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Customs - Case Laws
Showing 21 to 40 of 73 Records
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2015 (7) TMI 998 - CESTAT MUMBAI
Classification of vessels - Offshore Hunter - coastal tug offshore hunter with barge freight' - Denial of benefit of Notification No. 21/2002 and 20/2006 - Confiscation of goods - Imposition of redemption fine - Penalty u/s 114A and 112 - if the vessel is used for carrying persons and cargo as well as for towing operations, what is the primary purpose for which the vessel is designed - Held that:- Commissioner finds that rule 3a and rule 3b are not applicable and therefore he resorts to rule 3c which states that where goods cannot be classified by reference to 3a or 3b, they shall be classified under the heading which occurs last in the numerical order among those which equally merit consideration.
There is no doubt about the applicability of Rule 3A which states that the heading which provides the most specific description shall be preferred. In the present case, the vessel is designed as a supply vessel for transport of persons as per the Certificate of Indian Registry. - As the vessel in question is a supply vessel used for transport of persons and goods, the correct classification would be CSTH 89019000 which covers "Other vessels for transport of the goods and other vessels for transport of both persons and goods." And the goods falling under CTH 8901 are exempted under Not 21/2002 read with Notification No. 20/2006.
Revenue has invoked the extended time period to demand duty be alleging that the appellant had mis-declared the capabilities of the vessel before the proper officer who did the first check examination. It is also alleged that the proper officer was clearly misguided by the Certificate of Registry. This allegation has no basis whatsoever. We have seen the examination report of the DC customs. It indicates inspection and examination of the vessel with respect to the Certificate of Indian registry. It also indicates that the vessel has a winch with steel wire, bollards at the sides. The Custom officers were free to examine the vessel with respect to any documents for the purpose of determination of classification. - There is no misdeclaration whatsoever. Consequently there is no question of confiscation and option to redeem on payment of redemption fine. We set aside the confiscation. - classification ordered by the Commissioner is set aside along with the demand of duty, interest and penalties on the appellant as well as the Directors. - Decided in favour of assessee.
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2015 (7) TMI 925 - CESTAT NEW DELHI
Penalty under Section 112(a) of the Customs Act, 1962 - Evasion of duty - Undervaluation of goods - Held that:- from a plain reading of provisions of sub-section (n) and (o), it is clear that these provisions are not applicable to the case. In fact Section 111(n) deals with transit/transhipment of goods. Section 111(o) deals with a situation where certain claim is claimed subject to some condition and subsequently the said condition is not followed. In the present case, it is not a situation. In fact, the impugned goods were never cleared from Customs therefore claiming exemption does not arise. Consequently, the provisions of Section 111(n) and (o) are not applicable to the facts of this case. - Any Bill of Entry was yet to be filed by the appellants to clear the subject import. The first occasion for an importer to declare or misdeclare particulars of the goods imported by him is at the stage of filing Bill of Entry. He cannot be held liable for any misstatement of particulars in Bill of Lading or Import manifest. Hence, as rightly contended by the appellants, the finding of misdeclaration against them is untenable. In this case, the investigating agency (DRI) also ventured into an inquiry as to what should be the assessable value of the goods and as to whether the importer had misdeclared the value of the goods. The importer never filed any Bill of Entry declaring the value and other particulars of the goods. Hence it is absurd for the DRI to have ventured to such an exercise. Surprisingly, this absurdity was sustained by learned Commissioner in the impugned order.
As the appellant has not filed any Bill of Entry neither placed order for supply of the impugned goods to the supplier/exporter, the penalty under Section 112(a) of the Customs Act is not imposable on the appellant. - Impugned order is set aside - Decided in favour of assessee.
