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Customs - Case Laws
Showing 1 to 20 of 162 Records
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2020 (2) TMI 1670 - BOMBAY HIGH COURT
Completion of proceedings pursuant to the show-cause - time limitation - Respondents contends that the Petitioner can answer the show-cause notice and get the issue adjudicated - HELD THAT:- The Customs Act 1962, stipulates limitation for completion of proceedings pursuant to the show-cause - We are informed that limitation would expire by 25 March 2020. Since the matter is being adjourned, to avoid further complications, there shall be ad-interim stay to the impugned show-cause notice dated 25 July 2019.
Stand over to 26 March 2020.
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2020 (2) TMI 1657 - SUPREME COURT
Rectification of mistake - it has been submitted that the correct date in the office report of the disposal of Special Leave Petition (C) CC No. 3881 of 2010 ought to have been 6 April, 2009 and not 6 April, 2010 - HELD THAT:- The office report dated 9 July, 2010, which was placed on record when the Special Leave Petitions were dismissed on 12 July, 2010, suffered from an inadvertent mistake. In the interests of justice, we recall the order dated 12 July, 2010 and restore the Special Leave Petitions to file.
The Review Petitions are accordingly allowed.
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2020 (2) TMI 1604 - CESTAT MUMBAI
100% EOU - Classification of imported goods - drugs - restricted goods or not - Rule 43A of Drugs and Cosmetics Rules, 1945 - HELD THAT:- The goods are, admittedly, intended for use in manufacture by ‘100% export oriented unit’ and, for such units, imported goods are procured against ‘into bond’ bill of entry which are then subject to processing in accordance with the Rules framed, and for supervision of facilities licenced, under Section 65 of Customs Act, 1962. Therefore, unlike other warehousing procedures, clearance against ‘ex bond’ bill of entry for home consumption is restricted only for removal as such with clearances undergoing the procedure prescribed under Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics Rules, 1945. Consequently, the pre-requisites for clearance of goods for home consumption, viz., ascertainment of payment of duties and ascertainment of any prohibition on import, prescribed in Section 47 of Customs Act, 1962, are not intended to impact the goods procured from abroad by units operating under the scheme.
The invoking of Section 111 of Customs Act, 1962 on such goods brought into the bonded premises of ‘100% export oriented units’, such as that of the respondent, is not within the scope of legislative intent. The initiation of proceedings against the respondents herein, therefore, does not have the sanction of law.
The impugned order cannot be faulted for setting aside the confiscation and penalty ordered by the original authority - Appeal dismissed - decided against Revenue.
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2020 (2) TMI 1603 - CESTAT MUMBAI
Classification of imported goods - Desiccants-MBD 99 - to be classified under CTH 250810190 of Customs Tariff Act, 1975 or under CTH 38029019 of CTA, 1975 - It is alleged that the activated clay/ activated earth/ processed bentonite falls under CTH 3802.90 since it is acid activated, because of which a different product with modified molecular structure having distinct properties like absorptive capacity, catalytic properties, ion exchange capacity bearing different industrial use, emerges? - extended period of limitation.
HELD THAT:- In narrating the facts in the appeal memo, the appellant has stated that the said product was ‘Heat Processed and Grounded Bentonite’ having the property of absorbing moisture and by heat processing the water contents are removed to improve absorbent property of the said Bentonite clay. We need not analyze the issue of classification any further as the product imported by the appellant is more or less similar to the product considered by the Tribunal in KOMAL TRADING COMPANY VERSUS COMMISSIONER OF CUS. (IMPORT), MUMBAI [2014 (5) TMI 754 - CESTAT MUMBAI] where it was held that for the period from 1-2-2003 to 31-12-2006, activated Bentonite has to be classified under CTH 2508 10 90 (because of its specific inclusion in the tariff description). However, for the period prior to 1-2-2003 and from 1-1-2007 onwards, when there is no specific inclusion, in view of Note 1 to Chapter 25 which excludes products whose structure has undergone a change, the said product merits classification under CTH 3802 90 19.
Thus, the product Desiccants - MBD 99 is correctly classifiable under chapter sub-heading 38029019 of CTA, 1975.
