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Customs - Case Laws
Showing 1 to 20 of 86 Records
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2021 (7) TMI 1432
Seeking withdrawal of Advance Ruling application - HELD THAT:- In exercise of the power vested, vide regulations 20 of the Custom Authority for Advance Ruling Regulations, 2021, leave granted for withdrawal of the said applications.
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2021 (7) TMI 1386
Export of iron ore fines with Fe content claimed to be less than 62% - benefit of N/N. 62/2007-CUS dated 03.05.2007 - HELD THAT:- There are no reason to interfere with the order of the Customs, Excise and Service Tax Appellate Tribunal dated 22 January 2020 in Customs Appeal No. 525 of 2020.
The appeal is dismissed.
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2021 (7) TMI 1376
Maintainability of appeal - HELD THAT:- It is opined that giving one last opportunity to the Appellant but to appear in the matter and therefore the matter is adjourned to 24/11/2021 as last opportunity.
Registry to issue notice.
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2021 (7) TMI 1371
Illegal detention of imported consignments - prime contention of the petitioner is that, certain containers imported are illegally detained by the respondents, and in spite of their request, the respondents have not taken any steps to release the containers as specified - HELD THAT:- This Court is of the considered opinion that imports and exports are to be done by following the procedures contemplated and by complying with the mandatory requirements. The relief as such sought for in the present writ petition to direct the respondents to forthwith release and return the containers, itself is absurd. Such a relief requires adjudication in view of the fact that there are statutory requirements and compliance of the terms and conditions with the Customs Cargo Service Provider and other aspects of the matter. Without adjudicating all those factors, the High Court cannot issue a writ granting the relief in the writ petition filed.
When disputed facts are raised between the parties, the same cannot be entertained and the High Court cannot conduct a roving enquiry with reference to the dispute, which is to be resolved with reference to the documents and evidence produced before the competent authorities - Petition disposed off.
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2021 (7) TMI 1334
Classification of imported goods - preparation/product of Betel nut (Areca Nut) commonly known as “Supari” (Boiled Supari) - the goods as described which does not contain lime or katha (catechu) or tobacco but may not contain any other ingredients, such as food starch, cardamom, copra, mulethi, menthol (flavours), perfumes etc. - to be classified under CTH 2106 90 30 as food preparation or not - HELD THAT:- The basic raw material for Boiled Supari is raw betel nut, which is classifiable under Chapter 8, more specifically sub-heading 0802 80. I also note that Chapter 8 covers only edible nuts; inedible nuts and fruits being excluded by virtue of Chapter Note 1; and that betel nut/supari are masticatory. However, Boiled Supari have been subjected to certain processes resulting in the question being posed whether the said processes are substantive enough to consider Boiled Supari as “preparation of betel nut” that would make them classifiable under Chapter 21 by virtue of Supplementary Note 2 of Chapter 21. Alternatively, whether the processes carried out on the same for cleaning, preserving and boiling are too minor to fall short of rendering them as preparations of betel nuts. Further, it would be inadvisable and inappropriate to approach the issue of classification of the said goods solely with the prism of the positive nature of Supplementary Note 2 to Chapter 21, as it seems to have been done in the order of the erstwhile AAR.
The processes involved in making Boiled Supari are clearly covered by the Chapter Note 3 to Chapter 8. It is also found that in the instant case, betel nuts after being boiled are dried; and this fact per se would not exclude the end-products from the scope of “dried nuts”. Therefore, it is concluded that the processes to which raw betel nuts have been subjected to obtain Boiled Supari is squarely in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as “preparations” of betel nut, which is sine qua non for a goods to be classifiable under Chapter 21.
It is thus concluded that during the personal hearing, upon being explained the scope of the aforesaid two competing headings, the applicant accepted that given the processes involved in obtaining Boiled Supari, the same is more appropriately classifiable under sub-heading 0802 80 10.
Boiled (whole) Supari is not classifiable under sub-heading 2106 90 30 as food preparation; instead it is more appropriately classifiable under sub-heading 0802 80 10.
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2021 (7) TMI 1318
Application for early hearing of the appeals - HELD THAT:- In view of the reasons as mentioned in the Miscellaneous Applications, the prayer for early hearing of the appeals is allowed.
