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Customs - Case Laws
Showing 21 to 40 of 49 Records
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2021 (5) TMI 740 - BOMBAY HIGH COURT
IGST refunds - allegation of exported to avail undue export benefits - Provisional release of goods - grievance of the petitioner pertains to withholding of IGST refund and instructions/directives issued to the petitioner’s banker not to accept related remittances - HELD THAT:- it is now clear that the subject goods/consignment have been released provisionally. Now the grievance of the petitioner pertains to withholding of IGST refund and instructions/directives issued to the petitioner’s banker not to accept related remittances. The above grievances are directly relatable to validity of the seizure dated 28.08.2020.
From a reading of section 110, more particularly sub section (1) thereof, it is discernible that seizure is not an end in itself. Seizure can be made only if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act. Thus, a discretionary power is vested upon the proper officer to seize such goods if he has reason to believe that those goods are liable to confiscation under the Customs Act.
Petitioner has contended that the subject goods were imported from China to India by M/s. HP India Sales Pvt. Ltd. and petitioner had purchased the same from M/s. Connect Info Solutions after five stages of trading. No action was taken by the respondents against M/s. HP India Sales Pvt. Ltd. at the time of import if at all there was any violation. This provision cannot be invoked after five stages of trading that too at the stage when petitioner had purchased the goods, paid the IGST to the seller and on completion of all formalities obtained let export order for export.
It is seen that in every case in which anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty must be preceded by an adjudicatory process in which principles of natural justice are required to be followed but before initiation of such adjudicatory process show-cause notice under section 124 is required to be given to the owner or to the concerned person mentioning therein the grounds of proposed confiscation or penalty whereafter an opportunity of making representation is required to be given followed by reasonable opportunity of hearing.
In the instant case, the impugned seizure memo is dated 28.08.2020. Already sufficient time has elapsed. Therefore, it would be in the interest of justice if the same is adjudicated early - the jurisdictional Principal Commissioner of Customs may authorize an appropriate officer of the customs department to adjudicate on the impugned seizure memo dated 28.08.2020 and the consequences which would follow by issuance of notice under section 124(a) of the Customs Act. The said notice shall be issued within a period of three weeks from the date of receipt of a copy of this judgment and order. The entire proceeding of adjudication shall thereafter be completed within a period of eight weeks from the date of issue of notice under section 124(a) of the Customs Act.
Petition disposed off.
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2021 (5) TMI 737 - BOMBAY HIGH COURT
Trading House - license for import of Maize in concessional rate of duty - allegation of breach of the ‘actual user’ condition in the licences by the petitioner - petitioner sought adjustment of amount deposited during investigation towards the demand - HELD THAT:- The licences were granted by respondent No.1 subject to the 'actual user' condition and other usual conditions of import.
This Court noted that all the show cause notices emanated from the alleged violation of the 'actual user' condition contained in the two licences. Therefore, High Court was of the view that it would be in the fitness of things if the two notices dated 30.08.2013 with regard to the licences be first concluded on an expeditious basis and thereafter the notice dated 04.09.2013 issued by the Directorate of Revenue Intelligence be adjudicated, if necessary. The writ petition was disposed of with a direction to respondent No.1 to first adjudicate the show cause notices dated 30.08.2013 on all issues expeditiously after giving the petitioner an opportunity of personal hearing. It was clarified that depending upon the outcome of the said proceeding, the show cause notice dated 04.09.2013 issued by the Directorate of Revenue Intelligence would be adjudicated.