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2015 (7) TMI 924 - CESTAT MUMBAI
Revocation of CHA License - forfeiture of the security deposit - contravention of Regulation 13(a) - held that:- There is no allegation made by the appellant as urged before us that proper procedure of inquiry was not followed or there has been any violation of the principles of natural justice either by the Inquiry Officer or by the adjudicating authority. The only contention is that the evidence adduced by the appellant has not been properly appreciated and the punishment of revocation for the contravention of the CHALR, if any, is grossly disproportionate to the offence committed. - As regards the charge of contravention of Regulation 13(n) of non-discharge of their obligations with utmost speed and efficiency, Shri C.H. Menon in his confessional statement has admitted to non-verification of the correctness of the classification declared in the bills of entry handled by Mr. Ashley. Later on it was found that M/s. J.M. Traders and M/s. Kirmi Expo had misdeclared the classification of laminated sheets imported by them and this position has been admitted by the importers themselves before the Settlement Commission. If that be so, the appellant CHA could not be said to have discharged his duties and obligations with any efficiency at all. It is thus evident that the appellant has been grossly negligent in the discharge of his statutory functions. As regards the charge of contravention of Regulation 13(k), it is an admitted fact on record that the charged CHA did not maintain any import or export register showing details of the consignments handled by them and the dockets maintained by them were incomplete and they did not have the authority letters in many cases and the CHA delivery challans for having delivered the goods to the importers after clearance by the Customs.
A case of sub-letting of licence by CHA, obtaining Customs pass for non-employees, removal of goods without obtaining authorisation from importers was considered by the Hon’ble High Court of Gujarat in OTA Kandla Pvt. Ltd. [2011 (3) TMI 801 - GUJARAT HIGH COURT]. The Hon’ble High Court upheld the contention of the Revenue that sub-letting amounted to transfer of CHA licence and refused to interfere with the punishment of revocation of CHA licence awarded by the Commissioner of Customs, the Licensing authority. - Further decision in the case of Commissioner of Customs v. Worldwide Cargo Movers [2006 (11) TMI 281 - BOMBAY HIGH COURT] followed - no reason to interfere with the decision of the Adjudicating authority - Decided against the appellant.
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2015 (7) TMI 923 - MADRAS HIGH COURT
Evasion of duty - Import of used photocopier components of foreign origin - High Court dismissed the petition filed by Revenue for non prosecution against the decision of Tribunal [2008 (12) TMI 451 - CESTAT, CHENNAI], wherein Tribunal held that The Notification No. 19/90-Cus. (N.T.), dated 26-4-1990 issued by the Central Government had conferred the powers of Commissioner of Customs on the ADG, DRI and his jurisdiction was specified as “whole of India”. Though the Additional Director General, DGCEI was invested with the powers exercisable by a Commissioner of Customs, Notification No. 31/2000-Cus. (N.T.) did not indicate the territorial jurisdiction of ADG, DGCEI, Chennai.
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2015 (7) TMI 882 - CESTAT MUMBAI
Revocation of CHA License - Contravention of Regulations 13(a), 13(d) and 13(e) of CHALR, 2004 - Held tat:- CHA have not met the client at all and they have received the documents through a freight forwarder. Therefore, the question of advising the client would not arise at all. As regards the third charge of not exercising due diligence in ascertaining the correct of the any information, to undertake this task, the CHA should know his client. If he does not know who the client is, he cannot exercise any diligence in ascertaining the correctness of the information furnished. Therefore, the charge of contravention of regulation 13(e) also stand clearly established. It is also relevant to note that in the customs proceedings in respect of the impugned transaction, both Sri. Prakash Charatkar, Manger of the appellant CHA firm as also Shri. Baburao K Chinta, Proprietor of Max Shipping Services, the freight forwarder have been found guilty and penalised under the provisions of section 114 of the Customs Act vide order dated 29-6-2007. We are informed that this order has not been appealed against and has become final. Thus the order of the adjudicating authority in the customs proceedings also support the department's case in the CHALR proceedings. Therefore, we do not find any fault in the conclusion drawn by the Licensing authority that the appellant CHA had contravened the provisions of Regulation 13(a), (d) and (e) of CHALR, 2004.
Whether the punishment of revocation of licence is proportionate to the gravity of the offence committed - Held that:- goods sought to be exporter were banned items. The exporter was found to be fictitious and not existing in the address given. Thus the facts are different and distinguishable. As regards the reliance on Ashiana Cargo Services decided by the hon'ble High Court of Delhi, in the said case there was a concurrent finding by the Licensing authority and the Tribunal that the CHA did not have knowledge that illegal exports and smuggling of narcotics was effected using G cards given to the employees of another firm. In that context, it was held that revocation is not justified. In the facts of the case before us, it is the appellant's Manager who was found abetting the illegal exports of a banned item. Further the exporter was also found to be fictitious. - Decision in the case of Commissioner of Customs vs. Worldwide Cargo Movers [2006 (11) TMI 281 - BOMBAY HIGH COURT] - No reason to interfere with the findings and decision of the Licensing authority in the impugned order - Decided against the appellant.
