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Customs - Case Laws
Showing 1 to 20 of 76 Records
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2020 (10) TMI 1331
Import of prime quality SS CR coils - exemption denied on the ground that the goods are not of prime quality - Benefit of N/N. 12/2012-Cus dated 17.03.2012 (Sr. No. 330) - HELD THAT:- List the Civil Appeal in the first week of February 2021.
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2020 (10) TMI 1278
Imposition of penalty on the partner, when the penalty has been imposed on the firm - Section 130 of the Customs Act, 1962 - HELD THAT:- Reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS JAI PRAKASH MOTWANI [2009 (1) TMI 501 - GUJARAT HIGH COURT] where it was held that penalty is imposed on a partnership firm, no separate penalty can be imposed on any of its partners.
Appeal dismissed - decided against Revenue.
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2020 (10) TMI 1236
Classification of goods - Trapezoidal shaped pre-painted GI roof profiles - to classified under CTH 73089090 or under CTH 7216 - it was held by CESTAT that product in question should appropriately be classifiable under CTH 72169100 - HELD THAT:- Issue notice in the appeal as also in the application for condonation of delay.
To be tagged along with C.A. No.303/2020 and other connected matters.
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2020 (10) TMI 1220
Review Petition - proceedings under Signature Not Verified Digitally signed by ARJUN BISHT - HELD THAT:- We request the High Court to take up the review petition in the meantime. In the event that the High Court considers it appropriate to take up and dispose of the main writ petition, it is entirely at liberty to do so.
No coercive steps shall be taken against the petitioners till the next date of hearing - List the Special Leave Petition on 26 October 2020.
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2020 (10) TMI 1182
Target Plus Scheme - Direction to the Respondents to issue balance/additional duty credit scrips - star export house - HELD THAT:- It is evident that Petitioner has submitted the no dues certificate as prescribed. The quantum of claim of the Petitioner to the extent of ₹ 4,22,16,175.00 is also admitted by the Zonal Committee, Mumbai. However, according to the customs representative dues relating to non-submission of BRC are pending.
What is required to be submitted is a certificate certifying that no dues are pending against the government including its departments - Without entering into details, we can safely say that the word ‘dues’ means something which is payable. Shorn of semantics, the word ‘dues’ means something which a person has an obligation to pay e.g., a debt or a tax; something which is enforceable. Juxtaposing the word ‘dues’ with the word ‘government’, the expression ‘government dues’ would mean something which is payable to and enforceable by the government on account of a legal obligation or a contract. Therefore, the amount due has to be first quantified by following the due process and as explained by the Supreme Court in the context of the scheme it should be payable to the government and subsisting i.e., not paid.
The Target Plus Scheme is a beneficial provision with the objective to accelerate growth in exports by giving incentives to those export houses whose exports show an annual upward trend. Initially the benefits were graded i.e., 5%, 10% and 15% depending upon the percentage of incremental growth in exports. Petitioner fell within the 15% category for the year 2005-2006. Thereafter, by an amendment on 12.06.2006, the percentage of incentives was made uniform i.e., 5% which was given retrospective effect from 01.04.2005 - Petitioner is entitled to the balance 10% benefit for the same period for which the 5% benefit was granted being within the 15% category. When one part of the benefit for a year was given, question of withholding of the remaining benefit for the same year does not arise. Exports are of the year 2005-2006. We are now in 2020. 14 years have lapsed in between. Such inordinate delay can only frustrate the very objective of the scheme.
Respondents are directed to issue the necessary licence to the Petitioner for the balance/additional benefit of duty credit scrips for the amount of ₹ 4,22,16,175.00 for the year 2005-2006 under the Target Plus Scheme within a period of four weeks from the date of receipt of a copy of this judgment - Petition allowed.
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2020 (10) TMI 1142
Valuation - Detention of goods - Petitioner contended that, Authorities have raised frivolous queries - Manner in which adjudication order has been passed - Expiry of free time allowed by the shipping line and container freight station for clearance of imported cargo - vires of the Standing Order No.7493/99 dated 3rd December, 1999 and its subsequent amendment in Standing Order No.44/2016 dated 8th July, 2016, regarding PLATT Valuation of the Petitioner’s goods as being contrary to the Customs Act, 1962.