The appeals to be listed in the next sitting of the Division Bench.
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2021 (7) TMI 1310
Non-processing of application filed by the petitioners - Focus Product Scheme (FPS) - grievance of the petitioner is that 47 applications filed by it for issuance of scrip under the Focus Product Scheme have not been processed by the respondents - HELD THAT:- The Additional Director General of Foreign Trade (respondent no.3) may be directed to process the applications and take a final decision on such applications in accordance with law and upon granting an opportunity of hearing to the authorized officer of the petitioner, if not excluded by any express provision of law or by necessary implication, within one month from date of receipt of a copy of this order.
Petition disposed off.
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2021 (7) TMI 1305
Classification of imported goods - HDMI digital media receiver paired with Alexa voice remote - Alexa Voice Remote Lite (1st Gen) and (2nd Gen) - subject devices proposed to be imported by the applicant are classifiable under Custom Tariff Item 8517 62 90? - benefit of Serial Number 20 of Notification No. 57/2017-Customs, dated 30-6-2017, as amended by Notification No. 3/2021-Customs, dated 1-2-2021 - HELD THAT:- Since the devices are proposed to be imported in the form of set, wherein prima facie, the two main constituents merit classification under two different sub-headings, the classification of the kit (comprising HDMI digital media receiver and Alexa Voice Remote) would be as per Rule 3(b) of GI Rules. Since the essential characteristics of kit is derived from the HDMI digital media receiver, which get attached to the HDMI port of the television, the classification of the kit would be as per the characteristics of this constituent.
HDMI Digital Media Receiver [Model Number S3L46N] is proposed to be classified by the applicant under sub-heading 8517 62 90 as a device that transmits/receives RF signals and converts it into a format readable by the system and transmits the same which is displayed on the screen - In support of classification under sub-heading 8528 71 00, it has been submitted that Fire TV Stick cannot support any other display device and can only be used for television. The applicant has accepted the fact that the device can work only with television.
Whether Fire TV Stick/HDMI Digital Media Receiver is essentially and substantially a reception apparatus for television, akin to a set top box; or is a device designed for and capable of functions beyond or different from reception of broadcast signals and conversion of the same into a signal suitable for display? - HELD THAT:- It is a reception apparatus with an inbuilt PCB and software containing many applications which run on Over the Internet (OTT) platform and media is streamed to television sets for display. These devices do not receive signals from satellite/cable/terrestrial to convert them in the form suitable for display on the television screen, thus not hit by the exclusions mentioned in the CTH 8528. Therefore, HDMI Digital Media Receiver [Model Number S3L46N] with Alexa Voice Remote Lite (1st Gen) [Model H69A73] as a kit; and HDMI Digital Media Receiver [Model Number S3L46N] with all-new Alexa Voice Remote (Alexa Voice Remote 2nd Gen) [Model No. L5B83H] as a kit are appropriately classifiable under sub-heading 8517 62, and more specifically sub-heading 8517 62 90.
The devices are principally remote controls working on radio frequency, with the difference that the second device i.e. Alexa Voice Remote (2nd Gen) is having one feature in addition to the features available in Alexa Voice Remote (1st Gen) and apart from working on radio frequency this additional feature makes the remote compatible with other devices and control such devices through infra-red frequency. Be that as it may, it is evident that the devices in question are radio (Bluetooth) remote control apparatus, which have specific sub-heading 8526 92 00. Further, with respect to Heading 8526, the HSN inter alia provides the following as general guidelines for inclusion : “Radio apparatus for the remote control of ships, pilotless aircraft, rockets, missiles, toys, model ships or aircraft, etc.” and “Radio apparatus for the detonation of mines, or for the remote control of machines”. Therefore, these two Alexa Voice Remote devices are classifiable under the sub-heading 8526 92 00 of the first schedule of the Customs Tariff Act.
