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Showing 81 to 100 of 182 Records

• 2015 (9) TMI 870 - MADRAS HIGH COURT
  

  Detention of goods - Levy of anti dumping duty - import of 3 MTS of L-ASCORBATE 2-PHOSPATE - 35 PCT AND 2 MTS MONO POTASSIUM PHOSPATE - Wrong classification of goods - Held that:- The issue relating to classification of items viz, whether the goods would attract Anti Dumping Duty or not, can be looked into by the authority concerned by adopting proper adjudication process followed by a speaking order, which is yet to be made. Hence, such exercise shall be completed by the respondents within a period of four weeks from the date of receipt of a copy of this order.

  In the meanwhile, for the purpose of release of goods i.e., L-ASCORBATE 2-PHOSPATE - 35 PCT, 50% of the Anti Dumping Duty as determined shall be paid by the petitioner and for the balance amount, a bond as directed by the authority concerned is directed to be executed by the petitioner. On such compliance, the goods shall be released forthwith. As far as the other item viz., MONO POTASSIUM PHOSPATE, it is mutually agreed by both the counsel on record that there is no dispute. Hence, the respondents are directed to release the said goods forthwith. - Decided in favour of assessee.

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• 2015 (9) TMI 869 - CESTAT AHMEDABAD
  

  Overvaluation of goods - confiscation of the goods - Denial of request of cross examination - Held that:- statement against the assessees cannot be used without giving them opportunity of cross-examination of the deponent. In our considered view, the appellant should be given opportunity of cross-examination of the exporters and Panchas and documents should be provided in the interest of justice, otherwise, the adjudicating authority should give reasons thereof. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.

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• 2015 (9) TMI 868 - CESTAT AHMEDABAD
  

  Imposition of godown charges - re-export of goods - Held that:- The present appeal has been filed by the appellant where the case pertains to import of goods through baggage. As per preamble to the OIA dated 26.8.2013, passed by First Appellate Authority, appeal against such orders lies to the Under Secretary, Govt. of India, Ministry of Finance, Dept. of Revenue, New Delhi as per Section 129A(1) of the Customs Act 1962. This Bench, therefore, has no jurisdiction to entertain the present appeal. The same is, therefore, disposed of as non-maintainable - Decided against assessee.

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• 2015 (9) TMI 867 - CESTAT AHMEDABAD
  

  Whether penalty can be imposed upon the importer for some misdeeds of the employee of their clearing agent during customs clearance of their imported goods - Held that:- Respectfully following the ratio laid down by this Bench [2014 (4) TMI 381 - CESTAT AHMEDABAD], I hold that the present appeal filed by the Revenue is required to be rejected. - Decided against Revenue.

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• 2015 (9) TMI 818 - CESTAT CHENNAI
  

  Violation of notification No.20/99-Cus and 16/2000 – Goods not used in manner intended – Appellants had shut down plant and disposed entire plant and machinery consisting of old as well as new machinery by e-auction – Imported goods which were cleared under concessional rate of duty forming part of plant and machinery were also disposed – Such disposal was alleged by Customs as violation of condition of notification No.20/99-Cus and 16/2000 on ground that imported goods have not been put to intended use but were sold – DRI seized imported machinery but were released provisionally on execution of bond and giving of bank guarantee – Differential customs duty was also demanded alongwith redemption fines and penalty – Held that:- Appellants took decision to close down Plant within 2 years of importation – Reasons for shut down of plant is irrelevant in so far as customs exemption availed under Notification No.20/99 and 16/2000 is concerned – Therefore, disposal of imported goods did not serve intended purpose of notification – In spite of being fully aware of fact that imported goods were to be used for intended purpose, appellants failed to fulfill undertaking given to Customs authorities as required by condition of notification – That warranted appellant to pay duty in event of failure of not using goods for manufacture of fertilizer.

