|
Advanced Search Options
Customs - Case Laws
Showing 61 to 76 of 76 Records
-
2020 (10) TMI 233 - BOMBAY HIGH COURT
Release of imported watch of petitioner - Direction to the respondents to give effect to the order-in-appeal dated 29.11.2019 and to allow clearance of the imported watch covered by bill of entry No.9494939 dated 02.01.2019 on payment of duty on the declared value - whether respondent No.3 is justified in not releasing the imported watch of the petitioner in terms of the order-in-appeal dated 29.11.2019 and insisting on provisional release of the same subject to the conditions mentioned in the letter dated 04.02.2020?
HELD THAT:- On going through the order-in-appeal we do not find presence of any departmental representative in the appeal hearing though appellants i.e., the petitioners were duly represented by learned counsel who had also filed written submission. It does not appear that any objection or written submission were filed on behalf of the respondents before the appellate authority.
From the affidavit of the respondents it is seen that the order-in-appeal dated 29.11.2019 was received by the respondents on 18.12.2019. Committee of Commissioners took the decision on 05.03.2020 that the Customs Department should file appeal against the order-in-appeal before CESTAT whereafter the appeal alongwith stay application were filed on 09.06.2020 before CESTAT, Mumbai Bench. Be that as it may, since the Customs Department has preferred appeal before the CESTAT, we would refrain from expressing any opinion on merit. That leaves us with the question which we have formulated on the basis of objections raised by the respondents.
The period of limitation of three months commences from the date on which the order sought to be appealed against is communicated and not from the date of decision of the Committee of Commissioners.
Reverting back to the facts of the present case, according to the respondents themselves the order-in-appeal dated 29.11.2019 was received by the respondents on 18.12.2019. The limitation period of three months therefore commences from this date - The word ‘month’ is not defined in the Customs Act. We therefore take recourse to the definition of the said word as provided in the General Clauses Act, 1897. Section 3 of the said act provides for various definitions and says that after commencement of the General Clauses Act, 1897, the meaning given to the expressions contained in various sub-sections of section 3 would be applicable to all central acts and regulations unless there is anything repugnant in the subject or context. As per sub-section (35) of section 3, the word ‘month’ has been defined to mean a month reckoned according to the British calendar.
In the present case the limitation period of three months which commenced on 18.12.2019 had expired on 18.03.2020.
When the order-in-assessment has been set aside by the appellate authority, the original order no longer survives until and unless the order-in-appeal is either stayed or in the ultimate analysis itself is set aside. Therefore, basing upon the order-in-assessment which no longer survives, it is not open to the departmental authorities to grant provisional release of the good in question that too subject to fulfillment of certain conditions which are clearly beyond the order-in-appeal.
When the petitioners themselves sought for provisional release of the imported watch and the same having been granted by the respondents subject to fulfillment of the conditions mentioned in the letter dated 04.02.2020, whether it is open to the petitioners to seek the relief as is being sought in the present proceeding? - HELD THAT:- The only provision in the Customs Act which deals with provisional release of goods etc. is section 110-A. This provision says that any goods, documents or things seized under section 110 may pending the order of the adjudicating authority be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. From the above, it is seen that section 110-A will come into play only if two pre-conditions are fulfilled, namely, there must be seizure under section 110 and the goods, documents or things so seized may be subject to proceeding before the adjudicating authority. Seizure is dealt with in section 110. Sub-section (1) makes it very clear that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. In the instant case, admittedly there was no seizure and secondly, assessment of the good in question was not pending consideration. Assessment was already made by way of the order-in-assessment dated 25.03.2019. It is another matter that even that order-in-assessment has been set aside by the order-in-appeal. Since there is neither any seizure nor pendency of proceeding before the adjudicating authority, question of application of section 110-A does not arise.
The objections raised by the respondents are legally and factually unsustainable and thus are hereby rejected - respondent Nos.2 and 3 to release the imported watch of the petitioners forthwith in terms of the order-in-appeal dated 29.11.2019 - Petition allowed.