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2015 (7) TMI 881 - CESTAT MUMBAI
Revocation of license - Violation of the CHALR Regulations - Non-compliance to the specific time limits - Subletting of license - whether the time line periods laid down in Regulation 22 are directory in nature or mandatory in nature - Held that:- No evidence to show that there has been sale or transfer of the license. No consideration is shown for such transfer nor any transfer agreement. The only evidence is that the appellant was receiving fixed amounts per container from Shri Pandey. We find no provision in the Regulations that the CHA should receive payments directly from the importers/exporters for the services rendered. We also find that Section 147 of the Customs Act allows for an agent to work on behalf of the principal. Therefore, if the importers/exporters have contracted an intermediary person for Customs clearance work, no contravention of the CHALR is proved if the CHA is satisfied about the credentials of the importer for whom he is doing the Customs clearance work.
Entire case is based on the original statements of Shri Vishal Madan and Shri Pal Singh Lohia and their statements at the time of cross examination have been discarded. In the relied upon documents, only statement dated 09.10.2012 of Shri Madan is considered and his other statements have not been made relied upon documents. Therefore, unless the original statements are corroborated by other material evidence it is difficult to sustain the charge of subletting of license. More so when the Commissioner has placed no reliance in his Order on the statements of Shri Pandey, taken on 7.11.2012 and 09.11.2012, to whom the license is said to be sublet. This method of relying only on some statements lends bias to the decision. In the circumstances we are of the view that the charge of subletting of license is not proved and it cannot be said that the license was transferred.
Further, in the absence of any charge of violation of Regulation 13 (a) which requires the Custom House Agent to obtain an authorization from each of the companies for whom he is employed as a CHA, we do not find any reason to sustain the violation of Regulations 13(d) and 13(e) which require imparting correct information and rendering proper advice to the clients. The charge that the CHA advised the importer to stack thinner material in the front of the container is not supported by the physical examination of the containers nor by any other corroborative evidence. - Therefore the retraction of statements appear to carry weight due to lack of supporting evidence for the violation of the Regulation. Similarly the charge of violation of Regulation 22(n) which requires the CHA to be efficient is not on a strong footing and cannot be sustained. Except for a statement regarding undervaluation no concrete evidence is forthcoming against the CHA.
Revenue has not been able to establish with any reasonable degree of certainty the violation of the Regulations for which they have charged the appellant. The circumstances do not call for revocation of the License which will deprive the CHA and his employees of the source of their livelihood. We therefore set aside the revocation as well as the forfeiture of the security deposit. - Decided in favour of appellant.
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2015 (7) TMI 880 - BOMBAY HIGH COURT
Suspension of Custom Broker License - perpetration of fraudulent clearance of the goods - the goods were not valid for duty free clearance - Held that:- In the given facts and circumstances and peculiar to the Petitioner and as the Petitioner has been carrying on business from 1905, as claimed in the Writ Petition, it being a sole proprietary concern and the sole proprietress depending for her livelihood on this business that the suspension of the license till date will serve the ends of justice. In other words, we do not think that any further suspension is required when the Petitioner has assured us that she would attend the adjudication proceedings and co-operate with the adjudicating authority in early conclusion of the same, that this is the sole instance in the entire career is also a factor and peculiar to the Petitioner, which leads us to direct that the order dated 10th December, 2014 suspending the license shall come to an end on 24th December, 2014. Thereafter, the license shall be taken to be in force and pending the remaining period for which it was issued - Petition disposed of.
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2015 (7) TMI 879 - KERALA HIGH COURT
Confiscation of goods - Provisional release of gold - Held that:- Single Judge passed an interim order directing that the petitioner be permitted to release of the gold on executing a simple bond. - such an interim could not have been passed, especially when there was no lack of jurisdiction in passing the order and the order has not been prima facie perverse. We are, thus, of the view that sufficient ground has been made out to set aside the order passed by the Single Judge. - Decided in favour of Revenue.
