|
Advanced Search Options
Customs - Case Laws
Showing 101 to 110 of 110 Records
-
2023 (3) TMI 136 - CESTAT MUMBAI
Customs Broker - Levy of penalty - Breach of obligation to discharge duties - principal allegation against the appellant of not having rendered proper advice to the importer has been countered in the grounds of appeal with nothing other than mere denial and not warranting interference with the order.
HELD THAT:- The claim of having been led to satisfaction about the bona fides of the import from compliance of several regulatory stipulations does not appear to be acceptable as the appellant was bound to be no less than rigid in appreciating the purpose of restricting such imports. It has been pointed out in the impugned order that the failure on the part of the ‘customs broker’ to infer infirmity in the import does not sit well with the expectations of a normal ‘customs broker’ in, at least, enlightening their customers about the few exceptions in a trade regime that is characterized by ‘open general licence (OGL)’ as a norm - there are no reason to interfere with the finding that regulation 13(d) of Customs House Agents Licencing Regulations, 2004 had been breached by the appellant.
Non-compliance with the obligation of exercising due diligence in ascertaining correctness of the information imparted to client in the course of clearance of cargo has been held against the ‘customs broker’ on inference from failure to keep customers informed of the restrictions in import of ‘refrigerant gas’ of certain specifications - Though the finding on this charge by the licensing authority is bereft of detail, separate and distinct from that leading to confirmation of the first charge, we do not find that to be substantive lack as the two are mutually linked. It is, therefore, not inappropriate to conclude that the appellant had been in breach of regulation 13(e) of the Customs House Agents Licensing Regulations, 2004.
Breach of obligation to discharge duties with utmost speed and efficiency and without avoidable delay - HELD THAT:- The cavalier dismissal of the counter of the ‘customs broker’ in response to this charge, and in the absence of evidence demonstrating lack of speed and efficiency on the part of the appellant as also of any avoidable delay having occurred, cannot but lead to the conclusion of not being in agreement with the licensing authority on the finding that appellant had breached regulation 13(n) of the Customs House Agents Licensing Regulations, 2004 - this obligation, intended to ensure best interests of the customer and, obviously, to be invoked in circumstances of grievance aired by customers, appears to have been alleged to have been breached without any thought to the manner in which it would be established in enquiry.
The licensing authority has not taken recourse to the extreme penalty of revocation of licence but has limited himself to forfeiture of security deposit. Thus, even if one of the charges held as breached does not sustain, the gravity of the two that are sustained does not detract from the proportionality of the penalty finally imposed. There are no mitigating circumstances either to commend further leniency.
There are no reason to interfere with the order directing forfeiture of security deposit - appeal dismissed.
-
2023 (3) TMI 80 - DELHI HIGH COURT
Classification of the goods proposed to be imported - preparation of Betel Nuts known as ‘Boiled Supari’ packed in consumer packing and bulk packing - to be classified under sub-heading 2106 90 30 in Chapter 21 of the First Schedule to the Customs Tariff Act or not - HELD THAT:- The question of classification of the products in question is squarely covered by the decision of the Supreme Court in CRANE BETEL NUT POWDER WORKS VERSUS COMMR. OF CUS. & C. EX., TIRUPATHI [2007 (3) TMI 6 - SUPREME COURT]. Although the said decision was rendered in the context of the question whether the goods in question could be cleared under the Tariff heading in the entry 21 07 of the Central Excise Act, 1944, which read as “Betel nut powder known as ‘Supari’”; the said decision continues to be applicable because, by virtue of the Supplementary Note 2 to Chapter 21 of the Customs Tariff, the definition of the goods, “Betel nut product known as ‘Supari’” is identical to the definition of “Betel nut powder known as ‘Supari’”.
It is clear from a plain reading of the judgment in Crane Betel Nut Powder Works v. Commissioner of Customs and Excise, Tirupathi & Anr., that the Supreme Court was of the view that the product in question, sweetened betel nut powder, did not fall within the definition of “Betel nut powder known as ‘Supari’” - Accordingly, the Supreme Court held that the product in question is covered by sub-heading 0801 00 under Chapter 8 of the First Schedule of the Central Excise Tariff Act, 1985.