-
2020 (10) TMI 232 - CESTAT MUMBAI
Classification of goods imported - whether the goods imported are calcareous stone ‘other than marble’ which could be allowed to be imported only against SIL during the relevant period or the goods are “marble” as claimed by the appellants? - Confiscation - Redemption Fine - Penalty - HELD THAT:- In the de novo adjudication, learned Commissioner after considering the report of GSI and evidence of cross-examination of one of the Officer of GSI, held that the imported goods are not ‘marble’ but ‘other calcareous stone’. In arriving at the conclusion, the learned Commissioner heavily relied upon the judgment of the Hon'ble Supreme Court in the case of AKBAR BADRUDDIN JIWANI VERSUS COLLECTOR OF CUSTOMS [1990 (2) TMI 50 - SUPREME COURT] - there are merit in the observation of the Ld. Commissioner. No plausible argument was advanced on behalf of the appellants in support of their claim that the judgement of Hon’ble Supreme Court in the above case is distinguishable and not applicable to the case. Also, as observed by the ld. Commissioner and submitted by the Ld. AR for the Revenue that even though the appellants have raised an alternative argument that in the common parlance the goods imported by them is known as marble, but they failed to produce any evidence to substantiate the said claim. Thus, in absence of sufficient proof the said alternate plea also cannot be acceptable. Therefore, the goods imported by the appellants are not ‘marble’ but ‘calcareous stone other than marble’ which requires specific import licence at the relevant time.
Whether there is violation of the relevant provisions of law on import goods? - contention of the appellant is that all these goods imported into India after 8.5.1999, hence insisting specific import licence only for the reason that the shipment were done prior to the said cut off date i.e. 8.5.1999 is not tenable in law - HELD THAT:- There are no merit in the said contention of the appellants in as much as the issue is settled in a series of cases including in the cases by the Hon’ble Madras High Court in M/S. ROYAL IMPEX VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS, GROUP -1 [2019 (3) TMI 312 - MADRAS HIGH COURT], & M/S. AGRO 1 STOP REP BY ITS PROPRIETOR VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS [2019 (3) TMI 1343 - MADRAS HIGH COURT] and Bombay High Court in SIDDHI VINAYAK, VERSUS THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF COMMERCE, DEPARTMENT OF COMMERCE, THE DIRECTOR GENERAL OF FOREIGN TRADE, THE COMMISSIONER OF CUSTOMS (IMPORT) , THE DEPUTY COMMISSIONER OF CUSTOMS, (IMPORT) , [2019 (4) TMI 344 - BOMBAY HIGH COURT], whereunder it is held that the date of shipment is relevant for compliance and not the date of import.
Confiscation - HELD THAT:- The Ld. Commissioner has held that the imported goods have been declared as marble but on examination found to be not of ‘marble’ and is liable for confiscation under section 111(m); also since at the time of its shipment the appellant did not have specific import license, the goods are liable for confiscation under section 111(d) of Customs Act, 1962 - This Tribunal considered similar issue in case of M/S JUST MARBLE, M/S VAISHNO MARBLES VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI [2016 (12) TMI 823 - CESTAT MUMBAI] and CLASSIC MARBLE VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI-I [2010 (11) TMI 920 - CESTAT MUMBAI] and JAI BHAGWATI IMPEX PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, GOA [2017 (3) TMI 490 - CESTAT MUMBAI], held that in absence of SIL on import of the calcareous stone, the same are liable for confiscation and attracts penalty - there are no reason to interfere with the said finding of Ld. Commissioner
Redemption fine - Penalty - HELD THAT:- This Tribunal in similar circumstances, in the case of GURU KRIPA MARBLES VERSUS COMMISSIONER OF CUSTOMS, NHAVA SHEVA [2006 (5) TMI 237 - CESTAT, MUMBAI] following the judgement of Hon’ble Bombay High Court in COMMISSIONER OF CUSTOMS, NHAVA SHEVA VERSUS MARMO CLASSIC [2003 (7) TMI 75 - HIGH COURT OF JUDICATURE AT BOMBAY], later approved by the Hon'ble Supreme Court reported as COMMISSIONER OF CUSTOMS (IMPORT) VERSUS STONEMAN MARBLE INDUSTRIES & ORS. [2011 (1) TMI 15 - SUPREME COURT] held that the redemption fine be restricted to 20% of CIF value and penalty to 5% of the said value. In the facts and circumstances of the case, ends of justice would meet if the fine and penalty is reduced to 20% and 5% respectively.
