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Customs - Case Laws
Showing 61 to 80 of 96 Records
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2020 (9) TMI 396 - ALLAHABAD HIGH COURT
Release of the applicant on bail - Smuggling - Gold Biscuits - prayer of bail opposed on the ground that as the applicant could not show any relevant paper regarding the article (gold) obtained from the possession of the applicant of such quantity, it is deemed proper that the said material was being smuggled - statement recorded under Section 108 of the Act, admissible evidence or not - HELD THAT:- Considering to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the applicant has not made out a case for bail.
Prayer of Bail rejected.
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2020 (9) TMI 395 - RAJASTHAN HIGH COURT
Jurisdiction - power of Deputy Commissioner (Customs) to freeze the Bank Accounts of petitioner - it is also claimed that no power to issue orders for freezing of bank account was available under the Customs Act, 1962 and the said power had only been introduced by way of amendment to Section 110(5) inserted by the Finance (No.2) Act, 2019, dated 1.8.2019 - HELD THAT:- Admittedly, investigation under Central Goods and Service Tax Act is pending against the petitioner company. However, the impugned order has been passed by Deputy Commissioner of Customs (Preventive), in view of the investigation initiated against the petitioner company by Anti Evasion Wing of Central Goods and Service Tax, Commissionerate, Jaipur. Vide impugned order, the bank account of the petitioner company was frozen.
The impugned order was passed before the amendment in Section 110(5) of the Customs Act, 1962 had come in operation. Moreover, as per the amendment also, the account cannot be frozen beyond the period of one year.
The bank account of the petitioner be allowed to be operated by the petitioner company - Petition allowed.
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2020 (9) TMI 389 - GUJARAT HIGH COURT
Extension / renewal of the letter of approval - Rule 18(4)(d) of the Special Economic Zones Rules, 2006 - Whether the Board of Approval could have rejected the application for renewal / extension of letter of approval filed by the petitioners without giving any opportunity of hearing to the petitioners or not? - whether the order passed by the Board of Approval on the basis of the proceeding initiated in the year 2005 against the petitioners for not achieving the positive Net Foreign Exchange Earnings would be relevant factor for rejecting the application for renewal filed by the petitioners while exercising powers under Rule 18(4) of the SEZ Rules, 2006?
HELD THAT:- It is not in dispute that no opportunity of being heard was afforded to the petitioners before taking decision in the 89th Meeting of the Board of Approval held on 22nd April 2019. We are, therefore, of the view that the decision on the renewal / extension of the letter of approval, which has a consequential effect of cancelling letter of approval, is in breach of the Section 16 of the SEZ Act, 2005 -
the petition is required to be allowed only on this ground, without expressing any opinion on merits, by quashing and setting aside the decision taken by the Board of Approval in the 89th Meeting held on 22nd April 2019 qua the petitioners with a direction to reconsider the case of the petitioners after giving reasonable opportunity of hearing so as to adhere to the principles of natural justice.
Matter remanded back to the Board of Approval to reconsider the application filed by the petitioners for renewal / extension of letter of approval, which was renewed on 2nd April 2014 and extended up to 2nd April 2019, after giving adequate opportunity of hearing to the petitioners - appeal allowed by way of remand.
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2020 (9) TMI 387 - CESTAT NEW DELHI
Imposition of penalty u/s 114 AA of Customs Act for abatement - Textile Broker - over invoicing of export consignments of dyed and printed polyester fabrics with intention to fraudulently avail undue export benefits (DEPB) - allegation that appellant facilatated in inflating the FOB value for the purpose of wrongly claiming higher DEPB benefits - rejection of FOB value - re-determination at the lower value and the actual DEPB benefit.
HELD THAT:- This appellant in the course of investigation, wherein documents including cheque books etc. were found with respect to 11 firms/companies and cash of ₹ 7,50,000/- was found and seized. This appellant admitted that all these companies/firms wherein other persons namely Shri Gopal Sharma Shri Ramesh Kumar, Shri Parveen Aggarwal, Shri Mahender Kumar etc. were partner/Director/proprietor have admitted that they are only the name lenders and the actual owner/Manager of these firms/companies is the present appellant - Shri Deepak Goel. Those persons whose name is appearing as proprietor/Director also stated that they were working on a monthly salary of ₹ 3000/- to 12,000/-, doing and working for Shri Deepak Goel as per his instructions. They also stated that Shri Deepak Goel was doing transaction in these firms and companies.
