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Customs - Case Laws
Showing 41 to 60 of 95 Records
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2023 (2) TMI 675 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of import goods - Luprosil Salt Calcium - intent to import the said goods through the entry points of seaports/airports at Nhava-Sheva, Mumbai (Air Cargo Complex), Chennai (preventive Commissionerate) and Kolkata - to be classified under Heading 23.09 of the Customs Tariff as premix for animal feed or not - Heading 2915, which is adopted by the global desk of the applicant, is the competing classification entry.
HELD THAT:- In the present case, the starting material, in the product brochure, is propionic acid. Luprosil salt based on propionic acid does not appear to have any impurity. The 2% unexplained component in Luprosil salt could have resulted from the manufacturing process, having no stated specific utility. Therefore, the product can be classifiable under Chapter 29 and specifically under Heading 2915 - Heading 2309 is in the nature of a residuary heading as Note I to Chapter 23 says that the Heading 2309 includes products of a kind not elsewhere specified or included, whereas sub-heading 2915 50 00 is a specific heading for propionic acid, its salts and esters. As per the Rule 3(a) of General Interpretation Rules, a specific heading shall prevail over the general heading.
The Hon’ble High Court of Allahabad in the case of COMMISSIONER OF CUSTOMS CGO. VERSUS SONAM INTERNATIONAL SHOP NO. 9 [2010 (10) TMI 120 - ALLAHABAD HIGH COURT], held that vitamins of high concentration used for manufacture of animal feed will be classified under 2936. Admittedly, the product in this case has a very high concentration to the tune of 98%.
Even though, the applicant in their application has stated that the product which they propose to import is going to be used in the manufacture of animal feed, as discussed in the preceding paragraphs, propionic acid and its salts are not excluded from the ambit of the Chapter 29 - On the contrary, there is a very specific tariff entry for this very product. Therefore, when confronted with a specific classification entry vis-à-vis a residuary classification entry, one must favour the specific entry. In fact, as per the mandate of Rule 3A of the General Rules of Interpretation of Customs Tariff, the specific heading prevails over the general heading.
Thus, the Luprosil salt is classifiable under Heading 2915 and more specifically, under sub-heading 2915 50 00 of the First Schedule to the Customs Tariff Act, 1975.
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2023 (2) TMI 674 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of import goods - omega-6 fatty acid product, namely Lutalin - to be classified under heading 2302 of CETA, 1985 or heading 2309 of the Customs Tariff Act, 1975? - HELD THAT:- The product is sold as animal feed for the nutritional needs of the pigs and cows. A certificate issued by the German Government’s certifying agency certifies that these products are feed supplements and are of animal grade. Further, the Indian Council of Agricultural Research (ICAR), as per the letter issued by the Department of Animal Husbandry, Dairying and Fisheries, dated 18-6-2012, CLA 10% coated with bypass fat can be used as a feed additive for animal feeding. Therefore, on the basis of trade parlance and the opinion of experts, it appears that the said products are used for animal feed. These products are not covered under the exclusion list provided in the HSN Explanatory Notes.
The Lutalin is classifiable under Heading 2309 and more specifically, under sub-heading 2309 90 90 of the First Schedule to the Customs Tariff Act, 1975.
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2023 (2) TMI 673 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, NEW DELHI
Classification of import goods - preparation of Scented & Flavoured and/or Sweetened Betel Nut imported from Vietnam, Thailand or any other country having the description as given in the body of application - whether the addition of flavor or menthol and/or sweetening agent will turn the betel nut into a preparation of betel nut? - to be classified under 0802 80 of the First Schedule to the Customs Tariff Act or not?
HELD THAT:- In the case of COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, GOA VERSUS PHIL CORPORATION LTD. [2008 (2) TMI 3 - SUPREME COURT], the issue was whether roasted/salted ground nut and other nuts are classifiable under Tariff Heading 08 or under Heading 20. After discussing the issue in great detail, the Hon’ble Apex Court held that the courts have to make serious endeavour to ascertain spirits and intention of the Parliament in enacting these provisions and once the legislative intention is properly gathered, then the bounden duty and obligation of the courts is to decide the cases in consonance with the legislative intention of the Parliament.
In the instant case, the intention of the Parliament is obvious when they inserted Supplementary Note 2 in the Customs Tariff in the year 2008. The Authority has to ascertain whether the product intended to be imported is covered by the said Supplementary Note of Chapter 21.
The basic raw material for “Scented & Flavoured and/or Sweetened Betel Nut” is raw betel nut, which is classifiable under Chapter 8, more specifically sub-heading 0802 80. Chapter 8 covers only edible nuts; inedible nuts and fruits being excluded by virtue of Chapter Note 1; and that betel nut/supari are masticatory. However, this item has been subjected to certain processes and added with certain materials, resulting in the question being posed whether the said processes and mixing/addition of certain materials are substantive enough to lead to the said goods being considered as “preparation of betel nut”, that would make them classifiable under Chapter 21 by virtue of Supplementary Note 2 of Chapter 21. At this juncture, it is important to mention that the goods covered by the present application are prima facie “Scented & Flavoured and/or Sweetened Betel Nut” and not “preparation of Scented & Flavoured and/or Sweetened Betel Nut”, as submitted by the applicant; and the question posed for ruling is whether the said “Scented & Flavoured and/or Sweetened Betel Nut” are covered by the scope of expression “preparation containing betel nuts ..” in Supplementary Note 2 to Chapter 21.