The impugned orders are modified to the extent of reduction of fine and penalty to 20% and 5% respectively, and all the appeals are remanded to the adjudicating authority to calculate the redemption fine and penalty accordingly - Appeal allowed by way of remand.
-
2020 (10) TMI 185 - BOMBAY HIGH COURT
Release of detenue - Smuggling - electronic goods - whether delay in passing the detention order would vitiate the detention order? - HELD THAT:- There is nothing on record to indicate the steps taken or the efforts made by the executing authority to execute the order of detention between the period from March 3, 2020 to June 8, 2020. The executing authority has only stated that they visited the address mentioned in the detention order on February 25, 2020 and March 3, 2020 when they found the premises have been demolished for construction of SRA project. Further, they stated that they visited the mobile shop of the petitioner’s brother on these two dates viz. February 25, 2020 and March 3, 2020 when they found the shop to be closed. Except for this no material is produced on the basis of which it can be said that the police authorities made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out - In the facts of the present case, it is not possible for us to accept the bare and vague contention of the executing authority that the detenu had absconded in the absence of bringing materials on record about efforts made to trace out the detenu during the period from March 3, 2020 to May 28, 2020.
For the period from March 3, 2020 upto May 28, 2020, we find no serious efforts were made by the police authorities to apprehend the detenu and no materials are placed on record to indicate the steps taken. It is not stated where they looked for him and what inquiries were made by the police authorities to find his whereabouts. No materials are produced on the basis of which it can be said that the police authorities had made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out. Thus, this delay in execution of the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the Detaining Authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. Hence, the inevitable conclusion would be that the Respondents were not serious in detaining the Petitioner under the preventive law of COFEPOSA.
The detention order is set aside - petition allowed - decided in favor of petitioner.
-
2020 (10) TMI 184 - KARNATAKA HIGH COURT
Vacation of Interim Order - levy of redemption fine and penalty - import of consignments of multifunctional printers/devices (MFD) - whether, the Tribunal exercised its discretion in accordance with law, in light of the violations complained by the Department? - HELD THAT:- We have already referred to the contentions of the learned counsel for appellant – Department in detail. He drew our attention to two principal violations in the matter of import of the goods in question. The first being no compulsory registration under the Government Order dated 07/09/2012 and having regard to Sl.Nos.7 and 8 of the Schedule thereto, made under the provisions of BIS Act, 1986. In that regard, learned counsel for appellant also drew our attention to Notification of the Ministry of Communications and Information, Technical Department of Information Technology dated 07/11/2014, issued under the BIS Act, with reference to Sl.No.26, which deals with copying machines/duplicators. The original schedule refers to only printers, plotters and scanners. On a combined reading of the same, we find that the goods in question namely, MFDs do not fall in either of these two Schedules i.e., Schedule as per Notification dated 07/11/2014 or in the Schedule as originally appended to the Order dated 07/09/2012. In the circumstances, on the facts of this case, we hold that it was unnecessary for the respondents herein to register under the provisions of the Electronics and Information Technology Goods [Requirements for Compulsory Registration] Order, 2012.
Non-compliance with Rule 13(2)(a), (b) and (c) of the H&OW Rules, 2016 - HELD THAT:- There is force in the contentions of learned counsel for respondents, inasmuch as under the Order for compulsory registration of 2012, MFDs do not find a place and secondly, under the H&OW Rules, submission of Form No.6 under Sl.No.4(j) of the Schedule VIII of H&OW Rules, 2016 does not arise - Admittedly, Form No.7 deals with an application form for one time authorization of traders for Part-D of Schedule III, which deals with “other wastes”, under H&OW Rules - Admittedly, the MFDs in question are category of “other wastes”. Noticing the fact that there was seizure of the goods in question and after the order of the Original Authority, the goods were held liable for confiscation and being aggrieved that respondents herein had challenged the order of the Authorities before the Tribunal.
In the instant case, the Tribunal has applied the dictum of the Hon’ble Supreme Court in COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [2019 (1) TMI 1324 - SUPREME COURT] and has held that there was a substantial compliance in all respects and there was only a procedural aberration and hence, it granted relief in those cases which has been followed by the Tribunal in the instant cases also. While doing so, the Tribunal has also noticed Section 11(8) and (9) of the Foreign Trade Act, 1992 read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 also under Section 3(3) of the Foreign Trade Act. Hence, we find that the dictum of the Hon’ble Supreme Court in Atul Automations would squarely apply in the instant cases also, which has been followed by the Tribunal. Therefore, the substantial questions of law raised by the Department in these cases with regard to the applicability of the judgment of the Apex Court in Atul Automations, would not arise.
