|
Advanced Search Options
Customs - Case Laws
Showing 41 to 60 of 2047 Records
-
2017 (12) TMI 1424 - MADHYA PRADESH HIGH COURT
Maintainability of appeal - Penalty - Valuation - revised valuation of FOC materials supplied by GMI - loading towards drawing and design supplied by GMI to AVTEC - Held that: - if multiple questions are involved in the matter, then the department has to raise all these issues before the Supreme Court by filing an appeal under Section 35L of the Central Excise Act, 1944 - appeal of the respondent /assessee is pending before the Supreme Court - Central Excise Appeal No.44/2017 dismissed with liberty to challenge the order by filing an appeal u/s 35L of the CEA, 1944.
-
2017 (12) TMI 1388 - CESTAT NEW DELHI
Valuation - includibility - royalty - Held that: - When the cost of imported items were included in the net ex factory sale price of the manufactured goods and the importer pays royalty as a percentage of turnover of final product, which included the cost of imported components, it becomes a condition of sale of finished goods. Hence, both the conditions of Rule 9(1)(c ) of the Valuation Rules are satisfied - Tribunal in the case of Herbalife International India Pvt. Ltd. [2016 (9) TMI 830 - CESTAT MUMBAI] held that when the cost of imported goods is included in the amount, which is considered for payment of royalty, then such royalty should be added in the assessable value of imported goods.
Valuation - payment of patent/software fee - the claim of the appellant is that they are reimbursing the said fee on behalf of the various patent /software owners for which agreement dated 30.05.2013 was entered into with Fujitsu Ten India Ltd., Japan - Held that: - Admittedly, these patent/softwares are required for the functional utility of the imported items as well as the finished final product. The appellants are under obligation to pay fee for the said third party patent/software. Rule 10(1)(e) of the Valuation Rules stipulates that all other payments actually made are to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to the third party to satisfy and obligation of the seller to the extent that such payments are not included in the price actually paid or payable, shall be added to the price actually paid or payable for the imported goods. Explanation to the said rule provides that whether the royalty, license fee or any other payment for a process, whether partial or otherwise, is includible.
Appeal dismissed - decided against appellant.
-
2017 (12) TMI 1387 - CESTAT NEW DELHI
N/N. 21/2002-Cus dated 01.03.2002 - Import of aircrafts - Held that: - The Tribunal in the case of Noble Asset Company Ltd. vs CC (Preventive), Mumbai, [2006 (4) TMI 370 - CESTAT, MUMBAI] have taken a view 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 - appeal dismissed - decided against Revenue.
-
2017 (12) TMI 1386 - CESTAT BANGALORE
Valuation of imported goods - actual import - whether the assessment is to be made based on the transaction value actually agreed and paid by the importer on the contracted quantity or based on the quantity actually received and cleared from the shore tanks? - Held that: - the issue involved in the present case is no more res integra and has been settled by the Hon’ble Apex Court in the appellant's own case Mangalore Refinery And Petrochemicals Ltd. Versus Commissioner of Customs, Mangalore [2015 (9) TMI 245 - SUPREME COURT], where it was held that quantity of crude oil actually received into shore tank in port in India should be basis for payment of customs duty - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1385 - CESTAT NEW DELHI
Penalty u/s 114A of CA - SAD - N/N. 21/2012 dated 17/03/2012 - whether the Adjudicating Authority is legally correct in imposing penalty equal to the duty by invoking the provisions of Section 114A ibid, in view of the fact that the entire duty alongwith interest and 15% of the penalty amount were deposited within one month from the date of issuance of the SCN? - Held that: - In view of the fact that the proceedings were concluded by the Adjudicating Authority u/s 28 (5) upon deposit of duty amount alongwith interest and 15% of penalty, there was no occasion or scope to proceed further against appellant for confirmation of penalty under Section 114A ibid - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1281 - CESTAT MUMBAI
Levy of customs duty - reimport into India after repair/modification - investigation found that when all the three vessels were coming back to India on re-import from time to time during the impugned period with the repair/modification thereto, No Bills of Entry having been filed for the value of repair/modification carried out thereto abroad as well as freight and insurance incurred and No adjudication or assessments were ever made thereon, that has resulted in loss to the exchequer for the relevant periods - case of Revenue is that those vessels were never foreign-going vessels although appellant falsely claims that to be so - whether on such re-importation, value of repair so made including freight shall form part of the assessable of the such re-imported vessels and necessary duty leviable thereon under the Act? - classification of vessel.
