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Customs - Case Laws
Showing 41 to 60 of 84 Records
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2023 (1) TMI 814
Levy of penalty u/s 112(a)(i) of CA - Violation of import conditions - Import through specified agencies - High seas sale - import of Urea purchased by the appellants on High Seas Sale from State Trading Enterprises (STEs) - whether the import is in accordance with the ITC (HS) Policy?
HELD THAT:- It emerges that the purchase from the foreign suppliers was made by STE viz. MMTC and Indian Potash Ltd and the goods were shipped by the foreign suppliers to MMTC/ Indian Potash Ltd and the Appellants have purchased the said goods on High Seas from the MMTC/Indian Potash Ltd. It can be seen that Heading No.3102 1000 of the ITC (HS) Policy 2009-2015, does not stipulate that Urea was allowed to be imported only by State Trading Enterprises; the said Heading allows import of Urea through STC, MMTC and Indian Potash Limited. Clearly, the word used in the said Heading 3102 1000 is “through” and not “by” STC, MMTC and Indian Potash - thus, when the import is allowed “through” STC, MMTC and Indian Potash, it means that so long as the purchase of the Urea from the foreign supplier is effected by STC, MMTC or Indian Potash and payment to foreign supplier is made by STC, MMTC or Indian Potash, who in turn sell the same to a party in India whether on High Seas or otherwise, the import is clearly through STC, MMTC or Indian Potash.
Since the import was made through MMTC/Indian Potash Ltd and was in accordance with Heading No.3102 1000 of the ITC (HS) Policy and the letters of the Government of India, Ministry of Chemical and Fertilizers, the import was in accordance with law and therefore the goods cannot be held to be liable to confiscation under Section 111(d) of the Customs Act 1962. Consequently, no penalty is imposable on the Appellants under Section 112 of the said Act.
The authorities below have mis-read the Conditions Nos. (v) and (xiv) of the Permission letter dated 15th May 2013 of the Government of India, Ministry of Chemical and Fertilizers and in inferring therefrom that High Seas purchase by Appellant from STE was not permitted as per the said conditions. The said conditions are not related to the Appellant’s purchase from STE but are related to the purchases by the end users/ distributors from the Appellant. The meaning of the word “through” used in Heading No.3102 1000 of the ITC (HS) Policy, itself show that when the ITC Policy talks of import through STE, it means import using the help of STE and not import by STE.
Further, as per the regular practice accepted by customs for over several decades in case of imports which are canalized through STEs, the STEs place the order on the foreign supplier and thereafter effect High Seas sale of the same to the Indian Buyers.
The judgment in the case of MARICO INDUSTRIES LTD. VERSUS COMMISSIONER OF CUSTOMS (EP), MUMBAI [2006 (11) TMI 420 - CESTAT, MUMBAI] relied upon by the Commissioner (Appeals) has no application to the facts of the present case. In that case the importer had directly established the Letter of Credit on the foreign supplier as result of which the import could not even be said to be through STE. Further, the import in that case was against Advance Release Order which is issued for sourcing inputs indigenously instead of importing against Advance License. The provisions relating to procurement of inputs against Advance Release Order which applied in that case did not provide for import through STE.
The impugned Orders vide which penalty under section 112(a)(i) of the Act on the appellants was upheld cannot be sustained - appeal allowed.
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2023 (1) TMI 751
Scope of the Advance Ruling - Whether the matter (case) was pending - Rejection of representations made by DRI for treating the CAAR’s order dated 05.10.2021 as void ab initio - fraud and misrepresentation of facts - Section 28K(1) of the Customs Act - HELD THAT:- The proviso to Sub-Section (2) of 28-I of the Customs Act proscribes the CAAR from allowing any application filed for advance ruling, where question raised in the application is pending in the applicant’s case before “any officer of customs, the Appellate Tribunal or any Court” or if the said question has already been decided by the Appellate Tribunal or any Court. In the present case, DRI had not issued any pre-consultation notice or show cause notice which would indicate that the question regarding classification of any goods was pending before DRI. Thus, even if it is accepted that an officer of DRI is an officer of Customs, it cannot be accepted that the question raised by the respondent in its application under Section 28H of the Customs Act was pending ‘in the applicant’s case’ before DRI. In order for a question to be considered as pending before any officer of customs, it would be necessary for the question to be raised in any notice enabling the assessee to respond to the said issue.