  Members of successful bidder/awardee in their statements admitted that they have to bear all duties and taxes as stipulated in e-auction but there was no mention of any payment of customs duty on imported machineries – When whole plant was sold to third party, nothing prevented appellant to collect differential customs duty on imported goods contained in plant which was sold – Appellant cannot take shelter on ground that mere installation of imported machinery and commissioning plant for short period shall absolve it from liability – Therefore, adjudicating authority rightly demanded Customs duty from appellant who are owners and beneficiary of imports – Decided against Appellant.

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• 2015 (9) TMI 817 - CESTAT CHENNAI
  

  Import of crude palm oil of edible grade - Classification of goods - Classification under Chapter 15119090 or under Chapter Heading 15111000 - Benefit of exemption notification at Sl.No.29 of Notification No.21/2002-Cus. dt.1.3.2002 - Held that:- Classification of imported goods should strictly be made as per the chapter note, section note and the description of specific sub headings read with HSN Explanatory Notes. Main Chapter heading 1511 covers palm oil and fractions whether or not refined but not chemically modified. Chapter 15111000 covers crude oil and chapter 151190 covers Others. On perusal of records, and test reports, we find there is no dispute on the fact that the goods imported are Crude Palmolein (Edible Grade). It is also not disputed in the impugned order that the appellant is a manufacturer of refined oil and the imported crude palmolein is further refined after clearance and sold for human consumption. When the imported goods conform to the specific description under Ch 15111000 as crude Oil and there is no specific chapter note or HSN Explanation specifying criteria of acid value or carotenoid content for classifying the crude oil, therefore the goods imported are appropriately classifiable under Chapter 15111000 of CTH and any specific description given under Sl.No.34 of notification 21/2002 for the purpose of exemption cannot be taken as criteria for classification of the product under Chapter Heading 15119090 as Others.

  Following the Tribunal s decision [2009 (6) TMI 662 - CESTAT, AHMEDABAD], we hold that imported crude palm oil is rightly classifiable under chapter heading 15111000 of CTH and rightly eligible for exemption under Sl.No.29 of Notfn 21/.2002 and not under Sl.No.434 of the notification. The impugned order to the extent of classification of goods under chapter 15119090 is liable to be set aside.

  Vessel has not discharged imported crude oil to shore tank directly but which are transferred to the barges and loaded into the tankers. The actual weighment of the tankers is done at the port and it is the quantity which should be taken for assessment - The Hon’ble Supreme Court in the case of Garden Silk Mills Ltd. (1999 (9) TMI 88 - SUPREME COURT OF INDIA) held that import is complete only when the goods are delivered. This plea is reiterated by the Tribunal in the case of Nilkhil Refineries Ltd. (2011 (7) TMI 843 - CESTAT, BANGALORE) where if there is a case of shortage and the goods not discharged, only the master of vessel is liable for action for short-landing of the goods. Therefore, we find that there is no infirmity in the impugned order in so far as the quantity taken for assessment as per the actual quantity loaded on the tankers in the port. The impugned order in so far as the quantity issue as discussed above is liable to be upheld. - Decided in favour of assessee.

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• 2015 (9) TMI 816 - MADRAS HIGH COURT
  

  Non-communication of Order – Original order was not served on petitioner – Petitioner also made application under Right to Information Act, wherein it has been stated that despatch details were not available – Admittedly, order has been passed on 30.12.2009 and petitioner was demanded to pay sum together with interest from 17.11.1995 – Held that:- respondent contended that order referred to which was allegedly communicated to petitioner, there is no proof for despatch of same and there is no acknowledgment on file – Hence, accepting contention of petitioner, impugned order passed by first respondent is set aside – Consequently, impugned recovery notice issued by second respondent also set aside – Therefore petition disposed of.

