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Customs - Case Laws
Showing 41 to 60 of 663 Records
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2012 (12) TMI 439 - MADRAS HIGH COURT
Re-export the goods - drawback claim – alleged that shipping bills had been filed, inadvertently, under Section 75 of the Customs Act, 1962, instead of filing the claim, under Section 74 of the said Act – Held that:- in case of re-export of goods imported under the DEPB scheme, the Boards Circular No. 75/2000-Cus., dated 11-9-2000, specifies certain conditions, according to which the re-export of the imported goods are allowed only if the goods are found to be unfit for use because of certain manufacturing defects. Further, the goods in question are to be re-exported within a period of six months from the date of import, and the identity of the goods has to be established to the satisfaction of the customs authorities concerned. While so, it is not in dispute that the goods had been re-exported by the petitioner, as they did not find any suitable buyer. As such, it cannot be said that the goods were defective in nature. Further, the petitioner had not adhered to the other relevant provisions of the Customs Act, 1962. As such, it is clear that the petitioner would not be eligible for drawback, under Section 74 of the Customs Act, 1962, in respect of 5000 kilograms of goods, as their batch numbers did not match with the bills of entry cited by the petitioner.
It is also seen, from the shipping bills, invoices, packing list and the examination report, that the fact of export of imported goods had not been declared by the petitioner and the shipping bills had not been filed, under Section 74 of the Customs Act, 1962 - petitioner is not entitled to drawback
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2012 (12) TMI 438 - CESTAT, NEW DELHI
Import of plastic films from China – mis-declaration - provisional release of the goods – Held that:- As per provision of Section 110(2) of the Customs Act if Show Cause Notice is not issued within 6 months from the date of seizure, the goods have to be released - adjudicating authority can extend the period by another 6 months by passing an order as envisaged in the said section. Such order extending the period can be passed only after giving an opportunity for hearing to the appellants. The impugned order is not passed under the said provisions. If such order has not been passed the goods have to be released to the appellants – in favor of assessee
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2012 (12) TMI 395 - CESTAT MUMBAI
Jurisdiction to adjudicate the matter - held that:- impugned show cause notice was assigned to the Commissioner of Customs (Import), Nhava Sheva for adjudication - impugned order passed by the Commissioner of Customs (Import), Nhava Sheva is without jurisdiction - vide F.No. S/V-30/Misc-300/2005-M-II dated 27.08.2009 the appointment of Shri K.K.Srivastava, Commissioner of Customs (Adjudication) has been withdrawn - prayer made by the learned AR cannot be accepted as there is no adjudicating authority appointed to adjudicate the impugned show cause notice - impugned order is set aside and the appeals are allowed.
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2012 (12) TMI 394 - CESTAT, NEW DELHI
COD - application for condonation of delay of 221 days – Held that:- Right of appeal or right to file cross appeal is to be conferred by statute - in terms of the provisions of Section 35E of the Central Excise Act, 1944, the Tribunal has no powers to condone the delay caused in filing the appeal beyond the period of three months allowed by the provisions of the said Section 35E(4) - COD application stands rejected, the appeals filed by the Revenue are dismissed as barred by limitation
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2012 (12) TMI 384 - CESTAT, MUMBAI
Refund claim – rejection of refund claim on the ground that while filing the Bill of Entry the appellant did not mention the exemption under Notification No.21/2002-CE dated 01/03/2002 - Held that:- It is the duty of the Customs Officer while assessing the bill of entry to assess in accordance with the law - there is an obligation on the part of the department to extent exemption given by an unconditional exemption notification and the same could not be refused because the appellant has omitted to claim that relief
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2012 (12) TMI 355 - CESTAT, CHENNAI
Refund - unjust enrichment – Held that:- Certificate from the Chartered Accountant submitted by the appellants merely states that the extra duty has been accounted in the Profit and Loss Account and in the Balance Sheet - extra duty burden has been booked under the expenditure column and in the Balance Sheet does not show the extra duty amount as receivable from the department - extra duty burden has been absorbed in the cost of the output and the same has been passed on as part of the price of the goods -uniformity in price before and after assessment does not lead to inevitable conclusion that incidence of duty has not been passed on to buyer as such uniformity may be due to various factors – refund claim rejected
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2012 (12) TMI 354 - CESTAT, MUMBAI
Revoking of CHA licence – alleged that Enquiry Officer has not conducted the enquiry as per Regulation 22(3) and (4) of the CHALR, 2004 - Held that:- On the previous unblemished record of the CHA, it must be borne in mind that a single act of corruption is sufficient to award the maximum penalty which, under the CHALR, is of revocation of the license - a personal hearing was given to the appellants on 24-1-2008 and the CHA did not reiterate for cross-examination of the officers listed as witness - enquiry was conducted regarding violation of Regulation 13(a) & 13(d) of CHALR. This is a fact on record that the CHA did not get any authorization from the exporter on whose behalf he was filing the export document. Since there was no authorization the violation of Regulation 13(a) has been established against the CHA by the enquiry officer as well as the Commissioner - revocation of the CHA licence by the Commissioner of Customs is sustainable
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2012 (12) TMI 353 - CESTAT, MUMBAI
Transaction value for the purpose of levy of customs duty - whether royalty and licence fees is to be included in the assessable value? – Held that:- The agreement between the foreign supplier and the Indian importer states that the Indian importer has to pay royalty towards the ‘Video Rights’ of the imported goods, i.e. master Digi beta tapes containing the feature films. From the master tapes, the appellant makes VCDs/DVDs of the films and sells the same in the domestic market on which royalty is payable to the foreign supplier. The value declared at the time of importation is not the cost of film but only the cost of media in which the film is recorded and the same is not the value of the goods imported.
