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Customs - Case Laws
Showing 21 to 40 of 158 Records
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2017 (8) TMI 1376 - CESTAT MUMBAI
Misdeclaration of imported goods - Import of Hazardous waste - Held that: - Appellant could not discard any of the reasons stated above leading any defence - Misdeclaration of the description of the goods resulted in violation of the Foreign Trade Policy, 2009-14 read with the rules made thereunder and Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 - appeal dismissed.
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2017 (8) TMI 1350 - CESTAT KOLKATA
Valuation - imported Polyester Quilt Cover - The department is of the view that fabric used for the quilt cover is nothing but a double bed sheet. So, enhanced duty was demanded - Held that: - Textile Committee has submitted a report on 25.08.2014 wherein it is mentioned that the item in question is 100% polyester woven printed quilt Cover under H.S. 6302.22 - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1342 - ALLAHABAD HIGH COURT
Provisional release of seized goods - Held that: - it is directed that in case the petitioner deposits the impugned demand by way of security other than cash or bank guarantee subject to satisfaction of the authority concerned, the goods so seized may be released forthwith - petition disposed off.
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2017 (8) TMI 1333 - BOMBAY HIGH COURT
Whether the Customs, Excise and Service Tax Appellate Tribunal has no more jurisdiction to entertain an Application for stay of the order impugned before it? - Held that: - Place the Appeal under the caption of “Fresh Admission”.
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2017 (8) TMI 1321 - CESTAT, KOLKATA
Jurisdiction - power of DRI to issue SCN - Held that: - similar issue decided in the case of M/s Doaba Stud & Agriculture Farm, Shri Yadvendra Singh, Partner Versus CC, New Delhi (I&G) [2017 (6) TMI 695 - CESTAT NEW DELHI], where it was held that even the new inserted section 28(11) does not empower either the officers of DRI or the DGCEI to issue the SCN for the period prior to 8.4.11 - appeal allowed by wayof remand.
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2017 (8) TMI 1262 - CESTAT CHENNAI
Valuation - enhancement of value - assessable value based on contemporaneous imports - Held that: - The adjudicating authority has discussed in detail that there was reasonable ground for doubting the transaction value, since the country of origin was not clear from the goods and the documents furnished. Out of the 25 items imported, for 14 items the value has been enhanced on the basis of the value of contemporaneous import furnished by the appellant. But the Department has adopted the highest of such contemporaneous import. This according to the appellant is against the provisions laid in sub Rule (3) of Rule (4) of Customs Valuation Rules, 2007 - sub Rule (3) provides that in applying this Rule, if more than one transaction value of identical goods is found, the lowest of such value shall be used to determine the value of imported goods. This being the law, the enhancement of the value on the basis of the highest of the contemporaneous import is unjustified.
The value enhanced on the basis of the highest contemporaneous import for the 14 items cannot sustain and the same is set aside. However, the same requires to be enhanced on the basis of the lowest value of such contemporaneous import - For such re-computation / re-determination of the value of 14 items on the basis of the lowest value of the compared values, the matter requires to be remanded.
In regard to 11 items, the department has enhanced the value on the basis of NIDB data - Held that: - the NIDB data cannot be made the basis for enhancement of value - enhancement of value to be set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (8) TMI 1261 - CESTAT CHENNAI
Refund claim of ADD - time limitation - denial on the ground that the appellant had not requested for re-assessment of bill of entry - sub section (2) of Section 9A of Customs Tariff Act, 1975 - Held that: - It is very much clear from Rule 9A (2) that in case by final notification, the ADD is reduced, the excess paid is to be refunded - the issue is squarely covered by the decision in the case of CAPRIHANS INDIA LTD. Versus COLLECTOR OF CUSTOMS, BOMBAY [2001 (3) TMI 126 - CEGAT, COURT NO. I, NEW DELHI], where it was held that After the issue of the final notification dated 18-1-1994, the Government had no semblance of right to retain the money belonging to the importer. Government was retaining the importer's money without any legal sanction. When money of the importer was wrongly retained by the Government and was utilising it for its own purpose, the principle underlying quasi contract or restitution must apply - the rejection of refund is unjustified - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1235 - DELHI HIGH COURT
ADD - declining to initiate a Sun Set Review (SSR) - Held that: - Considering that the date of expiry of the ADD in the present case is 29th August 2017, the Court directs the Respondents to initiate the SSR in the Petitioner’s case not later than 29th August, 2017. The SSR notification shall clearly state that the proceedings would be subject to the final outcome of the writ petition.
