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Customs - Case Laws
Showing 101 to 120 of 2047 Records
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2017 (12) TMI 458 - CESTAT HYDERABAD
Classification of goods - micronutrients - Department has a taken a view that the goods merit classification under CETH 38.08 as Plant Growth Regulator, whereas the respondents claim classification as other fertilizers under CETH 31.05 - Held that: - the issue has already been settled in the case of CCE & ST, Hyderabad-IV Versus M/s Aries Agrovet Industries Ltd [2017 (7) TMI 289 - CESTAT HYDERABAD], where it was held that In view of presence of nitrogen, and also considering that they are mixtures and not separate chemically defined compounds, the said goods would therefore come under the ambit of micronutrient fertilisers and will then required to be classified as in other fertilisers in CETH 31.05.
Micronutrients will be classified under CETH 31.05 as other fertilizers - appeal dismissed - decided against Revenue.
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2017 (12) TMI 457 - CESTAT NEW DELHI
Penalty - smuggling of Ketamine concealing into the tobacco packet - Held that: - it is crystal clear that it is a case of the drugs export, Ketamine which is injurious to the health. It is subject matter of the Narcotics and Drugs Act. The main offender, as usual, absconded so the appellant cannot escape from his liability especially when he has confessed that he knows the CFA exporter and the item to be exported. The Commissioner (Appeals) has already taken a lenient view and reduced the penalty substantially. There is no further scope to reduce the same - appeal dismissed - decided against appellant.
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2017 (12) TMI 456 - CESTAT NEW DELHI
Valuation - Assessing Authorities entertained a view that the goods are not valued correctly and accordingly, proceeded to re-determine the value in terms of Customs Valuation Rules, 2007 - Held that: - Admittedly, the value declared by the appellant was rejected and enhanced to US$10 per piece on the sole ground that there were certain imports of similar goods with this value. Neither the basis of NIDB data with full description and specifications of comparable goods were made available to the appellant nor the NIDB data was examined in full for the relevant period. Admittedly, against certain selected entries the data were taken by the Original Authority and summarily applied for enhancement of value - there is no legal justification in such fixation of assessable value. It is also not clear whether the NIDB value referred to by the Original Authority itself is a re-assessed value - appeal allowed by way of remand.
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2017 (12) TMI 405 - GUJARAT HIGH COURT
Valuation of imported goods - glass beads of a particular kind called 'Chaton' - Department demanded higher import price - Held that: - Since the issue is a recurring one and one which requires early and pragmatic resolution so that the neither the petitioner is unduly harmed nor the interest of the Revenue is prejudiced, in view of the facts noted above, it would be in interest of both the sides, that CESTAT before which said Tax Appeal No. 11645/2016 is pending concerning this particular issue, takes up the matter on priority consideration and disposes of expeditiously - petition disposed off.
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2017 (12) TMI 404 - MADRAS HIGH COURT
Import of second hand photocopiers during 2004 and 2005 - whether the Commissioner (Appeals) and Appellate Tribunal are correct in holding that the second-hand photocopiers imported and meant for service sector are "Capital goods" free importable and not "Consumer goods? - Held that: - reliance placed in the case of Atul Commodities Pvt. Ltd. & Ors. Versus Commissioner of Customs, Cochin-9 [2009 (2) TMI 18 - SUPREME COURT], where it was held that Used Photocopier Machines are capital goods, hence, import of old & used photocopying machines stands covered by the concept of “second-hand capital goods” - appeal dismissed - decided against Revenue.
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2017 (12) TMI 403 - CESTAT CHANDIGARH
Mis-declaration of imported goods - undervaluation - palm acid oil, palm fatty acid distillate and palm stearin - whether there was any misdeclaration of the description of imported goods? - Held that: - there was a cross-examination of the Chemical Examiner as well as the Joint Director. The samples of the goods were also got tested by the Revenue from Sri Ram Institute for Industrial Research, New Delhi. We find that the ld. Commissioner has correctly analysed the findings in the test report who carried the examination - With regard to the reasoning given by the ld. Commissioner that experts of CRCL has not conclusively stated whether the samples of the goods were residue and why these were not Mixed Oil. In view of the above analysis, the charge of misdeclaration against the importers is not sustainable.
