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Customs - Case Laws
Showing 21 to 40 of 110 Records
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2011 (1) TMI 1310
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... ... ..... converted into duty free shipping bills at the request of the exporter are not correct. We have been shown correspondence between the officers examining the consignment, who had specifically made a note that the goods were not covered under DEPB scheme. It was in these circumstances that the appellant prayed for converting the DEPB bills into free shipping bills. As such it can be safely concluded that such conversion was not at the request of the exporter but at the behest of the Revenue. The ratio of law in the case of Smruti Pottery Works v. CC, Kandla reported in 2004 (163) E.L.T. 184 (Tri. - Del.) is fully applicable to the facts of the case. 7. In view of the above, we allow the conversion of the free shipping bills into DEPB shipping bills. However in as much as the appellants DEPB claim has not been examined by the lower authorities, we direct them to do so in the light of the clarification issued by the DGFT authorities. (Dictated and pronounced in open Court)
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2011 (1) TMI 1303
Duty demand as well as the penalties imposed set aside by Tribunal - Held that:- The endorsement of transferability had been made by the licensing authority. It is not the case of the licensing authority that the endorsement was fraudulently obtained, nor has the licensing authority taken any steps to cancel the said licence. In the circumstances, the Customs authorities could not have refused to grant the benefit under the said licence. The Tribunal was therefore, justified in setting aside the duty demand.
In the light of the findings of fact recorded by the Tribunal, it is apparent that the provisions of Section 112(a) of the Act could not have been invoked against and M/s. Kuppi Utpadan and, Shri Balkishan Devidayal. As regards penalty imposed on M/s. ACT Shipping, the Tribunal has found that the goods were cleared on the basis of documents filed after due verification by the proper customs authority, in the circumstances the Tribunal was justified in holding that penalty cannot be levied under Section 112(a) of the Act on M/s. ACT Shipping who was an agent, when the liability to confiscation of goods has not been upheld. For the foregoing reasons, it cannot be said that the Tribunal has committed any legal infirmity so as to warrant interference. No question of law, much less, a substantial question of law can be stated to arise out of the impugned order of the Tribunal. The appeal is accordingly dismissed.
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2011 (1) TMI 1249
Whether the suit is filed within the period of limitation?
Do the plaintiffs prove that they are entitled to recover wharfage, demurrage and another charges as claimed in the plaint?
Do the plaintiffs prove that they are entitled to recover interest at the rate of 15% per annum as demanded in the plaint?
What Decree?
Held that:- Taking into consideration last free date as 18-1-1985 and the date of filing the suit as 11-1-1988 and accepting the contention that the cause of action arose on 18-1-1985 the suit is filed within the period of limitation. Accordingly, point No. 1 is answered in the affirmative.
Point No. 2 is answered in the affirmative and the plaintiffs will be entitled to recover monies as per the final order. So far as Point No. 3 is concerned, I hold that the plaintiffs would be able to recover interest at the rate of ₹ 12% per annum as per the final order. So far as the point No. 4 is concerned, plaintiffs would be entitled to decree as per the operative part.
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Thus Defendants do pay to plaintiffs ₹ 103352. 42p. Defendants do pay to plaintiffs interest at the rate of 12% per annum on ₹ 103352. 42p from 31-10-1987 till realization.Defendants do pay to plaintiffs costs of this suit.
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2011 (1) TMI 1230
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... ... ..... covered by the notification is not justified. That the rough ophthalmic blanks will require further processes before use, is not relevant for the classification, in view of the specific inclusion of Rough blanks in the tariff entry. 6.4 The deletion of the Sl. No. 20 of the exemption Notification No. 5/2006 by Notification No. 11/2010, dated 27-2-2010 on the ground that rough ophthalmic rough blanks are covered by S.No. 10 of Notification No. 10/2006 is also relevant. Undisputedly, following this development, Commissioner (Appeals) has allowed the benefit of Notification 10/2006 in respect of imports of all glasses for corrective spectacles including ophthalmic rough blanks. 7. In view of the above, we find merits in the appeal by the party and accordingly, set aside the order of the Commissioner (Appeals) in so far as the same related to denial of exemption under S.No. 10 of Notification 10/2006. 8. The appeal is allowed with consequential relief, in accordance with the law.