The decisions in the case of Scented & Flavoured and/or Sweetened supari, M/s. Crane Betel Nut Powder Works [2007 (3) TMI 6 - SUPREME COURT] and M/s. Azam Laminators Pvt. Ltd. [2019 (3) TMI 782 - CESTAT CHENNAI] clearly imply that addition of flavouring agents do not change the character of the goods, meaning in the present case betel nut would continue to remain betel nut and not become preparation of betel nut.
Thus, ‘Scented & Flavoured and/or Sweetened Betel Nut’ merit classification under Chapter 8, more specifically 0802 80 of the First Schedule to the Customs Tariff Act.
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2023 (2) TMI 624 - GUJARAT HIGH COURT
Non-Release of goods - Classification of imported goods - GTL Light Paraffin - to be classified under Tariff Heading 27101990 or not - whether is GTL Light Paraffin or it is Light Diesel Oil? - correctness of the expert two reports rendered by evenly placed Test Laboratories of Custom House Laboratory,Kandla and CECL, Vadodara - Seeking to clear the subject imported goods forthwith on payment of applicable duty.
HELD THAT:- It is clear from the reports, which have been produced from the Central Revenue Control Laboratory, PUSA, New Delhi that all the samples sent to ascertain eleven parameters by the Directorate of Revenue Intelligence are said to be the GTL Light Paraffin with a clear opinion that it is other than the Light Diesel Oil and other than Automotive Diesel Fuel or Diesel Fuel. The inquiry of the DRI and the serious concern on the part of the DRI of use of the imported material as a Automotive Diesel Fuel or Diesel Fuel or Light Diesel Oil had resulted into the seizure of the goods and also continuing with this inquiry.
The import has been made in the month of September, 2022. There were two test reports, one from CRCL, Kandla is in favour of the petitioner, however, the Kandla Laboratory having expressed its limitation on opining on all eleven parameters, the matter had been referred to the CECL, Vadodara which opined other than what the CRCL, Kandla had and hence, the directions were issued by this Court for the report to be obtained from the Central Revenue Control Laboratory, New Delhi, it is being a appellate laboratory in all respect, its opinion shall need to weigh with the Court. We also notice that in case of M/s. Gujarat Ambuja Exports, whose cargo is said to have been commingled, release has already been given. The serious dispute had been raised with regard to the storage.
Prima facie, the version put forth by the petitioner of commingling of the cargo on the strength of this material shall need to be accepted. More than that, the reports given by the Central Revenue Laboratory, New Delhi without semblance of doubt opines on the sample being the GTL Light Paraffin and not the Diesel Oil nor the Automotive Diesel Oil nor Light Diesel Oil. That being the case, the clearance of the balance quantity of 1360 MTs and as per the directions issued by this Court in the case of M/s.Alka Chemical Private Limited where also the issue was whether the sample was Light Diesel Oil or not.
It is deemed appropriate to follow the same by permitting the release of the seized quantity of goods 1360 MTs GTL Light Paraffin stored in Tank Nos.57, 58 and 117 and 1366.83 MTs GTL Light Paraffin stored in Tank Nos.57, 58 with respondent No.4. This balance quantity of goods being 1360 MTs and 1366.83 MTs of GTL Light Paraffin are released on the writ applicant furnishing an appropriate undertaking to the Commissioner, Customs to the effect that the petitioner will cooperate with the inquiry. The inquiry shall proceed further as the importer has executed bond while getting the goods released.
The request on the part of the respondent to insist on the bank guarantee is not to be acceded to considering the case of M/s. Gujarat Ambuja, in which, even no action has been initiated. The Court has already directed the petitioner to give an undertaking (before this Court) as well as furnish bond (before the Commissioner) which they are ready to furnish where its total asset can be declared by the petitioner.
Petition disposed off.
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2023 (2) TMI 623 - CESTAT NEW DELHI
Sanctioned amount of refund has been rightly credited to the Consumer Welfare Fund or not - Amount was deposited under protest - principles of unjust enrichment - HELD THAT:- The order of court below is erroneous and in the teeth of the ruling of Hon’ble Supreme Court in the case of U.O.I. VERSUS SUVIDHE LTD. [1996 (8) TMI 521 - SC ORDER]. Admittedly, the amount under refund claim were deposited partly during investigation and partly during pendency of the 1st appeal. Further, it is evident that the Appellant did not agree with revenue and have contested the SCN as well as the adjudication order. The amount deposited are found to be deposited under protest, ipso facto. Further, these amounts are also in the nature of pre-deposit - the burden of unjust enrichment is not attracted.
The Adjudicating Authority is directed to grant the refund with interest @ 12% per annum from the date of deposit till the date of refund - Appeal allowed.
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2023 (2) TMI 622 - CESTAT NEW DELHI
Levy of anti-dumping duty on the imported goods - import of Aluminium Alloy coils - N/N. 23/2017-Cus (ADD) dated 16.5.2017 - Applicability of ruling of Bombay High Court in favor of importer - HELD THAT:- The disputed goods were described as Aluminium alloy foils while the goods under consideration by the Bombay High Court in MAHLE ANAND THERMAL SYSTEMS PRIVATE LIMITED VERSUS THE UNION OF INDIA, THROUGH JOINT SECRETARY, MINISTRY OF COMMERCE, DEPARTMENT OF COMMERCE & ORS. [2022 (8) TMI 844 - BOMBAY HIGH COURT] were Silico-Manganese-Aluminium alloy foils. The goods imported through Gandhinagar were described as Aluminium alloy foil.
