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Customs - Case Laws
Showing 101 to 120 of 1794 Records
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2016 (12) TMI 968 - CESTAT KOLKATA
Seizure - Smuggling - Penalty - Held that: - It is observed from the case records that there is no evidence on record as to how the seized goods are smuggled, by whom, and from which route these goods were brought into India. Seized goods are not one of the categories of goods appearing in Section 123 or which are notified under Section 123 of the Customs Act, 1962. The burden is on the department to lead evidence that goods of foreign origin are in fact smuggled. Simply, bearing some foreign marks does not mean that goods are smuggled ones. There is even no evidence on record that appellant was aware of the foreign origin of goods, much less knowledge of being smuggled. Knowledge of goods being of smuggled nature is an essential element for imposing penalty under Section 112(b) of the Customs Act, 1962. In the absence of such a knowledge of the appellant, who is a housewife, no penalty can be imposed upon her under Section 112(b) of the Customs Act, 1962 - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 967 - CESTAT KOLKATA
Refund claim - SAD - certificate from Chartered Accountant under dispute - Held that: - Adjudicating authority while sanctioning the refund claim found all the conditions of Notification No.102/2007-Cus dated 14.09.2007 as fulfilled - It is observed from the relevant para of CBEC Circular dated 13.10.2008 that the same does not use the words regular Chartered Accountant, but only clarifies that certificate given by any other independent Chartered Accountant would not be acceptable for the purpose of 4% SAD refunds - Respondent accordingly appointed a new Chartered Accountant, who becomes their regular Chartered Accountant and cannot be considered as a onetime independent Chartered Accountant giving a certificate - Decided in favor of the assessee.
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2016 (12) TMI 966 - CESTAT KOLKATA
Imposition of penalty u/s 112 (a) and 112(b) of the Customs Act, 1962 - import of Natural Lime Stone Powder - on testing goods found to be Calcium Carbonate Powder - Held that: - It is observed from the statement dated 24.11.2004 of the appellant that nowhere is stated that he was aware the goods being imported by the importer were not Natural Lime Stone Powder. The correct nature of the imported goods could be known only after chemical test was undertaken by the department. Even the examining officers could not detect the goods imported were other than Natural Lime Stone Powder. In the absence of any evidence, that appellant had the knowledge of imported goods being Calcium Carbonate Powder and not Natural Lime Stone Powder declared in the bill of entry, penalty imposed on the appellant is not justified and is set aside - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 965 - CESTAT KOLKATA
Confiscation - import of goods for reexport after necessary rectification - failure to reexport - Claim of exemption Notification No. 158/95-Cus dt 14/11/1995 - Penalty - Time limitation - It was claimed that appellant is also eligible to drawback as under Sec 74 of the Customs Act 1962 if appellant is made to pay import duty. That the entire exercise is revenue neutral - Held that: - By issuing show cause notice dt 29/9/2010 Revenue has taken steps to finalize the provisional assessment by demanding duty. As such demand is not time barred & has been correctly confirmed along with interest.
On the issue of confiscation and imposition of penalty it is observed that all the relevant details were declared by the appellant at the time of clearance of goods. A delay in exporting the goods will make a case of demand of duty & interest and will not attract confiscation or imposition of penalty upon the appellant. According. Redemption fine imposed & penalty imposed upon the appellant is set aside.
Appeal partly allowed - decided partly in favor of appellant.
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2016 (12) TMI 964 - CESTAT KOLKATA
Imposition of penalty u/s 112(a) of the Customs Act, 1962 - whether import of 352.245 MT of Zinc Flux Skimmings was ordered by the Appellant? - Held that: - It is observed from the findings portion of Order-in-Original dated 25.01.2006 that Adjudicating authority has heavily relied upon this statement dated 19.08.2003 of Shri Mustafa Seikh which was not a relied upon document in the show cause notice. Ld.AR appearing on behalf of the Revenue also could not indicate whether a copy of this statement, relied upon in the Adjudication order, was provided to the Appellant - matter is remanded to the Adjudicating authority with the direction to supply copies of statement dated 19.08.2003 of Shri Mustafa Seikh to the Appellant and also all other documents relied upon in the adjudication order dated 25.01.2006 which were not relied upon in the show cause notice - appeal allowed by way of remand.
