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Customs - Case Laws
Showing 141 to 160 of 1794 Records
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2016 (12) TMI 758 - CESTAT MUMBAI
Revocation of CHA licence - time limitation - inordinate delay in the processes by Revenue - time limits prescribed under Customs Broker Licensing Regulations, 2013 (CBLR) for carrying out processes - amendment made in the Custom House Agent Licensing Regulations, 2004 (CHALR) vide Notification No. 30/2010-Cus (NT) dated 8.4.2010 prescribing various time limits - Held that: - it is obvious that none of the time limit prescribed under the CBLR, 2013 has been followed. In fact there has been as inordinate delay of exceptional nature. The matter has been delayed by almost three years beyond time limit and almost 4 times the prescribed time limit. This is a case of exceptional delay.
It was obvious that there is lack of supervision and effort to adhere to the time limit prescribed by law. This will assume serious implications especially in view of the fact that Courts have held time limit to be mandatory in nature. By the miscellaneous application filed, the Revenue seeks the time of 8 to 12 months just to compile the data of such delays. Suffice to say in such a serious issue needs immediate attention of CBE&C and Chief Commissioner of Customs. As a result of such delay, a number of serious offenders will get the benefit and be left of the hook and go scot free, which is not the intent of law. Similarly, due to the delays, people who are not guilty will continue to suffer the suspension and revocation on account of delays by Revenue due to lack of responsibility.
The appeal is allowed on limitation without going into merits of the case - The license which is revoked by the impugned order is restored forthwith and Commissioner of Customs (General), Mumbai is directed to do the needful immediately - decided in favor of CHA-assessee.
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2016 (12) TMI 705 - CESTAT CHENNAI
Illicit import of RBD Palmolein - DEPB scheme - fake and forged DEPB licences - whether the clearance of imported goods by utilization of fake/forged DEPB licences are in order and whether extended period of duty demand is sustainable and if both these are upheld, whether imposition of penalty is in order? - Held that: - We note from the very same Commissionerate another appellant viz. M/s.DCW Ltd.[2016 (2) TMI 387 - CESTAT CHENNAI] has contested this issue and held that buyer has no remedy against the seller and takes all risks of defect and based on the principle of "Caveat Emptor" laid down by the Supreme Court, the appeal filed by M/s.DCW Ltd. the demands were confirmed.
Extended period of limitation - Held that: - While we agree that the SCN has not made a connection with regard to the fake and forged licences and guilty mind of the appellants, we are of the view that since we have taken a decision in the case of DCW Ltd., there is no reason for us to deviate from the same, and accordingly invocation of extended period is also upheld.
Imposition of penalties - Held that: - While we are following the precedence in the case of DCW Ltd. in so far as the confirmation of demand of duty is concerned, we do not wish to follow this as a precedence for the purpose of imposition of penalty for the reason that in those cases, the penalty was not under Section 114A but in the instant appeals, the penalties are under Section 114A where there is no discretion for the Tribunal to impose any lesser penalty.
The appellant made a plea before the Bench that they had filed police complaint and got the offenders arrested and it was the department duty to have taken up the matter further but failed on this score. This issue has also been dealt by the Tribunal's decision in the case of DCW Ltd. and therefore there is no reason for us to deviate from the said view taken by us.
Demand of duty is upheld - Invocation of longer period is upheld and the penalties are upheld.
Appeal dismissed - decided against appellant-assessee.
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2016 (12) TMI 704 - CESTAT MUMBAI
Valuation - enhancement in declared value - Held that: - we find that from the letter dated 29.10.2002, which is on the letter head of the respondent, it appears that the order was received by the respondent in the year 2000 itself. In the said letter, the respondent requested for an appealable copy of the Order-in-Original dated 23.6.2000. However, this letter was not available before the Commissioner (Appeals). In view of the aforesaid letter, the finding of the learned Commissioner (Appeals) that the respondent had not received the order dated 23.6.2000 become incorrect. Since in the second appeal, the Order-in-Original is based on the first order dated 23.6.2000, therefore, the second order is consequential to the first order dated 23.6.2000. We are therefore of the considered view that both the matters should be remanded to the Commissioner (Appeals). The Commissioner (Appeals) shall reconsider both the case in the light of the respondent letter dated 29.10.2002, which is to be verified with Dy. Commissioner of Customs, SVV, whether this letter was submitted by the respondent and genuineness of the same. Accordingly, after such verification, the learned Commissioner (Appeals) shall pass a fresh order on limitation as well as on merit of the case - appeal allowed by way of remand.