As regards the question of continuation of the ADD, the Respondents seeks time for instructions. - Matter adjourned.
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2017 (8) TMI 1207 - CESTAT CHENNAI
Refund claim - denial on the ground of time limitation - Benefit of import under DEEC Scheme - import of White Paper Board - Held that: - the appellant had addressed a letter on 19.11.98 to the Assistant commissioner, Customs intimating that since they require the consignment urgently for their product they would be clearing the goods on payment of duty under protest for the same. I find that the said plea of the appellant has not been disputed by the lower authority. If the duty has been paid under protest, there is no vacation of the protest, on adjudication having been done against the assesse. Such protest lodged by the assesse would remain till the disputed issue is settled finally by the higher appellate forums.
I also note that such deposits were made by the appellant even prior to the adjudication, when there was no confirmed demand against them. As such, the same has to be treated to be deposits - Such deposits would be refunded to the assesse on the ultimate success of their case, without attracting any limitation aspect - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1206 - CESTAT NEW DELHI
Classification of goods - Korean Ginseng tablets - assessee classified the goods under CTH 13021914, whereas Revenue entertained a view that the said product cannot be called as vegetable extracts and the same is correctly classifiable under CTH 21069099 as “food preparations not elsewhere specified or included – other than protein and concentrates textured protein substances – other" - whether the goods classified under CTH 13021914 or under CTH 21069099? - Held that: - Tariff item 13021914 specifically mentions extracts of Ginseng (including powder). It is clear that if Ginseng extract is imported in powder form, there could be no question about its classification. However, in the present case, the objection came only because it is in tablet form. Admittedly, vegetable extracts like the present one, can be in various forms, liquid, powder or compacted tablet. As long as the item is only extract of Ginseng plant, there can be no reason for exclusion of such item from the said tariff entry.
Even otherwise, the classification proposed by the Revenue is completely unconnected to the product in question. A perusal of main tariff entry 2106 will show that the said heading deals with food preparations not elsewhere specified or included. A perusal of open source information available in public domain indicates that the said Ginseng extract is considered as traditional medicine, for centuries. Extract is widely used as a generic health supplement and for various other specific requirement like muscle strength, improved concentration etc.
‘Korean Ginseng tablets’ are correctly classifiable under tariff item 13021914 as vegetable extracts of Ginseng (including powder) - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1205 - CESTAT NEW DELHI
Concessional rate of duty - N/N. 12/2012-CUS - classification of imported goods - pure platinum wire, semi-finished platinum wire, platinum – rhodium (10%) wire and platinum/rhodium (13%) wire - classified under CTH 71101900 or otherwise? - Held that: - Admittedly, the product mentioned in the notification as well as the product as imported by the appellant/assessee are to be classified as Platinum under Heading 71101900. The Platinum/Rhodium wire imported by the appellant/assessee has been classified as Platinum (wires) under the Tariff Heading 71101900 and, as such, the exemption claimed by the appellant/assessee is rightly available.
Exemption from Additional Duty of Customs - rejection on the ground that the exemption benefit is available only to Platinum in primary form and will not be available to Platinum alloys - Held that: - the Appellate Authority erred in examining the description of the goods mentioned in column 3 of the entry in the notification. First of all, the description clearly states that Platinum, Palladium, Rhodium etc. in their primary form, that is to say, any unfinished or semi-finished form including, ingots, foils and wires it is very clear that Platinum/ Rhodium wires are eligible for such concession. The notification borrows the language of Heading 71.10 itself and, as such, we find no reason for denial of the exemption.
Exemption from Special Additional Duty - Held that: - Exemption from Special Additional Duty is claimed in terms of Sl. No.77 of Notification 21/2012-CUS. The said entry is granting exemption for goods falling under Chapter 71 (Except 7113) with a description “all goods (other than articles of jewellery)”. Admittedly, the product imported are falling under Chapter 71 and not covered by any exclusion made in the said entry. Accordingly, we find that the exemption claimed by the appellant/assessee is available to them.
Appeal allowed - decided in favor of assessee.