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2011 (1) TMI 1189
Confiscation – penalty – Held that:- proposal for confiscation and imposition of penalty needs to be preceded by issuance of show-cause notice. If it is the case of the Revenue that the goods imported by the respondents herein were prohibited goods due to non-availability of IEC number and would in turn be liable for confiscation under Section 111(d) of the Customs Act, 1962, Revenue should have issued a show-cause notice under Section 124 of the Customs Act, 1962 proposing to confiscate the goods and for consequent actions like redemption fine and/or for imposition of penalty. In the absence of any such proposition, the learned Commissioner (Appeals) was correct in coming to the conclusion that there is no contravention of Section 111(d) of the Customs Act, 1962, appeals filed by the Revenue are rejected
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2011 (1) TMI 1167
Pre-deposit - Whether the appellate Tribunal was justified in imposing pre-deposit condition in a matter which arises out of remand proceedings when on earlier occasion in the same proceedings, the appeal was entertained without pre-deposit condition – Held that:- on the modification application filed by the appellant the Tribunal had reduced the amount of pre-deposit to ₹ 20 lakhs. However, on account of non-compliance of the said order, vide the impugned order the Tribunal has dismissed the appeal preferred by the appellant, appellant has submitted that since the appeal is of the year 2007, the Tribunal be directed to dispose of the same at an early date. The said request appears to be reasonable. In the circumstances, the Tribunal is requested to dispose of the appeal as expeditiously as possible
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2011 (1) TMI 1155
Refund claim – claim rejected on the ground that the appellant had not established that the excess customs duty paid on import of crude petroleum by MRPL had not been passed on to its customers - appellant followed provisional assessment - it was found that the appellant had paid excess duty than due. It claimed refund which was allowed. In respect of certain consignments, the appellant was not able to establish that the excess duty paid had not been fully or partly passed on to its buyers - authority sanctioned refund to the tune of Rs. 25,42,726/- and credited to the Consumer Welfare Fund – Held that:- under Section 27(3), no refund of duty and interest can be made without satisfying the requirements of sub-section (2). Therefore, even though under Section 18, sub-section (5) has been introduced w.e.f. 13-7-2006, the issue of refund was always subject to the provisions of Section 28(3), considering that Sections 18(2) (a) applies to final assessment, order of this Court dated 30-10-1991 in the matter of restitution would be subject to the provisions of Section 27(3) of the Customs Act, 1962, refund claim rejected
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2011 (1) TMI 1139
Petition under Section 482 Cr.P.C - quashing of complaint case under Sections 132 and 135 of the Customs Act, 1962 in which he was arrayed as an accused on the ground that the petitioner had preferred an appeal before the Customs Appellate Authority in respect of adjudicating proceedings against penalty and in the appeal he was exonerated and the case qua him was found to be false - statement of Shri Varyam Singh alleging the involvement of the Appellant and is not corroborated by the statement of any other person or by any documentary evidence – Held that:- Since the prosecution was initiated against the petitioner on the basis of available evidence, non-joining of the petitioner in investigation cannot be a ground to distinguish the case of the petitioner from that of Vinod Kumar Jain (supra). The entire evidence sought to be relied upon by the respondent department against the petitioner is the same that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, no useful purpose would be served by continuing with the prosecution against the petitioner before the trial court, petition is allowed and complaint case quashed
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2011 (1) TMI 1098
Unjust enrichment - refund - appellant had filed bills of entries on 31-1-2006, which were provisionally assessed on the value of USD 415 PMT of the imported goods. On the very same day, vide Notification No. 7/2005-Cus., (N.T.) dated. 31-1-2006, the tariff value was reduced from USD 415 to USD 412 PMT. The bills of entries were finally assessed on the very same day i.e. 31-1-2006 giving the benefit of the notification to the appellant. Appellant filed refund claims on 30-6-2006 as per the provisions i.e. provisions of Section 27 read with Section 27 read with Section 18 of the Customs Act, 1962 - Held that:- Claim for refund made by the appellant had to be decided according to the law laid down in case of TVS Suzuki Ltd. [2003 (8) TMI 42 - SUPREME COURT OF INDIA] as relying on Mafatlal Industries Ltd. (1996 (12) TMI 50 - SUPREME COURT OF INDIA) , provisions of sub-rule (5) of Rule 9B of the Central Excise Rules were parimateria to the provisions of Section 18 of the Customs Act, 1962 as regards the provisional assessment and finalization thereof. order is not correct and set aside, order is set aside and the appeal allowed with consequential relief, if any.
