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Customs - Case Laws
Showing 81 to 96 of 96 Records
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2020 (9) TMI 178 - DELHI HIGH COURT
Non-service of order - auction of goods - Mr. Dayan Krishnan assures this Court that the ground rent/demurrage shall be paid to respondent no.2 after the said amount is determined and benefit is given of the letter dated 23rd April, 2020 issued by the Central Board of Indirect Taxes and Customs.
HELD THAT:- Issue Notice.
Till further orders, there shall be stay of auction scheduled on 31st August, 2020 of the subject consignment of goods imported by the petitioner.
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2020 (9) TMI 177 - CESTAT KOLKATA
Smuggling - Gold - Silver - silver coins - currencies - foreign origin - party receipts and invoices submitted belatedly were fabricated - Confiscation - redemption fine - penalty - HELD THAT:- On 04-08-2015, the Officers of the Department searched the premises of Sri Ratan Kumar Shah (Appellant No.1) and recovered three cut pieces of gold and some quantity of silver and silver coins along with Indian Currency and Nepali Currency, which has been reflected in the Seizure List prepared in the Customs Office at Forbeshganj. The Seizure List shows the total value of the gold, silver and currencies, which comes to ₹ 40,80,158/-. The Officers did not take the jewellery from the shop premises of the Appellant No.1. Also, the Appellant No.1 was kept in the custody of the Customs Authority in the Customs Office for the period from 04-08- 2015 to 07-08-2015 and he was allowed to leave the Customs House on 07-08-2015 on furnishing Bail Bond. This is a case of seizure from the shop premises/a case of town seizure by Customs Officials and not from any Port or Airport while being smuggled. Since the appellant was ill, he could not take steps for release of the seized goods.
There is no evidence also to show that the goods were actually having any foreign markings. The Essay Certificate dated 07-10-2015 do not also suggest the gold were of foreign origin since the purity was in the range of 992.8 to 993.6. The imported gold generally is having purity of 999 per mille. It is very difficult to hold that the gold were smuggled one.
The documents submitted by the Appellant No.1 appear to be genuine and on submission of the documents he has discharged the burden under Section 123 of the Customs Act, 1962. There is no evidence on record to show that the seller Shri Ratan Lal Soni of Shri Balaji Impex was an active collaborator in this transaction, rather Department did not proceed to investigate in respect of the purchase documents submitted by Shri Ratan Lal Soni during investigation showing purchase of imported gold from different importers. Since the Appellant No.1 had discharged the burden, the confiscation cannot be held to be legal and proper.
Redemption fine and penalty - HELD THAT:- Without going into the proper determination of redemption fine, I am inclined to hold that redemption fine is not required to be paid since the confiscation under Section 111(a) and (b) of the Customs Act, 1962 in respect of gold and silver has been held to be not maintainable as also confiscation of Indian Currency and Nepali Currency are held to be not maintainable under Section 121 of the Customs Act, 1962, in the absence of evidence that the said currencies are the sale proceeds of the smuggled goods - Since, I find confiscation is not maintainable, the imposition of penalty is also not maintainable apart from being not maintainable for imposing composite penalty.
Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 176 - CESTAT, NEW DELHI
Imposition of ADD - determination of individual dumping margin for the appellants (exporters) in relation to anti-dumping duty imposed on new/unused Pneumatic Radial tyres [subject goods] originating in or exported from Peoples Republic of China [China PR] - Section 9C(1) of the Tariff Act - HELD THAT:- Though, under the main part of sub-rule (2) of Rule 22, it is provided that the Central Government shall not levy anti-dumping duties during the period of review, but the proviso permits the Central Government to resort to provisional assessment and if the review results in determination of dumping in respect of the subject goods, it may levy duty in such cases retrospectively from the date of initiation of the review. What is, therefore, important to notice is that the review should result "in a determination of dumping in respect of such products or exporters". It is only in such a case that the Central Government may levy duty retrospectively from the date of initiation of the review, for which purpose a notification has to be issued by the Central Government.
In the present case, the Designated Authority did not make a recommendation for imposition of any definitive individual dumping margin. The Appellant wanted individual dumping margin but that was not accepted and the levy of duty as provided in the Notification dated 18 September, 2017 continues. Thus, it would not be necessary for the Central Government to issue a notification for levy of retrospective duty. Duty was required to be paid by the appellants under the residuary category of the notification dated 18 September, 2017 and the same duty continues.
The preliminary objection raised by the Domestic Industry on the maintainability of the appeals is rejected - The appeals shall now be heard on merits on 12 March, 2020.