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2017 (8) TMI 1204 - CESTAT NEW DELHI
Imposition of penalty - section 114 of CA - correctness of imposition/non-imposition of penalty - Smuggling - export of Red Sanders - penalty on Shri Ravinder Kumar Gupta, noticee no. 1 - Held that: - the noticee no. 1, Shri Ravinder Kumar Gupta, is not a culprit. He did all the formalities which were required under the law for the export of the Insulators. Hence, the lower authorities has rightly not imposed penalty on him - penalty rightly not levied.
Penalty on Shri A.T. Maideen, noticee no. 2 - Held that: - it appears that he is neither the exporter of the goods nor in any manner connected with the present export consignment. He was an accused in a different case and that too was retracted by him at the earliest available opportunity. His statement was recorded on 27.11.2011 before the DRI Officers where he had disclosed his old business of Red Sanders Wood. Be that as it may. But the fact remains that he is neither the exporter nor any beneficiary. Hence, the lower authority has rightly not imposed any penalty on him - penalty rightly not levied.
Penalty on Shri Sanath Kumar, noticee no. 3 - Held that: - it appears that Shri A.T. Maideen has given his (Shri Sanath Kumar) number to his old business friend. As per the direction of Shri Sanath Kumar, in the past, he used to supply the Red Sanders at the given place. But the fact remains that, Shri Sanath Kumar, who was actively involved in the smuggling of Red Sanders was not involved in the instant case. He too is neither exporter nor active conspirator in the instant case, so the lower authority has rightly not imposed penalty on him - penalty rightly not levied.
Penalty on Shri Suresh Kumar, noticee no. 4 - Held that: - it appears that he was a middleman/agent of the foreign buyer of Red Sanders, who had contacted Shri Ravinder Kumar Gupta, Proprietor of M/s RR Industries - When Shri Ravinder Kumar Gupta asked for the advance payment on phone, then Shri Suresh Kumar agreed for it and entire payment was made through letter of credit (L/C). Shri Suresh Kumar is not traceable. The address given by Shri Suresh Kumar was found fake. When Shri Suresh Kumar is not traceable, then the lower authority has rightly kept the imposition of penalty in abeyance against Shri Suresh Kumar as the same cannot be recovered until he is traced - penalty rightly not imposed.
Penalty on Shri Chander Pal Pathak, noticee no. 5 - Shri Anil Supervisor of M/s Atul Cargo, noticee no. 6 - Shri Babloo, Driver, noticee no. 7 - Shri Munni Yadav @ Kamlesh, Driver, noticee no. 8 - Held that: - it appears that they were involved in the transportation of the containers. Shri Chander Pal Pathak, is the owner of both the trailers which were used for the transportation of the containers from factory to ICD, Tuglakabad, New Delhi - Penalty of ₹ 10,000/- each on Shri Anil Supervisor of M/s Atul Cargo, noticee no. 6; Shri Babloo, Driver, noticee no. 7; and Shri Munni Yadav @ Kamlesh, Driver, noticee no. 8, was rightly imposed by the lower authority for the acts of omission and commission on their part for carrying out the illegal export of the Red Sanders - penalty rightly imposed.
Impugned order upheld in toto - appeal dismissed - decided against Revenue.
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2017 (8) TMI 1152 - KERALA HIGH COURT
Principles of Natural Justice - scope of SCN - whether the non-extension of a further opportunity of hearing to the petitioner, after the time prescribed in the SCN for submitting the reply, would vitiate Ext.P10 order, on the ground of violation of the rules of natural justice? - Held that: - it was the petitioner who sought for a waiver of the SCN, thereby leaving the issue to be decided by the Commissioner of Customs on any legal grounds available, including grounds that were not specifically enumerated in the SCN that was subsequently served on the petitioner. Under such circumstances, the petitioner cannot be heard to contend that the department had confirmed the demand against it, or found against it on grounds which were not specifically put to them, through a SCN - the SCN limited the powers of the adjudicating authority and did not affect any of the rights of the petitioner - the mere non-extension of a subsequent hearing, prior to the passing of Ext.P10 order, cannot be said to have worked to the prejudice of the petitioner - the challenge in the writ petition against Ext.P10 order cannot be legally sustained.
Inasmuch as the petitioner's challenge against Ext.P10 order in this writ petition was premised on the alleged violation of the rules of natural justice, and I have specifically found that there was no violation of the rules of natural justice occasioned while passing Ext.P10 order, the appellate tribunal, while deciding the matter on merits, shall not remand the matter to the Commissioner of Customs solely on the said ground - petition dismissed - decided against petitioner.
