|
Advanced Search Options
Customs - Case Laws
Showing 141 to 158 of 158 Records
-
2017 (8) TMI 145 - CESTAT AHMEDABAD
Conversion of shipping bills - free Shipping Bills to DEPB Shipping Bills - case of appellant is that conversion of free shipping bills into DEPB Shipping Bills cannot be denied to them as on the basis of same set of export documents the request was made as per Section 149 of the Customs Act,1962 - Revenue's contention on the other hand is that it is difficult to correlate the items exported with the imported items as there was no physical examination of the goods, hence, the conversion of free shipping bills into DEPB shipping bills cannot be accepted - interpretation of statute.
Held that: - the principle relating to allowing conversion of free shipping bill into DEPB ,DFRC etc. shipping bill and from one promotion scheme to another promotion scheme has been laid down by the Hon ble Delhi High Court in the case of Terra Films Pvt. Ltd. v. C.C. [2011 (4) TMI 13 - DELHI HIGH COURT]. Their Lordships after considering the Board s Circular No.4/2004 dated 16.1.2004, observed that amendment of the shipping bill after the goods have been exported, cannot be considered as mere amendment, when the request is for conversion of free shipping bills into DEPB or for conversion of shipping bills from one export scheme to another.
In the present case are that the appellant had applied for conversion of free shipping bills into DEPB Shipping Bills four to five years after export i.e. on 1.12.2003. Also, at the time of clearance of the goods it was specifically not disclosed in the free shipping bills nor in the ARE-1 export document by declaring thereunder specifically their intention to claim any of the export benefit i.e. benefit under DEPB scheme, therefore, the consignment was not opened for physical examination by the Customs and the export was allowed. Hence, it is difficult to appreciate the argument of the appellant that it was a question of mere amendment to the shipping bills, which is contrary to the Circular No.4/2004 dated 16.1.2004 issued by the Board and was in force during the relevant time.
The request for conversion of free shipping bills to DEPB Scheme cannot be considered, as the said scheme is strictly on actual user basis exemption and no transferability is allowed pre or post export. Hence, strict interpretation need to be applied - appeal dismissed - decided against appellant.
-
2017 (8) TMI 144 - CESTAT MUMBAI
Confiscation - rejection of assessable value - Toyota Land Cruiser Prado - misdeclaration of offended car - smuggling - Appellant's submission is that there can neither be seizure nor confiscation since the car has already been released. Neither the first buyer nor the subsequent buyers were involved in the import alleged to be made in violation of law - Held that: - It is admitted fact on record that there was deliberate mis-declaration of year of manufacture as well as chassis number. It is also admitted fact that there was an attempt to get higher rate of depreciation on the imported car under the Transfer of Residence (TR) Rules, 2002 . When the appellants could not come out with clean hands to discard the allegations as well as purchased the offending car imported without any inquiry into the law applicable to such import, they cannot be said to be stranger to the deal. Car imported unlawfully contravening provisions of Customs Act, 1962 become smuggled goods as defined by Section 2(39) thereof.
The fraudulent mis-declaration and active as well as conscious involvement not being appreciated, the parties therein got relief. But, in the present case, it is the case of deliberate mis-declaration and commitment of fraud against Customs abusing the benefit of the Transfer of Residence (TR) Rules, 2002 , there shall be no escape from the penal consequence of law by these appellants.
Appeal dismissed - decided against appellant.
-
2017 (8) TMI 143 - CESTAT CHENNAI
Classification of goods - Discreet Lustre Master Station, consisting of computer system, storage devices, PCB cards - whether the lower appellate authority's order upholding of classification of Discreet Lustre Master Station imported by the appellant under CTH, 85438960 is correct or whether the goods are required to be classified under CTH, 87413090 as claimed by appellant?
Held that: - in the case of a machine involving a combination of machines or a combination of individual components which together perform a clearly defined function, then the whole machine will require to be classified in the heading appropriate to that function - the item under import is designed for a specific functionality relating to grading of digital intermediates in digital cinema. The features of this system include primary and selective colour correction, continual grading and grade editor, vector shapes and tracking effects, animation, playback, video capabilities - pan and scan, conforming and editing - As correctly observed by the lower appellate authority, M/s. Autodesk had specifically designed the generic panel device for the above purposes, Similarly DVS Centaurus audio video devices were designed to perform a specific function which a normal data processing machine would not contain. Hence the impugned goods will necessarily go out of the scope of CTH 84713090.