Held that: - All the three vessels were dedicated vessels to render aforesaid service to ONGC only, without being capable of commercially operated as passenger or cargo carriage. For a limited purpose those were conveyance for ONGC only. Appellant was obliged to ONGC under contract to transport its working personnel and goods without providing any transportation service to general public - the vessels remained as “goods” only not only at the time of first entry thereof into India but also during re-imports made from time to time on repair thereof. Re-import of goods under Section 20 of the Act is permitted under law when the exported goods came to India again goes back out of India for repairs Partial duty concession/exemption is available to the re-import as is covered by the aforesaid notification. Revenue discharged its burden of proof bringing the goods to CTH 89059090 in view of technical character of vessels ruling out their adoptability by CTH 89019090.
Mere filing of the documents at page 80 and 81 of the paper book does not exonerate the appellant from its duty liability without filing the Bills of Entry disclosing the value of the repair/renewal/modification and installation of machinery done to the vessel including freight and insurance charged incurred. Therefore, there was violation of law made by the appellant relating to filing of Bills of Entry which is well established. Similarly, merely because the vessel was running from one coast to another during its movement while executing contract with ONGC, that does not entitle the appellant to plead that the vessels were foreign-going vessels. Accordingly the re-imports were not immune from levy.
For the violation of law made by appellant, as stated herein before for No filing of Shipping Bills and Bills of Entry against exit from time to time and re-imports in respect of cost/value of repair and freight and insurance incurred, appellant was bound to face the consequences of adjudication as has been directed by adjudication order, which does not call for interference except to the extent modified by this order. Accordingly, it may be stated that Revenue’s plea that disclosure of stores and consumables for inventorization by the Customs upon re-import of the vessel, shall not exonerate the appellant from levy of duty in law, has force and sustains.
Time limitation - Held that: - It may be stated that bar is only against recovery but not against the levy which arises when event of levy occurs Normal period shall be subject to levy and recoverable on the basis of rate of duty applicable on the dates of re-import during the impugned period. Basic Customs Duty, Additional Duty of Customs and Special Additional Duty shall be leviable and recoverable for such normal period in accordance with law.
In view of the settled position of law and having decided the appeals on the statutory principles as well as first principles of law, further discussions on other citations is considered redundant and not to burden this order, in the fitness of the circumstances of the case and all the pleadings of appellant except bar of limitation is dismissed being devoid of merit.
-
2017 (12) TMI 1209 - CESTAT MUMBAI
Mis-declaration of value - section 19 of Customs Act, 1962 - Determination of duty where goods consist of articles liable to different rates of duty - Held that: - Section 19 empowers the ascertainment of rate of duty when goods are presented as a set of articles for clearance. That it is not a provision for valuation should be apparent from the reference within it to specific and ad valorem as the two mutually exclusive possibilities. It empowers the application of the highest rate of duty that would be leviable on the various articles in the set to all the articles. Impliedly, this is to be resorted to when a single value is declared for the set as a whole and it is merely the most appropriate rate of duty that is to be determined from among the varied rates for each article in the set. The proviso in section 19 does not justify the conclusion that it is a valuation provision but is intended to permit separate assessment for such article in the set for which distinct is evidenced by the importer.
The impugned order has referred to proviso in section 19 of Customs Act, 1962 as the authority to club the values of the various goods. There is no finding as to the applicability of section 19 of Customs Act, 1962 to the facts pertinent to the dispute. Such finding should necessarily decide if the goods are presented as a set of articles with a unified, non-separable value, enumerate the various articles that comprise the set, ascertain the rate of duty applicable to each and then compute the duty liability of the unified value by applying that identified rate of duty. Without such an exercise, invoking of section 19 of Customs Act, 1962 is not consummated.