Extended period of limitation - HELD THAT:- In the present case also, there is no suppression of facts or mis-declaration as all the relevant materials were submitted by the appellant at the time of import of goods for assessment. Accordingly, invoking extended period in confirming the demand is unsustainable.
The impugned order is upheld to the extent of confirming the classification of the imported goods under CTH 38029019. However, the demand confirmed invoking extended period of limitation and imposition of penalty and confiscation directed against the appellant are hereby set aside - Appeal allowed in part.
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2020 (2) TMI 1602 - CESTAT MUMBAI
Import of the Graphite Tubes - imported Graphite Tubes were not used by the appellant in their factory - non-compliance with the condition of Notification No. 21/2002-Cus., dated 1-3-2002 - HELD THAT:- It is an undisputed fact that the imported Graphite Tubes during the relevant period were received in the factory premises of the appellant, and the same cleared to the site of the customer, and fitted to Heat Exchangers, which in turn, used in MSFE system installed at the site of the customer. The Revenue’s objection is that as a condition of the said Notification No. 21/2002-Cus., dated 1-3-2002 read with Customs (Import of Goods at Concessional Rate of Duty for Manufacturing of Excisable Goods) Rules, 1996, the imported Graphite Tubes were required to be used “in his factory”, even though the same were fitted to Heat Exchanger at the site of the customer. Rebutting the said argument, the appellants have submitted that after receiving the Graphite Tubes in their factory the same were tested for its suitability in the Heat Exchanger and cut to relevant sizes, thereafter cleared to the site of the customer for fitting it finally in the Heat Exchanger. They have argued that the Graphite Tubes are cleared separately instead of fitting the same in their factory due to the fragile nature of the said Graphite Tubes, which in all probability could break during the course of transportation of the Heat Exchanger to the site.
The Revenue’s only objection in denying the benefit of Notification is that the imported Graphite Tubes were not used by the appellant in their factory. There is no dispute of the fact that the Graphite Tubes were received in the factory and to the claim of the appellant that they were tested and made suitable after necessary cutting and polishing, etc., to be used in Heat Exchanger, a part of MSFE system, no contrary evidence has been placed on record - a logical, reasonable and technically sound explanation has been furnished by the appellant for such separate clearance. It is stated that due to fragile nature of the imported graphite tubes, after its testing the same were cleared separately to avoid damage during transportation of the Heat Exchangers to the site. It cannot be denied that the Heat Exchanger cannot function without having fitted with the Graphite Tubes and the Revenue has not disputed that the said Graphite Tubes were fitted to Heat Exchanger at the site of the customer.
The appellant had complied with the condition of Notification of using the imported goods in their factory both in letter and spirit, hence denial of benefit exemption Notification No. 21/2002-Cus., dated 1-3-2002 to them would be unjustified and accordingly, the impugned order is liable to be set aside on merit. Also, there is a good case on limitation also.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1597 - KERALA HIGH COURT
Smuggling - contraband item - failure to supply documents that were relied on in the detention order - personal bias alleged against the sponsoring authority, detaining authority or the affirming authority - HELD THAT:- The detenu is heard, without the presence of Department officials for reason of the detenu being in preventive custody, on the subjective satisfaction of the detaining authority. The entire attempt being to secure his freedom; the detenu would have something to submit before the Advisory Board which he would be averse to state before the officials, under whose detention, he will be returned after the hearing - Section 8 of the COFEPOSA Act does not mandate even a hearing, unless it is thought necessary by the Board or the detenu desires so. On the detenu seeking a hearing, it is imperative. But there is no hearing contemplated of the Department. The Department's presence before the Advisory Board is only when the Board seeks any further information from the appropriate Government or through it. The Advisory Board, it is trite, is empowered to device its own procedure as there is no lis to be adjudicated.
Section 8 empowers the Advisory Board to call for any information, as it may deem necessary, from or through the appropriate Government. Needless to say that such information, whether it be by way of documents or by oral clarifications has to be disclosed to the detenu. The detaining authority cannot place material or argue matters not evident from the records already supplied to the detenu.
