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Customs - Case Laws
Showing 1 to 20 of 137 Records
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2023 (5) TMI 1433
Violation of principles of natural justice - denial of request of the petitioner for cross-examination of witnesses - HELD THAT:- It is the settled position of law that when a piece of evidence is sought to be made use against an assessee, such an assessee shall be afforded an opportunity of rebuttal as per the principles of natural justice. When, therefore, a statement of any person is pressed into service against an assessee, the person whose statement is to be relied upon is required to be subjected to cross-examination by the person against whom such statement is being used. Otherwise such statement cannot be used since the same clearly amounts to violation of the principles of natural justice.
The Hon’ble Apex Court has, in the case of M/s. Andaman Timber Industries v. Commissioner of C.Ex., Kolkata-II [2015 (10) TMI 442 - SUPREME COURT] held that 'The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them.'
The scope of this appeal is very limited and the only prayer of the petitioner is for setting aside of the impugned communication and a direction to the Commissioner for affording an opportunity to cross-examine the witnesses whose statements are being used and hence, with the consent of both the parties, the matter is taken up for hearing.
Conclusion - The denial of cross-examination rights when witness statements are used against an assessee constitutes a violation of natural justice, rendering any resultant order null and void.
The communication denying right to cross-examination is not sustainable and the same is therefore set aside - the impugned communication set aside - the Adjudicating Authority is directed to allow cross-examination of any person/s whose statements are sought to be relied upon or used against the petitioner, before passing the adjudication order.
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2023 (5) TMI 1430
Refund of SAD - Seeking recall of the order, whereby the present appeal was disposed of in view of the earlier decision in the case of Pr. Commissioner of Customs v. Kunal Lalani [2022 (4) TMI 270 - DELHI HIGH COURT] - HELD THAT:- In Sony India Pvt. Ltd. v. Commissioner of Customs, New Delhi [2014 (4) TMI 870 - DELHI HIGH COURT], this Court had held that provisions of Section 27 of the Customs Act, 1962 did not apply to Special Additional Duties of customs.
Section 27 of the Customs Act, 1962, did not apply to SAD.
Appeal dismissed.
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2023 (5) TMI 1399
Valuation and enhancement of declared invoice values under Rule 8 of Customs Valuation Rules, 1998 - appellant and M/s. Cisco Systems Management B. V. (Netherlands) are related persons in terms of Rule 2(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1998 or not - loading of declared invoice values of all the imports by the appellants - HELD THAT:- With regard to import of spare parts, it is held that in the case of spare parts also the value of goods will be as same as in the case of goods imported by the importer for their internal use as discussed in para 16 of the Order. At Para 17, the order categorically mentions “In the Years 2001 and 2002, unrelated buyers have been allowed discounts of 50% and 52% respectively. Keeping in view the data provided by the importer.” The order also mentioned that in the year 2003, the average discount given to unrelated buyers in India and the importers is fixed at 54% of GPL. Following the same, the original authority has finalised 224 Bills of Entry loading the value of 46% to 48%. Since the earlier order of 2004, the loading was 65.75% to 75% which had been revised by the order dated 23.4.2009 to 46% and 48%, the original assessing authority while finalising the assessment found that there was an excess payment of duty of Rs. 4,18,60,248/- which is refundable to the appellant. The Commissioner (A) ignoring these facts only harps on last two lines of para 17 which refers to “In rest of the cases where the declared invoice values of the importer are more than the average annual selling price of unrelated buyers in India, the same shall be accepted.” There is no evidence or data to show that the declared invoice value of the spares imported by the appellant was more than the average annual selling price of unrelated buyers in India.
The original authority has rightly finalised the provisional assessment based on the final SVB order dated 23.04.2009 where the loading for the relevant years for the spare parts was 46% to 48% respectively.
Appeal allowed.
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2023 (5) TMI 1394
Classification of imported goods - Oil contained in the Bunker Tanks in the Engine Room/Outside Engine Room of Vessel imported for breaking up - to be assessed independently of the vessel under CTH 2710 or with the Vessel imported for breaking up under CTH 8908 00 00? - As decided by CESTAT [2022 (12) TMI 100 - CESTAT AHMEDABAD] Oil inside the Bunker Tanks in engine rooms are to be assessed to duty under CTH 27.10 are liable to be set aside and Oil contained in Bunker Tanks in Engine Room of Vessel imported for breaking up is classifiable under CTH 8908 along with such vessel.