Further this appellant had also stated that they were engaged in raising inflated bills for the supply of fabric to M/s J.S. Designer Ltd. and were returning the differential amount in cash to Shri Vikas Mohan Singhal. Further, although Shri Deepak Goel have subsequently denied raising inflated bills for supply of fabric, but the facts are proved on the corroborative evidence being seizure of documents including cheque books etc of various firms and companies, wherein benamidar of this appellant were proprietor/partners/Directors and such benamidar persons have also admitted that they were only the name lenders engaged on salary basis, and such firm/companies were managed by Shri Deepak Goel. Admittedly, as per facts on record such firms and companies were raising inflated bills for the supply of fabric to M/s J.S. Designer Ltd.
Thus, it is found that this appellant have facilitated the main accused M/s J.S. Designer Ltd. and its Directors in inflating FOB value of goods for export, by justifying the cost, indirectly - As this appellant have not directly facilitated M/s J.S. Designer Ltd. and its Directors, but have indirectly facilitated them in inflating the FOB value for the purpose of wrongly claiming higher DEPB benefits, taking a liberal view, the penalty reduced from ₹ 25 lakhs to ₹ 7,50,000/-.
Appeal allowed in part.
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2020 (9) TMI 366 - CESTAT MUMBAI
DFIA Scheme - Legality of import of ‘sweet whey powder’ - Actual User Condition - exemption under notification no. 40/2006-Cus dated 1st May 2006 or no. 98/2009-Cus dated 11th September 2009 - HELD THAT:- It would appear that, despite availability of cheaper alternatives, it is not unknown for ‘whey powder’ to be deployed as ‘leavening agent’ in the baking industry. The adjudicating authority appears to have taken a contrary position on the basis of statements recorded from employees of the original holder of the license as well as those of the importer. This, as pointed out supra, is without good authority - Furthermore, the disinclination on the part of customs authorities to accept the clarifications issued by the licensing authority is mystifying. It is not the case of the adjudicating authority that there has been misdeclaration of the classification, or value, of the goods implying that the essentials for assessment have, thus, been complied with. Consequently, there is no finding of differential duty attributable to re-assessment. The impugned order fastens recovery, and other detriment, for non-compliance, in terms of eligibility and fulfilment of conditions, with exemption notifications issued for the purposes of implementing the ‘duty-free import authorization (DFIA)’ scheme in the Foreign Trade Policy notified by the Directorate General of Foreign Trade under Foreign Trade (Development & Regulation) Act, 1992. The eligibility for import of ‘sweet whey powder’, as leavening agent for manufacture of biscuits, should not, therefore, have given cause for doubt after receipt of clarifications from the license issuing authority.
With the threshold eligibility thus settled, the allegation pertaining to ineligibility arising from import by an entity other than ‘actual user’ and of ineligibility arising from utilization of a different ‘leavening agent’ in the exports effected by the original license holder remain to be evaluated. The ‘duty-free import authorizations’ procured by the appellant-importer had been made transferable in accordance with the provisions of the Foreign Trade Policy and there is no whiff of allegation that the said endorsements had been procured unlawfully. The prescription of ‘actual user’ condition in the Foreign Trade Policy, and reflected in the corresponding notification issued under section 25 of Customs Act, 1962, cannot be said to be extended to transferees of such licences, except where specified otherwise, either in the policy prescriptions or in the notification, for that would be tantamount to imposing a condition that was not intended by the Central Government.
We are also constrained to note that the original holder of license had not indicated such details in the relevant shipping bills. The statement of the employee of the exporter is the sole evidence relied upon by the adjudicating authority to conclude that an entirely different input had been utilized. There is no evidence on record that the appellants were aware of the composition of the exported goods. Hence, the appellant cannot be expected to conform to such imports as they are not cognizant of. From the available records and submissions made, we are unable to conclude if any of the inputs permitted for import to enable manufacture of biscuits are enumerated among the goods specified for conformity in the Handbook of Procedures.
On the inadequacy of credible evidence, nature of the impugned goods and apparent conformity with the conditions of the Foreign Trade Policy, the impugned order cannot be sustained - Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 351 - MADHYA PRADESH HIGH COURT
Maintainability of appeal - appeal has been dismissed on account of non-compliance of mandatory Pre-deposit - Section 129(E) of the Customs Act, 1962 - HELD THAT:- This Court after hearing learned counsel for the parties at length is of the considered opinion that the appellate authority was justified in dismissing the appeal on account of non-deposit of mandatory pre-deposit.