Merely because an officer of customs contemplates that a question may arise, does not mean that the question is pending consideration. For a question to be stated to be pending, the concerned officer must formally set forth the same for the assessee to contest the same. Any preliminary exercise done by an officer of customs, to consider whether any question for consideration arises, would not preclude the CAAR from giving its advance ruling on that question. The possibility that a question would arise for consideration of a customs officer, appellate tribunal or court, is not a ground contemplated under Clause (a) of the proviso to Section 28-I(2) of the Customs Act. Clearly, a distinction must be made between that question pending consideration and a possibility of a question arising consideration.
There are no infirmity with the impugned order rejecting the representations made by DRI - appeal dismissed.
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2023 (1) TMI 750
Confiscation of goods - Violation of provisions of Import Policy since the Pre-Shipment Inspection (PSI) Certificate furnished was not as per Appendix-28 of the Foreign Trade Policy - redemption of the goods in lieu of confiscation was allowed on payment of redemption fine - penalty imposed under Section 112(a) of the Customs Act, 1962.
Whether the PSI certificate submitted by the appellant-importer was sufficient compliance with Appendix-28 ibid. and that the authorities are justified in ordering confiscation and offering redemption fine in lieu of the same?
HELD THAT:- In the first place, there should be an improper import of goods leading to confiscation of the same. Here, there is no dispute that the PSI certificate which was furnished was complete in all respects, except the fact that the same was issued by the Branch Office. This implies that the Revenue has recognized and accepted the Branch Office of the issuing agent, but does not want to accept the certificate issued by the Branch. For this alleged violation, the goods were subjected to 100% examination by the authority, but the same did not result in detection of remnants of arms and ammunition or of any banned or objectionable substances. Thus, the goods were found to be in order and as declared in the Bill-of-Entry. Despite this, the Adjudicating Authority proceeds to hold that the import was improper and orders for confiscation of the goods in question which, according to me, is not due to any violation as described under the statute.
The authorities have found that the violation, if any, has not resulted in any specified categories of items being imported or that there was any reason to hold that there has been an improper importation of the goods in question, resulting in confiscation of the same. To put it in simple terms, the goods have not been imported contrary to any prohibition imposed by or under the Act or contrary to any prohibition imposed by any other law for the time being in force. This is because the import is subject to fulfilment of stipulated condition, failing which the only consequence prescribed is the 100% inspection of the entire consignment. This, ipso facto, therefore, would not tantamount to improper import of goods within the meaning of Section 111(d) of the Act. Consequently, the authorities below are not justified in demanding redemption fine and penalty under Section 112(a) of the Act.
The impugned order cannot sustain and therefore, the same is set aside - Appeal allowed.
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2023 (1) TMI 749
Smuggling - Seizure of mobile handsets of Chinese origin - bogus or fake invoices submitted by the truck Driver and transport company in respect of the mobile handsets - It further appeared to the Customs Department that the owner of the mobile handsets was the appellant in view of the no objection certificate issued by the transporter in his favour - HELD THAT:- Admittedly the goods under dispute, Chinese mobile phones have been purchased by the appellant from open market in Delhi. Such contention is also supported by the statement and evidence led by the transporter. Appellant have also produced documents of transport before the Tribunal as well as the bilties that the goods were being transported from Delhi to Ahmedabad. Further, appellant had appeared before the Customs Department and had claimed the goods. Admittedly, no other person has claimed the goods in question.
In view of admitted town seizure, it was the onus on the Customs Department to lead evidence in support of allegation as to the smuggled nature of goods. It is also found from the record that no evidence has been brought on record in support of its allegation. Further, sale-purchase of goods in India is supported by the levy of Sales Tax by the Sales Tax Department of Rajasthan. Accordingly, the order of Court below is vitiated in law and on facts.
The respondent –Revenue is directed to release the goods forthwith to the appellant within a period of 15 days from the date of receipt of copy of this order - appeal allowed.