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2020 (9) TMI 139 - SUPREME COURT
Seeking levy of Anti Dumping Duty - Designated Authority (DA) terminated the investigation, on the ground that appellant failed to prove any injury to Domestic industries - HC directed the DA to initiate investigation - Contempt proceedings initiated against the DA for failure to make necessary inquiry / investigation - HC has also issued directions for replacement of DA - normal Butanol or N-butyl alcohol - scope of the term "like article" - Rule 14(b) of the Rules of 1995.
HELD THAT:- Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country – or combination of both-) cannot be more than five years – which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration.
Keeping the imperative of completion of investigation within a pre-determined timeline, the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out the investigation, assume importance - The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this court’s opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure.
Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DA’s functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.
This court is of the opinion that the impugned orders issuing specific directions for anti-dumping investigation into articles imported from EU, the order, initiating contempt proceedings against the DA and order for replacement of DA have to be set aside - appeal allowed.
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2020 (9) TMI 138 - MADRAS HIGH COURT
Retention of goods after arriving at Port - Dispute in title of goods - the petitioner herein lodged their contentions and contended that the goods should not be released to the second respondent herein - section 49 of CA - HELD THAT:- The second respondent herein was the original importer. It is true that certain documents had been enclosed by the petitioner in the typed set of papers. It is noted that all the original documents are only with the second respondent. The learned Standing counsel submitted that as per Section 49 of the Customs Act 1962, the Customs authority cannot retain the goods beyond a period of 60 days. The Customs authorities are not concerned with the civil claims which the petitioner may have against the foreign exporter. As far as the first respondent is concerned, they have no difficulty in releasing the goods to the second respondent, as the second respondent has complied with all the formalities.
The petitioner probably has been given a short shrift by the foreign exporter. It is quite possible that the petitioner has been misled by the foreign exporter. But then, that cannot be a ground for directing the first respondent to retain the goods. The first respondent cannot retain the goods, till the issue is decided by the civil Court. The petitioner cannot have any claim against the respondents. It is seen that there was transaction only between the petitioner and the foreign exporter. The foreign exporter is not before this Court.
Petition dismissed.
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2020 (9) TMI 137 - MADRAS HIGH COURT
Provisional release of goods - Used Rubber Tyre Cut in Two Pieces - misdeclaration of the imported goods - restricted goods or not - allegation that the importer has mis-declared the cargo in order to circumvent the import restriction imposed by the extant Foreign Trade Policy - Section 110A of the Customs Act, 1962 - HELD THAT:- While the petitioners would claim that the import is free, the original stand of the respondents was that it is restricted. In other words, when the seizure took place, the debate centered on the question whether the import is restricted or free and nothing else. A mere look at the seizure mahazar would indicate that it was not the stand of the respondents that the import of the goods in question is prohibited. In the written arguments filed by the learned standing counsel, it has been mentioned that though the petitioners claim that the imported used tyres are with two cuts in the bead wires, an inspection by the authorities, it was found that the said imported used tyres are without any cuts. The contention that the imports have been made without authorisation/license from DGFT has been reiterated in the written arguments. If that be so, the question is whether the request for provisional release of the goods can be opposed.
The 2016 Rules contain as many as 8 schedules. Schedule 3 is in two parts. Part A contains a list of hazardous wastes applicable for import and export with prior informed consent. Part B contains the list of other wastes applicable for import and export and not requiring prior informed consent. Schedule VI sets out hazardous and other wastes prohibited for import. It is not the case of the respondents that the imported goods in the case on hand fall under Schedule VI. Once the application of the Schedule VI of the 2016 Rules is ruled out, the only question is whether the import of the goods is free or restricted. Under either case, in view of the decision of the Hon'ble Supreme Court in Atul Automations [2019 (1) TMI 1324 - SUPREME COURT], provisional release is very much permissible.
The petitioners are entitled to provisional release of the goods under Section 110A of the Customs Act, 1962 - Petition allowed.
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2020 (9) TMI 136 - DELHI HIGH COURT
Jurisdiction - power to issue SCN - violation of the Foreign Trade Policy or misuse of SFIS scheme or of SFIS credits or not? - HELD THAT:- The respondents have the power, jurisdiction and authority to issue the aforesaid show cause notice for the alleged breach of Foreign Trade Policy and wrongly availing the benefits under 'Served from India Scheme' (SFIS) The objections articulated by learned counsel for the petitioner are of a nature which can be taken before the authorities, and do not call for a departure from the general principle that a writ petition will not be entertained against issuance of a show cause notice.