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• 2015 (9) TMI 814 - BOMBAY HIGH COURT
  

  Evasion of Duty – Necessity of sanction under Section 155, Cr.P.C – Respondent was prosecuted for offence punishable under Section 135 of Customs Act, 1962, however by judgment, respondent came to acquitted – Petitioner submitted that requirement of sanction under section 155 of Cr.P.C was not followed – Whether sanction under Section 155(2), of Magistrate was necessary, before investigation into non-cognizable offence can be conducted – Held that:- It is trite that Courts do not embark or attempt to decide questions, which are purely of academic nature – Even if view taken by Magistrate, insofar as requirement of sanction under Section 155 of Cr.P.C is reversed, fact that order of adjudication is set aside by CESTAT would come in way of appellant – In view of matter, appeal disposed of.

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• 2015 (9) TMI 813 - BOMBAY HIGH COURT
  

  Demand for interest and penalty – Delay in service of notice – Show cause notice came to be issued to Respondent calling upon it to show cause as to why interest and penalty should not be demanded – Adjudicating authority confirmed issue and imposed penalty – Respondents thereafter preferred appeal before tribunal which is allowed by impugned order – Held that:- Demand for interest pertains to dues which were paid on various dates – Clearly seen that there is delay of more than three years from date on which first cause of action arose and more than two years from date on which last cause of action arose – Said delay has not at all been explained – In that view of matter, it cannot be said that Tribunal was unjustified in holding that delay in issuing show cause notice was not sustainable in law – Tribunal has rightly allowed appeal of Respondent – Decided against Revenue.

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• 2015 (9) TMI 766 - MADRAS HIGH COURT
  

  Benefit of exemption notification no. 29/1999 – Used in goods which are sold in domestic market – Department challenging impugned order of Tribunal by which benefit of exemption notification No.29/1999 was extended to imported goods, even if it is used in goods which are sold in domestic market instead of using them in export goods – Held that:- Admittedly neither in orders passed by Commissioner nor Tribunal, recorded relevant portions of Notifications required - There were contradiction between finding rendered by Adjudicating Authority and finding of Tribunal – Also statements given by persons concerned are also adverse to extent that there was intention on part of first respondent to use imported goods primarily for local sales – In view of contradiction between findings of Adjudicating Authority and Tribunal, present court do not think it fit to answer questions of law, except remanding matter to Tribunal to consider claim of first respondent in light of findings of Commissioner – Appeal allowed by way of remand to Tribunal – Order of Tribunal set aside – Decided against Revenue.

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• 2015 (9) TMI 765 - GOVERNMENT OF INDIA
  

  Rate of duty drawback – Reversal of Cenvat credit – Applicants claimed duty drawback under All Industries Rate (AIR) of Drawback on their export – Department availed Cenvat credit of input services and therefore, it appeared that they were not eligible for drawback @ 14.8% but eligible for drawback at lesser rate of 3% – JS(RA) remanded matter back with directions to carry out verification – In remand proceedings, Commissioner (Appeals) rejected appeal filed by applicant, without carrying out any verification as directed by JS (RA) – Held that:- if any amount has been availed as credit on any inputs, used in manufacture of final product, then such Cenvat credit should be reduced from eligible drawback – Rate of drawback applicable for different exports are notified by Government by issuing Notification under Rule 3(1) of Drawback Rules after considering all relevant factors – Admittedly drawback claims sought to be reduced @ 3% instead of 14.8% @ as claimed by applicant on ground that applicant availed Cenvat credit on input services.

  Reversal of Cenvat credit before utilization amounts to non-taking of credit that such reversal can be done subsequent to export of goods – In present case applicant made proportionate reversal of Cenvat credit before utilization of same – There are no substantial material evidences to support allegation of mala fide intention on part of applicant –Since, applicant has reversed proportionate Cenvat credit availed on input services when dispute arose and claimed that said amount was not utilized and remained in balance, so this reversal has also to be treated as non-availment of Cenvat credit on input services – Therefore applicant entitled for drawback claims at higher rate @ 14.88% – Impugned Order set aside and revision application allowed – Decided in favour of Assesse.