Benefit of Serial No. 20 of Notification No. 57/2017-Customs, dated 30-6-2017 - HELD THAT:- It is seen that the benefit of Serial No. 20 of Notification No. 57/2017-Customs, dated 30-6-2017, as last amended vide Notification No. 3/2021-Customs, dated 1-2-2021, is available to all goods falling under sub-headings 8517 62 90 and 8517 69 90 other than certain goods mentioned under Serial No. 20 of the said notification and such excluded goods include Multiple Input/Multiple Output (MIMO) products etc. Therefore, the same is not admissible to Alexa Voice Remote Lite (1st Gen) and Alexa Voice Remote (2nd Gen), which are classifiable under sub-heading 8526 92 00.
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2021 (7) TMI 1199
Imposition of penalty - section 112(b) of Customs Act - smuggling - diamonds - existence of mens rea or not - reasons to believe - HELD THAT:- Perusal of the said provisions clearly reveals that the penalty under the said provisions can be imposed wherever there is an element of mensrea or conscious knowledge, which is a sine qua non for imposition of penalty. This is evident from a plain reading of Sections 112(b) of Customs Act, 1962 which uses the expressions “which he knows or has reason to believe are liable to confiscation under Section 111”.
The facts of the case in hand do not reveal any such element of mensrea or conscious knowledge qua these appellants. The active role of these Appellant, do not justify imposition of heavy penalty under Section 112(b) of Customs Act 1962 - The DRI investigation has not brought any such evidence except retracted confessional statements to show that Appellants have smuggled rough diamonds into India in the night of 12/13-04-2011.
The quantum of penalty is reduced - appeal allowed in part.
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2021 (7) TMI 1157
Provisional release of imported goods - Return of bank guarantees - Areca nuts - proper officer in terms of Section 45(1) of Customs Act - country of origin certificate - HELD THAT:- Section 45 of the Act provides all goods imported into India and unloaded in customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs unless they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII of the Act. On the other hand, Section 100 deals with seizure of goods on a reasonable belief that the goods are liable to confiscation under the Act.
In the present case the customs authorities had not seized the goods on such reasonable belief that they are liable to confiscation. On the other hand, the goods had been kept in custody in exercise of powers under Section 45 of the Act, pending its clearance - no case of unconditional release of the goods in the factual matrix with reference to sub-section (2) of Section 110 of the Act is made out.
The provisional clearance of the goods is pending consideration for over 2 and ½ years purportedly on the ground of verification of genuineness of the certificate with regard to country of origin. The scheme of the Act does not permit the customs authorities to undertake such an exercise for an indefinite period of time. Hence, the customs authorities cannot be permitted to continue such exercise indefinitely and keep the petitioner bound to the sureties furnished by them - Petition disposed off.
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2021 (7) TMI 1155
Smuggling - Foreign Origin (FO) Gold - recovery of the gold from the secret cavity beneath the driver’s seat of that vehicle - recording of statements u/s 108 of the Customs Act, 1962 - HELD THAT:- The case diary which has been produced in a sealed cover, has been perused. Undisputedly, the investigation is pending and Challan has not been filed so far.
Having regard to the nature of material which has come on record, the release of the applicants during the pendency of the investigation would not be proper as the prosecution is in the process of collecting further evidence against them - application dismissed.
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2021 (7) TMI 1153
Validity of Notifications dated 04.05.2007, 04.05.2007 and 05.09.2006 - issuance of SCN by proper officer - incompetent authority of Jurisdictional Officer or not - HELD THAT:- The proper officer is defined as “in relation to any functions to be performed under the Act, means the Officer of Customs, who is assigned those functions by the Board or the Commissioner of Customs. Thus, the proper officer is defined so as to include the officer of customs, who is assigned those functions by the Board. In the present case, by invoking the powers under Section 4(1) of the Act, the Board conferred powers to the Commissioner of Central Excise, Goa and authorises him to exercise the powers and discharge the duties conferred or imposed on the Commissioner of Customs, Port Imports, Chennai for the purposes of adjudicating the matters relating to show cause notice. Therefore, it is unambiguous that the Board appointed the Commissioner of Central Excise, Goa as a proper officer under Section 4(1) and the said Commissioner of Central Excise, Goa is empowered to exercise powers of the officers of customs under Section 5 and with reference to the definition of proper officer under Section 2(34) of the Act. Therefore, there is no ambiguity in respect of the powers exercised in the present case.