As the show cause notice is yet to be decided or adjudicated upon by the concerned respondents authorities, we are not expressing any opinion on the merits of the case. The petitioner has to give reply of the show cause notice to the concerned respondent authorities and if the respondents decide any issue against the petitioner, the petitioner is not remediless.
This is a premature writ petition - petition dismissed.
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2020 (9) TMI 135 - DELHI HIGH COURT
Revocation of CHA License - forfeiture of security deposit - imposition of penalty - HELD THAT:- The issue raised in the present appeal is squarely covered by the decision of a Coordinate Bench of this Court in KVS CARGO VERSUS COMMISSIONER OF CUS. (GENERAL) , NCH, NEW DELHI [2019 (4) TMI 398 - DELHI HIGH COURT]. He has no objection to the present appeal being disposed of today itself.
The present appeal cannot be entertained and is dismissed.
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2020 (9) TMI 134 - CESTAT KOLKATA
Absolute Confiscation - Gold - old and used Mobile Phone - Indian Currency - Claim of innocence and bonafide - cross-examination of witnesses - Section 108 of the Customs Act, 1962 - HELD THAT:- The authorities below proceeded on the basis of assumption of recovery of gold from the possession of the appellant. The appellant wanted cross-examination of the witnesses named in the BSF Seizure Memo, which has not been granted. The factum of recovery as has been mentioned in the BSF Seizure Memo and the statement of the appellant contained in the said Memo has been disputed by the appellant. Before the Customs Authority while giving statement under Section 108 of the Customs Act, 1962, the appellant in his statements dated 04-04-2016 and 05-04-2016 repeatedly stated that he is not involved in any illegal smuggling activity. He did not know any person whose names are appearing in the BSF Seizure Memo.
Recovery of the gold from the appellant has not been proved and hence, he was not required to discharge the burden under Section 123 of the Customs Act, 1962. As there is no claimant of the gold, the confiscation of gold handed over by the BSF Personnel to the Customs Authority is justified. Regarding seizure and confiscation of Mobile Phone and Indian currency, since the illegal importation of gold by the appellant has not been proved, the confiscation of the said old and used Mobile Phone valued at ₹ 200/- and Indian currency of ₹ 6,000/- cannot be made. Adjudicating Authority proceeded on the basis of probability that the Indian currency may be the advance received for smuggling of gold.
The learned Commissioner did not give any finding on this point but upheld the confiscation - Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 133 - CESTAT KOLKATA
Provisional assessment - onerous condition of furnishing 100% bank guarantee on the Appellant for the differential duty amount - Classification of imported goods - carbonated fruit drinks such as Big Cola, Big Orange Cola, Big-lemon and other similar products - whether classifiable under Tariff Item 2202 99 20 of the Customs Tariff Act, 1975? - applicability of Sl.No.48 under schedule 2 as “Fruit Pulp or Fruit Juice based drinks” in Notification No.1/2017-Integrated Tax (Rate) dated 28.06.2017 - HELD THAT:- The Appellant’s products are seasonal and competitive in market. As pointed out by the counsel for the Appellant, already substantial part of the season has been lost by the appellant due to the inability to comply with the conditions of provisional assessment put forth by the department, particularly the furnishing of 100% Bank Guarantee. Once the assessment of the identical products has already been decided by the Commissioner (Appeals) in favour of the appellant vide the OIA dated 08.06.2020, I see no justification in ordering to furnish 100% Bank Guarantee.
Revenue is directed to allow the import of consignments of the Appellant without insisting on any Bank Guarantee with immediate effect. The respondent Revenue is expected to adhere to this order in letter and spirit, without causing any further loss of business to the Appellant - appellants shall be permitted to release the goods on condition of their executing Indemnity Bond agreeing and undertaking to pay the amount of differential duty as may be imposed on them by the Customs authorities while making the final assessment, instead of bank guarantee.
Appeal allowed.
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2020 (9) TMI 132 - CESTAT AHMEDABAD
Rectification of mistake - mistake apparent on the record or not - charges under Regulation 10(d) of CBLR mainly based on statements placed on record - HELD THAT:- It has emerged that there is no statement which has not been supplied to the appellant and the charges made in para 7.2 of the Show Cause Notice is not based on any statement. It was presumed by appellants and this Court at the time of earlier decision that charge in para 7.2 of Show Cause Notice is based on statement. Since remand has been made with direction to to decide after supplying a copy of a non existing statement, it cannot be implemented as it is.