This Court does not find any reason to interfere with the order passed by the appellate authority, however, it is made clear that in case, the mandatory pre-deposit is made within 30 days from today, the appellate authority shall decide the appeal on merits in accordance with law.
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2020 (9) TMI 350 - GUJARAT HIGH COURT
Maintainability of appeal - Section 129A(3) of CA - validity of Compounding Order passed by the Compounding Authority - demand of redemption fine - compounding of offences under Section 137(3) of the Customs Act, 1962 in view of his previous antecedents under the Act - HELD THAT:- A common order was passed by the Tribunal in two appeals being the SHRI NOPAJI LAKHMAJI CHARITABLE TRUST MUMBAI, SHANTILAL JAVERCHAND JAIN VERSUS C.C., AHMEDABAD [2019 (6) TMI 1461 - CESTAT AHMEDABAD] and from which the present appeal arises before us. Against the order passed by the Tribunal in SHRI NOPAJI LAKHMAJI CHARITABLE TRUST MUMBAI, the Revenue had come before this Court by way of THE PRINCIPAL COMMISSIONER OF CUSTOMS VERSUS M/S. NOPAJI LAKHMAJI CHARITABLE TRUST, MUMBAI [2020 (4) TMI 10 - GUJARAT HIGH COURT]. A coordinate Bench of this Court vide order dated 27.02.2020 dismissed the Tax Appeal No.106 of 2020.
The order states that since there is no clear proposal in the SCN on imposition of redemption fine and also in the OIO, there is no crystallized demand of redemption fine against each noticee. It was held that the department could not recover fine from the noticee. In this position, there is no demand of redemption fine against the appellants. In this view, there is no case of demand of redemption fine,Therefore, the rejection of application for non-payment or redemption fine if not correct and legal.
The present appeal arising from the self same order passed by the Tribunal should also fail - Appeal dismissed.
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2020 (9) TMI 343 - CESTAT CHENNAI
Review Order - Time Limitation - According to the Learned First Appellate Authority, the Review Order which was passed on 10.06.2019 was not within the above prescribed three months under Section 129D (3) of the Customs Act, 1962 and hence, rejected the Revenue’s appeal - HELD THAT:- It is found after going through the impugned order, that the Learned First Appellate Authority, though has observed the date of passing of the Order-in-Original as 23.01.2019, has not considered the date affixed by the signatory of the order. Moreover, the Learned First Appellate Authority has considered the date of dispatch as 12.02.2019 whereas as per Section 129D (3) ibid., what is relevant is the date of communication i.e., Review Order to be passed within a period of three months from the date of communication. Hence, if the date of communication is 11th March 2019, then the Review Order passed on 10.06.2019 is very much within the time-frame fixed by the statute.
The Revenue is also one of the litigants before this court and that being so, it cannot sit in the driver’s seat. First of all, the crucial aspect which is creating suspicion in the minds of all of us, is as to the date of communication (11.03.2019) when the order was signed on 04.02.2019, has not at all been explained nor is the Revenue disputing the contentions of the Learned Advocate for the appellant that the office of the Adjudicating Authority as also that of the Reviewing Authority are located in the same premises. There is also no further explanation as to the date of dispatch/communication that has taken about a month when undisputedly, both the authorities are in the same building premises.
Appeal dismissed - decided against Revenue.
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2020 (9) TMI 312 - MADRAS HIGH COURT
Classification of imported goods - BIRD SCARE DEVICE - classified under CTH84362900 or under CTH93040000? - restricted goods or not - rejection of self assessment - request for issuance of DDWC - HELD THAT:- The de-novo proceedings itself is a continuation of the original proceedings commencing from the petitioner's self-assessed bill of entry for clearance of goods, the consequential show-cause notice, as well as the reply of the petitioner. Therefore, the proceedings of the second respondent which culminated into the order dated 17.03.2017, cannot be termed as de-novo proceedings at all, but a continuation of the original proceedings. As such, the second respondent ought to have considered the request made by the petitioner for issuance of DDWC.
The first respondent herein while passing orders in the appeal, had remarked that there was no mention of the request of DDWC before the lower Authority and that the Appellate Authority cannot entertain a prayer on which no decision or order has been passed by the lower Authority. Such a statement cannot be sustained for two reasons. Firstly, there was a request made by the petitioner before the second respondent in the reply to the show-cause notice. No doubt, such a request could have been given by way of a separate application and not in a reply - Secondly, the first respondent was of the view that the appeal cannot be entertained on a prayer in which no decision or order has been passed by the lower Authority. As a matter of fact, the grievance of the petitioner before the first respondent in the appeal is that though they had made a specific plea for issuance of DDWC, the plea was disregarded and such a disregard was the basis for filing the appeal.
