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Customs - Case Laws
Showing 41 to 60 of 158 Records
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2017 (8) TMI 1084 - CESTAT KOLKATA
Import of Contraband item - Smuggling - Red colored wooden logs was found concealed below those sanitary goods - Held that: - It can be concluded that Sri K.A. Durai, noticee number 2 had nothing to say against the charges brought against him by the subject Show Cause Notice. Instead of appearing even after issuance of Show Cause Notice, he preferred to go in hiding to save him from the pecuniary penalty, proposed to be imposed on him by the subject Show Cause Notice. His involvement in the act of illegal export of Red sanders wood was detailed in the Show Cause Notice and he had nothing to reply in respect of the charges brought against him. It proves beyond doubt about involvement of Sri K.A. Durai in the illegal export of red Sanders out of India and penalty, as proposed in the subject Show Cause Notice is imposable on him.
There is no attempt on the part of the appellant to refute the allegations - appeal dismissed - decided against appellant.
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2017 (8) TMI 1083 - CESTAT CHENNAI
Valuation of imported goods - offset printing machine along with standard accessories - enhancement of value - Held that: - customs authorities have rejected the opinion of one expert simply on the basis of opinion by another expert. There is no other sufficient independent reason for such rejection. Such rejection has been held as not valid basis for rejection of Chartered Engineer certificate in the case of Anish Kumar Spinning Mills [2004 (5) TMI 172 - CESTAT, CHENNAI] - reassessment value on the basis of local Chartered Engineer certificate is not valid. Consequently, the declared value backed by the Chartered Engineer certificate from the originator is to be accepted.
Confiscation of goods - penalty - Held that: - Admittedly, the imported goods are more than 10 years old in terms of Import Trade Control Regulations in EXIM 2002-07 read with para 3.3 of the Handbook of Procedures of Vol-I. The importers have violated the provisions of Foreign Trade (Development and Regulation) Act, 1992. The goods are therefore liable for confiscation under Section 111 (d) of the Customs Act, 1962 - the importers are liable for imposition of penalty also under Section 112 (a) ibid - however, the redemption fine reduced to ₹ 60,000/- and the penalty imposed reduced to ₹ 30,000/-.
Appeal allowed - decided partly in favor of appellant.
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2017 (8) TMI 1082 - MADRAS HIGH COURT
Penalty u/s 117 - export of contraband item - The stand of the appellant is that the appellant is a partnership concern and for the fault of the employee, the firm shall not be penalized and the appellant also has no animus and accordingly, sought to contend that the reduced amount of penalty viz., ₹ 1,00,000/- is also beyond the power vested as per the provisions of Section 117 of the Customs Act - Held that: - smuggling was detected and therefore, the goods were confiscated under Section 113 of the Customs Act and penalty is imposed under Section 117 of the Customs Act. The appellant, a partnership firm, cannot plead that they do not have personal knowledge and individual liability cannot be fixed, when the banned drug viz., Ketamine Hydrochloride, to the tune of ₹ 70,00,000/- was found to have been concealed along with onion.
The quantum of the contraband sought to be exported along with onion clearly reveals the animus to export the contraband by way of smuggling and it is a clear violation of Section 117 of the Customs Act. As such, we do not find any error committed by the respondent authorities in imposing the penalty - having regard to the provisions of the Customs Act, the Tribunal has rightly reduced the penalty to ₹ 1,00,000/- - appeal allowed - decided partly in favor of appellant.
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2017 (8) TMI 1032 - CESTAT CHENNAI
Redemption fine - penalty - Confiscation of export goods - misdeclaration - whether the goods exported are Finished Leathers? - Held that: - Section 113 of the Customs Act, 1962 provides for confiscation of goods that are entered for exportation which do not correspond in any material particular with any information furnished by the exporter. Since the finding has been entered that the goods declared as Finished Leathers do not conform to the standards of Finished Leathers , the same are liable for confiscation - however, imposition of both the Redemption Fine and penalty are on the higher side and both are required to be reduced to ₹ 1,00,000/- and ₹ 50,000/- respectively - appeal allowed - decided partly in favor of appellant.
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2017 (8) TMI 1031 - CESTAT CHENNAI
Penalty u/s 117 of CA on CHA - misdeclaration of description of goods - Held that: - During the relevant period (prior to 10.05.2008) the maximum penalty that can be imposed under that Section is ₹ 10,000/- and therefore the penalty imposed in our view is highly excessive.