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2015 (7) TMI 852 - CALCUTTA HIGH COURT
Denial of duty drawback claim - export consignment on which duty drawback was claimed by the petitioner had not been paid for by the foreign buyer - Held that:- once it is inescapable that despite the petitioner’s participation before the revisional authority, no other result could have followed, the complaint of breach of natural justice in declining the adjournment sought is of no merit. - The provision relied on from the Handbook of Procedures does not expressly apply to duty drawback. Indeed, duty drawback is covered by Section 75 of the said Act. The second proviso to sub-section (1) of Section 75 of the said Act clearly stipulates that when the payment for an export transaction is not received with the time permitted by the Indian exporter, the drawback would be deemed to never have been allowed unless exceptions are made by rules by the Central Government.
Fundamental premise of the petitioner is completely flawed. It does not stand to reason that an exporter whose export transaction has not been paid for by the foreign buyer would jeopardise the Central Government twice over in not only availing of the cover provided by ECGC, which is a government organisation, but also seeking the benefits of the duty drawback under Section 75 of the said Act despite the failed export transaction. The basis for allowing duty drawback is that the economy would gain in the export transaction that would have been completed by the importer who has used some imported components for ultimately manufacturing the goods that are sought to be exported. When the export transaction fails in the sense that there is no accrual of foreign exchange from the overseas buyer, there can be no duty drawback that can be claimed by the exporter unless there is a specific exemption stipulated in any rules made by the Central Government. - Decided against assessee.
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2015 (7) TMI 851 - CALCUTTA HIGH COURT
Demand of 1% countervailing duty - Import of muriate of potash - Held that:- Notification No. 12/2012-C.E. dated 17th March, 2012 is quite explicit that the fertilizers imported for the purpose of use in the manufacture of other fertilizers are exempted from countervailing duty. This position is accepted by the department, but it disputes whether the petitioner is utilising such materials for manufacture of fertilizers. - importation of the goods cannot be held up - Respondent-authorities directed to provisionally release the above goods after filing of the manual bill or bills of entry by the petitioner, within five working days of arrival of the goods, upon the petitioner furnishing a bank guarantee to secure the 1% countervailing duty and upon payment of the basic duty. - Petition disposed of.
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2015 (7) TMI 850 - CESTAT MUMBAI
Fraudulent claim of undue DEPB benefits - willful mis-statement of FOB value of textile article/fabrics exported - Over Valuation of goods - Penalty imposed on officers for abatement u/s 114 - Held that:- while discarding the value of the goods which have been exported, has relied upon mainly the overseas inquiry conducted, certificate of BTRA and the action of the exporters regarding submitting false BRCs for obtaining DEPB licence, is erroneous for more than one reason - Charts C-1 & C-2 annexed to the show-cause notice purportedly supposed to be collated from the overseas inquiry does not have any signature of the officers. It is pertinent to note that these reports as per Chart annexed at C-1 & C-2, the basis was not divulged to the appellant to defend against such inquiry. In our considered view, the adjudicating authority should have given copy of the overseas inquiry conducted by the department, if any, so that the appellant could have defended or put forth his views on the same. To that extent, we find that the order seems to have been passed in violation of the principles of natural justice. - No contemporary value on identical or similar goods were brought on record in order to ascertain the contemporaneous prices of the goods sought to be exported. In the absence of above, we find that the impugned order is passed in violation of principles of natural justice and needs reconsideration by the adjudicating authority in respect of M/s. Ruchika International and their partners. - Matter remanded back.
There is no abetment on the part of officers inasmuch as all the shipping bills were signed after examining the documents which were attached. The shipping bills and the documents attached and produced before these three departmental officers were indicating the prices, which they felt were correct in the facts of these cases and being recently posted may have lacked in training in clearance of export goods; even otherwise, the only violation which was highlighted in the impugned order was these officers have indicated that they have drawn the samples and maintained the records, but in fact they have not done so; for the charge of abetment - impugned order imposing penalties on these officers under the provisions of Section 114 of the Customs Act, 1962 is unwarranted and unsustainable - Decided in favour of appellants.
