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Customs - Case Laws
Showing 81 to 95 of 95 Records
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2023 (2) TMI 146 - MADRAS HIGH COURT
Duty drawback as per the provisions of Section 74 of the Customs Act, 1962 - rejection on the ground that the petitioner has not satisfactorily established the reasons for delay in filing the duty drawback claim - non-speaking order - violation or principles of natural justice - HELD THAT:- Learned Standing Counsel for the respondents cannot rely upon the documents filed along with these writ petitions, that too, when the first respondent has not considered the same on merits in the impugned orders, which is a cryptic and non-speaking order. Any improvement of the impugned order cannot be made by the learned Standing Counsel for the respondents. Therefore, the contentions of the learned Standing Counsel for the respondents before this Court is rejected.
It is also not in dispute that the petitioner has satisfied all the statutory requirements for claiming duty drawback as per the provisions under Section 74 of the Customs Act, 1962. When the petitioner has given detailed reasons as to why they were unable to file the duty drawback claim within the prescribed time, the first respondent ought to have considered the said reasons objectively, but as seen from the impugned orders, no reasons have been given for rejecting the petitioner’s reasons for non filing of the duty drawback claim on time - Being a cryptic and non-speaking order, the impugned orders will have to be necessarily quashed and the matter has to be remanded back to the first respondent for fresh consideration on merits and in accordance with law.
The matter is remanded back to the first respondent for fresh consideration on merits and in accordance with law - Petition disposed off.
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2023 (2) TMI 145 - CESTAT NEW DELHI
Revocation of customs Broker License - forfeiture of security deposit - penalty - risky exporters involved in execution of frauds and got verification done by the jurisdictional GST officers and identified exporters who could not be found at all physically at their registered premises - violation of Regulation 10(n) of the CBLR as well - HELD THAT:- Regulation 10(n) requires the Customs Broker to verify correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN),identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information - verification of certificates part of the obligation under Regulation 10(n) on the Customs Broker is fully satisfied as long as it satisfies itself that the IEC and the GSTIN were, indeed issued by the concerned officers. This can be done through online verification, comparing with the original documents, etc. and does not require an investigation into the documents by the Customs Broker. The presumption is that a certificate or registration issued by an officer or purported to have been issued by an officer was correctly issued. Section 79 of the Evidence Act, 1872 requires even Courts to presume that every certificate which is purported to be issued by the Government officer to be genuine.
Any of the three methods can be employed by the Customs Broker to verify the identity of its client. It is not necessary that it has to only conduct a physical verification or launch an investigation. So long as it can find some documents which are independent, reliable and authentic to establish the identity of his client, this obligation is fulfilled. If a document is issued by any other person not interested in the relationship of the client and the Customs Broker, it would be independent. But it should also be reliable and authentic and not one issued by any Tom, Dick and Harry - While obtaining documents is probably the easiest way of fulfilling this obligation, the Customs broker can also, as an alternative, fulfil this obligation by obtaining data or information.
If there are documents issued by the Government officers which show that the client is functioning at the address, it would be reasonable for the Customs Broker to presume that the officer is not wrong and that the client is indeed, functioning at that address. In this case, we find that the GSTIN issued by the officers of CBIC itself shows the address of the client and the authenticity of the GSTIN is not in doubt. In fact, the entire verification report is based on the GSTIN. Further, IECs issued by the DGFT also show the address. There is nothing on record to show that either of these documents were fake or forged. Therefore, they are authentic and reliable and we have no reason to believe that the officers who issued them were not independent and neither has the Customs Broker any reason to believe that they were not independent.