The appellants have issued a letter requesting for permission to move the container specifically to Raja CFS. The letter head is that of the appellant. The strong contention of the Ld. Counsel for the appellant is that the appellant had no contact with the importer and that the appellant had not filed the Bill of Entry. It is seen that as per facility intimation No. 13/2006 dated 23.08.2006 an application along with letter dated 18.05.2007 was filed for movement of the container to Raja CFS. The appellant being CHA ought to have verified the genuineness before issuing such letter. From the submissions made as well as perusal of records, we do not find grounds for setting aside the penalty in toto. We therefore hold that imposing penalty of ₹ 10,000/- would meet the ends of justice.
Appeal allowed - decided partly in favor of appellant.
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2017 (8) TMI 1030 - MADRAS HIGH COURT
Principles of Constructive resjudicata - Goods not unloaded - The main line operator has instructed the petitioner by telex dated 22.02.1994 to reship the containers back to Singapore as per the instructions of the shippers at Seoul, Korea - demand of duty with penalty - Held that: - the present writ petition is liable to be dismissed on the sole ground of constructive resjudicata. The petitioner had filed the earlier writ petition to set aside the order passed by the Original Authority, the Appellate Authority and the Revisional Authority, which was dismissed by order dated 07.07.2004 - There is a legal presumption that when the petitioner challenges the validity of an order before the Court of law or before the statutory Appellate Authority, it is presumed that all contentions have been canvassed and the Court or the Authority having rejected the challenge a second round of challenge to the same processings is not maintainable.
There cannot be a piecemeal challenge especially when impugned communication is not an order, but it is only an intimation to the petitioner to pay the shortlanding charges based on an order which has attained finality - petition dismissed - decided against petitioner.
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2017 (8) TMI 1029 - DELHI HIGH COURT
Condonation of delay of 470 days in filing appeal - Held that: - the Court is of the opinion that in the peculiar circumstances of the case, the larger interest of justice would be subserved if the appellants’ contentions are accepted - the delay in the filing of appeal to the CESTAT is condoned - appeal allowed.
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2017 (8) TMI 1028 - MADRAS HIGH COURT
Transportation of consignments to various places - freight charges - Whether the respondent/plaintiff is not entitled to recover a sum of ₹ 3,09,689/- paid towards the Customs duty at Nepal Border? - Held that: - Though the Customs duty will be payable at 5% concession rate, it is the duty of transporter to contact the customer at Kathumandu. Except the above no obligation whatsoever imposed on Transport Corporation of India. It is the specific case of the plaintiff that since all the relevant documents were not given by the appellant. The lorries were detained at check post.
The transporter, in order to release the lorries detained for more than 28 days, has no other option except to pay the Customs duty from his own pocket. It is also informed to the defendant that the transporter cannot endlessly wait for the customer to pay the Customs duty. It is the duty of the consignor also. Therefore, merely because some conditions was imposed on the plaintiff in the agreement to contact the customer, it cannot be stated that the amount legally paid by the plaintiff cannot be recovered. D.W.1, in his evidence also admitted that lorries were detained at Nepal and that they have not taken any steps to release the lorries.
In the absence of specific pleading with regard to the amount liable to be adjusted, merely on the basis of some admission in one of the correspondence in Ex.A11 that their engineers also issued certificate, it cannot stated that specific amount has been quantified. In the absence of any specific pleadings in that regard, and also failure to produce any evidence to substantiate the nature of the damages allegedly suffered, the amount with regard to the damages in respect of consignment during transit period, cannot be adjusted, merely on the basis of some surmise.
Appeal dismissed - decided against appellant.
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2017 (8) TMI 1027 - GUJARAT HIGH COURT
Permission to leave India - Smuggling - Gold - Baggage Rules - Held that: - for the purpose of employment, the applicant should be permitted to leave India. He is likely to lose his job - the condition imposed by the Court of learned Additional Chief Metropolitan Magistrate, Ahmedabad, vide order dated 8-8-2015, directing the applicant not to leave the country is hereby suspended for a period of six months. The Customs Authorities are directed to hand over the passport to the applicant at the earliest - decided in favor of applicant.