As far as the show cause notices are concerned, the merits are to be adjudicated by the competent authority/the respondent. High Court cannot adjudicate the disputed facts with reference to the documents and evidences to be produced by the respective parties. Thus, the petitioner has to submit their explanations/objections, if any, along with the documents and evidences to the respondents enabling them to consider the same and pass orders by following the procedures as contemplated and by affording opportunity to the writ petitioners. Such an exercise is to be done as expeditiously as possible.
In view of the fact that the jurisdiction point raised by the petitioner fails, this Court has no hesitation in forming an opinion that the petitioners have not established the ground of jurisdiction and thus, the petitioners are bound to respond to the show cause notices and on receipt of any such objections/explanations, the respondents are bound to continue the proceedings, conclude the same as expeditiously as possible - Petition dismissed.
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2021 (7) TMI 1152
Seeking interest on delayed disbursal of refund - circular bearing No.276/186/2015-CX.8A dated 01.06.2015 - HELD THAT:- Admittedly, there is no interim order in the appeal filed by the respondents and therefore, the petitioner is entitled for the interest as ordered by this Court - But, in spite of the orders passed by this Court and in spite of the circular bearing No.276/186/2015-CX.8A dated 01.06.2015, the first respondent had refused to pay interest to the petitioner and had driven the petitioner to come before this Court once again for his entitlement. The earlier order is very clear as to the interest.
The respondents are directed to pay the interest due to the petitioner within a period of four weeks from the date of receipt of a copy of this order - Petition allowed - decided in favor of petitioner.
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2021 (7) TMI 1150
Seeking release and return of detained containers - entitlement of compensation towards the container idling charges - in spite of petitioner's request, the respondents have not taken any steps to release the containers as specified - HELD THAT:- This Court is of the considered opinion that imports and exports are to be done by following the procedures contemplated and by complying with the mandatory requirements. The relief as such sought for in the present writ petition to direct the respondents to forthwith release and return the containers, itself is absurd. Such a relief requires adjudication in view of the fact that there are statutory requirements and compliance of the terms and conditions with the Customs Cargo Service Provider and other aspects of the matter.
Without adjudicating all those factors, the High Court cannot issue a writ granting the relief in the writ petition filed. When disputed facts are raised between the parties, the same cannot be entertained and the High Court cannot conduct a roving enquiry with reference to the dispute, which is to be resolved with reference to the documents and evidence produced before the competent authorities.
The relief as such sought for in the present writ petition cannot be granted and the petitioner is at liberty to approach the competent authority of the respondents or before the competent forum for the purpose of adjudication of disputes and redressal of grievances - Petition disposed off.
W.P.No.33118 of 2018
Seeking to declare the conduct of the respondent detaining the petitioner's containers, as illegal - HELD THAT:- The petitioner has to comply with the statutory requirements, including the payment of charges to be paid as per the terms and conditions of the contract or under the Statute. However, for grant of any such declaration as sought for, elaborate adjudication is required. The High Court cannot entertain any such adjudication which is to be done with reference to the documents and evidence, and therefore, the petitioner is at liberty to approach the competent authorities for adjudication of issues or before the competent forum in the manner known to law - Petition disposed off.
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2021 (7) TMI 1148
Grant of default bail - Smuggling - contraband gold bars - discharge of burden of proof u/s 123 of the Customs Act, 1962 - offence punishable under Section 135(1)(b)(i)(A) and Section 135(1)(b)(i)(C) of the Customs Act, 1962 - HELD THAT:- The petitioners in the instant case have been granted default bail as per the proviso (a) (ii) of Section 167(2), CrPC as the investigating authority could not submit the final complaint within the prescribed period of 60 (sixty) days considering the fact that the offences under Section 135(1)(b)(i)(A) and Section 135(1)(b)(i)(C) of the Customs Act, 1962 are punishable with rigorous imprisonment which may extend upto a period of 7 (seven) years and fine.