It appears from the verification reports that the officers enquired not giving the names of the exporters but enquired if an exporter with a particular GSTIN existed in that address. People and businesses are remembered by their names and not by their GSTIN or PAN or Voter ID Card number. If anyone goes to an area and enquires, for instance, if a person with a particular PAN lives hardly anyone will be able to confirm - the conclusion in the verification reports are ‘Non-existent exporter’, ‘NOC denied’ and ‘No such firm was found existing at the said premises and therefore, IGST Refund claims made by the exporter are bogus and may be rejected.’ None of them state that the exporter never operated from that premises and the officer has issued GSTIN to a non-existent firm or at the time of verification, the firm was not operating from the premises but it may or may not have existed at the time of export. If the former is the case, it is also not clear why and how the officer who conducted the verification or his predecessor issued the GSTIN to a non-existent exporter.
None of three RUDs make out any case to show that the Customs Broker had not fulfilled its obligation under Regulation 10(n) of CBLR 2018.
The evidence available on record in the form of verification reports relied upon in the SCN are vague and in some cases, even the name of the exporter who they were enquiring about is not indicated in them - The reports state either NOC denied which is not required by any Customs Broker or exporter or that the exporters did not exist at the time of verification which does not prove that they did not exist at the time of verification or that IGST refund may be denied which is irrelevant to the present proceedings. None of the reports establish that the appellant had violated Regulation 10(n).
The impugned order revoking the Customs Brokers licence of the appellant, forfeiting their security deposit and further imposing penalty on the appellants cannot be sustained and needs to be set aside.
Appeal allowed.
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2023 (2) TMI 144 - CESTAT BANGALORE
Effective date of amendment of notification No.29/2018-Cus dated 01.03.2018 - rate of Customs duty - levy of BCD at the enhanced rate of 54% in respect of imported goods 1.e., RBD Palmolein of Edible Grade falling under Customs Tariff Heading 151190 and covered under Sl. No. 65 of original notification No. 50/2017-Cus dated 30.06.2017 - whether the notification to come into effect from the date of its issue on 01st March 2018? - contention of the appellant is that in terms of section 15(1)(a) of the Customs Act, 1962, the rate of duty applicable to the imported goods is the rate in force when the Entry Inwards to the vessel carrying the imported goods was granted on 05.03.2018.
Whether the exemption notification will be effective from 01.03.2018 or from 06.03.2018?
HELD THAT:- In the present case the notification dated 01.03.2018 was digitally signed on 06.03.2018 at 17:15 hours and before that it could not have been uploaded for publication. Thus, the exemption notification would come into force only on 06.03.2018.
This issue was also examined by the Gujarat High Court in the case of the appellant in ADANI WILMAR LIMITED VERSUS UNION OF INDIA [2022 (11) TMI 764 - GUJARAT HIGH COURT] where the issue arose before the Gujarat High Court was whether the exemption notification dated 01.03.2018 will be effective from 01.03.2018 or 06.03.2018, on which date it was digitally signed. In this connection the Gujarat High Court, after placing reliance upon the decision of the Supreme Court in UNION OF INDIA & OTHERS VERSUS M/S GS CHATHA RICE MILLS & ANOTHER [2020 (9) TMI 903 - SUPREME COURT] and also upon the decisions of the Gujarat High Court in RUCHI SOYA INDUSTRIES LTD THROUGH AUTHORIZED REPRESENTATIVE VERSUS UNION OF INDIA & 2 OTHERS [2020 (9) TMI 422 - GUJARAT HIGH COURT] and the Andhra Pradesh High Court in M/S RUCHI SOYA INDUSTRIES LTD. VERSUS UNION OF INDIA [2019 (9) TMI 1374 - ANDHRA PRADESH HIGH COURT], observed that the effective date of Notification in terms of Section 25 (4) of the Act is the date of its publication in Official Gazette in e-mode on 06.03.2018 and the Notification, therefore, cannot be said to have come into force on 01.03.2018 and enhanced rate of duty by way of Notification No. 29/2018-CUS dated 01.03.2018 surely would not be, therefore, applicable. The petitioner would be entitled to pay only 40% of the duty which was applicable at the time of presenting the bills of entry for home consumption and not 54% under section 17(4) of the Act.
