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Customs - Case Laws
Showing 21 to 36 of 36 Records
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2020 (5) TMI 368 - CESTAT NEW DELHI
DFIA (duty free import authorisation) License - requirement of disclosure of technical characteristics, quality and specifications of the essential oil said to have been used in manufacture of Paan Masala/Gutka - contention of the exporter that the declaration requirement of the exception notification is applicable only if the exported goods are included in the list of items enumerated in paragraph 4.55.3 was not accepted by the Hon’ble High court - HELD THAT:- No doubt the show cause notice in the present case has been issued after a period of expiry of two years as mentioned in the said section. But the show cause notice itself has alleged the suppression of facts on part of the exporter. The same has even been confirmed by the original adjudicating authority as in Para-21 of the order dated 04.06.2015 it is appreciated that the non-disclosure of the technical characteristics as a consciously done at of the exporter.
When this order was challenged before the Hon'ble High court in para-6 of the order by high court, the commissioner's view that DFI licences were obtained by suppression and distortion of facts has been observed with no contrary finding to the said observations. From the record, no other reason found to differ from the said observations of suppression and distortion of facts and the act being a consciously done act of the exporter - the Department has committed no error by invoking the extended period of limitation.
Appeal dismissed.
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2020 (5) TMI 347 - CESTAT MUMBAI
Restoration of mistake - recall of the order - HELD THAT:- In the order dated 04.12.2013 while disposing the stay application filed by the various appellants including the present appellant, this Tribunal directed pre-deposit 10% of the penalty imposed on each of them. Thereafter, time and again, the appellant filed modification applications repeating the same grounds of financial difficulty. Each of the said modification application had been rejected on merit by this Tribunal. Also, while rejecting the respective modification applications, extension of time of deposit was granted to the appellant for compliance of the stay order. Instead of complying with the directions, the appellant indulged on dilatery tactics to avoid the deposit of the directed amount by filing modification applications time and again repeating the same grounds. The last of the modification application, the subject matter of the present ROM application, was dismissed for non-prosecution; but in the interest of justice, later restored, The appellant though did not appear on 05.06.2018, but it was again considered on merit and dismissed.
There are no merit in the present application seeking recall of the order dated 05.06.2018 and to hear the appellant again.
ROM application dismissed.
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2020 (5) TMI 329 - DELHI HIGH COURT
Reallocation of Raw Petroleum Coke to the Petitioner commensurate to its total installed capacity - grievance of the applicant/petitioner is that it has a certificate reflecting its production capacity issued in November, 2018 but has other available documents relating to July, 2018 establishing that its enhanced capacity existed from July and was not created after 09.10.2018, i.e. after the judgment of the Supreme Court - HELD THAT:- In agitating this issue qua the Public Notice dated 17.04.2018, it is in effect seeking a variation of this condition relating to the production capacity, as on 09.10.2018, so that when a decision is taken in the future for allocation of 1.4 LMT of imported RPC, the higher capacity is considered, to its benefit. Clearly, such a relief cannot be claimed by means of an application in a writ petition which is challenging a decision already taken in February, 2020. Moreover, this could open a pandora’s box as others may have similar wish lists or grievances qua the conditions and modalities. Further, any variation in the conditions cannot be considered in the absence of the other players who are as of now not known as the last date for submission of applications is 05.05.2020. The scope of the writ petition cannot be permitted to be expanded so as to convert it almost into a Public Interest Litigation to question the conditions and modalities prescribed in a Public Notice dated 17.04.2020 issued by the DGFT.
Application dismissed.
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2020 (5) TMI 250 - MADRAS HIGH COURT
Contempt petition on Customs Broker (CB) alongwith several official enquiry - applicability of Section 147(2) of the Customs Act, 1962 - principles of natural justice - HELD THAT:- Section 147(2) of the Customs Act, 1962 is applicable to the exporter and not applicable to the agent. The petitioners are the agent and they are nothing to do with the exporters obligations. However, the respondents issued time barred show-cause notice, without jurisdiction - petitioners further submit that the time to reply the show cause notice was expired.
The petitioners are permitted to canvass all those points before the adjudicating authority, by way of proper reply, on or before 31.03.2020, and thereafter, the 1st respondent shall complete the adjudication proceedings in respect of show-cause notice dated 25.02.2020 and pass appropriate order, in accordance with law, on or before 31.04.2020 - Petition allowed by way of remand.
