysia, it was enquired by Revenue regarding whether these television sets with the serial numbers have been manufactured by them or not. In reply to the query, the same were answered ‘no’. If that is the situation, Revenue has failed to prove that the television sets in question are smuggled one.
Moreover, the item in question is not notified item under Section 123 of the Customs Act, 1962. Therefore, the appellant is not required to prove that these television sets have been procured by them from licit means. It is the burden on the Revenue to prove that these television sets are smuggled-one which Revenue failed to do so.
The appellant is neither liable to pay any duty nor these goods are liable for confiscation. Therefore, no redemption fine and penalty is imposable on the appellant - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 196 - CESTAT ALLAHABAD
Restoration of appeal - monetary amount involved in the appeal - HELD THAT:- The present Miscellaneous Application is filed by revenue and the contention of revenue is that the disputed amount is more than ₹ 10 lakhs and being the Customs appeal the same is not covered by litigation policy and therefore, Final Order may be recalled and appeal may be restored to its original number - Appeal restored to its original number.
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2020 (2) TMI 195 - CESTAT MUMBAI
Imposition of penalty on sales agent of foreign supplier u/s 112(a) and/ or 112(b) of the Customs Act, 1962 - omission/ commission committed by sales agent of foreign supplier or not who has acted on the direction of Principal - HELD THAT:- The matter in the case of Respondent 1 has been settled by the order of Settlement Commission as has been noted by the Commissioner in the impugned order. Even the review order and appeal filed do not urge anything in respect of the dropping of the proceedings against them in view of immunity granted by the Settlement Commission, we do not find any merits in the appeal and dismiss the same as infructuous.
The fact that Shri Santosh Nair (sales agent) has issued the Proforma invoice as directed by Vice President (Sales) of the supplier, has not been controverted by the revenue in the appeal filed. Also it is fact on record that the import documents i.e. Bill of Entry was filed on the basis of Commercial Invoice 328 32686 dated 28.12.1998 issued by the supplier M/s Signtech USA. Since the Proforma issued by the Shri Santosh Nair was not even the basis for filing the import documents the relevance of the same in the current proceedings for imposition of penalty is not understood. In fact said Proforma invoice was never the part of the import documentation, though it was part of negotiation documents between the foreign supplier and the Importer in India.
Thus, Shri Santosh Nair was acting in course of normal business as sales agent of foreign supplier and had offered the sale price of the machine as directed by the foreign supplier to the Indian importer. There is nothing on record to establish that he had abetted in the evasion of duty by mis-declaring the value, for purpose of imposition of penalty under section 112(a) and/ or 112(b) of the Customs Act, 1962.
Appeal dismissed.
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2020 (2) TMI 175 - MADRAS HIGH COURT
Suspension of CHA license - alleged forgery by staff of the petitioner of the signature of the clerk of the Container Freight Station - regulation 20 of CBLR - HELD THAT:- The issue decided in the case of SANTON SHIPPING SERVICES VERSUS THE COMMISSIONER OF CUSTOMS, THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [2017 (10) TMI 621 - MADRAS HIGH COURT] where it was held that the show cause notice issued beyond the limitation period and was not sustainable.
There is no justification keeping the petitioners' license suspended any longer - Petition allowed - decided in favor of petitioner.
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2020 (2) TMI 102 - CESTAT MUMBAI
Import of prohibited goods - Power of customs officers to relax the conditions - Valuation of imported goods - mis-declaration in terms of quantity, value and description - enhancement of value of goods - HELD THAT:- It is an admitted fact on record that the subject goods in the present case were imported, resorting to mis-declaration in terms of quantity, value and also most of the goods were not in conformity with the CDSCO Certificate. This fact is evident from the impugned order - Further, the appellant had not submitted any plausible evidence either before the original authority or the Tribunal, in disproving the correctness of the examination report furnished by the department. On the contrary, it is observed from the submissions recorded from the appellant at paragraph 6 in the impugned order that it had agreed with the fact of mis-declaration of goods and noncompliance of the CDSCO requirement as per the provisions contained in the Drugs and Cosmetic Act, 1940. Thus, we are of the considered view that rejection of the declared value by resorting to the provisions of Rule 12 ibid and re-determination of the same under Rule 9 ibid read with Section 14 ibid is in conformity with the statutory provisions.
In case of non-compliance of the prohibitions/restrictions contained in Section 11 ibid, the discretion vested with the adjudicating authority under Section 125 ibid is to be exercised in the prescribed manner; In case if the restriction or regulation relating to import of goods is violated, then no discretion can be exercised by the Commissioner in offering an option for payment of redemption fine in lieu of confiscation of the goods.
