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Customs - Case Laws
Showing 61 to 80 of 1956 Records
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2018 (12) TMI 803 - DELHI HIGH COURT
Anti-Dumping Duty - applicability of lower rate of ADD - whether any injury exists and if so, its margin, involves (through Rule 11 of the Annexure to the Anti-Dumping Rules and other provisions under such rules) examination of “the causal relationship between the dumped imports and the injury to the domestic industry”?
Held that:- In the present case, the corporate structure of the petitioner companies was such that four companies were part of the Inovyn group. During the investigation, there appears to have been a proposal of restructuring. However, the then existing companies (of which the petitioner claims to be successors) did not disclose this; perhaps correctly so, because the proposal had not been approved by the European Union. However, when that did happen, the EU stipulated that a third party entity had to be part of the holding JV arrangement. This resulted in the entry of Solvay- a complicating factor for the petitioner, because Solvay had stayed out of the investigation and therefore was subjected to the residual, higher rate of duty (rather than the considerably lower anti-dumping duty rate imposed on the petitioner’s predecessors).
The petitioner had to approach this court, because on the previous occasion the DA felt that since the relevant facts were investigated at the determination of injury margin stage, it had become functus officio. The court therefore, directed the examination of the relevant facts and also stated that if indeed Solvay had exited from the JV, the DA could consider granting the petitioner’s request.
The DA has re-examined the petitioner’s contentions and concluded yet again that the amendment sought is unfeasible. The petitioners, naturally cry foul and attack that order as arbitrary and contrary to the previous order of this court.
The two step corporate reorganization of the petitioner companies did not entail only name change or inconsequential changes in shareholding. The petitioner’s entities were transformed and placed under the control of different groups. Given that the nature of inquiry by the DA was not superficial but application of mind with respect to a web of details, that authority was justified in holding that the relief- of change in the notification to enable the petitioners to claim benefit of lower rate of anti dumping duty, was not capable of being granted.
Petition dismissed.
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2018 (12) TMI 802 - BOMBAY HIGH COURT
Refund of excess duty paid - rejection of refund on the ground that the Petitioner had not submitted reassessed bill of entries on the basis of which the Petitioner was claiming the refund - Section 27 of the Customs Act, 1962 - Held that:- In consonance with amendments, defination of term assessment conferred in Section 2(2) of the Act has also been suitably modified. Prior to amendments of 8th April, 2011 term “assessment” was defined as so include provisional assessment, reassessment and any order of assessment in which duty assessed is nil. Post amendments of 8th April, 2011 term assessment includes self assessment also.
Instead of referring to claim of refund of duty or interest paid in pursuance of the order of assessment or borne by him, the amended Section 27 merely refers to the claim of refund of duty or interest paid or borne by the refund claimant. Thus, earlier reference to the refund of duty or interest paid pursuant to an order of assessment is now deleted. This would be in consonance with the changed procedure for clearance of imported goods as contained in Section 17 of the Act.
There is no question of challenging the selfassessed bill of entries.
The Department has cited as many as 10 defects in the refund application. - Once the Petitioner replied to such communication in detail, in subsequent communications the authority confined his objection only to the question of the assessment not having been revised or set aside. Thus, all other objections of not supplying documents or details were waived or can be seen to have been satisfied through correspondence.
Section 149 of the Act provides that a proper officer may at his discretion authorize a document after it is presented in the Custom House to be amended. Proviso to Section 149 clearly lays down that no amendment of bill of entry shall be authorized to be amended after imported goods have been cleared for home consumption. Thus, the opportunity to have the bill of entry amended in terms of Section 149 of the Act, was simply not available to the Petitioner.
Unjust enrichment - Held that:- When there is no clarity in the order itself, whether the Competent Authority has accepted the Petitioner's evidence as to establishing the fact that the duty element has not been passed to any other person, we would like to tread cautiously.
The sole objection contained in the impugned orders for rejection of the Petitioner's refund claims is overruled. The refund applications are revived - petition disposed off.