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2016 (12) TMI 703 - CESTAT CHENNAI
Denial of benefit of Notification No.21/2002-Cus. dt. 1.3.2002 - contractor of nuclear project - goods meant for project used therein - Held that: - The notification is concerned with the goods required for setting up of nuclear project having a capacity of 440 MW or more as certified by an officer not below the rank of a Joint Secretary to the Government of India in the Department of Atomic Energy. Requirement of law is that described goods as specified in List 43 in the notification should be imported for the purpose of setting up of nuclear projects. Such fact is not in dispute. The second condition is that projects should be of 440 MW. That is also not disputed. The last condition is that the requirement of the goods as well as the capacity is to be certified by a specified officer of Govt. of India which is also not disputed. Appellant says that the goods imported was within the knowledge of the nuclear project authority. They were the essential party to the import since their name appears in the Bills of Entry also. He demonstrates that the goods were imported on account of the nuclear project. The sum and substance of the requirement of the notification is that the goods is subjected to exemption but not the person who imported. Therefore, without any doubt as to the import of the goods and use thereof in the Nuclear Project as per certificate issued by the Notified Authority not disputed by Revenue, there cannot be denial of benefit of the notification to the appellant - appeal allowed.
So far as the project import benefit is concerned, in view of grant of benefit under the notification, that ipsofacto allows such benefit.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 702 - CESTAT CHENNAI
Validity of addendum to the SCN - Seizure of Heroin concealed in books attempted to be couriered to Maldives - imposition of penalty - Held that: - There is no dispute that the parcel in question was received and handled by the appellant. With regard to the contention that the addendum issued to him does not have validity, I find myself in agreement with the views of the lower appellate authority that when the show cause notice was issued within the prescribed time from the date of seizure, any addendum or corrigendum issued was with reference to the said notice only. In any case, the addendum in question, dated 03/05/2013 specifically indicates that it is issued as part and parcel of the show cause notice dt. 22.11.2011 and further, it only seeks to give notice, as to why penalty should not be imposed, inter alia, on the appellant under Section 114 (i) of the Customs Act, 1962.
I am of the considered view that since his role in the entire modus has been established, he cannot claim ignorance as an excuse for non-imposition of penalty. Further, from the investigation it has emerged that in the accompanying invoice to the Airway Bill, his name was shown partially as 'Narayana, Habsiguda, Hyderabad' and his identity card issued by Election Commission only was enclosed as proof of consignor/exporter. These facts only serve to demolish the claim of innocence by the appellant. The appellant cannot in any way claim that he was an unwitting accomplice who happened to be in the wrong place at the wrong time. On the other hand, the conduct and role played by the appellant give the lie to any such averment. Thus, concerning the complicity of the appellant, the principle of res ipsa loquitur (the thing speaks for itself) will verily apply. Those who come for judicial succour should come with clean hands. Therefore, no merit is found in the appeal and hence the same is dismissed. MA filed by appellant is also disposed of accordingly.
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2016 (12) TMI 701 - CESTAT MUMBAI
Refund sanctioned to be paid - Rule 41 of CESTAT Procedure Rules - Held that: - Once the Revenue loses its right to retain sums which are not due to it, as per an order of any appellate forum, be it the Commissioner (Appeals), Tribunal or the High Court, it has to become vigilant in either refunding it back to the assessee or obtaining an order from the higher forum for stay of such refund. It goes without saying that the Revenue must weigh the pros and cons of seeking a stay against implementation of the order of the lower appellate authority as there will be interest liabilities that the Revenue will have to discharge ultimately if its challenge before the higher appellate forum does not succeed.
Ld. Departmental Representative submits that they be given another chance to move the Hon’ble High Court for expeditious hearing of the stay petition as soon as the Hon’ble High Court reopens after Diwali vacation, though we are not convinced with such an argument in the absence of inactivity from January 2014. However, in the interest of justice, respecting the word of the Id. Departmental Representative, we adjourn these applications to 28.11.2016 to give revenue an opportunity, to either get a stay order from Hon’ble High Court or implement our orders by sanctioning the refund to applicants herein. Ld. Departmental Representative is specifically instructed to apprise the bench about the action - Matters adjourned to 28.11.2016.