When respondent No.1 adjudicated the show cause notices, it noted the proceedings before the Andhra Pradesh High Court but only stated that public notice No.47 dated 18.05.2011 indicated that the 'actual user' condition was made non-mandatory with effect from 18.05.2011. Either the stand taken by Union of India and Director General of Foreign Trade before the Andhra Pradesh High Court was not brought to the notice of respondent No.1 or he had conveniently overlooked the stand so taken. Be that as it may, respondent No.1 took the stand that it was beyond the purview of the adjudicating authority to adjudicate on the legality of the conditions imposed in the import licences and therefore, he refrained from deciding on the matter of legality of the 'actual user' condition. However, after referring to the said condition and the provision of rule 13 of the Foreign Trade (Regulation) Rules, 1993, respondent No.1 held that petitioner had violated the ‘actual user’ condition of the licences thereby making it liable for action under section 11(2) of the Act. Consequently, the penalty was imposed.
Validity of the ‘actual user’ condition or whether it was mandatory or not is the central issue. Refusal of respondent No.1 to adjudicate on this issue is not only violative of the directions of this Court as contained in the order dated 20.11.2013 but also amounts to non-exercise of jurisdiction vested in him. As rightly pointed out by this Court in the order dated 20.11.2013 the core issue is the insertion of 'actual user' condition in the two licences - whether such insertion is legally permissible or without entering into this aspect, whether such condition is directory or mandatory are issues which are required to be gone into by respondent No.1. Failure to do so has occasioned non-exercise of jurisdiction.
The matter requires to be heard afresh on all issues as directed by this Court - Matter is remanded back to respondent No.1 for a fresh decision in accordance with law after giving due opportunity of hearing to the petitioner - Petition allowed by way of remand.
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2021 (5) TMI 642 - CESTAT MUMBAI
Condonation of delay in filing claims for fixation of ‘brand rate’ - precluded from sanction of ‘duty drawback’ on exports effected in four quarters between July 2017 and June 2018 - competent authority deprived the exporter of opportunity to rebut the grounds of refusal by not placing them on notice - HELD THAT:- Doubtlessly, several amendments were brought about in the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 vide notification no. 49/2010-Cus(NT) dated 17th June 2010 for liberalizing the procedure for fixation of ‘brand rates’ in sanctioning ‘drawback’ on exported goods. Particularly, the Commissioner of Customs approached the disposal of applications of the appellant with rigidity that is not in consonance with intent of reimbursement mechanism enshrined in the statute and is, effectively, a binding obligation upon the designated instrument of the State - Furthermore, the competent authority deprived the exporter of opportunity to rebut the grounds of refusal by not placing them on notice of such intent. The generality of the reasons adduced reflect failure to consider each of the claims for identification of the impediment that the elapse of time yoked the ascertainment of entitlement with. There is no justification for refusal to condone the delay in each application which must be returned for reconsideration of the claims from inception.
The revised provisions provide for compartmentalization of authority to condone; the Commissioner of Customs is enabled to intervene only beyond the competence vested in the Assistant/Deputy Commissioner with corresponding fees prescribed in the said Rules - Appeal disposed off.
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2021 (5) TMI 596 - GUJARAT HIGH COURT
Adjudicating SCN after long gap of 11 years - Matter was kept pending - Validity of Less Charge Demand Notice - concessional rate of duty - Import of certain second hand equipments, i.e. capital goods/professional equipments - whether the respondent authorities could now be permitted to adjudicate the Demand Notice dated 2.8.2007, more particularly, when no intimation was issued to the petitioner No.1 – company communicating about keeping the adjudication of the Demand Notice in abeyance? - HELD THAT:- This Court, in the case of SIDDHI VINAYAK SYNTEX PVT LTD. VERSUS VERSUS UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT] has in detail held and observed that where the department has kept the proceedings in call books, it would be impermissible for the department to reactivate the same after years together and more particularly, when the noticee has not been informed or communicated about transferring the matter to the call book and therefore, the action would be in breach of the principles of natural justice.