Learned authorised representative submitted that the nature of goods has to be seen and the disputed goods are different from the goods under consideration of the Bombay High Court and also the goods imported through Gandhinagar - This submission of the learned authorised representative for the Revenue cannot be accepted. Firstly, the composition of the disputed goods is not in question that they were an alloy of aluminium and so it cannot be presumed that the alloy had a different composition than the alloy under consideration before the Bombay High Court. Secondly, clause (vii) nowhere specifies that it excludes alloys of particular composition. Neither does the letter of the DG stipulate that the exclusion under clause (vii) was available only to a particular type of alloys.
It is evident that it was not a relief provided to the petitioner but it is a ruling regarding interpretation of the notification. Therefore, its benefit will equally apply to anybody else.
The impugned order cannot be sustained - Appeal allowed.
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2023 (2) TMI 621 - CESTAT CHANDIGARH
Interest on Refund of excess paid CVD - interest was denied to the respondents/assessees on the ground that the matter was sub-judiced before the CESTAT and the refund claims were disposed of within the period of three months of the said order - Commissioner (Appeals) allowed claim of interest - HELD THAT:- As per the law laid down by the Hon’ble Apex Court in the case of M/s Ranbaxy Laboratories Ltd [2011 (10) TMI 16 - SUPREME COURT] wherein Hon’ble Apex Court has held that the Revenue is liable to pay interest under Section 11BB of the Act and the period commences from the date of expiry of three months from the date of receipt of the application for refund under Section 11B(1) of the Act and not on the expiry of said period from the date on which the order of refund is made.s per the law laid down by the Hon’ble Apex Court in the case of M/s Ranbaxy Laboratories Ltd (supra) wherein Hon’ble Apex Court has held that the Revenue is liable to pay interest under Section 11BB of the Act and the period commences from the date of expiry of three months from the date of receipt of the application for refund under Section 11B(1) of the Act and not on the expiry of said period from the date on which the order of refund is made.
Further, It is found that the ld. Commissioner (Appeals) in the impugned order came to the conclusion that the respondents/assessees are entitled to interest as per Section 27(A) of the Customs Act, 1962 at the applicable rate of interest as prescribed vide notification issued under Section 27(A) from time to time after expiry of three months from the date of receipt of refund application till the date on which the refund has actually been paid.
There is no infirmity in the impugned order and there is no need of any interference in the impugned order - Appeal dismissed.
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2023 (2) TMI 620 - CESTAT KOLKATA
Smuggling - Gold - recovery of contraband - cross-examination of statements - burden to prove - Appellants denied recovery of any gold from their possession and demanded cross-examination of the panch witnesses - failure to comply with the provision of Section 155(2) of Customs Act, 1962 - entire case of Revenue is based upon the allegation of recovery of gold from Shri Amit Ghosh and Shri Ajay Kumar Gond and the statements all dated 07.03.2017 of the first three Appellants - levy of penalty u/s 112 (a) and (b) of Customs Act, 1962.
HELD THAT:- The burden is on Revenue to establish the voluntary nature of the statements all dated 07.03.2017 recorded from the first three Appellants in the present case. The Revenue has failed to adduce any evidence to that effect. On the contrary, the facts and circumstance, including the fact of prolonged detention of the Appellants at the office of DRI prior to their first production before the Ld. Magistrate and non-recording of any subsequent statement of the Appellants in spite of having ample opportunities, establishes the non-voluntary nature of said initial statements all dated 07.03.2017 of the said Appellants. Hence, the said initial statements cannot be basis of any penal consequence in the present case.
Though Section 138B of Customs Act, 1962 provides for examination of the makers of any statement, the Adjudicating authority did not exercise such power with respect to the first three Appellants herein before taking cognizance of such initial statements which were retracted before the Ld. Magistrate. Moreover, from the impugned Order-in-Original it would be evident that in course of adjudication, the fact of retraction was also duly brought before the Adjudicating authority by the Ld. Advocate appearing for the Appellants, but the Ld. Adjudicating authority simply ignored the same while arriving at his findings with respect to the statements dated 07.03.2017 of the Appellants and proceeded on the basis of such statements as being voluntary in nature and has mis-directed himself by arriving at a finding at para 4.17(xii) of Order-in-Original that the retraction was in reply to Show Cause Notice and hence, such finding is not maintainable in law.
As such, the position of law is no more res integra that the retracted statements cannot be the sole basis of penalty under Section 112 of Customs Act, 1962. In the present case, if the said initial statements all dated 07.03.2017 of the first three Appellants, which were retracted on 14.03.2017 before the Ld. Magistrate, are taken out of record, there would be nothing to implicate the Appellants herein as liable for any penal action under Section 112 of the Act. In such circumstance, imposition of penalties upon the Appellants on the basis of such retracted statements, all dated 07.03.2017, is liable to be quashed.
Opportunity of cross examination of the panch witnesses - HELD THAT:- When the Appellants denies the allegation of recovery of gold from their possession, it was incumbent upon the Revenue to produce the Panch witnesses for cross-examination to unearth the facts before the Adjudicating authority. In other words, it was for the Revenue to establish the fact of recovery of contraband from the possession of the two of the Appellants herein upon cogent evidence, which they have failed to do more particularly when the place of interception and search-seizure was admittedly different in the present case. Having not done so, the Revenue cannot derive any adverse conclusion against the Appellants on the basis of the alleged recovery.