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2023 (1) TMI 700
Classification of imported Automatic Data Processing Machines (ADP) popularly known as All in One Integrated Desktop Computer - to be classified under Tariff Item 8471 50 00 or under Tariff Item 8471 30 10? - whether the Concerned Goods are ‘portable’ or not under Tariff Item 8471 30 10? - HELD THAT:- While it appears well settled that the HSN is to be normally taken as a safe guide for classifying goods under the First Schedule because it is based on an internationally recognized ‘harmonized nomenclature’ COLLECTOR OF CENTRAL EXCISE, SHILLONG VERSUS WOOD CRAFT PRODUCTS LTD. [1995 (3) TMI 93 - SUPREME COURT], a bare reading of the explanatory note applicable to the subheading clearly lays out the fact that there is no mandatory condition for being operable without any external source of power - the Appellants contention that only ADPs with a built-in power source is necessarily required to be classified under ‘Tariff Item 8471 30 10’, cannot be agreed upon.
Whether mere factum of weighing less than 10 kilograms would be sufficient to classify the Concerned Goods as ‘portable’ or not? - HELD THAT:- The word ‘portable’ should have been defined in reference to the ADPs instead of relying on dictionary meaning which contains all kinds of hues of associated meanings as held by this Court in COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS KRISHNA CARBON PAPER CO. [1988 (9) TMI 50 - SUPREME COURT]. The cited decision also explains the correct approach to be taken in case when a word is to be defined in context of any entry under the First Schedule.
On a conjoint reading of the relevant material and inputs, it is explicitly clear that weight cannot be the sole factor to determine the factum of portability. Instead, the essential ingredients to logically establish whether an ADP is ‘portable’ are twofold. The first ingredient is their ability to be carried around easily which includes all aspects such as weight and their dimensions. We must hasten to add that in appropriate cases, this assessment would also take into consideration the necessary accessories which are required for safe and efficient usage such as mounted stands or any power adapters. The second ingredient is that the ADP must be suitable for daily transit of a consumer and would include aspects such as durability to withstand frequent commute and damage protection. An example of the same would be the availability of protection cases which allows users to carry the ADPs in hand or possibility of carrying the same in normal briefcases or shoulder bags.
Keeping in view the applicable understanding of the element of ‘portable’ as understood in common parlance used in the trade of ADPs, we must hold that the Concerned Goods are not portable for the reasons that Firstly, the diagonal dimension of the Concerned Goods being minimum of the length of 18.5 inches and the same needs to be transported along with the power cable as well as the applicable stand in most cases if it is to be mounted and; secondly there being no protective case designed by the markets for daily transport for these Concerned Goods. Such requirements make the Concerned Goods unable to be carried around easily during daily transit. We, thus, hold that the Concerned Goods are not ‘portable’.
The impugned orders which classified the Concerned Goods under ‘Tariff Item 8471 30 10’ is set aside - It is directed that valuation of the Concerned Goods for levy of the duty be determined under the initially declared ‘Tariff Item 8471 50 00’ - appeal allowed.
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2023 (1) TMI 699
Seeking release of imported consignment - payment of demurrage detention and any other charges - It is contended on behalf of the petitioner that the consignment comprising of “Knotted Woollen Carpets” was imported by the petitioners from the United States of America on 10.08.2021 - HELD THAT:- It is not in dispute that the seizure order now stands passed on 09.02.2022. As pointed out by the parties, the request for provisional release of the consignment was also considered and an order dated 20.09.2022, has already been passed, thereby, provisionally releasing the consignment. Whether the goods are required to be confiscated pursuant to the order of seizure or any other action required to be taken will be decided on adjudication of the Show Cause Notice.
Seeking direction against the respondent to either pay or waive the payment of demurrage during the time the goods were put on hold - HELD THAT:- The respondent relied upon the judgment passed by the Hon’ble Apex Court in MUMBAI PORT TRUST VERSUS M/S. SHRI LAKSHMI STEELS AND ORS. ETC. [2017 (7) TMI 977 - SUPREME COURT] which, in somewhat similar circumstances, held that the High Court could not in writ proceedings have directed DRI/Customs to pay the detention charges to the shipping line since these were to be paid on the basis of a contract between the respondent importers and the shipping line.
In the present case also, prima facie, the petitioner has not responded to the various letters and summons issued by the respondent. Therefore, it cannot be said on the basis of the record available in the present proceedings that the respondents were solely responsible for the delay caused. Therefore, no orders can be passed directing the concerned respondent to pay the demurrage charges, as prayed.
Petition disposed off.