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2016 (12) TMI 963 - CESTAT, KOLKATA
Valuation - related party transaction - whether appellant M/s. Concept Pharmaceuticals Ltd. (India) is related to Concept Pharmaceuticals Ltd., Nepal? - Held that: - it is observed from the facts recorded in para 8.4 of Order-in-Original dated 15/7/2002 that Concept Pharmaceuticals Ltd. holds 20% and 7.13% shares in both the sister concerns situated in Nepal and India. Ld. Advocate could not clarify as to how in spite of holding of more than 5% shares both the parties should not be considered as a related persons under Rule 2 (2) (iv) of the Customs Valuation Rules, 1988. It is observed from the provisions of Rule 2 (2) (iv) of the Customs Valuation Rules, 1988 that when any person directly or indirectly holds/owns 5% or more of the shares of both the companies then such concerns will be treated as related persons - supplier and the importer are related persons.
Method of valuation - Held that: - the valuation of the imported goods in the present proceedings should be done under Rule 7A of the Customs Valuation Rules, 1988 as both supplier and the importer are related persons. The appellant should furnish all the relevant data/cost of the imported goods to the Adjudicating authority, as prescribed under Rule 7A of the Customs Valuation Rules, 1988 read with the interpretative notes relied upon by the appellant. Needless to say that an opportunity of personal hearing should be extended to the appellant to explain their case.
Appeal allowed by way of remand.
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2016 (12) TMI 962 - CESTAT KOLKATA
Revocation of CHA licence - forfeiture of security deposit - Regulation 18 of the Customs Broker Licensing Regulation 2013 (CBLR 2013) - the containers found to be carrying red sanders wood export of which is prohibited - Held that: - It is observed that the said revocation has been made for violating the provisions of Regulation 11 (a), 11 (d) and 11 (n) of CBLR, 2013. As per the provisions of Regulation 11 (a) of CBLR, 2013 every CHA shall obtain an authorisation from each of his clients whom he is being employed and produce such authorisation before the officers of Customs. It has been categorically observed by the adjudicating authority that no authorisation was produced or obtained by the appellant. Even during the proceedings before this Bench also no such authorisation from the exporter M/s. Bhadrakalj Exporters Pvt. Ltd. Nepal was produced.
Further as per Regulation 11 (n), CHA is required to advise his client to comply with the provisions of Customs Act which will include transit routes required to be followed by the client. Ld. Advocate during the course of hearing submitted that the said CTD transit declaration was received by the appellant on 3/4/2014 and interception was done on 7/4/2014. Once the appellant came to know of CTD transit declaration on 3/4/2014, then it was his responsibility and duty to guide the driver of the truck/Nepal exporter to follow the routes specified and if the route is not followed then the same was required to be brought to the notice of officers of Customs as per Regulation 11 (d) of the CBLR, 2013. Due to non verification of the antecedents of the Nepal exporters, substitution with the prohibited Red Sanders Wood became possible in the container - In view of the above observations, we do not find anything wrong revoking CHA licence of the appellant.
Reliance placed in the case of M/S. Shubham Enterprises Vs. C.C. (Airport & Admn., Kolkata) [2015 (12) TMI 587 - CESTAT KOLKATA], where similar issue was upheld. However, revocation period was restricted upto a certain date on the grounds that appellant had no knowledge of the contraband, nature of the goods substituted in the containers - In the present proceeding also we do not find any evidence on record with regard to the fact that appellant had knowledge of substitution of declared goods with ‘Red Sanders Wood'. Also the appellant is out of job from the date of suspension of his CHA licence. Accordingly, we hold that revocation of appellant's CHA licence shall be effective upto 31/3/2017 and thereafter CHA licence of the appellant, and forfeiture of security deposit ordered by the adjudicating authority, will be restored.
