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Customs - Case Laws
Showing 81 to 100 of 162 Records
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2020 (2) TMI 767 - BOMBAY HIGH COURT
Maintainability of petition - alternative remedy of appeal - period of limitation prescribed for preferring an appeal - Section 128 of the Customs Act - HELD THAT:- It is urged that the documents enlisted in Annexure-A to show cause notice were not supplied. The Petitioners were not permitted to cross-examine the persons whose statements are relied upon and no separate penalty can be imposed upon the Proprietor and the Firm.
In order to test the argument so advanced, we have gone through the findings recorded by the adjudicating authority. We find that all the points consisting of disputed question of facts are dealt with in the order. If the findings recorded are wrong, the jurisdiction of the appellate authority is wider than the jurisdiction under Article 226 of the Constitution of India to appreciate or re-appreciate even the evidence on record. We, therefore, do not find any reason to entertain this Writ Petition.
Petition dismissed.
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2020 (2) TMI 766 - CESTAT AHMEDABAD
Classification of imported goods - LMS Bundles and Heavy Melting Scrap - whether classifiable under CTH 72044900 or under CTH 72044100 of the Customs Tariff Act, 1975? - Benefit of Notification No. 21/2002-Cus dated 01.03.2002 - HELD THAT:- The appellant is a manufacturing unit and using the imported material for melting thereof and use in the manufacture of ingots therefore, as per the use there is no doubt that the goods is melting scrape. Even though there can be a dispute to whether it is falling under Custom Tariff Heading No. 72044100 or 72044900 but as per the entry No. 200 for the purpose of exemption under notification No. 21/2002-CUS all the waste and scrape of 7204 if it is a melting scrap are exempted. Therefore, as per the facts of the present case the chapter sub heading of the goods is not very significant.
According to the nature of the goods there is no doubt that even though it is in the nature of “HR Side Cutting” but the same has no other use except for melting and all the melting scrap is covered under exemption notification No. 21/2002-CUS under serial No. 200 - It is not the case of the department that the goods so imported is not scrap but classifiable as HR Coil or Sheet.
It cannot be said that the appellant has mis-declared the goods and consequently the goods are not liable for confiscation - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 765 - CESTAT KOLKATA
Confiscation - penalty - Illegal attempt for exportation - Export of pesticides without any valid Bill of Export - HELD THAT:- It is observed that the Department could not justify the reason for not chasing the persons alleged to have carried the boxes in their hands or on head load on foot to Nepal though at 07.00 hrs. though they had the motor vehicle and manpower - It was also not clear as to how the Driver and Khalasi allowed unknown persons to unload cartons without their permission as no third person was available in that truck/vehicle.
It appears that the investigation agency could not prove beyond doubt that the goods were actually attempted to export illegally to Nepal. The activities of the appellants may be suspicious but not enough to hold charge of attempted to export in the absence of positive evidence - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 764 - CESTAT KOLKATA
Imposition of penalty - Smuggling - Red Sanders - positive act or omission or abatement on the part of the Appellant - whether in the facts and circumstances of the case there is sufficient reasoning has been given by this bench while imposing penalty of ₹ 15, 00,000 on the appellant? - HELD THAT:- In order to be liable for penalty, in terms of Section 114 of Customs Act, 1962, a person has to do or omit to do any act which act or omission would render such goods liable to confiscation under Section 113, or abet the doing or omission of such an act. Going by the wordings of the Section, it is apparent that there should be positive act or omission or abatement on the part of the Appellant so as to render him liable for penalty - Ld. Commissioner (Appeals) has observed that while the Show Cause Notice seeks to impose penalty for connivance, the Adjudicating Authority has imposed penalty for abatement.
Accepting the documents from Shri Sujan Sharma and receiving payment in cash do not in themselves constitute an offence punishable under Customs Act, 1962. No case has been made by the department that there was some positive act or abetment of the smuggling by the appellant. In fact as a Customs Broker, his role has not even begun as the said goods have been apprehended well before they reached the port. There is no whisper leave alone evidence that the appellant was aware of the fact that Red Sanders logs were stuffed in the container and were to be exported in the consignment for which they have received authorization.