Appeal allowed by way of remand.
-
2017 (12) TMI 1181 - CESTAT MUMBAI
Redemption fine - penalty - license not obtained from D.G.F.T for export of certain consignment of graphite equipments - Held that: - Imposition of redemption at the rate of 15% of the value assessed in each case may considered to be justifies - So far as the penalty is concerned, that is imposed to deter contravention of law since No such imposition shall be bonus to the evader and an incentive to break the law
So far as penalty imposed on the employee of the appellant in Appeal No.C/472 is concerned he is found to be General Manager-Marketing of the appellant. Keeping in view that the main appellant was an artificial person being a Company, infraction of law is only possible with the human intervention. Accordingly, role of General Manager-Marketing in exporting goods without licence calls for levy of penalty. Ld. Authority was rightly imposed penalty on him.
Appeal allowed in part.
-
2017 (12) TMI 1178 - CESTAT MUMBAI
Valuation - imported cut & polished Diamonds - redemption fine - Held that: - when value of diamonds imported was mis-declared and that was confiscated, imposition of a token redemption fine of ₹ 5,00,000/- under misplaced sympathy is liable to criticism - So also when there was huge difference in the value declared and determined, establishing deliberate mis-declaration, levy of penalty of ₹ 5 lakhs also appears to be too low and is an incentive to wrong doing.
Appeal dismissed - decided against appellant.
-
2017 (12) TMI 1162 - CESTAT MUMBAI
Demand the duty that had not been paid at the time of import - Non-compliance with import procedure - case of Revenue is that the goods were not ship stores and, covered by transhipment provisions in the Customs Act, 1962, are liable to the customs duties that had not been discharged at the time of clearance - the case of the appellants is that the goods, having been placed on board a vessel and not intended for home consumption, was not required to follow any procedure other than that of transhipment and was not liable to duties of customs.
Held that: - Description in the airway bill is of no statutory relevance under the Customs Act, 1962 which bases liability to import duty on the entry made under section 46 of Customs Act, 1962. The airway bill is of relevance in the filing of the import general manifest under section 30 which enables shifting of the responsibility for due discharge of duty liability from the person-in-charge of conveyance to the importer acknowledging the latter as possessor of right to clear the goods. The manifest will clearly indicate the destination of the goods for home consumption at port of discharge or for transhipment to another customs station or on transit to another customs station or place outside India. Needless to say, goods that are described as spares/stores in the airway bill may well be destined to other customs stations or locations outside India with the liability to duty also deferred accordingly till due arrival at such destination. In the absence of such details, goods that have been found to be excluded from stores cannot be subject to duty liability unless it has been destined for home consumption in India.
The impugned order has proceeded to recover duty and visit the appellants with detrimental consequences after considering the nature of the goods and holding that these are not ship spares ; however, there is a marked lack of material pertaining to the goods or any finding on the ultimate disposal of the goods. Taking note of the submission of the appellants that the vessel is a research vessel for which research equipment are 'ship stores', the adjudicating authority finds that the vessel, even if under a foreign flag, does not become a foreign going vessel merely for that reason and, more so, as research vessels are excluded from scope of engagement in foreign trade. Rejecting the claim of the appellants that these are ship stores covered by the inclusive portion - other articles of equipment.
With the contractor having absented itself from proceedings, the adjudicating authority, placing reliance on section 147 of Customs Act, 1962, transferred the duty liability to M/s JM Baxi & Co as deemed agent of the contractor inferred from the inclusion of their name in the commercial invoice and in the airway bill, the filing of application for transhipment permit and the execution of transhipment bond on behalf of the Master of MV Mezen - all of which, according to her, would bring them under the ambit of agent. The correspondence and electronic mail are cited by the adjudicating authority to conclude that the appellants were all aware that they were circumventing the provisions of Customs Act, 1962 and, hence, by acts that rendered the goods liable to confiscation, they were subject to the penalties under section 112 of Customs Act, 1962.