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2020 (5) TMI 249 - CESTAT CHENNAI
Maintainability of appeal - present appeal was filed by the assessee himself whereas the proper remedy was to file revision petition before the appropriate authority - condonation of delay caused due to filing of this appeal before the wrong forum - HELD THAT:- The assertion of the Learned Advocate for the appellant is found to be true since the appeal has been filed wrongly before this forum whereas the proper remedy was to approach the Revisional Authority. Hence, the appeal is required to be rejected as not maintainable before this forum.
The Hon’ble Supreme Court in the case of MP. STEEL CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (4) TMI 849 - SUPREME COURT] has categorically held that the principles of Section 14 of the Limitation Act, 1963 would apply to the proceedings even before quasi-judicial authorities and accordingly, had directed the Commissioner (Appeals), who had rejected the appeal of the assessee therein as time-barred, to decide the case on merits.
The appeal is held as not maintainable and the original orders of lower authorities, if filed, may be returned to the appellant for his benefit - Appeal dismissed.
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2020 (5) TMI 227 - CESTAT AHMEDABAD
Confiscation of goods - imposition of redemption fine - redemption fine imposed on the ground that the appellant have not complied with the requirement of Stainless Steel Products (Quality Control) Order, 2016 in as much as the appellant is required to affix the BIS Mark on the imported goods at the time of shipment - HELD THAT:- This case there is no dispute between assessee and the revenue. Admittedly the goods were shipped in the month of January, 2017. At that point of time Stainless Steel Products (Quality Control) Order, 2016 had not come into force, same came into force on 07.02.2017 only. In terms of the Para 2.17 of the Foreign Trade Policy,2015-2020 the date of import has to be reckoned, as per the date of shipment/dispatch from the supplying country. The date of shipment that is Bill of Lading which is in month of January, 2017, the Stainless Steel Products (Quality Control) Order, 2016 was not in force, therefore the appellant was not required to affix BIS Mark on the product imported by them.
The contention of the Lower Authority as well as the submission made by Learned Authorized Representative that since the appellant was having knowledge about Stainless Steel Products (Quality Control) Order, 2016 at the time of dispatch of the goods from supplying country they should have affix the BIS Mark is of no basis - it is surprising how the Lower Authority has given such finding particularly when the order was not having legal backing to enforce such order in 2016.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 174 - GUJARAT HIGH COURT
Establishment of Special Economic Zone (SEZ) - Cancellation of Co-developer status of the petitioner - Challenge to approval granted by the respondent No.1-Board to the proposal to grant co-developer status to the respondent No.4 in the SEZ at Dahej - Auction of plot by the bank after the default in payment of the loan taken from SIDBI by the petitioner - HELD THAT:- Though the petitioner was granted approval of co-developer and a co-developer agreement was executed between the petitioner and the respondent No.3, who is a developer.the petitioner did not pay the due outstanding service charges from 2013 onwards. Moreover, thereafter plot allotted to the petitioner was sold in auction and sale certificate was issued in favour of the four persons, who are directors of the respondent No.4-Company. The Board of Approval- respondent No.1 was justified in taking the decision to approve the status of co-developer to the respondent No.4 who was handed over the possession by the SIDBI after the auction sale. Therefore, as per Section 2(f) of the SEZ Act, which defines 'Co-developer' means a person who, or a State Government which, has been granted a letter of Approval under sub-section (12) of section 3 by the Central Government.
The contentions raised by the petitioner that provision of Section 10 would be applicable for the suspension and transfer of letter of Approval as a co-developer would not be applicable in the facts of the case as the petitioner has lost the status of codeveloper pursuant to the transfer of plot in question to the respondent No.4 in the auction held by the SIDBI under the provisions of the Securitisation Act - it would be necessary to refer to the provisions of Section 35 of the Act, which provides for finality of the actions taken under the Securitisation Act.
Moreover, reference to Rule 2(s) of the Rules which prescribes the procedure for the purpose of suspension and transfer of letter of approval as provided in Section 10 of SEZ Act would also be of no assistance to the petitioner as no action is required to be taken under the provisions of Section 10 of the SEZ Act as the same would not be applicable. The contentions raised on behalf of the petitioner, relying upon Section 10 of the SEZ Act read with Section 2(s) is without any basis - As the petitioner had challenged the action under Securitisation Act before the Debt Recovery Tribunal, and having failed in such action of challenge to get any interim order or final order, the petitioner cannot now challenge the action of the respondent No.1 granting request of approval status of co-developer in favour of the respondent No.4.