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2011 (1) TMI 1088
Confiscation - Anti dumping duty - Classification - appellant made a request for re-export of the said goods to the original exporters inasmuch as it was financial not viable for them to pay Anti Dumping Duty. - Held that:- Admittedly, the goods were declared as ‘tapes’ and the same were found to be ‘tapes’. Further, classifying the said goods under a different Customs tariff heading than the one adopted by the Revenue for the purpose of Anti Dumping Duty, cannot said to be with a mala fide intention, in the absence of any evidence to that effect. In any case, adoption of correct classification is in the hands of Customs authorities who can always change the same from the declared classification to the correct classification. To classify the product under a particular heading, according to the understanding of the importer, by itself cannot be held a ground so as to confiscate the imported goods. As such, we find no infirmity in the view adopted by the Commissioner. Accordingly, the appeal filed by the Revenue is rejected.
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2011 (1) TMI 1081
Penalty under Section 112 of Customs Act - contention of appellant is that in the earlier adjudication order a penalty of Rs. 50,000/- was imposed which was increased to Rs. 1.00 lakh in the remand proceeding - Held that:- As there is no omission or commission on the part of the present appellant which makes him liable for penalty under Section 112 of Customs Act. The impugned order in respect of the present appellant is set aside and appeal in this regard is allowed.
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2011 (1) TMI 1070
Writ application - Tribunal considering the fact that only a petty amount of Rs. 10,000/- is involved in this case, the appeal as well as the stay petition are dismissed at the admission stage without going into the merit of the case - Held that:- There is no provision for dismissal of an appeal only on the ground of the penalty amount being a paltry amount. The learned Tribunal was obliged to consider the merits of the appeal. There being an apparent error on the face of the impugned order, this Court does not deem it necessary to call for affidavits. The order impugned is set aside. The learned Tribunal is directed to consider the appeal afresh in accordance with law, preferably within four months from the date of communication of this order.
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2011 (1) TMI 1021
Condonation of delay - suspension of operation of the CHA licence - Held that:- As appellant submits that he was under the impression that a separate appeal against the Commissioner's order was not necessary inasmuch as an appeal had already been filed against the Commissioner's earlier order of suspension of operation of the licence. Conspicuously, this ground is missing in the 'condonation-of-delay' application and hence cannot be considered. Moreover, there is even no attempt on the part of the appellant to explain the delay of the appeal beyond the period of limitation prescribed under the statute. The appellant is said to have been suffering from 'depression'. From which date was he suffering from 'depression' is not forthcoming, nor any medical certificate has been produced in support of the plea. COD application dismissed.
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2011 (1) TMI 1020
Stay - whether it was open to the Commissioner (Appeals) to order for refund of fine and penalty to the importer? - Held that:- The only answer to this question would be in the negative. As rightly pointed out by the SDR, the Assistant Commissioner's order relating to confiscation, redemption fine and penalty was not challenged by the importer and hence the same was not liable to be interfered with by the Commissioner (Appeals) in an appeal filed by the Revenue - set aside the impugned order and allow the appeal.