HELD THAT:- In the light of order of this Court in “M/s Mahalaxmi Ship Breaking Corp. Etc. vs. Commissioner of Customs Bhavnagar” [2023 (4) TMI 1250 - SC ORDER] as said oil is to be assessed as part of the Ship - the present appeals are also dismissed.
All pending applications are disposed of.
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2023 (5) TMI 1379
Challenge to assessment order - rejection of export goods - intention to reexport the goods after curing the defects - Confiscation - penalty - HELD THAT:- In the instant case, this Court specifically permitted the petitioner to invoke its statutory remedy as provided under the Act, which it availed and the petitioner preferred the appeal, and suffered Ext.P16 order.
The statute provides a further appeal before the Customs, Excise and Service Tax Appellate Tribunal under Section 129A of the Act.
It is too late in the day for the petitioner to now aspire and turn around and challenge the legality of Exts.P9 and 16 orders in a writ petition. In the above conspectus, it is not required to entertain this writ petition - petition dismissed.
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2023 (5) TMI 1351
Violation of provisions of notification No.64/2008-Customs dated 09.05.2008, in terms of the show cause proceedings or not, for deciding on the issue of legality of the impugned order - confiscation of goods - imposition of redemption fine - demand of customs duty and interest - HELD THAT:- The issues arising out of the case and allegations raised in the show cause notice have not been discussed with respect to available documents and case records, various submissions made by the appellants before the original authority, by the learned Commissioner of Customs (Export) in the impugned order, to arrive at the conclusion whether the conditions of the Notification No.64/2008-Customs dated 09.05.2008 have been fulfilled or these have been violated by the appellants.
The impugned order lacks appreciation of facts on record and the documents submitted by the appellants which are relevant to the issues of the case, for arriving at a proper decision. There is no discussion or not even a mention of the document produced by the appellants in respect of installation certificate dated 05.04.2009. Thus, the impugned order has not considered all relevant aspects of the case and ignored crucial documents.
The matter needs to be looked into afresh by the original authority for determining the correct position of law in this case - appeal allowed by way of remand.
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2023 (5) TMI 1340
Smuggling - Import of cut betel nut from Nepal - Seizure of goods - confiscation - Contravention of the provisions of Notification No. 09/96-Cus - Onus to prove - HELD THAT:- We find that it is an admitted fact that the item, betel nut is not a notified goods in terms of Section 123 of the Customs Act, 1962. Therefore, onus lies on the Revenue to prove that the goods in question are smuggled one. The revenue has not come up to any direct evidence to prove that the betel nut in question is a smuggled one, but tried to shift the onus on the respondent to prove that the goods are not smuggled one.
The whole case has been hitched on the basis of statements of driver and khalasi. The goods might have come from Nepal, which are to send to Delhi. Nowhere, it is coming out of the impugned goods were imported for Nepal illegally. As Revenue has failed to prove with cogent evidence that the goods are smuggled one. Therefore, onus on the Revenue remains unfulfilled.
Thus, we do not find any infirmity in the impugned order and the same is upheld. Accordingly, the appeal filed by the Revenue is dismissed.
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2023 (5) TMI 1337
Penalty - Confiscation of goods - Import of Beetle Nuts from Bangladesh - seeking permission to re-export the goods to Mayanmar and deposited the redemption fine - SAPTA Certificate - Violation of the provisions contained in DGFT’s notification referred earlier, duty at Tariff Value so fixed by the government u/s 14(2) of Customs Act not charged - HELD THAT:- Disputing the option to reexport the said goods subject to payment of redemption fine and duty the Appellants crave leave of the order passed by the Authorities. Referring to the Hon’ble Supreme Court’s decision in the case of Siemens Limited vs. Collector of Customs 1999 (8) TMI 84 - SUPREME COURT in support of their contention that redemption find and duty were not payable as the imported goods were ordered to be re-exported, they plead for quashing of the impugned order.
It is evident from the show cause notice, that it carries no reference to the test report dated 02.04.2014 and therefore the Order in Original placing reliance on the said test report (samples of which were alleged to be drawn at the back of the assessee), to arrive at the impugned findings, is clearly beyond the scope of the show cause notice. Further, the imported goods have been lying all along, in the custody of the Department, notably for several months, without proper storage conditions and that the initial test reports by the laboratory CFL at Kolkata vide their test report dated 03.12.2013 have found nothing as would render the imported goods unfit for human consumption. The said order of the Department, being in violation of the Principles of Natural Justice, is clearly contrary to the prescriptions of the Hon’ble Apex Court in Siemens Ltd. referred to supra.