The Supreme Court’s view that the products in question did not fall within the classification under Chapter 21 but under Chapter 8 of the First Schedule to the Central Excise Tariff Act, 1985 would squarely cover the controversy in this case as well.
Given the definition of the sub-heading “Betel nut product known as ‘Supari’”, read in the context of the main title of Chapter 21 and sub-heading 0802 read in the context with the title of Chapter 8 of the Customs Tariff (“Edible fruits and nuts; peel of citrus fruit or melons”); it would not be apposite to classify the products in question as those covered under Chapter 21 of the Customs Tariff.
Appeal dismissed.
-
2023 (3) TMI 79 - GUJARAT HIGH COURT
Levy of demurrage charges - issuance of notification No. 15 (Re-2006) 2204-09 dated 27.06.2006 whereby amendment had been made in the Import Export Policy, prohibiting the export of tuvar dal, whole gram choli by inserting the entry at sr. no. 44 in Chapter-7 of the Table-B under Schedule-2 of the Indian Trade Classification (ITC) - prohibition of export of certain items for a period of six months from the date of issuance of notification dated 27.06.2006 was made with retrospective effect by subsequent notification bearing no. 19(RE-2006)2004-09 dated 04.07.2006.
The respondent no.1 made several representations to various authorities and contended that the goods which are lying at Kandla Port does not cover the said notification issued by the DGFT because before issuance of the said notification, the goods were passed out of charge by the Customs Authority under Sections 50 and 51 of the Customs Act and the said notification cannot be made applicable in the case of the petitioner especially in view of para-9.12 of the Import Export Policy.
Whether the policy decision which otherwise the authority is entitled to, would save it from payment of the demurrage charges?
HELD THAT:- In case of INTERNATIONAL AIRPORTS AUTHORITY VERSUS GRAND SLAM INTERNATIONAL OF INDIA [1995 (2) TMI 70 - SUPREME COURT], the question was about the demurrage for the period for which the detention certificate issued for wrongful detention of the imported goods by Customs Authorities. There was a public notice issued in 1986 by the Collector of Customs in purported exercise of power under Sections 8, 33, 34 and 45 of the Customs Act read with Rules 56, 57, 58 and 59 of the Aircraft Rule, 1920 directing the approved custodian of imported goods in Kandla Customs area i.e. International Airport Authority of India/ Central Warehousing Corporation to calculate the warehousing/storage charges by excluding the charge for the period of detention of the goods at the instance of the customs as certified by the Assistant Collector of Customs. Per majority, the notice had been held ultra vires Section 45 of the Customs Act - The Court held that custodian does not entitled the Customs Authority to debar IAAI/CWC from charging demurrage even for period covered by the detention certificate. IAAI and CWC being proprietor of the storage space at the Airport, Custom Public Notice would be effective only if IAAI or CWC accept the same. Concurring with this decision, it was held that Custom Authority by issuing such direction in the public notice did not act within the powers conferred under the Customs Act, its rules and regulations.
In yet another decision of UNION OF INDIA VERSUS RC. FABRICS (P) LTD. [2001 (11) TMI 82 - SUPREME COURT], the Customs Authorities on examining the goods belonging to the respondent-importer found the fabric to be excess in length. On request of the importer for waiver of show-cause notice, the Assistant Collector passed an order whereby the importer was allowed the release of the excess goods after payment of fine as well as personal penalty. The amount was deposited along with the customs duty on the excess goods. The DRI officers detained the consignment on the basis of information available with them and seized the detained goods - The High Court had set aside the order as the Department violated the principles of natural justice in not waiting for the reply of the importer. On remand, the Collector discharged the show-cause notice and dropped the proceedings by holding that in view of the order of adjudication, there could not be another adjudication order in respect of the same consignment.