Though the imported goods may well have a high performance IBM CPU (server) with advanced key boards and although the equipment may have many of the elements of an automotive data processing machine, nonetheless, they are specifically designed to perform a specific function other than data processing, namely, that of performing high end task of colour gradation/correction. Hence the classification of the goods will then be governed by Section notes 3 & 4 of the first Schedule to CTA read with Chapter Note 5E of Chapter 84, and the imported goods will then have to be considered as a machine intended to contribute together to a clearly defined function covered by heading 85438960 as a colour corrector.
Classification of the impugned goods under CTH 85438960 having the primary function of colour corrector upheld - appeal dismissed - decided against appellant.
-
2017 (8) TMI 142 - CESTAT KOLKATA
Mis-declaration of goods - import of of CDRs by misdeclaring as DVDRs - it was alleged that the goods were mis-declared to avoid payment of Anti Dumping Duty - Section 111 of the Customs Act - Held that: - On plain reading of Section 111 (m), it is clear that any imported goods which do not correspond to any particular Bill of Entry shall be liable for confiscation. In the present case, undisputedly, there is mis-declaration of goods with the Bill of Entry and therefore, the confiscation would be followed.
There are twin Sections, Section 112 and Section 114, to impose penalty for improper import of goods and penalty for attempt to export goods improperly, respectively. Apart from that, Section 114 AA would be invoked in a situation where a person knowingly had given a false declaration. The expression where no express penalty is elsewhere provided for "such contravention", in Section 117 makes it clear that it is a penalty of residuary nature - In the present case, the facts narrated in the Show-cause notice would show that M/s Santosh Radio Products and its Partner Shri Kishan Kumar Kejriwal had knowingly made incorrect declaration, which is covered under Section 114 (AA) of the Act.
Penalty on M/s Santosh Sales Pvt. Ltd. and its Managing Director u/s 117 - Held that: - the imposition of penalty on the person for merely purchasing and selling of the goods, is excessive. And therefore, the penalty imposed on them is unjustified.
Appeal allowed - decided partly in favor of appellant.
-
2017 (8) TMI 93 - SC ORDER
Refund of SAD - N/N. 102/2007Cus dated 14.09.2007 - denial on the ground that the assessee has not paid the VAT on the imported goods i.e. coils and what is sold subsequently by the assessee and on which VAT is paid is altogether different goods i.e. roof - decision in the case of PROFLEX SYSTEMS Versus COMMISSIONER OF CUSTOMS [2017 (3) TMI 216 - GUJARAT HIGH COURT] contested, where it was held that it cannot be said that what is sold by the appellant to his client is same goods which is imported i.e. coil sheets. Under the circumstances and one of the condition of N/N. 102/2007Cus dated 14.09.2007 has not been complied with - Held that: - the decision in the above case upheld - SLP dismissed.
-
2017 (8) TMI 92 - CALCUTTA HIGH COURT
Duty Drawback claim - supplementary claim - The petitioner had exported prime mild steel concast billets by two separate shipping bills bearing nos. 5318141 and 5318142 both dated July 12, 2006. The dispute is in respect of shipping bill no. 5318141. The petitioner being entitled to a duty drawback of ₹ 36,10,796/- in respect of the disputed bill had lodged its claim. The same has been denied at the revisional stage - Held that: - the claim for two duty drawbacks were lodged in respect of shipping bills of the same date. The claims were adjudicated upon electronically. It is an admitted fact that, apart from the data being available electronically, the department did not serve any notice or any information to the petitioners in hard form. The respondents have also failed to substantiate that the petitioners had access to the electronic data at that material point of time and, therefore, were aware of the queries made - The petitioners, however, lodged a supplementary claim immediately upon coming to know of the decision of the authorities to scroll the subject shipping bill as zero drawback and sent it to history. Such conduct also establishes that, the authorities have not adjudicated upon the merits of the claim for duty drawback.
The authorities are requested to adjudicate upon the claim for duty drawback - Appeal allowed by way of remand.
-
2017 (8) TMI 91 - CESTAT AHMEDABAD
Refund claim - excess amount of cess paid - communication of finalisation of assessment - Held that: - no communication about finalization of assessment of the 20 Bills of Entry had been sent to the appellants. Therefore, the plea of the Revenue that refund cannot be sanctioned to the appellant as they have not challenged the said 20 finally assessed Bills of Entry, is not sustainable.
Even though the adjudicating authority has recorded a finding on the issue of unjust enrichment, which though specifically assailed by the appellants before the ld. Commissioner (Appeals), however, the ld. Commissioner (Appeals) has not dealt the said issue in the impugned order. Therefore, on the issue relating to unjust enrichment both sides fairly agree that the said issue needs to be remanded to the ld. Commissioner (Appeals).