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2018 (12) TMI 801 - DELHI HIGH COURT
Smuggling - contraband item - Heron - acquittal of offence - NDPS Act - Held that:- The appellant is entitled to acquittal on both the accounts urged by Ms.Sidhu, i.e., because PW-1 was complainant as well as I/O, and because the public witnesses, who had supposedly been co-opted during investigation, had been dropped by the prosecution, after citing them as witnesses in their support. I do not intend, therefore, to enter into any other intricacies of the submissions advanced by learned counsel.
The present case stand completely vitiated even by the sole reason of the fact that PW-1 Anju Singh was IO, as well as complainant.
The appellant in the present case, by authoritative pronouncements of the Supreme Court as well as this Court, the appellant is entitled, on the basis thereof, to acquittal, of the charges against her.
The appellant is acquitted of the charges against her - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 800 - CESTAT KOLKATA
Applicability of N/N. 30 of 2004 as amended by N/N. 34 of 2015 and 37 of 2015 - time limitation - Held that:- Hon’ble Tribunal dismissed several appeals of the Revenue on 27.11.2017 and 21.03.2018 against the respondent by following the previous orders of the Tribunal - No appeal has been preferred against the above two orders and limitation period has expired. The orders have attained finality.
There is no reason to interfere with the impugned order and accordingly, the same is sustained - appeal dismissed - decided against Revenue.
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2018 (12) TMI 799 - CESTAT KOLKATA
Refund claim - Reduction of freight - refund rejected solely on the argument that the appellants had resorted to self-assessment procedure for payment of Customs Duty on imported Rock Phosphate and the impugned Bills of Entry including the declaration made there in respect of such goods - appellant have not challenged the same - Held that:- Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar [2017 (1) TMI 7 - CESTAT NEW DELHI] has held that since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 798 - CESTAT KOLKATA
Valuation of imported goods - consignment of jute backed polypropylene carpet from Indonesia - rejection of transaction value - enhancement based upon the report received after overseas enquiry report forwarded to the DRI after the detailed investigation - Held that:- The Bill of Lading No. and invoice No. are same but the Customs Tariff Heading and the quantity is different. The Revenue has not taken any further clarification regarding the mismatch from the Indonesian authority, who have supplied the same and straightway applied the same with the consignment of imported goods. The adjudicating authority has not got this further clarified as to why there is a difference in classification as well as in the quantity of the consignment imported. Merely on this basis, the valuation for the imported carpet cannot be enhanced. The valuation of consignment is required to be done as per the provisions of Section 14 of the Customs Act, read with the Customs Valuation Rules.
The Department should have tried to obtain the price for the contemporaneous import and admitted to enhance the value, if found correct. It is also a fact that in respect of 13 Bills of Entry which was finally assessed and the clearance was effected, the Department tried to enhance the price based on the data received from overseas sources as well as from the two Bills of Entry imported by the appellants. It is the contention of the Department that the price of the similar goods should therefore had been applicable in all the past cases as well. It is a common knowledge that the jute backing polypropylene carpet are of the different types and quality may be superior or inferior and therefore without the sample being analyzed by the competent authority, it cannot be concluded that the goods are same or similar quality for want of specific information.
Having not followed the procedure under Section 14(1) and 14 (1A) read with Customs Valuation Rules by the Adjudicating Authority and rejecting the transaction value without the contemporaneous price, the demand confirmed by the adjudicating authority in the impugned order is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 797 - CESTAT KOLKATA
Penalty - DEPB Scheme - duty drawback - it was alleged that the appellant company availed Export incentive mis-declaring the same as of Indian Origin in the export documents - Held that:- The appellant company exported FeSi during the period from 2008-09 to 2012-13 against 18 Consignments and availed export incentive in the form of Duty Entitled Pass Book (DEPB)/ Duty Draw Back (DBK). It has also availed in some cases, incentive under Focus Marketing Scheme (FMS) in addition to DEPB/DBK against the export consignment. It was found that the exported FeSi, against which DEPB and FMS was availed, was procured from Traders/ Suppliers of Local Market in India.
Once the issue referred to DGFT for cancellation of DEPB/FMS Scrips and the adjudication order passed by DGFT had imposed fiscal penalty only, without cancelling the said Scrips and hence, credits allowed cannot be denied. Further, Customs had no authority to take any parallel action under different law making the case a double jeopardy - Goods were not available for seizure and no specific evidence could be adduced to justify mis-declaration and hence, penalty is not imposable.
