|
Advanced Search Options
Customs - Case Laws
Showing 61 to 80 of 84 Records
-
2023 (1) TMI 463
Levy of penalty and redemption fine - Classification of export goods under MEIS scheme - misdeclaration of Country of Origin in the export document so as to claim the export incentives under MEIS - whether the classification of Blood Glucose Test Strips was mis-declared as CTH 30069100 instead of the correct CTH 38220090? - Confiscation - redemption fine - penalty - HELD THAT:- The appellant made a wrong claim of export benefit under MEIS, being mis-advised by the CHA. However, it was the responsibility of the appellant to understand the eligibility and the conditions before making a claim for the export benefits. However, in the facts and circumstances, that the goods were not prohibited goods, it is found that the fine and penalty are on the higher side. Accordingly, the impugned order is modified - Redemption fine is reduced from Rs. 4 lakhs to Rs. 1 lakh - Penalty under Section 114(iii) is reduced from Rs. 50,000/- to Rs. 25,000/-.
Appeal allowed in part.
-
2023 (1) TMI 462
Wrongful availment of benefit of Duty Drawback - export of spurious drugs - requirement for obtaining “NOC” from the Drug Controller or not - Confiscation - redemption fine - penalty - HELD THAT:- It is evident that there was no requirement of “NOC” from the Drug Controller in respect of export consignment vide Shipping Bill No. 7099329 dt. 16.04.2016 filed by the appellant for export of drugs to Liberia. Further, the evidence led satisfies that the appellant was a genuine manufacturer duly licensed to manufacture and export of drugs. Further, even from the test report of CDSCO, Mumbai, out of the three drugs, two drugs namely B-CO syrup and Sabtron have been found to be of standard quality. Thus, the whole proceedings by the Customs Authority for confiscation are vitiated.
Appeal allowed.
-
2023 (1) TMI 461
Seeking recall of order - early hearing of application was sought by applicant - duty of the applicant to follow the dates on which the application was listed on the website of the Tribunal, if the appellant was interested in pursuing the application - applicant alleged that a notice had not been sent by the Tribunal to the appellant regarding the next date fixed - HELD THAT:- When an early hearing application had been filed, learned counsel should have made all efforts to find out the next date fixed from the website of the Tribunal, as it is not the case of the learned counsel that the applicant was not aware that the matter was listed on August 2, 2022 - when the cause list of August 11, 2022, which is also uploaded on the website of the Tribunal also contained the present matter, the learned counsel should have noted the case and attended the proceedings, but learned counsel did not appear even on the date. As the order mentions, it was adjourned to October 11, 2022 even though learned counsel did not appear.
The cause list of October 11, 2022 also contains this matter and there is no reason as to why the learned counsel should not have marked the case in the cause list which was available on the website of the Tribunal. Even on the said date, learned counsel did not appear - It is the appellant who had filed the early hearing application and, therefore, it was the duty of the applicant to follow the dates on which the application was listed on the website of the Tribunal, if the appellant was interested in pursuing the application instead of making a complaint that a notice had not been sent by the Tribunal to the appellant regarding the next date fixed.
The applicant has failed out to make out any case for recall of the order dated October 11, 2022. This application is, accordingly, rejected.
-
2023 (1) TMI 396
Seeking provisional release of goods - import of consignment of mobile parts - difference in the description and quantity of consignment - 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. This submission is also recorded.
Though obvious it is made clear that this Court has not expressed any view or opinion on the merits of the matter and as regards orders to be made by aforementioned officer i.e., 'Adjudicating Authority', all rights and contentions of both sides including the prayers made in the captioned writ petitions are preserved.
Petition disposed off.
-
2023 (1) TMI 395
Refund of SAD - original files/documents/Bills of Entries were seized by Superintendent(Preventive) - rejection of refund also on the ground of time limitation - HELD THAT:- In the present case there is no denial of the fact that the appellant was not in position to file the refund claims within the prescribed period of limitation for the reason that the documents on the basis of which these refund claims were to be filed were under seizure and were seized prior to the expiry of the period of limitation. Both the lower authorities have observed that the refund claims could have been filed without these documents on the basis of the book of accounts maintained by the appellant. There are no merits in this observation in view of the specific provisions of Section 27 (1A) reproduced above as per which refund claims are to be filed along with the required documents.
Even if the refund claims would have been filed without these documents, the same could again have been rejected for the absence of these documents or returned along with the deficiency memo for being re-submitted. In any case the refund application would not have been acknowledged by the department till it was filed along with all the documents. Undisputedly the necessary documents which were required for filing this refund application were under seizure, and the refund application would not have been acknowledged by the revenue authorities without these documents. The condition which is stated to be the reason for rejection of the refund claims is something which could not have been complied with.