In the present case, it is the claim of the Revenue that the contrabands were recovered from the two of the Appellants and the initial statements of first three Appellants were voluntary in nature. In such circumstance, the burden of proof in this regard was on the Revenue, which they failed to discharge on both account. The argument that since ‘gold’ is notified under Section 123 of Customs Act, 1962, the burden of proof will be on the noticee/ Appellants, cannot be appreciated since Section 123 ibid provides for ‘burden of proof’ with respect to legal procurement and possession of ‘gold’ by it’s owner and it nowhere provides that the ‘burden of proof’ w.r.t. non-voluntary nature of statement and/or non-recovery of contraband from the possession, is on the noticee/ appellants.
Levy of Penalty u/s 112(a) and (b) - HELD THAT:- The imposition of penalty upon the fourth Appellant under Section 112(a) & (b) of the Customs Act, 1962 on the basis of retracted initial statements all dated 07.03.2017 of the first three Appellants herein, is also perverse in nature inasmuch as apart from such retracted statements of the co-accused, there is nothing on-record to implicate the fourth accused in the alleged act of smuggling of the seized gold. Hence, in absence of any independent corroborative evidence against the fourth Appellant, penalty upon him is not imposable. Further, single penalty under both the clauses (a) & (b) of Section 112 of Customs Act, 1962, is erroneous in law in as much as both such clauses operates at separate domain altogether - the imposition of single penalty upon the fourth Appellant i.e. Akash Jagdish Issrani by the Adjudicating authority under both clauses (a) and (b) supports the contention on behalf of the said Appellant that the Adjudicating authority was not sure about the alleged role of the said Appellant in the alleged act in want of specific allegations against him in the Show Cause Notice, but mechanically imposed the penalty on him. Such imposition of penalty is liable to be quashed.
Appeal allowed.
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2023 (2) TMI 619 - CESTAT NEW DELHI
Rejection of Classification of imported goods - Portable Solar Home Electric Light – HANS 300 and HANS 150 - classification of imported goods under Customs Tariff Heading, CTH No. 85131010 and IGST S. No. 234 of Schedule I of Notification No. 1/2017-IGST (Rate) dated 28.06.2017 was rejected and the imported goods were held to be classifiable under CTH 85076000 and covered under S. No. 139 of IGST Schedule IV of Notification No. 1/2017-IGST (Rate) dated 28.06.2017 - case of the Revenue is that the imported goods should be classified as per their main function which is that of an accumulator - recovery alongwith interest and penalty - HELD THAT:- The imported goods in question are designed for the purpose of performing several complementary or alternative functions viz. (a) generation of electricity solar energy; (b) storing the electricity so generated or collected through four other different means; and (c) supplying electricity to the in-built LEDs as well as for charging mobiles and running electrical devices.
Principal Function - HELD THAT:- Evidently, their heart is the storage which can be done by five different means, one of which is charging using in-built solar panel. The power so generated can be used for several purposes and not only for using the LED lamps built into it the goods. Thus, they have multiple inputs and multiple output options. The imported goods can be used regardless of which input source is used or what the output purposes are but they cannot be used without the accumulator. Therefore, in our considered view, they deserve to be classified as accumulators under CTH 8507.
Whether the classification of the imported goods under IGST. S. No. 234 of Schedule I of the IGST Notification 1/2017 covers solar power based devices is correct? - HELD THAT:- The notification does not place any restriction of the Customs Tariff Heading and it applies so long as such devices fall under Chapter 84 or 85 of the Customs Tariff. Evidently, the goods falling under 8507 would also be entitled to classification under Schedule I at S. No. 234 if they are solar power based. There can be no manner of doubt that they are solar power based. The reason this classification was not accepted by the adjudicating authority is that they are not SOLELY based on solar power and other power can also be used charged the devices - the adjudicating authority has erred in coming to this conclusion because the Notification does not say “devices based solely on solar power” but says “solar based devices”. It does not in any way forbid the alternative sources of power to support them. Simply because there are four other alternative means through which they can be charged, it does not mean that the imported goods are not solar power based devices. Therefore, the imported goods merit classification under 234 of Schedule I of Notification 1/2017. Consequently, the demand for IGST differential duty along with interest cannot be sustained.
The essential nature of the imported goods to be that of accumulators, the appellant’s contention that they should be classified under CTH 85013120 as DC generators cannot be accepted and consequently no refund of customs duty is admissible to the appellant.
As the demand for differential IGST itself is not sustainable, the question of interest or imposition of penalty under Section 112 or 117 also do not arise - the impugned order confirming the demand for differential IGST along with interest under Section 112 & 117 on the appellant is set aside.
Appeal disposed off.
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2023 (2) TMI 618 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, NEW DELHI
Exemption from duty of customs - import of Lithium Ion Cell (Captive Consumption - For LED) - for use in manufacture of LED Emergency Bulb/ Light - Benefit under Sr. No. 471 of Exemption Notification No. 50/2017-Cus. dated 30.06.2017, as amended by Notification No. 02/2021-Cus. dated 01.02.2021 - whether the said provisions cover the authority to revisit the scope of the exemption notification already determined by the jurisdictional port officer?
HELD THAT:- This Authority is not competent to examine the scope of the said rule 7, and merely notes that at the present juncture, the concerned jurisdictional port officer has allowed availment of exemption notification and the investigation initiated by the Principal Commissioner of Customs (Preventive), New Delhi has not resulted in issue of any show cause notice atleast as yet.