The Appellants are not liable to any penal consequences, even though the goods may have become unfit for human consumption. The two test reports when read together clearly indicate that at the time of import, there was no finding about the imported betel nuts being unsuitable for human consumption. The fact that the goods are not re-exported and are now required to be destroyed and so ordered as per due process of law by the authorities, hence no redemptions fine is imposable thereon. The Appellant is also not liable for any penalty for reasons as discussed. The impugned order is therefore, liable to be set aside.
We therefore set aside the impugned order in original and allow the appeal, with consequential relief.
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2023 (5) TMI 1335
Transaction Value - Reassessment of assessable value u/s 17(5) - Non speaking order - Imports PU Leather cloth of various thickness - HELD THAT:- It is a established principle in law that any reassessments undertaken by the officers and enhancement of the value of imported goods has to be clearly spelt out by way of a speaking order issued Section 17(5) of the Customs Act, 1962. Any value loading therefore cannot be undertaken without specified reasons.
There is nothing forthcoming from the case papers as to the basis of rejection of the declared transaction value, except for what at best is in the nature of hearsay evidence, till at least substantiated in accordance with legal provisions. This is particularly so, when the goods have been imported from the manufacturer/agent directly. There is no justification given by Revenue in loading the consignment’s declared value, except for what is stated earlier. The rejection of the manufacturers invoice value is therefore without any cogent explanation. The reassessment is as cryptic as the rejection of the transaction value.
It is clearly indicated in the Commissioner (Appeals) orders that the self assessment/import took place on the manufacturer’s invoice and the said fact of issuance of invoice has not been disputed. The issue therefore, has no warrant for action as per DRI’s letter or the CCRs as said to be fed in the ICES 1.5 System on the basis of communication from Commissioner (Customs). Thus, the appeal filed by the revenue is shorn of any merit and is thus liable to be dismissed. The order passed by the lower authority, the Ld. Commissioner (Appeals) is required to be maintained and upheld.
Thus, the appeal filed by the Commissioner of Customs (Port) Kolkata is dismissed.
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2023 (5) TMI 1311
Absolute Confiscation of imported goods - body massager - consideration of the goods as ‘adult sex toy’ - direction for destroying the seized goods - prohibition on import by notification no. 1/1964-Cus dated 18th January 1964 - imposition of penalties of varying amounts under section 112 and section 114AA of Customs Act, 1962 - HELD THAT:- The law frowns, doubtlessly, on the ‘obscene’ as abundantly clear from section 292 of Indian Penal Code. It is also the law that has stipulated ‘obscenity’ by deeming provision and has, besides, carved out exceptions in 1925 to give effect to concerns articulated in the International Convention for the Suppression of or Traffic in Obscene Publications under the auspices of the League of Nations. That, however, is the law for domestic enforcement by penalizing offenders engaged in sale of obscene book, pamphlet, paper, drawing, painting, representation, figure or article within the country or across the border in either direction; the criminalizing intent of the law must find reflection in action against book, pamphlet, paper, drawing, painting, representation, figure or article.
To limit the remit of notification no. 1/64Cus (NT) dated 18th January 1964 to executive action on imports upon determination of ‘obscene’ in accordance with the laws penalizing ‘obscenity’. The sale of ‘body massagers’ within the national boundaries have not been subject to prohibition and in discarding the submission to that effect, the adjudicating authority did not appear to have found cause to pause for ascertainment of his authority to determine goods as ‘obscene’ solely in international transactions while no such restriction is placed on domestic transactions of the same goods. The appellant had made a specific plea of electronic platforms making allowance for sale of these very goods to domestic consumers - To approve of the detriment brought to bear on the impugned goods would amount to subordinating tariff, and trade prohibition, policy of the Central Government to non-tariff interdiction by subordinate officialdom.