As the provisions of Chapter XXXIII (Provisions as to Bail and Bonds) are applicable also in respect of the default bail granted as per the proviso (a)(ii) and (a)(ii) to Section 167(2), CrPC, the Court is empowered to impose the conditions (a), (b) and (c) as per sub-section (3) of Section 437, CrPC and it may also impose such other conditions as it considers necessary in the interests of justice. Section 439(1)(a) of the Code has also empowered the Court to impose any condition which is considered necessary for the purpose.
Though no exception can be taken in respect of the order of the learned jurisdiction Court for release of the petitioners on default bail on furnishing bail of ₹ 1,00,000/- each in today’s context and in view of the purported involvement of the petitioners in an offence involving smuggling of gold bars of huge quantity of substantial value but considering the fact that they have failed to furnish the bail bonds for the said sum since 08.06.2021 till date, this Court in the interests of justice and taking into consideration the right to personal liberty of a person, as ingrained in Article 21 of the Constitution of India, has found it to be a fit case to exercise the discretion available under sub-section (2) of Section 440 of the Code to reduce the amount of bail bond from ₹ 1,00,000/- each to ₹ 50,000/- each.
The two petitioners i.e. the two accused shall be released on bail on furnishing a bail bond of ₹ 50,000/- each with 2 (two) sureties each of the like amount - Petition disposed off.
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2021 (7) TMI 1144
Maintainability of appeal - Form No. CA-1 under Rule 3(1) of the Customs (Appeals) Rules, 1982 read with Section 128 of the Customs Act - Confiscation - Foreign Currency - HELD THAT:- The form prescribed for filing an appeal before the Commissioner (Appeals) is CA-1, though Column No. 4 seeks for providing the date of communication of the order appealed against, the same cannot be controlled the manner in which an appeal is to be preferred. If there are separate dates on which different appellants had received the orders, those different dates can be provided in the column. Further, when right of appeal is a vested right and a creation by the statute, the form prescribed or any column in the form so prescribed cannot control the right to file an appeal.
Appeal to the Commissioner of Appeals cannot be determined either by the rules governing the appeal to the Customs, Excise & Service Tax Appellate Tribunal (CESTAT).
The respondent to take up the appeal already filed by the appellants, accept and treat the same as duly filed, number the same and consider it in accordance with law - Appeal allowed.
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2021 (7) TMI 1126
Refund claim of Additional Customs Duty (ACD) - rejection on the ground that as per correlation sheet, the description in Bill-of-Entry and invoices did not tally and the last digit in the Bill-of-Entry No. 9252028 was entered as “3” instead of “8” - inadvertent mistake - rejection without ascertaining/verifying the claim of the appellant submitted by the letter containing revised correlation sheet duly certified by the Chartered Accountant - HELD THAT:- The mistake, as canvassed by the Learned Advocate for the appellant, appears to have been explained, but however, the same requires to be verified with the support of documentary evidences like the certificate or self-supporting letter like the one dated 07.12.2019 filed by the appellant.
Since this requires factual verification based on the documents, and also taking into consideration the common request for remand, impugned order is set aside and matter remanded back to the file of the Adjudicating Authority who may call for all such documents that may be required and pass an appropriate speaking order in accordance with law - appeal allowed by way of remand.
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2021 (7) TMI 1114
Classification of imported goods - Supari - reliability on the opinion of the FSSAI notified laboratory - reliability and completeness on the test report given by the CRCL (Central Revenues Control Laboratory), Chennai - validity of speaking orders - Whether the opinion of the FSSAI notified laboratory can be relied upon for classification of the imported goods? - HELD THAT:- The report very clearly stated in its first page that the physical appearance of the betel nuts are “Brown Colour Whole Nuts” and in the page No. 3, the opinion has been given by the Lab stating that the sample description confirms to BETEL NUTS (BOILED SUPARI) as stated in the test memo. The FSSAI notified lab report can be considered only for the purpose of “fitness for human consumption” and it cannot be considered for the classification of the goods under the Customs Tariff Act. Therefore, the reliance by the appellants is not correct and totally misconceived.