Matter remitted back for fresh determination.
-
2017 (12) TMI 1150 - CESTAT MUMBAI
Misdeclaration of imported goods - Revenue came to a conclusion that the waste paper imported by appellant for use in manufacture of Newsprint Paper consisted waste paper as well as Kraft paper - Appellant’s plea is that sorting out of waste kraft paper from the imported lot was “manufacture” - Held that: - There is no difference in the quantity and value of the waste kraft paper sold to different buyers without use thereof in manufacture of news print. It is also an admitted fact that waste kraft paper is not generation of manufacturing process carried out by appellant. Appellant’s plea that sorting out of waste kraft paper from the imported lot was “manufacture” is inconceivable.
There is no doubt that the goods imported by appellant was declaring that as waste paper for use in manufacture of newsprint. But appellant’s awareness that waste kraft paper were unusable in such manufacture cannot be ignored in view of the appellant’s experience for some times past. Those were sold and appellant was benefited out of the sale of such goods. Customs should not suffer the loss of duty made at the time of import on the sold waste kraft paper - basic customs duty, and additional customs duty as is prescribed by law shall be leviable - Central Excise duty if any paid is whether adjustable shall be examined by the learned adjudicating authority and appropriate order passed thereon.
Interest - penalty - Held that: - In view of interpretational difficulty, there shall be no penalty against the quantum of demand on the appellant - Interest flow against the unpaid demand.
Appeal allowed in part, part matter on remand.
-
2017 (12) TMI 1114 - MADRAS HIGH COURT
Refund of Terminal Excise Duty (TED) - validity of Policy Circular issued by the second respondent - policy provisions and Foreign Trade (Development and Regulations) Act, 1995 - Held that: - reliance placed in the case of Kandoi Metal Powders Mfg. Co. Pvt. Ltd. Versus Union of India And Others [2014 (2) TMI 773 - DELHI HIGH COURT], where Court also is unable to see the reason why the respondents were of the view that refund claim or benefit under the CENVAT regime under the Central Excise Act or the other statutory schemes framed under it is available. In this Court’s opinion, that regime operates in its own terms and is independent of the rights and liabilities of the petitioner and the respondents under the import-export policies framed under the 1992 Act.
The third respondent is directed to process the refund claim in accordance with 2009 Policy by taking into consideration the petitioner's refund application and pass appropriate orders on merits and in accordance with law within a period of three months.
-
2017 (12) TMI 1113 - CESTAT NEW DELHI
ADD - Hydrogen Peroxide - Import from Bangladesh, Taiwan, Korea RP, Indonesia, Pakistan and Thailand - methodology adopted for determining the injury and dumping margin - it was alleged that the subject goods have been exported to India from subject countries (other than Indonesia) below its normal value; the Domestic Industry has suffered material injury; and the injury has been caused by the dumped imports from subject countries - Held that: - the appellant is a non-cooperative exporter. Rule 6 (8) of the AD Rules provides for the Designated Authority to record its finding on the basis of facts available to it and make such recommendations to the Central Government as it deemed fit under such circumstances.
NPL is a joint venture of M/s Bombay Dyeing and Manufacturing Company Limited and M/s Solvay SA which holds about 25.10% shares in NPL. The claim of the appellant is that Solvay SA is related to the DI in terms of explanation (ii) of Rule 2 (b) of AD Rules - It is clear that the DA on careful consideration arrived at the conclusion that NPL was not to be considered as a related company of Solvay. It was further recorded that the provision of Companies Act or provision relating to special resolutions are not relevant for the present investigation. We are in agreement with the findings recorded by the DA.
DA is well within his powers to consider the scope of DI who were importing or related to the exporters of subject goods. There is no legal sanction against considering such DI in the investigation.