Appeal dismissed.
-
2020 (10) TMI 183 - CESTAT KOLKATA
Refund of Mica Cess - levy of said mica cess got repealed vide the Finance Act, 2016 - effective date of repealment - It is the contention of the appellant that no mica cess is leviable on export of mica products w.e.f. 01.04.2016 whereas, the contention of the Department that the said levy got omitted only with effect from 14.05.2016 which is the date of enactment of Finance Act, 2016.
Whether the date of repeal of mica cess would be 14.5.2016 i.e. the date of enactment of the Finance Act, 2016 (when the Finance Bill received the assent of the Hon’ble President) or 01.04.2016 as mentioned in an office Memorandum dated 27.7.2016 issued by the Department of Economic Affairs, Budget Division, under Ministry of Finance, Govt. of India, which has been relied upon by the appellant while pursuing the refund application?
HELD THAT:- On perusal of the amendments introduced vide Section 239 of the Finance Act, 2016, it clearly appears that the same would be applicable with the date of enactment i.e. 14.05.2016 inasmuch as no stipulation has been made to provide that the same would be applicable w.e.f. 01.04.2016. By virtue of said Section 239, the enactments mentioned in the Fifteenth Schedule have been repealed (incl. the repeal of mica cess levy). This is more so in view of the specific provision made in Section 241 of the Finance Act, 2016, reproduced above, which clearly provides that the duties levied under the respective enactments (which got repealed vide Section 239) immediately preceding the date on which the Finance Bill, 2016 receives the assent of the President, if not collected shall be collected and paid into the Reserve Bank of India for being credited to the Consolidated Fund of India - This clearly affirms the position that cess applicable under the repealed Act was very much effective till the date of receipt of the Hon’ble President’s assent. The same being the legal position, no contrary conclusion can be drawn on the basis of contents of Office Memorandum dated 27.07.2016 as relied by the appellant.
The observation made by the Apex Court in BK. INDUSTRIES VERSUS UNION OF INDIA [1993 (4) TMI 66 - SUPREME COURT] is squarely applicable to the facts of the instant case, inasmuch as the Apex Court clearly held that Section 13 in the said case (Section 241 in the instant case) expressly provided that the cess due before the date of said repeal, but not collected, shall be collected according to law as if the Cess Act is not repealed. This provision amounts to a positive affirmation of the intention of the Parliament to keep the said imposition alive and effective till the date of the repeal of the Cess Act - Mere reliance by the learned Advocate on the Official Memorandum dated 27.7.2016 would not come to their rescue inasmuch the same cannot override the legal position emanating from the provisions contained in the statutory enactment.
Appeal dismissed - decided against appellant.
-
2020 (10) TMI 182 - CESTAT NEW DELHI
Condonation of delay in filing appeal - power of Commissioner (Appeals) to condone delay - HELD THAT:- The Act. The Commissioner (Appeals) has noted that an Appeal under section 128 of the Act is required to be filed within a period of 60 days from the date of communication of the order but it can be presented within a further period of 30 days if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the Appeal within the aforesaid period. The Commissioner (Appeals) noted that the present Appeal was presented even after the extended period of 30 days.
A Division Bench of this Tribunal in Diamond Construction vs. Commissioner of Customs, Excise and Service Tax, Jabalpur, [2019 (2) TMI 1822 - CESTAT NEW DELHI] has held that the Commissioner (Appeals) cannot condone any delay if the Appeal is presented beyond 30 days after the expiry of 60 days.
The Commissioner (Appeals) committed no illegality in dismissing the Appeal - appeal rightly dismissed.