HELD THAT:- Despite exercising complete restraint, we cannot help but say that the entire conduct of the officer suggests a complete non-application of mind which to say the least must be deprecated. We feel that this entire saga was wholly avoidable. When the Court had issued notice on 10th September, 2020 and had passed the order on 22nd September, 2020 stating that the interim application would be taken up for consideration on 24th September, 2020, the concerned officer ought to have informed the Court about the status of the adjudication process and ought to have sought the leave of the Court for issuance of the order-in-original.
Even a bare perusal of the file which has been produced before the Court clearly shows that the order-in-original was signed on 24th September, 2020. It is only the date on which the order is signed, is the date on which the order is passed. Revenue authority cannot at their own whim and fancy, split an order viz. first pass the operative part of the order without any discussion or finding or reasons and then pass the speaking order with discussion and findings and conveniently choose dates such as in this case.
If this Writ Petition had not been filed and if this Court had not passed the order dated 06th October 2020, requiring the Officer to clear the confusion of the dates, neither this Court nor the Petitioner would have ever known the manner in which the Revenue- Authority pass orders.
We are left with no choice but to set aside the order in original dated “4th September, 2020 signed on 24th September, 2020 and issued on 24th September, 2020” in toto. Also in view of the above discussion, we direct the Respondent No.2 to depute another Officer in place and instead of the present Officer to hear the case of the Petitioner and after giving an opportunity of personal hearing pass a speaking order with reasons in accordance with law within a period of two weeks from the date of this order - Petition disposed off.
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2020 (10) TMI 1141
Advance Authorization Scheme - Doctrine of Estoppel - request for amendment of Bills of Lading - HELD THAT:- For the purpose of issuance of No Objection, provisions of Section 149 of the Customs Act, 1962 envisage the complete procedure for issuance of no objection certificate, ie for the purpose of amendment of a bill of entry or a shipping bill only after fulfilling certain conditions in the proviso.
It is trite law that circulars cannot assume the role of the Principal Act lest the provisions only a binding force. If at all the revenue is facing difficulties in accepting and processing applications for amendment of bills of lading, an amendment to the Principal Act can be suggested in accordance with law and till the pendency of the same, an Ordinance can also be issued. No such stand is taken as evident from Ext.P10 - the action of the respondent cannot be accepted, for, it is an utter violation of statutory provision of Section 149 of the Customs Act.
Respondents are directed to issue no objection certification seeking amendment of the bill in accordance with law - Petition allowed.
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2020 (10) TMI 1140
Import of Gold from Korea - Valid import or not - case of Revenue is that respondent is neither a nominated bank nor a nominated agency as specified by Directorate General of Foreign Trade (DGFT) or in possession of status of star and premium trading houses and therefore, is not permitted to import the gold - contravention of the import policy envisaged by DGFT based on regulations promulgated by Reserve Bank of India - Confiscation - Penalty.
HELD THAT:- The Foreign Trade (Development and Regulation) Act, 1992 is an Act to provide for development and regulation of foreign trade by facilitating imports into, and augmenting exports from, India and for matters connected therewith or incidental thereto. Section 3 of the Act deals with Powers of the Central Government to make provisions relating to imports and exports. Section 3(2) empowers the Central Government to make a provision for prohibiting, restricting or otherwise regulating, in all cases or in a specific class of clauses and subject to such exceptions, if any, as may be made by or under the order the import or export of goods or services of technology, by an order published in the official gazette - from perusal of the provisions of Foreign Trade (Development and Regulation) Act, 1992 and the Foreign Trade Policy, it is evident that amendments to the Foreign Trade Policy can be made by the Central Government under Section 5 of the Act or by DGFT by issuing a Notification under para 2.07 of the Foreign Trade Policy. The change in categorization from free to restricted can be made in respect of import of goods, only by an amendment and the same cannot be done by DGFT by issuing a Circular.