Sickness and mis-management of DI - Held that: - there is no bar in consideration of a sick unit as a DI. There is no evidence to support the contention of the appellants that the sickness or the deterioration of DI is caused by factors other than import of subject goods. The impact of import on the DI has been elaborately discussed by the DA on all aspects and we are not inclined to interfere with such findings in the absence of any specific contra evidence.
The grievance of the appellant (NPL) as a DI on the calculation of net return/ adjusted return as made by the DA requires re-examination. The learned Counsel for the DA also admitted that there has been no past instance of such second adjustment while arriving at the return on capital employed - the matter has to go back to the DA for a limited purpose of verifying the correctness of the return on investment as arrived at by the DA based on optimum production of 15 months and again by adjustment in the net return.
There is no merit in the appeals filed by the exporters against the levy of anti dumping duty on the subject goods and the appeal filed by HOCL against the final finding - Appeal dismissed.
-
2017 (12) TMI 1112 - CESTAT NEW DELHI
Whether the digital still image video cameras imported by the appellant are eligible for the benefit of nil rate of customs duty during the disputed period when the explanation was in place under N/N. 25/2005-Cus? - capability to record video for as long as 30 minutes in a single sequence using the maximum storage (including expanded capacity) - The interpretation of the Revenue is that digital cameras entitled to the benefit should not be capable of recording, a single sequence of more than 30 minutes using the maximum storage (including expanded capacity) - It has been found on examining the digital cameras that keeping in view the equipment memory capacity at the time of import, the cameras are capable of recording the video at resolutions and speed more than what is indicated in the notification, for a period greater than 30 minutes. If the maximum expanded storage capacity is taken into account, the recording time for the video is many times more. As such, Revenue is of the view that the imported cameras will not be entitled to the benefit of the notification.
Held that: - The imported digital cameras taking into consideration the memory capacity at the time of import, were found to have the capability of recording video in a single sequence of more than 30 minutes. However, during investigation, it was found that such capabilities have been restricted through firmware to a single sequence of less than 30 minutes. Hence, the fact of matter is that the imported digital cameras, can run a single sequence of only less than 30 minutes whereas the cameras have the capability to have a single sequence of much more than 30 minutes - Such an interpretation will make the stipulation in the explanation to the Notification about the maximum storage (including expanded) capacity as redundant. It is obligatory to read and satisfy all the conditions of the notification without rendering any part therein as redundant. Since in the present case, the imported digital cameras are capable of recording video with minimum resolution and minimum recording speed for more than 30 minutes in a single sequence; using maximum storage capacity, such cameras will not be entitled to the benefit of notification. It is well settled that a person who claims exemption or concession, has to establish that he is entitled to that exemption or that concession. In the present case, as discussed above, the impugned goods do not fulfill all the conditions specified in the notification and hence it is an inevitable that the benefit of notification is denied to these goods.
Time limitation - Held that: - It is clear that the appellants deliberately did not declare the full details of the imported goods and cleared the same by wrongly availing the benefit of notification. The correct facts came to the light only during investigation by DRI - demand cannot be held as time barred - extended period rightly invoked.
Exemption from payment of cess - Education and Secondary and Higher Education Cess - Held that: - It may be mentioned that Exemption Notification NO. 69/2004-Cus dated 9.7.2004 and 28/2007 dated 01.03.07 exemption from Education Cess and Senior and Higher Secondary Education Cess for Digital Still image video cameras falling under Tariff Item 8525 8020. It is seen that these exemptions were continued even for the period under dispute - same exemption was continued as far as Cess is concerned, for the disputed period. Hence, Education Cess and Senior and Higher Secondary Education Cess cannot be demanded for the disputed period.
Appeal dismissed - decided against appellant.
-
2017 (12) TMI 1111 - CESTAT ALLAHABAD
Confiscation - gold bars - smuggling - penalty - Held that: - the seizure of the gold biscuits and the subsequent proceedings are prima facie vitiated, there being no warrant of search in the name of the appellant. Further, it is apparent from the record that no reason was recorded against the appellant for any alleged evasion of Central Excise duty or evasion of any Customs duty - further, the appellant have discharged the onus as required under Section 123 of the Customs Act, 1962 - confiscation and penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1110 - CESTAT MUMBAI
Jurisdiction - power of DRI to issue SCN - Revenue's argument is that “Proper Officer” being also used in drawback rule, the meaning of “proper officer” shall be known upon adjudication of the matter in Mangali Impex by Apex Court[2016 (5) TMI 225 - DELHI HIGH COURT].