The contentions raised on behalf of the petitioner are therefore required to be rejected as it was only last attempt to see that the auction sale effected in favour of the respondent No.4 is not being given effect to by the respondent Nos.1 and 3. Though prima facie arguments canvassed on behalf of the petitioner look attractive but considering the facts of the case as well as the provisions of the Securitisation Act and SEZ Act, the same are required to be rejected - As no action is required to be taken under the provisions of the SEZ Act for suspension or transfer or cancellation of letter of Approval in favour of the petitioner which has become redundant and extinguished in view of auction sale by the SIDBI, analyzing and/or applying the provisions of Section 10, 13 and 51 of the Act would be an academic exercise.
It emerges from the materials on record, the respondent Nos. 1 and 3 have only given effect to the actions taken by the SIDBI under the Securitisation Act to grant the request for approval of co-developer status to respondent No.4 subject to the conditions specified in the decision dated 04.04.2018 of the respondent No.1 - petition dismissed.
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2020 (5) TMI 156 - TELANGANA HIGH COURT, HYDERABAD
Release of Bank Guarantees - import of Gold Granules - exemption from payment of Customs duty in terms of Sl.No.966 of the table to Notification No.82 of 2018- Cus dt.31-12-2018 amending Notification No. 46/2011 dt. 01-06-2011 - retroactive check of the certificate of origin - HELD THAT:- It is the duty of the respondents to complete the provisional assessment and also return the Bank Guarantees given by the petitioner towards the exports made by it under the Bills of Entry referred to above since there is no dispute now about the Country of origin of the goods in question - respondents are directed to (i) release six Bank Guarantees furnished by the petitioner on or before 4.5.2020 since the petitioners have given Bonds for the goods covered by the 6 Bills of Entry, and (ii) also complete the provisional assessments in respect of the said Bills of Entry within a period of three (03) months from the date of receipt of a copy of this order and communicate their deposition to the petitioner.
Petition allowed.
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2020 (5) TMI 155 - CESTAT KOLKATA
Quantum of redemption fine and penalty - enhancement of value of imported goods - old and used worn clothing - HELD THAT:- On perusal of the impugned order, we note that the ld.Commissioner (Appeals) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by the Three Member Bench of CESTAT, Delhi in the case of M/S. OMEX INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (4) TMI 112 - CESTAT NEW DELHI (LB)] - The Three Member Bench has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of import violating Exim Policy Provisions - there are no reason to interfere with the findings of the ld.Commissioner (Appeals) on the basis of such decision.
The impugned order is upheld and the appeals filed by the Revenue are rejected - Decided against Revenue.
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2020 (5) TMI 154 - CESTAT NEW DELHI
Valuation of imported goods - Aluminium scrap - rejection of declared value of the goods under import, without rejecting the transaction value/declared price - Section 14 of the Customs Act - HELD THAT:- There are no cogent reasons have been given by the Court below for rejection of transaction value. The declared transactions value can only be rejected with cogent reasons by undertaking the exercise as to on what basis the paid price was not the sole consideration, or the transactions value. Since, no such exercise is done by the Court below to reject the price declared or the transaction value in the bills of entry, the orders of Court below are erroneous and fit to be set aside.
The Adjudicating Authority was bound to accept the transaction value declared by the appellant - importer, and erred in rejecting the declared price without recording any finding for rejecting the same, as required under Section 14 of the Customs Act.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 103 - CESTAT CHENNAI
Imposition of penalty on Customs Broker (CB) - non-declaration/concealment of goods - Allegation is that Mr. Santosh and Mr. Janaki Raman filed Bill of Entry without verifying KYC / antecedents of the importer and thus abetted in the import of undeclared goods - HELD THAT:- When the Ministry of Commerce who has granted IE licence has exhibited the details of IEC holders in their website which can be verified, the appellant cannot be found fault when the same has been accepted to be true and correct - also, Mr. Santosh and Mr. Janaki Raman had given statements that previous consignment of the same importer also non-declared goods and therefore they ought to have been more cautious. The goods were cleared and apart from the statement there is no evidence to doubt the previous consignments. The statements were retracted. They were not subjected to cross examination though a request was made. Apart from the allegation that appellant ought to have been cautions, there is no evidence to show that appellant had any knowledge of the import of undeclared goods.