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2015 (7) TMI 849 - CESTAT AHMEDABAD
Suspension of Customs House Broker License - Regulation 19 (1) of Customs Brokers Licensing Regulation, 2013 - Misdeclaration of goods - Held that:- Offence was committed on 09.01.2014 and the offence report was submitted on 15.10.2014 and the suspension order was issued on the same day under Regulation 19(1) of the said Regulation and also fixed a post decisional hearing on 30.10.2014. But, the Commissioner of Customs had not issued order for continuation of suspension under Regulation 19(2) within the stipulated period. Proviso to Regulation 19 (1) provides that after passing an order for continuing of the suspension, the further procedure thereafter shall be followed in Regulation 20. - investigation report was submitted on 15.10.2014 as revealed from order dated 15.10.2014, issued under Regulation 19(1) and no order was passed within 30 days from the date of the said order under Regulation 19(2). The impugned order dated 03.3.2015 under Regulation 19(2) was issued after about five and half months in a wrong premises that “since the investigation of the case is still in progress” and no enquiry under Regulation 20 was initiated till date and such order can not be sustained and is liable to be set-aside. - Decided in favour of appellant.
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2015 (7) TMI 818 - ADVANCE RULING AUTHORITY
Classification of goods - Classification of Kindle device - Notification No. 25/2005-Cus. Dated 01.03.2005 - Classification under entry 8543 70 99 or under entry 8528 59 00 - Held that:-The main entry 8528 is in respect of the monitors, projectors and the television sets that is clearly not the case here. The specific entry relied upon by the Customs is 8521 which pertains to video recording or reproducing apparatus, whether or not incorporating video tuner. This is clearly not applicable for the simple reason that Kindle device is not meant for video recording or reproducing anything. The other related entry under this heading pertains to video recorders beta cam or beta cam SP or digital beta cam S-VHS or digital –S etc. That is clearly not the proper description of Kindle device. The third entry relied upon by the Customs Department is under the heading 9504 which pertains to video game consoles and machines, articles for funfair table or parlor games, including printables, billiards, special tables for casino games and automatic bowling alley equipment. From the very nature of the description, the Kindle Device will not be a part of toys, games and sports equipments; parts and accessories thereof which is to be covered under the heading 9504.
Kindle Device will be covered under entry 85437099 being an electrical machine with translation or dictionary functions. Therefore, this late objection raised by the Revenue is rejected. We have seen the some import details. All these imports have been under the entry 85437099 and accepted by Customs. Of course, these imports were not made by the applicant but that is irrelevant once the Customs Departments accepts the same to be covered by 85437099. - Benefit of notification granted - Decided in favour of assessee.
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2015 (7) TMI 817 - GUJARAT HIGH COURT
Duty drawback claim - Sections 74 and 75 - Held that:- Circular No.1/2011-Customs dated 4.11.2011 and Circular No.30/2013-Customs dated 5.8.2013 require exporter to execute a bond of an amount equal to the value of goods and furnish appropriate security in order to cover the redemption fine and penalty in case goods are found to be liable to confiscation. We have directed the petitioner to furnish bond of 100% value of the goods. Therefore, our order is in consonance with the Circulars issued by the Customs Department. - goods of the petitioner shall be released for export expeditiously preferably within a period of one week from the date of copy of this order is produced before respondent No.2 provided the petitioner furnishes bond equal to the amount of seized goods other than cash and bank guarantee - Decided conditionally in favour of assessee.
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2015 (7) TMI 816 - CESTAT BANGALORE
Eligibility of exemption for Marine Gas Oil - exemption under Sl. No. 217 of Notification No. 21/2002-Cus., dated 1-3-2002 - Held that:- There was a specific query from the Custom House asking the Chemical Examiner to state specifically whether the product is MGO or not. Instead of specifically stating whether the product is MGO or not, the Chemical Examiner has chosen to show us that the product is LDO. In the absence of a specific report from the Chemical Examiner that the product is not MGO which was what required by the Custom House, it cannot be said that the Chemical Examiner’s report supports the case of the Custom House. There is no evidence to show that the product is not MGO. - In fact even though the tests were conducted much earlier the results of the samples were communicated to the appellants only in 2012, the learned counsel drew our attention to a letter written by the appellants to the Customs saying that the sample may be referred to CRCL for re-examination. Further no action was taken on this letter probably because by the time the letter was written a number of years have already passed. Since it is not the case of the Revenue that the product imported by the appellant does not fulfill the parameters for MGO as per the Indian Standards, we are not in a position to uphold the impugned order taking a stand that what is imported is LDO and not MGO and therefore the benefit of exemption is not available. - appellant is eligible for the benefit of the notification as claimed by them and accordingly the impugned order is set aside - Decided in favor of assessee.