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2023 (1) TMI 698
Seeking grant of customs broker License - increase in the cut off marks after the examination process had commenced - HELD THAT:- Similar issues related to the same examination were raised in three writ petitions wherein the ld. Single Judge of this Court had, by a detailed order in RAJESH KUMAR VERSUS UNION OF INDIA & ORS, PAWAN KUMAR VERSUS UNION OF INDIA & ORS AND MS. PRIYANKA RAI VERSUS DIRECTORATE GENERAL OF PERFORMANCE MANAGEMENT AND ORS. [2022 (3) TMI 516 - DELHI HIGH COURT], held that the cut off marks could not have been changed after the examination notice was issued.
In view of the fact that the identical issue has been decided by this Court in favour of the Petitioner it is directed that the Petitioner be issued the customs broker license, subject to verifying that the Petitioner has scored 50% and above in the oral examination. The verification process shall be conducted within two weeks and the license shall be issued within four weeks.
Petition allowed.
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2023 (1) TMI 697
Suspension of petitioner’s Importer Exporter Code - violation of Section 8 of the Foreign Trade (Development & Regulation) Act, 1992 - seeking grant of reasonable opportunity to make a representation in writing before any such action (suspension of license) is taken - HELD THAT:- Learned counsel for the DGFT states that after the petitioner’s IEC has been suspended, DGFT had issued show cause notice dated 15.11.2022, clearly setting out the grounds on which actions were proposed against the petitioner - A perusal of the said notice indicates that certain grounds for taking action against the petitioner have been set out. In terms of the said show cause notice, the petitioner has been called upon to show cause as to why penal action should not be taken against the petitioner under Section 13 & 14 for violation of Section 8 and 11 of the FTDR Act.
This Court considers it apposite to set aside the order dated 31.08.2022 and direct that the petitioner’s IEC be restored forthwith - Petition allowed.
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2023 (1) TMI 696
Dismissal of appeal - alleged defect, for non-compliance of mandatory pre-deposit in terms of Section 129E of the Customs Act - seeking grant of leave to maintain the appeals against the order of CESTAT and allow the same by quashing of the show cause notices - Levy of penalty under Section 114 of the Customs Act - HELD THAT:- As the appellants herein have failed to fulfill the pre-condition of 7.5% of the demanded duty/penalty as per the order of the Commissioner of Customs, NOIDA dated 18.10.2018, this had to necessarily result in dismissal of their appeals by the CESTAT. There was no discretion with the tribunal to condone the pre-condition of mandatory deposits on the ground of undue hardship. As far as lack of jurisdiction to issue show cause notice is concerned, the said issue could have been considered once the appellants were able to maintain their appeals by making mandatory pre-deposits before the CESTAT. The appeals before us challenging the orders of the CESTAT dated 29.8.2009 in dismissing three appeals as not maintainable on account of defect of mandatory pre-deposit under Section 129E, therefore, deserve dismissal.
Jurisdiction - whether any substantial question of law arises for determination in the instant appeal? - HELD THAT:- In view of the admitted fact that the confiscated gold jewellery from the factory and residential premises of M/s Ajit Exports and factory premises of M/s Vee Ess Jewellers two SEZ units were exported by M/s Deepu Jewellers and M/s Samrah Gold Factory, the Managing Director and the Director of whom was Sri Kishore Ratilal Dhakan at the relevant point of time, we are required to examine as to whether the penalty imposed upon the appellants herein under Sections 112, 114, 114AA is without jurisdiction - A conjoint reading of Sections 112 and 114 of the Customs Act which deal with penalty for ''improper import' and ''improper export' or attempt to export goods improperly clearly shows that the penalty can be imposed on "any person", not only such person who does or omits to do any act in relation to any goods liable to confiscation under Section 111 or 113, but would also include such person who abets the doing or omission of such an act. The penalty, thus, can be imposed under Section 112 or Section 114 upon not only the importer or exporter; respectively, but also upon ''any person' who commits an act of abetment, i.e. to help or aid exporters or importer in such wrong doing.
In the instant case, the appellants companies incorporated in Sharjah and Dubai which were limited liability companies, 49% of share of which were held by Indian Nationals namely its Managing Director/Director Sri Kishore Ratilal Dhakan and Deepak Ratilal Dhakan were doing illegal business in India through two SEZ units namely M/s Ajit Exports and M/s Vee Ess Jewellers. Sri Kishore Ratilal Dhakan was also the share holder of M/s Vee Ess Jewellers. The permission to import gold jewellery without Customs duty and Cess was with the specific condition that the old/outdated gold jewellery imported to carry out process of assembling, refinishing, plating and remaking would be sent back to the exporters the appellants herein - the offence of improper importation and attempt to improper export by diversion of gold jewellery in the local market under mis-declaration from SEZ units had been committed within the territorial limits of India as defined in Section 2(27) of the Customs Act, 1962, the issue of jurisdiction of the Customs Authorities in India to impose penalty upon the Appellants does not arise.