An application may be considered “pending” before any officer of customs only if it is pending before an officer in formal manner before an officer who is competent to answer the said question in terms of specific powers vested with the officer under the Customs Act 1962. An illustrative list of such situations would include cases wherein a Show Cause Notice has been issued; bill of entry has been provisionally assessed under Section 18 of the Act ibid; the matter is pending before the Special Valuation Branch of the Customs Commissioner for the purpose of valuation of the goods in question; or the proper officer has held the pre-notice consultation with the applicant in terms of the proviso of subsection (a) of Section 28(1) of the Customs Act, 1962. Therefore, in cases, such as the extant case, wherein an officer of customs is engaged in an investigation that may result in formulation of a question that would be posed before another competent officer would not qualify as “pending before an officer”.
The contention of the Principal Commissioner of Customs (Preventive), New Delhi is rejected.
Eligibility for taking benefit of Customs Notification No. 50/2017-Cus. dated 30.06.2017 - HELD THAT:- Emergency LED Light is fundamentally a type of LED light, albeit a value-added one. Further, Emergency LED light cannot be excluded from scope of entry referring to LED Light for want of anything specific anywhere in the law providing that LED Emergency Light is distinct from LED light. Further, Li-Ion cells are integral part of LED Emergency Light. when specifically designed for use therein.
The applicant is eligible for taking benefit of S. No. 471 of Customs Notification No. 50/2017-Cus. dated 30.06.2017., as amended on Li-Ion cells to be used in the manufacture of LED emergency light, subject compliance with the provisions of IGCR Rules, 2017.
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2023 (2) TMI 552 - CALCUTTA HIGH COURT
Smuggling - Gold Biscuits - yellow metals seized allegedly from the possession of the accused person were gold or not - burden to prove - Section 123 of the Customs Act - HELD THAT:- Section 123 of Customs Act, 1962 upon plain reading of it suggests that this provision is applicable in cases where seizure is made under the Customs Act, 1962. Since, admittedly no seizure was made following the provision of Section 102, in the humble opinion there is no scope to press Section 123 of the Customs Act, 1962 into service to draw such presumption. Learned Trial Court failed to consider this aspect of the matter - When the later general law is repugnancy or inconsistency, the later special law will prevail over the earlier general law. It has become settled principle of law that special law will prevail over and above the general legislation. The P.F.A. Act has extended certain rights to the accused person under Sections 11 and 13 of the P.F.A. Act. Launching of a prosecution under Sections 272 and 273 of the I.P.C., without following the procedure prescribed under this Special Act would amount to depriving an accused of his statutory right.
The examination under Section 313 of the Code of Criminal Procedure does have the nexus with the defence, which the accused may decide to bring if necessary. It is the mandatory obligation of the Court to hold a fair trial. Lack of opportunity to explain his position vis-à-vis incriminating evidence, to be used against him is definitely prejudicial to the interest of accused person. Therefore, without giving an opportunity to the accused person to explain the incriminating evidence, Court could not have used the same against the accused person to record an order of conviction.
The prosecution case cannot be said to have been proved beyond reasonable doubt. The impugned judgement passed by learned Appellate Court affirming the judgement passed by learned Chief Judicial Magistrate, Malda against the accused person suffers from infirmity and should be set aside - Appeal allowed.
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2023 (2) TMI 551 - BOMBAY HIGH COURT
Authorized courier - Refusal to renew the registration of the Petitioner - Courier Imports and Exports (Clearance) Regulations 1998 - while refusing to issue the license or renew the license, no opportunity of any hearing was given to the Petitioner - violation of principles of natural justice - HELD THAT:- The observations of the Division Bench in the case of A.S. Vasan and sons [2009 (4) TMI 100 - BOMBAY HIGH COURT] are pertinent. In this case a courier who was aggrieved by non-renewal under the Regulations of 2010 had approached this court. Allowing the challenge on the ground of lack of hearing, the Division Bench observed that there can be no dispute that the order rejecting application has visited the petitioner with civil consequences. In a case where an order whether it be administrative or quasi judicial, visits the party with civil consequences in absence of any statutory exclusion under the Regulations, there would be a right to a hearing, and the right to hearing would include right to a person being heard in person if such a request is made. The Division Bench accordingly set aside the order of non-renewal on that count.
From the scheme of the Regulation 2010 it is clear that the Regulations themselves contemplate an application for renewal. Grant of renewal thereof is conditional upon factual position specified in the Regulations. Not granting registration at the first instance would stand on a different footing than a case where registration is renewed from time to time over a long period and then not renewed.
The Petitioner was an authorized courier for almost 25 years and the registration was renewed from time to time. Petitioner states that it has invested substantial amounts towards the business. Therefore, the non-renewal clearly had civil consequences and severe implications for the Petitioner. In these circumstances the petitioner was entitled to an opportunity to explain before taking the impugned decision. The decision taken without giving opportunity to explain will thus have to be set aside. Non-renewal therefore had serious implications for the Petitioner.
The view taken by the Division Bench in the case of A.S.Vasan and sons should also be extended to the Petitioner. In the facts and circumstances of the case the opportunity to the Petitioner be given in form of hearing - It is not necessary to go into issue of maintainability of the appeal and the same is kept open - Petition allowed.