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2017 (8) TMI 1026 - DELHI HIGH COURT
Interpretation of Statute - Whether in the circumstances of the case the CESTAT’s interpretation of the orders appealed against is correct having regard to their expressed terms? - Held that: - The error which apparently crept in inadvertently in two orders-in-appeal (of the Commissioner) was that even after recording express findings on substantial issue, a mere setting aside of the penalty was recorded. The CESTAT mindlessly endorsed those opinions in the assessee’s appeal.
The CESTAT was constituted precisely for the purposes of lightening the burden of the higher judiciary which existed prior to its composition. It cannot view itself mechanically as a body which has an optional jurisdiction or one which chooses not to go into the substantial issue.
Appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1025 - RAJASTHAN HIGH COURT
Jurisdiction - power of DRI to arrest a person - case of petitioner is that no formal FIR was lodged in this case and without lodging of FIR, the DRI Officers were not competent to either arrest the petitioner or record the statement under Section 67 of the Act and seize the contraband or proceed in any manner - It is further contended that the powers of an investigating officer is similar to that of a police officer and the NDPS Act specifically makes a provision that the provisions of the Code of Criminal Procedure would apply, meaning thereby that a formal FIR is required to be lodged before proceedings in the case.
Held that: - The NDPS Act deals with the two situations, one when the offence is investigated by a police officer and the other when offence is investigated by an officer authorized by the Central Government or State Government in accordance with Section 53 of the Act. The Act further provides that if the matter is investigated by a police officer, the Special Court would take cognizance on submission of a police report but if the matter is investigated by an officer authorized by the Central or State Government, the Special Court would take cognizance upon complaint being filed by such officer. There is no provision whatsoever under the Act directing the officer authorized by the Central or State Government to lodge an FIR, meaning thereby that the officer authorized by the Central or State Government may investigate a matter and after investigation if some case is made out, they can file a complaint straightway before the Special Court. If such complaint discloses commission of offence, the Special Court under Section 36A(1)(d) would take cognizance of the offence.
Reliance placed in the case of Kishin S. Loungani v. Union of India, [2017 (1) TMI 1066 - KERALA HIGH COURT], wherein the Kerala High Court was dealing with a case under the Customs Act. Section 104 of the Customs Act gives power of arrest to an officer of Customs. The Court held that registration of FIR is not necessary before arrest. Similarly Section 42 of the NDPS Act empowers the officers authorized by the Central or State Government to enter, search, seize and arrest without warrant or authorization - In the present case in hand also, the Act empowers the officers authorized by the Central or State Government to search, seize and arrest a person and there is no mandatory requirement that a FIR is required to be lodged before proceeding to search, seize or arrest. That being so, the objection that the DRI Officers could not investigate and arrest without lodging of the FIR do not have any force.
Petition dismissed - decided against petitioner.
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2017 (8) TMI 1024 - SC ORDER
Project import - denial of the benefit of N/N. 6/2002-CE dt.1.3.2002 - import of steam turbine gearbox and spares - the decision in the case of M/s. Purti Sakhar Karkhana Ltd. Versus Commissioner of Customs (Import) , Mumbai-I [2016 (11) TMI 983 - CESTAT MUMBAI] contested, where it was held that we are not convinced with the appellants plea that the turbine is eligible for nil rate of duty under Sl. No. 251 of Notification No. 6/2000, read with Sl. No. 16 of list of the said notification or under N/N. 6/2002, dated 1-3-2002 read with Sl. No. 16 of List 9 - Held that: - the decision in the above case upheld - appeal dismissed.
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2017 (8) TMI 1023 - SC ORDER
To what extent the Kolkata Port Trust (in short ‘KPT’) is entitled to recover demurrage charges from the respondent no. 1/writ petitioner in respect of containers in which poppy seed was imported by the respondent company from Karachi to Kolkata on route to Nepal - the decision in the case of The Board of Trustees, For the Port of Calcutta & Ors. Versus India Trident Maritime (Pvt.) Ltd. & Ors. [2016 (7) TMI 277 - CALCUTTA HIGH COURT] contested, where it was held that Any debit entry made by KPT in ITM’s Marine A/c held with it on account of rent/demurrage charges for the period subsequent to endorsement of bill of lading and/or issuance of delivery order by ITM in favour of the consignee, is not sustainable in law and must be reversed - Held that: - the decision in the above case upheld - appeal dismissed - decided against appellant.