There are no justification on the part of the Appellate Authority in deferring to consider the petitioner's request for the certificate, on the ground that there was no such prayer before the lower Authority.
The goods are rightly classified under CTH93039000 - Insofar as the issuance of 'Demurrage cum Detention Waiver Certificate' is concerned, the petitioner is granted liberty to make a fresh application to the second respondent herein and on receipt of the same, the second respondent herein shall take into consideration all the observations made in this order and accordingly pass appropriate orders in accordance with law.
Petition disposed off.
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2020 (9) TMI 311 - MADRAS HIGH COURT
Validity of Show cause notice issued in 2011 - long pending issue - Reasonable period of limitation for adjudication of case - Mis-declaration of imported goods - imported consignment was found to contain undeclared as well as short declared goods - Section 28(4) of the Customs Act, 1962 - determination of duty or interest under Section 28(8) has not been done within six months or one year as stipulated under Section 28(9) (a) or (b).
Whether it would have been‘possible’ for the respondents to complete such determination within the time frame fixed or whether they had been prevented from doing so by reason of an impediment or bar, justifying the elapse of time from 22.12.2011 till date excluding the period 31.10.2012 to 25.07.2013, that is, eight (8) years, nine (9) months and counting?
HELD THAT:- Admittedly, there is no bar, legal or otherwise that stood in the way of completion of adjudication. The interim injunction granted in W.P.No.29833 of 2012 was in force between 31.10.2012 and 25.07.2013 only (268 days). In any event, the Miscellaneous Petitions had come to be dismissed and the injunction vacated on 25.07.2013 for the reason that no notice had been served upon the respondents by the petitioner, either privately or by service through Court. Thus the existence of the injunction between 31.10.2012 and 25.07.2013 was itself not within the knowledge of the respondents and they could well have proceed with the matter.
The fact that the petitioner has challenged the SCN only now, in 2020, only indicates to me that the petitioner fully intended to comply with and respond to notices and participate in adjudication proceedings only repeatedly requesting for relied upon and other materials - It is unnecessary to state that an assessee is entitled to all documents, both relied upon as well as unrelied upon including those that were seized in the course of search, in order to enable it to respond to the show cause notice. This is not an unreasonable request. Thus the elapse of time from 2013 till January, 2020 when the show cause notice was challenged does not, in my view, indicate delay and there is no laches on the part of the petitioner to have filed the present Writ Petition challenging the show cause notice.
Petition allowed - decided in favor of petitioner.
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2020 (9) TMI 310 - CESTAT CHENNAI
Absolute Confiscation - Gold Bars - Baggage Rules - allegation that appellant has kept on changing his stand and that too, without any supporting evidence - HELD THAT:- There is no dispute that the appellant tried to smuggle the gold, ie., he tried to bring the above gold bars from Singapore into India without payment of applicable duties and without even declaring the same when he was duty bound to do so. The purchase of the same and the final destination/usage may not be of any significance when such an act of smuggling is carried out, since what is important is primarily the declaration, followed by the payment of applicable duties/taxes.
Further, the appellant has also pleaded that he was a law abiding citizen but when the law mandates a minimum declaration which has not been complied with here in the case on hand, the above plea of the appellant would also not going to help the appellant. Moreover, the serious dispute as to the dates on invoices with consecutive numbers is alone an incriminating factor not at all explained by the appellant.
Appeal dismissed - decided against appellant.
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2020 (9) TMI 309 - CESTAT NEW DELHI
Levy of penalty on Customs Broker u/s 114 and 114AA of the Customs Act, 1962 - allegation that appellant had helped in claiming false drawback by misdeclaration - Section 138A of Customs Act, 1962 - HELD THAT:- There are two middleman between the exporter M/s Ayaan International and the appellant – CHA, namely Shri Rohit Sharma a forwarder and Shri Rakesh Sagar. Further, the allegation against the appellant – CHA of their having received ₹ 1 lakh per consignment is not substantiated, over and above the usual charges. Shri Rakesh Sagar have stated that he was to receive ₹ 4,000/- on bill and remaining amount of ₹ 1 lakh in cash, is not the representative of the CHA firm, and is an outsider. Thus, receipt of ₹ 1 lakh by Shri Rohit Sharma or Shri Rakesh Sagar is not the amount received by the appellant – CHA. Further, it is found that the Prop. of the exporter firm and its Authorised Signatory have nowhere stated that they have paid any amount over and above usual charges to the appellant – CHA. Further, there is no allegation of any flow back of ill gotton draw back money to the appellant – CHA - Further, it has nowhere come on record that CHA was present at the time of packing and stuffing of container for shipping. Further, there is no allegation that CHA has cooked or concocted any document for presenting it to the Customs, knowing it to be false.