Valuation - Held that: - there is no direct evidence indicating that the price reflected on the invoice is not the correct transaction value, we do not find any justifiable reasons to uphold the charge of the Revenue.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 402 - CESTAT CHANDIGARH
N/N. 21/2002-Cus dated 01.03.2002 - principle of estoppel - export of aircrafts without filing any shipping bill at the port of export - illegal import of aircrafts - Department has alleged that the export of aircrafts was in contravention of Section 50 of the Customs Act, 1962 and, that their import being fresh import, the appellant violated Section 46(1) of the Customs Act, 1962 - whether after initial assessment and clearance, the subsequent taking out of the two aircrafts, out of India and bringing them back into India would amount to export and import respectively under Customs Act, 1962?
Held that: - the aircrafts are not liable to confiscation under Section 111 or Section 113 of the Customs Act and also not liable to pay import duty as and when they are brought back into India after making trips abroad and duty cannot be demanded on these aircrafts.
Considering the fact that the Department itself has dropped similar proceedings in relation to five other aircrafts, which were imported initially and subsequently gone out of India under sale and purchase agreements and came back under the lease agreement, we hold that the order of ld. Commissioner is not sustainable and the same is set aside - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 401 - CESTAT KOLKATA
Smuggling - betel nuts - the goods found on the trucks were of foreign origin, in the light of the prevailing trend of smuggling of betel nuts of foreign origin and in view of the fact that there was no supporting documents letter,invoice, challans import documents etc, the goods were confiscated - Held that: - There is absolutely nothing on record to even remotely suggest that such goods are of foreign origin. Betel nuts is also not a commodity notified under Section 123 of the Customs Act, 1962 and hence, the onus is on the Department to prove that the goods are of foreign origin and smuggled in India. Further, there is no export or trade information from any knowledgeable person to indicate that the category or quality of the seized betel nuts are not found in India.
Local movement of Betel Nuts and violation of any local laws regarding custody and movements of such goods cannot be made the basis for confiscation under Customs Act, 1962.
Reliance placed in the case of Muruli Sandik, Jay Jayram Yadav, Jagarnath Yadav Versus Commissioner of Customs (Preventive) , Shillong [2016 (9) TMI 275 - CESTAT KOLKATA].
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 400 - CESTAT HYDERABAD
Whether the confiscation of the waste paper by the lower authorities is correct or otherwise and whether penalties imposed on the main appellant as well as on the individuals needs to be upheld or otherwise?
Held that: - it is undisputed that the consignment of waste paper imported by the appellant did contain materials which was identified as of municipal waste. The said municipal waste was seggregated on the direction of Pollution Control Board is undisputed and the percentage of municipal waste in these consignments was 2.71% of total quantity of waste paper imported.
The confiscation ordered by the adjudicating authority and allowed on payment of redemption fine is correct order and does not require any interference. The redemption fine ordered by the lower authorities is also proportionate and is not excessive - penalties imposed on the main appellant u/s 112(a) is correct, but the quantum of penalty seems to be excessive - the quantum of penalty reduced.
Personal penalties imposed on the two individuals - Held that: - These employees being executives of the company cannot be held as liable to penalty, as the presence of municipal waste in the consignment being inevitable, it cannot be held that these individuals had any role to play in confiscation of the goods; in our considered view, the penalties imposed on the individuals are unwarranted.
Appeal allowed in part.
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2017 (12) TMI 340 - CESTAT ALLAHABAD
Valuation - Mini Booster Pump 50GPD of Chinese origin - enhancement of value - Held that: - respondent has stated that this Tribunal has held in the above stated case of M/s Sanjivani Non Ferrous Trading Limited [2017 (3) TMI 359 - CESTAT ALLAHABAD] held that “as provided by Section 14 of Customs Act, 1962 the assessable value has to be arrived at on the basis of the price which is actually paid and in a case the price is not sole consideration or if the buyers and sellers are related persons then after establishing that the price is not sole consideration the transaction value can be rejected and taking the other evidences into consideration the assessable value can be arrived at” - such exercise has not been done in the present case by the Original Authority and, therefore, the impugned Order-in-Appeal is sustainable.