Whether is this a case where the DRI Custom Authorities can be directed to pay the demurrage/ detention charges. Can it be said to be an Act which is malafide or of a gross abusive powers that the officials of the customs or the DRI could be asked to compensate the importer for the extra burden which he had to bear? - HELD THAT:- Here is a case where the importer is of the strong feeling that it had been unjustly dealt with and the goods ought to have been cleared by the Customs Authorities. Many of its requests have been not paid any heed to. It had already paid the charges due and now have claimed the reimbursement - the submissions made by the appellant that the respondent no.1 ought to have a taken a recourse of the civil law by preferring the suit and this could not have been decided without adducement of evidence and also following the procedure of cross examining the person, cannot be agreed upon. The learned Single Judge has committed no error in directing the respondent authority to pay the demurrage.
We must not be oblivious of the fact that the Apex Court in case of Shipping Corporation of India [2001 (4) TMI 83 - SUPREME COURT] had been quite clear that the goods in question had already been directed to be released without payment of demurrage charges. It was also the case where the Court found that High Court had already concluded to the effect that the detention of the goods by the Customs Authorities was illegal and such illegal detention prevented the importer from releasing the goods. Therefore, the Customs Authorities would be bound to bear the demurrage charges in absence of any provision absolving the Customs Authority from that liability. Here the facts have grossed out.
Appeal disposed off.
-
2023 (3) TMI 78 - PUNJAB AND HARYANA HIGH COURT
Conversion of shipping bills from Duty Drawback Scheme to DFIA Scheme - Export of goods under DIA Scheme as well as Duty Drawback scheme - whether the conversion of Drawback shipping bills can be allowed to DFIA Scheme or not? - HELD THAT:- No error, not to speak of any error of law could be said to have been committed by the tribunal in passing the impugned order. Section 149 is applicable at the relevant point of time. In fact, the questions as proposed by the revenue cannot be termed as substantial questions of law as the issue is squarely covered by a decision of this Court in the case of INTER CONTINENTAL (INDIA) VERSUS UNION OF INDIA [2002 (2) TMI 129 - HIGH COURT OF GUJARAT AT AHMEDABAD] and the same is also upheld by the Supreme Court in UNION OF INDIA & OTHERS VERSUS INTER CONTINENTAL (INDIA) [2008 (4) TMI 23 - SUPREME COURT]. The above mentioned judgment of Gujarat has attained finality as in the proposal for fling SLP before Hon’ble the Supreme Court of India against order of High Court, it has been decided not to file SLP in this case (A-2).
It has been observed in the letter that the products are covered under the above mentioned 126 shipping bills i.e Biscuits and Confectioneries, were notified under the SION norms. Thus, they were held to be eligible to claim the benefit of DFIA. Section 149 of the Customs Act, 1962 lays down that any import/export document may be considered for conversion subject to satisfaction of the proper officer without having any limitation.
No time period is prescribed in Section 149 for conversion of bills and any policy providing for time period is ultra vires - appeal dismissed.
-
2023 (3) TMI 77 - CESTAT CHENNAI
Levy of penalty on Customs broker under Regulation 17(7) of the Customs Broker Licensing Regulations, 2018 (CBLR) - overvaluation of goods by exporter in order to claim excess export benefits - adjudicating authority was of the view that the KYC verification was not done in a proper manner and hence they had erred in their duty as a Customs Broker.
HELD THAT:- A penalty has been imposed on the appellant, for their alleged failure to do a proper KYC verification, arising from a lack of physical check of premises of the exporters as found required under Regulation (10)(n). it is seen from a plain reading of the said provision that the CB is required to ‘verify correctness of Importer Exporter Code (IEC) number, Goods and Service 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.’ There is no reference to a physical verification of premises. CB these days service clients from all over the country and expecting them to verify individual premises located anywhere in the country for its functioning, would be very difficult for the CB. It is for this reason that the Regulation 10(n), states ‘by using reliable, independent, authentic documents, data or information.’ i.e. The verification would be satisfied if done using authentic documents, data or information. No physical verification was called for. Hence since SVARAD had verified the relevant documents possessed by the exporters and issued by government departments, the authenticity of which is not under challenge, there is no failure in this regard on their part and the penalty imposed on them under the CBLR and is not sustainable.
