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Customs - Case Laws
Showing 41 to 49 of 49 Records
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2021 (5) TMI 209 - CESTAT CHENNAI
Service of notice - change of address which was notified too - notice sent to an old address - delay in filing appeal or not - Classification of imported goods - HELD THAT:- The Note given by the Administrative Officer of the Custom House, Chennai also shows that there were instructions given for verification of the new address of the appellant. There is nothing to disbelieve these documents. After intimating the change of address in July 2012, the Department has issued the Order-in-Original in February 2013 to the old address of the appellant.
As per Section 128 as well as Section 153 of the Customs Act, 1962, any decision/order has to be communicated/served upon the person to whom it is addressed. In the instant case, there is no actual ‘service’ or ‘communication’ of the decision/order upon the appellant - Therefore, the date on which the appellant has come to know about the Order-in-Original has to be considered for computing the period of limitation. When computed from such date, the appeal is filed within the time of sixty days. Thus, there is no delay in filing the appeal.
The rejection of the appeal on the ground of time-bar cannot sustain - matter is remanded to the Commissioner (Appeals), who shall decide the case on merits - Appeal allowed by way of remand.
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2021 (5) TMI 160 - MADRAS HIGH COURT
Confiscation - Gold - Seeking interim protection - HELD THAT:- This writ petition is closed. Status quo granted by this Court on 09.03.2021 will continue for a period of two (2) weeks from today.
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2021 (5) TMI 132 - CESTAT AHMEDABAD
Maintainability of appeal - time limitation - appeals were filed before the Commissioner (Appeals) beyond the period of 90 days, which is an admitted fact - HELD THAT:- The appeal before the Commissioner (Appeals) was filed beyond 90 days. As per the provisions of Section 128, learned Commissioner (Appeals) has power to condone the delay of 30 days after the normal period of 60 days. Since the appeal was filed beyond 90 days, learned Commissioner (Appeals) has no power under the statute to condone the delay over and above 90 days, accordingly the appeal was dismissed. This issue has been considered by various Courts including the Hon’ble Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] and it was consistently held that the statutory time period of 90 days i.e. 60days plus 30 days, is provided and beyond 90 days no power is vested with Commissioner (Appeals) to condone the delay.
The appellate authority has no power to condone the delay beyond the said 30 days - since the Commissioner (Appeals) has no power to condone the delay of beyond 90days, the impugned order does not bear any infirmity - appeal dismissed.
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2021 (5) TMI 129 - MADRAS HIGH COURT
Refund of SAD - Process amounting to manufacture or not - sterilization, re-packing, re-labelling etc. - refund of SAD under Notification No.102/2007-Cus dated 14.09.2007 when the importer has not fulfilled the conditions 2(d) and 2(3)(ii) stipulated in the said Notification - CBEC Circular No.34/2010- Customs, dated 15.09.2010 - HELD THAT:- The effect of Circular No.34/2010 has not been considered by the Tribunal. The learned Senior Standing Counsel for the Revenue lays emphasis on the Circular, which clarifies the position that there is no intention to omit / delete the words “as such” from the Notification, which continues to remain as condition though implied. The Circular is not under challenge in any of the proceedings, nor its applicability has been questioned by the assessee.
The Adjudicating Authority, namely, Commissioner of Customs has taken note of Circular No.34/2010. However, the Tribunal has not considered the correctness of the order passed by the Adjudicating Authority qua the applicability of the Circular, which explains the intention of the Notification. The Tribunal found fault with the Adjudicating Authority in not granting relief in respect of the imports after 11.07.2014 and while granting the relief to the assessees proceeded on the basis that the earlier Notification No.56/1998 required the imported goods to be sold “as such” and it had a more stringent condition and there is no such requirement in the Notification No.102/2007 - this finding prima facie appears to be not sustainable as the issue whether the Notification No. 102/2007 was in supersession of Notification No.56/1998 was required to be considered and decided.
From the reply given by the assessees to the show cause notice, dated 01.10.2015, it appears that the assessees did not raise the plea that the Notification No.102/2007 was in supersession of the earlier Notification nor there was any argument made by the assessees with regard to the effect of the Circular No.34/2010-Customs, dated 15.09.2010. Thus the matters requires to be re-examined, for which purpose, we are inclined to remand the matter back to the Commissioner of Customs to reconsider the entire issue afresh.
Appeal allowed by way of remand.
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2021 (5) TMI 128 - BOMBAY HIGH COURT
Bail application - Smuggling - Gold - value of gold is more than one Crore rupees - non-bailable offence or not - HELD THAT:- Taking into consideration the fact that, Mr. Penkar and Mr. Zamane have been enlarged on bail by the Learned Magistrate, and upon taking into consideration the value of the gold which was seized on 7th December 2019 the applicant, in the facts of the case, also deserves to be enlarged on bail upon imposing certain conditions.
