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Customs - Case Laws
Showing 101 to 120 of 1818 Records
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2015 (12) TMI 927 - CESTAT AHMEDABAD
Exemption of SAD under Notification No. 20/2006-Cus dated 01.3.2006 - Board Circular F.No. 620A6/2007-Cum.TU dated 11.06.2007 and Standing Order No. 51/2007 dated 04.12.2007 - Held that:- issue is no more res-integra in view of the Board Circular F.No. 620A6/2007-Cum.TU dated 11.06.2007 and Standing Order No. 51/2007 dated 04.12.2007 issued by the Chief Commissioner of Customs, Mumbai, Zone II. - No reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue.
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2015 (12) TMI 926 - CESTAT AHMEDABAD
Denial of refund claim - unjust enrichment - Held that:- Sub-section (2) of Section 18 of the Customs Act, 1962 provides when the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then, in case of goods, cleared for home consumption, the amount paid shall be adjusted against the duty finally assessed and if the amount is paid, the importer or the exporter be entitled to a refund claim as the case may be. It is clear from Section 18 that the appellant is entitled to refund of duty after finalization of the assessments under the said Section. - Commissioner (Appeals) directed to the adjudicating authority to examine the admissibility of the refund as per the prevalent law. In our considered view, the Adjudicating Authority should consider the case laws as relied upon by the Learned Advocate while the passing the order in denove proceedings. In view of the discussions, we do not find any reason to interfere the order of the Commissioner (Appeals). However, as the matter is for the year 1988, we direct the Adjudicating Authority to complete the denove proceedings within 3 months from the date of receipt of this order - Appeal disposed of.
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2015 (12) TMI 925 - CESTAT BANGALORE
Denial of refund claim - Unjust enrichment - whether the appellant is eligible for the refund of Customs duty paid by them - Held that:- Appellant had produced Chartered Accountant’s certificate wherein it was clearly mentioned that on going through the records, invoices, etc. Chartered Accountant had found that they had not passed on the higher rate of duty suffered by them. In the balance sheet also, as per the original authority’s observation, the appellant had shown the amount as receivable from Customs. The eligibility for the refund arose because between the time of Bill of Entry and time of removal, tariff value got changed and therefore, within such a short interval, the appellant could have decided to transfer the liability and claim refund is also not reasonable. When the refund claim arises within two or three days and within 15 days, a refund claim is filed, the obvious conclusion would be that the appellant was clearly aware that by the time, the crude palm oil got processed and cleared; the actual duty suffered to them was known to them. More over in this case on merits also, the appellant was eligible for refund. Further they were not selling the goods as such but they were processing the same and thereafter selling. - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 924 - CESTAT MUMBAI
Rejection of request to tale vessel to UAE - Revenue denied request since said vessel was confiscated and redemption fine and penalty was levied - appellant had not complied with the orders and as such the permission cannot be granted - Held that:- a Bond of ₹ 33 crores have also been furnished with the Revenue - Further collection of amount demanded towards penalty and fine has been stayed by this Tribunal vide stay order dated 15.7.2014. Further we find that the interest of revenue is secured in view of the Bond and Bank Guarantee and also the pre-deposit made vide the said order dated 15.7.2014 of this Tribunal. Thus, we permit the appellant to take the vessel out of Indian Territorial waters for a period of 24 months for execution of the Time Charter Contract they have entered into with M/s Middle East Marine LLC subject to the condition that the appellant shall file an undertaking before the Authority stating the purpose of taking out of the vessel and further undertake to bring back the same within a period of 24 months from the date of release of the vessel - Appeal disposed of.
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2015 (12) TMI 923 - CESTAT MUMBAI
Imposition of penalty on CHA under the Customs Act - Denial of benefit of DEPB Credit - Since the goods were of foreign origin and no manufacturing/processing had been undertaken in India, the exporter was not eligible for the claim of DEPB benefits - Held that:- The charge against the CHA is that they failed to advise the exporter that benefits of DEPB scheme could not be claimed in respect of the goods manufactured abroad and the contravention alleged is of Regulations 13(d) and 13(e) of the CHALR, 2004. It is also on record that the CHA came to know that the product has been manufactured abroad only when the goods were examined by the Customs. There is no evidence adduced by the Revenue to say that the CHA was aware of the misdeclaration by the exporter. In these circumstances, the question of CHA being responsible for any omission or commission, making the goods liable to confiscation would not arise at all. Consequently, imposition of penalty under Section 114 of the Customs Act, 1962 is not sustainable in law. If the CHA has contravened any of the provisions of the CHALR, then action should have been taken under CHALR and not under the Customs Act. Therefore, I am of the considered view that the impugned order imposing penalty under Section 114 is unsustainable in law. - Decided in favour of appellant.