The subjective satisfaction should emanate from the order of detention and the documents relied on. The defect in procedure, which would vitiate an order of preventive detention, could be either the materials proffered being specious or the materials served on the detenu, being insufficient to establish the link to the smuggling activity alleged, which form the basis for preventive detention. In the instant case the very crucial video footage from which the entire case was generated was not supplied to the detenu. The corroborating facts, which could have led to a subjective satisfaction of a smuggling ring being in operation, as available from the call details and the travel details were not examined by the detaining authority. The detaining authority merely relied on the opinion of the sponsoring authority. The documents revealing the call details and the travel details were also not supplied to the detenu.
The detenu in both the writ petitions shall be set at liberty forthwith, if their continued detention is not required in any other case - Petition allowed.
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2020 (2) TMI 1564 - CESTAT CHENNAI
Application for ROM - Benefit of N/N. 94/96-Cus - DEEC Scheme - goods reimported for reprocessing/reconditioning, claiming Notification No.158/95-Cus - As the subject goods could not be re-exported within the period of six months prescribed in the said notification, they sought extension for re-export - HELD THAT:- ROM dismissed.
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2020 (2) TMI 1560 - CESTAT KOLKATA
Provisional release of seized goods on execution of a bank guarantee for the full seizure value and a security deposit - case of appellant is that seizure value taken by the Customs is much higher than the prevailing market value - HELD THAT:- After hearing both sides and considering the totality of facts of the case, the interests of justice would be met if the appellant gives a bond for the entire seizure value of the goods and makes a Security Deposit of ₹ 15.00 Lakhs in each of these cases. On execution of bonds and payment of security deposits, the seized goods shall be provisionally released.
Petition disposed off.
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2020 (2) TMI 1556 - GAUHATI HIGH COURT
Seizure of Gold - transport of gold without any documents - bailable offence or not - the value of the entire Gold is more than one crore or not - HELD THAT:- Having considered the quantity of Gold seized from each of the accused/petitioner and the length of detention, further custodial detention of the petitioners is not considered necessary for the purpose of investigation. Accordingly, the petitioners are allowed to be enlarged on bail of ₹ 50,000/- with two suitable sureties each, subject to conditions imposed.
Petition allowed.
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2020 (2) TMI 1518 - DELHI HIGH COURT
Seeking permission for withdrawal of petition - the petition has been rendered infructuous, in view of the subsequent event of the execution of the impugned detention order upon him - HELD THAT:- The petition is dismissed as withdrawn and disposed of accordingly.
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2020 (2) TMI 1492 - KERALA HIGH COURT
Smuggling - Gold - opportunity of hearing sought - petitioners had submitted the relevant documents like GST invoices, vouchers and according to them, they had complied with all statutory laws for transition of the business - HELD THAT:- The writ petition is disposed off by issuing direction to the second respondent to take decision on Exts.P7 and P8 representations, after affording an opportunity of hearing to the petitioners or duly constituted representative, after taking consideration of all the relevant documents, in accordance with law.
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2020 (2) TMI 1453 - DELHI HIGH COURT
Imposition of Fiscal Penalty - supplies made by the petitioner to SEZ - fulfilment of conditions of the license by importing the capital goods at concessional rate of Customs Duty in violation of Exim policy or not - fulfilment of export obligation or not - Rule 23 of the SEZ Rules, 2006 - HELD THAT:- The appellant was required to follow the Handbook of Procedures. Therefore, since the paragraph 5.13(b), of the Hand Book of Procedures governs the procedure for the fulfilment of the export obligations under of Chapter 5 of the EPCG scheme, the supply to the Nokia SEZ, shall be governed by para 5.13(b) - in light of para 5.13(b) of the HBP, the appellant has fulfilled its export obligation as mandated by the [EPCG] scheme.