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• 2015 (9) TMI 764 - DELHI HIGH COURT
  

  Conviction u/s 20 of the NDPS Act - Non compliance with section 50 of NDPS Act - Held that:- A careful examination of the notice would show that an option was given to the appellant that if the appellant so desired the search could be conducted in the presence of a gazetted officer or a Magistrate, however, he had responded by saying that he did not want his search to be carried out in the presence of a gazetted officer or a Magistrate. - In this case, a mere offer was made to the appellant that in case if he so desires, his search may be conducted in presence of a Gazetted Officer or a Magistrate. Thus a mere offer would not satisfy the mandatory ingredients of section 50 of the NDPS Act. In my view the judgment in the case of Ram Avatar (2011 (7) TMI 1105 - supreme court) is fully applicable to the facts of this case, as a similar offer was given to Ram Avtar and the Apex Court held that such an offer did not comply with the mandatory requirement of section 50 of the NDPS Act.

  Section 50 would be applicable even in those cases where the recovery was made other than from the person of a person. In this case also a notice was given to the appellant. - appellant was not made aware of his right and it seems that an offer was made to the petitioner as a mere empty formality without appreciating the seriousness and letter and spirit of Section 50 of NDPS Act. - Having held that the mandatory requirement of Section 50 of the NDPS Act was not complied with, recovery itself would be illegal and consequent thereto the conviction and the order on sentence are liable to be set aside - Decided in favour of appellant.

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• 2015 (9) TMI 763 - MADRAS HIGH COURT
  

  Import of silk fabrics - Benefit of additional duty exemption in terms of Notification No.30/2004 CE dt 9.7.2004 - Held that:- petition is disposed of by directing the respondents to release the subject goods concerned in respect of the above said Bill of Entry subject to the condition that the petitioner furnishes bank guarantee to the entire value of Additional Duty of Customs (CVD) to the satisfaction of the second respondent, which should be kept alive till adjudication process is completed. It is made clear that as and when the bank guarantee is furnished, the respondents shall forthwith release the goods - Decided conditionally in favour of assessee.

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• 2015 (9) TMI 762 - MADRAS HIGH COURT
  

  Restoration of appeal - Non compliance of pre deposit order - Held that:- In so far as the allegation of non compliance with the conditional order is concerned, the appellant appears to have complied with the conditional order twice over, but in a wrong account and after the time granted by the Tribunal. The appellant complied with the conditional order first on 24.7.2012 by making a debit entry in the CENVAT book. This compliance was, irrespective of whether it was proper compliance or not, made within the time stipulated by the Tribunal. The second compliance was on 28.2.2014 by way of cash, which was certainly beyond the period of time. Therefore, the appellant has complicated the matters for themselves, but demonstrated their bona fides by first making a debit entry in the CENVAT book and next making a cash deposit. In essence, the appellant has suffered to the extent of 100% of the duty levied. - orders of the Tribunal are set aside. The appellant shall be taken to have complied with the conditional order - Decided in favour of assessee.

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• 2015 (9) TMI 761 - CESTAT MUMBAI
  

  Demand of differential duty - Demand of CVD - Confiscation u/s 111(m) - Penalty u/s 112 - Held that:- Goods were seized by the Customs and provisionally released on execution of bond and bank guarantee. The adjudicating authority has come to the conclusion that the goods are undervalued and therefore, he re-determined the value and demanded a differential duty. He has also held that the importer is liable to pay CVD on the basis of MRP. No quantification of duty has been made by the adjudicating authority. Further, the issue of confiscability of the items and the imposition of penalty proposed in the show-cause notice has not been examined by the adjudicating authority. Thus, there are many infirmities in the impugned order. Therefore, we set aside the impugned order to the extent of non-confiscation of goods and non-imposition of penalty and remand the matter back to the adjudicating authority for consideration of these issues raised in the show-cause notice in accordance with law. Needless to say that the importer should be given an adequate opportunity of defending their case before the denovo order is passed. - Decided in favour of Revenue.