Clearly, the petitioners by this petition, have challenged the Demand Notice dated 2.8.2007 mainly on the ground that after the issuance of said notice, no steps worth the name have been taken by the respondent authorities for adjudicating the said notice. Perceptibly, not a single communication has been addressed by the respondent to the petitioners, intimating it about keeping the show-cause notice in abeyance. Furthermore, in the reply filed by the respondent, limited explanation is offered in paragraph 3.3 to the effect that due to reorganization of the department, shifting of the office documents have taken place, and during such shifting, the documents might have been misplaced. It is further averred that the office has tried to find out the documents related to the concerned Demand Notice dated 2.8.2007, however, the same are not traceable. Clearly, the Revenue has thoroughly failed to justify its lapse for not adjudicating the Demand Notice dated 2.8.2007 for more than 11 years. Quite apart, as is discernible from the contents of paragraph 3.3 of the reply, during the shifting of the office, papers pertaining to the Demand Notice dated 2.8.2007 are not traceable.
Thus, allowing the Revenue at this stage to proceed with the adjudication of the notice dated 2.8.2007, would be an exercise in futility, in breach of the principles of natural justice and against the principle laid down by this Court.
The demand notice quashed - petition allowed.
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2021 (5) TMI 595 - GUJARAT HIGH COURT
Extension of two years of Export Obligation period with a further request to prospectively grant it for two years - whether the extension as sought for of the authorisation needs to be given to the petitioner in wake of the pendency of the show cause notice dated 05.03.2019 and in total set of facts and circumstances?
HELD THAT:- Challenge in this petition is to this suspension of amendment sheet No.3, which had extended two years of Export Obligation period with a further request to prospectively grant it for two years. We could notice that the suspension on the part of the respondent authority is in wake of non-fulfillment of the directions on the part of the petitioner to the communication dated 24.12.2018. After nearly a month from the non-compliance on 22.01.2019, there had been a suspension of the amendment sheet No.3 dated 27.11.2018. It is to be noted that this communication clearly speaks of the suspension if not the cancellation or rejection of grant of the extension of the Export Obligation. This had come in wake of the inputs received from the DRI. The show cause notice pursuant to the said search operation and subsequent to the suspension of this is already given on 05.03.2019. Any indulgence on the part of the Court at this stage, would amount to entertaining the matter and indulging into the merit at the stage of show cause notice, which is impermissible.
Once having extended the period on 27.11.2018, without availing the opportunity, the grant of extension of Export Obligation period, cannot be cancelled. However, if there are certain suspicious documents noticed by the DRI, the authority concerned, if has chosen to suspend the same and has sought the detail from the petitioner, no interference is desirable. If the petitioner is given a clean chit in the proceedings of the show cause notice, it may request the concerned authority to consider the case of extending the Export Obligation period which has been suspended presently and it would be for the authority to consider such a request at an appropriate time, if the factual circumstances based on the substantive material eventually tilt in favour of the petitioner.
This petition deserves no merit and consideration, and stands dismissed.
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2021 (5) TMI 553 - RAJASTHAN HIGH COURT`
Permission for withdrawal of petition - job-work - request made for export of the goods from the job worker premise is rejected - HELD THAT:- The writ petition is dismissed as withdrawn with the liberty to the petitioner to avail the statutory remedy of appeal. It is directed that if the appeal is filed by the petitioner within a period of three weeks, the same shall be decided on merits after giving an opportunity of hearing to the petitioner.
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2021 (5) TMI 504 - CESTAT CHANDIGARH
Levy of Interest - legality of demanding and recovering of interest from the respondent before determining liability of customs duty - mis-declaration of description and value of the goods - HELD THAT:- The facts of the case are in dispute are that the duty has been received by the appellant from the importer way back in 2013 by the importer and with the Revenue. It is also the fact on record that on 31.3.2018 out of charge was given to the department to the respondent for the delivery of the goods to the importer. However, it is also fact on record that the goods have already been cleared for home consumption by way of auction by the respondent. In that circumstance, the dispute arose whether the Hon’ble High Court has directed to the appellant vide order dated 21.11.2019 [2020 (1) TMI 1181 - PUNJAB AND HARYANA HIGH COURT] to consider the refund of duty paid and quantum of duty on declared seized goods way back in 2013. Thereafter the department woke up and quantum of recovery of duty from the appellant and till date no order has been issued or no show cause notice has been issued for recovery of duty on the subject goods. Admittedly, it is fact on record that the duty of the said goods already been recovered by the appellant in 2013 itself and it is in the knowledge of the department. The appellant never received duty from the importer.