Thus, SVARAD cannot be said to have violated the provisions of Regulation 11(n) of CBLR, 2018 and there was no justifiable reason to impose a penalty on them - appeal allowed.
-
2023 (3) TMI 29 - MADRAS HIGH COURT
Seeking for provisional release of goods - Section 110A of the Customs Act, 1962 - Since the representations filed under Section 110A of the Customs Act 1962 have not been considered, till date, writ petitions are filed - HELD THAT:- When Section 110A of the Customs Act, 1962 enables any person seeking for provisional release of goods, necessarily, the respondents will have to take a decision on the petitioner's application seeking for provisional release as per the said section - Admittedly, no final orders have been passed by the respondents with regard to the requests made by the petitioner seeking for provisional release of the imported goods by its representations, dated 06.02.2023 and 24.01.2023.
This Court is not expressing any opinion on the merits of the matter. However, necessarily the respondents will have to consider the petitioner's representation seeking for provisional release of the imported goods and decide the said representation on merits and in accordance with law, within a time frame to be fixed by this Court - however, since the respondents contend that the representations submitted by the petitioner seeking for provisional release of the goods is not in accordance with the format prescribed, no prejudice would be caused to the petitioner, if they are directed to submit a fresh application under Section 110A of the Customs Act, 1962 seeking for provisional release of the imported goods and a direction is issued to the respondents to consider the same on merits and in accordance with law, within a time frame to be fixed by this Court.
These writ petitions are disposed of.
-
2023 (3) TMI 28 - MADRAS HIGH COURT
Validity of SCN - SCN issued within jurisdiction or not - SCN is issued within authority under law or not - pre-determinaton of the issue - HELD THAT:- As seen from the impugned show cause notice, the respondents have stated that the parts supplied by the petitioner can also be used for other purposes and only on that ground, the show cause notice has been issued stating that the classification will fall under Chapters 84 and 85 of the Customs Tariff Act 1975. The impugned show cause notice has given reasons as to why the classification of the goods will fall under Chapters 84 and 85 of the Customs Tariff Act and not under Chapter 86. If the petitioner is aggrieved by the same, necessarily the petitioner will have to respond to the same stating their objections and producing evidence to show that the classification will fall only under Chapter 86 of the Customs Tariff Act 1975. Even without responding to the impugned show cause notice, the petitioner has approached this Court prematurely challenging the said show cause notice, which in the considered view of this Court is not maintainable, after this Court had given a careful consideration to the contents of the impugned show cause notice.
The judgment of the Hon'ble Supreme Court in WESTINGHOUSE SAXBY FARMER LTD. VERSUS COMMR. OF CENTRAL EXCISE CALCUTTA [2021 (3) TMI 291 - SUPREME COURT] relied upon by the learned counsel for the petitioner cannot be considered at this stage in view of the categorical assertion made by the respondents that after making minor alternations, the goods sold by the petitioner to the Railways, can be used for other purposes as well. Therefore, only after a reply is sent by the petitioner to the impugned show cause notice, the real truth can be unearthed.
Petition disposed off.
-
2023 (3) TMI 27 - CESTAT NEW DELHI
Revocation of Customs Broker License - forfeiture of the Security deposit - levy of penalty - order passed merely based on suspicion - HELD THAT:- The SCN does not rely on anything but an email said to be sent by the DGARM indicating a list of suspicious exporters. While analysis of data to identify suspicious exporters is a good method to begin investigations, but such suspicion, however strong, cannot be a substitute for evidence.
In this case, the SCN was issued without any further enquiry and without producing any evidence documentary or otherwise. It simply jumped to the conclusion that the appellant must have violated Regulation 10(n). The logic was rather simplistic. Since DGARM sent a list of suspicious exporters identified based on data analysis and since the exporters whose exports the appellant handled formed part of the list, such exporters do not exist and also did not exist at the time the exports were made and since they did not exist, the appellant must not have conducted the verification as obligated under Regulation 10(n) and therefore, must have violated it. Therefore, the appellant’s Customs Broker licence is liable to be revoked and penalty is liable to be imposed on it.