In the instant case, admittedly, the gold medallions and gold granules were imported on 03.07.2017. Thereafter the DGFT by Notification dated 25.08.2017 has restricted the import of gold from South Korea - thus on the date, the gold medallions were imported i.e., 03.07.2017 there was no restriction and the restriction was imposed by the Central Government vide Notification dated 25.08.2017. In other words, there was no restriction with regard to import of gold medallion on the date the same was imported by the respondent - Similarly, the gold granules were imported on 21.09.2017 and thereafter DGFT issued a Notification dated 18.12.2019 by which import policy was amended and gold in any form was allowed only to be imported through nominated agencies as notified by the Reserve Bank of India in case of Banks and for other agencies by the DGFT. Thus, it is evident that on the date when the gold granules were imported i.e., on 21.09.2017, there was no restriction on its import and the restriction was imposed subsequently on 18.12.2019 by the DGFT by way of Notification. Thus, when gold medallions and gold granules were imported, they were freely importable and the same was brought under the restricted category subsequently.
Thus, the Reserve Bank of India itself has clarified that regulation of import / export of any item including importing of gold granules is in the domain of Ministry of Commerce / DGFT and is governed by Export-Import Policy / Foreign Trade Policy as prevalent at the relevant point of time.
Appeal dismissed.
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2020 (10) TMI 1139
100% EOU - Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The Central Board of Excise and Customs in exercise of statutory powers under Section 35R of the Central Excise Act, 1962 made applicable to service tax vide Section 83 of the Finance Act, 1994 and Section 131BA of the Customs Act, 1962, the Central Board of Excise and Customs had fixed the monetary limit in respect of filing the appeal at ₹ 10 Lakhs. Subsequently, the aforesaid limit was modified to ₹ 15 Lakhs vide instructions dated 11.12.2015.
Thus, it is axiomatic that instructions dated 17.08.2011, 11.12.2015 and instruction dated 22.08.2019 operate in different fields and instruction dated 22.08.2019 does not deal with Customs Act. Therefore, the monetary limit for filing appeal as prescribed in the instruction dated 11.12.2015 in respect of appeals arising under the Customs Act before this court applies to this appeal and since, the amount in dispute is less than ₹ 15,00,000/-, therefore, in view of instruction dated 11.12.2015 issued by Central Board of Excise and Customs, the appeal cannot be entertained.
Appeal dismissed.
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2020 (10) TMI 1138
Smuggling - Baggage Rules - high value electronic items, like, Mobile phone sets of different reputed brands, Sandisk pen drives, USB flash drives, RAM cards, Laptops, Watches of foreign origin - Confiscation - Redemption Fine - Penalty - HELD THAT:- The appellants have imported goods in violation of baggage rules and have also accepted the same in their respective statements. However, it is to be seen as to whether the valuation adopted by the Department is in accordance with law and correct and as to whether the penalties were imposed in terms of Section 112 of the Customs Act, 1962.
The show-cause notice states that the value of the recovered goods has been ascertained on the basis of reference value found in different product websites as detailed in Annexure A. However, on-going through the said Annexure, it is seen that in fact there are 4 Annexures A, B, C and D, for the goods seized from the 4 appellants respectively. On-going through such Annexure, we do not find that though the Annexures contain details like description, Model, make, country of origin. However, the addresses of web sites from where the values are taken are not mentioned. Copies or screenshots of websites displaying the value of the products is not also made available. Similarly, there was no reasoning, for adoption of such values and the Rules under which the same is arrived at, has been given either in the SCN or OIO.
Confiscation - Redemption Fine - Penalty - HELD THAT:- The value adopted by the department is neither logical nor rational and nor on any legal basis. Under the circumstances, we find that while holding that the good are liable for confiscation and the appellants are liable for penalty under Section 112(b), the request for reducing the penalties can be accepted. Accordingly, the redemption fines and personal penalties imposed on the appellants is reduced.
Appeal allowed in part.
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2020 (10) TMI 1137
EPCG Scheme - non-fulfilment of export obligation - Customs Notification No.64/2008-C.E., dated 09.05.2008 - HELD THAT:- Since the appellant submits that it had already achieved the export obligation against the goods imported by it, we are of the view that the adjudged demands cannot be confirmed on the appellant on the ground of non-fulfilment of the export obligation - However, since the facts regarding achievement of export obligation are required to be examined at the original stage, the matter should be remanded to the original authority for verification of the documentary evidences for a proper satisfaction of the fact that the export obligation in respect of the imports made under EPCG licence had already been achieved by the appellant.
Appeal allowed by way of remand.