Appeal allowed.
-
2023 (1) TMI 353
Revocation of customs broker license - forfeiture of the whole amount of security deposit - imposition of penalty - imeline of Regulation 16 and 17 of Customs Broker License Regulations (CBLR), 2018 was mandatory to be followed or not - Whether once the order suspending the license of CHA/appellant was revoked, the proceedings of revocation of license under Regulation 17 of CBLR, 2018 could not be initiated? - violation of Regulation 10(a), 10(d) and 10(n) of CBLR, 2018.
Whether the timeline of Regulation 16 and 17 of Customs Broker License Regulations (CBLR), 2018 was mandatory to be followed while revoking the license and the order of revocation of license of appellant, Customs Broker (CB) is barred by time as the same has not been followed? - HELD THAT:- The time limit prescribed in Regulation 17(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulations 17(1) prescribes a time limit of 90 days from the date of receipt of offence report within which action is to be initiated i.e. for issuance of Show Cause Notice to Customs Broker who has to file his defense within 30 days of receipt of said Show Cause Notice.
Reverting to the facts of the present case, we observe that DRI proceeded based on the information about certain undervalued imports and conducted search at various premises of different importers based in Mumbai and Hyderabad on 12.04.2017. The goods recovered during those search were seized on 22.06.2017. But the requisite show cause notice could not be issued within six months, the time prescribed by the statute for the purpose. However, a show cause notice praying time extension under Section 110(2) of Customs Act, 1962 was issued on 06.10.2017 and the time was extended vide Order-in-Original dated 11.10.2017.
It is department’s case that the show cause notice of 11.04.2018 / offence report was received in Delhi, the Commissionerate of competent jurisdiction, only on 25.02.2019 and as such the show cause notice dated 23.05.2019 is well within the period of 90 days. In view of entire above discussion and in view of Regulation 17(1) of CBLR, 2018 and that the timeline prescribed under Regulation 17 being mandatory in nature, it is held that the Commissioner of Customs who received the offence report dated 11.04.2018 on 25.02.2019 has issued the show cause notice to the CHA on 23.05.2019, while following strictly the timeline, well within 90 days of receiving the offence report - the show cause notice in question was within 90 days from the date when Delhi, Commissionerate received the intimation about alleged acts / omissions of Customs Broker / appellant and the period of 90 days has to reckon from the date of receipt of offence report by the Commissioner issuing show cause notice.
The statute i.e. CBLR, 2018 is prescribing the time limit which is otherwise mandatory unless there is a gross abuse of process of law by the alleged defaulter and there is utmost bona fide and diligence on the part of the officers proceeding against the said alleged defaulter - the issue is decided in affirmative holding that the timeline of Regulations is mandatory to be followed and Commissioner (Customs), Delhi has duly followed the same. Thus impugned show cause notice dated 23.05.2019 issued against the appellant is well within time.
Whether once the order suspending the license of CHA/appellant was revoked, the proceedings of revocation of license under Regulation 17 of CBLR, 2018 could not be initiated? - HELD THAT:- The action under regulation 16 can be taken during the pendency of proceedings initiated under regulation 14 to revoke the license of the Customs Broker. It becomes abundantly clear that any order whether of continuation of suspension of CB’s Lincese or of revocation thereof is not a bar for the inquiry as has already been initiated under Regulation 14 following the procedure prescribed under Regulation 17 of CBLR, 2018. Hence, the contention of appellant is not sustainable and we hold that irrespective of the order of revocation of suspension of appellants license the proceedings for revocation under Regulation 17 of CBLR, 2018 thereof have rightly been continued against him.
Issue is decided in negative holding that the findings recorded under Regulation 16(2) of CBLR, 2018 cannot in any manner have any bearing on the findings recorded under Regulation 17.
Whether the appellant has violated Regulation 10(a), 10(d) and 10(n) of CBLR, 2018? - HELD THAT:- There is no evidence on record to prove that the appellant had any personal or pecuniary interest in the impugned imports or that the imports were for any other personal benefit of the appellant. From the above discussion about the documents and information of the importer, it is crystal clear that the CHA herein had played his role diligently. The only allegation otherwise about the imported goods is that of under valuation thereof. Appellant is not a valuation expert and had played no role in the under valuation of the goods. The appellant acted purely on the basis of documents as that of invoice/purchase orders supplied by the importers.
