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Customs - Case Laws
Showing 41 to 60 of 110 Records
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2023 (3) TMI 957 - CESTAT NEW DELHI
Suspension of the customs broker licence - appellant did not verify the antecedents of the exporter by visit to his premises and also that there was difference in declared value of the export goods and value arrived at by Market survey - failure to ascertain the correct value of the export consignments - failure of the appellant to verify the antecedents.
The appellant’s first contention is that there was undue delay in issuing the impugned order considering that the alleged irregularity took place on 26.06.2021 and the suspension order was issued only on 14.10.2022 - HELD THAT:- Simply because a suspicion has arisen in a particular case it is not a sufficient ground to suspend the licence of the customs broker who handled such imports/exports. Only after necessary enquiry, and investigation if a prima facie case is found against the customs broker can its licence be suspended. In this case, the Commissioner, Air Cargo, New Delhi completed the investigation and issued a SCN on 14.09.2022 and it was received by the Commissioner, Jodhpur giving him sufficient grounds to examine if suspension of the licence was warranted. The licence was suspended soon after by order dated 14.10.2022. The post decisional hearing was given and the suspension was confirmed by the impugned order dated 07.11.2022 - there are no delay at all on the part of the Commissioner, Jodhpur or any error in issuing the suspension order or in issuing the order confirming the suspension.
It is not found that the appellant confined his submission to the immediate need to suspend the licence. It is in this context that Commissioner examined the above submissions of the appellant and gave his findings. When the appellant itself has made submissions on merits as defence, the Commissioner was bound to examine those and give his findings on them. Therefore, there are no force in the submission of the learned counsel for the appellant that the Commissioner has pre-decided the issues - the Commissioner came to the conclusion that immediate action was necessary while suspending the licence on 14.10.2022 and promptly took subsequent steps for confirmation of the suspension. It is also found that after the impugned order, the Commissioner issued SCN dated 29.11.2022 proposing revocation of the licence. The appellant had, within a month, submitted its reply to the SCN dated 29.11.2022 on 26.12.2022. The enquiry officer submitted his report on 02.01.2023. All that is pending is the final decision by the Commissioner regarding revocation of licence.
There is no ground to revoke the suspension of the Customs Broker Licence of the appellant at this stage - Appeal dismissed.
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2023 (3) TMI 956 - CESTAT NEW DELHI
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - export of prohibited goods (red sanders logs), declaring it as VAT BLUE 20 - appellant’s submission was that the Shipping Bill was not filed by it or with its knowledge or consent - HELD THAT:- It is undisputed that the appellant had not filed the Shipping Bill at all and the exporter in whose name the Shipping Bill was filed was not its client. Therefore, if the exporter violated laws and attempted to smuggle out red sanders, by no stretch of imagination can the appellant be faulted. To come to such a conclusion, it must be presumed firstly that the exporter was the appellant’s client (which it was not) and that the appellant was aware that the Shipping Bill was filed (which it was not), that the appellant was aware that the exporter violated the laws (which it was impossible considering that the appellant was not even aware of the Shipping Bill) and ultimately that the appellant had not advised the exporter. Any Facility Notice by the Commissioner is to facilitate the processes and procedure in the Custom House and it does not take the shape of a statutory regulation. Therefore, even if there was a violation of any instructions in such notice, it does not automatically be concluded that the Regulations have been violated.
The violation of the Regulation has to be established. At any rate, if the appellant mainly operates in Delhi, it has no reason to keep checking the system for Shipping Bills and Bills of Entry filed in various Custom Houses across the country and also checking what instructions were issued by the respective commissioners. So long as it follows the instructions in the Customs formations where it operates, the appellant cannot be faulted.
Further, it is found that if the system is not designed to send an alert to the Customs Broker if a Shipping Bill is filed in its name in the service centre at the Custom House and only sends an alert if it is filed online, it cannot be fathomed how the appellant can be faulted if this loophole in the system was exploited by another person after making a fake Customs card.
The impugned order cannot be sustained - Appeal allowed.