Penalty - Section 113 and 114 of CA - HELD THAT:- Appellant have not done any act of omission or commission leading to violation of any of the provisions mentioned in Section 113 of the Customs Act - Also, appellant have not done any act or omission nor knowingly used any document for the clearance knowing to be false. The appellant have given cogent explanation as regards the undervaluation, that the samples shown to them were of good quality and hence on such reasonable belief they have undertaken the clearance work. No case is made out that the appellant knowingly filed the shipping bills that the goods are overvalued - penalty under Section 114AA is also not imposable.
Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 270 - MADRAS HIGH COURT
Jurisdiction of Joint DGFT to review own order - Section 16 of the Foreign Trade (Development and Regulation) Act, 1992 - Time Limitation for making such review - notice issued after about 10 years from the issuance of the EOD Certificate - proviso to Section 16 of the Act - opportunity of personal hearing - HELD THAT:- Section 16 of the FTDR Act empowers the Director General to review any decision or order made by the Joint Director of Foreign Trade. The power of review of any decision or order is only under Section 16 - As and when the second respondent had issued the EPCG licence and the Export Obligation Discharge Certificate, he becomes “functus officio” and if at all, such an order of the second respondent is to be reviewed, the same can be done only by the Director General, as provided under Section 16. Apparently, the impugned notice issued by the second respondent itself is without any jurisdiction and contrary to the statutory provisions.
Time Limitation - HELD THAT:- Section 16 empowers the Director General to review the order, within a period of two years from the date of the decision or the order passed. Apparently, all the impugned notices in the aforesaid Writ Petitions are beyond the period of two years. As a matter of fact, the notices are after a long delay between 8 to 10 years and there is absolutely no explanation for this inordinate delay in the proposal to review the order. The only ground raised by the learned Additional Solicitor General, is that, the two years period prescribed under Section 16 would commence from the date of the demand notices - I am unable to contemplate as to how such date of reckoning could be construed from the proviso to Section 16, when it is unambiguously provided that two years period will commence from the date of decision or order which is sought to be revised.
Opportunity of personal hearing - learned Additional Solicitor General also submitted that since the petitioner had requested for an opportunity of personal hearing, pursuant to the impugned notices, the option of filing the Writ Petitions instead of availing the personal hearing, requires dismissal of the Writ Petitions on the ground of non availment of the alternate remedy - HELD THAT:- I am not in agreement with such a submission. It is a settled proposition of law, that when a notice is issued without jurisdiction and against the authority of law, this Court may be justified in exercising its powers under Article 226 of the constitution of India and interfere with such a notice. Even otherwise, a mere option expressed to raise objections to the impugned notices will not disentitle or be a bar to the petitioner to avail the powers under Article 226 of the Constitution of India. Thus the petitioner would be entitled to succeed on the second ground of limitation also.
Petition allowed.
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2020 (9) TMI 269 - MADRAS HIGH COURT
Jurisdiction - power of CESTAT to prescribe the amount fixed for filing appeal under 129E of the Customs Act, 1962 as the quantum of Bank Guarantee under Section 110A ibid for release of seized goods - amendment in quantum of the Bank Guarantee ordered to be furnished by the Competent Authority under Section 110A ibid read with CBEC Circular 35/2017-Cus. dated 16.08.2017 - Jurisdiction of Tribunal o entertain an appeal against a letter allowing provisional release under Section 110A of the Customs Act, 1962.
HELD THAT:- It is an undisputed fact that, prior to the notification No.84/2017-Customs dated 08.11.2017, the import of yellow peas was not liable for payment of duty. According to the learned Counsel appearing for the respondent/importer, the notification No.84/2017-Customs dated 08.11.2017, came to be published at 22.15 Hrs., whereas, the formalities regarding assessment of Bills of Entry have completed much earlier at 12.50 Hrs., on 08.11.2017.
The Tribunal in the peculiar facts and circumstances of the case, especially, with regard to the time of the notification No. 84/2017-Customs, dated 08.11.2017, as well as, in prior to the said notification, there was no requirement to pay the duty, had exercised the discretion. In the considered opinion of this Court, the discretion came to be exercised by the CESTAT in the facts and circumstances of the said case and that apart, the Commissioner of Customs has also disposed of the matter vide order No.12/2018 dated 15.10.2018 and nothing remains for further adjudication in this matter for the reason that the present appeal technically has become infructuous.