The appellant has not rendered himself liable for penalty under Section 114 of Customs Act, 1962 - Appeal dismissed - decided against appellant.
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2020 (2) TMI 763 - CESTAT ALLAHABAD
Absolute Confiscation - penalty - mis-declaration of imported goods - the container was found containing lead scrap, instead of zinc scrap declared by them - appellant took a ground that they have infact ordered for ‘zinc scrap’ and the supplier has mistakenly sent the lead scrap - Rule 17 (2) of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules - HELD THAT:- The Rule itself provide for re-export of the goods in case the same stands illegally imported into India. As such without going into the facts as to whether such import was intentional or by mistake, we are of the view that the ends of justice would meet, if the said goods are allowed to be re-exported - the authorities are directed to allow the re-export of the goods.
Penalty - HELD THAT:- M/s Ruby Impex admittedly the goods found in the containers were other than the goods declared by them. The appellants have also not been able to show any evidence that the same was a mistake on the part of the supplier. As such, the said appellant is liable for penalty. Inasmuch as, the duty involved in respect of the Bill of Entry filed by them was only to the extent of ₹ 81,000/-, though the other imports made by them were also of different goods i.e. the one declared by them in the first Bill of Entry, we deem it fit to reduce the penalty to ₹ 3 lakhs. Further, as the penalty stands imposed on M/s Ruby Impex, the imposition of separate penalty on the Proprietor is not called for as the proprietor and the proprietary concern are to be considered as one and the same. Accordingly, penalty imposed upon Shri Kishan Lal Chawla, Proprietor of M/s Ruby Impex stands set aside.
Appeal disposed off.
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2020 (2) TMI 705 - SUPREME COURT
Calculation and Recovery of customs duty - auction sale of warehoused goods - distribution of sale proceeds - argument of Revenue is that the distribution of sale proceeds has to be in accordance with Section 150 of the Act as there is a specific provision concerning custom duty charges which will have precedence over recovery of warehouse charges under 150(2)(e) of the Act - whether the calculation of the custom duty would be assessed as on the date of the deemed removal of goods from the warehouse in terms of Section 61 as interpreted by this Court in Kesoram or on the date of sale for the reason that the importer has failed to seek clearance of the goods imported?
HELD THAT:- As per the appellants, the right to recover customs duty is superior to the right to recover warehouse charges in terms of Section 150 of the Act and that sale was conducted under Section 72 and not under Section 63 of the Act. If the contention of the Revenue is to be accepted, the custom duty will be much more than the price received in tender sale. However, if the date of calculation of custom duty is treated to be the date of sale, the demand of sum of ₹ 27,47,146/- would be untenable - The appellants have referred to a communication dated 16th April, 2004 wherein the respondent was called upon to clear the goods after the expiry of extended period failing which payment of full amount of duty will be payable together with all rent, penalties, interest and other charges.
KESORAM RAYON VERSUS COLLECTOR OF CUSTOMS, CALCUTTA [1996 (8) TMI 109 - SUPREME COURT] is a case where the importer claimed levy of custom duty which remained in bonded warehouse beyond the permitted period claiming that the duty as is applicable on the date the goods were sought to be removed for home consumption, will be chargeable. This Court found that the goods can be kept in a warehouse in terms of the period specified under Section 61 of the Act and, therefore, Section 68 and Section 15(1)(b) apply only when the goods were cleared from the warehouse within the permitted period or with permitted extension and not beyond the permitted period or permitted extension - The present case is not a case of levy of custom duty on the importer. The importer has not sought the release of goods within the permitted period of warehouse. Therefore, the judgment in Kesoram will not be applicable in respect of the goods to be auctioned on account of failure to seek the release of imported goods by the importer though after the permission from the proper officer.
In view of the Circular issued by the Central Board of Excise & Customs, the custom duty is to be calculated on the sale price and not on the duty as is payable on the date of deemed expiration of permitted period of warehouse. Such Circular of the Board is binding on the Revenue. Therefore, the custom duty has to be paid on the basis of sale proceeds realised from the sale of the goods kept in a warehouse and not on the basis of the custom duty payable at the time of filing the Bill of Entry or on the date of expiry of permitted period of warehouse.