It is not permissible to revoke the Customs Broker’s licence of the appellant with nothing more than some suspicion. The suspicion can be ground to start an investigation and if evidence is found against the Customs Broker, action must be initiated but SCN issued without any evidence whatsoever is bad in law. The inquiry report and the impugned order based on such SCN cannot be sustained - there is no evidence to support the allegation that the Customs Broker violated Regulation 10(n).
As it is found that there is no evidence of violation of Regulation 10(n) by the appellant, the revocation of its licence, forfeiture of the Security deposit and imposition of penalty cannot be sustained - appeal allowed.
-
2023 (3) TMI 26 - CESTAT KOLKATA
Seeking provisional release of seized goods - coal imported by the Respondent (RPC) having sulphur content within the prescribed limit or not - prohibited goods or not.
The sole contention of the Revenue against the provisional release of the impugned goods is that the said goods having sulphur content more than 4% and the same cannot be used by aluminium manufacturing industry, but Revenue has not disputed the fact that the Respondents are calciner and used the impugned goods as feedstock for making CPC from RPC for their customers with sulphur content ranging from 0.8% to 3.5%.
HELD THAT:- There is no harm to release the goods provisionally and merits of the case are to be dealt at the time of final adjudication of the matter. We further take note of the fact that the Ld.Commissioner(Appeals) in his order has considered the request of the Respondent for re-testing of the goods by any recognized and notified laboratory as the Customs Lab is not a recognized laboratory under Environment Protection Act - the Adjudicating authority is directed to allow the request of the Respondents for re-testing of the goods in question from a recognized notified Environment Laboratory.
There are no infirmity in the impugned orders, therefore, the said orders are confirmed - the Adjudicating authority are directed to release the goods provisionally to the Respondents immediately - appeal of Revenue dismissed.
-
2023 (3) TMI 25 - CESTAT NEW DELHI
Refund of Customs Duty - Rectification / amendment of Bill of Entry u/s 149 - Computation of Period of limitation - refund claims filed by the respondent were barred by time or not - HELD THAT:- In the present case, the order carrying out an amendment in the Bills of Entry under section 149 of the Customs Act attained finality, as the department did not challenge these orders in appeal. It is only during the course of refund applications that the department took a stand that since the order of the assessment was not assailed by the respondent in appeal under section 128 of the Customs Act, the refund applications could not be allowed. Such a stand could not have been taken by the Department. If the department felt aggrieved by the order seeking an amendment in the Bills of Entry under section 149 of the Customs Act, it was for the department to have assailed the order by filing an appeal under section 128 of the Customs Act. This plea could not have been taken by the department to contest the claim of the respondent while seeking refund filed as a consequence of the reassessment of the Bills of Entry or amendment in the Bills of Entry - The Commissioner (Appeals), therefore, committed no illegality in taking a view that refund has to be granted to the respondent as the order for amendment in the Bills of Entry had attained finality.
Whether the refund claims were barred by time? - HELD THAT:- The Commissioner (Appeals) held that if section 149 of the Customs Act relating to amendment in the Bills of Entry is made applicable, the cause of action for claiming refund would arise only after the amendment is made and so the limitation for claiming refund would start from that date. In coming to this conclusion, the Commissioner (Appeals) placed reliance upon the decision of the Bombay High Court in KESHARI STEELS VERSUS COLLECTOR OF CUSTOMS, BOMBAY [1996 (9) TMI 154 - HIGH COURT OF JUDICATURE AT BOMBAY], wherein what was examined was whether the rejection of the refund claim on the ground of limitation contemplated under section 27 of the Customs Act was justified. It was held by the Bombay High Court that the refund was within time from the date the rectification was carried out and limitation was not to be counted from the date of assessment. This decision has been affirmed by the Supreme Court in COLLECTOR VERSUS KESHARI STEELS [1997 (12) TMI 643 - SC ORDER].
It would be seen that the Bombay High Court held that the question of refund would arise only when the assessment order is rectified - the Commissioner (Appeals), therefore, committed no illegality in holding that the refund claims were not barred by time.
Appeal dismissed.
....
|