The adjudicating authority has placed erroneous construction on the words of the statute to draw powers that traverse the moral domain and private concern of persons. To begin with, customs law is enacted to give effect to empowering officials in collection of duties envisaged in Seventh Schedule of the Constitution and the inherent ‘commodity policing’ at the frontiers, or point of entry, convenienced the legislature to confer power of withholding clearance of prohibited goods; prohibition has to be unambiguously spelt out in the law and, in ‘obscenity’ law, use is not likely to be a criteria for proscribing and, more so, in circumstances admitting more than one singular and unique use - The apprehension of ‘misuse’ suggested by shape and features as justification to interdict ‘body massagers’ that, unlike ‘adult sex toys’, are amenable to classification in First Schedule to Customs Tariff Act, 1975, and which the show cause notice does not contest, evokes nightmares of an over-intrusive customs administration which may find potential for ‘forbidden delights’ in several commonplace articles of commerce. After all, if shape and features were to be the characteristic of ‘obscenity’, we would end up living in world bereft of material comforts afforded by inventive genius for most goods in the tariff would be vulnerable to absolute confiscation. In any case, pleasure, and indulgence thereof, which may be anathema to those initiated into life, or term, of celibacy, is of no concern to a customs law and detriment to crossborder transactions on assumption of that concern veers dangerously close to pursuit of moral crusade.
It is quite possible the impugned goods may, as suggested by two of the ‘experts’ on record, well find use as ‘surrogate sex’ partner or as ‘sex aid' but then, what would not; we do not know and, as it appears, neither does the adjudicating authority for he preferred to refer to the unmentionable as ‘adult sex toy’ for ‘stimulation and erotic pleasure’ which, to us, appears to be delightfully vague with overtones of decadence stimulated more by moral, than legal, stipulation. Adults may toy with people and may play with toys but whether toys – symbolic of the joy of innocent childhood – should go hand in hand with the context – even if not under public gaze - that the adjudicating authority adumbrates as ‘obscene’ may not be without controversy.
The finding of the adjudicating authority that the impugned goods merit confiscation is, thus, too wide off the mark, as far as the law invoked therein is concerned, on several counts - Whether that be casuistry or not, it can safely be said that this distinguishment of this human function as an intensely private activity that is not even to be hinted at in polite, cultured society vests public performance, or even representation of it, as ‘obscene’, at least for sexual content. It is not for agents of the State to go beyond ‘community standards’ of morality to determine ‘obscenity’ and ‘community standards’ – either by cavil of representative of community or in notifications prohibiting import of the impugned goods - have been not accorded due weightage in the impugned order.
The deeming definition of ‘obscene’, in so far as objects are concerned, alludes to reading, seeing and hearing as the triggers. There is nothing on record, too, to warrant any surmise that the presentation of ‘body massagers’ in the market place would direct thinking of ‘susceptible minds’ or of those ‘vulnerable to improper suggestions’ to conjugal relations that profane nature or calculated to cause offence in others - The impugned proceedings set out to do that which the law did not intend and attempted to justify that adventure without reference to any settled law. That the impugned notification lacked definition of ‘obscene’ was not unknown to the adjudicating authority is not in doubt as seen from the attempt to fill that gap by reference to deeming provision in the Indian Penal Code, 1860.
The appeal of the Commissioner of Customs is dismissed as infructuous.
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2023 (5) TMI 1288
Classification of imported goods - un-coated calcite powder - to be classified under Heading No. 25309030 or under Tariff Heading No 28365000? - HELD THAT:- It is found from the factual matrix that at the relevant time Kandla port CRCL laboratory, was not having requisite test facility, even as per the case laws cited as well as the Board Circular No. 43/2017-Cus dated 16.11.2017. Further, once a report was received by the party and it sought re-test within reasonable time and simultaneously or even before the test report did test at the private lab same should have been accepted.
It is also found that the impugned order of the Commissioner (Appeals) gives no reasons as to why the department could not agree with the request of re-test.
The test report as submitted by the party is required to be accepted - classification as claimed by the party on that basis is accepted - The appeal is therefore allowed.
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2023 (5) TMI 1267
Penalty u/s 114(i) and 114(AA) of CA - Smuggling - fraudulent export of red sander under the guise of sanitary ware - Appellant submits that in the main offence of fraudulent export of prohibited red sanders the appellant had no knowledge, his job was to only arrange the container - HELD THAT:- It is found that the appellant was absolutely unaware about the concealment of prohibited goods in the container for export. His job is to provide the empty container to the exporter. Therefore, as admitted by the Learned Commissioner (Appeals) he had no ulterior motive or knowledge for any act of commission or omission therefore, merely because he did not inform after knowing about the concealment penalty cannot be imposed, for the reason that he came to know about the illegal export of red sander before the custom has already intercepted the containers at the port of export and the containers were put on the check packages. In this fact there is no question or need to inform the authorities as neither he was aware of the offence nor he was involved therein.
From the finding the Learned Commissioner appeal has clearly held that the appellant had no knowledge about any of the act which make the goods liable to confiscation. Despite his clear finding he upheld the reduced penalty.