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2011 (1) TMI 1019
Stay application - Valuation - whether the royalty paid was liable to be included in the assessable value of the imported goods under Rule 10(1)(c) of the Customs Valuation Rules - Chartered Accountant's certificate dated 25.11.2010 showing particulars of the royalty paid on sale proceeds of goods manufactured and sold locally is available on record. The Chartered Account has certified the royalty and payment for technical know-how fees payable to Seco Tools AB, Sweden, accounted for by the appellant-company in its books of accounts - Held that:- Having found that a document with the semblance of the break-up offered by the appellant before the lower appellate authority is now available on record, the matter has to be sent back to the said authority for fresh decision. It is open to the Commissioner (Appeals) to call upon the assessee to prove the veracity of the Chartered Accountant's certificate by producing their audited accounts and 'relevant records, appeal is allowed by way of remand.
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2011 (1) TMI 1014
Valuation of the vehicles - assessee had purchased the vehicles in connection with transfer of their residence to India - invoices issued by those dealers were obviously local sale invoices, but these invoices did not show the address of the buyers - Held that:- If it was the intention of the assesse to purchase brand new cars for the purpose of importation into India in connection with transfer of their residence, they should ordinarily have obtained the invoices with all the relevant particulars mentioned thereon - instructions contained in the relevant circulars of CBEC were also followed by the original authority in determining the assessable value of the vehicles. The original authority also examined whether any depreciation of value could be allowed, and found valid reason not to allow such depreciation, on the facts of the case. authority further allowed 20% discount on the assessable value determined by the lower authority. As a matter of fact, Commissioner (Appeals) has been fair enough to grant reasonable relief to the assessees by taking into account relevant factors like demurrages, adverse weather conditions etc, even after the above discount, the assessable value of the subject-cars remains far above the declared value, there can be no grievance for the Revenue, appeals stand dismissed.
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2011 (1) TMI 1013
Import of raw material under the Advance Licences transferred to them by the original licensee as permitted by the licensing authority (DGFT) - Demand of duty, interest and penalty - Held that:-Provision of the policy was to the effect that an advance licence could be freely transferred after export obligation had been fulfilled, export proceeds realized and the Bank Guarantee/LUT redeemed. It was further provided that the facility of transferability would not be available in cases where the modvat/proforma-credit facility under Rule 191B of the Central Excise Rules of 1944 had been availed of - This aspect was not considered by the ld. Commissioner - Commissioner, however, did not also considered the plea of limitation raised by the party - order set aside and allow the appeal by way of remand with a request to the jurisdictional Commissioner of Customs to re-adjudicate the case - appeal allowed by way of remand
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2011 (1) TMI 1007
Refund claim rejected - Classification - appeal of the respondent on the ground that the classification was due to an error of CHA, who classified the goods in the Bill of Entry under CTH 8414 5120 and that error could have been rectified under Section 154 - Held that:- From the records it is abundantly clear that the present case is not a case of clerical mistake. It is a claim of classification under different heading and consequently benefit of a notification. The respondent has not challenged the classification of the goods at any stage nor they have filed any appeal against the classification.
Commissioner (Appeals) has failed to appreciate that the case is covered by the judgment Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). Commissioner (Appeals) has erred in holding it as a rectifiable clerical error under Section 154. Therefore, this case is not covered under Section 154 of the Act. The Commissioner (Appeals) has not passed any order relating to the three Bills of Entry (out of the total 10 Bills of Entry) covered under Order-in-Original No. 1995/08 dated 16/12/2008 and admittedly the respondent has not challenged that aspect of the order-in-original. There the adjudicating authority's order would prevail to that extent.
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2011 (1) TMI 1005
Import of certain raw materials under six advance licences - clearance of the same duty-free under Notification No. 159/90-Cus dated 30.3. 90 - duty-free import of some of the above raw materials under Notification No. 204/92-Cus dated 19.5.1992 during the tenure of Exim Policy, 1992-97 - SCN issued stating that Glycerine imported by assessee was not liable to be exempted from payment of duty under any of the above notifications inasmuch as the input used in the export product was a different commodity, namely Sorbitol - importer availed MODVAT credit on indigenous inputs (Glycerine, Sorbitol and SLS) used in the manufacture of the export product and, therefore, the inputs subsequently imported as replenishment by them and sold in local market were not eligible for the benefit of Notification No. 204/92-Cus on account of breach of Condition No. (vi) thereof - demand of duty and also proposed to impose a penalty on the importer, apart from a proposal for confiscation of the imported goods - whether the benefit of Notification No. 159/90-Cus and No. 204/92-Cus is liable to be granted to M/s Fresh Laboratories in respect of the raw materials imported by them under the six advance licences during the material period.
