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Customs - Case Laws
Showing 21 to 40 of 65 Records
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2011 (5) TMI 794 - CESTAT, MUMBAI
Valuation of goods - declared by the importer as marble carving and statues. The value declared by the respondent is not accepted by the Revenue and the adjudicating authority is held that the declared value will be loaded by 250% - Held that:- Commissioner (Appeals) while taking into consideration the price of the raw materials held that the value of goods should be two times of the value of raw material and further held that loading should be restricted to 50%, no merit in the appeal, the same is dismissed
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2011 (5) TMI 793 - CESTAT, MUMBAI
DEPB claim - respondent filed four shipping bills under the DEPB claim - respondent declared the goods as 'Electronic Switching System'. The Revenue was of the opinion that the goods are not electronic switching system but are Populated Circuit Boards (PCBs), hence the goods were provisionally assessed - Revenue has a doubt about the nature of the goods but no sample has been taken nor any expert opinion is obtained to find out whether the goods are PCB or electronic switching system - Held that:- shipping bills were filed early as on 09/02/2001 and the adjudication order was passed on 18/10/2002, the Revenue has not initiated any process of getting expert opinion about the exact nature of the product being exported. The respondent produced the opinion by two different experts regarding nature of goods and we find no ground to reject the expert opinion, appeal is dismissed
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2011 (5) TMI 792 - CESTAT, MUMBAI
Refund claim - refund amount sanctioned and credited the same to the Consumer Welfare Fund as the appellant failed to prove that the burden of duty has not been passed on - contention of the appellant is that the refund was credited to the Consumer Welfare Fund and the appellant having in possession of the documents to show that the burden of duty has not been passed on – Held that:- no merit in the oral submissions of the appellant, which are not based on any evidence on record, appeal is dismissed
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2011 (5) TMI 791 - CESTAT, BANGALORE
Confiscation and penalty - appellant had imported computer peripherals without any import licence. According to the department, the above items are second-hand capital goods - Held that:- any restriction to importation of secondhand capital goods could be placed only by an amendment in Policy by the Central Government and not by Policy Circulars issued by DGFT. The aforesaid Policy Circulars of the DGFT were held to be only clarificatory and not mandatory, order is set aside and this appeal is allowed, appeal stands disposed of
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2011 (5) TMI 790 - CESTAT, CHENNAI
Demand under Section 28 of the Customs Act, 1962 - demanded invoking Section 111(o) of the Customs Act, 1962 – Held that:- Section 111(o) of the Customs Act, 1962 cannot be invoked nor can the duty be demanded, Customs authorities have allowed the exemption after satisfying themselves that the pre-import conditions have been fulfilled and if they have allowed the exemption to certain non-eligible goods, the only course for recovery of the duty was to issue the demand notice under Section 28 of the Customs Act, 1962 within the time prescribed thereunder. Since that has not been done, prima facie, the demand appears to be not sustainable, requirement of pre-deposit waived
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2011 (5) TMI 789 - CESTAT, AHMEDABAD
Prayer for restoration of appeal - Revenue’s grievance is that while deciding the appeal Tribunal has not taken into account the Cross Objection filed by the Revenue, no mention of Cross Objection filed by the Revenue in the said order of the Tribunal – Held that:- neither of the judgments on which placed by Revenue deals with the disputed issue as to whether the provisions of unjust enrichment would get attracted in respect of consequent refund arising out of finalization of provisional assessment, Cross Objection filed by the Revenue is rejected
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2011 (5) TMI 735 - GUJARAT HIGH COURT
Whether Tribunal has committed substantial error of law in extending benefit of reduced penalty under section 114A of the Customs Act, 1962 subject to the respondent depositing 25% of the penalty along with the balance amount of demand and interest within period of 30 days from passing of the impugned order by the Tribunal - Held that:- As the language of Section 114A of the Customs Act, as in the case of section 11AC of the Central Excise Act permits option to the assessee, the ratio laid down in M/s. Akash Fashion Prints Private Limited (2009 - TMI - 33022 - GUJARAT HIGH COURT) is also applicable in the present appeal, no question of law arising in this appeal, appeal is dismissed
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2011 (5) TMI 718 - ALLAHABAD HIGH COURT
Proof of realization of export proceeds - duty drawback - held that:- once the RBI after examining the matter issued the letter dated 25-5-2004 indicating in clear words that the shipment bills of the petitioner were written off without surrender of duty drawback, the proper course available to the Customs Department was to drop the recovery proceedings. The RBI has clearly stated in his counter affidavit that the letter dated 25-5-2004 was issued in accordance with the provisions of relevant Rules and Act. Thus the stand of the RBI supports and strengthens the case of the petitioner. - Decided in favor of assessee.