There are no reason or role of the appellant to attract penalties under Section 114 (i) and Section 114 (AA) - penalties set aside - appeal allowed.
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2023 (5) TMI 1202
Violation of import conditions - goods (Raw Petroleum Coke) imported by the respondent admittedly having sulphur content in excess of 7% conform to Indian Standard 17049 or not - prohibited/restricted goods - order for provisional release when the import conditions prescribed for the Raw Petroleum Coke (RPC) under ITC HS 27131100 are required to be complied with by the importer in respect of the goods they are importing (i.e. RPC) and not for the goods they are manufacturing (CPC) by using imported RPC - HELD THAT:- According to the respondent the product imported by them being used in the Calcination Plant, the restriction on the sulphur content in terms of the BIS standard, will not be applicable. The learned Tribunal while considering the correctness of the order passed by the Commissioner after setting out the arguments placed before it by both sides has recorded the submissions of the revenue that the goods should not be provisionally released as admittedly the sulphur content is more than four per cent and the same cannot be used by Aluminium Manufacturing Industry. The learned Tribunal has not rendered a specific finding on this submission, takes note of the fact that the respondent importer is a calciner and they would use the imported product as feed stock for making CPC from RDC for their customer with sulphur content ranging 0.8% to 3.5%.
Whether there was a violation of the license condition can be examined by taking note that the product that will be manufactured by the respondent importer or should the importer satisfy that the import effected by them is in accordance with license condition? - HELD THAT:- Since the product is a prohibited item the test would be to examine whether the imported product satisfy the license condition rather to examine whether the import was justified based on the end product that would be produced. The Commissioner of Customs, (Appeals) as well as the learned Tribunal has proceeded based upon the ultimate end product which is being manufactured by the respondent. Thus in our view, it would be an incorrect manner of examining as to whether the import was provided and whether it satisfies the conditions of licence. Furthermore, the Tribunal opined that no harm will be caused by provisionally releasing the goods - such a finding cannot be accepted as the question would be as to whether when admittedly the sulphur content is in excess of 7% will it conform to ISI 7049 as mentioned in the licence and if it does not conform to the said standard, is there a violation of the conditions of import? Furthermore, the goods being prohibited item, there is a mandatory requirement to comply with the policy condition and the Tribunal was required to examine as to whether there has been any violation of the stipulations under the policy. Before considering as to whether the goods have to be provisionally released when admittedly the sulphur content is more than 7%. Therefore, this question, which is a mixed question of fact and law is required to be decided by the Tribunal before approving the order passed by the Commissioner of Customs (Appeals) granting provisional release.
The matter requires to be reconsidered by the Tribunal - Appeal allowed by way of remand.
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2023 (5) TMI 1201
Classification of export goods - Ilmenite upgraded (processed) - to be classified under Tariff Item 2614 00 20 (as beneficiated/processed Ilmenite) or under Customs Tariff Act 2614 00 10 (as unprocessed Ilmenite)? - HELD THAT:- As per the definition beneficiation is done for three purposes. Any processes done for the above three purposes carried out on the mined sand would be known as “beneficiation”. From the flow chart which has been noticed above it can be seen that the various processes undertaken on the raw sand by the appellants achieves the purpose of regulating the size, removing unwanted impurities and also improving quality or SI grade of Ilmenite - it is difficult to agree with the view of the Department that to obtain beneficiated Ilmenite processes like roasting and chemical treatment is mandatory. Without furnishing any evidence to establish the said contention, the processes undertaken by the appellant would result in beneficiated Ilmenite.
Though the original authority had discussed and held in Para 18 that the goods are not upgraded Ilmenite, however, has held in the operative part of the order that goods which are upgraded ilmenite has to be classified under CTH 26140010. The Commissioner (Appeals) held that the goods are unprocessed and has to be classified under 26140010. From the facts discussed and on the basis of the documents, it is concluded that such processes result in beneficiated Ilmenite.
Thus, the goods which are upgraded/processed Ilmenite are classifiable under 2614 00 20. The impugned order is set aside - appeal allowed.