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2015 (12) TMI 922 - CESTAT AHMEDABAD
Denial of refund claim - Commissioner remanded matter for de novo adjudication - Held that:- Commissioner (Appeals) remanded the matter to decide afresh after considering his observations as well as the submissions of the appellant. Hence, I do not find any reason to interfere in the impugned order. Accordingly, the appeal filed by the appellant is rejected. - Decided against assessee.
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2015 (12) TMI 921 - CESTAT MUMBAI
Refund of SAD - whether importer has passed on 4% SAD to the buyers as evident from certified copy of Excise invoices and RG 23 extract - Held that:- In addition to CVD there is mention of 4% SAD also. However, on the same invoices there is stamp affixed which indicates as no credit of additional duty levied under Section 3(5) of the Customs Tariff Act 1975 shall be admissible. I also perused certificate issued by the buyers of the goods wherein it is certified that the buyers have availed Cenvat credit in respect of CVD and Education Cess thereto and it also certified that Cenvat Credit of Special Additional Duty (4%) have not been availed. These certificates have been attested by the Jurisdictional Range Office - appellant has neither passed on Cenvat credit of 4% SAD to the buyers nor the buyers have availed Cenvat credit of SAD. I am of the view that as per the notification 102/2007-Cus and Board Circular prescribed the procedure. The only requirement, as regards Cenvat credit is that the claimant should make endorsement on the invoice that the Cenvat credit in respect of additional duty should not be availed by the buyers. The said compliance was undisputedly made by the appellant on their sale invoices. In view of the above discussions on the facts which is not under dispute, I am of the view that the refund of ₹ 5,51,761/- is admissible to the appellant. - Decided in favour of assessee.
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2015 (12) TMI 920 - CESTAT NEW DELHI
Suspension of CHA License - misdeclaration of the description of goods - Held that:- Initially the suspension order under Regulation 20(2) of CHALR Regulations, 2004 was passed on 16-10-2012 which was confirmed on 19-12-2012 but thereafter no proceedings under Regulation 22 of CHALR, 2004 has been initiated against the appellant. - as no proceeding under Regulation 22 of CHALR, 2004 has been initiated against the appellant, till date, the impugned order is not sustainable, therefore we set aside the impugned order - Decided in favour of assessee.
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2015 (12) TMI 861 - CESTAT KOLKATA
Evasion of education cess - Malafide intention - Imposition of penalty - Held that:- Appellant paid the tax on G.I. wires by filing an appropriate bill of entry and paid the duty as assessed by the Assessing Officer. However, later it was found that the amount of education cess was not paid by the appellant and a show cause notice was issued. The appellant properly paid the duty demanded alongwith interest. In a case of assessment over a bill of entry, it is the duty of the Assessing Officer to properly assess the duty and onus cannot be shifted to the appellant for not calculating the correct rate of duty. Appellant promptly paid the entire amount of duty demanded alongwith interest. Under the present factual matrix, it is not a fit case for imposition of penalty under Section 14 (a) of the Customs Act, 1962 - Decided in favour of assessee.
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2015 (12) TMI 860 - CESTAT BANGALORE
Levy of penalty - 100% EOU erroneously availed the Benefit of Notification No.52/2003-Cus. dt. 31/03/2003 - Held that:- There is no contravention by the respondents inasmuch as claiming of an exemption notification at the time of import of the goods cannot be held to be with any mala fides. If the notification was not available to the respondents, the Customs officer was within his right to deny the same at the time of import itself. However the respondents were allowed to clear the goods under the claim of notification. As such, we find force in the reasoning of the Commissioner that it is not a case of any mala fide requiring confiscation of goods or imposing any penalties. - Decided against Revenue.
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2015 (12) TMI 859 - CESTAT AHMEDABAD
Absolute confiscation of empty cartridge material - Confiscation of excess material - Held that:- Commissioner (Appeals) remanded the matter to the Adjudicating Authority for re-adjudication of considering the provisions Section 119 of the Customs Act. In our considered view, the confiscation under Section 119 of the Act would be ascertained after examining the facts in details. As the matter was remanded to the Adjudicating Authority, the imposition of fine and penalty as contended by the Learned Counsel should also consider in the interest of justice. - we direct the Adjudicating Authority, in denovo adjudication to consider the case of both the sides, Revenue and appellants on facts and law of the case and shall pass the order, in accordance with law - Appeal disposed of.