The appellants herein have submitted themselves to the jurisdiction of the Customs Act upon the notices issued to them under Section 108 of the said Act and filed appeals against the order of the adjudicating authority under Section 129A(a) of the Customs Act, 1962, without complying with the mandatory condition of pre-deposit under Section 129E(ii) of the Customs Act, 1962, the appeals filed by them have been rightly dismissed as non-maintainable for non-fulfillment of mandatory condition of pre-deposit.
No infirmity could be found in the decisions of the Appellate Tribunal in dismissing the appeals as not maintainable - Appeal dismissed.
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2023 (1) TMI 695
Revocation of petitioner’s Customs Broker License - Period of limitation - whether time prescribed under the said Regulation for completion of the proceedings and passing of the final order within 90 days from the date of receipt of inquiry report is directory or mandatory - jurisdiction of the authority under the customs and Central Excise Duty Drawback Rules, 2017 relating to Duty Drawback on export transactions - ELD THAT:- Petitioner submits that adjudicating authority has usurped the jurisdiction of the authority under the customs and Central Excise Duty Drawback Rules, 2017 relating to Duty Drawback on export transactions - Such findings have been noted in the disagreement note and subsequently in the impugned order relating to Bank Realization Certificate (BRC), a certificate issued by a Bank to an exporter certifying realization of export proceeds.
The Inquiry Officer in his Inquiry Report under Regulation 17(5) of the said regulation has specifically found that the allegations of violation of Regulation 10(m), (n) and (q) under CBLR, 2018 against the petitioner as “not proved” except allegation under Regulation 10(d) was partially proved. It also appears from record that the order of suspension of petitioner’s license though it was set aside by the order of the Tribunal on 19th August, 2022 but before such order was passed by the Tribunal the respondent authority passed the impugned order of revocation of petitioner’s license.
The issues involved in this Writ Petition is a pure question of law with regard to interpretation of Regulation 17(7) of the CBLR, 2018 and as to whether time prescribed under the said Regulation for completion of the proceedings and passing of the final order within 90 days from the date of receipt of inquiry report is directory or mandatory and this Writ Petition on this legal issue should be heard on affidavits by the respondents.
The imagined order of revocation of petitioner’s license dated 11th July, 2022 shall remain stayed till 30th April, 2023 or until further order, whichever is earlier.
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2023 (1) TMI 645
Maintainability of petition - availability of alternative remedy of appeal - Smuggling of Gold - opportunity of personal hearing was provided or not - HELD THAT:- This writ Court after careful consideration in this matter is of the considered view that the captioned writ petition does not pass muster in the Admission Board and it deserves to be dismissed - this Court is of the considered view that it is for the Appellate Authority to examine the same if an appeal is preferred as the records would speak for itself. In the case on hand, several statements have been recorded including that of the writ petitioner and therefore, as the dates have been given with specificity seen in the light of a letter dated 28.07.2022 written by counsel for the writ petitioner to which the attention of this Court is drawn, this Court finds that personal hearing is a matter which turns on factual disputation and the same can be gone into by the Appellate Authority if the writ petitioner chooses to avail the alternate remedy of appeal. This answers NJP facet of the matter.
If the writ petitioner chooses to avail alternate remedy by filing appeal to the Commissioner of Customs (appeals) under Section 128 of said Act, the Appellate Authority shall consider the appeal (subject of course to pre-deposit and limitation) on its own merits and in accordance with law uninfluenced / untrammeled by the observations made in this order as the observations made in this order is for the limited purpose of disposal of the captioned writ petition.
The sequitur is captioned Writ Petition fails and the same is dismissed.
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2023 (1) TMI 601
Denial of rightful claim of refund of service tax being the Petitioner is an exporter coming under the Customs Act on the ground of hyper technicality when export have taken place actually - denial of statutory right of the Petitioner for mere procedural lapse - denial of just claim of the Petitioner in deviation of doctrine of precedent which is a fundamental constraint on judicial decision-making.