Revenue’s contention that enhancement of assessable value by the Assessing Officer was correct has not been supported by any evidence by Revenue.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 339 - CESTAT ALLAHABAD
Classification of goods - Heavy Melting Steel Scrap - Steel Slabs (Stock Lot Non Alloys) - mis-declaration of goods - enhancement of value - Held that: - the original adjudicating authority held the goods to be re-rollable scrap based only on the opinion of custom authorities who examined the goods. No expert opinion was obtained - In a dispute involving Custom, the Revenue’s argument that examination report by Customs officers should be accepted without any other supporting evidence, defies even the most basic jurisprudential principles.
It is also seen that in the discussion and finding portion of the primary order, there is not even a word about enhancing the value, leave alone basis for doing so. Thus enhancement of value is devoid of sustainability.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 292 - CESTAT CHANDIGARH
Classification of goods - combine harvester parts - whether classified under CTH 84339000 or otherwise? - appellant filed one bill of entry declaring the goods as combine harvester parts which have been imported - Held that: - All the goods mentioned in both the invoices parts of the combine harvester. The parts are numbered and if all these parts used altogether then harvester system which has been imported by the appellant in SKD condition can be manufactured otherwise not. The report of the chartered engineer is not conclusive evidence for the Revenue to hold that the goods in question are of general use. In fact chartered engineer has opined that the goods appeared to be of general use also other than those use in harvester combine which clearly shows that as per opinion of the chartered engineer, the goods in question can be used harvester combed as part thereof - the goods are parts of harvester combine.
The goods are classifiable under the heading which occurred last in numerical order among those which equally merit consideration - Chapter heading 84339000 is proper classification of the goods in question - the appellant has correctly classified the goods in question.
Whether confiscation of goods, redemption fine and penalty justified? - Held that: - it is a case of classification of the goods and the adjudicating authority has changed the classification relying upon the report of the chartered engineer. In that circumstance, as it is case of interpretation of classification, therefore, the goods are not liable for confiscation and no redemption fine is imposable on the said goods - penalty also set aside.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 291 - CESTAT MUMBAI
Levy of ADD - N/N. 73/2003-Cus dated 01/05/2003 as amended by N/N. 95/2006-Cus dated 08/09/2006. Subsequent to the above notification, a fresh N/N. 95/2006-Cus dated 08/09/2006 prescribed provisional levy till new shiper review was completed - Held that: - it is necessary to ascertain the manufacturer, the exporter and the channelising agency in terms of above amendment to decide whether there shall be levy of anti-dumping duty - Record reveals that examination report categorically state that subject goods were manufactured by M/s Foshan Lungo Ceramics Co. Ltd. whereas the claim of respondent was M/s Heyuan Wanfeng Ceramics Co. Ltd.,for which the matter needs scrutiny.
Appeal is required to be remanded to the adjudicating authority to examine the genesis of the levy on the subject goods ascertaining the identity of exporter, producer and channelizing agency exported the subject goods from the subject country - appeal allowed by way of remand.
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2017 (12) TMI 246 - MADRAS HIGH COURT
Exemption from additional duty u/s 3 of CTA - N/N. 30/2004-CE dated 09.07.2004 - case of Revenue is that appeals have been dismissed as not maintainable on the ground that the assessments were self-assessment and the petitioner has to only file refund claims before the third respondent - Held that: - If a Court or Quasi Judicial authority comes to a conclusion that a petition or an appeal is not maintainable, then the concerned Court or Quasi Judicial Authority has to safeguard the interest of the applicant by not foreclosing the remedy available to the applicant.
The situation would have been different, if the Commissioner had declined to entertain the appeal in the year 2012 itself for the reason now assigned in the impugned order. This could have very well been done, since the Commissioner is referring to the decision of M/s.Suryalaxmi Cotton Mills Ltd. Vs. CCE, Nagpur, prior to which the amended Section 27 came into force, i.e., on 08.04.2011. Thus, the Commissioner having entertained the appeals and kept the appeals pending for four long years, cannot dismiss by holding that the appeals are not maintainable, but should have protected the petitioner by issuing appropriate consequential direction. This is more so because a party who comes to Court or before Quasi-Judicial Authority cannot be left without a remedy.