It is seen that the order states that the only evidence that might exist in the favour of Revenue could be in the non existing statement which appellant and Tribunal assumed to be existing. The order already observes that there is no evidence to support the charge made under Regulation 10(d) of CBLR, 2018 except for this non existing statement. Therefore, there is clearly an apparent mistake in the order. Moreover, the order in the present form cannot be acted upon as there is no statement that can be provided to the applicant.
ROM application allowed.
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2020 (9) TMI 83 - PATNA HIGH COURT
Seizure of goods along with vehicle - 304 bags, containing 20,520.00 kgs. of betel nuts - It is submitted that the goods and the truck are lying under the open sky, hence are likely to decay and perish, hence it would be appropriate that the same are released for which the petitioners are ready to approach the respondent Custom authorities and furnish cash and bank guarantee - Case of Revenue is that present writ petition is also not maintainable at the instance of the petitioner no. 2, who has claimed for release of the seized goods, since the said Biren Sah has never filed any application before the respondent authorities claiming ownership or seeking release of the seized betel nuts.
HELD THAT:- This Court finds that since there is no disagreement amongst the parties regarding release of the goods/truck in question, it is deemed fit and proper to grant liberty to the owners of the goods/truck in question to approach the respondent Custom authorities by filing appropriate application for provisional release whereupon the respondent Custom authorities shall release the same in accordance with their scheme/circular and upon the owners of the goods/truck furnishing adequate security, cash and bank guarantee.
Whether the initiation of the seizure/ confiscation proceedings is or is not ultra vires the provisions contained in the Custom Act, 1962? - HELD THAT:- This Court finds that allegations and counter allegations have been levelled from both the sides and in fact the respondent Custom authorities, in their counter affidavit filed before this Court, have raised the issue regarding the very maintainability of the writ petition in its present form and have alleged non-cooperation by the petitioners during the course of investigation as also have placed materials on record to show that the petitioners have not approached this Court with clean hands, thus disentitling them from any relief under the equitable and discretionary jurisdiction of this Court under Article 226 of the Constitution of India, however, this Court is not going into the merit of the imputations since the same would prejudice the case of the petitioners herein and it would suffice to state that since the investigation is going on and is in a nascent stage, any interference in the seizure proceedings would have the effect of hampering and stifling proper investigation and adjudication.
Thus, this Court is of the view that since the material on record prima facie indicates suspicious and dubious transaction as also a serious challenge has been made by the respondents with regard to the maintainability of the present writ petition, it would be proper not to delve on the merits of the case since the same may cause prejudice to the owners of the goods/vehicle, hence it is deemed fit and proper to grant liberty to the petitioners to raise all the issues raised herein, in the present writ petition, before the respondent Custom authorities at an appropriate stage.
Petition disposed off.
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2020 (9) TMI 82 - KERALA HIGH COURT
Provisional clearance of the goods imported pending a consideration by the Supreme Court of the main issue with regard to the legality of the notification - Ext.P1 notification - import of restricted item - Canadian Green Peas - HELD THAT:- The prayer for provisional release of the goods sought for by the petitioner cannot be granted. It cannot be ignored that what the petitioner has chosen to import is a commodity in respect of which the Central Government, through the Directorate General of Foreign Trade (DGFT), has issued Ext.P1 notification restricting imports with a view to safeguard the domestic industry. The minimum import price for the product imported is fixed as 200/- per kilo gram CIF and it is not in dispute that the price at which the petitioner imported the commodity is significantly lower than the minimum import price stipulated. The goods, if allowed to be provisionally cleared, would enter the domestic market, thereby frustrating the very objective of the notification issued by the Central Government.
That apart, the challenge to the notification itself is pending consideration before the Supreme Court in a batch of transferred writ Petitions from various High Courts. In those writ petitions, the Supreme Court has interdicted the High Courts from deciding the issue with regard to the legality of the notification and has also indicated that, in the event of any importer seeking interim directions, they would have to approach the Supreme Court for the same.
Petition dismissed.
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2020 (9) TMI 57 - MADRAS HIGH COURT
Release of consignment - refund of ADD - L-ASCORBATE 2 - PHOSPATE -35 PCT, attracting Anti Dumping Duty - petitioner's claim for refund of ADD was rejected on two grounds, namely, that the petitioner had not filed the refund claim of ADD within one year from the levy of ADD and that the ADD was not paid “under protest”, which are against the requirements under Section 27 of the Customs Act.