The present appeal is disposed of with directions to ascertain the customs duty keeping in mind the dispensation indicated in the enabling provisions of the Customs Act, 1962 and Chapter 21 of Central Board of Excise and Customs Manual read with circular dated 20th November, 2011 and adjust the same as per the priority specified in Section 150(2) of the stated Act - Appeal disposed off.
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2020 (2) TMI 704 - SUPREME COURT
Purchase from 100% EOU and export - 100% EOU are not entitled for export incentives and exemption - Vishesh Krishi Upaj Yojna - Validity of Circular dated 21st January, 2009 - challenge on the ground that it is contrary to the Foreign Trade Policy 2004-2009 - Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- Section 5 of the Act empowers the Central Government to formulate and announce by notification in the official gazette the Foreign Trade Policy and may also, in the like manner, amend that policy from time to time. The Circular dated 21st January, 2009 does not modify or amend the Scheme notified for the year 2006- 07. It only clarifies that 100% export-oriented units which are not entitled to seek exemption cannot avail benefit indirectly through the purchasers from them. It is modification or amendment of the Scheme which is required to be carried out by publication in the official gazette but not the clarifications to remove ambiguity in the existing Scheme - In terms of Clause 3.8.5 of the Scheme, the Government has reserved the right to specify from time to time the export products which shall not be eligible for calculation of entitlement. Since the Government has reserved right in public interest in terms of the Scheme notified under the Act, therefore, the Circular dated 21st January, 2009 cannot be said to be illegal in any manner.
There are no merit in the argument that exports made through an Export Oriented Unit would be entitled to incentives. The purpose of the Scheme is that 100% Export Oriented Units or units situated in Special Economic Zone are not to be granted incentives. The purpose and object of the Scheme notified cannot be defeated by granting incentives to units which exports though 100% Export Oriented Units - there are no merit in the argument that the Scheme excludes the benefit of exports by units in DTA in a Scheme pertaining to FMS notified along with Yojna in April 2006 for the reason that FMS has an explicit clause whereas the DTA was not excluded from claiming exemption under clause 3.8.2.2 related to Yojna.
The export-oriented units cannot use the appellant for export under the Scheme and to claim benefit of export when it is not permissible for them directly - Appeal dismissed.
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2020 (2) TMI 703 - BOMBAY HIGH COURT
Maintainability of petition - availability of alternate remedy - Principles of Natural Justice - no personal hearing was afforded to the Petitioner, even though the same was requested before issuance of the impugned letter - HELD THAT:- The Respondents are directed to furnish a copy of the alert Circular No.2/2019 to the Petitioner, within 7 days from today. The Petitioners are granted 7 days time to file an additional response to the show cause notice issued to them and in the context of the alert Circular No.2/2019. The adjudicating authority, on remand, to dispose of the show cause notice issued to the Petitioner afresh and on its own merits, without referring to and relying upon the alert Circular No.2/2019. The adjudicating authority to afford a personal hearing to the Petitioner before disposing of the show cause notice, as aforesaid.
The order now made by us and without prejudice to the rights and contentions of the Petitioner, Mr. Dada, learned Senior Advocate for the Petitioner states that the challenge to the alert Circular No.2/2019 is not being pressed for the present - petition disposed off.
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2020 (2) TMI 702 - BOMBAY HIGH COURT
Reduction in quantum of penalty - non-speaking order - principles of natural justice - HELD THAT:- From the perusal of the order passed by the Commissioner it does appear that there were various other parameters which should have been taken into consideration while fixing the amount of penalty. Since there is an absence of considerations of all the parameters the question of law as reframed will have to be answered in favour of the Appellant.
The impugned order to the extent it reduces the penalty from Rupees Ten Crores to Rupees One Lakh is quashed and set aside - appeal allowed.