In the present case, it is not in dispute that the entry inwards was granted to the vessel on 05.03.2018 at 11:45 hours. At that time the notification dated 30.06.2017, as amended on 17.11.2017, imposing duty at the rate of 40% was applicable. The exemption notification increasing the duty from 40% to 54% came into effect only on 06.03.2018. The Bills of Entry, therefore, could not have been reassessed at the higher rate of duty @54% under the notification dated 01.03.2018.
Thus, in view of the aforesaid decisions of the High Courts, the Commissioner (Appeals) was not justified in holding that the duty would be payable on the imported goods at the rates specified in the exemption notification dated 01.03.2018, even though the entry inwards was granted to the vessel on 05.03.2018 and the said exemption notification dated 01.03.2018 was published in the Official Gazette only on 06.03.2018, after it was digitally signed. The exemption notification came into effect only on 06.03.2018, on which date it was published in the Official Gazette after it was digitally signed for e-publication - The Commissioner (Appeals), was also not justified in distinguishing the cases cited by the appellant only for the reason that an amendment had been made in section 25(4) of the Customs Act in 2016.
The order dated 31.01.2020 passed by the Commissioner (Appeals) is, accordingly, set aside - appeal allowed.
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2023 (2) TMI 143 - CESTAT NEW DELHI
Refund of SAD (Special Addition Duty) - rejection on the ground of time limitation - N/N. 102/2007-Cus - Vide Notification No. 93/2008-Cus, Clause 2(C) of the Notification No. 102/2007-Cus was substituted, the effect of substitution on was that one year period was insisted upon for filing of refund application from the date of payment on SAD.
HELD THAT:- The rejection of refund on the ground of limitation by the court below is bad and is in the teeth of the ruling of the Hon’ble Delhi High Court in the case of SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] where it was held that This Court holds that the amending notification must be read down to the extent that it imposes a limitation period.
Thus, court below have erred in rejection of refund claim on the ground of limitation - The Adjudicating Authority is directed to grant the refund of SAD within a period of 45 days from receipt/service of copy of this order with interest as per rules, after verifying the bar of unjust enrichment. - Accordingly, the impugned order is set aside and the appeal is allowed.
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2023 (2) TMI 107 - MADRAS HIGH COURT
Served From India Scheme - grant of excess duty credit in respect of the scrips issued between 01.04.2009 to 26.08.2009 - impugned order states that the credits scrips that were issued to the petitioner on 21.02.2011 had inadvertently computed the credit at 10% instead of 5% to which the petitioner was entitled - HELD THAT:- The interpretation of the policy itself must be in tune with the avowed objectives of the various schemes that have been formulated under the policy. The Served from India Scheme has been outlined from Clause 3.12 of the Foreign Trade Policy and the avowed objective is 'to accelerate growth in export of services so as to create a powerful and unique 'Served From India' brand, instantly recognized and respected world over.'
Needless to say financial year qua a revenue enactment/policy is always understood to mean the 1st of April of the relevant year till the 31st of March of the year to follow. In the present case, no doubt the Foreign Trade Policy for the period 2009 to 2014 has come into effect only on 27.08.2009, and there is also a categoric stipulation in Clause 1.2 which deals with duration of the policy, that all exports and imports upto 26.08.2009 shall be governed only by the terms of the previous policy which prescribes the rate of 5% only - we are concerned with specified imports under the Served From India scheme which must stand on a separate pedestal. As far as the eneitlement to the imports/exports under this scheme are concerned, the entitlement is categoric to the effect that the service provider is entitled to duty credit scrips equivalent to 10% earned during current financial year.
The impugned order is set aside and as a consequence the surrendered scrips of a value of Rs.86,81,454/- shall be refunded to the petitioner within a period of eight (8) weeks from date of receipt of this order - Petition allowed.