HELD THAT:- Under Section 2(20) of Customs Act the term ‘exporter’ would include any owner or any person holding himself out to be the exporter. In other words, the person holding out to be the exporter (in this case M/s. Liberty and M/s. RIPL) need not be the exporter. It could well include an entity like the present Assessee which in fact entered into the agreement pursuant to which the export took place.
Added to this fact is the finding of the Commissioner (Appeals), that for the limited purposes of facilitating the export, separate agreements were entered into by the Appellant with M/s. Liberty and M/s. RIPL whose limited role was to file the shipping bills for the purposes of export in their names. It has been being factually further found by the Commissioner (Appeals) that the entire cost of effecting the export was borne by the Appellant. It ran the risk of penalties if the goods were not exported or if there was delay in export or the goods were below the specifications. Importantly “the LC had been opened with the Bank by the Appellant”. The invoices of sale of goods was raised by the Appellant-Assessee on the buyers and it is the Assessee which had remittances in its own name pursuant to the exports made.
All the above factors go to show that it was in fact the Assessee which was the real exporter of the goods for the purpose of Section 2(20) of the Act - the Court is unable to concur with the view of the Tribunal that in the present case the Assessee was not entitled to the refunds since it was not the exporter.
The questions framed are answered in favour of the Assessee and against the Department.
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2023 (1) TMI 600
Determination of criteria for allocation of imported Raw Pet Coke - allocation of such imported RPC among various entities engaged in the business of using the imported RPC to produce Calcine Pet Coke - Appellant is aggrieved by the alleged excess allocation of RPC to Respondent No. 3, which the Appellant contends, has been made in excess of stipulated parameters - whether there was any actual change in the public notices on the basis of which the allocation was made? - HELD THAT:- Under the first Public Notice dated 26.11.2018, the importer had to apply for the import license to the DGFT along with the capacity of the unit and a valid consent certificate from the SPCB/PCC in the name of user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. It is pertinent to mention here that when Respondent No.3 made an attempt to seek for increase in their import on the basis of their increase in production capacity, the same was rejected by the competent authority. This Public Notice has to be read in consonance with the Judgment of the Apex Court and cannot be permitted to do violence with the Orders of the Apex Court in M.C. MEHTA VERSUS UNION OF INDIA & ORS. [2018 (11) TMI 1352 - SUPREME COURT].
On 22.03.2019, as per the second Public Notice, the eligible quantity desiring to avail quota of the total import of raw pet coke were to apply for the import license along with their capacity of the unit and a valid consent certificate from SPCB/PCC in the name of user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. This notice is more or less identical to the first Public Notice dated 22.11.2018 - The Appellant attempted to move the DGFT for the increase in their quota based on the increase in their production capacity which was rejected by the DGFT by Order dated 22.04.2019 on the ground that any change in the quota would be violative of the order of the Apex Court.
The reasoning of the learned Single Judge that the public notice dated 17.04.2020 makes a distinction between the certificate in the first part and the consent to operate in the second part and if both, the certificate and the consent to operate, were of the same document then there was no necessity to mention both in two parts of the public notice and, therefore, the certificate, granted by the Andhra Pradesh Pollution Control Board, stating that the Respondent No.3 had, as on 09.10.2018, the installed capacity for manufacture of calcined petroleum coke of 3.3 Million Metric Tonnes is reasonable, is contrary to the entire scheme as envisaged by the Apex Court - The certificate dated 04.05.2020 issued by the State Pollution Control Board only certifies that the installed capacity of Respondent No.3, as on 09.10.2018, for manufacture of calcined petroleum coke, was 3.3 Million Metric Tonnes per annum and is obviously immaterial. Even though the public notice dated 17.04.2020 is not under challenge but this Court cannot be a party to any interpretation that will have the effect of upsetting the rationale of the Apex Court in fixing 1.4 Million Metric Tonnes of raw petroleum coke which, as stated earlier, was based on the permissible capacity as on 09.10.2018.
In case, now, the production capacity has increased and its proportionate share has been increased, the DGFT has to bring this fact to the knowledge of the Apex Court and only the Apex Court can alter the figures. The learned Single Judge has, therefore, erred in coming to a conclusion that inter se allocation could have been changed by the DGFT more so because the DGFT has in its previous Minutes of Meetings rejected the claim of various applicants including Respondent No.3 for increasing their share of allocation as per their production capacities. Even though the capacity may have been increased by the order dated 29.11.2018, the permission to produce more than 2 Lakh Metric Tonne was not there on 09.10.2018, which is evident from the order dated 22.04.2017, which restricted Respondent No.3 from producing more than 2 Lakh Metric Tonnes of calcine pet coke.