-
2020 (10) TMI 181 - CESTAT NEW DELHI
Levy of penalty - late filing to bill of entry - import of “Stearic Acid” which was partially exempted as per Notification No.12/12-Customs dated 17.03.2012 (Sr. No. 230A), till the amendment of tariff from 30.06.2017 - HELD THAT:- Though the importer is required to present the bill of entry before the end of the next day following the day (excluding holidays) on which the Aircraft or Vessel or Vehicle carrying the goods arrives at a Customs station at which such goods are to be cleared for home consumption or warehousing. However, as per sub regulation (2), it is provided that the penalty for late presentation of bill of entry shall be liable to be paid, if there was no sufficient cause for delay in filing the bill of entry. In the present case entire event from time of import till the filing of bill of entry is known to the Custom Department that the appellant intended to claim the exemption notification but due to apparent error in the notification, the appellant was not in a position to file the bill of entry on EDI System - Since, the appellant had strong belief that they are entitled for exemption Notification, they followed up the matter with the Customs, however, the Customs Official knowingly that the goods is exempted insisted the appellant to file bill of entry and pay the entire custom duty and the later they can claim the refund. Once it is admitted that the goods are exempted no any business person would pay the custom duty and clear the goods and this is the reason the appellant were reluctant to file the bill of entry. However, since the Customs Official did not clear the goods under exemption, the appellant had no option but to file bill of entry without claiming the exemption notification.
This entire episode is a sufficient cause for delay in filing the bill of entry, therefore, invoking the sub-regulation-(2) of regulation 4, no charges for late presentation of bill of entry should have been demanded from the appellant - the appellant has made out a fit case for non-imposition of charges for late presentation of bill of entry. Accordingly, the charges paid for late filing of bill of entry is refundable to the appellant.
Appeal allowed - decided in favor of appellant.
-
2020 (10) TMI 180 - CESTAT NEW DELHI
Valuation of imported goods - Sunglasses of various models - rejection of transaction value - confiscation of goods - imposition of penalty - HELD THAT:- Section 14 of the Customs Act provides that for the purpose of valuation the value of imported goods shall be the transaction value of such goods, i.e. to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time of place of importation, or as the case may be for export from India, where the buyer and seller of the goods are not related and price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules made in this behalf. It is further provided that rules made in this behalf may provide for the manner and acceptance or rejection of value declared by the importer or exporter, where the proper officer has reason to doubt the truth or accuracy of such value and determine value for the purposes of this Section.
There are no reasons recorded for rejection of transaction value before taking the exercise of revaluation and enhancement of transaction value.
Appeal allowed - decided in favor of appellant.
-
2020 (10) TMI 179 - CESTAT MUMBAI
Principles of Natural Justice - Valuation of imported goods - re-determination of value sought to be done by the Adjudicating Authority - Chinese origin goods or Vietnamese and Swiss origin goods - Rejection of declared goods - HELD THAT:- It appears that the Adjudicating Authority has alleged the mis-declaration on the basis of the only fact that a small percentage of goods are not adhering to the country of origin. The appellants claim that they have contracted with the supplies and the goods came from China even though some goods had having marking of the countries. It is not forthcoming in the order as to how the importer had knowledge that some goods were of origin other than mentioned in COO. Moreover, it is not discussed as to how 80% goods whose COO was correctly declared were liable to calculation and re-determination of value. Similarly, the plea that the impugned goods are not liable to MRP was not discussed. Moreover, the Appellate Commissioner has based his order on the basis of report/comments dated 18.11.2011 obtained from Additional Commissioner. It is not clear whether copy of such report was given to the appellant and his submissions were obtained. The same are not part of findings of OIO. We also find that the OIO has some contradictions. On the one hand OIO says there are no imports of identical or similar goods, and the other hand re-determines the values of some goods on the basis of price of identical goods said to have been imported by the appellants themselves. Moreover, adjudicating authority observes that the appellant has not been able to justify the vast difference in value with any cogent reasons.
It is for the department to prove that valuation was wrong rather than the appellant proving it otherwise. Under the circumstances, the issue needs to go back to the Original Authority to appreciate the facts afresh, considering the submissions of the appellant and to pass a reasoned order as per law - Appeal allowed by way of remand.
-
2020 (10) TMI 128 - MADRAS HIGH COURT
Violation of import conditions - benefit of Concessional rate of duty denied - stand of the respondents is that the imported goods should have been put only for own use consumption and should not have been sold - SI.No.292(A) of General Exemption N/N. 50/2017-Customs, dated 30.06.2017 - HELD THAT:- Since the petitioner has now obtained End Use certificate from the jurisdictional authority, in the interest of justice, he deserves to be granted one more opportunity. In this view of the matter, the order impugned in this writ petition is quashed - The matter is remitted to the file of the first respondent. The first respondent will issue a fresh hearing notice to the petitioner. On the said date, the petitioner should place all the materials such as End Use certificates before the first respondent for his consideration.