Taking into consideration of the fact that the DGFT authorities had already imposed penalty upon the appellant, the penalty imposed on the appellant company is not warranted. Further, after going through the statements and the conduct of the appellant no. 2 in so far as they have returned the incentive immediately, the penalty imposed under Section 114 (iii) on the appellant no. 2 needs to be waived.
Penalty set aside - appeal disposed off.
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2018 (12) TMI 796 - CESTAT KOLKATA
Misappropriation of government revenue (import duty) - Demand raised against the importer while no proceedings against the officers - Irregularities in import through Land Customs Station, Khowaighat under Agartala Customs Division - Held that:- It is evident from the final enquiry report filed by the Additional Commissioner, Customs and it is quite surprising to note that there is nothing on record in the hands of the officers posted at Khowaighat LCS to prove the case and all documents are only to be obtained from the Bangladesh customs department but most unfortunately till date nothing has been received from the Bangladesh Customs. Such plea as adopted herein is not at all tenable in the eye of law.
There is nothing on record to show what disciplinary action has been taken by the customs department against the officers who were on duty during the period when such irregularities and infirmities in maintenance of Government records took place - it is also evident from the final report that the investigation cannot be proceeded with any further until documents pertaining to export are received from Bangladesh Customs Department.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 738 - SUPREME COURT
Valuation of imported goods - Aluminum Scrap - rejection of declared value - enhancement of assessable value - Held that:- As per Sections 14(1) and 14(1-A), the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in that provision. Section 14(1) is a deeming provision as it talks of ‘deemed value’ of such goods. Therefore, normally, the Assessing Officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods. This, ordinarily, is the course of action which needs to be followed by the Assessing Officer. This principle of arriving at transaction value to be the assessable value applies.
Exceptions are, however, carved out and enumerated in Rule 4(2). As per that provision, the transaction value mentioned in the Bills of Entry can be discarded in case it is found that there are any imports of identical goods or similar goods at a higher price at around the same time or if the buyers and sellers are related to each other. In order to invoke such a provision it is incumbent upon the Assessing Officer to give reasons as to why the transaction value declared in the Bills of Entry was being rejected; to establish that the price is not the sole consideration; and to give the reasons supported by material on the basis of which the Assessing Officer arrives at his own assessable value.
The Tribunal has clearly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, Order-in-Original was, therefore, clearly erroneous.
There is no merit in the appeal - appeal dismissed.
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2018 (12) TMI 737 - GUJARAT HIGH COURT
Export of Non-Basmati Rice - prohibition in terms of N/N. 67 dated 23.1.2003 issued under rule 11 of the Export (Quality Control and Inspection) Act, 1963 - Held that:- The appeal is admitted on substantial questions of law.
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2018 (12) TMI 736 - BOMBAY HIGH COURT
Attachment of immovable property - direction for completion of investigation in a time bound programme - Held that:- To enable the respondents to complete the investigation, we direct the petitioners or any of them who may be summoned by the competent authority for giving the statement in the ongoing investigation to appear before the Competent Authority.
Since we do not have the full details of the investigation, it would not be proper for us to give any rigid time frame for completing the same - The authorities would attempt to complete the investigation as expeditiously as possible and issue a show-cause notice to the petitioners, if upon completion of investigation the case for proceeding further is made out. This may be done preferably by 31st March, 2019.
Petition disposed off.
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2018 (12) TMI 735 - BOMBAY HIGH COURT
Recovery of dues - Section 28 of the Customs Act, 1962 - Held that:- Clause (a) to sub-section 1 of Section 28 of the Customs Act envisages a proper officer requiring the assessee to show cause why the duty or the interest which has not been levied or short paid or short levied or erroneously refunded, should not be recovered. The second proviso to said clause, however, provides that before issuing such notice, the proper officer shall hold pre-notice consultation with a person chargeable with duty or interest in such manner as may be prescribed.
The impugned communication is in the nature of pre-notice consultation. - if the petitioner does not accept the request of the Authority in said notice and if the Authority wishes to seek recovery, the procedure in terms of Section 28 shall be followed.
Petition disposed off.