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2023 (2) TMI 106 - GAUHATI HIGH COURT
Power and function of Proper officers to issue Notice under the second proviso to Section 124 of Customs Act 1962 - notice issued by the Joint Director, DRI, is in consonance with the Notification No.25/2022 and Notification No.26/2022 or not - HELD THAT:- The Notification No.25/2022 dated 31.03.2022 has been issued in exercise of powers conferred by Section 3(1) of Section 4 and Section 5((1)(4)(5) of the 1962 Act, wherein the Joint Director, DRI has been invested with all powers of the Joint Commissioner of Customs. As per Notification No.25/2022 dated 31.03.2022, the Deputy Director and Assistant Director, DRI have been invested with the powers of the Deputy Commissioner and Assistant Commissioner of Customs - in terms of Notification No.26/2022, even a Joint Director, DRI, who is above the rank of Deputy Commissioner or Assistant Commissioner of Customs is a proper officer to issue a Notice under the second proviso to Section 124 of the 1962 Act.
There is nothing in the Notification No.26/2022 showing that there is a bar on the Joint Director, DRI for issuing a Notice under Section 124 of the 1962 Act. In fact, Section 124 of the 1962 Act provides that no order, confiscating any goods or imposing any penalty on any person, shall be made under Chapter XIV of the 1962 Act, unless the owner of the goods or such person is given a notice in writing, with prior approval of the officer of Customs not below the rank of Assistant Commissioner of Customs, informing him of the ground which it is proposes to confiscate the goods or to impose the penalty. It clearly shows that there is no bar on the Joint Director, DRI to issue a notice under Section 124 of the 1962 Act.
The petitioner is given the liberty to file her reply to the show-cause notice dated 23.09.2022 before the Joint Director, DRI, Guwahati, who shall thereafter transmit the same to the Adjudicating Authority under the 1962 Act - Petition dismissed.
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2023 (2) TMI 105 - CESTAT KOLKATA
Quantum of redemption fine and penalty in lieu of confiscation - Valuation of imported goods - old and used worn clothing - declared value of the imported goods enhanced - HELD THAT:- The enhancement of value has been ordered by the First Appellate Authority on the basis of concurrence given by the importer for such enhancement. There is no challenge to the order of confiscation, but Revenue is challenging the quantum of redemption fine and penalty, which stands reduced by the Ld. Commissioner(Appeals).
The Ld.Commissioner(Appeals) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by the Tribunal in the case of M/S. OMEX INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (4) TMI 112 - CESTAT NEW DELHI (LB)]. The Tribunal has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of imports violating Exim Policy Provisions - there are no reason to interfere with the findings of the Ld. Commissioner (Appeals) on the basis of such decision.
Appeal of revenue dismissed.
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2023 (2) TMI 104 - CESTAT MUMBAI
Clandestine Removal - 997.09 carats of diamonds and 98.34 carats of diamonds - processing loss - whether allegation of substitution of diamonds was established through the evidence? - HELD THAT:- On perusal of the Order-in-Original particularly para 11.2.1, wherein the original authority has held that the diamonds did not have marking and serial number unlike products namely, Televisions, Motor Vehicles etc. and therefore, it is not possible to identify whether diamonds available in the stock were same as imported. The same argument also applies to the goods which were seized under reasonable belief that they were substituted. Applying the observation by the original authority that it is not possible to identify diamonds whether the same are imported or substituted, we come to a conclusion that the seizure of diamonds under the allegation that they were substituted, was on a erroneous belief that they were substituted as such a belief cannot be established for the same reason which is given by the original authority.
There are no merit in the seizure of 1095.43 carats of diamonds and subsequent proceedings in respect of the same including confiscation, imposition of redemption fine, demand of differential customs duty and imposition of penalty on the appellants - Insofar as shortage of 89.15 carats of diamonds is concerned, the same is argued to be treated as processing loss. The prosecution has failed to establish any clandestine removal of the same and could identify the person to whom the same were allegedly sold or transferred.
In view of the failure of the prosecution to establish any clandestine removal of 89.15 carats of diamonds, it is held to be processing loss and since the same are not taken out of SEEPZ, i.e. out of Bond customs duty cannot be demanded on the same.
Appeal allowed.