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2020 (10) TMI 1136
Grant of Anticipatory Bail - Smuggling Gold - applicant would submit that there is no embargo under the Customs Act from seeking pre-arrest bail - Section 108 of the Customs Act - HELD THAT:- An offence under the Customs Act is undoubtedly an economic offence of grave nature and the Hon'ble Supreme Court has held in a number of cases, including in P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (9) TMI 286 - SUPREME COURT], wherein it was held that power under Section 438 Cr.PC being an extraordinary remedy has to be exercised sparingly; more so, in cases of economic offences, and that economic offences stand as a different class as they affect the economic fabric of the society.
The applicant has not yet been made an accused. But he apprehends arrest. There are no sufficient material to show that he will be arrested. Merely because he was questioned for 60 hours by the Customs Department does not indicate that he is intended to be made an accused - The fact that the applicant was in constant contact with one of the prime witness, namely Swapna Suresh, and that he had even volunteered to help her by contacting his Chartered Accountant and asking him to assist her in managing her finances indicates that there is a fair possibility that applicant knew about the involvement of Swapna Suersh in the alleged smuggling activity.
The power of the Customs Department to question the applicant under Section 108 cannot be curtailed by granting anticipatory bail. The relief sought for is undoubtedly premature - the applicant is not entitled to anticipatory bail - Bail application dismissed.
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2020 (10) TMI 1112
Right to seek the test of the consignments for determining whether the goods imported confirm to IS 3024:2015 - Seizure of imported consignment - 242 MT of CRGO Steel Sheets/ Coils - prime quality goods or not - HELD THAT:- Undoubtedly in the present case the ADG, Adjudication, DRI Mumbai, was acting as adjudicating authority, and has made this record of personal hearing as adjudicating authority. Also by stating “As regards request for testing, it was informed to them that the same was considered and found to be not acceptable, in view of the fact of the case and evidences placed before the adjudicating authority.”, he has made a determination and have rejected the request for testing of the consignment made by the appellant. Any such determination during the course of adjudication by the adjudicating authority is an order passed by the passed by the adjudicating authority and is within the purview of section 129A(1)(a) against which the appeal lies to this tribunal.
The matter needed to be considered in more serious manner and proper reasons to be assigned, because in any judicial/ quasi judicial proceedings, the effected party has the right to lead the evidence in the manner which suits to him best. Any order which is contrary to this basic principle has to be more considered and reasoned.
The sentence “As regards request for testing, it was informed to them that the same was considered and found to be not acceptable, in view of the fact of the case and evidences placed before the adjudicating authority.” appearing in the record of personal hearing dated 18.11.2019 is set aside - matter remanded to adjudicating authority for reconsideration of the request made by the appellant for testing of the consignments.
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2020 (10) TMI 1073
Imposition of penalty - principal argument of Revenue is that by virtue of the proviso to Section 114A of the Act, 1962, separate penalty cannot be imposed on the person under Section 112 of the Act when the very same person has been penalized under Section 114A - HELD THAT:- Whether redemption in the redemption fine and penalty was justified or not is essentially a finding of fact and no material has been adduced by the Revenue to establish that the order of the Tribunal was perverse.
Appeal dismissed.
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2020 (10) TMI 1040
Direction to consider several representations stated to have been filed by the petitioner - HELD THAT:- Since proceedings are on-going for assessment, it would not be appropriate to consider or grant the mandamus as sought. This writ petition is accordingly dismissed.
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2020 (10) TMI 1006
Grant of Anticipatory Bail/pre-arrest Bail - Smuggling - Gold - Cash - Section 135 of the Customs Act - HELD THAT:- Considering all the facts and also the fact that the granting of bail to accused 1 and 2 has not been challenged by the Customs Department and has now become final, there is no point in the applicant being incarcerated for the purpose of investigation as long as he is willing to cooperate with the investigation. Hence, the applicant is entitled to pre-arrest bail.
The bail application is allowed - the applicant is directed to surrender before the Customs Department in pursuance of Section 108 notice, which he has received and cooperate with the investigation and he shall be subjected to such interrogation keeping in view his health condition as evidenced by Annexures 19 to 21. In the event of his being arrested, he shall be released on bail on the execution of a bond for ₹ 1,00,000/-, with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions.