The Respondents are directed to re-draw the allocation of Raw Petroleum Coke to the various calciners - Application allowed.
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2023 (1) TMI 599
Rejection of refund of cash security deposit - rejection of refund on the ground that the appellant’s claim was barred by limitation in terms of Section 27(1) of the Customs Act, 1962 - HELD THAT:- It is not the case of the Revenue that what the appellant claimed was the refund of the duty paid and there is also no dispute that the appellant claimed only the security deposit made.
The Hon’ble jurisdictional High Court in the case of COMMISSIONER OF CUSTOMS (EXPORT), CHENNAI-1 VERSUS CABLE CORPORATION OF INDIA LTD. [2008 (6) TMI 210 - HIGH COURT OF JUDICATURE AT MADRAS] has considered a similar issue and has held that Section 27 which speaks about the refund of the duty cannot be pressed into service to deny refund of the amount covered under the bank guarantee which has been negotiated by the department.
Thus, it is very much clear that refund claim of the security deposit is not governed by the provisions of Section 27 of the Customs Act and consequently, the lower authorities have clearly erred in rejecting and confirming the rejection of refund claimed of the security deposit by invoking the provisions of Section 27(1) ibid.
The impugned order is not sustainable and hence, the same is set aside - Appeal allowed.
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2023 (1) TMI 582
Maintainability of petition - availability of alternative remedy - levy of penalty u/s 114 (iii) of the Customs Act, 1962 - appealable order under Section 128 of Customs Act, 1962 or not - HELD THAT:- In Hameed Kunju vs. Nizam [2017 (7) TMI 1414 - SUPREME COURT] the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others [2016 (3) TMI 1435 - SUPREME COURT] it is held that when there statutory appeal is provided, then the said remedy has to be availed.
Looking to the fact of availability of an efficatious alternative remedy, it is not found proper to entertain these petitions - petition dismissed.
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2023 (1) TMI 558
Maintainability of petition - availability of alternative remedy - seeking to quash levy of penalty under Section 114 (iii) of the Customs Act, 1962 - appealable under Section 128 of Customs Act, 1962 - HELD THAT:- In the present case, personal hearing was not granted to the petitioner before passing the impugned order, even the authority without invoking Section 113 of the Customs Act, went-on to pass order under Section 114 of the Customs Act. The value of goods was not assessed or determined before passing the impugned order - In such a situation, the order passed in W.P. No.11973/2022 and connected cases are not applicable to the facts and circumstances of the present cases. The writ petitions could not be dismissed on the ground of alternative remedy.
So far as delay in deciding the issue is concerned, sufficient reasons have been assigned for the same.
Learned counsel for the respondents relied on the judgment of Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others [2014 (9) TMI 585 - SUPREME COURT] in which it is held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam [2017 (7) TMI 1414 - SUPREME COURT] the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal.
In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others [2016 (3) TMI 1435 - SUPREME COURT] it is held that when there statutory appeal is provided, then the said remedy has to be availed.
Looking to the fact of availability of an efficacious alternative remedy, it is not deemed proper to entertain these petitions - petition dismissed.
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2023 (1) TMI 557
Seeking provisional release of seized goods - import of consignment of mobile parts - difference in the description and quantity of consignment - HELD THAT:- The issue is decided in the case of M/S. NORTH AND SOUTH TRADING COMPANY, M/S. ALAMS MOBILES VERSUS THE ADDITIONAL COMMISSIONER OF CUSTOMS (GR. 5A) , THE DEPUTY COMMISSIONER OF CUSTOMS (GR. 5A) [2023 (1) TMI 396 - MADRAS HIGH COURT] where it was held that On instructions learned Solicitor goes on to submit that Additional Commissioner of Customs, Air Cargo Complex, Meenambakkam, Chennai-600 027 is the 'Adjudicating Authority' for the purposes of Section 110A read with Section 2 (1) of said Act, he would pass orders afresh qua provisional release sought for by the writ petitioners under Section 110A and the orders would be served under due acknowledgement in an acceptable mode to writ petitioners within two working days from today i.e., on or before 06.01.2023.
Petition is disposed off with similar order as mentioned above.