Whether the test report given by the CRCL (Central Revenues Control Laboratory), Chennai is complete and reliable? - HELD THAT:- The supari which is the a processed betel nut cut into pieces at three stages, free of finer particles and roasted could only be considered as a “product” which will fall under CTH 21. Whereas, the appellants are clearly attempting to mislead the department that whole betel nut has to be treated as API Supari. They have not provided any kind of evidence to prove that what is known as API supari in the market parlance. It is also on record that M/s. Nadaraj International company Ltd., has issued identical type of certificate in the case of Commercial Invoice 03/2020 related to M/s. S.T. Enterprises.
Chapter 8 clearly covers “edible fruits” and Chapter Notes 3 states dried nuts of this chapter may be partially rehydrated or treated for the following purposes, i.e. moderate heat treatment for additional preservation or stabilization and by addition of vegetable oil to improve or maintain their appearance. The “GENERAL” notes of Chapter 8 states that Fruits and nuts of the Chapter may be whole, sliced, chopped, shredded, stoned, pulped, grated, peeled or shelled - As per Chapter Notes 3 the character of the betel nut is retained. The appellants have not provided any evidence to show that the character of the betel nut is not retained by the boiling (re-hydrating) on the drying process.
The speaking Order No. 2/2020, dated 9-12-2020 in the case of M/s. S.T. Enterprises, Overseas, No. 308, Kriti Deep Building, DDA Real Business Center, Nangal Raya, New Delhi-110046 (B/E. No. 1017900, dated 18-11-2020) and speaking Order No. 3/2020, dated 9-12-2020 in the case of M/s. Ayush Business Overseas, 3rd Floor, House No. 1/20, Sindhora Kalan City, New Delhi-110052 (B/E No. 1017898, dated 18-11-2020) passed by the respondent i.e. Authorised Officer, J. Matadee Free Trade Warehousing Zone (FTZ), Mannur Village, Sriperumpudur, Kanchipuram Dist.-600210 classifying the impugned goods “betel nuts - whole” under CTH 0802 80 10, is upheld.
Appeal disposed off.
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2021 (7) TMI 1113
Seeking return of bank guarantees furnished - import of Areca Nuts - no SCN issued within six months from the date of seizure of the goods - HELD THAT:- The goods had been seized in exercise of powers under Sub-section (1) of Section 110 of the Act. On the other hand, it appears that they had been kept in the custody of the proper officer, pending verification of the country of origin certificate.
It appears that there was no seizure of goods, as envisaged under Section 110(1) of the Act. On the other hand, the instant case relates to clearance of imported goods as governed by Chapter VII of the Act. Sections 45, 48 and 49 deal with the manner in which the imported goods ought to be kept pending their clearance upon submission of bills of entry under Section 46 thereof.
In the present case the customs authorities had not seized the goods on such reasonable belief that they are liable to confiscation. On the other hand, the goods had been kept in custody in exercise of powers under Section 45 of the Act, pending its clearance. Therefore, no case of unconditional release of the goods in the factual matrix with reference to sub-section (2) of Section 110 of the Act is made out - with concern that the provisional clearance of the goods is pending consideration for over 2 and ½ years purportedly on the ground of verification of genuineness of the certificate with regard to country of origin. The scheme of the Act does not permit the customs authorities to undertake such an exercise for an indefinite period of time. Hence, the customs authorities cannot be permitted to continue such exercise indefinitely and keep the petitioner bound to the sureties furnished by them.
Petition disposed off.
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2021 (7) TMI 1108
Finalization of assessment order - grievance of respondent/writ petitioner has been that the appellants are not giving effect to the decision of the Appellate Tribunal in M/S. GLOBAL INDUSTRIES VERSUS THE COMMISSIONER OF CUSTOMS COCHIN [2011 (2) TMI 742 - CESTAT BANGALORE] - HELD THAT:- The appellants inform this Court that the appeal filed against Ext.P9 order is pending before the Supreme Court. It is not in dispute that the appeal is pending and the appellants do not have an order of stay in their favour against the implementation of the decision of the CESTAT.
The undisputed fact situation is that the Supreme Court has not stayed the operation or implementation of decision of the CESTAT. The appellant is under obligation to implement the order of the CESTAT and ought to have complied with the writ of mandamus issued by this Court - Appeal dismissed.
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