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 961 - CESTAT KOLKATA
Penalty u/s 117 of the Customs Act 1962 - role of appellant in export related activities - Held that: -
Appellant had played prominent role in export related activities of the exporter M/s Promising Exports Ltd. and has been correctly visited with penalty of ₹ 10,000/- - appeal dismissed - decided against appellant.
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2016 (12) TMI 956 - GUJARAT HIGH COURT
Subrule (2) of rule 5 of the CEGAT (Countervailing Duty and Antidumping Duty) Procedure Rules, 1996 - whether appellant is a party to a captioned petition - Held that: - Subrule (2) of rule 5 enumerates the persons who are required to be joined as respondents to the appeal. The category of persons under clause (b) thereof is “Representative of the domestic industry on whose application investigation was commenced by the designated authority” - in present case, the investigation was commenced on the application of the applicant herein, the applicant can be said to be a necessary party to the captioned petitions - applicant is permitted to be joined as respondent No.3 in each of the captioned writ petitions - application succeeds.
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2016 (12) TMI 899 - GUJARAT HIGH COURT
Levy of anti dumping duty (ADD) - Soda Ash - challenging the procedure undertaken by the designated authority - Jurisdiction of HC to writ entertain petition - the contention that entire exercise carried out by the designated authority is without taking into consideration that the domestic injury was operating under a protected regime - import from Peoples’ Republic of China, European Union, Kenya, Pakistan, Iran, Ukraine, USA - mid-term review - principles of natural justice - Held that: - the Supreme Court, in the facts of the said case, while vacating the interim relief, has held that the in the event of the Central Government forming an opinion to do so, all steps including the imposition of anti-dumping duty would be subject to the result of the petition pending before the High Court and that the High Court has the power to grant interim relief at any stage of the proceedings subject to a case in that regard being made out - the petitioners have been able to establish that the case falls within the well settled parameters for exercise of judicial review under Article 226 of the Constitution as discussed hereinabove. In that view of the matter, the contention that the petition ought not to be entertained as being premature, also does not merit acceptance.
Grant of interim relief - Held that: - the interim relief as granted earlier cannot be continued as the same may result in the lapse of the statutory period and render the proceedings infructuous. That, however, does not mean that the petitioners are not entitled to any interim relief - the court is of the view that the interests of all the parties could be balanced if the Central Government is permitted to proceed further pursuant to the final findings, if it so deems fit. If the Central Government decides not to revoke the anti-dumping duty, the present petitions may not survive. However, in case a notification revoking the anti-dumping duty is published in the Official Gazette, the interests of the petitioners can be taken care of by providing that in such an eventuality, such notification shall not be acted upon till the final hearing of the petitions. This would also take care of the interests of the private respondents who have stated that their right to get refund of the duty paid during the interregnum would arise only upon a notification under rule 18 of the rules being published.
The Central Government is permitted to proceed further pursuant to the final findings submitted by the designated authority. However, in case, pursuant to the impugned final findings recorded by the designated authority, the Central Government publishes a notification in the Official Gazette under rule 18 of the rules, the same shall not be acted upon till the final disposal of these petitions.
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2016 (12) TMI 898 - CESTAT MUMBAI
Classification of imported goods - two tunnel boring machines - since they were of huge dimensions, the same were dismantled in convenient assemblies to suit the manner of packing of handling and packing for transporting to India, hence they were imported in knocked down condition in two consignments - revenue is of claim that what was imported was parts and components of second hand machine, which require special licence - whether the goods which were imported were machinery in knocked down condition or the parts and components of machinery?