Application allowed.
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2021 (5) TMI 123 - MADRAS HIGH COURT
First time violation of import condition - relaxation from the requirement to produce Phytosanitary Certificate - Auction of imported goods which were not cleared despite two notices served - HELD THAT:- It is true that the importer cannot demand relaxation of the requirement of production Phytosanitary Certificate as a matter of right. It is equally true that in matters such as this, the Court should be extremely cautious as there are environmental and ecological implications. It is equally true that the petitioner was found to have committed violation of the requirements of Plant Quarantine Regulation of Import in India Order, 2003 on one occasion earlier. It is true that the goods is question have been imported to India without having been fumigated by Methyl bromide at the country of export. The petitioner had imported as many as four consignments at one go.
The very same exercise can be undertaken in respect of the remaining consignments also. This Court can never mandate the authority to be unmindful of the consequences. On the other hand, this Court is only calling upon the authorities to do the very same exercise that was undertaken in respect of the consignment that is subject matter of this appeal. The remaining three consignments can also be similarly fumigated and a similar inspection also undertaken. If thereafter, the authorities are satisfied that the clearance of the said consignments will not be of any threat to Indian ecology and environment, the importer can be allowed to take the goods after paying the applicable duties.
The petitioner knows that if tomorrow he imports another consignment without Phytosanitary Certificate, then his fate is doomed because such a consignment can never ever be cleared. That is all the more so, because of the order passed in these writ petitions - That apart, as rightly pointed out by the learned counsel for the petitioner, it is not as if a second or third violation cannot be condoned at all.
Petition disposed off.
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2021 (5) TMI 90 - DELHI HIGH COURT
Release of delivery order and original bill of lading of re-import shipment to enable the release of the subject consignment in favour of the plaintiff subject to payment by the plaintiff within 3 days from the date of the order - ex-parte order - HELD THAT:- It is not in dispute that on the date when arguments on interim application were heard by the Ld. Trial Court, the reply filed by the contesting defendant nos. 5 and 6, was already on record but surprisingly in the impugned order not even one single sentence has been mentioned about the stand taken by the present appellants before the Ld. Trial Court and the impugned order dated 19.11.2020 was passed only on the basis of submissions made on behalf of the plaintiff without considering any argument advanced on behalf of the present appellants, who were vehemently opposing defending the said interim application - While going through the Bill of Lading, it has also come to our notice that Clause 25 provides for the territorial jurisdiction of only the Courts at Hamburg, Germany. The contract of shipping is to be governed by German law. It is worthwhile to mention that this Bill of Lading is available on the Ld. Trial Court’s file and the same is relied upon by both the parties. The detailed written submissions filed by defendant nos. 5 and 6 running into 18 pages, were also on record of the Ld. Trial Court, in which specific reference has been made to the right of lien of the contesting defendants in respect of the goods and liability of the plaintiff (respondent no.1 herein) to make payments of all invoices raised in respect of goods in question.
The Ld. Trial Court has failed to appreciate even one single argument of defendant nos. 5 and 6 while passing the impugned order. The said order, at its best, can be termed as an ex-parte order solely based upon the submissions of the plaintiff; passed without caring for the reply or the written submissions filed by defendant nos. 5 and 6, who have no option but to challenge the said order before this court by filing this appeal.
Since, no findings have been given by the Ld. Trial Court on the stand of the contesting defendants nothing can be arrived at and the only option left is to remand the matter back to the Ld. Trial Court with a request to consider all the documents and pleadings qua the interim application as well as the written submissions filed by both the parties, and thereafter, decide the interim application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 afresh by passing a detailed, reasoned order - The trial court is at liberty to set-aside, rescind, modify or reconfirm the impugned order dated 19.11.2020 without getting influenced by anything stated in the order hereinabove as we have not expressed any opinion on the merits of the case.
Appeal allowed by way of remand..
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2021 (5) TMI 89 - DELHI HIGH COURT
Grant of Anticipatory Bail - search procedure - allegation of gross under-valuation of the white paper roll imported - Allegation of Hawala Transactions as well - case of Revenue is that petitioner is a habitual offender - HELD THAT:- All the documents are in the custody of the Customs. When specifically asked as to why Customs Authorities require the custody of the petitioner, no specific answer is forthcoming. As stated earlier, all the documents are in custody of the Customs Department. This particular case involves violation of Section 132 and 135 of the Customs Act, 1962. The allegation that the petitioner is involved in transfer of money through non-banking/hawala channels is a subject matter of investigation by another authority and as and when and if and when investigation in this regard is initiated by other authorities to prove the involvement of the petitioner in the transfer of money through non-banking/hawala channels they can arrest the petitioner if a case is registered against him. Since this issue is not germane to the facts of the present petition, this Court is not inclined to go into this issue. The petitioner has been granted protection by this Court on 05.02.2021. The petitioner stated that he is prepared to join the investigation.