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2020 (2) TMI 701 - DELHI HIGH COURT
Maintainability of Settlement Commission - applicability of Section 123 of CA on cigarettes - prohibited goods or not - HELD THAT:- It appears that looking to the provisions of Section 127B especially, third proviso thereof, no application could have been made by the respondent in relation to the goods to which Section 123 of the Customs Act, 1962 applies. In the facts of the present case, show cause notice was issued to this respondent on 7th April, 2017 (Annexure P-11 to the memo of this writ petition). The goods involved in this case is cigarettes which is a notified item. The Central Government notification is dated 25th July, 2016 with Notification No.103/2016 – Customs(NT).
Once the goods in question are covered under Section 123, no application could have been preferred by the respondents under Section 127B of the Customs Act, 1962. The first application was preferred on 16.08.2017, the second was preferred on 11.12.2017 and the third application was preferred on 12.12.2017 which are subsequent to the aforesaid notification dated 25th July, 2016. Thus, by no stretch of imagination it can be said that the Settlement Commission had any power, jurisdiction and authority to decide an application preferred by the respondent under Chapter XIV of the Customs Act, 1962.
It is well settled that an order passed by a Court cannot be so interpreted as permitting a statutory authority to act in violation of the statute. We are unable, therefore, to extend the order of the High Court of Punjab and Haryana as permitting the Settlement Commission to entertain the application, filed by the respondents before it on merits, even in the face of the expressed statutory proscription contained in the third proviso to serve Section 127B of the Customs Act.
The order dated 15th February, 2018 (Annexure P-1 to the memo of this writ petition) passed by the Settlement Commission is set aside - petition disposed off.
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2020 (2) TMI 700 - MADRAS HIGH COURT
Revocation of CHA license - Forfeiture of security deposit - service of notice as per section 20(1) of the CBLR - time limitation - whether the SCN issued by the SIIB would constitute an 'offence report' for the purpose of Regulation 20(1) of the Regulation? - HELD THAT:- In the present case a comparison of the SCNs issued by the SIIB on the one hand and the respondent on the other makes it very clear that the latter SCN has been issued only based on the information culled by the SIIB; in fact some portions of SCN dated 27.07.2017 appear to have been bodily lifted from the earlier SCN dated 09.05.2017. Thus, clearly it is the SCN issued by the SIIB that forms the information/'offence report' on the basis of which SCN dated 27.07.2017 has been issued - This argument of the petitioner is thus rejected.
Timelines stipulated in Regulation 20(5) of CBLR - HELD THAT:- The SCN based on the offence report is dated 27.07.2017; thus the enquiry report ought to have been furnished within 90 days from 27.07.2017 i.e. on or before 27.10.2017; however the enquiry report is dated 02.11.2017, beyond the period stipulated in Regulation 20(5) - Courts have consistently taken the view that the timelines set out in the CBLR are not just directory but mandatory and have to be strictly followed/ enforced.
The impugned order revoking the licence is set aside - petition allowed - decided in favor of petitioner.
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2020 (2) TMI 647 - GUJARAT HIGH COURT
Refund of IGST - Zero Rated Supplies - amount of the IGST was not mentioned in the shipping bills - the shipping bills were amended for the purpose of getting the details of the IGST, incorporated in the shipping bills - HELD THAT:- This Writ-Application is disposed off with a direction, to both, the Principal Commissioner of Customs, Mundra Port as well as the Deputy Commissioner of Customs, Mundra Port, to look into the matter and take appropriate decision within a period of four weeks from the date of receipt of the writ of this order. The decision shall be communicated to the writ-applicant in writing.
Application disposed off.
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2020 (2) TMI 646 - PUNJAB & HARYANA HIGH COURT
Grant of Regular Bail - Sections 132 and 135 of the Customs Act, 1962 - HELD THAT:- The guilt of the petitioner/accused shall be determined during the trial. The completion of trial in the complaint case is likely to take considerable time. The detention of petitioner/accused during that period shall not serve any useful purpose more particularly when several of his co-accused have been granted concession of bail. Similarly in the connected FIR case, he has been granted pre-arrest bail. There is nothing on record to show that the petitioner has got past criminal antecedents or that he is a hardened criminal. Therefore, without touching merits of the case, it would be in fitness of things and in the interest of justice, if the present petition is accepted.