Other issues left open to be decided in an appropriate proceedings and therefore, it need not be answered - the disposal by the CESTAT in the facts and circumstances of the case, especially, in the light of the time at which the notification came to be issued and that prior to the notification, the duty on the imported goods was also not paid. Therefore, it is answered in negative against the Appellant/Revenue.
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2020 (9) TMI 268 - CESTAT MUMBAI
Suspension of Customs Broker License - over-valuation of ‘rough diamonds/precious stones’ - regulation no. 16(2) of Customs Brokers Licensing Regulations, 2018 - HELD THAT:- The procedure laid down, in regulation 17, as a prerequisite for revoking of the license, or for imposing a penalty under regulation 14 of the said Regulations, are not mandated to be gone through before suspension. Nevertheless, five essential aspects must be complied with; an enquiry against the broker is pending or contemplated, immediate action is necessary, an opportunity to be heard to be granted within fifteen days from the date of such suspension, passing order of revocation, or continuation, of suspension within fifteen days from the date of hearing and, in the event of the latter, to be followed by initiation of proceedings under regulation no. 17 with adherence to all the timelines therein - The business activities of an importer or exporter, against whom proceedings are initiated under Customs Act, 1962, are not jeopardised as it is only the impacted consignments that are interdicted. Any deviation from the procedures for suspension, revocation or penalising has to be approached with due responsibility and, owing to the unsupervised exercise of power, will have to be at the cost of the detriment being overruled.
In no uncertain terms, that statutory actions against customs broker, the hyphen that connects the importer/exporter with the customs authorities and, thereby, administratively accountable to the licensing authority, are to be interfered with only for colourable decisions, adjudged against prescriptions in the Regulations and proportionate deprivation by such authority. The temptation to take a stick to an underling for any real, or perceived, misdemeanour is as old as the master-servant institution and which the wheels of justice must, unhesitatingly, obliterate.
For lapses in import and export in which breach of the obligations prescribed in Customs Broker Licensing Regulations, 2018, the licensing authority is empowered, under regulation no. 14 of Customs Broker Licensing Regulations, 2018, to revoke the license and/or to impose appropriate penalties, subject to compliance with procedure laid down in regulation no. 17 of Customs Broker Licensing Regulations, 2018. This process could take as long as six months, as per prescribed timelines, for investigations, issue of notice comprising specific charges of violation, conduct of enquiry in hearing, furnishing of a report of enquiry, response of the broker and culminating in issue of speaking order by the licensing authority. In the meanwhile, the continued validity of the licence would entitle the broker to carry on normal activities which may, in specific circumstances, be prejudicial to public interest and, regulation no. 16 of Customs Broker Licensing Regulations, 2018 permits temporary validation subject to certain basic procedural prescriptions.
In the present instance, the gap of more than a year since the alleged overvaluation was attempted, and the continued operation of the appellant as a customs broker since then, does indeed raise doubts about the urgency for suspension. We find that the impugned order has not recorded any justification for curtailing the broking operations of the appellant at this stage. The Regulations do not into envisage suspension to be retribution for alleged wrongdoing for which separate provisions exist and which should already have been initiated if the licensing authority is serious about compliance with the timelines prescribed therein.
Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 267 - CESTAT CHENNAI
Jurisdiction - Smuggling - Gold Jewellery - Baggage Rules - Revenue objected to the disposal of this appeal on the ground that the jurisdiction in a dispute relating to ‘baggage’ vested with the Government of India, in its revisionary authority, and was not under the appellate jurisdiction of the Tribunal - HELD THAT:- On perusal of the Rules pertaining to importation of jewellery, as baggage by an arriving passenger, it is seen that the quantity in the present dispute is far in excess of that allowed free of duty on import into India, Therefore, the passenger has failed to comply with declaration requirements and confiscation under section 111(1) of Customs Act, 1962 is not misplaced - The appellant is a citizen of Malaysia and intends to return to her country of domicile. She was unable to carry into, and wear the gold jewellery in, India and it is her request that she should be allowed to carry it back with her on the return trip to Malaysia. In view of these circumstances and this plea, while holding that the goods are liable for confiscation under section 111(1) of Customs Act, 1962, we desist from endorsing the conformation. Accordingly, the confiscation effected under section 111(1) of the Customs Act, 1962 is set aside.