The period during which the appeals were pending before the first respondent has to be necessarily excluded, because the first respondent has held the appeals to be not maintainable and in other words, the petitioner was prosecuting the claim before a wrong forum. This is all the more reason to issue appropriate directions to enable the petitioner to file a refund claim, which is required to be processed in accordance with law - petition disposed off.
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2017 (12) TMI 245 - CESTAT NEW DELHI
FPS licence - it was alleged that the license was obtained by forging Telegraphic Release Advice (TRA) issued by customs authorities - whether the FPS License was valid or not? - Held that: - The facts of the case that the appellants obtained a bonafide valid licence issued by the Competent Authority is not in dispute - similar issue decided in the case of M/s Deep Exports Versus CC, New Delhi [2016 (4) TMI 99 - CESTAT NEW DELHI], where it was held that the REP licences transferred were genuine documents issued by the competent authority. Even if the appellants had made any enquiry with the DGFT themselves as the issuing authority at the time of purchase or utilisation for import of gold, there is no way the validity of REP licence could have been put to question.
As long as the licences are valid, the customs authorities cannot refuse exemption on the allegation that there was misrepresentation. It is for the licensing authority to take up the question of misrepresentation. This has not been done in the facts of the present case. The licences were still valid and had not been cancelled by the licensing authority and the licences have not been questioned at all by the licensing authority.
No duty demand can be made on such import made on the basis of valid and subsisting licence at the relevant time - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 244 - CESTAT MUMBAI
Recovery of duty u/s 28 of CA, 1962 - levy of penalties for abetment of customs duty - forgery of certificates prescribed for availing concessional rate of duty - With the finding that the certificates issued by Line Ministry were not in existence at the time of presentation of bills of entry, the adjudicating authority fastened duty liability and imposed penalties on the appellant for failure to comply with the condition in the notification requiring the production of the prescribed certificate - time limitation.
Held that: - the eligibility being contingent upon essentiality of the goods for the project and approval of the Government of India which can be evidenced only by the countersignature of the designated official and such being non-existent in the impugned imports, the eligibility does not exist even till today - The failure of the Government of India in the Department of Economic Affairs, Ministry of Finance to nominate a Line Ministry for the project at the time of import does not waive the requirement of compliance with the condition in the notification to evidence essentiality and approval. Neither does it condone the production of a forged certificate to accord it a sanctity that it fails to possess ab initio.
The role of Shri Rakesh Yadav in the fabrication of the certificates has been sufficiently established. That M/s ICICI Bank and M/s Jindal Steel & Power Ltd have a major financial stake in the execution of the project is axiomatic. Any delay in obtaining the countersignature of the designated officer in the certificate issued by M/s ICICI Bank would have repercussions for both that would motivate them to collaborate in submission of a certificate that was not in accord with the prescriptions in the notification. Indeed, they stood to derive the benefits emanating from the fabrication of the documents - Their protestations of being the victims of cross-fire may not find many takers as the exemption notifications claimed by them cannot but have been within their knowledge and the crucial role of Line Ministry is unambiguously clear. The definition of Line Ministry i.e. offers no scope for any doubt that the Line Ministry may have been the Department of Economic Affairs in Ministry of Finance as that Department was enjoined to nominate one and, that too, for each project. Their failure to press for the nomination of such Line Ministry and their acquiescence in the ingenuity of a personage of that Department to fill the void, albeit without authority, is not easily obliterated.
Jurisdiction - validity of the notice leading to the impugned order - Held that: - the decision in the case of Mangali Impex vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT] relied upon - matter on remand.
It would be appropriate to remand the matter to the adjudication authority - appeal allowed by way of remand.
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2017 (12) TMI 243 - CESTAT MUMBAI
Failure to file the Bill of Entry - Board circular No.15/2005-Cus. dated 11.3.2005 - whether there was any fault in the computer system or not? - Held that: - We are not provided information by revenue as to whether the computer system was working on the date of approach for ICEGATE system of submission of Bill of Entry - The IGM copy is also not before us - all the three appeals should go back to the learned adjudicating authority who shall examine whether there was any fault of ICEGATE system and day to day steps taken by appellant to prove its bona fides of presentation of Bill of Entry before 21.8.2006 - appeal allowed by way of remand.