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2023 (5) TMI 1168
Seeking direction to the Respondent No. 1-Directorate of Revenue Intelligence (DRI) and its officers to permit the presence of his Advocate during the interrogation and recording of statements at visible but not audible distance - seeking permission to record his voluntary statement in his own handwriting - HELD THAT:- The Calcutta High Court in the case of ENFORCEMENT DIRECTORATE VERSUS PARTHA CHATTERJEE [2022 (7) TMI 1412 - CALCUTTA HIGH COURT], followed the decision of the Delhi High Court in the case of DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN [2022 (6) TMI 382 - DELHI HIGH COURT] and held that the allegation against the E.D. that the Advocate of the accused was not allowed to be present at the time of raid is found to be false and the order permitting the presence of lawyer was set aside.
The decisions of the other High Courts have taken a view that the presence of lawyer cannot be insisted as a matter of right. However, the decisions have a persuasive value and is not binding upon this Court. The decision of the Apex Court in the case of VVIJAY SAJNANI & ANR. VERSUS UNION OF INDIA & ANR. [2012 (4) TMI 706 - SUPREME COURT] as well as the decision of Coordinate Benches of this Court, are binding which have permitted the presence of a lawyer at visible but not audible distance.
Thus, the direction which has been sought by the Petitioner as regards the presence of the lawyer at visible but not audible distance is an aspect of fair investigation and we do not find any reason to take a different view from the view taken by the Coordinate Benches of this Court - petition allowed.
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2023 (5) TMI 1167
Maintainability of revenue’s appeal - time limitation - Refund of 4% additional duty of customs paid - review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed by the Reviewing Authority beyond the period of three months as envisaged under Sub Section (3) of Section 129D of Customs Act, 1962 - HELD THAT:- Similar appeals had come up for hearing before the Tribunal wherein the Commissioner (Appeals) had dismissed appeals filed by Department on the ground of being time barred. In those cases also it was urged by the Department that the seal impressed on the Order-in-Original by the Reviewing Cell would establish that the order was received by the Reviewing Authority on a much later date. The Tribunal after considering the submissions made by the learned AR and perusing the records observed that there was no reason to disbelieve, the observation made by the Commissioner (Appeals) that there was no evidence available before him as to the date on which the Reviewing Authority received the order - Reliance can be placed in the case of COMMISSIONER OF CUSTOMS (EXPORTS) , CHENNAI VERSUS M/S. VCR TIMBER ENTERPRISES AND M/S. MEHNDIPUR BALAJI IMPEX (P) LTD. [2023 (3) TMI 1082 - CESTAT CHENNAI] where it was held that It is opined that the seal seen affixed on the photo copy of the Orders-in-Original found in the annexure to the appeal filed by the department, purporting to show the date of receipt of the order in the review section, to be suspect - the strong inference that can be drawn is that there was no evidence available to establish as to the date on which the order-in-original was received by the Review Cell and apparently there was a delay in passing the review order.
In some appeals there is no seal affixed on the Order-in-Original but it is merely stated in the grounds of appeal that the order was received by the Reviewing Authority on a much later date. The Tribunal in a similar matter in COMMISSIONER OF CUSTOMS (EXPORTS) , CHENNAI VERSUS M/S. NAGAPPA EXPORTS, M/S. AMARA RAJA BATTERIES LTD. AND M/S. NORITSU KOKI CO. LTD. [2023 (3) TMI 1216 - CESTAT CHENNAI] has held that As there is no evidence to substantiate the contention of the Department that the Order-in-Original was received on such dates by the Review Cell and as there is no reason to dis-believe the findings of the Commissioner (Appeals) that there was no evidence as to the date on which Order-in-Original was received by the Reviewing Authority, the strong inference that can be drawn is that there is a delay in passing the review orders in these appeals.
There are no ground to take a different view. The impugned orders passed by the Commissioner (Appeals) are sustained - appeal of Revenue dismissed.
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2023 (5) TMI 1166
Revocation of Customs Broker License - Forfeiture of Security deposit - levy of penalty - imputation and articles of charge, for breach of regulation 10, 11(a), 11(b), 11(d), 11(e), 11(m) and 11(n) of Customs Broker Licensing Regulations, 2013, in connection with the handling of 66 packages of ‘readymade garments’ for export to Sudan and Nigeria - time-lines prescribed in Customs Brokers Licensing Regulations, 2013 had not been complied with or not - HELD THAT:- It would appear that the licensing authority has assumed that the order of the Hon’ble High Court of Bombay in THE PRINCIPAL COMMISSIONER OF CUSTOMS (GENERAL) MUMBAI VERSUS UNISON CLEARING PVT. LTD., AND OTHERS [2018 (4) TMI 1053 - BOMBAY HIGH COURT] had, in fact, shifted the commencement of ‘time-lines’ and, thereby, precluded challenge to non-adherence thereof. This is far from a correct appreciation of the decision of the Hon’ble High Court.