It is trite that when a method has been laid down, has laid down, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed, and thus, the mandate of submission of the Bills of Entry cannot sustain - In Taylor v. Taylor, as notably followed in Nazir Ahmed v. King Emperor [1936 (6) TMI 11 - PRIVY COUNCIL] and a plethora of judgments of the Supreme Court, the most well-known being, perhaps, State of Uttar Pradesh v. Singhara Singh [1963 (8) TMI 43 - SUPREME COURT], conclude the issue, in law, in favour of the appellants.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1443 - PUNJAB AND HARYANA HIGH COURT
Non-adjudication of show cause notice within reasonable period - Seeking recalling of final judgment in Harkaran Dass Vedpal Vs. Union of India [2019 (7) TMI 1307 - PUNJAB AND HARYANA HIGH COURT] - retroactive amendment of Section 28(9) of the Customs Act - HELD THAT:- Recalling of our order dated 18.12.2019 in the present case would amount to recalling order passed in the case of Harkaran Dass Vedpal which is already under challenge before Hon’ble Supreme Court. Thus, present application deserves to be dismissed on this ground.
The judgment in Harkaran Dass Vedpal (Supra) is based upon two grounds/issues and Applicant is disputing only one issue. If the contention of Applicant is accepted still our order dated 18.12.2019 cannot be recalled because Applicant is not disputing second issue i.e. non-adjudication within reasonable period of limitation - We though not required, yet deem it appropriate to deal with argument raised by Applicant and clarify our findings qua retroactive amendment. Section 28(9) was amended w.e.f. 29.03.2018 and amended Section provides that if duty is not determined within one year from the date of notice, the proceeding shall be deemed to have concluded. We have held that amendment of Section 28(9) is retroactive in nature. If amendment is declared retrospective, all the notices issued prior to 29.03.2017 would have lapsed as soon as amended Section 28(9) came into force. We have not declared amendment as retrospective whereas we have applied principles of retroactive amendment. As per principle of retroactive amendment, all the show cause notices issued prior to 29.03.2018 are treated as if issued on 29.03.2018 and Authority was bound to determine duty liability within one year from 29.03.2018 unless time was extended in terms of the amended provision. The Explanation 4 amended by Finance Act, 2020 makes it clear that amendment of Section 28(9) is not retrospective.
The present application is devoid of merits and deserves to be dismissed - application dismissed.
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2020 (2) TMI 1437 - BOMBAY HIGH COURT
Entitlement for benefits of PAP under Policy Guideline by Circular dated 20.03.2017 - HELD THAT:- The learned Advocate appearing for the Corporation on instructions from the Sub-Engineer who is present in Court, states that the Corporation is willing to provide the benefits of PAP to the Petitioner under the Policy Guidelines by Circular dated 20.03.2017 No.ch E/DP/19922/ES. The statement is accepted as an undertaking given to this Court. In view thereof, nothing survives in the above Writ Petition since the prayers sought are granted to the Petitioner.
The Writ Petition is accordingly disposed of.
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2020 (2) TMI 1434 - CESTAT MUMBAI
Classification of imported goods - TCL brand Digital Video Camera Model DV710 - to be classified under CTH 8525 80 20 as digital camera, or under CTH 8525 80 30 as video camera recorders - benefit of Sl. No. 13 of exemption Notification No. 25/2005-Cus - HELD THAT:- The impugned goods have capacity to record video images also in addition to still images. Furthermore, on perusal of the literature submitted by the appellants, it is clear that the accessories of cameras include PC connection set indicating that they store images and/or video are stored digitally (without a film) in the camera and can be viewed digitally on other devices like computer etc. This conforms to the explanatory notes. Moreover, the notification does not define the cameras but says that the exemption is applicable to ‘Digital Still Image Video Cameras’ - Hon’ble Apex Court in the case of ASSOCIATED CEMENT CO. LTD. VERSUS STATE OF MP AND OTHERS [2004 (5) TMI 304 - SUPREME COURT], held that when the words in the notification have not been specifically defined, then their popular or commercial meaning given by those dealing with them has to be resorted to.
In view of the fact that the Tariff classification of the goods as per HSN is determined according to the standards prescribed by the World Customs Organisation, where India is a member country, we are of the considered opinion that the declaration made by the U.S. Court in respect of classification of the subject goods should have persuasive value in consideration of the classification of the disputed goods under CTH 8525 80 20 in the present case.
