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Showing 81 to 84 of 84 Records
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2023 (1) TMI 111
Rejection of refund claim - failure to show that the burden of duty has not been passed on to the respective buyers - principles of unjust enrichment - HELD THAT:- The amount of Rs.1,08,54,152/- was the amount deposited by the appellant pursuant to the confirmation of differential duty demand. The moment, the said demand was set aside by this Tribunal, the amount deposit with the department was not the amount of duty but was the revenue deposit to which the assessee/respondent was entitled for the refund. There is no dispute to this fact even by the original adjudicating authority. Major amount of the refund claim i.e. Rs.97,58,928/- out of Rs.1,08,54,152/- was sanctioned by the original adjudicating authority itself. The rejection for the balance amount has been re-adjudicated by Commissioner (Appeals) vide the order under challenge who while appreciating the C.A. Certificate and audited balance sheets produced by the assessee/respondent has concluded that there is no evidence to show that the burden of differential duty has been passed by the respondent to the prospective buyers.
The Mumbai Bench of this Tribunal in another case of COMMISSIONER OF C. EX., PUNE-I VERSUS DGP HONODAY INDUSTRIES LTD. [2014 (5) TMI 1096 - CESTAT MUMBAI] has also held that where the assessee/respondent through the certificate issued by Chartered Accountant and the Balance Sheet have shown that the amount in question is receivable from the department. The bar of unjust enrichment cannot be applied upon such assessee - there are no reason to differ with these findings, specifically for the reason that there is no documentary evidence on record to falsify the Chartered Accountant Certificate. The observations of review order are therefore opined to be the result of mere presumption and surmises.
The department’s appeal stands dismissed.
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2023 (1) TMI 61
Adjudication of SCN after a long gap - time limitation - gross delay and resultant prejudice to the Petitioner - when the Petition has come up for hearing in 2022, whether the Petitioner can be subjected to further proceedings in furtherance of the show cause notice dated 7 July 1997 that is 25 years (including the period of interim order)?
HELD THAT:- Assertion of the Petitioner that the Petitioner was not informed that the file of the Petitioner was transferred to the call book has not been controverted. The position continued for 18 years. The fact situation where show cause notice has been transferred to the Call book and the noticee is not informed about the pendency for an unreasonable period of time has been considered in various decisions. It has been held that not only it is necessary that the show cause notice should be taken to its logical end at the earliest as a matter of administrative discipline, but keeping the show cause in Call book without informing the notice for a long period of time causes severe prejudice, as the notice may act on the premise that the proceedings have been dropped and it is also likely that the record and proceedings are not available.
In the present case the show cause notice was kept dormant and the notice for personal appearance was issued 18 years ago. There is no dispute and cannot be any dispute regarding the above position of law laid down in these decisions. The petition was admitted and Rule was issued, and thus, the position has continued for 25 years.
Notice dated 8 April 2015 and 7 July 2015 calling the petitioner for personal hearing in consequence of show cause notice dated 7 July 1997 are quashed and set aside. The Respondents are restrained from enforcing the impugned show cause notice dated 7 July 1997 - petition allowed.
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2023 (1) TMI 60
Revocation of Customs Broker Licence - forfeiture of security deposit - imposition of penalty - non-ascertainment of the premises from which the importer operated and unwonted reliance placed on an intermediary who allegedly misused the Import Export Code (IEC) of another entity for import of branded goods - HELD THAT:- The appellant had not verified the premises of the importer in person. Undoubtedly, there is no prescription, in procedure or instruction, that the premises of the client should be visited in person or verified appropriately. Norms for familiarity with the background of client are mandated and it is the contention of the Learned Counsel that these were conformed to. It is also seen that the enquiry proceedings restricted itself to the technical aspect of the allegation without endeavouring to ascertain if acts of omission or commission as ‘custom broker’ had, in fact, contributed to the act of smuggling. The appellant has, at the same time, been unable to evince due to discharge of obligation.
The licensing authority has revoked the licence of the appellant herein besides forfeiting the security deposit and imposing further penalty. Considering the nature of lapse on the part of the ‘customs broker’, the ends of justice would be met by setting aside the revocation while allowing the forfeiture of security deposit and imposition of penalty to sustain.
Appeal disposed off.
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2023 (1) TMI 59
Valuation of imported goods - Hair Bow Raw Accessories Articles - mis-declaration and mis-classification of goods - rejection of declared assessable value of the goods - reassessment of imported goods - redetermination of value on the basis of the value of contemporaneous imports of similar goods and the NIDB data - HELD THAT:- Section 14 of the Customs Act provides that the transaction value of goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer and the seller of the goods are not related and the price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules made in this behalf.
In the present case, the proper officer doubted the truth or accuracy of the value declared by the importer for the reason that contemporaneous data had a significantly higher value. It was open to the importer to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared and seek a reasonable opportunity of being heard, but the importer did not do so. On the other hand, the importer specially stated in the statement recorded under section 108 of the Customs Act, after being shown the contemporaneous value, that it he agreed that the value of the goods should be enhanced. The importer also specifically stated that it did not want to avail of the right conferred under section 124 of the Customs Act and, therefore, did not want any show cause notice to be issued to or personal hearing to be provided.
The Commissioner (Appeals) placed emphasis on the classification of the goods shown as Serial No. 4 in the Bill of Entry and observed that the evidence gathered by the revenue to prove that the goods would fall under a different classification has a vital role. The Commissioner completely loss sight of the fact that Deepak Garg, who had appeared on the behalf of the importer, had specifically stated that the importer accepted the valuation (based on the classification proposed by the department) and also stated that he would pay the differential duty and would not require any show cause notice to be issued or personal hearing to be granted. Despite the categorical statement made by Deepak Garg in the statement recorded under section 108 of the Customs Act, the Commissioner (Appeals) still observed that the department did not adduce any clear and cogent evidence that any additional consideration, over and above the transaction value, had flown - the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. The order dated 08.05.2018 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside.
Appeal allowed - decided in favor of Revenue.
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