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2015 (12) TMI 858 - CESTAT NEW DELHI
100% EOU - Mis-Declaration of excess quantity of export goods to meet export obligation - Confiscation of goods - Gutkha under the brand name of 'kolhapuri'. - Imposition of redemption fine - Held that:- It is a fact on record that on physical verification, there was shortage of quantity of export goods to the tune of around 30%. If the goods were not checked at the time of export, the appellant could have shown the quantity of export goods as shown in the shipping bill as correct and had availed rebate claim thereon. It is only after detection of the shortage of quantity, the appellant sought to forego the rebate claim. Therefore, the excuse of the appellant that they have to meet export obligation and their labour was in hurry and has packed less quantity of export goods in the containers is not sustainable. In these circumstances, the charge of mis-declaration of quantity of good by the appellants stands proved. Therefore, the lower authorities have rightly held that the export goods are liable for confiscation. In the impugned order, the redemption fine of ₹ 12 lakh has been imposed on the appellant whereas the quantity in number found short is 15,26,400 pouches, which I find is appropriate. Therefore, redemption fine of ₹ 12 lakh imposed on the appellant is confirmed - Appeal disposed of.
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2015 (12) TMI 857 - CESTAT MUMBAI
Duty demand - Enhancement in value of goods - Violation of principle of natural justice - benefit of the Notification No. 149/95 - Held that:- Except for the non declaration of brand in the Bills of Entry the other misdeclaration alleged by the Revenue is lower value declared in the Bills of Entry. To arrive at the correct value, a market inquiry was done. In spite of clear directions by the Commissioner(Appeals) in the first stage, we find that principles of natural justice still remained violated. In the impugned order, the Commissioner(Appeals) has clearly recorded that the Department is duty bound to convey to the respondent the name of the market, name of the address of the person from whom market inquiry was made, name of the product including brand name for which inquiry were made and retail sale price of the product item-wise of brand-wise. Further the method of arriving at the assessable value from the retail sale price needs to be supported with evidence. The department merely considered margin of profit of 50% and 25% at the retail and wholesale stage respectively without giving any supportive evidence as to how this percentage was arrived at. Another flaw in arriving at the assessable value is that although spectacles are said to be of various brands, when it came to the market inquiry the same retail price was considered in respect all spectacles. This itself makes the market enquiry questionable and unreliable.
Revenue has not also explained why Rule 5 and 6 which relate to similar or identical goods should not have been considered when the appellant have given the price of contemporaneous goods as observed by the Commissioner(Appeals) and especially when such goods are available in the market as revealed in the market enquiry. Even if the contemporaneous goods do not indicate the brand, it was duty of Revenue to examine documents relating to contemporaneous imports but it failed to do so. - impugned order is not sustainable from both points of view i.e failure to observe principles of natural justice as well as no following appropriate procedure for arriving at assessable value. However, we do agree with order of the Commissioner(Appeals) in denying benefit of the Notification No. 149/95 as the importer admitted that they are not an Actual User. - Decided against Revenue.
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2015 (12) TMI 856 - CESTAT NEW DELHI
Provisional release of seized goods - Assessee being aggrieved by the allegedly harsh conditions of provisional release filed appeal before Commissioner (Appeals) on the ground that such orders are appealable as held by High Court of Delhi - Held that:- In the light of the order of the High Court of Delhi [2015 (2) TMI 27 - DELHI HIGH COURT], which has not been stayed or set aside, Board’s Circular dated 4-9-2013 is of no consequence. Merely because an SLP is proposed to be filed against the said orders of the High Court of Delhi does not in any way eclipse its binding force. Thus, the impugned order suffers from no appealable infirmity - provisional release not stayed.