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2011 (5) TMI 709 - CESTAT, BANGALORE
Confiscation - merely because an assessee could not fulfill the export obligation, goods do not become automatically liable to confiscation - violation of conditions which would attract the provisions of Section 111(o) appear to be cases where there is diversion of goods or misutilisation of goods etc - no confiscation is warranted - quantum of depreciation is required to be determined - confiscation set aside and penalty, the matter is remanded to the original adjudicating authority
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2011 (5) TMI 683 - CESTAT, MUMBAI
Benefit under tainted DEPB scrips was claimed – confiscation - redemption fine - Penalty under Sec.114A of the Act - Importer who steps into the shoes of seller of forged document does not stand on better footing and cannot be allowed to retain benefit illegally obtained - Taint attaching to the document on the basis of which benefit is taken is not washed of. Fraud or suppression continues if document is not genuine. - Decided against the assessee.
Penalty on employees of M/s. Apar Ltd - presumption - scrips were purchased from the market at a less premium which was prevalent at the time, therefore, it is evident that they were aware that the scrips were not genuine - this finding is only on presumption. - penalties on these three appellants set aside
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2011 (5) TMI 677 - CESTAT, MUMBAI
DEPB - Fraud - held that:- the original allottees of the DEPBs had not earned any "credit" of duty in the absence of exports and, therefore, the appellant who purchased those DEPBs did not acquire any "credit", let alone sufficient, for duty-free clearance of their imports in terms of Notification 34/97-Cus. when strictly construed. It is trite law that an Exemption Notification requires to be strictly interpreted (vide Rajasthan Spinning & Weaving Mills, Sterlite Industries etc.) and the benefit of any doubt has to be given to the Revenue (vide Novopan India). Therefore, we hold that the appellant is not entitled to claim the benefit of the Notification.
It was open to the Department to demand duty from the appellant under Section 28 of the Customs Act without recourse to any other procedure of revision of assessment.
Issuance of consolidated show cause notice against 19 SCN - period of limitation - held that:- we have to accept the contention of the ld. JCDR that the show-cause notice dt. 05-10-2001 was issued in continuation of the earlier set of 19 show-cause notices and that the demand of duty was within the normal period of limitation. In our view, the best evidence in support of this contention is the fact that all the show-cause notices were adjudicated upon by the Commissioner in a single proceeding culminating in the impugned order. - Decided against the assessee.
Interest u/s 28AB - held that:- the assessee has to pay interest on the duty amount under sub-section (1) of Section 28AB as amended. However, no interest is leviable for any period prior to 11-05-2001 as sub-section (2) of Section 28AB forbids levy for past period.
Penalty u/s 114A - held that:- the show-cause notices had not alleged collusion, wilful misstatement of facts or suppression of facts against the appellant. Hence imposition of the penalty on them is beyond the scope of the show-cause notices.
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2011 (5) TMI 624 - CESTAT, DELHI
Seizure of gold bars, coins, jewellery and Indian Currency from the business premises - gold imported by two units working under SEZ and diverted to domestic tariff area - Held that:- The case involves evasion of customs duty as well as contravention of Import Regulations - waiver of penalties imposed on these three appellants for admission of their appeals, waiver on collection of such amount during the pendency of the Appeals. Applications were disposed of accordingly.
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2011 (5) TMI 606 - CESTAT, MUMBAI
Import of restricted items - Confiscation - Enhancement of declared value in respect of the marble imported from Turkey - Held that:- Unable to accept the argument that the marble from Turkey is being imported at a lower price which is declared by the importer as no bill of entry has been produced in support of their claim. There is no evidence on record that the Turkish marble prices were declined during this period thus no infirmity in the impugned order by which the value of the imported marble blocks is enhanced
Redemption fine and penalty were imposed 20% and 5% of the CIF value as decided in COMMISSIONER OF CUSTOMS (IMPORT) VERSUS STONEMAN MARBLE INDUSTRIES & ORS. [2011 (1) TMI 15 - SUPREME COURT OF INDIA]
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2011 (5) TMI 605 - CESTAT, MUMBAI
Differential duty demand - classification of top drive heavy duty drilling Rig Truck - heading No. 84.30 OR 87.05 - Held that:- The cost of the drilling rig forms almost 90% of the cost of the whole product whereas the cost of the automobile chassis forms only about 10% of the cost as evidenced by the manufacturer's certificate. Though cost may not be an essential criterion in determining classification, it is certainly a relevant criterion. The essential nature of the product both in terms of function as also in terms of cost comes from the drilling rig. The automobile chassis is only for the easy transportation of the machine from place to place. Thus from a functional point of view also , the product merits classification under heading No. 84.30 rather than under heading No. 87.05.
The department is not prepared or has not produced a single evidence to rebut the contention based on the details given by the experts on the subject matter. They are merely referring to the explanatory notes without verifying and proving what are the facts applicable to the present case. It is for the department to establish the case of classification of product under any particular heading which it has miserably failed in the instant case. Whereas, the appellant has done their bit to support the classification claimed by them by obtaining expert s certificate and also the manufacturer s certificate in respect of product in question - in favour of assessee.