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2017 (8) TMI 1151 - CESTAT CHENNAI
Refund claim - payment of extra duty deposit on ex-bond clearances effected during the period 31.01.2001 to 20.07.2012 - time limitation - Held that: - the Hon’ble Madras High Court in the case of CC (Exports), Chennai Vs. Sayonara Exports Pvt. Ltd. [2015 (3) TMI 861 - MADRAS HIGH COURT] has observed that limitation aspect is not applicable in refund of extra duty deposit made pending finalization of provisional assessment and the same are required to be automatically refunded without filing application for refund under Section 27 of the Customs Act, 1962 - the factual position in the case before the Hon’ble Madras High Court is more or less identical to the facts of the present case, thus making the ratio of law declared by the Hon’ble High Court as applicable to the facts of the present case.
Refund rejected also on the ground of unjust enrichment - Held that: - No documents or records stand verified by the lower authorities so as to come to the conclusion of unjust enrichment and only a general observation to the extent that no prudent businessman would continue to pay higher duty without passing the same to the buyer of the goods, stand made by the appellate authority - As such, while allowing the appeal on the point of limitation, I set aside the impugned order and remand the matter to the original adjudicating authority for examination of the principles of unjust enrichment.
Appeal allowed by way of remand.
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2017 (8) TMI 1150 - CESTAT CHENNAI
Penalty on Customs Cargo Service provider and a custodian - Regulations 12 (8) of HCCAR, 2009 - Held that: - the main reliance by the adjudicating authority, for imposition of penalty is the statement of the driver - the statement of the driver of the trailer, which admittedly was not the trailer intercepted by the officer, is the basis for holding against them. It is well settled law that a statement of the co-accused cannot be made the sole basis for penalizing the assessee without there being and independent corroboration from the independent source. The veracity of the said statement has also not been tested by providing x-examination of the deponent - The appellants have also contended that no outsourcing done without the permission of the Commissioner - there is no justifiable reason to impose penalty upon the appellant - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1149 - CESTAT KOLKATA
Jurisdiction - power of DRI 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 - I 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 M/s Mangali Impex Ltd., M/s Pace International And Others Versus Union of India And Others [2016 (5) TMI 225 - DELHI HIGH COURT] - appeal allowed by way of remand.
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2017 (8) TMI 1088 - CESTAT KOLKATA
Jurisdiction - power of DRI to issue SCN - Held that: - the DRI is not a competent authority - I set aside the impugned orders and remand the matter to the original authority to decide the matter keeping in view the decision of Hon’ble Delhi High Court in the case of M/s Mangali Impex Ltd., M/s Pace International And Others Versus Union of India And Others [2016 (5) TMI 225 - DELHI HIGH COURT] - appeal allowed by way of remand.
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2017 (8) TMI 1087 - CESTAT CHENNAI
Jurisdiction - power of DRI to issue SCN - Held that: - the DRI is not a competent authority - I set aside the impugned orders and remand the matter to the original authority to decide the matter keeping in view the decision of Hon’ble Delhi High Court in the case of M/s Mangali Impex Ltd., M/s Pace International And Others Versus Union of India And Others [2016 (5) TMI 225 - DELHI HIGH COURT] - appeal allowed by way of remand.
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2017 (8) TMI 1086 - SC ORDER
Attempt to export Heroin through Courier - Lapse on the part of prosecution to record the information - offence punishable under Section 23(C) and 28 of NDPS Act - Blue Dart Express Office and persons booking the parcel - the decision in the case of DAPHIRA WALLANG Versus INSPECTOR OF CUSTOMS, BANGALORE [2014 (9) TMI 973 - KARNATAKA HIGH COURT] contested, where it was held that The entire proceedings would come to naught, by virtue of the search and seizure conducted being vitiated, as the material gathered at such proceedings form the very basis of the prosecution - Held that: - the decision in the above case upheld - SLP dismissed.
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2017 (8) TMI 1085 - CESTAT KOLKATA
Proceedings initiated by issue of Show Cause cum Demand Notice by the officers of Commissioner of Customs(Prev.) - Held that: - the powers of officers working in this organization to issue notice under Customs Act, 1962 as proper officers has been subject matter of decision by various High Courts - I set aside the impugned order 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.
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