The Revenue is taking shelter of the Final Order No.60358/2020 dated 4.3.2020 [2020 (4) TMI 422 - CESTAT CHANDIGARH]. According to the spirit of the order of this Tribunal, there was no goods in question were in the custody of the custodian in terms of section 47 of the Act then the duty is payable by the custodian but no such notice has been issued to the respondent by the appellant to determine the liability on the respondent. Moreover, it is fact on record that the appellant has enjoyed duty paid way back in 2013 on the goods in question. Therefore, the question mark on the person who has received duty, who can duty, who is liable to pay interest thereon and duty has been enjoyed by the appellant themselves how can demand interest from the respondent without determine liability.
Appeal dismissed - decided against Revenue.
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2021 (5) TMI 483 - CESTAT CHANDIGARH
Refund of SAD - rejection on the ground of time limitation - time limit prescribed for filing refund claim is one year from the date of payment of SAD or not - N/N. 102/2007-Cus dated 14.9.2007 as amended by N/N.93/2008-Cus dated 1.8.2008 - HELD THAT:- As per the observations made by the Hon’ble Apex Court in CC (PREVENTIVE), MUMBAI VERSUS M/S M. AMBALAL & CO. [2010 (12) TMI 16 - SUPREME COURT], the exemption notifications in question are to be interpreted liberally. N/N. 93/2008-Cus prescribes that exemption from special CVD in specific is not available without VAT/Sales tax is paid by the importer. Further mandates notification is that SAD which has been levied on the importer is to safeguard the VATA/Sales tax is to be paid by the importer/trader at the time of sale of the goods. Therefore, if the importer sells the goods and make payment of VAT/Sales tax then the importer is entitled to claim refund of SAD paid by them at the time of import of the goods. If the goods are not sold by the importer, the importer is not entitled for refund of SAD paid by him. The importer shall claim refund of such additional duty of customs paid on the imported goods with the jurisdictional Customs officer before expiry of one year from the date of payment of additional duty.
COVID Pandemic situation - HELD THAT:- If importer imported goods in March, 2020, after lockdown due to the Pandemic Covid 19 in all over country, second wave of Pandemic and various parts of India is under locked down, if the importer failed to sell the imported goods, the importer shall be put on another burden of SAD which is otherwise entitled of refund on payment of VAT/Sales tax. Further, unless and until the goods are sold on payment of VAT/Sales tax, cause of action for refund of SAD does not arise, the said issue has not been addressed by the Division of this Tribunal in the case of C.C. -NEW DELHI (ICD TKD) (IMPORT) VERSUS AGGARWAL TRADING COMPANY [2018 (10) TMI 1572 - CESTAT NEW DELHI], the same has been addressed by the Single Member Bench of this Tribunal on various occasions. In that circumstance, as there are contrary views of this Tribunal, then it would be in the interest of justice, the matter needs to be referred to the Larger Bench of this Tribunal to decide the following issues:
Whether the time limit prescribed for filing refund claim of SAD paid by the importer is one year in terms of Notification No. 93/2008(Cus) dated 01.08.2008 which has been issued in terms of section 25(1) of the Customs Act, 1962 without selling the imported goods by the importer within one year of payment of SAD shall be applicable or not?
The Registry is directed to place the records before the Hon’ble President for constitution of Larger Bench to decide the issue.