Appeal allowed by way of remand.
-
2017 (8) TMI 90 - CESTAT CHENNAI
Penalty - whether when the SCN dt. 17.3.2003 had asked the appellant to show cause why penalty should not be imposed only under Section 114A of the Act, whether the adjudicating authority can impose penalty under Section 112 instead? - Held that: - the scope and extent of the two Sections 112 and 114A are different and penalties provided therein are imposed in different situations and reasons. Surely then, penalty proposed under Section 114A in the notice cannot be imposed under Section 112 in the adjudication order. Section 112 and Section 114A are certainly not interchangeable legal provisions nor are they statutory synonyms - decision of the Hon'ble High Court Delhi in CC (Import & General) Vs Care Foundation [2014 (3) TMI 641 - DELHI HIGH COURT], relied upon, where it was unequivocally held that if Section 112 of the Customs Act is not invoked, penalty should not be imposed under it on the ground that it could have been imposed. In the event, we find that penalty imposed under Section 112 on the appellant in the impugned order is not supported by any show cause notice thereat and hence will have to be set aside, which we hereby do.
There is an allegation in the SCN that the appellant had connived with Kunal Overseas in obtaining duty free licence in the name of Kunal Overseas and after taking possessionof the goods were instrumental in illegal diversion and sale in the local market for monetary gain - there is no legal sanction for such adjustment and appropriation of monies deposited by one person towards liability of another. It is not even the case that appellants have given No Objection Certificate or a carte blanche of any sort to the department to go ahead with such adjustment / appropriation. This being so, the impugned adjustment / appropriation is unsustainable in law.
The order of the adjudicating authority for adjustment of ₹ 28,00,000/- (Rupees twenty eight lakhs only) towards penalty imposed on another person will require to be set aside, which we hereby do - appeal allowed - decided in favor of appellant.
-
2017 (8) TMI 89 - CESTAT HYDERABAD
Exemption under N/N. 04/2006-CE dt. 01/03/2006 / Circular No.332/1/2012 dt. 17/02/2012 - import of Manganese ore falling under CTH 2602 of the Customs Tariff Act - Customs authorities took a view that the goods imported are not ore but concentrate and hence will not be eligible for the said notifications - whether the goods which are imported by all the appellants are to be classified as Manganese ore or Manganese concentrate? - Held that: - on specific query from the Bench, as to whether any samples were drawn by the customs authorities to test the same at CRCL or customs laboratories, both sides categorically stated that no samples were drawn and no analysis was done on the imported goods. In absence of any acceptable evidence that the imported goods were not ore but concentrate, we find that the lower authorities have not shifted the burden of proof on to the appellants. It is the claim of importers/appellants herein that they have imported ore and it is the case of the Revenue that the imported ore is nothing but concentrate, in order to classify the product under concentrate, it is expected out of the Revenue authorities to adduce some evidence that the said products were concentrate merely relying on the interpretation of HSN explanatory notes will not suffice to shift the burden of proof on to importer appellants. In the absence of any such evidence, we have to hold that the Revenues case fails.
Concentrate term will apply to ore which have had part or all of the foreign matter removed by special treatments. In all these cases in hand, Revenue has not able to bring on record or state categorically that the Manganese ore which is imported by these appellants has undergone special treatmentsto hold the goods as concentrate. In the absence of anything to indicate that the goods which are imported were in fact put through special treatments, Revenue cannot take their case any further.
The impugned orders are set aside and the appeals are allowed holding that the goods imported by the appellants are nothing but Manganese oreand eligible for exemption of CVD under relevant notification - appeal allowed - decided in favor of appellant.
-
2017 (8) TMI 57 - ALLAHABAD HIGH COURT
Reimbursement of Central Sales Tax (CST) - Validity of Circular dated 14.01.2015 issued by the respondent no.3 Director, Software Technology Parks of India, Department of Electronics and Information Technology, Ministry of Communication and Information Technology, Government of India - reimbursements on goods purchased from EOUs or from Special Economic Zone - authority to process the claim - Held that: - It is only in respect of the benefit of deemed exports and export duty drawback that Clause (a) stipulates for the supplies from DTA but no such stipulation is contained in Clause (a) for conferring the benefit of reimbursement of CST - The Circular dated 14.04.2015 has been issued by the Director, STPI, Department of Electronics and Information Technology, Ministry of Communication and Information Technology, Government of India, whereas the FTP, which contains paragraph 6.11 is statutory policy under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 formulated and issued by the Ministry of Commerce and Industry, Government of India. Therefore, the provisions and the benefits conferred therein cannot be taken away by any subordinate authority or legislation.