The Commissioner has wrongly concluded that there is no evidence to rebut the veracity the statement of Shri Sidharth Sharma. It is rather observed that Shri Sidharth Sharma had submitted a letter dated 25.10.2017 on behalf of M/s. Maggie Marketing Pvt. Ltd. retracting his earlier statements but the order under challenge is miserably silent to the same. Mention of said retraction is even found recorded in subsequent statement of Shri Sidharth Sharma dated 08.11.2017, wherein, he acknowledged his retraction and reiterated that his earlier statements were given under pressure - the findings of adjudicating authority below are held to be based on presumptions and surmises only. Even the Show Cause Notice as served upon the appellant is based on third party evidence i.e. on the documents recovered from premises of Shri Yusuf Pardawala.
The Commissioner (Appeals) has committed an error while ignoring the most cogent part of the statement of Shri Siddharth Sharma, wherein, he has specifically acknowledged that payments and charges for clearance etc. were paid to the appellant from the accounts of the concerned companies in whose names the Bills of Entry were filed. The another cogent deposition absolving entire liability of the appellant is that the clearance work of the import consignments of power bills and other related items in his company was handled by Shri Pankaj Singh alias Banti who did not work for M/s. ICS Cargo rather was the Director of a freight forwarding company in the name of M/s. JMD Clearing and Forwarding Pvt. Ltd. The said deposition has been corroborated by Shri Pankaj Singh himself - There was nothing with appellant to hide from the department. Mere taking certain documents of importer from a person appearing on behalf of the importer who is otherwise validly existing at the declared address and having valid IEC and GSTIN is highly insufficient to hold that CHA has failed in performing his duties of Customs House Agent deliberately.
The third issue of adjudication in favour of the appellant holding that the Commissioner (Appeals) has wrongly confirmed the violation of Regulation 10(a), 10(d) and 10(n) of CBLR, 2018 against the appellant.
Though the revocation of suspension of appellant’s license was not an impediment while proceeding with the inquiry under Regulation 14 in terms of Regulation 17 of CBLR, 2018 and that the department has strictly followed the mandatory timeline of this provision - The appellant has not committed any alleged violation of Regulation 10(a), 10(d) and 10(n) of CBLR, 2018 - the order of revoking the license of appellant and of imposing penalty upon the appellant is absolutely wrong, unreasonable and unjustified.
Appeal allowed.
-
2023 (1) TMI 352
Refund of excess duty - refund was rejected on the ground of time bar that the appellant had filed the refund claim after one year from the date of final assessment - HELD THAT:- The sanctioning authority has considered the letter F.No S/9 -241 GATT/2012 GVC & S/9-261 GATT/2012 GVC dated 22.03.2017 as final assessment order however on perusal of the said letter I find that through the said letter the appellant was directed to approach the concerned assessing authority for finalization of assessment where the provisional assessment was undertaken in their bills of entry. As per the said letter it is not clear when the final assessment order was issued. The learned counsel has also given a sample copy of bills of entry and on the bill of entry also there is no mention of final assessment.
There are force in the argument of the Learned counsel that the bond was cancelled on 04.08.2018 therefore, if there is no formal final assessment order was issued then the date of cancellation of bond shall be treated as finalization of assessment, however it is not on record that whether any formal final assessment order was issued. Accordingly, the matter needs to be remanded back to the adjudicating authority to ascertain the facts about the actual date of finalization of bills of entry and to pass a reasoned order on the refund.
Appeal is allowed by way of remand to the Adjudicating Authority.
-
2023 (1) TMI 351
Continuation of anti-dumping duty under section 9A of the Customs Tariff Act 1975 - contention that has been advanced is that the office memorandum, communicating the decision of the Central Government not to continue anti-dumping duty, despite a recommendation having been made by the designated authority in the final findings to continue anti-dumping duty should be set aside for the reason that the principles of natural justice have been violated and even otherwise the decision is arbitrary, unreasoned and bad in law - Principles of natural justice.
HELD THAT:- The Gujarat High Court in Realstripes Limited & 1 other(s) vs. Union of India & 1 other(s) [2022 (9) TMI 1171 - GUJARAT HIGH COURT] also examined whether quasi-judicial process was involved in issuance of the notification by the Central Government and after analyzing the decision of the Supreme Court in Indian National Congress vs. Institute of Social Welfare [2002 (5) TMI 847 - SUPREME COURT], the Gujarat High Court held that the notification issued by the Central Government would be quasi-judicial in nature.
The inevitable conclusion, therefore, that follows from the aforesaid discussion is that the decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority.
The matter is remitted to the Central Government to reconsider the recommendation made by the designated authority - Appeal allowed by way of remand.