Held that: - the drawback is also an incentive granted through Customs and Central Excise Duties Drawback Rules, 1995 where there is recognition of “Proper Officer” - as an abundant caution, following Mangali Impex judgment it would be preferable to await for the apex Court judgment since the concept of “Proper Officer” may be adjudicated by Apex Court for different purposes of law also.
Appeal placed on remand.
-
2017 (12) TMI 1109 - CESTAT NEW DELHI
Revocation of CHA License - forfeiture of security deposit - export of drugs - Held that: - M/s Johar Enterprises was involved in exporting narcotics which is prohibited in law. Being anti-national activity, merely the statement of Ms. Bharti Chawla that somebody has handed over the consignment is neither sufficient nor acceptable - appeal dismissed - decided against appellant-assessee.
-
2017 (12) TMI 1108 - CESTAT NEW DELHI
ROM application - the assessee has made a request that the Final Order No.55775-55776/2016 dated 10/08/2017 may be recalled for the reasons that benefit of reduced penalty of 25 per cent in respect of show cause notice dated 08/07/2011 has not been provided - Held that: - There is no clerical or arithmetical mistake in the present appeal. The submission of the appellant has been considered. It is not necessary to impede each and every argument of the appellant. Only the cumulative effect will have to mention in the order.
It may be mentioned that in the garb of rectification, fresh order cannot be passed on merit.
Oversight of fact/not considering arguments is not on error and no relief can be granted in rectification - ROM application dismissed.
-
2017 (12) TMI 1040 - KARNATAKA HIGH COURT
Principles of Natural Justice - Breach of Regulations 11 and 17 of the said CBLR, 2013 - Held that: - this order appears to have been passed without giving any prior notice and opportunity of hearing to the petitioner, but a perusal of different Regulations particularly, Regulation Nos.18, 19, 20, 22 and 23 indicates that various kinds of penalties and actions are envisaged under these Regulations to be taken against the erring Customs Broker - petitioner not only has an opportunity to show-cause and establish its innocence and compliance with the Regulations before the concerned authority itself even now, but has equal, adequate and efficacious remedy by way of appeal against the impugned order even before the CESTAT under Regulation 21.
A lenient and conveniently held out tool of ground of natural justice cannot be used to protect those who have indulged in gross violation of Regulations and Rules and which has resulted in evasion of tax and duties and has caused revenue loss. On the face of it, this ground invoked in the writ jurisdiction, may appear to be attractive to exercise the discretion under Article 226 of the Constitution of India but the malaise in such cases is indeed deep-rooted, where the Courts in its extraordinary jurisdiction, on the basis of the Affidavits only cannot even easily reach into.
This Court would not like to comment upon the facts of the present case, as the matter appears to be still pending under investigation and the appellate order, the petitioner may have his own opportunity to lead his evidence in the matter at this stage, but prima- facie reading of the order, shocks the conscience of this Court - the alleged ground of breach of principles of natural justice need not prompt this Court to immediately interfere in such cases at such premature stage of the matter.
Petition dismissed.
-
2017 (12) TMI 1039 - KARNATAKA HIGH COURT
Alternative remedy of appeal - Section 129A of the CA, 1962 - Revocation of CHA License - Held that: - Section 129A of the CA, 1962 provides for an appeal before the Appellate Authority against any decision or order passed by the Commissioner of Customs as an adjudicating authority or even an order passed by the Commissioner of Appeals under Section 129A of the Act - the petitioner should avail such alternative remedy in accordance with Section 129A of the Act - petition disposed off with a liberty and direction to the petitioner to avail such alternative remedy before the Appellate Tribunal in accordance with law.
........
|