Held that: - revenue has not adduced any additional evidence in respect of the consignment imported in order to come to a different conclusion - the first appellate authority has made out a finding that As per the respondents what has been imported is two set of second hand tunnel boring machine/equipment in knocked down conditions, most of which are allowed under O.G.L, and for eight second hand diesel locomotives they have produce & specific import licence no.0350000151/3/00/01, dated 17.10.2002, which was assessed on merit under Bill of Entry No. 724487/08.03.02. The same is not a point of dispute. It is not the case in appeal that Tunneling & boring machines are not capital goods. For the goods which are not capital goods i.e, diesel locomotives, the respondents have already submitted licence at the time of clearance. Hence the said contention of the Deptt. is not correct Accordingly, I do not find any reason to interfere with the order of the lower authority, and the appeal stands rejected.
Appeal rejected - decided against Revenue.
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2016 (12) TMI 897 - CESTAT MUMBAI
Valuation of imported goods - Speakers of Kenwood make of different wattage, Dual Cone Speakers of Pioneer make, Dual Cone Speakers of Sony make, Stereo Power Amplifier of Sony make, Hella - Halogen Map lamp made in Germany, Carino Air Freshner liquid type made in Japan, Auto Lighters made in Japan - the appellant already accepted the enhancement of the value in the first assessment after examination, again the value was proposed to be enhanced further - is the second time enhancement of value justified? - Held that: - A mere perusal of the description of goods which are supposed to be contained in the consignment, indicates that few items are having no brand and some are made in Japan and Germany and imported from supplier who was a trader. The declared value of the appellant which is claimed as transaction value was rejected and the value was enhanced by the assessing officer. Appellant accepted the enhanced value and discharged the customs duty as per the enhanced value.
On the perusal of the consignment details, we find that the case of the main appellant needs to be accepted as the speakers and other spares of car audio accessories did indicate that consignment is of mixed lot. Since the appellant has already accepted the enhancement of the value in the first assessment after examination, we do not find any reason to further enhance the value as has been held by the adjudicating authority.
Reliance placed on the case of Eicher Tractors Ltd. [2000 (11) TMI 139 - SUPREME COURT OF INDIA] wherein the apex court has specifically stated the price list of the foreign supplier manufacturer is not a proof of the manufacturing value and existence of the price list cannot be the sole reason for rejecting the transaction value. In the case in hand, revenue’s contest on the value of the goods which are imported in the consignment is not based on the finding that these were mixed lot and manufactured by different manufacturers.
Impugned order is set aside and the appeal is allowed upholding the value which has been accepted for assessment and discharge of duty in the first instance - decided partly in favor of assessee.
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2016 (12) TMI 896 - CESTAT KOLKATA
Indian currency - smuggling - carrying of Indian currency within Indian Territory, whether an offence or not - absolute confiscation of currency with imposition of penalty - Whether absolute confiscation of ₹ 59,41,550/- Indian currency has been correctly made by the Adjudicating authority under Sec 113 of the Customs Act 1962, by rejecting the claim of the appellant? - Held that: - As Indian currency has not been notified as specified goods under Sec 11 H (e) or notified under Sec 123 of the Customs Act 1962, it cannot be said that bringing of goods into a specified area are liable to confiscation - There is no evidence on record at all in the show cause notice as well as in the Adjudicating order as to how seized currency is liable to confiscation under Sec 113 of the Customs Act 1962. No subsection of Sec 113 has been specified in the show cause notice under which Indian currency seized is charged to be liable to confiscation. Under the circumstances confiscation of seized India currency is not justified and order to that extent passed by the Adjudicating authority is liable to be set aside.