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2011 (5) TMI 604 - CESTAT, NEW DELHI
Confiscation of mares on the allegation of undervaluation - Demand - Held that:- Since the show cause notice has been served after the expiry of five years, the entire proceeding proposing confiscation on the allegation of undervaluation and imposition of penalties should be held not legal and proper - The service of notice on a friend of the appellant director cannot be treated as valid service therefore the order of the Commissioner demanding duty by issuing notice beyond five years cannot be sustained - Even though Section 124 does not specify a time limit, the same cannot exceed the, maximum time limit of five years prescribed under Section 28 of the Customs Act - Decided in favour of the assessee
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2011 (5) TMI 598 - CESTAT, AHMEDABAD
Duty on movable gears, bunkers, stores of the imported vessel on breaking - Circular No.37/96-Cus, dt.3.7.96 issued by CBE&C - Time limitation - Held that:- It is an undisputed fact that the provisional assessment was ordered on 26.9.95 prior to 13.7.06, the date on which Section 18(3) came into force in view of this it can be concluded that the interest clause on the amount of differential duty will be applicable only after 13.7.06
Regarding limitation - Held that: Re-assessment arose out of final order dt.29.5.09, allowing the benefit of interest. The benefit of interest cannot be denied as the provisional assessment was prior to the amendment of Section 18 - in favour of assessee.
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2011 (5) TMI 532 - CESTAT, AHEMDABAD
Enhancement of Assessable value - MRP declared by the appellants based upon the enhanced assessable value - Held that:- Commissioner has not dealt with the basic stand of the appellant that there being no dispute about the transaction value, being the correct value paid by them to the foreign suppler, there is no need to go through the other provisions of the Customs Valuation Rules.
The only reason for rejecting the transaction value by the Commissioner is that the same appears to be on lower side when compared with the other contemporaneous records. However, the appellants strongly contended that they have purchased the electronics items from Dubai, in stock lot having different country of origin. Further, it is also seen that the bills of entry relied upon by the Revenue are not matching with the present bill of entry either in time or in quantity or in model numbers. As rightly contended by the learned advocate, the market of electronic items moves very fast on account of introduction of new models in the field and with new technology. As such, even a gap of 5-6 months can be considered as huge gap.
As admittedly the Revenue has not produced any evidence on record to reflect upon the fact that the transaction value made by the importers to the foreign sellers was not correct or there was any financial flow back from the importers to the foreign supplier, the enhancement of the assessable value based upon the other bills of entry, which cannot be held to be contemporaneous on account of different time, different quantity and different models, cannot be held to be justified.
Thus enhancement of the MRP declared by the appellants based upon the enhanced assessable value, cannot be upheld. In favour of assessee.
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2011 (5) TMI 471 - CESTAT, AHMEDABAD
Imposition of redemption fine in lieu of confiscation - 100% EOU manufacturing polyester texturised yarn and polyester twisted yarn - Redemption fine is possible only in respect of goods seized and confiscated irrespective of the facts that the goods are available at the time of adjudication fir confiscation - Held that:- in this case, the goods were not physically seized and therefore, the question of confiscation and subsequent release on imposition of redemption fine do not arise - Decided in favour of assessee. Penalty - A partner is not a separate legal entity and cannot be equated with the employees of a firm - Once the firm has already been penalized, separate penalty cannot be imposed upon the partner - Decided in favour of assessee.
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2011 (5) TMI 455 - CESTAT, DELHI
High sea sale - Import of raw materials without payment of duty - Diversion of material - Appellants are alleged to have bought these goods from various importers who allegedly sold these goods on high sea sale basis to the Appellant - Revenue had specific information regarding selling/diverting of duty free imported raw material by the Appellants in the open market. There is no other evidence which would show that the Bills of Entry were actually filed by the Appellant. Rest of the allegation is listed on the presumption that these Bills of Entry were actually filed by the Appellant. - held that:- We have not seen any reliable evidence by which we can conclude that the impugned Bills of Entry were filed by the Appellant and the goods were cleared by the Appellants. The fact that the Revenue had specific information about diverting the duty free raw material by the Appellant is not a sufficient evidence to confirm the duty demanded. - Decided in favor of assessee.
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2011 (5) TMI 449 - CESTAT, MUMBAI
Demand and penalty - Import of primary gold - Notification No.177/94-Cus. dated 21.10.1994 - Shortage of primary gold - whether 9% wastage on export of studded jewellery was taken into consideration while arriving at the shortage of the gold - The statement prepared at the time of verification is about total import of gold, total export, gold recovered from dust, gold in stock and the finding and mountings in stock - Taking into consideration this quantity, the shortage of 8971.11 grams was found - In the memo prepared in respect of stock taking there is no mention of 9% wastage which is provided under the Notification - Therefore, the impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after taking into consideration the conditions of the Notification - Thus, the appeals are disposed of by way of remand.
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