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2017 (8) TMI 985 - CESTAT CHENNAI
Benefit of N/N. 16/2000-Cus dated 01.03.2000 (Sl.No. 158) - Concessional Rate of Duty - The case of the department is that the appellant has imported re-melting Ingots and that these goods falling under 7204.50 is altogether different category of goods - whether the re-melting Ingots classifiable under CTH 7204.50 is eligible for the benefit of concessional rate of duty under N/N. 16/2000-Cus dated 01.03.2000?
Held that: - It is pertinent to mention that the Chapter Heading mentioned in the notification is only 7204 and does not expressly exclude 7204.50. Further, 7204 which is the main heading pertains to Ferrous waste and scrap; re-melting scrap ingots of iron or steel. Thus the main heading 7204 which is mentioned in the notification pertains to re-melting scrap ingots of iron or steel. Though the description of goods in the notification mentions only melting scrap of iron or steel, since the goods fall under the Chapter sub-heading 7204, which takes in re-melting scrap ingots, the appellants are eligible for the benefit of concessional rate of duty in terms of the notification.
The appellants have produced end use certificate issued by the concerned Central Excise officer, which supports this contention that they have complied the condition.
Demand set aside - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 984 - 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 983 - MADRAS HIGH COURT
Refund of SAD - jurisdiction - case of Revenue is that when the Refunds department does not have jurisdiction over the subject refund claim, it does not have any authority/locus standi to take up such a claim for processing - Held that: - When the department finds that the refund claim had been made before the incorrect authority, the proper course and the reasonable approach that should have been adopted is to forward the papers to the proper officer with due intimation to the petitioner. Unfortunately, that was not done in the instant case. Therefore, this Court is inclined to issue appropriate directions - the impugned order is set aside, by directing the petitioner to re present the refund claim dated 30.10.2016, which was returned to the petitioner and received by them on 25.01.2017 to the Assistant/Deputy Commissioner of Customs Chennai VII Air Cargo Commissionerate - petition allowed.
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2017 (8) TMI 982 - PATNA HIGH COURT
Confiscation of cut Betel Nuts - penalty u/s 112(b) of the Act - misdeclaration of description and quantity of goods - concealment of readymmade garments under the consignment of betel nuts - seizure of goods - Natural Justice - Held that: - The language as contained in Section 124 clearly reveals that no order confiscating any goods or imposing any penalty on any person can be made under this Chapter unless the owner of the goods has been given a reasonable opportunity of being heard in the matter. This Court is of the considered opinion that the aforementioned provision is thus mandatory and cannot be bypassed by the authority concerned.
With regard to the contention advanced by the learned counsel for the Customs that the goods were of foreign origin, the findings which have been arrived at by the adjudicatory authority, clearly state that there is no evidence on record to suggest that the consignment in question had been smuggled from Nepal. Thus, in view of such finding arrived at by the authority itself, the second ground urged also fails as the onus to prove the goods to be of foreign origin lay on the Department, which has made such a seizure.
So far as the violation of Sections 46 and 47 of the Act are concerned, as has been alleged against the petitioner, in view of the findings arrived at that there was no evidence that it was of foreign origin, the said provision could be attracted only in the case of goods coming in from a third country. It has been further observed in the impugned order itself that as per Notification No. 9/96-Cus., dated 22-1-1996, issued under Section 11 of the Act, the goods are freely importable on payment of applicable Customs duty after following the procedures prescribed under the Act and, therefore, it having been asserted by the Customs Department that they had no information that the consignment in question had been smuggled from Nepal, there is no scope of invocation of the provisions of Sections 46 and 47 of the Act - confiscation not sustainable.
Petition allowed - decided in favor of petitioner.
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2017 (8) TMI 981 - KARNATAKA HIGH COURT
Misappropriation of reward money - reward to informer - smuggling of gold - contraband item - it was the case of the prosecution that a sum of ₹ 80 lakh in all, which was said to have been disbursed to a fictitious informer No. 1 was actually misappropriated by Accused Nos. 1 to 3 on the basis of forged payment vouchers and gross suppression of facts at various points of time - it is alleged that the accused had thereby committed offences punishable under Sections 409, 467, 471, 477A read with Section 120B and Section 34 of the IPC and under Sections 5(1)(c) & 5(2) of the PC Act, and under Sections 13(1)(c) and 13(2) of the PC Act - Held that: - Though there has been some controversy raised as to the validity of the order of sanction to prosecute the accused, the counsel for the appellants have not dwelt on the same with any great emphasis and hence the issue is ignored.