-
2023 (1) TMI 310
Seeking release of the consignment - sale of goods after import - seeking cancellation of the previous bill of entry filed with the customs, and permit the Petitioner to file a new bill of entry as per new consignee - levy of demurrage charges - HELD THAT:- The situation in the present case is that though the out-of-charge process was undertaken by the importer way back in August, 2022, the said importer has not paid the customs duty and taken clearance of the goods. In effect therefore he has abandoned the goods. The importer has also not paid the detention/demurrage charges and till date the goods are lying with the customs authority. The Petitioner has already received the original bill of entry and other documents from the Bank, which would therefore show that the title of the goods has, in fact, passed to the Petitioner.
A perusal of the judgment in Agrim Sampada [2004 (1) TMI 86 - HIGH COURT OF DELHI] clearly shows that the original importer in the said case, who had to make payment on cash against delivery basis, had abandoned the same and under such circumstances, the Court had held that the party similarly situated as the Petitioner is entitled to present the original bill of entry to the customs authority, upon which the goods have to be cleared.
The issue of payment of demurrage has been considered by several decisions of the Supreme Court and of this Court. On the question of demurrage, the Supreme Court in INTERNATIONAL AIRPORTS AUTHORITY VERSUS GRAND SLAM INTERNATIONAL OF INDIA [1995 (2) TMI 70 - SUPREME COURT], held that the demurrage would be liable to be charged even if there was fault on the part of the customs authority.
Whether the demurrage would be liable to be paid by the Petitioner insofar as the customs duty and the interest? - HELD THAT:- These circumstances would clearly show that until December, 2022, the abandonment could not have been concluded by the Customs authorities, at the importer's instance as the out-of-process charge had already been done. Therefore, the customs authorities could not have presumed change in ownership till December 2022. If the goods are not released to the Petitioner, the authorities would follow the procedure prescribed in law and recover the demurrage which they are obviously entitled to recover. However, the Petitioner herein is seeking release of goods due to change in ownership of goods on the strength of the original documents having been released in its favour and the Importer having not cleared the goods. The short question that arises is whether, the Petitioner can claim that it is not liable to pay any demurrage.
The Petitioner shall pay the customs duty and interest - Insofar as the detention/demurrage charges are concerned, since there is no explanation for the delay between September 2022 to December, 2022 and the first representation itself was made on 3rd December, 2022, the Petitioner would be liable to pay 50% of the detention/demurrage charges payable till 3rd December, 2022 as also demurrage charges for the period from 3rd December, 2022 till date - petition disposed off.
-
2023 (1) TMI 309
Smuggling - Gold Bars - proceedings initiated against the Petitioner under Section 135 of the Customs Act - HELD THAT:- When the case was taken up for hearing, the learned Counsel for the Petitioner seeks indulgence of this Court to call for remarks from the learned Judicial Magistrate No.I, Alandur regarding the pendency of the case in R.R.No.27 of 2014 where the criminal case is said to be pending against the Petitioner. Therefore, the Registry was directed to call for remarks from the learned Judicial Magistrate No.I Alandur regarding the pendency of the case in R.R.No.27 of 2014 in respect of the Petitioner herein/A2. Accordingly, remarks were received from the learned Judicial Magistrate No.1, Alandur stating that since in the year 2019, Special Court for Exclusive Trial of Customs Act was constituted, the case in R.R.No.27/2014 was transferred to the file of the learned Judicial Magistrate, Special Court for Exclusive Trial of Customs Act, Alandur. In pursuance of the same, by order dated 06.10.2022, the Registry was directed to call for remarks from the learned Judicial Magistrate, Special Court for Exclusive Trial of Customs Act Cases, Alandur regarding the stage of the case relating to R.R.No.27/2014 in respect of the Petitioner herein/A2 in F.No.DRI/CZU/VIII/48/ENQ-1/INT44/2014 on the file of the Respondent, by e-mail on or before 13.10.2022.
Thus, it is evident that even on 17.04.2021, for not taking steps by the complainant to file the complaint, the complaint itself was closed. Therefore, nothing survives for adjudication by this Court. When the complaint itself is not pending, the challenge made by the Petitioner to the remand report had to be allowed.
The Criminal Original Petition is allowed.
-
2023 (1) TMI 308
Maintainability of appeal - Absolute confiscation - kadiwali gold chain - passenger baggage rules - whether the appeal is not maintainable before this Tribunal on the ground of jurisdiction? - HELD THAT:- The appeal can be disposed of only on the issue of jurisdiction without going into the merit of the case. Both the sides have relied upon contrary judgments. However, as per the Hon’ble Madras High Court judgments in the case of SHRI PAYANGADI MOIDU MOHAMMED ALI VERSUS THE COMMISSIONER OF APPEALS, THE ADDITIONAL COMMISSIONER OF CUSTOMS (AIR) [2017 (2) TMI 84 - MADRAS HIGH COURT], in the identical issue appeal does not lie before the Tribunal whereas the competent authority is revisionary authority (Government of India).