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2023 (2) TMI 77 - MADRAS HIGH COURT
Seeking for provisional release of the imported goods - Import of Supari from Thailand - prohibited goods or not - Section 110A of the Customs Act, 1962 - HELD THAT:- As seen from section 110-A of the Customs Act, 1962, an independent decision will have to be taken by the Customs Authorities with regard to the request made by any importer seeking for provisional release of the detained goods which has been detained under section 110-A of the Customs Act, 1962 as in the present case. Whether the petitioner has responded to the Show Cause Notice issued by the Customs Authorities or not is immaterial for the purpose of deciding the application seeking for provisional release of the detained goods under section 110-A of the Customs Act, 1962. As seen from Section 110-A of the Customs Act, 1962, pending the order of the Adjudicating Authority, the goods may be provisionally released to the owner or the bank holder on taking a bond from him in a proper form with such security and conditions as the Adjudicating Authority may require.
Thus, no prejudice would be caused to the respondents, if the petitioner is allowed to submit an application under section 110-A of the Customs Act, 1962 seeking for provisional release of the detained goods and a direction is issued to the respondents to consider the said application on merits and in accordance with law, in the light of the contentions raised by the petitioner in these writ petitions within a time frame to be fixed by this Court.
This Court directs the petitioner to submit an application to the second respondent under section 110-A of the Customs Act, 1962, within a period of one week from the date of receipt of a copy of this Order, seeking for provisional release of the goods in respect of the stated Bills of Entries - petition disposed off.
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2023 (2) TMI 76 - DELHI HIGH COURT
Refund - Period of limitation - duty paid under protest or not - Importer had preferred an appeal challenging the enhancement of the value of the goods - whether the respondent’s claim for refund of tax was beyond the period of limitation as prescribed under Section 27 of the Customs Act?
HELD THAT:- It is difficult for this Court to accept that the payment of custom duty imposed pursuant to an order while appealing the same can be construed as payment of duty without protest. The very act of filing an appeal against an order imposing customs duty is a protest against the duty as assessed. The entire purpose of such an appeal is to seek reduction of the levy. It is, thus, obvious that the assessee does not accept the said levy and, payment of the same would necessarily have to be construed as payment under protest.
In view of the authoritative decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1996 (12) TMI 50 - SUPREME COURT], the question whether payment of duty while appealing its imposition, is required to be construed as payment under protest, is no longer res integra. Although the said decision was rendered in the context of Section 11B of the Central Excise Act, 1944, the second proviso to Section 11B of the Central Excise Act, 1944 is pari materia to second proviso of Section 27(1) of the Customs Act.
The decision of learned Tribunal that the duty paid by the respondent on the enhanced value of the goods is required to be accepted as duty paid under protest, is agreed upon.
Appeal dismissed.
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2023 (2) TMI 75 - DELHI HIGH COURT
Revocation of Customs Broker License - forfeiture of security deposit - penalty - guilty of misconduct - misdeclaration of goods by the exporter (M/s Balaji International) and attempted to facilitate export of goods otherwise restricted at the material time - classification of export consignment of Glucose Test Strips - N/N. 59/2015 -20 dated 04.04.2020 - HELD THAT:- It is material to state that the consignment of ‘Glucose Test Strips’ was held up at the material time on the ground that the items were restricted. In this regard the exporter and the Department had exchanged correspondence. It is not disputed that the consignment was finally cleared. Admittedly, the goods in question were correctly described as ‘Glucose Test Strips’ in the Shipping Bills and these goods were exported after the initial hold up. It is, thus, not difficult to accept that at the material time, there may have been some confusion as to the classification of the goods as has been contended by the appellant.
In the present case, the exporter had classified the goods in question under CTH 90279090. It is the exporter’s stand that the said classification was a correct one. The appellant had candidly stated that there was some confusion at the material time. In his statement, he had also candidly admitted that the shipping bill was filed during the period of lock down and that there was a mistake. He had also stated that he was not aware that the goods in question, namely, glucose tested strips contained reagents. He had also stated that they always took due care before filing shipping bill, but due to shortage of staff during the lock down period, a mistake had occurred - it is apparent that the appellant had been remiss, however, the appellant’s candid admission must also be read along with his statement that he was not aware that the goods in question contained reagents.