The interim bail granted to the petitioner is made absolute, subject to the conditions imposed - petition allowed.
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2020 (2) TMI 645 - MADRAS HIGH COURT
Revocation of CHA license - imposition of penalty u/s 112(a) of CA - time limitation - HELD THAT:- Though the decision of the Division Bench of the Bombay High Court in THE PRINCIPAL COMMISSIONER OF CUSTOMS (GENERAL) MUMBAI VERSUS UNISON CLEARING PVT. LTD., AND OTHERS. [2018 (4) TMI 1053 - BOMBAY HIGH COURT], has given a different interpretation to the effect that the limitation prescribed in Regulation 20 of the Customs License Brokers Act, 2014 is directory and not mandatory, I am bound to follow the views taken by this Court in SANTON SHIPPING SERVICES VERSUS THE COMMISSIONER OF CUSTOMS, THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [2017 (10) TMI 621 - MADRAS HIGH COURT] and M/S MASTERSTROKE FREIGHT FORWARDERS PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS (IMPORTS) , THE INQUIRY OFFICER/ASSISTANT COMMISSIONER OF CUSTOMS [2015 (12) TMI 1148 - MADRAS HIGH COURT] where it was held that Once the limitation prescribed is mandatory, as has been declared by the courts of law, it cannot be stated that, because of the other issues, that is the merit of the case, this mandatory requirement of the limitation can be ignored.
Since the Show Cause Notice dated 07.07.2014 was issued beyond 90 days, the consequential order passed by the 1st respondent is liable to be quashed and is hereby quashed - petition allowed - decided in favor of petitioner.
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2020 (2) TMI 644 - CESTAT AHMEDABAD
Undervaluation of goods - various types of Aluminium scrap imported - allegation raised against M/s AMA, in the said SCN was that they had imported various consignments of Aluminium scrap from various overseas suppliers either directly or through their indenter or purchased the same from various high seas sellers at a grossly undervalued price - HELD THAT:- The demand in the present case has been confirmed under Rule 4 of the Customs Valuation Rules, 1988 by applying price band to LME prices as per Alert circular No. 14/2005 dated 16.12.2005 issued by the Director General of Valuation. Apart from the above, the demand has been confirmed by relying upon the statements of co-appellants viz, the partners of AMA, indenting agents, etc., 3 insurance policies and Brussel Report in relation to one import consignment.
The adjudicating authority has proceeded to redetermine the value of imported aluminium scrap on the basis of the DGOV circular without considering and overlooking the contemporaneous data available before it on record. It is a settled law that if the declared value is to be rejected in that case the CVR, 2008 has to be applied sequentially i.e. Rule 5 and 6 is to be applied. If the value of contemporaneous goods are available, the same shall be basis for redetermination of value, as held by Apex Court in the case of COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS SOUTH INDIA TELEVISION (P) LTD. [2007 (7) TMI 9 - SUPREME COURT].
The adjudicating authority in the present case has confirmed the demand on the basis of the LME price as stated in the DGOV circular - the Tribunal in the case of M/s Sunland Metal [2019 (10) TMI 113 - CESTAT AHMEDABAD] after considering the various case laws and communication/clarification given by the then CBEC/ISRI has held that LME price cannot be the basis for redetermination of value of scrap.
Liability of additional duty of Customs in respect of scrap - HELD THAT:- The Appellant herein is entitled for all reliefs/ exemption associated with the assessment.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 643 - CESTAT NEW DELHI
Valuation of imported goods - import of ‘Li Ning’ brand goods from Singapore for the period February, 2012 to March, 2015 - inclusion of marketing, advertising, sponsorship and promotional expenses/ payments made by the appellant to promote the ‘Li Ning’ brand was a condition of sale - Rule 10(1)(e) of the Customs (Determination of Value of Imported Goods) Rules, 2007 (hereinafter referred as CV Rules) - HELD THAT:- There is nothing in the agreement that a fixed amount or fixed percentage of the invoice value of the imported goods, is obliged to be spent by the appellant as a condition of sale/ import. As per the stipulation in the agreement, the appellant is obliged to or responsible for sales and distribution in its territory of distribution and further to make such expenditure in consultation with the seller, does not attract the provisions of Rule 10(1)(e) of CV Rules. The said Rule 10(1)(e) provides for addition of all other payments actually made or to be made as a condition of sale of the imported goods, by the buyer to the seller or by the buyer to a third party to satisfy and obligation of the seller, to the extent that such payments are not included in the price actually paid (transaction value).