As decided in COMMNR. OF CUSTOMS EXCISE, NEW DELHI VERSUS M/S. LIVING MEDIA (INDIA) LTD. [2011 (8) TMI 41 - SUPREME COURT OF INDIA] royalty is paid for the supply of the goods as a condition of sale has to be necessarily included in the transaction value for the purpose of levy of customs duty - the appellant has not made out any case for complete waiver of pre-deposit thus directed to make a pre-deposit of Rs. 80 (Eighty) lakhs within a period of eight weeks and report the compliance.
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2012 (12) TMI 313 - CESTAT, BANGALORE
Benefit of Notification No. 21/2002 - Chargers of Mobile Telephones imported by the respondent – denial of benefit on the ground that chargers of mobile telephones are not parts of the telephones, but are accessories of the mobile telephones – Held that:- Products under importation are classifiable under Heading No. 8529.90 of the Customs Tariff - if classification is under Heading No. 8529.90, obviously the goods are parts suitable for use solely or principally with the appropriate Heading 8525 to 8528. Therefore, the charger will be part of the mobile telephone for the purpose of classification under the Customs Tariff. Notification No. 21/2002 under Sl. No. 319 prescribes a concessional rate of duty of 5% adv. on parts of Cellular Telephone falling under 8529.90 - product entitled for benefit of Notification - tariff heading itself covers only parts under Heading 8529, there cannot be two different interpretation on parts one for the purpose of notification and another for the purpose of the tariff
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2012 (12) TMI 312 - CESTAT, MUMBAI
100% EOU - Issuance of Show cause notice without consultation with the Development Commissioner - held that:- As per the Board’s circular, the Revenue can issue show cause notice for protecting interest and the adjudication order has to be passed after the Development Commissioner has given a finding as to whether the 100% EOU has fulfilled their export obligations or not. In the instant case, there is a clear finding by the Development Commissioner that the appellant had failed to fulfil the export obligations and the adjudication order has been passed after the order of the Development Commissioner in this regard - Decided against the assessee.
As regards the indigenously procured goods, both the capital goods and the raw materials have been procured in terms of Notification No. 1/95-C.E., dated 4-1-1995. However, the demand of duty has been computed on the basis of provisions of Notification No. 52/03-Cus., dated 31-3-2003 in terms of para 3(ii) of the said Notification in respect of imported capital goods and raw materials/consumables. As regards the indigenously procured capital goods and raw materials the duty demand has been made in terms of condition (4)(b) of Notification No. 22/03-C.E., dated 31-3-2003. Both the Notifications No. 52/03-C.E. and 22/03-C.E., both dated 31-3-2003 came into force on 31-3-2003 and they have only prospective application and the provisions of these Notifications cannot be made applicable to goods imported during the period 1994-97 and procured during the period from 1995-97 in respect of indigenous goods. On this ground alone the demand of Customs duty on the imported goods and the demand of Excise duty in respect of indigenously procured goods are not sustainable and are liable to be set aside.
In the impugned order, an amount of Rs. 40,34,232/- confirmed in the order of the Deputy Commissioner mentioned above and recovered by way of tender has been reduced from the total demand of duty on raw materials. Therefore, issue of demanding any duty on raw materials/consumables unused in the manufacture of export goods does not arise at all.
the case of raw materials which are consumed in the manufacture of goods which have been exported, the question of demanding either Customs duty or Excise duty do not arise at all as the goods have been used for the purpose for which they were procured.
Duty after warehousing period after allowing depreciation on capital goods - During the material period if the capital goods have been put to use, the appellants were entitled for depreciation as prescribed in Board’s Circular No. 43/98-Customs, dated 26-6-1998 on the used capital goods. In the instant case, from the records it is seen that the commercial production commenced in April, 1996 and the production was completely stopped in July, 1999 and, therefore, for this period, the appellant is certainly entitled for the depreciation on capital goods. The liability to pay duty on capital goods would arise only when the goods are removed from the bonded premises or when the goods are deemed to have been removed when the warehousing period expired.