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2023 (3) TMI 955 - CESTAT NEW DELHI
Levy of penalty u/s 112(a) and 114AA of Customs Act - mis-declaration of imported goods - fire crackers, total valued at Rs. 44,47,200/- - prohibited goods - case of appellant is that he himself is the victim of fraud by his employer Hemant Gandhi and his associates who used his name, photograph and identity for obtaining unknown numbers without his knowledge - HELD THAT:- This appellant was mostly acting at the instructions of his employer Mr. Hemant Gandhi. Further it appears from the facts and circumstances and the evidence on record that this appellant was not aware that fire crackers (restricted goods) are being imported under the guise of E-glass of spec chopped strand mat (B-grade). However, it appears that this appellant had some inkling that Mr. Hemant Gandhi is resorting to dubious means or unethical practice, as he instructed the appellant to represent himself as Niting Chadda instead of Nitin Gandhi before the CHA. Further, Hemant Gandhi had promised to give Rs. 20,000/- per container to the person who will allow import in their name by using their IEC. Thereafter, this appellant contracted Mr. Roshan Singh and arrange for the use of his IEC in the name of Roshan Singh and Company, for which this appellant promise to give Rs. 10,000/- per container to Mr. Roshan Singh and thus was making Rs. 10,000/- per container out of the amount of 20,000/-. In this view of the matter, it is evident that this appellant was also receiving 10,000/- for making the arrangement for import through Mr. Roshan Singh. It is further found that this appellant have not resorted to use of any documents knowing it befalls or forged.
The penalty under Section 114AA is set aside and the penalty under Section 112(a) is reduced to Rs. 1 lakh.
Appeal allowed in part.
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2023 (3) TMI 903 - CALCUTTA HIGH COURT
Seeking appointment of another officer having the same rank to hear the case of the respondents/writ petitioners relating to suspension of their license - principles of natural justice - HELD THAT:- There are two views, which are possible in the matter. The first view is that if both the officers are one and the same person, it may give an impression that the officer may be judging his own cause while considering the correctness of the submission made by the respondent/writ petitioner in the post-decisional hearing offered to them upon suspension of the customs broker license. The second view which is possible that if both the officers are one and same person and if he is discharging duties under two different and distinct capacity under two enactments whether it can be termed that he will be judging his own cause, this controversy need not be gone into for the simple reason that the post-decisional hearing should be an effective hearing and the principles of natural justice have to be followed and any iota of bias or prejudice should not surface in the decision making process.
The learned writ Court has not laid down legal principles and in the light of the grounds raised by the Department, we are of the considered view to leave the legal issues open while affirming the penultimate direction issued by the learned Single Bench directing the some other authority to conduct the enquiry pursuant to the post-decisional notice issued to the respondent.
The appeal stands dismissed and consequently the connected application also stands dismissed.
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2023 (3) TMI 902 - CESTAT CHENNAI
Classification of imported goods - import of a consignment of 270 Kg ‘Saccharomyces Boulardii’ in bulk, valued at Euro 80190 (CIF) - Department was of the view that the goods are rightly classifiable as yeast under chapter 21 and not under CTH 29183090 as ‘Carboxylic acid’ - whether the imported goods merit classification under 29183090 as adopted by appellant or under 21021090 as determined by the Department?
HELD THAT:- It is very much clear that the goods do not merit classification under Chapter 29. The appellant though classified the goods under Chapter 29, now contends that the classification determined by department is incorrect for the reason that Chapter 21 excludes yeast put up as medicament or other products of heading 3003 or 3004.
From the Safety Data Sheet itself it is clear that lactose is added as auxiliary for lyophilization. It is not an ingredient added to make it a medicine. Lyophilization is nothing but freeze drying. It is just a stabilizing process to preserve a perishable product for the convenience of transport. On the samples placed before us it is mentioned as “Saccharromyces Boulardii” and does not mention the ingredient of lactose, so as to consider it as an ingredient added to make it a medicament - The appellant has furnished medical literature to argue that Saccharromyces Boulardii is used as medicine for diarrohea. However, there is no evidence to show that this product is known in the market in ordinary parlance as a medicament for gut related problems. Thus in fact though much medical literature has been placed to contend that Saccharromyces Boulardii can be used in the treatment of gut related problems there is no evidence to establish that it is known as a medicament. The appellant has failed to show that it is sold as a medicine for diarrhoea. Merely because the appellant has been issued a License by the Drugs & Cosmetics Act, it cannot be said that the imported goods are known and understood as medicine.
In the case of M/S. ZYMONUTRIENTS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2019 (11) TMI 1287 - CESTAT CHENNAI], the Tribunal followed the decision in the case of Kasturi Foods and Chemicals [1994 (12) TMI 208 - CEGAT, NEW DELHI] to hold that the goods imported are to be classified under Chapter 21 as determined by the Department.
The decisions passed by the Tribunal as to the classification in the case of Kasturi Foods and Products Ltd. as well as in the case of M/s. Zymonutrients Pvt. Ltd. would apply and the impugned goods are to be classified under Chapter 21 as determined by the Department. The issue is answered in favor of revenue and against the appellant.
Appeal dismissed.
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2023 (3) TMI 901 - CESTAT NEW DELHI
Benefit of exemption - import of PLC Splitter Module - Denial of exemption based on expert opinion given in the test report by the IIT, Delhi - benefit denied on the ground that the goods imported by the appellant did not have lenses and therefore did not meet the criteria of the exemption under the said notification for the item namely, "PLC Splitter Module" - Mis-declaration of goods - Confiscation of goods.