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2016 (12) TMI 700 - CESTAT CHENNAI
Levy of penalty for abetting export fraud - imposition of penalty - export of red sanders - Held that: - they have been omitted to take sufficient care by plainly trusting the CHA appointed by them and totally handing over the responsibility of transportation and inspection by Customs at Chennai to the latter. The very same CHA was found to have played a major role in the attempted fraudulent export of red sanders by replacing the granite slabs. Both the Director/Managing Partner have accepted that the export orders have been obtained without knowing the details of the person involved and also the buyers. Hence, while there is not any direct involvement of appellants in the alleged attempted export of red sanders, nonetheless, they cannot go scot-free for their association with the fraudsters even if only by way of omission. - levy of penalty confirmed though reduced - decided partly in favor of appellant.
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2016 (12) TMI 699 - CESTAT MUMBAI
Benefit of Notification No. 25/99-Cus dated 28.2.1999 - concessional rate of duty on ‘Strontium Carbonate’ falling under Chapter 28 used in manufacture of “Glass Shells/Parts for Colour Picture Tubes” - certificate in terms of Rule 4 of the said Rules - Held that: - Exhibit –‘H’ of the appeal memorandum is a letter of the appellant addressed to the Dy. Commissioner of Customs, wherein they have claimed that they had sought exemption under Notification No. 25/99-Cus. In the said letter, they have also claimed that they had submitted a copy of the certificate also. In the letter, there is no mention of request of reassessment under Section 149, though the gist of the letter clearly indicates that they are seeking reassessment and rectification of mistake - matter is remanded to the original adjudicating authority to reexamine the case of the appellant in light of Section 149 of the Customs Act, 1962 - appeal allowed by way of remand.
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2016 (12) TMI 698 - MADRAS HIGH COURT
Maintainability of petition - mixed question of law and facts - import of goods on the basis of illegal amended Bill of Lading - Raw Cashews - Held that: - It cannot be forgotten that when a right or liability is created by a statute, that itself prescribes a remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy, as opined by this Court. Further, just because the statutory remedy is an onerous one, without exhausting the same, a litigant is not entitled to file a writ petition - In the upshot of qualitative and quantitative discussions and also this Court, keeping in mind of an essential fact that the Petitioner makes a claim for the cargo in question based on proforma Bill of Lading and when the claim of the Petitioner is very much disputed by the Respondent Nos.4 and 5, and further when the Sixth Respondent falls in line with that of the Petitioner to the effect that the writ Petitioner is only entitled to get the cargo and thereby its Firm is entitled to get delivery of the cargo, pursuant to High Sea Sale Agreement, dated 21.04.2016 and that apart, when the Fourth Respondent comes out with the plea that the IGM can be amended as per Section 30(3) r/w Levy of Fees (Customs Documents) Regulations, 1970, then, this Court is of the considered view that the disputes between the parties are only to be settled before the Adjudicating Authority/proper officer (Fact Finding Authority) under the Customs Act. In fact, the rival claims/disputes between the parties in the instant case, which centres around on mixed questions of Facts and Law, cannot be investigated/not to be gone into by a writ Court under summary proceedings. Viewed in that perspective, this Court holds that filing of writ petition by the Petitioner is per se not maintainable. Consequently, writ petition fails.
Petition dismissed - Liberty granted to the respective parties to approach the Adjudicating Authority/proper officer under the Customs Act, 1962 or to seek appropriate remedies under the General Law, Civil Law or Criminal Law and to seek redressal of their grievances, if they so desire/advised.
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2016 (12) TMI 697 - CESTAT MUMBAI
Benefit of exemption Notification No. 132/94-Cus dated 20.06.1994 - non-fulfillment of condition of notification - Held that: - the appellant is under obligation to produce the certificate that the goods are required for such petroleum operations and have been imported under aforesaid contract, therefore we do not find any infirmity in the impugned order, whereby it was directed to produce the end use certificate as required under the notification. In this scenario, we are of the view that the matter needs to be remanded to original authority to pass a fresh order by taking into account the observations of the findings given by the Commissioner(Appeals) - Appeal is allowed by way of remand.
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2016 (12) TMI 643 - CESTAT HYDERABAD
Import of old and digital multi function copiers - whether restricted goods or not? - Held that: - Ld. Counsel is correct in his submissions that the impugned items came to be restricted for imports only with effect from 05.06.2012. It is also seen from the impugned order that goods have been found liable for confiscation and hence fined under section 125 ibid and penalty imposed under section 112(a) ibid only on the store that they are restricted, which was indeed not the case at the time of import. This being the case, fine and penalty imposed on the appellant cannot sustain and hence are set aside accordingly. We do not however interfere with the enhancement of declared value of the impugned items. Appeal partly allowed as above.