As the goods were liable for confiscation, the liability to penalty under section 112(a) of the Customs Act, 1962 is not unwarranted - the imposition of penalty of ₹ 1,00,000/- would suffice to meet the ends of justice - the appellant is directed to retrieve the gold jewellery and export it out of the country upon complying with the penalty imposed under this order.
Appeal disposed off.
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2020 (9) TMI 226 - MADRAS HIGH COURT
Refund of SAD - N/N. 102/2007 dated 14.09.2007 - sale of imported goods in India - Escalator in SKD condition - availability of alternate remedy - HELD THAT:- Notification No.102/2007 dated 14.09.2007 (as amended), provides for refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act, 1975 upon sale of imported goods in India, subject to certain conditions. Among the conditions prescribed, the importer was required to pay the appropriate Sales Tax or Value Added Tax and should also produce documents evidencing payment of appropriate Sales Tax or Value Added Tax, as the case may be, on sale of such imported goods - By Circular No.6/2008 dated 28.04.2008, the Central Board of Excise and Customs had prescribed the procedures to be adopted for refund of the 4% Additional Duty of Customs, in pursuance of Notification No.102/2007 dated 14.09.2007. As per Clause 5.1 of this Circular, the importer was required to furnish a certificate from the Statutory Auditor, certifying that the imported goods and the local goods are one and the same.
This Court is of the view that though there is an alternate remedy of appeal as against the impugned order in the present case, the same shall not be a bar to maintain this Writ Petition under Article 226 of the Constitution of India, since there is a violation of the procedure prescribed under the statute and thereby, the order itself is wholly without jurisdiction - Apart from this aspect, admittedly, the impugned order has been made without issuance of a show cause notice, calling for the petitioner’s objections and as such, is in violation of the Principles of Natural Justice. On this ground also, the petitioner may be entitled to invoke the writ jurisdiction without availing the alternate remedy, as held in a catena of decisions of the Hon’ble Apex Court and various High Courts.
The impugned Order is set aside and the respondent shall refund the claim made by the petitioner, which is the subject matter of the Order-in-Original, together with interest at the rate of 6% p.a. from the date of the refund application - Petition allowed.
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2020 (9) TMI 225 - CESTAT MUMBAI
EPCG Scheme - Exemption N/N. 104/94 dated 16th March 1994 - import of containers, free of duty on execution of Bond/Undertaking, on the condition that such containers will be exported within a period of six months from the date of import - Allegation that appellant failed to export containers within the stipulated time period and applied for extension of time - Confiscation alongwith Redemption Fine and Penalty.
HELD THAT:- It is undisputed that the Appellant had imported 75 containers and had availed the benefit of exemption N/N. 104/94 dated 16th March 1994. Under the said notification, the Appellant was required to re-export the containers within six months. The Appellant, admittedly, failed to re-export the containers within the stipulated time period and also failed to exercise the liberty to file for extension of time, granted to him under the said notification. The exemption notifications require strict interpretation and therefore, the Appellant is in gross violation of the conditions of the exemption notification.
On perusal of the Survey Report, it is found that the containers have been declared unfit for export and the depreciated value has been calculated at ₹ 11.70 lakhs. The first adjudicating authority had valued the containers at ₹ 28,24,034/- (36 containers) and ₹ 30,79,820/- (39 containers) and accordingly, duties of ₹ 9,50,316/- and ₹ 10,36,390/- respectively had been demanded. Much time has elapsed since this valuation was confirmed by the first adjudicating authority.
Confiscation of the said containers - HELD THAT:- The valuation of the 39 containers at ₹ 30,79,820/-, as arrived at by the First Adjudicating Authority is upheld and accordingly, the demand of duty of ₹ 10,36,390/- along with interest is upheld. The Appellant has already paid the duty amount of ₹ 10,36,390/- vide challan No. 245 dated 22nd January 2008, which has been appropriated in the impugned order.
The order of confiscation of the 39 containers is upheld and the redemption fine reduced to ₹ 2,20,000/-. The Appellant had already paid redemption fine of ₹ 2,20,000/- vide challan No. 1119 dated 22nd January 2008, which has been appropriated in the impugned order.
Appeal disposed off.
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2020 (9) TMI 180 - BOMBAY HIGH COURT
Release of seized goods - confiscation - First appellate authority set aside the original order - Non-release of goods has been justified and defended by the respondents on the ground that the Department has filed appeal against the order-in-appeal before the CESTAT - HELD THAT:- The original authority took the view that importation of caustic soda by the petitioner was without compliance to BIS standard IS 252:2013 made mandatory vide Government of India order dated 03.04.2018. Therefore, the said importation being in contravention of BIS requirements, was liable to confiscation under section 111(d) of the Customs Act. While further holding that penal action under section 112(a) of the Customs Act was invocable in the case of the petitioner, it was however observed that petitioner had acted bona fidely without any mala fide intention.