It is also seen that the articles of charges against the appellant can be perceived as being in two spheres with one necessarily following from the other. The primary charge is that the appellant has been in breach of regulation 10 of Customs Broker Licensing Regulations, 2013 requiring the licence to be operated only by the licencee or his authorized person/employee which the inquiry authority, on the basis of certain facts and circumstances as well as statements of two persons said to be employees of M/s Millenium Freight Forwarders, concluded as having been ‘sublet’ or otherwise transferred. The findings on the other charges, relating to obligations devolving upon customs brokers, held against the appellant herein is inevitable consequence of the finding on the primary charge. Accordingly, it would be appropriate to examine the sustaining of the primary charge and only proceed to look at the submissions in relation to other charges upon such being so.
The impugned order has arraigned the appellant on the other charge of not knowing the customer upon the foundation that the licence had been ‘sub-let’ to the two persons. It is alleged that the customs broker had granted access of the credentials, necessary for undertaking customs clearance, to persons not in their employment. The submission of customs broker, and not controverted in the impugned order, that access was provided only to privately sourced software used for compilation of data to be filed under ICEGATE strikes at the very root of the allegation of illicit grant of access. Hence, the conclusion that the appellant had not obtained authorization from the customer is a conclusion that may not sustain - Breach of regulation 11(d) and 11(e) of Customs Broker Licensing Regulations, 2013 has been alleged on the finding of export processing having been handled by M/s Millenium Freight Forwarders Pvt Ltd but their operation as possible intermediary between the appellant and the exporter is no ground to hold that the processes were carried out through a person other than themselves. Accordingly, the finding against the appellant on these two charges will not sustain.
The findings, insofar as the alleged breach of regulation 11(m) of Customs Broker Licensing Regulations, 2013 by not verifying antecedents and correctness of the import-export code (IEC) and other details is concerned, is also based entirely on the role played by M/s Millenium Freight Forwarders Pvt Ltd as ‘sub-let’ owner of the licence. It has been held that the two employees of the appellant were, in fact, employees of the M/s Millenium Freight Forwarders Pvt Ltd and, in view of the finding on the issue of ‘subletting’ as well as the employment of the said two persons and in the light of the uncontroverted finding that the two employees have not dealt with the export consignment, it cannot be said that this Regulation had been breached by the appellant.
Consequently, none of the charges stand proved against the appellant. It is also taken note of that the impugned order has chosen to examine certain other cases pertaining to allegations levelled against the present appellant which is not in conformity with Customs Broker Licensing Regulations, 2013; for a licensing authority to go beyond the articles of charge framed and to seize upon extraneous incidents, to the extent that the outcome of those proceedings remain unknown, is tantamount to extraneous influencing of the proceedings under Customs Broker Licensing Regulations, 2013 that does not behove appropriate discharge of responsibilities by the licensing authority.
There are no reason for the continuation of revocation of the licence or forfeiture of the security deposit - the impugned order set aside - appeal allowed.
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2023 (5) TMI 1135
Fraudulent availment of benefit of Duty Drawback - wilful misstatement of the particulars declared in the shipping bills - order for confiscation of the goods already exported under draw back u/s 113 (i) of the Customs Act - diversion of goods (exported) to third country or not - levy of penalty u/s 114 (iii) of the Act - Extended period of limitation - HELD THAT:- The show cause notice has been issued after more than 13 years from 27.04.2003, when the Customs has closed the matter by writing to Punjab National Bank, to defreeze the bank account of the appellant. Thus, the extended period is not available to Revenue, and this ground is decided in favour of the appellant and against the Revenue.
The show cause notice is based on un-substantiated and vague facts, which have no legs to stand. Admittedly, the appellant have received the payment for the goods exported, which is duly supported by the BRCs issued and re-certified after verification by the Punjab National Bank. Further, there is no evidence brought on record by the Revenue that the appellant have returned any remittance received on account of exports to the buyer located in the foreign country. Further, Revenue have not brought on record any evidence of diversion of goods to any third country - Admittedly, the goods have been exported by air from India to Russia and thus, chances to diversion to third country is highly impossible, without the goods first reaching Russia.
The impugned order is set aside - appeal allowed.