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2016 (12) TMI 642 - CESTAT HYDERABAD
Jurisdiction of Chemical examiner - whether the PHO was the sole authority to certify the goods in quantum and not the Chemical Examiner? - Held that: - From the circular No. 58/2001 dated 25/10/2001, it is evidently clear that all consignments of imported edible/food products have to be referred to PHO's for testing and clearance shall be allowed only after receipt of the test reports. It is further clarified that where PHO's are not available, sample should be got tested from nearest Central Food Laboratory or any laboratory authorized for such testing by the Directorate General of Health Services. Contention of Revenue is that the PHO certificates issued in these cases do not specifically indicate the acid values which are required for considering benefit of Notification No. 21/2002 dated 01.03.2002. However on perusal of the PHO certificate it reveals that there is in fact a certification concerning that the samples conform to the standards laid down under item A-17.15 of the PFA Rules, 1955. When item A-17.15 is seen, it lays down that the standards prescribed in the rules for specific edible oils will also apply, except for moisture and acid value which shall not be more than 0.5 and 0.10 respectively. Item A-17.19 of the Rules specifically concerns palm oil, wherein it is laid down that acid value should not be more than 0.10. It is further clarified that palm oil imported into the country shall be refined before its supplied and it shall confirm to the standards laid down under A-17.15. These aspects are found very clearly brought out in the certificates issued by PHO. In the event, the conclusions of the lower appellate authority in Para 14 in his order that any matter concerning testing of edibility, it is the PHO and CFL alone that have the authority in reporting on the matter is correct and does not require any interference - appeal dismissed - decided against Department.
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2016 (12) TMI 641 - CESTAT HYDERABAD
Fe fines exported - Department took the view that such consignments having Fe content of more than 64% was in restricted category as per the FTP 2007-08 and shall be exported only through state trading enterprises viz. MMTC Ltd. - whether confiscation of goods, and imposition of fines and penalties justified? - Held that: - In the light of the Board's Circular No.4/2012-Cus. dt. 17/02/2012, the issue is now stands gone in favour of the appellant. in the circumstances, the appeals filed by the exporters are required to be allowed in toto and we order accordingly. For the same reasons, Department's appeals (C/508, 509/2009) cannot succeed and will have to be dismissed, which we hereby do. The appeal Nos. C/533/2009 and C/534/2009 are allowed with consequential reliefs, if any.
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2016 (12) TMI 640 - CESTAT HYDERABAD
Refund claim - SAD - Held that: - The issue whether for availing benefit of Notification No. 102/2007, the condition 2 (b) of the Notification is mandatory for compliance by a trader came up for analysation before the Larger Bench of the Tribunal in the case of Chowgule and Company Private Ltd., [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] relied by the Ld. Counsel for appellant. The Ld. Counsel has also submitted that the duty element was not declared in the invoice. In the said case the Larger Bench of the Tribunal has held that the said condition is not mandatory in the case of a trader - Following the judgment laid by the Larger Bench in the case M/s Chowgule and Company Private Ltd., I hold that the appellant is eligible for refund. The impugned order for rejecting the refund is allowed - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 639 - CESTAT MUMBAI
Confiscation - DEPB benefit - mis-declaration of description of goods - Held that: - We find that the claim on DEPB appellant has given up the claim hence, we upheld the denial of DEPB claimed by the appellant. Now the issue to be decided whether adjudicating authority is correct in confiscating the goods, imposing penalty and fine. We find that it is admitted fact that the goods were never seized or not released provisionally on the execution of bond and bank guarantee therefore in case when the goods were not seized and released provisionally and the goods are not available then confiscation of such goods is not correct which has been settled in various judgments, in particular, the judgment in case of Shiv Kripa Ispat Pvt Ltd Vs. Commissioner of C. Ex. & Cus, Nashik[2009 (1) TMI 124 - CESTAT MUMBAI] supports the present case. In view of the settled legal position on this issue, we find that adjudicating authority was not suppose to confiscate the goods. As regard the redemption fine, redemption fine is imposed only for redeeming the goods which was under confiscation. The goods are not available, redeeming such goods is out of question, therefore redemption fine of ₹ 7,50,000/- is not sustainable. As regard the penalty of ₹ 5 lacs imposed on the appellant, we find that firstly confiscation is not sustainable. As regard the mis-declaration of the goods the Adjudicating authority itself arrived at the value of ₹ 5 Lacs in respect of export of goods and not FOB value of ₹ 27,89,568/- therefore considering overall facts and correct FOB value of the exports goods, we are of the view that penalty of ₹ 5 lacs is much on higher side which deserves to be reduced. We therefore reduce the penalty from ₹ 5 lakhs to ₹ 1 lakh. Impugned order stands modified to the above extent. Appeal is partly allowed.