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2015 (7) TMI 815 - CESTAT MUMBAI
Whether amendment by a declaration of intent of claiming VKGUY scheme can be allowed on the free shipping bill under which goods already have been exported - Held that:- Goods were exported during Aug. 2009 and Sep. 2009, whereas all these clarifications and amendments regarding declaration of intent of the export claiming VKGUY scheme was brought to the effect in Sep. 2009 and subsequently Nov. 2009 vide Circular No. 26/2009-Cus., dated 13-9-2009, 36/2010-Cus., dated 23-9-2010, DGFT Policy Circular No. 32(RE-2010) 2009-14, dated 3-6-2011, Public Notice No. 53(RE-2010)/2009-14, dated 3-6-2011, whereas the export of the appellant were taken place on Aug. 2009 and Sep. 2009. In these circumstances, non-declaration by the appellant of their intent to avail VKGUY scheme on the shipping bill is bona fide and amendment to that effect in the shipping bill is covered under the provision of Section 149 of Customs Act, 1962
Exporter was unaware of the formalities of advance licence and due to ignorance, the exporter failed to avail appropriate scheme. In the present case, VKGUY scheme was allowed on the free shipping bill without any declaration and requirement of declaration of free shipping bill .brought into effect. More or less on same time goods in the present case has been exported therefore, appellant was not aware of these circulars and amendments of Sep 2009. - request of the appellant seeking amendment in the free shipping bill is legitimate and covered by the provision of Section 149 of Customs Act, 1962. It is also to be noted that the Revenue has hot brought any material on record that the amendment sought for by the appellant will cause any loss to the Revenue or will prejudice the interest of the Revenue in any manner - order of the lower authority is set aside - Decided in favour of assessee.
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2015 (7) TMI 790 - SUPREME COURT
Classification of goods - Whether Risograph is an office machine having duplicating function and thus to be classified under sub-heading 8472.90 of the Customs Tariff Act, 1975 or is it a printing machine to fall under sub-heading 8443.50 - Held that:- The HSN Explanatory Notes makes it amply clear that small printing machines, even if intended for office use and even duplicators using embossed plastic or metal sheet, which can also operate with stencils, and photocopying etc. are specifically excluded. What follows from the above is that if there is a small printing machine like letterpress, lithographic or offset printing machine, which does the printing work and also, at the same time, performs duplicating work with stencils or otherwise and even photocopying work, it would still be treated as a printing machine and not duplicating machine.
Simplest form of printing presses consists of a fixed slab (or bed) to hold the forme, cliché or plate to be reproduced. The ingredient of a plate from which there can be reproduction is, thus, recognised as a process of printing. It would also be pertinent to mention that these very HSN Explanatory Notes clarify that apart from the normal types of printing machines, there are special printing machines which are also covered by this heading. Examples of 7 such machines are specifically given. For the purpose of this case, printing machine described at serial No.7 would be pertinent.
A fine distinction between the printing machine on the one hand and duplicating machine on the other has to be borne in mind with specific understanding that in many cases there may be confusion between duplicating machine and specific form of printing machine, namely, screen printing machine. We may point out at this juncture that the endeavour of the appellant is to establish that Risograph machine is nothing but Screen Printing Machine.
Risograph printing process is more akin to screen printing - The printing itself takes place when the ink is squeegeed through the stencil onto the screen and ultimately onto the paper. It is the screen which holds the image area, which can carry either a pictorial or typographic material. Similarly, in the case of a Risograph, the long fibre Japanese type paper is the master through which the ink is pressed to reproduce the image or text. The screen printing stencil prepared is equivalent to the plastic film coating on the cellulose fibre of Risograph master. Thus, the principles adopted for printing in the Risograph is akin to that found in screen printing. - It is difficult to equate Risograph machine with duplicating machine. Duplicating, as opposed to photocopying, requires the preparation of a master sheet which makes duplicates on a machine.
Risograph machine is in the nature of a screen printing machine and not duplicating machine. It would, therefore, be covered under sub-heading 84.43 and not 84.72. - Decided in favour of assessee.