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2018 (12) TMI 734 - BOMBAY HIGH COURT
DEPB License - case of Revenue is that DEPB licenses were obtained by the seller by fraud - recovery of dues - Held that:- The assessee does not dispute that the DEPB scrips in question were not obtained through fraud - The Department has not brought any evidence on record to suggest that the assessee was party to the fraud. In fact, possibly there is no such allegation in the show-cause notice also - appeal dismissed - decided against Revenue.
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2018 (12) TMI 733 - CESTAT ALLAHABAD
Classification of imported goods - Beverage Cooler SC-80 - whether classified under CTH 8418 50 00 or under CTH 8418 69 30 of CTA? - Held that:- Heading 8418 takes into its ambit the refrigerators, freezers or freezing equipments. The sub-heading 50 00 relates to the other furniture for storage and display, incorporating refrigerating or freezing equipments. The sub-heading 8418 69 30 covers vending machines other than automatic vending machine - the heading 8418 50 00 is for the other goods used for storage and display, incorporating refrigerating or freezing equipments. As is clear from the wordings, the said headings cover the goods which are meant for storage as well as display of beverages to be sold.
Admittedly all the items falling under heading 8418 invariably have storage facilities apart from refrigeration or freezing or cooling. As such, as rightly observed by the authorities below, the classification of a product would depend upon the additional feature or function which the machines carry apart from cooling or storage. As per catalogue produced by the appellant, the machines in question have a very small storage facility and the same are not designed for display of the articles stored therein. There is no feature shown in the said catalogue indicating any display of the products stored inside.
The fact that the machine has the capacity to dispense with the fixed quantity of the beverage itself shows that the same is a vending machine. The contention of the learned Advocate that heading 8418 69 30 only covers the automatic vending machine, without any human intervention, cannot be accepted inasmuch as the said heading includes vending machines, other than automatic vending machines. This indicates that automatic vending machines are not covered by the said heading which relate to only vending machines.
Vending machines stand covered by heading 8418 69 30 specifically includes the vending machines and the goods in question admittedly being vending machines have to be held as covered by the said heading.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 671 - CESTAT MUMBAI
Penalty u/s 112 of CA on Managing Director - Import of car under EPCG Scheme - benefit of N/N. 55/2003-Cus dated 1st April 2003 - Held that:- The proceedings were initiated by customs authorities who had, under a notification issued under section 25 of Customs Act, 1962, permitted duty-free import. It is also apparent that the said notification governing the administration of imports under the Export Promotion Capital Goods scheme was primarily drafted for realisation of foreign exchange proceeds from export of goods; however, recognising the importance of service industry, the scheme has been utilised to grant licenses to service providers.
In the present instance, the discharge certificate itself is questioned only against the background of eligibility of a service provider based in India to apply for, and to obtain, a licence under a scheme that was originally formulated for export of goods. The evolution of the scheme beyond physical exports is within the purview, and only, of the Director General of Foreign Trade. It is not open to customs authorities to contend that, sans the empowerment, powers not existing, the license itself was issued on the basis of fraudulent submissions.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 670 - CESTAT MUMBAI
Valuation of imported goods - adhesive coated jumbo rolls - Held that:- The appellant had declared the first of the consignments as ‘plain plastic film’ and the other two consignments as ‘adhesive coated jumbo rolls’ with unit price of US $425/kg and US $ 450/kg respectively. Even though the manufacturer-supplier did, in their communication, clarify the nature of the goods, the appellant has not been able, either before the first appellate authority or before us, to controvert the findings that rolls were consistent dimensions in the imported consignment.
There is no doubt that, following a finding of superior quality, the declared value stands on very weak foundations. However, the findings of the original authority on the value adopted, to the extent not dealt with in the impugned orders but assumed to merge therewith, lack the rigour that is mandated by Customs Valuation (Determination of Value of Imported Goods) Rules, 2007;
These flaws in the order of the first appellate authority deprives it of legality and propriety that must be rectified - the matter remanded back to the original authority for a fresh decision duly that is in consonance with section 14 and section 125 of Customs Act 1962 - appeal allowed by way of remand.