In the light of the Apex Court’s decision in the case of Kesoram Rayon v. Commissioner of Customs, Calcutta [1996 (8) TMI 109 - SUPREME COURT], the duty on capital goods will have to be demanded at the rate of duty prevalent on 20-9-2003 on the depreciated value of the capital goods. In respect of indigenously procured capital goods/raw materials/consumables, the duty demand will have to be made in terms of the provisions of Notification No. 1/95-C.E., dated 4-1-1995 as amended.
Matter remitted back to the adjudicating authority for re-computation and quantification of duty demands in accordance with law as it stood at the relevant time of import of capital goods/raw materials/consumables and at the time of procurement of indigenous goods in terms of the Notifications under which these goods were procured.
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2012 (12) TMI 272 - CESTAT MUMBAI
Restoration of Stay Application - non-prosecution - held that:- Appeal of the appellant was dismissed earlier on sufficient cause and the same was restored on payment of costs quantified at Rs.5000/- The appellant seems to be a habitual defaulter so far as pursuing the proceedings not only before this Tribunal but also before other judicial forum - Considering these facts,cost should be imposed on the appellant for restoration of the stay application. The costs quantified at Rs.5000/- should be paid to the accounts of the Commissioner of Customs (Import), JNCH, Nhava Sheva within four weeks from today. On such payment, the order of this Tribunal dated 28.09.2012 would be recalled and the stay application restored to its original number.
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2012 (12) TMI 271 - CESTAT, MUMBAI
Revocation of CHA licence – Held that:- CHA sublet his licence for a consideration in gross violation of Regulation 12 of CHALR, 2004 and this is an act of corruption - Customs area, the Commissioner of Customs is responsible for the happenings, the discipline to be maintained there and he is best placed to understand the importance of CHA and if he takes a decision necessary for that purpose, the Tribunal should not ordinarily interfere on the basis of its own notions of difficulties likely to be faced by CHA or their employees, and not be swayed by considerations of misplaced sympathy - Customs Act proceedings in the same case, the CHA has been found to be guilty of the offences punishable under the provisions of Customs Act and has been imposed with a penalty of Rs. 5 lakhs under the provisions of Section 112(b) of the Customs Act - fraud in this case has been committed in so many consignments over a long period of time and the same could not have happened without the connivance of the CHA - decision of the ld. Commissioner to revoke the CHA licence is justified
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2012 (12) TMI 270 - CESTAT, MUMBAI
Import of machines – violation of condition – alleged that as against import of 8 machines permitted under the aforesaid licence, the appellants imported 10 machines – Held that:- Machines were imported in the guise of ‘Spares and Accessories for Nos. of High Speed Take-up Machines’ in violation of Import Control Regulations and the Project Import Regulations - M/s. JKSL imported additional items of machinery and equipment for use in their Polyester Staple Fibre (PSF) plant against the aforesaid licences issued for their PFY Expansion project and cleared the same at concessional rate of duty applicable to Project Imports in gross violation of the Import Trade Control Regulations and Project Import Regulations by mis-representing the facts and giving the impression that the same were required for the PFY Expansion project - request is for post facto approval, which implies that after transferring the plant they are seeking the approval for the same - they have once again sought permission for shifting of the equipment from their PFY plant to their PSF plant. This very conduct of the appellant itself makes it clear that they have violated the terms and condition of the Project Import Regulations - they are not eligible for the benefit of the said Regulations and the concessional rate of duty prescribed under CTH No. 84.66/98.01 of the Customs Tariff
Waiver of pre-deposit – Held that:- Appellants had a cash and Bank balance of Rs. 13.6 crores as on 31-3-2011 and, therefore, the plea of the financial hardships made by the appellants is not borne out of the record of the case - appellant directed to make a pre-deposit of 50% of the customs duty confirmed against them
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2012 (12) TMI 231 - SUPREME COURT
Offence u/s 135 of Customs Act,1962 - bailability of offences - held that:- we had, by our Order of 11th March, 2011, stayed the arrest of the petitioner in connection with the subject-matter of the said file, presuming that the same would be relating to the offences under the Customs Act, 1962.
However, in the petition for vacating the said interim order, it has now been brought to our notice that the subject-matter of the said file has nothing to do with the offences under the Customs Act but under the provisions of the Foreign Exchange Management Act, 1999, and Prevention of Money Laundering Act, 2002, referred to hereinabove, in respect of which we have not expressed any opinion regarding the bailability of offences thereunder.