Coming to the appeal preferred by the petitioner, appellate authority vide the order-in-appeal dated 20.12.2019 noted that the appellant i.e., the petitioner had made the requisite pre-deposit of ₹ 7,50,000.00 on 27.11.2019 which is 7.5% of the penalty imposed in the order-in-original. Therefore, the appellate authority declared that appellant had made the mandatory pre-deposit and thus this requirement was satisfied - Appellate authority further noted that the appeal was heard on 09.12.2019. While counsel for the appellant attended the hearing and made submissions on behalf of the appellant, there was no representation on behalf of the Department. Department neither filed any crossobjection on the appeal memo nor submitted any written argument.
Thus, it is quite evident that the Department did not contest the appeal filed by the petitioner under section 128 of the Customs Act. Significantly, neither in the affidavit-in-reply nor in the written submissions filed by the respondents there is any explanation for such default by the Department. This conduct of the Department is inexplicable and quite baffling to say the least.
The foreign manufacturer obtained licence on 30.09.2019 from BIS for the standard specification IS 252:2013 for its manufactured goods i.e., caustic soda which was imported into India by the petitioner on 01.11.2018. Post the order-inappeal, test report of the sample of the goods of BIS accredited laboratory showed that the goods conform to BIS standard IS 252:2013 specification. Objection of the respondents is that at the time of arrival on import on 01.11.2018 the goods did not have the BIS standard specification IS 252:2013 marking. Therefore, seizure and subsequent confiscation is justified.
What is crucial from the above is that an appeal to CESTAT has to be filed within three months from the date of communication of the order sought to be appealed against with the period of limitation extendable on sufficient cause being shown. Therefore what is of relevance is that the 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 or opinion rendered by the Committee of Commissioners under sub-section (2) - though respondents have not mentioned the date on which the order in appeal was communicated to the Chief Commissioner or Commissioner of Customs, it is however stated in paragraph 8 of the written submissions that in terms of the order-inappeal dated 20.12.2019, samples were drawn on 08.01.2020. This goes to show that the order-in-appeal was communicated to the respondents prior to 08.01.2020. However as the respondents have not mentioned the date of communication of the order-in-appeal, we take 08.01.2020 as the date of communication. The three months limitation period would therefore be upto 07.04.2020.
In the present case there is no dispute that by the order-in-appeal dated 20.12.2019, the order-in-original dated 22.11.2019 was set aside. By the order-in-original the goods in question were confiscated. After the order-in-original is set aide, the order of confiscation no longer survives. When an order is set aside by a superior authority or appellate authority, the consequence thereof is that such an order loses its effectiveness and becomes inoperative - it is evident that after the order-in-original has been set aside there is now no order of confiscation of the goods. While power of seizure is provided in section 110 of the Customs Act, section 111 thereof deals with confiscation of improperly imported goods. As per sub-section (1) of section 110, if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. Therefore, seizure is made if the proper officer has reason to believe that any goods is liable to confiscation. Thus seizure may be said to be the first step to confiscation - So when the order of confiscation is set aside, the order of seizure cannot survive.
Principles of judicial discipline require that orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. If this healthy rule is not followed, the result will be undue harassment to the assessees and chaos in administration of tax laws.
The non-release of the goods of the petitioner by the respondents is without any justification and liable to be interfered with - on thorough consideration of the matter we direct the respondents to release the goods i.e., caustic soda of the petitioner imported vide bill of entry dated 01.11.2018 forthwith without any delay.
Writ petition is allowed but without any order as to cost.
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2020 (9) TMI 179 - DELHI HIGH COURT
Release of petitioner - mis-declaration of imported goods - used and second hand goods - allegation against the petitioner is that he had imported hard disks from overseas declaring them to be new but the test reports indicate that the said goods are used goods - HELD THAT:- Considering that the custom authorities have commenced proceedings against the petitioner in Mumbai and an order remanding the petitioner to custody has been passed by the learned CMM, Mumbai, this Court is of the view that even assuming that this court has jurisdction to entertain the present petition, it would not be apposite to do so.
The petiton is, accordingly, disposed of leaving it open for the petitioner to avail of remedies before the concerned courts at Mumbai.
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