In the present case, the appeal before this Tribunal is without jurisdiction. Therefore, the appeals are dismissed as infructuous.
-
2023 (1) TMI 199
Rejection of refund claim - import of 54 sets of battery operated rickshaw in CKD condition without battery and charger - re-export of the goods as appellant did not have valid certificate of compliance in terms of Rule 126 of Central Motor Vehicle Rules (CMVR), 1989 - rejection of refund claim on the ground of time limitation - whether the time bar under section 27(1) of Customs Act, 1962 is invokable with respect to impugned refund claim?
HELD THAT:- It is observed that the opening line for section 27 is “claim of refund of duty”. Reverting to the facts of this case admittedly, the amount in question Rs 7,76,205/- was paid at the time of presentation of Bill of Entry on 03.01.2014 as duty on the goods / vehicles imported by the appellant. It is also admitted fact on record that those goods since were not allowed to be imported without any requisite certificate. Since the Certificate was not available with the appellant that the appellant made a request for the goods to be re-exported. Admittedly the request was made at the time when the goods were still in the Customs area. The Bill of Entry as was filed for home consumption was allowed to be amended for warehouse and those were allowed to be re-exported vide order dated 14.10.2014. The ‘let export order’ was passed with respect to the goods which were still lying in the customs area on 22.11.2014.
These admitted facts are sufficient admission to the fact that the goods were never cleared for home consumption. There was no occasion for the appellant to actually pay the customs duty. Hence the amount in question cannot be called as the amount of duty to which section 27 applies - The duty of Rs.7,76,205/- which stand deposited since at the stage prior to scrutiny of the impugned Bill of Entry, hence remained as deposit made by the appellant for which the department has no authority to retain. Resultantly, same cannot be called as amount of duty.
The Commissioner (Appeals) has wrongly invoked section 27(1) of the Customs Act, 1962 while rejecting the refund claim as barred by time. Section 26A(1) is otherwise not applicable to the facts of the present case. The order is accordingly set aside - Appellant is held entitled for the said refund along with interest at the rate of 6% from the date of payment till the sanction arrived.
Appeal allowed.
-
2023 (1) TMI 198
Application for waiver of pre-deposit amount under Section 129E of the Customs Act, 1962 - effect of amendment made in Section 129E of the Customs Act - HELD THAT:- It would be seen from a bare perusal of section 129E of the Customs Act that after 6.8.2014 neither the Tribunal nor the Commissioner (Appeals) have the power to waive the requirement of pre-deposit, unlike the situation which existed prior to the amendment made in section 129E on 06.08.2014 when the Tribunal, if it was of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship, could dispense the said deposit on such conditions as it deemed fit to impose so as to safeguard the interest of the Revenue.
The Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Others [2011 (3) TMI 1478 - SUPREME COURT], examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of section 129E of the Customs Act. The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled, the appeal cannot be entertained. The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act.
It will also be appropriate to refer to a decision of the Delhi High Court in DISH TV INDIA LIMITED VERSUS UNION OF INDIA AND ORS. [2020 (8) TMI 183 - DELHI HIGH COURT], wherein the requirement of pre-deposit under section 129E of the Customs Act, came up for consideration. The High Court held that when the Statue itself provided wavier of pre-deposit to the extent of 90% or 92.5% of the duty amount and made it mandatory to deposit 7.5% or 10% of duty amount, the Courts cannot waive this requirement of deposit.
The appellant has not made the pre-deposit. In view of the aforesaid decisions, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit - the application filed for waiver of pre-deposit is rejected - Application dismissed.
-
2023 (1) TMI 197
Confiscation with option of redemption fine and penalty - Potassium Humate First Grade Powder - Potassium Humate Granular - appellant has assailed the impugned order on the ground that remanding the matter back by learned Commissioner (Appeals) to the original authority is not proper and justified inasmuch as all facts involved in the appeal were pleaded before him - HELD THAT:- There are no infirmity therein, in so far as it has remanded the matter to the original authority for a fresh fact finding on the issue involved in this appeal.
Needless to say that this being an old matter, the order dated 16.09.2022 passed by the Learned Commissioner (Appeals) should be implemented expeditiously, preferably within a period of 6 weeks from receipt of this order - appeal dismissed.