The subject-matter of the writ petition, as has also been submitted today, being confined to the question of bailability in respect of offences under the Customs Act, we allow the petition for vacating the interim order and dispose of Writ Petition ( Crl .) No.57 of 2011 by indicating that, as far as the petitioner's submission with regard to the provisions of the Customs Act is concerned, the same stands covered by the decision of this Court in Om Prakash & Anr . [2011 (9) TMI 65 - SUPREME COURT]. We also indicate that the interim order regarding stay of arrest in connection with the file, referred to hereinabove, is vacated and the respondents would be permitted to proceed in accordance with law as far as the offences under the said file are concerned.
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2012 (12) TMI 230 - CESTAT, NEW DELHI
Penalty – confiscation - Non-notified items – Held that:- In case of non-notified items, the onus to establish the smuggled nature of goods is on the Revenue - appellant has produced on record copies of invoices showing sale of the zinc in question - supplier has also deposed in his statement to the above effect. Failure on the part of the Revenue to locate the supplier cannot be held to be conclusive proof of his non-existence - confiscation of seized zinc and penalty set aside
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2012 (12) TMI 229 - CESTAT, NEW DELHI
Smuggled goods – confiscation and penalty – Held that:- In case of non-notified goods u/s. 123 of Customs Act, the onus to prove that they have illegally entered the country lies very heavily upon the Revenue - same has to be discharged by production of tangible and positive evidence by the Revenue - goods after import become the part of the stock of identical goods already available in the country. Failure on the part of the person possessing such goods to establish that the same were legally imported cannot lead to ipso facto conclusion that the same were smuggled - imposition of penalty upon the appellants were not justified
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2012 (12) TMI 181 - DELHI HIGH COURT
Whether software imported by the respondent-assessee is exempt being computer software – appeal against the order of the tribunal [2010 (6) TMI 374 - CESTAT, NEW DELHI] - Held that:- prior to notification dated 11th February, 1998, in several decisions it was held that software imported by telecom operators was covered by the term “computer software” and these decisions were not upset and set aside by the Supreme Court. It was in these circumstances that the Revenue decided to interpret and has issued amending Notification No. 3/1998 dated 11th February, 1998. The Larger Bench of the Tribunal after examining the controversy came to the conclusion that the amending notification should not be given retrospective effect. - Decided against the revenue.
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2012 (12) TMI 163 - MADRAS HIGH COURT
Service of Notice - held that:- dservice on the address shown as per the record is a service of the order in terms of Section 153 of the Customs Act. No other method is permissible. The department has shown by the original file to show despatch on 08.03.2012 by speed post acknowledgement due. Therefore, the service is in order.
Violation of principles of natural justice - held that:- It is incumbent on the counsel to have verified the address when he received the appellate authority's order and intimated it to the authorities in the de novo proceedings so as to change the address -The counsel states that he had intimated so. But no proof has been shown or filed to support it. - said plea is also rejected - Hence, considering all these aspects, this Court opines that the petitioner is not diligently prosecuting the matter. Since there is lack of bona fides, petitioner is not entitled to any relief and accordingly, the writ petition is dismissed.
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2012 (12) TMI 162 - PUNJAB & HARYANA HIGH COURT
Revocation of CHA license – alleged that CHA sublet his licence by signing blank papers – Tribunal had found that those persons to whom the appellant had given blank signed papers had cheated the Government and it was not surprising that bulk of the amount was recovered after the fraud was detected. The appellant handed over signed blank documents to others and allowed them to operate in his name. After the commission of fraud by such persons, the appellant put forward the plea of alibi.
Tribunal further recording findings in categorical terms that the license given to the Customs House Agents is not an instrument to seek rental income for putting signatures on blank documents. It has also been found that during the period in question the appellant was not doing any active job of Customs House Agent and was busy only signing the documents and that there was no reason to give any opportunity to the appellant to seek such income exposing the revenue to huge risk.
Held that:- there is no error in the order passed by the Tribunal. - if a power of attorney holder of a Customs House Agent commits fraudulent activities then the principal is responsible to the same extent.
Decision in the case of Sri Kamakshi Agency v. Commissioner of Customs, Madras (2000 (11) TMI 144 - HIGH COURT OF JUDICATURE AT MADRAS) followed.
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2012 (12) TMI 161 - BOMBAY HIGH COURT
Import of diamond without payment of duty - shortage of 72095.55 Carats of diamonds - value addition - Notification No. 177/94-Cus., dated 21-10-1994 - maintenance of proper account of import, consumption, utilization of the imported diamonds - redemption fine – initially CESTAT decided the case in favor of assessee but decided the appeal against the assessee after remanding the matter back to the CESTAT by the Apex Court - Held that:- No documents supporting the import of the above diamonds - Respondents found a shortage of cut and polished diamonds on stock taking as well as excess of cut and polished diamonds - Respondent have been able to establish the illicit procurement of cut and polished diamonds by the Appellant - in favour of revenue
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