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2023 (2) TMI 550 - CESTAT, NEW DELHI
Valuation of imported goods - rejection of declared value, and redetermination of the same - declared price of the goods, below the Minimum Import Price - violation of Policy Condition No. 1 of the ITC(HS) Import Policy which prescribed that the specified defective items can be imported free, except those for which the CIF value of imports was below the value specified for the said items - confiscation - redemption fine - penalty - HELD THAT:- In the present case, the proper officer doubted the value of the goods declared by the appellant since it was below the Minimum Import Price and sent a letter dated 09.09.2020 to the appellant. The appellant, in response to the aforesaid communication, categorically stated that the issuance of show cause notice may be waived and personal hearing may also not be given. The appellant also stated that it was the first mistake and it was not aware of the policy restriction. The appellant also categorically stated that it was ready to pay the duty amount as per the assessment value of the goods, which the appellant believed was usually on the higher side than the minimum value.
Section 124 of the Customs Act does provide for issuance of a show cause notice and personal hearing but in view of the specific request made by the appellant, show cause notice was not issued and personal hearing was also not granted. The assessing officer, after rejecting the value declared by the appellant in the Bills of Entry, reassessed the value of goods. The appellant paid the enhanced value without raising any objection or protest at the time of clearing of the goods. Thereafter, an appeal was filed to assail the order passed by the Additional Commissioner.
It is correct that the Assistant Commissioner could not have determined the assessable value in an arbitrary manner even if the importer had submitted in writing that it would pay the duty amount as per the assessment, but it is seen from the order passed by the Assistant Commissioner that contemporaneous datas were examined. During the course of hearing of the appeal, learned counsel for the appellant also placed certain Bills of Entry relating to identical goods submitted by the appellant. It is seen from one such Bill of Entry No. 7462561 dated 16.04.2020, that the appellant accepted the transaction value of misprint sheets as Euro 495, which would come to 600 Dollars, whereas in the present case the value has been fixed at only Euro 470.5 per MTS. It cannot, therefore, be urged that the assessable value was determined by the Assistant Commissioner in an arbitrary manner on a higher side.
The Additional Commissioner has noted that as the importer had tried to import the restricted goods in violation of the provisions of the ITC(HS) Import Policy and the value had not been correctly declared, the goods were liable to confiscation. There is, therefore, no error in the order - As the goods were held to be liable to confiscation under section 111 of the Customs Act, penalty under section 112(a) of the Customs Act has been correctly imposed.
There is, therefore, no error in the order passed by the Commissioner (Appeals) - Appeal dismissed.
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2023 (2) TMI 495 - MADRAS HIGH COURT
Duplication of orders - EPCG Scheme - export obligations not satisfied within the time stipulated under the Scheme - petitioner was directed to regularize the export obligation by payment of customs duty with penal interest - Petitioner sought the exact quantum of amount to be paid, to ensure compliance with the appellate order - HELD THAT:- Instead of simply informing the petitioner as to the quantum of outstanding demand, the officer has passed a second order in original on 06.02.2013. There was absolutely no necessity for the aforesaid order to have been passed as the same cause of action had been addressed vide orders dated 30.03.2005 and 11.09.2007.
Be that as it may, the petitioner challenged the order in first appeal leading to the passing of the impugned order dated 31.03.2015 by the first appellate authority. Quite apart from being an aberration in procedure, all that the respondents needed to have done was to convey the quantification of duty and penalty to the petitioner and ensure its compliance. In fact the petitioner has on all occasions expressed its readiness to pay the amount on being informed of the amount to be paid - On 12.08.2015 when this matter had come up for admission, there was an order of interim stay upon condition that the petitioners remit 50% of the penalty within a period of four weeks from the date of receipt of copy of that order. The petitioner has admittedly complied with this order.
Thus, let a demand be raised for the balance, which the petitioner, in light of its acquiescence as noted in the preceding paragraphs, will settle expeditiously. The impugned orders are clearly in violation of procedure apart from being duplication of the orders already passed, and are hence set aside - Petition disposed off.
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2023 (2) TMI 494 - DELHI HIGH COURT
Violation of principles of natural justice - SCN not issued - sufficient opportunity of hearing to contest the allegations, not provided (audi alterem partem) - communications sent by speed post without acknowledgement due, would also fall within the deeming provision of Section 153(3) of the Customs Act or not - mode of communication of SCN - Levy of penalty on the petitioner under Section 114AA of the Customs Act, 1962 - non-existent exporters - exports under the Shipping Bills, were to fraudulently avail export benefits - HELD THAT:- It is important to note that Section 153(3) of the Customs Act does not provide for any mode of service; it merely stipulates the date on which an order, decision, summon, notice or any communication is deemed to have been served when it is dispatch through registered post or speed post. Thus, it is erroneous to contend that Section 153(3) of the Customs Act, provides for a mode of service other than as stipulated under 153(1)(b) of the Customs Act.
As is apparent from the plain language of Section 153(3) of the Customs Act, it is open for any party to establish that the notices were not received on expiry of the normal time taken in transit for any article sent through speed post or registered post, as the case may be. In the present case, the petitioner has affirmed on affidavit that it did not receive the Show Cause Notice. The petitioner had informed the respondent prior to the date of personal hearing regarding non-receipt of the Show Cause Notice and had repeatedly requested for a copy of the same. No response was given by the Respondent to the said notices/request. In the given facts, it is difficult to accept that the petitioner has not discharged its burden to establish that it had not received the Show Cause Notice - Since there is no material to indicate that the Show Cause Notice was sent by speed post with acknowledgement due or had been served by any of the modes as specified under Section 153(1) of the Customs Act, there are no hesitation in accepting the petitioner’s contention that it was not served with the Show Cause Notice in question.
There are merit in the contention that the impugned order has been passed in violation of principles of natural justice and the petitioner was not afforded full opportunity to contest the allegations against it. Consequently, the impugned order, to the limited extent that it imposes penalty on the petitioner, is set aside - petition allowed.