-
2023 (1) TMI 156
Refund of amount with interest from the date of levy till final payment at the rate of 15% per annum - rejection of refund claim of the petitioners in the remand proceedings on the ground that the claim of the petitioners is not maintainable as the petitioners did not challenge the assessment order under three Bills of Entry and in absence of challenge to the assessment orders by which Anti Dumping Duty was levied - HELD THAT:- It appears that the petitioners paid the Anti Dumping Duty as per the directions of the respondent authorities to clear the goods imported on 21.05.2015. Admittedly on that date, Notification No.15/2014 dated 11.4.2014 levying Anti Dumping Duty for a period of six months was not applicable. The contention raised on behalf of the respondents that Notification No.21/2015 dated 22.5.2015 is issued with effect from 11.04.2014 is not tenable in law in view of decision of the Apex Court in case of G.M. Exports [2015 (9) TMI 1162 - SUPREME COURT], wherein the Apex Court decided the question of law as to whether Anti Dumping Duty imposed with respect to imports made during the period between the expiry of the provisional Anti Dumping Duty and the imposition of the final Anti Dumping Duty is legal and valid or not and while deciding such a question of law.
As the respondent authority has not carried out the directions issued by the appellate authority and has tried to justify the order which is set aside by filing the affidavit in reply on merits in this proceeding, it would be a futile exercise to direct the respondent n.2 for passing the order as per the directions of the appellate authority - the assessment orders which are in form of bill of entries filed by the petitioners are not required to be modified or reassessed as the same are filed without inclusion of levy of anti dumping duty. The petitioners were compelled to pay such duty only after filling bill of entries so as to release the goods.
The respondent authorities are directed to refund amount of Rs.23,62,796.00 with interest at the rate of 6% per annum from the date of levy till final payment within eight weeks from the date of receipt of copy of this order - Petition allowed.
-
2023 (1) TMI 155
Valuation of imported goods - undervaluation - Urea - Ammonia - rejection of declared value - huge difference between the prices of the same goods imported in terms of UOTA and AOTA and international price of said goods - relationship between GOI, OMIFCO and the Appellants - related party or not - HELD THAT:- Sub-clauses (i) to (viii) of Rule 2 (2) of CVR, 2007 indicates that each of these sub-clause deals with different means of establishing deemed relationship between two persons. In terms of Rule 2(2)(i) persons can be deemed to be related only if they are officers or directors of one another’s business. In terms of Rule 2(2)(ii) persons can be deemed to be related only if they are legally recognized partner in business and in terms of rule 2(2)(iv) persons can be deemed to be related only if both of them are directly or indirectly controlled by the third person. In the present matter we find that department has failed to prove that as to how the Appellants on one hand and DOF, GOI on the other hand were officers or directors of one another’s businesses. Thus, the condition prescribed in sub-rule 2(2)(i) is not satisfied in the instant case.
The contention of the revenue also not correct in terms of Rule 2(2)(ii) on the ground that Appellants and OMIFCO are legally recognized partners in business, in as much as IFFCO/ KRIBHCO hold 50% of equity of OMIFCO and that there are two representatives of IFFCO/KRIBHCO on the Board of Directors of OMIFCO while another Director on the Board of OMIFCO represents the GOI - a company and shareholder cannot be termed as partner in the business carried on by the company. In partnership Act, 1932 “partnership’ has been defined as relationship between two persons who have agreed to share profit of business carried on by all or any of them acting for all. Partnership is formed through an agreement. In the present matter there is no partnership agreement between the Appellants and OMIFCO, so they cannot be treated as legally recognized partners only because the Appellants hold 50% share in OMIFCO.
It is a settled principle of law that the authority making the allegations has to prove with sufficient evidence. In the instant case, leaving alone the evidence, even reasons to entertain such a belief have not been properly brought forth or established - the declared prices cannot be reviewed without any evidence to the effect that the relation between the appellants and sellers has influenced the declared price or to the effect that there was a flow back of money from the importer to the related supplier. Therefore, we don’t find any substance to sustain the impugned orders.
The alleged relationship between the Appellants/ GOI and OMIFCO has not influenced the price of the imported goods. Urea- Off –Take agreement and Ammonia- off – Take agreement both are long term international contract finalized between two sovereign countries. From the MOUs and agreements it is also clear that rates were finalized for 15 years. Further it is evident that GOI had agreed to purchase 100% of rated production on the basis of fixed Long Term Pricing (LTP) for 15 years. These facts would evidence that there was a long term agreement as regards production and sale of goods by OMIFCO and purchase of the same by GOI/ Appellants.
Government has issued Notification No. 4/2015 dated 16.02.2015 exempting Urea when imported into India from OMIFCO under the UOTA agreement dated 29.05.2002 from the customs duty and additional customs duty leviable under sub-section 1 of Section 3 of the Customs Tariff Act subject to condition that the importer produce the certificate to effect that the declared value is in the terms of agreed price under UOTA. The important aspect is not the exemption but the acceptance by the Government about the correctness of the price under UOTA. The goods imported in this matter have followed the said LTP price only. In the present matter impugned orders and department had not established that the price of the goods imported by the Appellants was influenced by the relationship between OMIFCO.