In view of Circular No. 32/2007, dated 10-9-2007, exemption will be available to “Digital Cameras” with still image recording as the principal function. This should also include those digital cameras that have the capability of recording moving images for a limited period of time. We find that the appellants submit that on testing the product, if would be clear that the number of still image photos clicked would be about 200, whereas, at the same time, the video recording/shooting would be not more than 3 to 3.5 minutes - Revenue has not denied the fact and have not recorded any findings contracting the submissions of the appellant. The appellants also submit that the packaging indicated the impugned goods to be digital still image video camera and the functions are explained in the Manuals. We find that as per the HSN Explanatory Notes, the impugned goods are digital cameras. Therefore, the exemption contained in [Circular] No. 32/2007 is applicable to digital still image video cameras. It is not the case of the Department that the impugned goods are not digital cameras. Once the fact is established, exemption cannot be denied. Moreover, it is also not denied that the impugned cameras have a limited capability of recording videos. Even as per the Circular, such cameras are eligible for exemption.
The impugned TCL-DV710 cameras imported by the appellants are eligible for exemption, applicable to “Digital Still Image Video Cameras”, in terms of Circular No. 32/2007 - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1432 - CESTAT KOLKATA
Benefit of exemption Notification 12/2012-Cus., dated 17-3-2012, Sl. No. 399(A) - Import of Power Tiller - respondent had claimed the benefit of Notification No. 12/2012-Cus., dated 17-3-2012 under Sl. No. 399(A) which is available to Rotary Tiller/Weeder - Confiscation - redemption fine - penalty - HELD THAT:- The Power Tiller, which in the form of pedestrian controlled tractor, and the Rotary Tiller, which are equipment to till the soil. Tractors including pedestrian controlled tractors or power tiller are classifiable under Customs Tariff Heading 8701. Rotary tillers are classifiable under Chapter Heading 84 as agriculture equipment. The Rotary tiller is specifically covered under Customs Tariff Heading 8432. As there was a confusion among the some field formations, this matter was discussed at length in C.B.E. & C.’s Circular. No. 45/2001-Customs dated 7th August, 2001.
We have gone through the letter/memo of the Ministry of Agriculture relied upon by the first appellate authority in the impugned order. This only mentions that the benefit of Notification No. 12/2012-Cus. available to Rotary Tiller, may also be extended to power tiller and requested the Under Secretary of their own Department, to take up the matter with the Finance Ministry in regard to eligibility of exemption notification or classification. We also note that the Ministry of Agriculture is not expert in classification of goods under the Customs Act, valuation, determination of duty or availability of benefit of exemption notification. They have rightly applied their mind from their point of view and felt that the exemption notification must be available to power tiller also. This view of the Ministry of Agriculture, cannot determine the eligibility or otherwise of the exemption notification to power tiller. It must be determined solely based on the way exemption notification as it is drafted. A bare perusal of the exemption notification, shows that it is available, inter alia, to rotary tiller/weeder. It does not suggest directly or indirectly that it is available to power tillers also - Therefore, in our considered view, the benefit of exemption notification is not available to the power tillers imported by the appellant.
Confiscation - redemption fine - penalty - HELD THAT:- Considering that the importers could have entertained the wrong belief that the exemption Notification is available to them and made an ineligible claim, we do not find sufficient grounds to uphold the confiscation of the goods under Section 111(m) or imposition of penalty, fine upon the respondent.
Appeal allowed in part.
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2020 (2) TMI 1431 - CESTAT NEW DELHI
Extension of anti-dumping duty for a period of one year pending the sunset review - gap of about 80 days between the expiry of the anti-dumping duty on 4 May, 2014 and the issue of a fresh notification on 24 July, 2014 by the Central Government imposing anti-dumping duty for a period of five years - continuation of anti-dumping duty for a period of five years pursuant to the sunset review determination - submission of Learned Counsel for the domestic industry is that such a limitation provided for continuation of anti-dumping duty would not be applicable in a case where the Designated Authority is asked to make a fresh determination on remand by the Appellate Tribunal - HELD THAT:- The requirement that the Designated Authority and the Central Government should issue a notification for continuation of the anti-dumping duty during the existence of the anti-dumping duty would not be applicable where the Designated Authority has been asked to conduct a fresh determination pursuant to an order passed by the Tribunal.