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• 2015 (9) TMI 760 - CESTAT NEW DELHI
  

  Duty demand - Undervaluation of goods - Held that:- prima facie case in favour of the appellant- assessee for the substantive hearing of the several appeals and consider it appropriate to direct stay of further proceedings pursuant to the Orders-in-Original, on condition that M/s Euro Asia Global remits 25% of the cumulative demand of duty specified in the two Orders-in-Original, to the credit of Revenue within eight weeks. In default of deposit by the appellant within the time stipulated, the stay granted herein shall stand dissolved forthwith on the default without further reference to this Tribunal and the Revenue would be entitled to take appropriate steps in law for recovery of the entirety of the levy of customs duty, penalty or interest as assessed by the Order-in-Original impugned in the substantive appeals - Appeal disposed of.

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• 2015 (9) TMI 759 - CESTAT NEW DELHI
  

  Validity of appeal - Authorization of Committee of Commissioner - one Member of the Committee has authenticated the order - absence of date under signature - Held that:- Revenue is not preferred to be non-suiter to protect interest of Revenue. But the casual approach of the Revenue makes it remediless by the review order of the aforesaid nature. Such negligence of Revenue were before Hon’ble High Court of Punjab and Haryana in the case of C.C.E., Delhi-III vs. B.E. Office Automation Products Pvt. Ltd. reported in [2009 (12) TMI 128 - HIGH COURT OF PUNJAB & HARYANA] and also before Hon’ble High Court of Delhi in the case of CCE, Delhi-I vs. Kundalia Industries reported in [2012 (8) TMI 789 - DELHI HIGH COURT] - Decided against Revenue.

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• 2015 (9) TMI 718 - ANDHRA PRADESH HIGH COURT
  

  Non-service of Notice – Storage of goods for extended period – Levy of duty – Through impugned communication, 1st respondent required petitioner to pay customs duty and interest – Petitioner states that impugned communication was not preceded by any notice and representations made by it were not taken into account – It is also pleaded that goods are covered by Section 85 of customs Act, 1962 and accordingly are exempted from customs duty – Held that:- Petitioner stored goods in customs godown by duly executing bonds but had not removed though substantial period has expired – Petitioner made representations for extension of warehouse period – From perusal of impugned order, evident that respondents wanted to levy customs duty and interest – Court of view that impugned communication can be treated as show cause notice by itself and petitioner can be granted reasonable time to put forward its contentions – Respondent-1 directed to pass appropriate orders – Petition disposed of.

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• 2015 (9) TMI 717 - DELHI HIGH COURT
  

  Imposing condition on provisional release – Payment of interest - Whether order of settlement commission imposing condition on release of goods and payment of interest was justified – Held that:- Settlement Commission was well within its jurisdiction to examine matter in detail and to pass orders that it did so as to bring about settlement – Therefore no requirement to interfare with directions given by Settlement Commission by virtue of impugned order – Also directions given by Settlement Commission have to be complied with, otherwise, entire settlement would fall apart and all matters would have to be re-opened – Petitioner to comply with directions with regard to provisional release of seven vehicles – In view of aforesaid directions all writ petitions stand disposed of.

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• 2015 (9) TMI 716 - GOVERNMENT OF INDIA
  

  Fixation of Brand rate – Extension of drawback benefit to BCD – Adjudicating authority rejected applications for fixation of brand rate under Rule 6 of DBK Rules, 1995 observing that BCD on imported goods was not paid in cash but was debited in DEPB scrip treating it as exempted – Commissioner(A) decided case in favour respondent – Held that:- respondent’s application for fixation of brand rate was rejected by original authority while relied upon Board’s Notification No. 97/2009 -Cus., and Board’s Circular No. 41/2005-Cus. – As per notification entitlement of drawback is limited only up to additional duty leviable under Section 3 of Customs Tariff Act against amount debited in DEPB scrip – As such, said notification does not extend benefit of drawback of Basic Customs Duty (BCD) against debited DEPB scrip – Circular also does not speak about extension of drawback benefit to BCD paid through debit in DEPB scrip – Hence, it can be inferred that such benefit of drawback is not eligible for debit in DEPB against BCD – Therefore impugned order set-aside – Decided against revenue.

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