In the present case, regulations for import of perfumes are provided in the Drug & Cosmetics Act, 1940. Since, the appellant did not import the subject goods under the cover of valid CDSCO certificate, the provisions of the said statute have been violated. Thus, the goods are liable for absolute confiscation under the provisions of Section 111(d) ibid. Further, the offending goods were not notified under Section 11 ibid at the material time of import. Thus, the adjudicating authority under the Customs statute was not empowered to relax the conditions provided in the Act, 1940 to offer redemption of goods on payment of fine. Therefore, there are no infirmity in the impugned order, so far it has ordered for absolute confiscation of goods.
The impugned order is sustained as far as goods held liable for absolute confiscation - impugned order sustains, so far as it has redetermined the assessable value under Rule 9 ibid read with Section 14 ibid and absolutely confiscated the goods under Section 111(d) ibid - quantum of redemption fine and penalty reduced - appeal allowed in part.
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2020 (2) TMI 61 - CESTAT BANGALORE
Amendment in shipping bill - rejection of request of the appellant for “No Objection Certificate” for claiming MEIS benefits by amendment of reward option from “No” to “Yes” in Shipping Bills - HELD THAT:- The Commissioner has failed to notice that the appellants have declared their intention to claim MEIS benefits in two cases out of three cases, the shipping bills which have been produced on record. The only lapse on the part of the appellant was that they have mentioned in the reward column as 'N' instead of 'Y', which is only a procedural defect. Further, I find that otherwise the appellant is entitled to claim MEIS benefit as per the export policy. Failure to mention 'Y' in the reward column of the shipping bill for availing the benefit under MEIS scheme can be corrected by amending the shipping bill.
The rejection of request for amendment of shipping bills by the Commissioner is not sustainable in law - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 60 - CESTAT KOLKATA
Revocation of CHA License - forfeiture of security deposit - smuggling of prohibited goods - sticks of cigarette were attempted to be smuggled by concealing them in HDPE granules imported - Regulation 20(1) of CHALR, 2004 - HELD THAT:- A plain reading of N/N. 65/2013-CUS (NT) dt.21.06.2013 shows that the erstwhile regulations have been completely superseded except in respect of things which were already done. Also, there is no separate savings clause in the CBLR, 2013. Therefore, regardless of the fact that the appellant was licensed prior to the introduction of CBLR, 2013, the present proceedings, having been initiated post 2013, must be proceeded under the new regulations. CHALR, 2004 cannot be invoked as they did not exist during the relevant period.
The impugned order is bad in law - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 59 - CESTAT MUMBAI
Imposition of penalties on CHA u/s 112 of Customs Act, 1962 - jurisdiction for imposition of penalties - mis-declaration of vessel - HELD THAT:- It is clear that the case against the custom broker is dependant entirely on the variance with the description found in the certificate issued by the Registry of Indian Ships as well as the certificate issued by the Fiji Shipping Registry. We are unable to arrive at the same conclusion as the licensing authority that the description in these two documents would indicate the classifiability of the vessel as ‘tugs’. On the contrary, the inclusion of ‘supply vessel’ in the description is equally ambiguous in deciding upon the classification. It was, therefore, an overreach on the part of the licensing authority to conclude that description made in the documents despite the possession of these two certificates indicate a deliberate attempt to mislead. There is no adducing to any other motive for erroneous declaration in the bills of entry.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 14 - SC ORDER
Claim of duty drawback on supplies from DTA to EOU - Deemed export drawback - HELD THAT:- Leave granted.
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2020 (2) TMI 13 - DELHI HIGH COURT
Return of bond and bank guarantee given for the purpose of provisional release at the time of clearance of goods - HELD THAT:- It appears that the bank guarantee in question is not a live bank guarantee. Moreover, as submitted by learned counsel for the respondent that vide a communication dated 23rd January, 2020, the Provisional Duty Bond for ₹ 34,92,685/- has been cancelled. It is further submitted by learned counsel for the respondent that by the aforesaid communication, the petitioner has been allowed to collect the bank guarantee dated 26th July, 2017.
In view of aforesaid statements made by learned counsel for the respondent with respect to the Provisional Duty Bond and the Bank Guarantee, the grievances ventilated in this writ petition have been brought to an end by the respondent.
Petition disposed off.
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2020 (2) TMI 12 - DELHI HIGH COURT
Release of seized consignments for purposes of re-export - grant of waiver of demurrages levied upon the Petitioner - monetary compensation in the form of “exemplary damages” - HELD THAT:- The Order-In-Original has already been passed by the concerned authority. Re-export of the goods in question have already been permitted. Moreover, as submitted by the counsel for respondent that vide communication dated 15th October, 2019 which is Annexure-A to the counter filed by respondent No.4, this petitioner has already been communicated that NOC is granted for re-export of the goods in question. Thus, the main grievance ventilated in this writ petition about the re-export of the goods in question has already been granted by the respondent No.4.