When the importer consciously conceals certain facts from the Customs Broker, it cannot be presumed that the Customs Broker has abetted in such offence merely because he has not met the importer face to face.
There are nothing to hold that appellant had intentionally connived or abetted in the non-declaration / concealment of the goods.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 69 - CALCUTTA HIGH COURT
Provisional release of seized goods - perishable goods - requirement of furnishing of bond/securities to the satisfaction of the customs officer - HELD THAT:- The contention of the learned advocate for the customs authorities, cannot be accepted, inasmuch as, the law on the subject is that after seizure under Section 110 of the said Act, the goods may be released provisionally to the owner, pending adjudication, upon taking a bond from him or upon furnishing such security and fulfillment of such other conditions. The release as contemplated under Section 110(2) is unconditional release on account of the failure of the authority to initiate the confiscation proceedings within the period of six months whereas provisional release is a section giving a right to an importer to pray for a provisional release of perishable goods likely to be damaged due to pendency of the proceedings upon fulfillment of all conditions and furnishing of bond and security to the satisfaction of the authorities.
Quantum of security that should be furnished - HELD THAT:- The issue is not taken into consideration at this stage because this Court is not deciding on the provisional release which is entirely within the domain of the authorities.
Petition disposed off.
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2020 (5) TMI 68 - CESTAT CHENNAI
Redemption of goods for the purpose of re-export only - Section 125 of the Customs Act, 1962 - HELD THAT:- Tribunal in the case of NATHI MAL RUGAN MAL VERSUS COMMISSIONER OF CUSTOMS, NHAVA SHEVA, RAIGAD [2018 (11) TMI 99 - CESTAT MUMBAI] after referring to Section 125 of the Customs Act, 1962 as well as various decisions have observed that no such condition that the goods can be redeemed only for re-export can be imposed.
Further, in the case of HBL POWER SYSTEMS LTD. VERSUS CC, VISAKHAPATNAM [2018 (7) TMI 793 - CESTAT HYDERABAD], similar view was taken.
The order passed by the Commissioner (Appeals) that the goods can be redeemed only for re-export is unjustified - The impugned order is modified to the extent of setting aside the direction by the commissioner (Appeals) that the goods can be redeemed only for re-export. As already directed by the Commissioner (Appeals), the adjudicating authority shall quantify the redemption fine payable by the appellant within 30 days from the date of receipt of certified copy of this order.
Appeal allowed in part.
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2020 (5) TMI 41 - GUJARAT HIGH COURT
Principles of natural justice - conclusion of assessment, without complying with the directions issued by the CESTAT on 20.01.2017 - HELD THAT:- In the instant case, even without examining the reasons as to why the respondent authority was unable to comply with the directions issued by the CESTAT in its order dated 20.01.2017 in toto, the fact remains that the respondent authority has not supplied the documents, which it was asked to do so by the CESTAT, to the petitioner. Hence, the best course of action that was available to the respondent authority was to request the CESTAT to amend its earlier order by filing appropriate application within the stipulated period instead of insisting upon the petitioner to go ahead with the assessment. This can never be the spirit of assessment and the assessee concerned cannot be sent from pillar to post, particularly, on the very issue on which the challenge has been made.
This court is conscious of the fact that the differential duty imposed upon the present petitioner and six other Noticees is huge. The matter is quite old and involves a long drawn legal battle, which has continued till date. The final adjudication could not be made in the wake of this challenge and the directions issued by the CESTAT. However, that also cannot be a ground for the court to permit breach of the principles of natural justice - It is not only about the grant of an opportunity of being heard to the party concerned, but of complying with the principles of natural justice, which includes the furnishing of relevant documents also, which is vital for the purpose of adjudication. Considering the facts of the case, this court is of the opinion that the communication dated 15.11.2018 addressed to the advocate for the petitioner by the Office of the respondent No.2 stating that in case of nonfurnishing of final submissions by the petitioner before 30.11.2018, the case shall be proceeded for final adjudication, deserves indulgence.