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2023 (2) TMI 493 - BOMBAY HIGH COURT
Duty drawback - Re-fixation of brand rates by Respondent No.4 - Petitioner challenged the order refixing the brand rates on the ground of lack of jurisdiction in Respondent No.4 to re-fix/ revise the brand rates and without prejudice on the merits of the re-fixation/ revision - power of Respondent No.4 to re-fix or revise the brand rates fixed under Rule 7 of the Rules of 1995 - if the power exists and is properly utilized, then whether on merits, such re-fixation of brand rates was necessary?
HELD THAT:- The Revisional Authority has referred to Circular No.83/2003, dated 18 September 2003, on the aspect of jurisdiction and observed that the clarification given in para (c) of the impugned Circular undoubtedly states that the Commissioner of Central Excise and the officers under his control have been invested with powers to rectify such mistakes through issuance of any amendment, addendum or corrigendum to the brand rate letters issued. As such, the interpretation of the relevant portion of the above Circular spelt out in the impugned order in the appeal is flawed and improper. The Revisional Authority, therefore, held that the re-fixation of the brand rates was just and proper and that the orders of the Commissioner were within the jurisdiction.
In the present case, the re-fixation of brand rates has not been carried out by the Ministry upon complaint or on the investigation; therefore, clause 3(d) does not arise in the present case, nor is stated so by the Revisional Authority.
It is found that the reasoning of the Revisional Authority on the aspect of jurisdiction is entirely unsatisfactory. Apart from the facts of the individual case, when the question of the power of authority comes up for consideration, it has to be dealt with carefully as it sets a precedent to the authorities below and, therefore, the Revisional Authority was under a duty to scrutinize this aspect carefully. Except referring to the language of the Circular dated 18 September 2003, the Revisional Authority has not examined whether any amendment, addendum or corrigendum was carried out or that order existed even what is stated in clause 3(c) of the Circular dated 18 September 2003.
The impugned order dated 15 September 2020 passed by Respondent No.2- Revisional Authority is quashed and set aside - Matter restored back.
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2023 (2) TMI 492 - GUJARAT HIGH COURT
Seeking provisional release of seized goods - allegation of evasion of Anti-dumping duty - Imposition of anti-dumping duty equal to the lesser of the margin of dumping and the margin of injury - adjudicating authority has merely communicated the conditions for the provisional release without considering any features of quasi-judicial order - Power of Commissioner of Customs to make an extension of period under Section 110A of the Customs Act - Non-speaking orders without any reasons for extension of time - HELD THAT:- The Court has perused, in detail, the material which has been produced as also the notification issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce, Directorate of General of Trade Remedies of 28.09.2021 with the subject of anti-dumping investigation concerning imports of Decor Paper originating in or exported from China PR - It appears that it speaks of the Kingdecor being a limited liability company. It also says that the legal statute of the Kingdecor has not changed in the last three years. It has directly exported MT of Product Under Consideration (PUC) to India and MT through two different related traders namely Xianhe Company Limited and Zhejiang Xianhe New Material Sales Company Limited, China PR. The Kingdecor company has claimed the adjustments on account of the ocean freight, insurance, inland transportation, port and other related expenses, credit cost and bank charges. The net export price at ex-factory level for Kingdecor (Zhejiang) Co. Ltd. has been determined and is shown in the dumping margin table.
It is quite clear that the anti-dumping duty recommended by the authority is 116 USD per MT so far as the producer Kingdecor (Zhejiang) Co. Ltd. from China in relation to the decor paper. This comes under the heading 48059100 and 48022090 - it has made quite clear that ‘XH’ and ‘KD’ series of paper type for different markets and different customers have been made by them. It is not being questioned that in notification dated 28.09.2021, there is a specific reference of Xianhe as a producer of decorative base paper, however, it had not been provided the information as a producer but, only as an exporter. Xianhe has stated that it produces the Speciality Paper. The product under consideration is only a Speciality Paper and clarification is required on how the product produces by the company is different from the subject goods. Xianhe stated that it does not have any joint venture, however Kingdecor is a joint venture of Xianhe and Schattdecor AG.
The entire emphasis is on that the item code of the paper manufactured by the Kingdecor (Zhejiang) Co. Limited is with alphabet ‘KD’, the item code of the paper manufactured by the Xianhe Co. Ltd. is starting with ‘XH’ and the item manufactured by M/s. Zhejiang Xianhe New Materials Sales Co. Ltd. China also stats with ‘XH’. It is M/s. Saraf Sales Corporation which has acted as an agent. It is the note itself which is showing that the goods were traded and supplied by M/s. Kingdecor. It is the producer which is important to known and there has been a specific declaration given based on the Kingdecor’s own letter - This being the case with the petitioner having already paid the anti-dumping duty at the rate of 116 USD per metric ton, with a further amount of Rs. 88,22,040/- where the differential duty amount has been paid.
The petitioner is hereby directed to furnish the bond of entire amount of goods of Rs. 25,00,00,000/- before the authority and shall also disclose properties of company and its directors before this Court on oath and also give an undertaking of not to part with the same till this inquiry is completed in above mentioned four weeks’ period - respondent no.4 is directed to release the goods and the operation of seizure order passed by the respondent no.3 under Section 110 of Customs Act is hereby quashed and set aside. Respondent authority shall release the goods as soon as the petitioner furnish bond of Rs. 25,00,00,000/-.