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2015 (7) TMI 789 - MADRAS HIGH COURT
Valuation - import of gods from related party - original copy of the agreement is not available - Non acceptance of the certified copy of the document, namely, Technology Transfer Agreement - Held that:- Commissioner of Customs (Appeals) has already come to a definite conclusion against the petitioner that they have not produced the corresponding annexures without which the agreement cannot be said to be complete or implementable. Further more, while dealing with the balance sheet which shows the flow back of ₹ 18,11,20,000/- in the year 2010-11 to the related supplier in the name of fees for shared services, the second respondent-appellate authority has given a finding that the petitioner has not produced any agreement in this regard, on this basis, the assessing officer has been directed to redetermine the value in terms of the Customs Valuation Rules, 2007 for the period commencing from 2010 onwards with a further finding that the declared value cannot be accepted in terms of Rule 3(3)(a) / 3(3)(b) of the Customs Valuation Rules, 2007.
Certified true copy of the Technical Transfer Agreement has been filed before this Court with supporting affidavit sworn to by one of the two signatories to the Technical Transfer Agreement dated 1.1.2009 relating to Wind Turbine Model AE 59 / 800 KW on behalf of Gamesa Innovation and Technology, S.L. with Gamesa Wind Turbines Private Limited stating that the original of the Technical Transfer Agreement executed by him as an authorised signatory of Gamesa Innovation and Technology, S.L, Spain is not traceable despite diligent search, however, as per the established internal practice of the company, as soon as an agreement is executed, the original is scanned and the scanned copy is archived and the attached copy of the aforesaid agreement initialed by him is print out of the original agreement so scanned and archived.
No embargo or impediment for the second respondent to consider the same as per Section 63 of the Indian Evidence Act, which says that the certified copy of the original, accompanied by a sworn affidavit of one of the signatories to the original Technical Transfer Agreement dated 1.1.2009 relating to Wind Turbine Model AE 59 / 800 KW on behalf of the company, can be taken as secondary evidence - photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original, therefore, there is no impediment for the second respondent to consider the issue afresh. - Matter remanded back - Decided in favour of assessee.
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2015 (7) TMI 788 - BOMBAY HIGH COURT
Contempt of court - failure to decide the matter within time directed by the HC - Held that:- When there is Court's order and which directs the Authority like the Commissioner of Customs to decide the case within a particular time frame, then, it is his bounden duty to adhere to it. If there are any difficulties in following and abiding by the schedule prescribed in the Court's order, then, appropriate applications have to be made seeking extension of time and the Court must be appraised of all developments and difficulties. It is when the Court extends time, then, the matter can be decided within that extended period, else all such authorities are aware of the consequences of not complying with the Court's order and in time. They could be visited with personal costs and consequences such as entering displeasure of this Court in their service record - Proceedings of contempt of court dropped - Appeal disposed of.
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2015 (7) TMI 787 - CESTAT MUMBAI (LB)
Benefit of Notification No. 21/2002 - Whether CR/HR coil imported by the appellants is ‘other alloy steel‘ or otherwise - Demand of differential duty - Confiscation of goods - Interest u/s 28AB - Penalty u/s 114A - and 112(a) - Held that:- In order to fall under the category of alloy steel one or more elements is needed in the proportion prescribed vide Chapter Note 1(f) of Chapter 72, in addition to steel which is not complying with definition of steel. Admittedly, one of the elements in the impugned goods is steel and it is not complying with definition of stainless steel also. Further, as recorded in para 3 of the impugned order, the percentage of manganese was found to be more than 1.65% and the Titanium was more than 0.05% which is as per the proportion prescribed under in the Chapter Note 1(f) of Chapter 72. Therefore, the impugned goods would rightly fall under the category of other alloy steel and not eligible for the benefit of Notification.
Interpretation of Other alloy steel - One element or more than one element - Difference of opinion - Majority order - Held that:- if any one of the element is present in the proportion specified that would satisfy the requirement of Chapter Note 1(f) even if the other elements are not present in the proportion specified - The expression used in Chapter Note 1(f) is “one or more of the following elements”. This would imply that, if one of the element is present in the proportion specified, it would constitute ‘other alloy steel’. If more than one element is present it is not necessary that each of the elements should be present in the proportion.
Duty demand is confirmed along with penalty. However, as the goods are not physically available and not cleared on any bond or bank guarantee, therefore, Redemption Fine is not imposable. - Decided partly in favour of appellant.
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