It is apparent in the given facts that it cannot be held that the appellant had misconducted itself, thus, the only ground on which the appellant’s licence is revoked was failure to comply with the regulations, which would follow in case there was a failure to comply with the obligations under regulation 10 of CBLR, 2018. However, it is also material to note that Regulation 14 confers a discretion on the Principal Commissioner whether to revoke the license and forfeit the security deposit - In this case the exporter was fully aware of the issue regarding classification and, the exporter had also corresponded with the department and had asserted that the goods in question were not restricted. Undisputedly, the goods in question were correctly described in the Shipping Bill as “glucose testing strips”. Further, the appellant had explained that there was confusion on his part and had candidly admitted his mistake.
In the given facts, any error on the part of the appellant to inform the exporter regarding the classification of the goods cannot be considered as sufficiently grave so as to forfeit the appellant’s license. The learned Tribunal had not examined the material facts of the present case to ascertain whether an action under Regulation 14 was justified.
The impugned order as well as the order dated 11.06.2021 passed by the Commissioner of Customs to the extent that it revokes the appellant’s license and forfeits the security deposit is set aside - Appeal allowed in part.
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2023 (2) TMI 74 - BOMBAY HIGH COURT
Grant of reward under the Merchandise Exports from India Scheme - acceptance of amendment of 12 shipping bills - period from December 2017 to July 2019 - HELD THAT:- The shipping bills duly amended under section 149 are legitimate in the eyes of the law. However, even though the law permits amendment to the shipping bills under section 149 of the Act, it has no functional effectiveness for claiming benefit under MEIS as per the stand of DGFT. This would render the power under section 149 of the Customs Act to amend the shipping bills to correct the declaration and reward item field, nugatory. Such a position would cause extreme hardship to the persons claiming benefits of the scheme.
When a software regulates the entire process, the DGFT may have a reasonable objection in processing the copies of the amended shipping bills not transmitted online to it. The Policy Relaxation Committee has correctly pointed out that in the computerized environment, when the governance of MEIS is online, it is difficult to proceed unless amended shipping bills are transmitted online - It is thus necessary for the Respondents- Customs Department to come up with a solution so that an issue such as the one presented does not recur and the parties entitled to the benefits of MEIS are not required to come to the Court for such trivial issues.
The Petition be listed on board under the caption “For Directions” on 27 February 2023 for reporting compliance on this aspect.
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2023 (2) TMI 47 - DELHI HIGH COURT
Violation of conditions of exemption notification - import of aircraft - Interpretation of statute - whether used for private purposes and not for providing non-scheduled (passenger) services or non-scheduled (charter) services? - violation of Condition no.104 of the Notification or not. - N/N. 21/2002-CUS, as amended by Customs Notification 61/2007-CUS
Whether the learned Tribunal had erred in misinterpreting the Notification and concluding that the appellant had not complied with the conditions for availing duty exemption under the Notification?
HELD THAT:- In terms of explanation (b) to Condition no. 104 of the Notification, the term non-scheduled (passenger) services is defined to mean air transport service other than ‘scheduled (passenger) air transport service’ as defined in Rule 3 of the Aircraft Rules, 1937 (hereinafter ‘the Aircraft Rules’). It is, thus, necessary to refer to the Aircraft Rules - In terms of explanation (b) to Condition no.104 of the Notification, 'non-scheduled (passenger) services' would mean ‘air transport service’ other than the air transport service falling within the aforementioned definition. However, it is essential that the aircraft is used for ‘air transport service.’