There is total absence of the prescribed condition precedent as the appellant is not obliged to incur any particular amount or percentage of invoice value towards sales promotion/ advertisement. Further, the activity of advertisement and sales promotion is a post import activity incurred by the appellant on its own account and not for discharge for any obligation of the seller under the terms of sale.
The interpretative note to Rule 3(b) provides, that activity undertaken by the buyer on its own account, even though by agreement, are not considered as direct payment, even though they might be regarded as benefit to the seller also. Further, in the facts of the present case, appellant has not paid any amount on behalf of M/s Sunlight Sports – seller. Further, the impugned order is also vitiated due to mistake of fact.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 642 - CESTAT NEW DELHI
Initiation of anti-dumping investigation - imports of “non woven fabric made of polypropylene of GSM 25 or less” originating in or exported from Malaysia, Indonesia, Thailand, Saudi Arabia and China PR - Whether the Designated Authority can give final findings contrary to the essential facts stated in the disclosure statement without even apprising the domestic industry?
HELD THAT:- The foremost requirement is to understand the scope and object of the disclosure statement issued by the Designated Authority in terms of Rule 16 of Anti-Dumping Rules. This Rule mandates that the Designated Authority shall, before giving its findings, inform all interested parties of the “essential facts under consideration” which form the basis of its decision. In so far as the interpretation of Rule 16 of Anti-Dumping Rules is concerned, the WTO panel and appellate body of WTO decisions relating to interpretation of article 6.9 of the agreement on implementation of article VI of the general agreement on Tariffs and Trade 1994 (ADA) needs to be examined. The said articles 6.9 stipulates that the Authority shall before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures as prayed. Additionally article 6.9 also provides that such disclosure should provide sufficient time to the parties to defend their interest. In the Anti-Dumping investigation, since the Designated Authority has to find whether dumping, injury and causal link exist or not, the “essential facts” underlying the findings and conclusions relating to these elements shall form the basis of the decision under Rule 16 of the Anti-Dumping Rules. These “essential facts” are required to be disclosed to the domestic industry / interested parties. The word used in the Rule is “essential facts under consideration”, rather than “essential facts that should reasonably be considered”. Thus, the sole object of Rule 16 as well as of said article 6.9 is to allow parties to defend their interests.
The meaning of word “fact” in various dictionaries is truth, reality and a thing known for certain to have called or to be true and a thing assumed or alleged as a basis for inference and events or circumstances as distinct from their legal interpretations. Thus, the purpose of disclosure of essential facts under Rule 16, in our opinion, is to provide to the interested parties, the necessary information so as to enable them to comment on the completeness and correctness of the facts being considered by the Investigating Authority / Designated Authority. It includes providing additional information or to correct error and comment on or make arguments as to the proper interpretation of those acts. Thus, the “essential facts” referred to in Rule 16 are facts significant in the process of reaching a decision as to whether or not to apply definitive measures as well as those that are salient for a contrary outcome.
In the instant case, the conclusion arrived at by the Designated Authority in the disclosure statement clearly shows that their exists positive dumping material injury to the domestic industry and also a causal link between the dumped imports and the said material injury. Still the conclusions arrived at by the Designated Authority in the final findings are not only at variance with the disclosure statement but are also contrary to what was stated in the disclosure statement - In the present case, the challenge to the final finding is principally based on the contention that the Designated Authority placed reliance upon certain material and facts for concluding the issue against the appellant, which facts did not form part of the disclosure statement and to which the appellant had no opportunity to deal with. The contention of the Appellant, therefore, has merit. Failure to make available to material on which the decision is based is clearly violation of principles of natural justice. It rather amounts to placing reliance on such data not made known to the party concerned.