The petitioner is an EOU, who is purchasing goods as a raw material from another EOU or similar units other than DTA and therefore is entitled to reimbursement of CST in terms of paragraph 6.11(c)(i) of the FTP, 2009-14 and the respondents are not legally justified in withholding the same for the reason that the petitioner has not purchased raw material from DTA on the basis of the Circular dated 14.01.2015, which is not only in conflict with the provisions of the FTP but is illegal otherwise also which cannot override the FTP.
Authority responsible for the reimbursement of CST to the petitioner - Held that: - The Hand Book of the Procedures under the FTP clearly lays down that the claims for reimbursement of CST shall be presented inter alia to the designated officer of the STP and that the disbursing authority of such claimed amount will inter alia be the designated officer of the STP, who will make payment to the units claiming reimbursement - the liability is squarely cast upon the designated officer of the STPI to receive application for reimbursement and to make payment thereof if necessary.
Circular No. STPN /CST /2015 dated 14.01.2015 illegal and issues a writ of mandamus directing the respondent no.1 to process reimbursement claim of CST of the petitioner in respect of goods purchased by it from non-DTA and to make payment thereof to the petitioner in terms of paragraph 6.11(c)(i) forthwith - petition allowed - decided in favor of petitioner.
-
2017 (8) TMI 56 - CESTAT KOLKATA
Jurisdiction - power to issue SCN by the officers of DRI/SIB/Commissioner of Customs(Prev.). - Held that: - the powers of officers working in these organizations to issue notice under Customs Act, 1962 as proper officers has been subject matter of decision by various High Courts - we set aside the impugned orders and remand the matter to the original authority to decide the question of jurisdiction first and thereafter on merit after the matter is settled by the Hon’ble Supreme Court in the pending appeals by the Revenue against the decision of Hon’ble Delhi High Court in the case of Mangali Impex Vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT] - appeal allowed by way of remand.
-
2017 (8) TMI 55 - CESTAT HYDERABAD
Confiscation - penalty - import of Fishing Trawlers - benefit of N/N. 21/2002-Cus. dt.1.3.2002 as amended - whether the disputed goods are in the nature of ship stores or otherwise and in consequence, whether customs duty is required to be paid on the same? - Held that: - There can also be no dispute that once the fishing trawler complete its shore modalities and goes to the high seas for their intended fishing operations, they will have to be treated as foreign going vessel in terms of Section 2 (21) of the Customs Act, 1962 reproduced in para 4.6 above. Even the CBEC Customs Manual of Instructions, in Chapter 2, Para-15 thereof clarifies that consumables can remain on board without payment of duty - CBEC vide circular No.89/88/CX.6 dt. 30.12.1988 has further clarified that stores for consumption on board a vessel would cover stores, both consumable and non-consumable, meant for use in a ship.
There is no proof or allegation whatsoever that impugned ship bait and other consumables were not used for high seas fishing operations or that they were illicitly removed into the DTA. Especially, when these trawlers themselves have been subject to ‘Nil’ rate of duty and it is not in dispute that they have come to Indian Customs Waters only for the purpose of completing import formalities and also registering them as fishing vessels, only to go back to high seas for deep sea fishing for export, insistence of payment of duty on the ship stores is definitely not in sync with the provisions for foreign going vessels and certainly run counter to the avowed intent of the government to promote exports.
Appeal dismissed - decided against appellant.
-
2017 (8) TMI 54 - CESTAT KOLKATA
Penalty - smuggling - poultry vaccines - Held that: - I do not find any material regarding the involvement in the alleged offence. It is well settled that the imposition of penalty would be warranted on the materials available on record against the accused.
Regarding the appeal filed by Dr Amrit Jyoti Mudoi, I find from the impugned order that the DRI Officers recovered two exercise books used by Dr. Amrit Jyoti Mudoi in which all the transactions related to receipt of smuggled vaccines from Shri Sudhir Kumar Mahajan and the payment made to him were recorded - I am unable to accept the submission of the Ld. Counsel of Dr. Amrit Jyoti Mudoi for the reason that they are not claiming the Indian Currency. In any event, the evidence on record would show the involvement of Dr. Amrit Jyoti Mudoi in the alleged offence.
Appeal dismissed - decided against appellant.
-
2017 (8) TMI 53 - CESTAT NEW DELHI
DEPB benefit - export of 100% polyester fabrics - Revenue entertained a view that these goods which were exported were substantially over valued in order to avail inadmissible benefit under DEPB scheme - Held that: - the legal provision regarding the demand of duty from the person who is the beneficiary of the instrument issued by the authorities under Foreign Trade (Development and Regulation) Act, 1992 has been introduced only w.e.f. 28.05.2012, as Section 28AAA in the Customs Act, 1962. Introduction of such provision in the substantive law itself makes it clear that there is no legal sanction prior to that date to hold the person to whom, the instrument was issued as a person liable to Customs duty.