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2021 (5) TMI 459 - ANDHRA PRADESH HIGH COURT
Confiscation - Smuggling - Gold Bars - rejection also on the ground of non-compliance of the provisions of Section 129-E of the Act - order passed under the Act by an officer of the Customs, lower in rank than the Principal Commissioner of Customs or Commissioner of Customs, to file appeal before the Commissioner (Appeals) - HELD THAT:- In the instant case, though the petitioner herein initially filed appeal on 17.08.2020, before the third respondent, it is clear from Form-CAI that the appellant undertook to pay the mandatory pre-deposit of 7.5% of the disputed amount but did not make any deposit to the said effect. Obviously, on the ground that the petitioner herein failed to comply with the above referred mandatory requirement of pre-deposit, the third respondent-appellate authority, by way of the order, dated 03.11.2020, rejected the appeal filed by the petitioner herein in limini on the sole ground of non-compliance of the provisions of Section 129-E of the Act. It is also not in controversy that once again on 03.12.2020, by complying with the said mandatory requirement, as stipulated under Section 129-E of the Act, petitioner herein preferred the appeal.
The filing of appeal in the instant case would not be regarded as filing of appeals repeatedly since the earlier order came to be passed by the third respondent not on merits but only on the sole ground of failure on the part of the petitioner herein to comply with the mandatory requirement of law but not on merits. In the considered opinion of this Court, the said order, dated 03.11.2020, by any stretch of imagination, cannot be regarded as the order on merits but is only an order refusing to entertain the appeal. Therefore, the contention of the learned Senior Standing Counsel that the petitioner herein is required to be relegated to the alternative remedy of appeal to the CESTAT cannot be sustained and is, accordingly, rejected.
The appeal filed by the petitioner herein on the file of the third respondent on 03.12.2020 stands restored to file for consideration of the same by the third respondent, strictly in accordance with law, on merits after giving opportunity of being heard to the petitioner before passing appropriate orders - Petition allowed.
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2021 (5) TMI 405 - BOMBAY HIGH COURT
Discharge of the accused under the prevention of corruption of act - officers of Central Excise Department - allegation of fraudulent availing the benefit of DEPB (Duty Entitlement Pass Book) Scheme - mis-declaration of export goods - pieces of cloths irregular in shape declared as ladies nightwear - criminal misconduct - offence under Section 13(1)(d) of Prevention of Corruption Act, 1988 - HELD THAT:- In the case in hand, in the adjudication proceedings, it is not proved that the Accused were in any way guilty of the act of omission/dereliction of duty or acting in an illegal manner. Consequently, the Accused nos. 1 and 2 were exonerated on the same set of allegations as has been made in the present case in the adjudication proceedings that too by an order of Appellate Tribunal. In that view of the matter, the determination in the adjudication proceedings are very much relevant and germane in the matter of prosecution of the Accused nos.1 and 2 on the same set of material in the criminal trial. What can be noticed from the observations made by the Commissioner and thereafter the Appellate Tribunal is the Accused nos. 1 and 2 were exonerated in the adjudication proceedings on merits as the allegations against them of dereliction of duty or acting in an illegal manner were not established.
It could be noticed that once the contravention of the provisions of the act by the Accused nos. 1 and 2 in the adjudication proceedings was not established, it has to be inferred that the prosecution of the Accused nos.1 and 2 under the provisions of the Prevention of Corruption Act particularly having regard to the non-satisfaction of necessary ingredients of Section 13(1)(d) of the Act cannot be held to be satisfied.
The claim of the Applicant that there is a miscarriage of justice and as the offence under the Prevention of Corruption Act and the adjudication by the competent authority are parallel and cannot go hand in hand, is liable to be rejected - Once the order passed in the adjudication proceedings is not questioned by the Applicants, the Applicants are bound by the same and, that being so, it is not open for the Applicants to open the question for illegality of the orders passed in the adjudication proceedings.
No case of exercise of excessive jurisdiction could be made out - Application dismissed.