Waiver of demurrages - HELD THAT:- This Court in M/S. GLOBAL IMPEX THROUGH ITS PARTNER, SHREE SHYAM ENTERPRISES, SURENDER KUMAR JAIN THROUGH ITS PROPRIETOR, BISHT INTERNATIONAL THROUGH ITS PROPRIETOR, ROOP SINGH ENTERPRISES THROUGH ITS PROPRIETOR, VERSUS MANAGER, CELEBI IMPORT SHED AND ANR., UNION OF INDIA & ORS. [2019 (12) TMI 957 - DELHI HIGH COURT] held that the demurrages are bound to be paid by the petitioner in accordance with law. Accordingly, this petitioner is bound to make the payment of demurrages.
There are no reason to entertain this writ petition for waiver of the demurrages - petition disposed off.
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2020 (2) TMI 11 - CESTAT MUMBAI
Provisional release of goods - Section 129 B of the Customs Act - HELD THAT:- There is no bar for the appellant to make request for reconsideration of the conditions imposed for provisional release of the seized goods before the adjudicating authority. In the present case appellant have done so. Once such a request has been made the adjudicating authority should consider such request and dispose of the same - CBEC vide Circular dated 35/2017-Cus., dated 16.08.2017 issued “Guidelines for provisional release of seized imported goods pending adjudication under Section 110A of the Customs Act, 1962 –reg”. These also should be taken into account by the adjudicating authority while disposing of the representation made by the appellants before him.
The ends of justice will be met if the adjudicating authority is directed to consider the representation dated 6.12.2019 made by the appellant before him - Appeal allowed by way of remand.
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2020 (2) TMI 10 - CESTAT NEW DELHI
Interest on account of delayed sanctioned of refund - HELD THAT:- The deposit that has been made by the Appellant is required to be returned with interest in terms of provisions of Customs Act read with CBEC Circular No. 984/08/2014-CX dated 16/09/2014 - In view of instruction from CBEC, which is binding on the adjudicating authority and also the legal provisions of Section 27 of the Customs Act which mandates the Department to grant interest on refund to the Appellant which has not been done in this case. This is a case of pure harassment to the Appellant by the Departmental Officer in order to get the legitimate due from the Department. The amount of deposit during investigation has been taken illegally and retained by the Department due to callous attitude of the departmental officer including that of Commissioner (Appeals), who has acted contrary to provisions of Customs Act and also against the directions given by the Central Board of Customs and Excise.
Interest is required to be granted to the Appellant for the delayed refund for deposit during investigation as per law - Appeal allowed.
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2020 (2) TMI 9 - CESTAT MUMBAI
Maintainability of appeal - appeal rejected only on the ground that there is no order of assessment by the proper officer of customs as they were RMS facilitated bills of entry and goods were cleared on the self assessment done by the Appellant - Section 128 of the Customs Act - HELD THAT:- Hon’ble Supreme Court in the matter of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] has laid down that as the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The Hon’ble Supreme Court also observed that the order of self-assessment is an order of assessment as per section 2(2), as such, it is appealable in case any person is aggrieved by it. Section 128 has not provided for an appeal against a speaking order but against “any order”, which is of wide amplitude.
The law laid down by the Hon’ble Supreme Court squarely applies on the facts of the case. The language of Section 128 ibid is clear and unambiguous and the reasoning given by the learned Commissioner that since there is no order or decision of any Customs officer, the appeal filed by the appellant cannot be sustained, is erroneous and contrary to law.
Matter remanded back to the learned Commissioner with a direction to decide the Appeal on merits after affording reasonable opportunity of hearing to the Appellant - appeal allowed by way of remand.
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2020 (2) TMI 8 - CESTAT ALLAHABAD
Re-export of imported goods - low Aromatic White Spirit - grant of authorization from DGFT for import of the impugned goods - HELD THAT:- The Original Adjudicating Authority has ordered to redeem the goods and re-export the same. Further, the goods were confiscated for violation of the provisions of the Customs Act read with Foreign Trade Policy. The Foreign Trade Policy has not provided for restriction by any other importers than State Trading Enterprises to import the same. As per the policy, after getting an authorization from DGFT persons other than State Trade Enterprises can import the impugned goods.
There has been a violation of such none production of authorization from DGFT. The order to re-export the same is not sustainable - that part of the impugned order through which the impugned goods were ordered to be re exported after redemption is set aside - clearance of the impugned goods for home consumption on the payment of redemption fine ordered through the impugned orders along with customs duties required to be paid is allowed - all personal penalties set aside.
Appeal allowed in part.
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