The matter is remanded to the Designated Authority for Issuing a fresh disclosure with complete details / data / information / methodology which may constitute essential facts under consideration; to afford an opportunity to the interested parties to submit their comments - appeal allowed by way of remand.
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2020 (2) TMI 641 - CESTAT MUMBAI
Principles of Natural Justice - opportunity for cross-examination denied - HELD THAT:- The appeal against the communication rejecting the request for cross examination should normally not be entertained by the appellate authority such as CESTAT, because it is an interim order and even the adjudicating authority has not determined the issues involved in the matter - Appellate authority can and should examine all the issues including the rejection of request of cross examination, only if the adjudication order passed by the adjudicating authority is challenged in appeal before it in terms of Section 129 A (1) of Customs Act, 1962.
There is no bar in the law for the appellants to approach the adjudicating authority himself for reconsideration of the request for cross examination. To the specific query made by the bench as to whether after receiving the communication, have they approached the adjudicating authority for reconsideration of their request for cross examination, the counsel for appellant has replied in negative - It is settled principle in law that new adjudicating authority has to consider the matter afresh and cannot rely on the rejection made by the earlier adjudication authority in the matter. Hence it will be appropriate for the appellants to approach the new adjudicating authority with their request for cross examination, who should consider the same without any bias on account of rejection made by his predecessor.
Appeal allowed by way of remand.
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2020 (2) TMI 640 - CESTAT MUMBAI
Valuation of imported goods - Brass Valve & Zinc Valves - rejection of declared value - redetermination of the value - period 2007-08 - invocation of Extended period under proviso to Section 28(1) (b) of the Customs Act, 1962 - demand of differential duty alongwith interest and penalty.
HELD THAT:- The issue is squarely covered by the decision of tribunal in case of S.K. DHAWAN AND RAJEEV SETH, ESSFO IMPEX PVT. LTD. AND ESS DEE TRADING CO. VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI [2016 (3) TMI 888 - CESTAT MUMBAI] where it was held that In the absence of any evidence it is not possible to accept the statement that the transaction value and the declared value were not actual transaction value.
The distinction sought to be made by the learned Authorized Representative, do not address the crux of issue of rejection of transaction value. Without rejecting the transaction value, the application of any other rule, for re-determination of the value for the purpose of levy of Custom Duty is neither permissible nor admissible position in law as per the decision referred to by counsel for law.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 613 - CESTAT KOLKATA
Validity of SCN - SCN issued u/s 28 of the Customs Act of 1962 - appellant is importer or not - final assessment of Bills of Entry - Valuation - inclusion of freight and insurance charges in the assessable value or not - HELD THAT:- In the present case, the appellant is not the importer and in fact, the importer is M/s JSW as per Section 2 (26) of the Customs Act, 1962.
In the case of ASPINWALL & CO. VERSUS COMMISSIONER OF CENTRAL EXCISE, TRICHY [2001 (4) TMI 144 - CEGAT, CHENNAI], it has been held that simply by presenting papers for clearance of goods, one does not become importer of goods or agent of importer under Section 147 of the Customs Act, 1962. The person presenting the papers cannot be held to be responsible for short levy of duty on grounds of having filed Bill of Entry on behalf of importer - Further, the addition of 1% of the price paid to ship owner as loading and un-loading charges is also not sustainable in law.
In the present case, the actual unloading charges being nil, nothing can be added towards un-loading charges. Further, the addition of 20% and 1.125% of the price paid to ship owner towards freight and insurance, is also not sustainable in law because the said addition is based on a wrong presumption that price paid to ship owner for bunkers and stores is a FOB price. Further, no amount has been incurred by JSW in addition to what has been paid to ship owner and on which duty has already been assessed towards freight and insurance. Thus, when Customs duty has already suffered on value of bunkers and provisions, which included all costs incurred upto the Haldia Port, there is no question of any addition of freight and insurance.
Appeal allowed - decided in favor of appellant.
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