HELD THAT:- The petitioner's claim for refund has been rejected stating that the claim is made after a period of one year from the date of payment and that the petitioner had not produced evidence to the effect that the duty was paid “under protest”. When this Court in its earlier order dated 18.08.2015 had observed that the authority concerned should pass a speaking order after adjudication, the Deputy Commissioner of Customs had held that ADD was not leviable on the subject goods and that the importer is entitled for consequential relief, I am unable to comprehend as to how the Assistant Commissioner of Customs could resort to any reasoning for rejecting the petitioner's claim for refund, when the Deputy Commissioner of Customs had held that the duty itself was not leviable and that the petitioner would be entitled for consequential relief, which order has become final - As a matter of fact, the second respondent had no other opinion, but to comply with the request of the petitioner for refund, in view of the Order-in-Original dated 19.10.2015 passed by the Deputy Commissioner of Customs. As such, both the reasonings that the application for refund is time barred and that the payment was not made “under protest”, cannot be sustained.
The learned Senior Standing Counsel for the respondents would rely on certain reasonings given in the counter affidavit filed by them with regard to the procedure for paying duty “under protest” and the statement of the audited Balance Sheet and certificates from the Statutory Auditor. Curiously, these submissions made based on the counter averments, are not the reasonings given by the second respondent in the impugned order for rejecting the petitioner's claim - It is a well settled proposition that the reasoning adduced in the impugned order cannot be improved or substituted by way of a counter affidavit filed in a Writ Petition. As such, in view of the observations made by this Court with regard to the illegality of the reasons cited in the impugned order, the petitioner would be entitled to succeed.
Petition allowed.
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2020 (9) TMI 56 - ALLAHABAD HIGH COURT
Grant of Bail - Smuggling - Sections 135 of Custom Act - HELD THAT:- Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicants are entitled to be released on bail in this case.
Let the applicants Pintu Verma @ Mukesh Verma and Deepu Verma, under Sections 135 Custom Act, Police Station Custom be released on bail on their furnishing personal bonds with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions imposed.
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2020 (9) TMI 17 - DELHI HIGH COURT
Permission to go abroad to their home town in Kyrgyz Republic - Smuggling - Gold - ill-health of son raised, to seek permission to go home - Calling for records to exercise powers of revision - Section 397(3) of the Cr.P.C., 1973 - HELD THAT:- The present petition is not maintainable, in as much as, a revision petition had been filed by the petitioners against the order dated 10.12.2019 of the Trial Court, it is essential to observe that the present petition has been filed under Section 482 of the Cr.P.C., 1973 whereunder the inherent power of this Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure, 1973 or to prevent abuse of the process of any Court or otherwise to secure the ends of justice has been saved.
Though, undoubtedly, as laid down by the Hon’ble Supreme Court in DR. MONICA KUMAR & ANR VERSUS STATE OF U.P. & ORS [2008 (5) TMI 687 - SUPREME COURT], the inherent jurisdiction under Section 482 of the Cr.P.C., 1973 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself, nevertheless, the existence of the said inherent power to make such orders as to secure the ends of justice, cannot be held to be inexistent. Taking the said rationale into account, the petition is held to be maintainable.
The verified documents as verified by the Customs Department and as verified by the Attaché (Consul), Embassy of the Kyrgyz Republic in India, it is apparent that the child of the petitioner No.1 born in the year 2018 is unwell. The record also indicates vide document dated 06.03.2020 as issued by the Embassy of the Kyrgyz Republic in India that vide paragraph 5 of the same that there is no one in the family of the petitioner No.1 to take care of her critically ill son and that her presence is required to ensure her son’s good health and surgery.
The petitioner No.1 is allowed to travel to Kyrgyzstan for a period of 45 days to get her child operated with the direction to the petitioner No.1 to return to India on the 46th day of her leaving India with the request to the Embassy of Kyrgyz Republic in India in Delhi, to ensure that the petitioner no.1 Ms. Aida Askerbekova, holder of Kyrgyzstan Passport No. AC 3167256 returns back to India on the 46th day from the date when she leaves India to Kyrgyzstan for the operation of her son which she is permitted to go only after the deposit of the sum of ₹ 10,00,000/- in the form of an FDR as directed hereinabove, which on deposit is directed to be converted into an auto renewal mode. Furthermore, in the event of the petitioner no.1 not returning back on the 46th day of her leaving India to Kyrgyzstan, the said amount of ₹ 10,00,000/- deposited in the form of an FDR as directed, would stand forfeited.
Petition disposed off.
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