Held that:- The show-cause notice has succinctly brought out the chemical, physical and other differences between Glycerine and Sorbitol. These differences were not disputed by the importer in their reply to the show-cause notice, nor even in the memorandum of appeal before us. If tinplates of thickness of 0.19 mm could be recognized as a commodity different from tinplates of 0.22 mm, in the case of Zenith Tin Works [1994 (4) TMI 183 - CEGAT, NEW DELHI] no hesitation to hold that Glycerine can come nowhere near Sorbitol in material characteristics/specifications. The contention raised by the learned counsel that, as both these materials were covered by the advance licences, duty-free import of any of them should be allowed where the other one was found to have been used in the manufacture of the resultant product, is not supported by any judicial authority and hence cannot be accepted.
In relation to Notification No. 204/92-Cus also a firm case for the Revenue. In the instant case, the importer has submitted that demand of duty on five raw materials imported by them cannot be sustained inasmuch as no MODVAT credit had been taken on the corresponding inputs used in the exported product. These are items mentioned at clauses (c) Irish Moss, (d) (SMFP), (e) Flavouring Compound, (h) Stearic Acid (i) Aromatic Chemicals, of para (ii) of the operative part of the Commissioner’s order. In the case of other raw materials imported by M/s Fresh Laboratories, the learned counsel has submitted that whatever MODVAT credit had been taken on the corresponding inputs contained in the exported final product was reversed with interest and, therefore, the benefit of Amnesty Scheme should be granted. We have not found any valid ground to accept these contentions either. First of all, the claim that no credit was availed on duty-paid inputs contained in the exported product, against which the aforesaid five materials were imported as replenishment, has not been substantiated. Secondly, the plea for Amnesty Scheme cannot be considered against breach of conditions of notifications 159/90-Cus and 204/92-Cus. Thus demand of duty raised on M/s Fresh Laboratories has to be sustained.
All the goods imported by them were admittedly covered by advance licences and none of those goods were in the prohibited category so as to attract this provision of law. Considering the fact that M/s Fresh Laboratories reversed MODVAT credit to the extent of Rs 18.8 lakhs and paid interest thereon subsequently, and also considering the inapplicability of Section 111 (d) to this case, we are of the view that the penalty of Rs 4 crores imposed on them is harsh thus be reduced to Rs 50 (fifty) lakhs. Where a penalty stands imposed on the partnership firm, there is no reason why there should be separate penalty on a partner under the same provision of law. Therefore, the penalty on Shri Bhupendra J. Shah is vacated.
The records indicate that 60 MT of Glycerine imported by M/s Fresh Laboratories were sold to Mahavir Export and Import Company, of which Mr. Yogesh Korani was the proprietor. There cannot be separate penalties on M/s Mahavir Export & Import Co and its proprietor. In the result, we set aside the penalty imposed on Mr. Yogesh Korani and reduce the quantum of penalty on M/s Mahavir Export and Import Co to Rs one lakh.
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2011 (1) TMI 1003
Maintainability of appeal - warehoused goods could not be cleared within the warehousing period - applied for extension rejected by the proper officer of customs - goods auctioned - It is submitted by the ld. SDR that no order of a Chief Commissioner is appealable to this Tribunal under Sec.129 A of the Customs Act, order is an administrative order rather than quasi-judicial and hence not appealable - Held that:- It is not in dispute that the application submitted by the applicant to the Asstt. Commissioner pursuant to the Hon’ble High Court’s order could be considered only by the Chief Commissioner of Customs under the proviso to sub-section (1) of Sec.61 of the Act. Again it is not in dispute that the Chief Commissioner passed the impugned order after following the principles of natural justice. Obviously, the party subjected themselves to the jurisdiction of the Chief Commissioner question whether the Chief Commissioner’s order is appealable to this Tribunal needs to be answered in the negative - dismiss the appeal as not maintainable.
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