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2017 (12) TMI 178 - CESTAT NEW DELHI
DEPB Scheme - relevant date of export of goods - Polyester Fabrics - The respondent based on documents showing export on 21.09.2004 obtained DEPB Scrips from JDGFT, New Delhi having benefit of 10%. The Revenue contended that the date of export is 24.09.2004 with relevant applicable benefit of 5.5 % only - Held that: - Admittedly, the copies of the shipping bills submitted by the respondent clearly show the date stamp as 21.09.2004 along with the signatures of Inspector and the Superintendent of Customs dated 21.09.2004. The Revenue claims that the documents were forged and fabricated. The Revenue relied on another set of copies of shipping bills warehousing register, etc. to contend that the shipment date is only 24.09.2004. On close examination of these documents, we are convinced that contrary claims were made on the basic fact of date of shipment based on the documents, which bear the signature of customs offices.
When the respondent produced various documents bearing signature of customs officers dated 21.09.2004, it is necessary for the department to enquire as to how such documents were presented and in case of questioning their bonafideness, to conduct further inquiry with reference to the alleged forgery. We are not informed of any such inquiry conducted internally by the Department to support the allegation of manipulation or forgery of these documents signed by the officers.
Appeal dismissed - decided against Revenue.
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2017 (12) TMI 177 - CESTAT CHANDIGARH
Valuation of imported goods - Coloured Self Adhesive Paper Tape - enhancement of value - entire case of the department is that the goods were mis-declared in their description/classification and there was undervaluation of the goods - Held that: - As for the charge of mis-declaration, the appellant had correctly declared the items as coloured reflective sheeting and had changed the description of the goods to coloured self adhesive paper tape at the instance of the customs officers. They had claimed classification under tariff heading 39199090. However, Bill of Lading and the invoice carried two different descriptions of the same product and it was for this reason, the customs officer directed them to declare as per Bill of Lading - Revenue seems to be presuming that the decision to change the description of the goods was taken in view of prior information regarding declaration of the impugned goods available with the Anti Smuggling staff. However, no evidence to support this belief is coming forward from the impugned order - Hence, the charge of mis-declaration of description of the goods is not tenable in these circumstances.
Since the allegation in show cause notice was based on the similar type of goods in the case of M/s.Tanmay International [2017 (10) TMI 220 - CESTAT CHANDIGARH], the above decision of this Tribunal in M/s.Tanmay International is squarely applicable to the present case, where it was held that the Ld. Commissioner (Appeals) has correctly concluded that the Department has not been able to adduce any evidence of contemporaneous import to support the value determined by the adjudicating authority.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 176 - CESTAT CHANDIGARH
Classification of imported goods - whether the metal rims found in the two containers of the total consignment are required to be considered as waste and scrap or the same have to be held as metallic rims usable in the motor-vehicles? - Held that: - it is for the assessee to test the veracity of the statement, procured by the Revenue, on which they intend to rely. Revenue cannot decide as to whether the cross-examination is useful to the assessee or not. As such, when there are two contra reports of two different Chartered Engineers, the benefit has to go to the assessee rather than to the Revenue, who by adopting a favourable report, cannot hold against the assessee.
Except for making a bald declaration that there was deliberate mis-declaration by the importer, there is no evidence on record to show that the appellant knew about the presence of old and refurbished metallic rims in the two containers. All the documents issued by the foreign supplier are only reflecting that the waste and scrap has been imported by him - Revenue has not pointed out to any evidence to establish the knowledge on the part of the importer. As such, such mutilation request made by the appellant should have been accepted by the authorities.
The appellant have produced evidence on record that the said rims were actually used by them in the furnace in their factory. Photographs stands produced showing such use along with a certificate of their Chartered Accountant, declaring that the rims in question were consumed for manufacturing of steel ingots on 18.08.2011 and 31.03.2012. Such certificate of the Chartered Accountant has neither been questioned nor doubted by the lower authorities - In the face of such an evidence of use of the rims in the furnace, the Revenue's case that the same are re-usable and serviceable items, cannot stand.
Appeal allowed - decided in favor of appellant.
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