Ownership claim of appellant - appellant has claimed the ownership of seized Indian currency, though belatedly, alongwith the source of licit acquisition of the same - Held that: - In the light of legal proposition of law & absence of any other claimant it is held that appellant is the rightful owner of the seized Indian currency. There is no evidence on record that seized currency was meant to be exported out of India - It is not established by the department that documents produced by appellant are forged & fabricated when the persons giving these evidences have confirmed the authentically of the documents by giving Sec 108 statements before the investigation. Further, there is no evidence on record that seized Indian currency was attempted to be exported out of India by the appellant. Accordingly absolute confiscation of the seized currency of ₹ 59, 41,550/ is set aside and is ordered to be released to the appellant.
Imposition of penalty u/s 114 AA of the Customs Act 1962 - Held that: - there is no evidence of forged nature of documents produced by the appellant except the analysis made by the Adjudicating authority. Customs Act 1962 is not an enactment to penalise a person for forgery, if any. Secondly, it is already held above that claim of the appellant was not false in the absence of any other claimant - also found that allegation of forging of documents was not at all made in the show cause notice and Adjudicating authority has gone beyond the scope of show cause notice - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 895 - CESTAT MUMBAI
Imposition of penalty u/s 112 - appellant was carrying out the delivery of courier packages without any legal permission from the Customs to act as handler and also he was suspected to deliver the goods at the location which did not conform to the address mentioned in the importing firms - offending goods were confiscated while courier packages were in customs custody.
Held that: - Considering that the packages in question were not ripe for delivery at the stage of seizure, such a finding appears to be without any basis. It is also said that the appellant acted as a service provider or a business aid/business associate for other courier; such outsourcing a portion of the business of courier does not fall within the ambit of Courier (Import & Export) Clearance Regulations 1998 which places the entire responsibility for clearance, as well as delivery upon the courier. For the above reasons I find no merit in the impugned order and set aside the penalty imposed on the appellant - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 894 - CESTAT MUMBAI
Recovery of 4879.90 gms of gold jewellery concealed in 'metal sheet design cutting die' and 'bottle hydraulic jack' which was confiscated - the courier company failed to maintain due diligence and violated regulation 13(a),(c) of Courier (Imports and Exports) Clearance Regulations, 1988 - Held that: - It is observed that the beneficiaries of the illicit import of gold jewellery are the shipper and the consignee. Courier companies typically book packages which are then transported to the destination airport where the local associate of overseas courier completes customs formalities and undertakes delivery of the consignments. Failure to deliver at the correct address is can, at least, be a dispute of civil nature between the shipper and the courier company. The appellant is a local associate of the overseas courier company; there is no client in India nor is any payment received from the consignee. The duty liability, if any, is also discharged before the courier packages are removed from the custody of the Customs. The utilisation of a sub-contractor for undertaking local delivery is a business decision which is beyond the scope of Courier (Imports and Exports) Clearance Regulations.
In the present instance the goods were still under Customs custody when the investigation was conducted and there is no scope for an allegation that the appellant had, at any stage, abetted in the import of the contravening goods. For the above reason the impugned order has failed to discharge its obligation to render a finding with sufficient evidence.
Appeal allowed - penalty set aside - decided in favor of appellant.
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2016 (12) TMI 893 - CESTAT KOLKATA
Imposition of penalty u/s Sec 114 (i) of the Customs Act 1962 - violation of provisions of Sec 113 - It is the case of the appellant that his client has not done any of the irregularities mentioned in Sec 113 of the Customs Act 1962 to invite confiscation & penalty. That his client is also not the abettor for imposing penalty under Sec 114 (i) of the Customs Act 1962 and also that appellant has been charged as on exporter.
Held that: - Relied upon case law of Apex Court CC Lucknow Vs G.P. Jaiswal [2015 (4) TMI 279 - SUPREME COURT] was decided by the Apex Court where issue was overinvoicing of goods. In this context Apex Court observed that a person supervising stuffing of goods may not be aware of over invoicing of goods. Observations of Apex Court also clearly convey that knowledge of the wrong deeds should exist before a person can be visited with penalty - In the present case, appellant had clear knowledge of prohibited nature of Red Sanders Wood for export but continued to assist the unknown exporters till the dispatch of containers out of India.