Petition disposed off.
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2023 (2) TMI 491 - CESTAT KOLKATA
Absolute Confiscation - redemption of goods denied on the ground of it being prohibited goods - Mosquito swatter/bat - imported goods are prohibited in nature since the DGFT notification (effect of the notification was, mosquito killer racket under HS code 85167920 and 85167990 in theimport policy was revised from free to prohibited) was issued on 26.04.2021 and the Bill of Lading date was also 26.04.2021 - HELD THAT:- Both the Adjudicating authority and Ld. Commissioner (Appeals) are of the opinion that, prohibited goods cannot be redeemed which is contrary to the decision of the Hon’ble Supreme Court relied upon by the consultant in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT], wherein it was held that Absolute confiscation should be an exception rather than a Rule. Without exploring any other alternative it has been held that goods are liable for confiscation.
The case law relied upon by the Ld. Commissioner (Appeals) M/S. Pam Agro Industries [2021 (3) TMI 910 - GUJARAT HIGH COURT], has got no application in the present case. In that case ultra vires of the DGFT Notification restricting and amending the policy was under challenge. Besides the amount of MIP fixed for cashew nuts was in dispute which is not the case here. Hence the case law relied upon by the Ld.Commissioner (Appeals) is completely distinguishable from the present case.
In the present case, the goods were ordered for shipment in 19.04.2021 and goods were shipped on 26.04.2021. So it is admitted that the items become prohibited since the declared value was much lower than Rs. 121/- per piece as per the DGFT notification dated: 26.04.2021. In terms of the policy para- 1.05, as transitional arrangement in case of export and import that is permitted freely under FTP is subsequently subjected to any restriction or regulations, such export or import ordinarily be permitted, notwithstanding such restrictions or regulations, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restrictions - Since the order for supply of the goods was not backed by any LC, no benefit of transitional arrangement can be extended.
There are force in the submission of the Ld.Consultant that in the case of Har Govind Das K. Joshi Vs. Collector [1987 (1) TMI 107 - SUPREME COURT] the Hon’ble Supreme Court held that absolute confiscation of goods by Collector without question of redemption on payment of fine although having discretion but omitted to consider such a discretion available with him and remanded the matter to Collector for consideration of an exercise of discretion for imposition of Redemption fine. Besides, since the policy was amended when the shipment was in process their mala fide intention cannot be proved without any additional evidence to invoke penal clause under section 112 of the Customs Act 1962.
In the meantime the consultant produced documents and photographs stating that, the goods are suffering huge demurrage and partly some imported items stuffed in the container are damaged which were required to be verified maintaining the principles of natural justice.
The Appeals filed by the Appellants are allowed by way of remand to the Adjudicating authority for denovo consideration and to decide the case using the discretion in a prospective manner.
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2023 (2) TMI 490 - CESTAT CHENNAI
Levy of penalty on CHA under Section 114 of the Customs Act, 1962 - CHA, abetting in the attempt to export the restricted goods by misclassifying the goods - HELD THAT:- The appellant as a CHA cannot be expected to examine and ensure the nature of the goods in the consignment. In para-65 of the impugned order, the adjudicating authority has observed that when the test report mentioned that the samples are naturally occurring Potassium Chloride, the CHA ought to have classified the goods under ITC HS 31042000; and they ought to have not assisted the exporter in misdeclaring the goods as ITC HS as 28273990. The classification is not mentioned in the test reports. The main reason for imposing penalty on the appellants is that they did not ensure correct classification of the goods so as to see whether the goods are restricted items. The original authority has held that the appellant has abetted in the attempt to export restricted goods as they did not exercise due diligence to ascertain the correctness of the information imparted by their client. There is no allegation or evidence to establish that the appellant had indulged in any overt act or played any role in any manner so to assist the exporter in his attempt to export the goods. The issue of classification is of complex nature.
The Tribunal in the case of HIM Logistics Pvt. Ltd. [[2016 (8) TMI 925 - CESTAT NEW DELHI]] has held that The appellant is mainly a CHA and the issue of classification is of complex nature. It cannot be said that the CHA should have information that the goods were ‘Food Supplements’ and not ‘Medicaments’. It is for the Customs Department to classify the goods. Under these circumstances, the levy of the penalty is not justified.
Thus the penalty imposed on the appellants under Section 114 of the Customs Act is not warranted and are therefore required to be set aside - appeal allowed.
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2023 (2) TMI 403 - TELANGANA HIGH COURT
Seeking release of goods - goods imported by the petitioner constitute bona fide baggage or not - the option to redeem the confiscated goods had not been exercised within the maximum period of 120 days from the date of the adjudication order - Commissioner of Customs (appeal) set aside to the extent of rejection of petitioner’s request on the ground of delay in seeking redemption beyond the prescribed period - Revenue has went into appeal before Tribunal - HELD THAT:- Once the appellate authority has passed the order-in-appeal and directed release of the goods on payment of redemption fine, it is not open to respondent No.5 to decline release of such goods despite payment of redemption fine by the petitioner. Respondent No.5, being an officer lower in hierarchy than the Commissioner of Appeals, is bound to comply with the order of the higher appellate authority, unless the order of the higher appellate authority is stayed by a still higher forum. As has been observed by the Supreme Court, unless there is adherence to the principle of judicial discipline, there would be chaos in administration of the tax laws. Such a situation cannot be permitted.
The respondents are directed to release the goods declared by the petitioner on 13.08.2021 forthwith upon due verification of payment of redemption fine - petition allowed.
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