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2018 (12) TMI 669 - CESTAT BANGALORE
Revocation of CHA License - the allegation against the appellant is that he has declared only the chemical name of the goods and not the trade name of the goods imported - Held that:- This allegation does not have any force because the appellant has declared the classification as per the direction of the importer and if there is a wrong classification as per the Department, then they should take it against the importer because on the same classification earlier also, the importer has imported the goods - there is no force in the allegation that the appellant has filed the wrong address of the importer because the Custom Broker has filed the address which appears in the IEC code.
Principles of natural justice - Held that:- There is a violation of principles of natural justice and the impugned order has been passed without giving proper opportunity of hearing to the appellant.
The finding of the Commissioner that the Custom Broker has not applied for renewal is factually incorrect - the forfeiture of security and imposition of penalty on the appellant is not sustainable and is set aside.
The Commissioner is directed to examine his application for renewal of licence and decide the same in accordance with law - appeal allowed by way of remand.
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2018 (12) TMI 668 - CESTAT BANGALORE
100% EOU - duty-free procurement - manufacture and packaging of articles of export goods - N/N. 22/03-CE dt. 31/03/2003 - Held that:- It has not been disputed by both the authorities below that the impugned goods have not been diverted by the appellant and have been put to use in the EOU. Also, subsequently, the Development Commissioner has accorded approval for procurement of prefabricated RPUF Insulated Panels which is identical in nature with only difference in description. Further, in view of the various decisions relied upon by the appellant, the duty can only be demanded at the time of debonding and demand prior to debonding would be premature.
Division Bench of this Tribunal in the case of CCE, Chandigarh Vs. Kejriwal Bee Care (I) Ltd. [2011 (1) TMI 422 - CESTAT, NEW DELHI] has held that there is no definition for capital goods in Notification No.22/2003-CE and the definition of capital goods under CENVAT Credit Rules, 2004 are not applicable to exemption notification EOU.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 667 - CESTAT MUMBAI
Classification of imported goods - mixture of fatty acids having stearic acid, palmitic acid and other fatty acids with stearic acid ranging from 40-45%. - whether classified under CTH 38231119 or otherwise? - Held that:- There is no dispute about the fact that imported goods namely Stearic Acid and KortAcid have 54-58% of Palmatic Acid and 40-45% of Stearic Acid. As per the published literature palm stearin contains about 40- 60% of palmitic acid (C-16 chain), remaining being steric acid (C-18.0) and Oelin (C-18.1 & C-18.2). Hence the imported goods answer to the definition of palm stearin and need to be classified accordingly.
There is no hesitation in upholding the classification of imported goods under CTH 38231119 as determined by the Assistant Commissioner and Commissioner (Appeal).
Benefit of N/N. 21/2002-Cus dated 1st March 2002 - Held that:- In absence of any findings from the authorities below in respect of this claim made by the appellants we are not in position to render independent finding on this plea. Accordingly matter needs to be remanded back to adjudicating authority for consideration of the claim of exemption under Sl No 491 of Notification No 21/2002-Cus dated 1st March 2002 available to imported goods classifiable under CTH 38231119.
The matter needs to be remanded to adjudicating authority - appeal allowed by way of remand.
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2018 (12) TMI 619 - CESTAT MUMBAI
EOU Scheme - development of software for export to outside India - depreciation on removal of capital goods - Held that:- N/N. 140/91-Cus., dated 22.10.1991 exempts specified goods, when imported into India by the software development unit, for the purpose of development of software etc. The central excise duty exemption has also been provided under Notification No.1/95, dated 4.1.1995 for domestically procured capital goods for use in development of software for the purpose of export. The duty exemption provided in the said notifications is subject to certain conditions.
It is an admitted fact on record that during the course of visit by the Central Excise officers to the unit of the appellant, the registered premises was in possession of some other entity and not with the appellant. Thus, it is evident that as per the condition of the notification as well as the terms of the bond, the appellants had not fulfilled the conditions of use of capital goods/equipment for development of software, meant for export - confirmation of duty/interest demand by the authorities below cannot be faulted with.
Depreciation on removal of capital goods from the factory - Held that:- The submissions of the appellants regarding value of depreciated capital goods have not been considered and the duty demand has been confirmed in entirety - the matter should be remanded to the learned Commissioner (Appeals) for examination of such worksheet and other documents for computation of the duty liability afresh.
Appeal allowed by way of remand.
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