Penalty is imposable upon the appellant u/s 114(i) of the Customs Act 1962. However in the interest of justice penalty of ₹ 10 lakh imposed upon the appellant is reduced to ₹ 5 lakh as the value of contraband Red Sanders Wood has been assessed at ₹ 27.12 lakh.
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 892 - CESTAT NEW DELHI
Confiscation - fine and penalty - Validity of licence to export goods - Held that: - I find that the ITC HS Policy was amended on 06.02.2015, Providing for obtaining the licence for importation of the subject goods. It is an admitted fact that both the Customs Department and the importers were in doubt regarding importation of goods under a valid licence. Thus, Malafides cannot be attributed in the case of the present appellant, However, since the goods were imported improperly, the same are liable for confiscation as per the mandates of the Customs Statute - penalty rightly imposed - However, considering the gravity of the case, the quantum of fine and penalty reduced in the interest of justice. Therefore, the impugned order is modified to the extent of reducing the quantum of redemption fine to ₹ 20,000/- and penalty to ₹ 10,000/-
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 891 - CESTAT KOLKATA
Imposition of penalty u/s 112 of the Customs Act, 1962 - carrying of foreign marked gold biscuits - Held that: - A penalty of ₹ 2.5 lakhs has been imposed upon the appellant under Section 112 of the Customs Act, 1962 for carrying foreign marked gold biscuits. During interception on 27.12.2006 appellant could not produce any receipt/document showing legal acquisition of such gold of foreign origin. As per section 123 of the Customs Act, 1962 onus was on the appellant to establish legal acquisition of foreign marked gold. In his statements recorded on 27.12.2006 and 28.12.2006 appellant admitted that he was carrying gold of foreign origin from Imphal and had the knowledge of its foreign origin. It is also observed from his reply to the show cause notice that said gold of foreign origin was carried in a concealed manner. Further appellant is a repeated offender and has earlier been penalized for smuggling of gold which has also been upheld by the Apex Court in the earlier proceedings.
Based on the above observations appellant does not have a case for waiver of penalty which is correctly imposed under Section 112 of the Customs Act, 1962. Appeal filed by the appellant is required to be dismissed - appeal dismissed - decided against appellant.
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2016 (12) TMI 890 - CESTAT KOLKATA
Time bar - Regulation 22(1) of CHALR, 2004 - The law prescribes that within 90 days of receipt of the offence report, the jurisdictional authority has to issue show cause notice - Held that: - The time limit prescribed by law is mandatory and the appellant is not permitted to suffer in view of the decisions of the Tribunal.
It may be appreciated that the Hon’ble High Court of Madras in the case of Saro International Freight Systems Vs. Commissioner of Customs, Chennai [2015 (12) TMI 1432 - MADRAS HIGH COURT], held that the impugned show cause notice issued by the respondent is without jurisdiction, as it has been issued beyond the period prescribed in the regulations, which have statutory force and hence, not sustainable.
In view of the fragrant violation of the provision of the law, the impugned order is liable to be set aside - appeal allowed.
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2016 (12) TMI 889 - CESTAT KOLKATA
Time bar - Regulation 22(1) of CHALR, 2004 - The law prescribes that within 90 days of receipt of the offence report, the jurisdictional authority has to issue show cause notice - Held that: - The time limit prescribed by law is mandatory and the appellant is not permitted to suffer in view of the decisions of the Tribunal.
It may be appreciated that the Hon’ble High Court of Madras in the case of Saro International Freight Systems Vs. Commissioner of Customs, Chennai [2015 (12) TMI 1432 - MADRAS HIGH COURT], held that the impugned show cause notice issued by the respondent is without jurisdiction, as it has been issued beyond the period prescribed in the regulations, which have statutory force and hence, not sustainable.
In view of the fragrant violation of the provision of the law, the impugned order is liable to be set aside - appeal allowed.
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