The action of the respondent No.2 authority seeking to proceed with the assessment of the petitioner, without complying with the directions issued by the CESTAT in its order dated 20.01.2017, would entail to the exercise of the powers by this court since the authority, which, otherwise has the powers, has not taken any steps in compliance of the directions issued by the CESTAT. Hence, the communication dated 15.11.2018 issued by the Office of the respondent No.2 deserves to be quashed and set aside and appropriate directions are required to be issued to the respondent No.2 - the impugned communication dated 15.11.2018 addressed to the learned advocate for the petitioner by the Office of the respondent No.2 herein is quashed and set aside - petition allowed in part.
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2020 (5) TMI 10 - CESTAT ALLAHABAD
Export of Carpets - generation of wrong documents, due to defects in software - mis-description of value as well as quantity of goods - confiscation - redemption fine - Levy of Penalty on CHA u/s 114 (iii) of the Customs Act, 1962 - HELD THAT:- The appellant on being pointed out by the CHA immediately placed the correct document before Customs Authority on the same very date. In such set of circumstances, no mala fide can be attributed to the assessee so as to confiscate the export consignment or to impose penalty upon them - also, the second set filed by the appellants correctly covered all the aspects of the export consignment including the quantity, quality description and value etc. - confiscation set aside.
Valuation of goods - HELD THAT:- The Commissioner has gone by the market inquiries which fact by itself cannot be held to be sufficient to reject the value of the exported goods. It is worth noticing that the appellant has placed on record BRC’s indicating and evidencing the total realization of the exported goods. The said fact has not been disputed by the Adjudicating Authority. In this scenario, the value of the goods cannot be doubted and the declared value has to be accepted.
Appeal allowed - decided in favor of appellant.
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2020 (5) TMI 9 - CESTAT CHENNAI
Smuggling - Silver Granules - foreign origin goods - Department was of the view that the silver being foreign origin and that the appellant not been able to establish the duty paid on the said silver or legal import, is smuggled in nature - Confiscation - penalties - Circular of the Board dated 11.06.1990 - HELD THAT:- From the circular, it is seen that the Govt. has made clear that the provisions of section 123 of Customs Act, 1962 should not be invoked, when persons are found possession of silver bullion less than 100 kgs. Further that when silver bullion is in the form of bars of 30 kgs. each and also silver bullion which bear foreign markings even though less than 100 kgs. can be subject to seizure for which proceedings can be initiated.
In the present case, the silver is not in the nature of bars or coins. It is in the form silver granules. As per the circular, when silver bullion is found in possession with foreign markings the same can be subject to seizure, if it is less than 100 kgs. In the present case, the quantity of silver bullion is 60 kgs. Then the question arises, whether silver granules would fall within the definition of silver bullion - The meaning of bullion thus does not take away platinum, gold or silver in the form of grains/granules. Thus, granules also fall within the definition of bullion. This would lead to the consequence that if the silver granules has foreign markings even though less than 100 kgs. would not be covered by the above Board circular.
Whether silver granules in the present case has foreign markings? - HELD THAT:- The marking cannot be endorsed on silver granules as in case of silver coins or silver bars. The only practical way to endorse a marking on silver in the form of granules is to mention the markings on the packing /boxes which holds the silver granules - In the present case, the silver granules were found in carton boxes on which there was specific mention of the name of foreign manufacturer, lot nos., the date of manufacture etc. The scanned copy of the markings on the boxes has been placed as part of the record, which is reproduced under and would help for better appreciation - Thus, it can be seen that the markings on the boxes clearly indicated the silver granules was of foreign origin. Then the burden shifts on to the appellant to show how the markings do not relate to the silver contained inside the boxes.
The appellant also relies upon ledger extracts/ accounts to tentend that silver was purchased by him. Shri Gaurav Agarwal has deposed that he had purchased silver granules vide eight transactions from M/s. S.B. Ornaments Pvt. Ltd., Agra, M/s. Nishant Silver Handicraft, Mathura and M/s. Prasanth Silver Handicraft, Mathura. Appellant has produced some invoices and accounts to support this - The statement of Shri Gaurav Agarwal is totally silent on this aspect. At the cost of repetition it has to be mentioned that the carton boxes which contained the silver granules correctly mentioned the quantity in each box to be 10kgs, the name of manufacturer, the lot no. year of manufacture, purity etc. - Further, it is a question to be answered by the appellant as to whether the silver granules after being processed out of a bar by the appellant retain such high purity.
The appellant has not been able to establish that the silver was legally imported and suffered Customs duty - the confiscation of goods and penalties imposed are legal and proper - Appeal dismissed - decided against appellant.
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