It is necessary for the officer adjudicating the customs duty liability, to identify the importer/ person who is liable to such duty in terms of the provisions of Customs Act, 1962. The present order in so far as it relates to confirmation of Customs duty jointly and severally on more than one person is accordingly, not legally sustainable.
The rejection of FOB value originally assessed by the officers and comparing the value of different exporters to determine the FOB value of the main appellant - Held that: - Since we find that the original authority has not properly arrived at, the identity of the person from whom, duty demand can be confirmed and ordered recovery of such duty jointly and severally, we set aside the impugned order and remand the matter back to the original authority to first examine this legal issue to fix the liability, if any, on the identified persons specifically.
The cross examination sought for by the appellants have not been accepted by the original authority on the ground that the same is not a fundamental right. We note that it is a well settled legal principle that the cross examination of witnesses whose statements are admitted as evidence has to be considered in terms of section 138B of the Customs Act. The said provisions are identical to the provisions of Section 9D of the Central Excise Act, 1944 - this aspect requires re-examination.
Penalties - Held that: - no act or omission on the part of the custodian has been brought out in the impugned warranting penalties either under Customs Act or Regulation of 2009. As such these two appeals by The That Dry Port are allowed.
Appeal allowed in part and part matter on remand.
-
2017 (8) TMI 12 - DELHI HIGH COURT
Refund claim - excess payment of CVD - principles of unjust enrichment - whether the claim of the Petitioner that it had not passed on the incidence of CVD in respect of the above B/Es for 27th March, 2015 to 31st March, 2015 to the customer was supported by proper documentation? - Held that: - there was no reason whatsoever for Respondent No. 4 not to accept the very same documents in respect of the imports between 27th March, 2015 and 31st March, 2015. The certificate of the CA is categorical that the incidence of CVD, even in respect of these imports, had not been passed on to the customers. Consequently, there was no valid justification for Respondent No. 4 to have denied the refund claim.
Given the history of the case where the Petitioner has to approach this Court again for relief, the stand taken by the Respondents regarding the maintainability of the present petition deserves to be rejected. Respondent No. 4 appears to be unwilling to accept the legal position explained by this Court repeatedly in several decisions and is persisting with rejection of the refund claims of the Petitioner on specious grounds.
The Respondent is directed to allow the Petitioner’s refund in respect of the claims made for the imports for the period 27th March, 2015 to 31st March, 2015 - petition allowed - decided in favor of petitioner.
-
2017 (8) TMI 11 - CESTAT CHANDIGARH
Entitlement of interest - delayed refund - Circular No. 6/2008-Cus dated 28.04.2008 - Held that: - reliance placed upon the decision of Hon'ble Madras High Court in the case of KSJ Metal Impex (P) Limited vs. Under Secretary (Cus.), M.F. (DR) [2013 (6) TMI 148 - MADRAS HIGH COURT] to say that the said Circular has been considered by the Hon'ble High Court and the Hon'ble High Court quashed Para 4.3 of the said Circular relied upon by the ld. AR and held that the assessee is entitled for interest on belated refunds - appellants are entitled to claim interest of delayed refund, after three months from the date of filing of the refund claims - appeal allowed - decided in favor of appellant.
-
2017 (8) TMI 10 - CESTAT KOLKATA
Jurisdiction - power of officers of DRI/SIB/Commissioner of Customs(Prev.) to issue SCN - Held that: - the powers of officers working in these organizations to issue notice under Customs Act, 1962 as proper officers has been subject matter of decision by various High Courts - we set aside the impugned orders and remand the matter to the original authority to decide the question of jurisdiction first and thereafter on merit after the matter is settled by the Hon’ble Supreme Court in the pending appeals by the Revenue against the decision of Hon’ble Delhi High Court in the case of Mangali Impex Vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT] - appeal allowed by way of remand.
-
2017 (8) TMI 9 - CESTAT BANGALORE
Condonation of delay in filing appeal - natural justice - Held that: - the impugned order was passed on 31.12.2013 and the copy of the same was received by the concerned employee of the company, but no process was initiated thereafter in filing the appeal by the applicant. The reason given by the applicant for filing the appeal after such an inordinate delay is that the employee did not bring it to the notice of the management. This reason is not justified in law for condoning such an inordinate delay - delay not condoned - appeal dismissed - decided against Appellant.
....
|