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2023 (5) TMI 1134
Imposition of Redemption Fine and Penalty disproportionately - Valuation of imported goods - gold dore bars - rejection of transaction value - re-determination of value - benefit of concessional rate of CVD @ 8% ad-valorem claimed under Sr. No. 318 of Notification 12/2012-Cus dated 17.03.2012 against DGFT License - whether in the facts of the commissioner the case there is a contentious conduct of the appellant on imposing fines and penalties as per the impugned order?
HELD THAT:- The Bar no. 1 has been permitted for re-export even the value that has been determined is less than 1 Lakh above the value declared. The redemption filed imposed of Rs. 20 Lakhs on such differential value cannot be justified and needs to be commensurate with the differential value which is only Rs. 86,541/- in case of bar 1. Taking note of the fact that as per the impugned order itself if it is a case of undervaluation, undervaluation is only of Rs. 86,541/-. Redemption filed of Rs. 20 Lakhs needs to be reduced consequently - the same is reduced to Rs. 50,000/-.
In respect of bar 2, there is no contravention vis-a-vis claiming the benefit of exemption notification. None of the test reports have shown a purity level of more than 95% there can be a case for undervaluation on which total undervaluation can be Rs. 3,12,735/- by the adjudicating authority involving total duty of Rs. 25000/-. Redemption filed imposed in terms of Section 118 cannot be justified in the present case. In case of bar 2 the same is set aside. For undervaluation of the Gold Bar 2, a penalty of Rs.10 Lakh cannot be justified and is reduced to 10,000/- under Section 112 A of the Customs act.
Appeal allowed in part.
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2023 (5) TMI 1133
Exemption from payment of CVD - import of goods declared as Platinum Sponge - articles made from recycling of precious metals or during refining process - N/N. 05/2006 -Central Excise dated 01.03.2006 (Sr. No. 25) and N/N. 12/2012 -Central Excise dated 17.03.2012 (Sr. No. 193) - HELD THAT:- Vide Notification No. 228/88-CE dated 06.07.1988, exemption from Central Excise Duty was granted to articles made from recycling of precious metals, from so much of the duty of excise leviable thereon as is in excess of the value of precious metal added and the amount charged for reconditioning/re-processing etc. - Simultaneously, vide Notification No. 230/88-CE also dated 6.7.1988 (i.e. issued on the same day as Notification No. 228/88-CE,) the Central Government exempted "Catalyst, Powder, Sponge, Ingots of precious metals" from Central Excise Duty from so much of the duty of excise leviable thereon as is in excess of the value of precious metal added and the amount charged for reconditioning/re-processing etc. - Subsequently, in the Budget proposals for 1994-95, Notification No. 228/88 was rescinded. Also, vide Notification No. 39/1994-CE dated 01.03.1994, unconditional and complete exemption was granted to article of precious metals irrespective of their form. However, Notification 230/1988 continued to be in force.
In the budget 1995-96 Notification No. 54/95-CE dated 16.3.1995, effectively continued Notification No.30/94 dated 1.3.1994, Explanation (iv) was however added to the existing notification, clarifying the meaning of "articles" in relation to precious metals - Notification No.54/95-C.E dated 16.3.1995 and Notification No.230/88-CE dated 6.7.1988 continued in the subsequent years also albeit with new numbers. Sl.No.72.2 of Notification 8/96 inter alia exempted articles of platinum. Sl.No.71.3 of Notification, inter alia, exempted platinum in their primary of forms that is to say to any unfinished or semi-finished including ingots etc. Sl.No.28.14 of notification granted partial exemption, inter alia to catalysts, ingot, powder and sponge inter alia, of platinum.
From 1994 onwards the notification has been issued exempting the impugned goods and the wording ‘used’ in the notification then till the notification under consideration remains the same. The Ministry itself was always of the view that exemption needs to be granted to the metal in the form it emerges during a refining process, whether from ore concentrate or recycled material, the same could not have been denied. From perusal of the entry, it is evident that exemption has been granted to all the forms which arise subsequent to the emergence of the form in which these goods are imported. In view of the above circular, the contentions raised by the Revenue which go contrary to the circular issued by the Board cannot be justified.
In case of Ratan Wire and Melting [2005 (2) TMI 138 - SUPREME COURT], a five judges bench of Hon’ble Supreme Court has stated the law in respect of the clarifications and circulars issued by the Board stating So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.
Nothing has been brought forth in the appeal or during the arguments to show that there was any subsequent change in the wording of the Notification, or a pronouncement of Hon’ble Supreme Court or a Hon’ble High Court has come which goes contrary to the above clarification.
There are no merits in the appeal - appeal filed by Revenue dismissed.
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