Petition allowed by way of remand.
-
2020 (10) TMI 74 - BOMBAY HIGH COURT
Attachment of Bank Accounts - case of petitioner is that attachment of the bank account has continued beyond the statutorily permissible period and therefore should be interfered with - HELD THAT:- There are no good reason to sustain the communication dated 19th April, 2018 as more than two years have elapsed since the bank account was frozen - sub-section (5) of Section 110 speaks of provisional attachment. Dictionary meaning of provisional is ‘arranged or existing for the present, possibly to be changed later’; Black’s Law Dictionary, Eight Edition, has defined it as ‘temporary or conditional’. Therefore, the statute has provided a definite time line beyond which the attachment becomes bad in law.
The impugned communication dated 19th April, 2018 is hereby set aside and quashed - Respondents are directed to allow petitioner to operate its bank account with IndusInd Bank - Petition allowed - decided in favor of petitioner.
-
2020 (10) TMI 73 - BOMBAY HIGH COURT
Release of detained and seized goods - kerosene / diesel - prohibited goods or not - large scale mis-declaration of goods as mineral hydrocarbon oil with a view to smuggle in kerosene / diesel by some importers - waiver of demurrage charges incurred till release of the goods - HELD THAT:- The goods in question have been seized under section 110 of the Customs Act. From a reading of sub-section (1) of section 110, it is evident that seizure of a good is not an end in itself. It is a means to an end. The end is confiscation, if justified and warranted. From the pleadings it is seen that the goods were put on hold and thereafter seized in the first week of January, 2020. Considering that the goods in question, be it mineral hydrocarbon oil as claimed by the petitioner or kerosene / high speed diesel as claimed by the respondents, are highly inflammable and hazardous, a proceeding related thereto is required to be decided expeditiously. The adjudicating authority is required to decide whether goods are liable for confiscation or not; adjudication cannot be kept pending. He may also have to decide whether the goods should be sold or not having regard to the hazardous and inflammable nature of the goods.
Petitioner is granted liberty to file appeal before the CESTAT under section 129-A(1)(a) of the Customs Act against the order dated 31.08.2020 - If such appeal is filed within a period of four weeks from today and an application is made for early hearing, CESTAT shall decide the appeal within a period of four weeks thereafter considering the limited nature of the grievance of the petitioner.
Petition disposed off.
-
2020 (10) TMI 72 - CESTAT KOLKATA
Levy of penalty under Section 112 of the Customs Act, 1962 - Smuggling - Bangladesh Currency - cross-examination of the persons on the basis of whose statements the appellant has been made a co-accused, denied - violation of principles of Natural Justice - HELD THAT:- In the absence of cross-examination of Shri Manoj Roy, his statement do not appear to inspire confidence for use as a reliable evidence to impose penalty upon the appellant in these proceedings - Hon’ble Supreme Court in the case of ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT] have categorically held that not allowing the appellant to cross-examine the persons by the Adjudicating Authority, though the statements of those persons were made the basis of the impugned order, tantamounts to serious flaw which makes the order a nullity inasmuch as it amounted to violation of principles of natural justice because of which the appellant was adversely affected.
The case of the Revenue remains disapproved as the investigation is inconclusive and insufficient in the absence of corroborative/substantial evidences. The case is only based on the statement of Shri Manoj Roy and on assumption, presumption or suspicion. As no case has been established by the Revenue through reliable evidences, directly or indirectly connecting the appellant in connection with the seized Bangladesh currency – Taka, the penalty imposed on the appellant is unwarranted - the penalty ₹ 5,44,000/- imposed under Section 112 of the Customs Act, 1962 on Shri Dipak Kumar Agarwala is set aside.
Appeal allowed - decided in favor of appellant.
-
2020 (10) TMI 71 - CESTAT MUMBAI
Levy of Penalty u/s 114(i) of the Customs Act 1962 - Smuggling - Red Sanders - retraction of statements - preponderance of probability - HELD THAT:- The statements have been recorded under Section 108 of the Customs Act, 1962 and the provisions thereof have been explained to the appellants and the retractions are held to be an afterthought. Therefore, the statements of the appellants and those of the co-accused have evidentiary value in the proceedings before us. We find that the appellants have also taken a plea that the CBI has not found any evidence to proceed against them and have not filed any FIR against them and therefore, the proceedings against them under Customs Act also need to be discharged.