This significant circumstance that the original DRI-1 was never a part of the record would weigh heavily against the prosecution. For the reason, that the crux of the case of the prosecution is of destruction, falsification and substitution of the original DRI-1, with a concocted document, by the accused. It is significant to note that PW-13 confirms in para 8 of his deposition that Exhibit P-40 and D-1 are all the same. This has also been accepted by PW-48 the Investigating Officer in para 18 of his deposition by stating “It is true that the document Ex.P.40, Ex.D.1 and Ex.D2(a) and Ex.P.51(h-1) are Photostat copies of same document.” It would be relevant that PW-13 had also confirmed in his cross-examination that it was pursuant to Exhibit P-40 that the proposal for Advance Reward and Final Reward had been based.
It cannot be lost sight of and would gain importance and significance that Exhibit P-40 was received by PW-13 on 12-4-1988 and further handed over to PW-15 on 13-4-1988 and entered into the Inward Register as per Exhibit P-40(e) on 20-4-1988. Consequently, the destruction of or falsification of DRI-1 is not established. By production of Ex.P.40 and Exhibit D-1 and by deposition of PW-13, PW-15 and PW-48 the document Exhibit P-40 as being the only DRI-1 stands established.
It is also to be noticed that from a plain examination of the document, it is physically impossible to tamper with the document. It is typed on a manual typewriter. And it is not possible to add a letter or substitute a word subsequently, to obtain a perfect alignment without distorting the spacing between the typed words to make alterations. Or rather to effect changes in such a manner to change the tenor of the document to read as if it was with reference to a plurality of informers, rather than the alleged original text, which according to PW-10 and PW-11, was with reference to a single informer. According to them the letter “s” was added to the word “informer” and the words “they” and “were”, were inserted in the place of the words “he “ and “was”. This was not possible. It is significant that this document was not examined by any handwriting expert nor was it sent for any forensic examination - If the Minutes of the Advance Reward Committee could not be found fault with, the subsequent meeting of the Final Reward Committee and the release of the final reward also cannot be faulted.
In so far as the evidence of the finger print expert (PW-24) is concerned, the following particulars emerge from the evidence. The investigating officer (PW-48) had referred the thumb impressions of the informers taken on the information slip (Exhibit-21) at the time of recording of the information, as well as their thumb impressions taken at the time of disbursement of the advance reward and the final reward to them.
It is an admitted fact that the identity of the informers is completely concealed. This is indeed confirmed by the several witnesses for the prosecution itself (PW-33, PW-34 & PW-46). The identity of the informer being known only to Accused No. 3 is hence not an unusual circumstance - the conspiracy as between the accused in the disbursement of the reward amount to a fictitious informer, cannot be said to have been established on the basis of the evidence on record. There is also no incriminating material to indicate that any part of such ill-gotten wealth had found its way to the hands of the accused - the charges against the accused are not established.
Appeal allowed - decided in favor of appellant.
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2017 (8) TMI 980 - CESTAT AHMEDABAD
Refund of SAD - N/N. 102/2007-Cus dated 14.09.2007 - denial on the ground that the invoices have been raised prior to issuance of out of charge order issued by the customs authorities - Held that: - the authorities below had acknowledged that the appellant had fulfilled all the conditions laid down under N/N. 102/2007-Cus dated 14.09.2007, therefore, denial of refund only on the ground that the sales invoices was raised prior to out of charge, is contrary to the principle of law laid down by this Tribunal in the case of Radius Infotech vs. Commissioner of Customs, New Delhi [2016 (3) TMI 189 - CESTAT NEW DELHI], where the refund was allowed by holding that the appellant submitted delivery challan and the other evidence along with the terms of agreement to establish that the issue of invoice 5 days before the release of the goods by the Customs by itself does not prove that the goods have been sold and delivered to the buyers - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 979 - CESTAT ALLAHABAD
Classification of ‘LCD Panels for CTV - classified under CTH 9013 80 10 or under CTH 8529 90 90 - Held that: - this Tribunal in the case of appellant have decided the classification of impugned LCD Panels to be under Tariff Item No.9013 80 10 of Customs Tariff Act, 1975 - appeal allowed - decided in favor of appellant.
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