In Huawei Tech. Co. Ltd. v. Designated Authority [2011 (8) TMI 923 - CESTAT, NEW DELHI], the final findings of the Designated Authority as well as the consequential notification issued by the Central Government imposing anti-dumping duty were assailed. The Tribunal allowed the Appeal and remanded the matter to the Designated Authority for affording a post decisional hearing and for making such modifications in the final findings as may be considered necessary. The contention that a fresh determination cannot be made after the expiry of the time-limit was not accepted for the reason that for implementation of a decision of an Appellate Forum, the time-limit prescribed for original anti-dumping investigation will not be applicable.
Application disposed off.
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2020 (2) TMI 1430 - CESTAT MUMBAI
Violation of principles of natural justice - it is contended that Revenue was not given an opportunity of hearing by the Ld. Commissioner (Appeals) before passing the order - Confiscation of Diamonds and re-export of same - HELD THAT:- There are no merit in the apprehension of the Revenue that on payment of fine, the appellant would redeem the confiscated diamonds and re-export the same. We find that the Learned Commissioner (Appeals) after analyzing the evidence concluded that there has been misdeclaration of re-imported diamonds, denied the benefit of exemption to the same and upheld its confiscation and penalty. The re-imported diamonds are not absolutely confiscated. After payment of the fine and penalty amount, the option lies with the appellant either to re-export the goods or clear the same for home consumption on compliance with laid down procedure.
There are no condition imposed by the Learned Commissioner (Appeals) in upholding confiscation and penalty. Besides, we do not find any substance in the allegation advanced on behalf of the Revenue that there is violation of principles of natural justice as the Commissioner (Appeals) has decided the case without affording an opportunity of hearing to the Revenue.
The Revenue could not make out a prima facie case that the order is ex facie illegal or passed without jurisdiction or there is an error apparent on the face of the order - application dismissed.
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2020 (2) TMI 1412 - CESTAT ALLAHABAD
Release of the seized betel nuts - appellant seeks to receive the sale proceed of impugned goods along with interest up to date in accordance with provisions of Section 129E of Customs Act, 1962 - matter is pending for concurrence of acceptance by Chief Commissioner, Patna - HELD THAT:- Commissioner of Customs (Preventive), Lucknow is directed to handover the sale proceed of impugned goods to the appellant by 7th March, 2020 along with interest applicable as per the provision of law. In case the amount is not received by 07 March, 2020 by the appellant, appellant is free to bring the fact to the notice of this Tribunal by moving a proper application.
Application allowed.
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2020 (2) TMI 1384 - DELHI HIGH COURT
Prohibition from charging demurrage from the petitioners during the period of delayed filling of the counter-affidavit by respondents - Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 - HELD THAT:- The issue at hand, is squarely covered in M/S. GLOBAL IMPEX THROUGH ITS PARTNER, SHREE SHYAM ENTERPRISES, SURENDER KUMAR JAIN THROUGH ITS PROPRIETOR, BISHT INTERNATIONAL THROUGH ITS PROPRIETOR, ROOP SINGH ENTERPRISES THROUGH ITS PROPRIETOR, VERSUS MANAGER, CELEBI IMPORT SHED AND ANR., UNION OF INDIA & ORS. [2019 (12) TMI 957 - DELHI HIGH COURT] where the prayer, of the petitioner, for issuance of directions to the respondents, not to collect any demurrage, in respect of the goods, imported by the petitioner and in the custody of CELEBI, is bereft of merit.
DCSC is entitled, in light of the Regulation 6(1)(l) of the Handling of Cargo Regulations, to charge demurrage in respect of the goods consigned to its custody, and to retain custody over such goods till the demurrage is paid.
Keeping in view, clause (iii) of para 104 in Global Impex, we reiterate that the Customs authorities cannot direct waiver of demurrage, which can only be done by the custodian (the DCSC here). Moreover, merely because the Customs authority expends a reasonable time in dispensation of their sovereign functions of search, seizure and investigation, cannot lead to transference of liability to pay demurrage, to the Customs authorities.
Even in a case in which the seizure is entirely unjustified, the importer would, in the first instance, have to pay demurrage, to the custodian and, thereafter, pursue, with the Customs authorities, for obtaining reimbursement of the amount.
Petition dismissed.
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