A plain reading of Rule 3(9) of the Air Craft Rules, indicates that the term ‘air transport service’ is defined in wide terms and would cover transport by air of humans, animals, mails or any other things, animate or inanimate. However, it is necessary that the said service be provided for ‘remuneration’. The said definition also clarifies that the service may be for any kind of remuneration. However, for a service to fall within the meaning of ‘air transport service’ as defined in Rule 3(9) of the Aircraft Rules, it is essential that the same is provided for some kind of remuneration. Clearly, flight service for no remuneration at all would not qualify to be considered as air transport service within the meaning of sub-rule (9) of Rule 3 of the Aircraft Rules - In the facts of the present case, the appellant has used the aircraft for its own use without any remuneration whatsoever, either from the passengers transported by it or from any other person. In the circumstances, it would be difficult to accept that the appellant has used the aircraft for providing ‘air transport service’ within the meaning of Rule 3(9) of the Aircraft Rules.
In the present case, the appellant has not used the aircraft for providing air transport service for remuneration of any kind.
Even though it cannot be agreed with the learned Tribunal that the provision of non-scheduled (passenger) services as defined under clause (b) of explanation to Condition no.104 of the Notification, entails providing air transport services to public at large on payment of published tariff; but it is agreed with the conclusion that the appellant has not complied with the Condition no.104 of the Notification.
Appeal disposed off.
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2023 (2) TMI 46 - CESTAT NEW DELHI
Jurisdiction - power of Deputy Commissioner to re-assess the goods u/s 17(5) after the goods have been cleared for home consumption - Rejection of self-assessment by the importer of the imported goods under CTH 20082000 and re-assessment under CTH 08119010 - Section 47 of the Customs Act, 1962 - whether the imported goods merit classification under CTH 20082000 or under CTH 08119010?
HELD THAT:- Once the assessment is completed both sides can file an appeal before the Commissioner (Appeals). Further, Revenue can also review any assessment including self-assessment if duties have not been levied, short levied not paid or short paid and serve a notice to the importer or exporter under Section 28 within one year or five years, as the case may be. Explanation (i) to Section 28 clarifies that the relevant date for calculating the period of one year and five years for issue of notice is the date on which proper officer makes an order clearing the goods for home consumption. Thus, once the assessment under Section 17 comes to an end by issue of an order clearing the goods for home consumption, the clock starts ticking for limitation to issue a demand under Section 28.
In this case, the Deputy Commissioner has clearly erred in issuing an assessment order under Section 17(5) after the goods were already cleared for home consumption. He had no authority to issue such an order because he could assess a bill of entry only if the goods are still “imported goods” and are “dutiable goods”. Once an order permitting clearance of goods for home consumption is given, they cease to be imported goods under Section 2(25) and cease to be dutiable goods under Section 2(14) - If an error is noticed in the assessment including self-assessment, the option available to the importer is to file an appeal before Commissioner (Appeals). The Deputy Commissioner has clearly issued the assessment order without any authority and, therefore, the Commissioner (Appeals) was correct in setting aside the assessment order.
As the self assessment order by the Deputy Commissioner has been issued without any authority of law and has correctly been set aside by the Commissioner (Appeals), there is no need to go into the merits of the classification of the imported goods.
The appeal filed by the appellant is rejected and the impugned order is upheld.
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2023 (2) TMI 18 - DELHI HIGH COURT
Import of Cold Rolled Grain Oriented Electrical Steel Sheets under fake BIS Certificate - HELD THAT:- The Adjudicating Authority had found that the goods imported by the appellant were covered under the fake BIS Certificate and the import did not conform to the standards as specified. The CIT (Appeals) did not disturb any of the findings of the Adjudicating Authority and by an order dated 25.10.2019, rejected the appellant’s appeal. This led the appellant to institute an appeal before the learned Tribunal. The learned Tribunal, after hearing the parties, found no merit in the appellant’s appeal.
The statement made by Mr Manoj Kumar – which is not disputed clearly indicates that the BIS Certificate was prepared by him and corroborate the allegation that the BIS Certificate was fake. The communication received from the Indian subsidiary/agent of the manufacturer, M/s Nippon Steel and Sumitomo Metal Corporation confirms that the BIS Certificate, which purportedly issued to it, is fake.
There are no merit in the present appeal - appeal dismissed.
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