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2023 (1) TMI 556
Seeking provisional release of goods - reduction in bank guarantee for provisional release of the seized goods to 10% of the value of goods - mis-declaration in terms of value and also in terms of percentage of polyvinyl chloride (PVC) - HELD THAT:- There was allegation of mis-declaration of the value of the goods which has been admitted to by the appellant in letters and statements. The SCN demanded differential duty which the appellant has already deposited. The SCN has also proposed confiscation of the goods under Sections 111(l) and 111(m). After adjudication, if the goods are held liable for confiscation, they may be released on payment of redemption fine. The present case of provisional release of goods needs to be seen in this context. If the goods are confiscated and allowed redemption on payment of fine such fine has to be recovered from the appellant and some security is necessary to cover it if the goods are to be released provisionally before adjudication itself. Considering the overall factual matrix of this case we modify the impugned order reducing the amount of bank guarantee to 5% of the value of the goods.
The appeal is partially allowed and the impugned order is modified to the extent that the bank guarantee for provisional release of the goods will be 5% of the value of the goods.
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2023 (1) TMI 555
Absolute Confiscation of re-imported goods - petroleum coke - imposition of penalty under Section 112(b) of the Customs Act - rejection of the goods by the Buyer, and were accompanied with re-export invoice - HELD THAT:- The learned Commissioner (Appeals) have recorded the findings that the appellant had purchased the goods for export and on being rejected by the buyer in Saudi Arabia, the goods have been re-imported and admittedly, appellant have not availed any export benefit on the impugned goods - both the identity of the goods is also established and also that the appellant had genuinely exported the goods to the user buyer in Saudi Arabia. Further, on rejection by the buyer, the appellant was obligated to re-import the goods to mitigate his loss. Further, admittedly, the re-imported goods have been found to be CPC. The minor variation in weight is normal variation in the weight of the goods, due to normal loss in transit.
As per para 1.05 (Clause B) of Chapter 1 of FTP 2015-2020, provides that in case of change of policy from free to restricted/prohibited etc. the imports or export already made before the date of such regulation/restrictions will not be effected. Admittedly, the export in this case was made through shipping bill dated 01.12.2017, which is before the date of restriction imposed vide aforementioned Notifications - CPC was free for export-import on the day of export, the re-import by the appellant of the rejected goods, has to be treated as freely importable under the Foreign Trade Policy.
Appeal allowed.
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2023 (1) TMI 513
Levy of penalty - liability of the "Carrier" - short-landing of goods loaded in a conveyance for importation into India - HELD THAT:- As per Section 116 of the Customs Act, the person in charge of the conveyance is responsible for short-landing. This has to be read with Section 148, which deals with the liability of an agent appointed by the person in charge of a conveyance. It lays down that where the Act requires anything to be done by the person in charge of a conveyance, it may be done on his behalf by his agent. An agent appointed by the person in charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person in charge, and is accepted as such by that officer, shall be liable for the fulfillment in respect of the matter in question of all obligations imposed on such person in charge including penalties and confiscations which may be incurred.
The Petitioner in response to the show cause notice has taken this defence and had even given the details of the slot agents M/s. Liberty Marines Syndicate Pvt. Ltd., Globe Link W.W. India Pvt. Ltd. and M/s. Schenker India Ltd. These slot agents were directed to remain present for the hearing before the Assistant Commissioner, and the Assistant Commissioner (Customs) had given them the opportunity and heard the slot agents as well. Thereafter, the Commissioner (Customs) passed an order wherein there was no bifurcation of liability though the order was sent to the Petitioner and these three slot agents. It is the Petitioner who took up the challenge to the order, as according to the Petitioner, since the Petitioner is a reputed firm, it did not want the stigma of the order of penalty. The factual aspect as to the role of enquiry thereafter was not undertaken, and by the order in Appeal and the Revisional orders, the Order-in-Original was confirmed.
Prima facie there appears to be a practice of holding an enquiry to ascertain whether it is the steamer agent who has filed the IGM should be held liable for the penalty in the case of short-landing or the liability should be fixed on the slot agent. There are no reason on record why this course of action is adopted in this case when the Petitioner has been consistently demanding the same. Thus, the appropriate course of action would be to set aside the impugned order and restore the Revision.
The impugned order dated 9 May 2012 passed by the Joint Secretary, Revisional Authority, is quashed and set aside, and the revision filed by the Petitioner is restored to the file.
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