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2020 (10) TMI 973
Smuggling - Betel Nuts - reasons to believe - contention of the learned counsel for the petitioner is that the petitioner received an order from one M/s Saurabh Traders for purchase of ''betel nuts' and the petitioner purchased the ''betel nuts' from the local market and send the goods to the said M/s Saurabh Traders through the transporter Nahata Transport - HELD THAT:- This Court held that the "reasons to believe" which are a sine-qua-non for exercising the powers under Section 110 of the Customs Act should be based upon acceptable materials and should be more than a moon shine. The "reasons to believe" based upon prima facie examination of goods by naked eye, opinion of the local traders as well as the inscriptions on some of the bags were not held to be a valid "reasons to believe" for exercising the powers under Section 110 of the Customs Act. The Court also considered the instructions in Instruction No. 1/2017 and after considering the facts has quashed the seizure order.
In the present case also the Panchnama, which is stated to be the seizure order, is based upon only three factors namely, prima facie examination of goods, opinion of the local traders as well as inscriptions on some of the bags. Once this Court has held the said reasons to be not adequate for exercising of power under Section 110 of the Customs Act, the seizure order in the present case is also liable to be quashed
Petition allowed.
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2020 (10) TMI 972
Direction to allow to petitioner to give his statement in presence of his counsel - Section 108 (3) of Customs Act - HELD THAT:- The petitioner may move appropriate application before the authority concerned seeking the benefit of Section 108 (3) Customs Act within a period of one week from today, in case he has already not moved such application. The authority concerned may consider and decide the said application in accordance with law, expeditiously. In case the petitioner is permitted to appear along with his agent i.e., his Lawyer; then, the authority concerned may proceed with the matter accordingly.
Petition disposed off.
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2020 (10) TMI 971
Validity of SCN - Levy of Penalty u/s 112(a) of Customs Act on CHA - abetment of offence committed by the importer as against which the petitioner - scope of Sections 28(2) and 28(4) of the Customs Act, 1962 - suppression of facts or not - extended period of limitation - HELD THAT:- The benefit extended to an assessee under section 28(2) is available only in those situations falling under clauses (i) and (ii) of section 28(1)(b), that is, either where the assessee self-computes or seeks a computation from the proper officer of the duty and interest payable, and remits the same voluntarily, even prior to the receipt of a SCN from the officer and not in any other situation contemplated under Section 28 - In the present case, the SCN has been issued invoking the provisions of section 28(5) which contemplates an alternate scheme of assessment.
This submission is not acceptable for the reason that it does not take note of the scheme of assessment under Section 28 as noted and explained by me in the preceding paragraphs. To reiterate the conclusion in paragraphs 12 to 17 above, the benefit under Section 28(2) is available only in the case of a ‘regular’ assessment contemplated made under Section 28(1). This is made clear by the explicit exclusion in Section 28(1) of cases of collusion, wilful mis-statement or suppression of facts for the initiation of which revenue has the benefit of an extended limitation of five years. Furthermore, section 28(2) makes reference to the duty and interest remitted by the assessee computed in terms of Section 28(1), that is, in cases where there is no allegation of collusion, mis-statement or suppression of facts - The placement of Section 28(2), immediately after 28(1) is also, to my mind, supportive of the aforesaid conclusion. It is evident that it is only the remittance of duty and interest as referred to in sub-section (1) that is addressed in sub-section (2) of Section 28.
The petitioner is permitted to file an appeal challenging the impugned order before the appellate authority within a period of two weeks from the date of uploading of this order. Such appeal, if filed within the period as stated hereinbefore, shall be received by the registry of the appellate authority without reference to limitation but subject to all other statutory pre-conditions and will be heard and disposed on merits - petition dismissed.
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2020 (10) TMI 970
Refund of excess duty paid on account of wrong declaration of invoice value - rejection of request for amendment of the bills - HELD THAT:- Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were ‘in existence’ at the time of the goods were cleared, deposited or exported to establish the error - The lis in this matter revolves around the interpretation of the phrase‘in existence’, as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, ‘on record’ that such amendment could even be considered.
What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were ‘in existence’ at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such documents were actually ‘in existence’ is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being ‘in existence’ at the relevant time to evidence an error sought to be amended.
The rejection of the request for amendment by the respondent is set aside to be re-done de novo - Petition allowed.
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