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2021 (5) TMI 335 - CESTAT NEW DELHI
Valuation of imported goods - enhancement of value on the basis of NIDB data alone - HELD THAT:- The issue here is no longer res-integra. Under similar facts and circumstances on import of similar goods by the CC, ICD, NEW DELHI VERSUS M/S VSM IMPEX PVT LTD [2018 (12) TMI 389 - CESTAT CHANDIGARH], this Tribunal referring to Section 17(5) read with Section 17(4), concluded that the adjudicating authority is required to pass a speaking order within fifteen days of the re-assessment of the Bills of Entry. Section 17(5) does not make any whisper that the assessee/ importer is required to make a request or to seek an order under Section 17(5) of the Act. Further, this Tribunal observed that the reliance placed by Revenue on the ruling of M/S. ADVANCED SCAN SUPPORT TECHNOLOGIES VERSUS C.C., JODHPUR [2015 (11) TMI 31 - CESTAT NEW DELHI] and VIKAS SPINNERS VERSUS COMMISSIONER OF CUSTOMS, LUCKNOW [2000 (11) TMI 196 - CEGAT, COURT NO. IV, NEW DELHI], that in these decisions, there is no issue of passing an order under Section 17(5) of the Act, after passing of Bills of entry within fifteen days, hence these decisions are distinguishable and not applicable.
In the facts and circumstances of this case there is failure on the part of the customs officer, by not following the laid down Customs procedure, particularly procedure of assessment as laid down. They have orally denied to pass an order of provisional assessment and have further used undue influence and have practically compelled the respondent importer to agree to dictates and agree for enhancement of the declared value, trying to giving total go by to the provisions of Section 17(4) read with 17(5) of the Act.
The respondent importer is entitled to consequential benefit, if any, in accordance with law - Appeal dismissed.
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2021 (5) TMI 327 - GUJARAT HIGH COURT
Validity of detention and seizure of goods - allegation is that scraps in different forms seized from the premises were found to be imported without payment of appropriate customs duty - classification of goods - discarded and non-serviceable semi-broken/broken motor under CTH 7204 49 00 under the Other Ferrous Waste and scrap or not - jurisdiction to entertain this petition in wake of the availability of the alternative efficacious remedy - HELD THAT:- The law on the point if is regarded, it is quite clear that jurisdiction under Article 226 of the Constitution of India is not to be resorted to ordinarily when the alternative and efficacious remedy is available, unless of course the very issuance of notice is not sustainable under the law - The writ jurisdiction under Article 226 is not to be entertained against the show cause notice when statute provides for mechanism which is efficacious, alternative and productive as the very purpose of issuance of show cause notice to afford opportunity of hearing to the party concerned and on showing of the cause to the statutory authority, a final decision is to be rendered, it is pre-matured to interfere with the show cause notice by the court. Although, the Court has wide powers under Article 226 of the Constitution and it can also exercise in certain circumstances at the stage of issuance of show cause notice (when the show cause notice is totally non est etc.) Accordingly such powers are not to be exercised by the Court and this approach of self restraint and self limitation is adopted by the High Court always and that being a well settled position of law, no further dilation is needed.
The writ jurisdiction under Article 226 is not to be entertained against the show cause notice when statute provides for mechanism which is efficacious, alternative and productive as the very purpose of issuance of show cause notice to afford opportunity of hearing to the party concerned and on showing of the cause to the statutory authority, a final decision is to be rendered, it is pre-matured to interfere with the show cause notice by the court. Although, the Court has wide powers under Article 226 of the Constitution and it can also exercise in certain circumstances at the stage of issuance of show cause notice (when the show cause notice is totally non est etc.) Accordingly such powers are not to be exercised by the Court and this approach of self restraint and self limitation is adopted by the High Court always and that being a well settled position of law, no further dilation is needed.