Thus, it is clear that even if it is assumed that the buyer and seller are related in terms of Rule 2 (2) of valuation Rules, 2007 read with explanation II of said Rule, the price at which the goods were purchased from OMIFCO is the true transaction value and not influenced by their relationship. In the present matter Department has also not produced any evidence to show that the relationship between the parties has influenced the price. Therefore, the reasons for rejecting the transaction value is not in consonance with law and therefore liable to be set aside - Since the charges of misdeclaration & undervaluation are not sustainable in law, the differential duty demand along with interest and penalties imposed is liable to be set aside.
Appeal allowed.
-
2023 (1) TMI 115
Levy of duty on expiry of warehoused goods - Whether the tribunal was justified in holding that, even though the duty was confirmed by adjudication process, the same is payable only when goods are cleared for home consumption? - re-export of the goods without payment of duty - extension of warehousing period - board circular 03/2003-Cus dated 14/1/2003 - review of order.
Whether the Hon’ble Tribunal was justified in entertaining an appeal against the Chief Commissioner’s letter under Section 129A of the Act which mandates appeal against the Order of Commissioner /Commissioner (Appeals)? - HELD THAT:- In the instant case, the thrust of the arguments of the learned counsel appearing for the revenue is that there was no order adjudicating right of the parties which gave cause of action for the respondent herein to file an appeal before the CESTAT by invoking Section 129A of the Act. He has drawn the attention of the Court to the communication dated 07.03.2019 which was impugned before the Tribunal whereunder the Additional Commissioner of Customs with the approval of the Chief Commissioner has referred to the communications dated 14.02.2019 and 15.02.2019 addressed by the respondent herein requesting for reconsideration of the request for extension of the warehousing period and held such consideration would not arise as the matter had already attained finality - The Tribunal entertained the appeal under Section 129A(1) of the Act and impugned order was set aside and matter was restored to the Commissioner of Customs for deciding the issue afresh. Challenging the said decision, an appeal under Section 130A of the Customs Act was filed and it is in this background, High Court of Bombay has held that Section 110A of the Act is required to be viewed and the decision in the letter dated 25.09.2017 is in terms of Section 110A.
A taxing statute is to be strictly construed. In a taxing statute, one has to look merely what is clearly said in the provision. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing has to be read in, nothing is to be implied. One can look only fairly at the end use - substantial question of law will have to be answered in the negative that is in favour of the appellant revenue and against the respondent.
Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that even though the duty was confirmed by adjudication process, the same is payable only when goods are cleared for home consumption, considering the provisions of section 72 of the Customs Act, 1962? - HELD THAT:- In the instant case, undisputedly the goods remained in the warehouse beyond the period of extension granted and the prayer for further extension was not acceded to or in other words not granted and as such they did not qualify to be construed as goods warehoused in due compliance of Section 72 and in the facts obtained in the present case it would also emerge from the records that on account of such goods having continued in the warehouse beyond the period permitted it is deemed to have been removed improperly attracting the penal provision which resulted in show cause notice being issued and same being adjudicated which resulted in orders being passed and assailed by the respondent before the appellate authority and also before the Tribunal which had resulted in its dismissal is a clear mirror to the fact that duty demand had been confirmed and as such, Tribunal was not justified in arriving at a conclusion that though duty demand was confirmed by adjudicating process, same would become payable only when it is cleared for home consumption.
The Tribunal was not justified in holding that even though the duty was conferred by adjudication process, section 69 would be applicable and as such finding recorded by the Tribunal requires to be set aside. Hence, the substantial question of law answered in the negative namely in favour of Revenue and against the respondent.
Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that in terms of the board circular 03/2003-Cus dated 14/1/2003, the Respondent was entitled to re-export of the goods without payment of duty and consequently also entitled for extension of warehousing period? - Whether in the facts and circumstances of the case and law, the Tribunal was justified in entertaining and allowing the appeal which is against its own Order dated 25.11.2002 that had attained finality and thus reviewing their own order? - HELD THAT:- In the instant case that entire adjudicating process with regard to liability of respondent to pay duty - penalty had got crystallised and had attained finality and as such by taking aid of the circular dated 14.01.2003 and reading the same disjunctively, no undue benefit could have been extended to the respondent by impugned order. Hence, we are of the considered view that Tribunal committed a gross error in entertaining the prayer of the respondent.
A taxing statute is to be strictly construed. The Courts have stated greater latitude to the legislature is to be extended in formulating its tax policy either directly or by delegated legislation - The appellant has made out a strong case to accept the appeal. Hence, substantial questions of law are answered in the negative viz. in favour of the Revenue and against the respondent.