The proceedings under CrPC and proceedings under Customs Act, 1962 are on a different footing. The standard of proof in a criminal proceeding is proof beyond doubt whereas in the adjudication proceedings, the standard of proof is preponderance of probability.
The role of Shri Mohammad Altaf has been established with a reasonable degree of evidence so as to establish the offence under Customs Act, 1962 in adjudication proceedings. We find that Shri Mohammad Altaf has involved himself in the act of smuggling of red sanders. Ongoing through the facts of the case, we are convinced that Shri Mohammad Altaf has played a pivotal role in the smuggling of red sanders. He has not only negotiated with the suppliers, the middleman, the exporters and the logistics persons in the export of red sanders but also has invested certain amount in the business - The Advocate representing Shri Mohammad Altaf pleaded that there is some discrepancy in the amount stated to have been invested by Shri Altaf. Shri Altaf is alleged to have invested ₹ 50, 00, 000/- as per his own statement whereas Shri Meghani reported the same to be ₹ 12, 50,000/-. However, this goes to prove that Shri Mohammad Altaf has invested certain amount with a view to have pecuniary gain in the business.
The retractions made by Shri Altaf have no substance and have been rightly held to be an afterthought by the Adjudicating Authority. The role played by Shri Mohammad Altaf is evident in the case and looking into the fact that he is a responsible officer of the Customs Department, entrusted with the responsibility of curbing smuggling activities, we find that the appellant has not made out any case for proving the allegations to be wrong and baseless. It is a clear case of the fence eating the crop and therefore, need to be treated with circumspection - the investigation has to a reasonable extent came out with evidence that can be analysed and accepted on the principles of preponderance of probability - the penalty imposed on Shri Mohammad Altaf, under Section 114 (i) of Customs Act, 1962, is upheld, but quantum is reduced.
The other appellant Shri Ali Imran Shafiullah Khan, had a role in tampering with the seals and loading that container with red sanders with the help of Dilip (Deepak Joshi),Sheru, Nayan Singh (driver arranged by Sheru) and Arif. It has not been brought on record as to the amount of financial benefit that accrued to the appellant. Under the circumstances, we find that penalty of ₹ 25, 00,000/- imposed on Shri Ali Imran Shafiullah Khan is on the higher side. While finding that the role played by Shri Khan is brought out with reasonable evidence, we are inclined to reduce the penalty to ₹ 5, 00,000/-.
Other pleas not considered.
Appeal allowed in part.
-
2020 (10) TMI 70 - CESTAT NEW DELHI
Provisional release of the seized goods on execution of Bond and on furnishing of bank guarantee - Section 110 A of the Customs Act, 1962 - HELD THAT:- As per section 110A, the Adjudicating Authority may, pending the final order, release the goods to the owner on taking a bond from him in the proper form with such security and conditions as the Adjudicating Authority may require. Thus, the Adjudicating Authority has to take a decision and the owner of the goods is required to be apprised of the reasons culminating in the provisional release order.
In the present case, it transpires that the office put up a note indicating the value of bond and the value of bank guarantee/security and this note has merely been signed by the Commissioner. It also needs to be noted that even the note was not supplied with the order. Such a procedure does not satisfy the requirement of Section 110A of the Customs Act. The order passed by the Commissioner must indicate application of mind and contain reasons for passing an order for provisional release. Each case has to be considered on the basis of the facts brought to the notice of the Commissioner.
There is no hesitation in observing that the communication dated April 27, 2020 for provisional release of goods should be set aside - appeal allowed - decided in favor of appellant.
-
2020 (10) TMI 20 - CESTAT MUMBAI
Refund - appeals rejected only on the ground that the appellant cannot challenge their own self-assessment before the Commissioner(Appeals) under Section 128 of the Customs Act, 1962 because self-assessment is not an assessment - HELD THAT:- This issue is no more res integra and has been settled by the Hon’ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] where it was held that The provisions under section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all.
Matter remanded back to the Commissioner(Appeals) to decide the same on merits after affording an opportunity of hearing to the appellants and after complying with the principles of natural justice - appeal allowed by way of remand.
|