Here is the case where the petitioner has filed Electronic Bill of Entry in the EDI system, where it can claim a particular exemption or a particular classification. On subsequently having noticed that the Copper and Aluminum elements would not permit the exemption under the Notification at the rate of 2.5% by itself would not make the import of the goods as clandestinely having been done, the least that could have been done was to term the same as mala fide when otherwise the relevant material had been already placed with the department - the communication dated 03.08.2020 in post clearance audit of Bill of Entry was on the basis of various documents including the certificate of analysis, when it was realized by the department that the product consists of the Copper scrap also to the extent of around 10%. The DRI has firstly detained the goods, which later on had been seized. Assuming that the stage of adjudication of show cause notice is yet to come, this Court has no intent to go into the issue of classification at all as it would be for the proper officer to workout the same on following the due procedure and on requisite scrutiny however, noticing that the order of detention and seizure by the DRI itself is unsustainable, we allow the petition by quashing and setting aside the seizure and the panchnama.
Petition allowed.
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2021 (5) TMI 326 - MADRAS HIGH COURT
Release of imported goods - used ventilators - non-hazardous goods - HELD THAT:- The petitioner has relied upon a certificate of the chartered engineer in support of its contention that the used ventilators imported constitute non-hazardous goods. In my view, the appropriate authority to confirm the nature of goods would not be the chartered engineer. Thus, in the course of adjudication, the assessing authority shall make a reference to the competent authority either under the Hazardous Substance Management Division/R1 or any other authority competent for this purpose, to determine whether the used ventilators imported by the petitioner would constitute hazardous material, bearing in mind the definition of the term in the Hazardous Waste Management Rules 2016.
Petition dismissed as withdrawn.
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2021 (5) TMI 282 - CESTAT CHANDIGARH
Maintainability of appeal - Smuggling - Gold - baggage goods - Absolute Confiscation - HELD THAT:- It is a fact on record that the gold in question has been seized when the appellant was travelling in domestic flight from Jammu to Srinagar, in that circumstances, the goods in question cannot be said as imported goods. The revenue is heavily relying on Section 123 of the Customs Act say that when any goods on the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the appellant. Admittedly, if revenue is having a reasonable belief that they are smuggled goods, then the burden of proof that the goods are not imported lies on the appellant. But firstly, there should be a reasonable belief that the gold in question is smuggled one is to be established by the revenue to invoke Sec. 123 of the Customs Act.In the impugned order as well as adjudication order, nowhere it has been established that there was a reasonable belief that the goods in question are smuggled goods which is the bone contention to invoke Section 123 of the Customs Act, 1962.
Revenue has failed to discharge that they are initial burden that on reasonable belief that the goods in question are smuggled goods. Further, it has been found that only market enquiry was done for valuation and purity of the goods in question. No fact has been brought on record by way of testing of the goods in question that the marking made on the goods are genuine or not. As no such investigation has been done to establish that the goods in question are of foreign origin, therefore, the provision of Section 123 of the Customs Act is not applicable to the facts of this case - Further, the appellant has never admitted that the goods are of foreign origin or has been smuggled.
The proceedings against the appellant are bad in law - Appeal allowed - decided in favor of appellant.
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2021 (5) TMI 267 - DELHI HIGH COURT
Exemption from imposition of IGST - oxygen concentrators imported by the State Government - N/N. 30/2021-Customs, dated 01.05.2021 - HELD THAT:- The petitioner states that he will deposit the requisite amount with the Registry of this Court within the next three days - In the meanwhile, in case, the oxygen concentrator, sought to be imported by the petitioner, reaches the concerned customs barrier, the same will be released, subject to the petitioner depositing, with this Court, an amount equivalent to IGST presently payable by him, in accordance with the impugned notification, within three days from today.
Since the requisite IGST will be deposited by the petitioner, with this Court, the respondent will not levy a charge qua the same on the importing agency, i.e., FedEx Corporation.
List the matter on 18.05.2021.