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2016 (12) TMI 638 - CESTAT CHENNAI
Confiscation of goods - imposition of redemption fine and penalty - Held that: - When appellants failed even today to repel the argument of Revenue on merit, there is no doubt that certain contributor factors to determine redemption fine and penalty are considerable looking to the spirit of the proviso under section 125(1) of the Customs Act, 1962 and section 112 of the Customs Act, 1962. A higher limit not exceeding the market value of goods less than the duty payable is prescribed as redemption fine in law. Learned Commissioner (Appeals) has not gone to extreme limit. But he has proceeded upto 25% of the assessed value to impose redemption fine. He also found that penalty was rightly imposed - In all cases, import being of restricted goods, levy of penalties is confirmed finding nothing unreasonable looking to the nature of goods, life thereof as well as deliberate import of old and used machines in violation of law.
Appeal disposed off - redemption fine reduced - decided partly in favor of appellant-assessee.
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2016 (12) TMI 637 - CESTAT CHANDIGARH
Imposition of penalty - forged signature of customs officer - Held that: - From the observations made by the Ld. Commissioner (Appeals) in the impugned order, it is evident that the appellant is not connected with preparation of the forged DEPB Scripts and also preparation of the Bills of Entry. Hence in my view, since the involvement of the appellant in the fraudulent activities have not been proved with any tangible evidence, the proceedings initiated against him for imposition of penalty will not be justified. Therefore, penalty imposed in the Adjudication order as well as confirmed in the impugned order is not legal and proper, and as such, the appeal is allowed by setting aside the impugned order - decided in favor of appellant-assessee.
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2016 (12) TMI 636 - CESTAT CHANDIGARH
Classification of imported goods - old and used mainframes - classified under CTH 90099900 as part of photocopier machine or under CTH 90091200 as Electrostatic Photocopying Apparatus? - goods liable for confiscation on the ground that these are old and used mainframes were to be treated as photocopier that all second hand goods except second hand capital goods are restricted for imports as per para 2.17 of the Foreign Trade Policy (2004-2009) and required specific import licence. As the respondent was not having import licence, therefore, the goods were held liable for confiscation - Held that: - we find that the Chartered Engineer has given certificate where it has been pointed with the mainframe of photocopier machine were found to be incomplete set of machine parts, some components i.e. Trolleys, main Mother Boards, Paper Deck, lamp Regulators were not found. Therefore, these are the parts of main frame assembles and the said missing parts are required to complete the photocopier machine. The said report of the Chartered Engineer has not been disputed by Vs. Ltd the adjudicating authority nor in the appeal, therefore, we hold that the Ld. Commissioner (A) has correctly classified the goods in question as part of photocopier machine and under CTH 90099900 - appeal dismissed - decided against Revenue.
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2016 (12) TMI 635 - CESTAT MUMBAI
Revocation of CHA licence - forfeiture of entire amount of security deposit - Appellant has sublet the licence against consideration to various companies - violation of Regulation 12, 13(a), 13(d). 13(e). 13(n), 13(o), 19(8) of CHALR, 2004 - Held that: - in the identical modus operandi of the present case, it was held that this sort of arrangement is not subletting of licence. As regard the Commissioner’s finding with regard to violation of other regulations, we find that, the genesis of entire case is the charge of subletting of the licence. We hold that in the present case there is no case of subletting & CHA Licence therefore violation of all other regulations being consequential would not sustain. Moreover, all the charges except the violation of Regulation 12 of the Regulations were either ‘disproved’ or ‘not proved’ by the enquiry officer. On careful reading of the repot of enquiry officer we are in agreement for holding the various regulations as ‘disproved’ or ‘not proved’. As per our above discussion, we are of the considered view that the department’s case of revocation of licence is not sustainable - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 634 - CESTAT NEW DELHI
Duty drawback - valuation - declared value on higher side to claim higher drawback - opinion of Chartered Engineer relied upon - Held that: - Admittedly the Mechanical Chartered Engineer is not an expert to value the readymade garments. The report of the Chartered Engineer is merely on the basis of eye-estimation and who had not conducted any analysis with regard to raw material used in manufacture of readymade garments and quality and quantity of readymade garments. The mechanical engineer can examine the machinery, but not the readymade garments. Therefore, the learned Commissioner (Appeals) has rightly rejected the value adopted by the Chartered Engineer. - appeal dismissed - decided against Revenue.
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