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2015 (12) TMI 855 - CESTAT MUMBAI
Valuation - Enhancement in value - Import of unbranded goods - Held that:- If the value has to be loaded based on the contemporaneous value of the imports of identical/similar goods, one of the relevant facts for consideration is the quantum of imports involved in the transactions and also the nature of goods, in respect of the material particulars. It is a normal trade practice that if the quantity of goods purchased and sold is high/discounts are offered and the price of the transactions will be lower. Similarly, it is also a well-known fact that branded goods fetch a higher price than unbranded goods. In the present case, we observe that the quantum of imports was substantial and the goods were also unbranded. There is no evidence placed by the Revenue while undertaking the assessments for enhancing the value. There is no comparison done at all with respect of the quantum of imports involved in the transactions and whether the goods are branded or not. In the absence of such a comparison, loading cannot be done arbitrarily as the Customs Value Rules do not provide for arbitrary loading of values. In the present case, we notice that the loading done is arbitrary and without any basis. Therefore, such enhancement of value cannot be sustained in law. Accordingly, we set aside the impugned order - Decided in favour of assessee.
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2015 (12) TMI 854 - CESTAT AHMEDABAD
Waiver of pre deposit - forging of documents for the export of Non-Basmati Rice, Basmati Rice and also Murate of Potash (MOP) - Held that:- Adjudicating Authority had imposed penalty on all those appellants for the role played by them in respect of forging of documents for the export of Non-Basmati Rice, Basmati Rice and also Murate of Potash (MOP). On evaluating the evidence cursorily, we prima facie view all the four appellants has some role to play in forging the documents. All the legal arguments made by the Ld Counsel can be considered at the time of final disposal of appeal. At this juncture, we hold that none of the appellants made out the case for complete waiver of the pre-deposit of the amounts involved. Accordingly, we are of the view that they should be directed to pre-deposit some amounts for hearing and disposing the appeals on merits - Partial stay granted.
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2015 (12) TMI 853 - CESTAT MUMBAI
Confiscation of vehicle - non-production of homologation certificate with respect to the car under import is a tedious process and involves dismantling of the car - Held that:- There was a requirement of production of homologation certificate in respect of cars imported from abroad and the appellant also undertook to produce the same within a period of six months from the date of import of the car which the appellant failed to comply with and therefore, the adjudicating authority came to the conclusion that the said car is liable to confiscation under Section 111(d) of the Customs Act. The said finding cannot be faulted at all. However, since the car is used by the company in India and there is no commercial consideration attached or involved in the matter, the imposition of fine and penalty has to be minimal. - Appeal disposed of.
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2015 (12) TMI 852 - CESTAT NEW DELHI
Release of bank guarantee - Unconditional stay already granted - Held that:- The fact of submission made by the advocate as regards the bank guarantee, already stands considered by us while passing the Misc. order and it stands observed that unconditional stay was granted on its merits and not on the basis of bank guarantee. There was no direction to the appellant, while passing the stay order on 12-10-2010 for keeping the bank guarantee alive. As such, raising the same issue again, does not advance the Revenues’ case. - Further the fact of executing the bank guarantee during the course of investigation with an undertaking to keep the same alive till the final disposal by the Apex Court also does not support the Revenues’ case, inasmuch as it is the stay order of the Tribunal which would prevail and not an undertaking given by the assessee. - Appeal disposed of.
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2015 (12) TMI 795 - CESTAT AHMEDABAD
Duty demand - Storage of goods in warehouse beyond warehousing period - Held that:- Commissioner (Appeals) passed the order on erroneous facts and therefore, the findings of the Commissioner (Appeals) cannot be sustained. In our considered view, the Commissioner (Appeals) is required to ascertain the correct fact and thereafter decide the matter in accordance with law. It is apparent that the respondent had not given the correct fact and therefore, such order cannot be sustained. The other issues as raised by both the sides would be required to decide after considering the correct facts of the case. - Impugned order is set aside - Matter remanded back - Decided in favour of Revenue.
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2015 (12) TMI 794 - CESTAT MUMBAI
Clearance of goods without payment of duty under Notification No. 85/2004-Cus. for basic customs duty, Notification No.6/2006 for CVD and Notification No.20/2006-Cus. for SED purpose - Held that:- Appellant was not eligible for the benefit of Notification 20/2006-Cus. but they availed of the benefit of the said notification in view of entry at serial No.1 of the table annexed to the said notification. We also note that out of 72 bills of entry, approximately 40% bills of entry were passed through the officers and the remaining were cleared under RMS system. We note that even the bills of entry which were not cleared through RMS system were passed through the officers. The officers could not point out that since the appellant is availing the benefit of Notification 85/2004, they cannot avail the benefit of Notification 20/2006 in view of para 3 of the later notification. - ingredients of Section 28 are not satisfied so as to invoke the extended period of limitation in the present case. In the result, the demand of duty within the normal period of limitation is confirmed while the demand beyond the normal period is set aside. - Decided partly in favour of assessee.
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