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2021 (5) TMI 260 - MADRAS HIGH COURT
Refund of the redemption fine and penalty remitted - Department application for revision is pending but no stay / interim protection sought against the order of Commissioner (appeals) - HELD THAT:- Admittedly, no interim protection has been obtained by the respondents - Though the provisions of Section 129DD do not expressly provide for seeking or grant of interim protection, such provision for interim protection is implicit in any provision for appeal or revision and this is a position settled by several decisions including a decision of this Court in the context of the Income Tax Act 1961, in the case of Paulsons Litho Works vs. Income-Tax Officer [1993 (11) TMI 50 - MADRAS HIGH COURT]. Thus, in cases where the Customs Department takes re-course to revision before the Government, it is incumbent upon them to also seek interim protection for retention of the assets seized by them at the original instance, if they so desire. Failure to do so would entitle the assessee in the respective cases to seek return/refund of the assets seized.
Petition disposed off.
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2021 (5) TMI 224 - DELHI HIGH COURT
Exemption from IGST - Oxygen concentrators imported by the State Government - N/N. 4/2021 - Customs dated 03.05.2021 - HELD THAT:- notification has exempted imposition of IGST on oxygen concentrators imported by the State Government, or via any entity, relief agency or statutory body, authorised by the State Government. This exemption, according to the learned ASG, is, presently, available till 30.06.2021.
Since the respondent has gone this far, it could move further, and extend the exemption, to even individuals, to enable them to obtain imported oxygen concentrators by way of a gift, albeit, without having to pay IGST.
List the matter on 06.05.2021.
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2021 (5) TMI 222 - MADRAS HIGH COURT
EPCG Scheme - Amendment in Shipping Bills - mention of the EPCG licence number on the shipping bill, mandatory or not - right to seek to explain, by virtue of other contemporaneous and supporting evidences, the factum of export - HELD THAT:- No doubt requires the mention of both the name of the supporting manufacturer as well as the EPCG authorization number on the shipping bill and in this case both are absent. However, the requirements, though mandatory, are capable of being satisfied constructively as well and non-mention is not fatal to the claim of concessional rate of duty. The provisions of Section 149 of the Customs Act provides a forum to the petitioner to establish this by way of contemporaneous records. Thus, an opportunity must be extended to the petitioner to prove the factum of export through Glovis by way of supporting materials. The burden is, no doubt, heavy and it is for the petitioner to produce material before the authorities to discharge such burden. However such opportunity should be read into the provisions of para 5.7.1 to ensure that genuine and bonafide cases of supporting manufacturers are not denied the benefit of concessional duty.
The impugned order is a non-speaking order that has not adverted to the justification put forth by the petitioner and is hence set aside - Petition allowed.
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2021 (5) TMI 221 - MADRAS HIGH COURT
Principles of natural justice - seeking Mandamus directing the respondents to pass a speaking order in terms of Section 17 (5) of the Customs Act, 1962 in respect of the Bill of Entry within the time frame as fixed by this Court - HELD THAT:- Respondents would not object to the grant of Mandamus and would assure the Court that a speaking order as prayed for will be passed within a period of six (6) weks from today.
As the mandamus sought for stands achieved and nothing further survives in this writ petition, the same is disposed as aforesaid.
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2021 (5) TMI 220 - MADRAS HIGH COURT
Recovery during pendency of litigation - pre-deposit was made - Circular No.1053/2/2017-CX dated 10.03.2017 - Absolute Confiscation - imported branded Watches - HELD THAT:- The Central Board of Excise and Customs has specifically addressed the question of recovery during pendency of litigation in the said circular and has held that Once the amount is paid, no coercive action shall be taken for recovery of the balance amount during the pendency of the appeal proceedings before these authorities.
In the light of the categoric statement of the Board to the effect that no coercive action shall be taken for recovery of any balance of disputed dues, once the pre-deposit is made, the present communication has no legs to stand - petition disposed off.
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