Section 41A of the Cr.P.C provides that where the arrest of a person is not required under the provisions of Section 41(1), the Police Officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. If the petitioner is required for investigation then an appropriate notice under Section 41A can be given to him directing to appear/join the investigation.
Bail granted subject to conditions imposed - application allowed.
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2021 (5) TMI 45 - MADRAS HIGH COURT
Reassessment of the Bill of Entry - dues are within the Operational debt under IBC or not - It is the case of the petitioner that the amendment to Serial No. 55 to Notification No. 12/2012-Customs dated 17.3.2012vide Notification No. 46/2015- Customs dated 17.9.2015 which increased the rate of duty from 7.5% to 12.5% cannot be said to have come into force on the date of assessment on 17.3.2012 as per the Section 25 of the Customs Act, 1962 as it stood on the date - Alternative remedy of appeal - HELD THAT:- The petitioner has an alternate remedy to file an appeal against the assessment before an Appellate Commissioner under Section 128 of the Customs Act, 1962 against the reassessment in the impugned Bill of Entry - There are no point in relegating the petitioner to work out the remedy before the Commissioner of Customs (Appeals) at this distant point of time straight away without examining the case on merits. The petitioner has also persuaded this court that a final decision may be given on merits as well.
Whether the “customs duty” payable under the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 is “an operational debt” of the petitioner within the meaning of Section 5 (21) of the IBC Code, 2016 and whether the respondent Customs Department is an “operational creditor” within the meaning of Section 5 (20) of the IBC Code, 2016? - HELD THAT:- It should be remembered that Insolvency and Bankruptcy Code 2016 was enacted with a view to provide a speedy mechanism for resolving bankruptcy and insolvency of such person. It is being implemented in a phased manner. The provisions of the Companies Act, 1956 which contained provisions for winding up has been regrafted into the IBC, 206 with modification - Under the scheme of the IBC, 2016, any “operational creditor “ or a “financial creditor” to whom a corporate debtor owes any amount above Rupees One Lakh and above is entitled to file an application for corporate insolvency resolution proceeding against such debtor under Section 9(2) of the IBC, 2016 read with Rule 6 in Form 5 before the NCLT with a fee of ₹ 2,000/- accompanied with documents and records as are required under Section 9(3) and under Regulation 7(2) - If Corporate Resolution Plan filed by Corporate Applicant is approved by the jurisdictional Company Law Board, the creditors are bound by it.
“Operational debt” is incurred by a “corporate debtor” by failing to meet his liability to pay or clear the “Operational debt” as defined in Section 5(21) of the IBC, 2016. Thus, “tax” and duties levied and collected under law can never be treated as “Operational debt” as defined in Section 5(21) of IBC, 2016 - As an importer, such a person is liable to pay customs duty under Section 12 of the Customs Act, 1962 at the rates specified under the Customs Tariff Act, 1975, or any other law for the time being in force.
The entire tax administration of the country is now in a pell-mell. All the tax authorities will have to make a beeline before the National Company Law Tribunal every time to recover tax dues if under any circumstances proceedings are initiated against corporate debtor under the IBC, 2016. This was not the intention when the Act was enacted - Insolvency and Bankruptcy Code (Amendment) Bill, 2019 has changed the Act. This is evident from a reading of the “Statement of Objects and Reasons” of the Insolvency and Bankruptcy Code (Amendment) Bill, 2019.
Though the definition of “Operational Debt” in Section 5(21) of the IBC, 2016 is not intended to include “crown debt” such as taxes and duties payable to the Government and is distinct from the “claim” and “debt” as defined in Section 3 (6) and 3(11) of the IBC,2016, as mentioned above in the beginning of the discussion on the second part of this order, this Court is bound by the interpretation placed in the above decision of the Hon’ble Supreme Court in Ghanashym Mishra and Sons Vs. Edelweiss Asset Construction, [2021 (4) TMI 613 - SUPREME COURT] and the reasons given therein and in the light of the amendment to the IBC, 2016 in 2019 and in the light of the clarification of the Finance Minister when the 2019 bill was put to discussion in the parliament - This Court therefore partly accepts the contention of the petitioner in so far as issue relating to extinguishment of the rights of the respondent customs department to claim the customs duty in the light of the decision of the Hon’ble Supreme Court in Ghanashym Mishra and Sons Vs. Edelweiss Asset Construction referred.
The case is therefore remitted back the respondent to await clarification to be obtained by the Petitioner from the National Company Law Board as to whether the Corporate Resolution Plan filed by the Corporate Applicant included the “customs duty” to be paid by the Petitioner on the import under the subject bill of entry - Petition allowed by way of remand.
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