Application disposed off.
-
2023 (1) TMI 114
Maintainability of the PIL - Imposition of fee for availing benefit of Online Queue Management System upon the transporters/exporters exporting their goods to Bangladesh from various international border checkposts located at Indo-Bangladesh Border - validity of notifications dated 12th of July, 2022 and 29th of September, 2022 - HELD THAT:- The record reflects that the writ petitioner is a practicing advocate of this Court unconnected with the business of export. A perusal of the writ petition reveals that in this public interest petition, cause of the exporters has been taken up by projecting the problems which may be faced by them on account of imposition of fee by the impugned notification. The issue of quid pro quo has also been raised which is mainly concerning the exporters. Nothing prevents the exporters to approach the competent Court and raise their grievances. Learned Advocate General has also raised the plea that the impugned levy infact has facilitated such exporters. No exporter is before this Court even in the representative capacity to ascertain this fact.
A PIL on such an issue at the instance of an advocate practicing in this Court having no connection with the issue cannot be entertained especially when the affected persons are adequately well off to raise their personal cause in the appropriate judicial proceedings.
So far as reliance of learned counsel for the petitioner in the matters of AHMEDABAD URBAN DEVELOPMENT AUTHORITY VERSUS SHARAD KUMAR JAYANTIKUMAR PASAWALLA AND OTHERS [1992 (5) TMI 175 - SUPREME COURT], FEDERATION OF INDIAN MINERAL INDUSTRIES & ORS. VERSUS UNION OF INDIA & ANR. [2017 (10) TMI 1519 - SUPREME COURT], these judgments relate to the issue of a levy without authority of law which is an issue on merit which can be raised by the effected parties in appropriate maintainable proceedings. Even if the rule of locus is relaxed in a PIL, yet the issue which is involved in the present petition cannot be permitted to be raised at the instance of a person totally unconnected with the issue and unaffected by the notification.
The preliminary objection raised by the learned Advocate General is sustained and present public interest litigation is held to be not maintainable which is accordingly dismissed, however, making it clear that if any affected party approaches the competent Court, then the issue will be decided on its own merit without being influenced by any observation made in this order - Petition dismissed.
-
2023 (1) TMI 113
Validity of Notification bearing no.54/2022-Customs dated 19.10.2022 [i.e., Sl. No. 2(ii)] and the communication dated 21.11.2022 issued by respondent no.2 - import of equipment for the purpose of its solar power project - benefit of the concessional rate of customs duty available to the petitioner, denied on account of a purported retrospective amendment to the Project Import Regulations, 1986 - balance of convenience - HELD THAT:- The petitioner has set up a prima facie case. In case no interim protection is granted, the entire process of import is likely to get derailed. Although letters of credit have to be established in this particular case between March and April 2023, and in some other connected matters relating to group companies, have to be established in February-March 2023, the uncertainty as to whether or not the petitioner would be entitled to a concessional rate of duty would perhaps delay the execution of the project at hand.
The balance of convenience, thus, is in favour of the petitioner because in case the petitioner was to fail in the instant writ petition, it would have to pay duty at the tariff rate and not at the concessional rate. Therefore, at the end of the day, this aspect of the matter has only a financial impact either way, qua which, a suitable direction can be issued.
We are inclined to direct that no precipitate action be taken against the petitioner at the stage of import. This would, however, not create any equity in favour of the petitioner - List the matter on 26.04.2023.
-
2023 (1) TMI 112
Valuation of export goods for drawback purpose - rejection of declared value - FOB and duty drawback was re-determined on the basis of lower mean value obtained from the market enquiry - levy of penalty u/s 114 of the Customs Act - HELD THAT:- It cannot be doubted that under rule 12 of the 2007 Valuation Rules, the adjudicating authority has to first give cogent reasons to reject the declared value and thereafter re-determine it - In the instant case, the adjudicating authority noted only two questions to be answered, namely, re-determination of value of the export goods for drawback purpose and whether the exporter was liable to penalty under section 114 of the Customs Act. The adjudicating authority, after observing that the export goods were over-valued by the exporter with an intent to avail higher drawback, observed that the declared value of the goods attempted to be exported should, therefore, should be rejected under rule 8 of the 2007 Valuation Rules.
The adjudicating authority had to first examine the correctness of the declared value of the export goods and after recording a finding that they were not correctly valued re-determine the value, but this was not done. This mistake has been noticed by the Commissioner (Appeals) in the impugned order.
There is, therefore, no infirmity in the impugned order which may call for any interference in this appeal - appeal dismissed.
|