HELD THAT:- That from the notification it is clear that the goods, i.e. "Microlens and Splitter" are only entitled to the benefit of exemption. Though the sample was taken in the presence of the appellant from the consignment imported, however he raised doubts on the veracity of the test report. As per the settled principles of law, the competency of the expert opinion cannot be doubted. The opinion of expert in the field of trade, who deals in those goods cannot be ignored rather due importance has to be given, Commissioner of Customs (Import), Mumbai Vs. Konkan Synthetics Fibres [2012 (3) TMI 273 - SUPREME COURT]. Therefore, the expert opinion given in the test report by the IIT, Delhi is not open to challenge. The High Court of Calcutta in Collector of Customs Vs. National insulated Cable Company Limited, [1993 (5) TMI 35 - CALCUTTA HIGH COURT], took the view that the test report of IIT, Kharagpur merits more attention and credibility.
As per the facts of the present case, goods imported by the appellant were examined 100% on first check basis and the goods were found as per the invoice and bill of entry. Merely because the appellant sought for duty exemption on the belief that the goods imported by him fall within the scope of the exemption notification and the revenue took the view that the goods imported were not as per the specifications under the notification, it is not a case where goods have been improperly imported or mis-declared so as to confiscate the goods invoking section 111(m) of the Customs Act. Consequently, the appellant was not granted duty exemption and the goods were provisionally released on payment of regular duty. There was no reason for confiscation of goods or redemption fine of Rs. 1,00,000/- or the penalty to be levied under the Customs Act. The justice will be done, if the penalty amount of Rs.9,44,601/- is set aside as no case is made out for penalty under section 112 and 114AA of the Customs Act. Also, there is no reason to confiscate the goods under Section 111(m) and consequently impose the redemption fine.
The appeal is disposed of accordingly and the impugned order is modified by upholding the demand of differential duty but setting aside the confiscation, fine and penalty.
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2023 (3) TMI 900 - CESTAT MUMBAI
Compounding of offence - restricted goods or prohibited goods - import of Gold - Application for Compounding of Offence in terms of Section 137(3) of the Customs Act, 1962 read with the Customs (Compounding of Offences) Rules, 2005, rejected - denial by resorting to the definition of ‘prohibited goods’ as prescribed under Section 2(33) ibid - HELD THAT:- It is true that an application for compounding can be rejected but only due to the reasons mentioned under proviso to Section 137 ibid and for no other reason whatsoever. But the learned Chief Commissioner failed to appreciate that the expression used in the proviso to Section 137(3) is prohibited items whereas for rejecting the application he relied upon the definition of prohibited Goods as prescribed u/s. 2(33) ibid.
Gold is freely importable and therefore can such a good will become prohibited merely because it was imported illegally without prior permission? In my view the answer is in negative. The learned Chief Commissioner has rejected the application merely on the ground that since the gold bars have been imported illegally therefore the definition of ‘prohibited goods’ as per sec.2(33) gets attracted and the gold bars becomes prohibited goods for which no compounding application is maintainable. According to me, learned Chief Commissioner has misdirected himself by looking into the definition of ‘prohibited goods’ as prescribed u/s. 2(33) of Customs Act, 1962 because Section 137(3)(ii) ibid only talks about prohibit items and specifically mentioned that it has no application if the goods involved are prohibited items for import and export in the ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy - The definition of prohibited goods prescribed u/s. 2(33) by any stretch cannot be applied into the provision of Section 137 (3)(c)(ii) ibid. The learned Chief Commissioner failed to appreciate that Section 2 ibid itself begins with the words ‘unless context otherwise requires’.
The Hon’ble Supreme Court in the matter of Commr. of Customs vs. Atul Automations Pvt. Ltd.[2019 (1) TMI 1324 - SUPREME COURT] rejected the submission raised by revenue that Multi-Function Devices although were a restricted and not prohibited item but absence of necessary authorization under the Foreign Trade Police would give it the character of a prohibited item and has laid down that there exists a fundamental distinction between what is prohibited and what is restricted. So when ‘restricted goods’ in absence of proper authorization cannot be treated as ‘prohibited’ then the gold bars herein are on a much better footing as its freely importable. The only reason given by the learned Chief Commissioner for rejecting the application is that the goods involved herein becomes prohibited goods by importing in violation of the conditions imposed for their import, therefore the application is not maintainable which, is totally contrary to the legal position and the language of the statute.
The application is restored to the file of the learned Chief Commissioner for adjudication on merits after giving sufficient opportunity of hearing to both sides - Appeal allowed.
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2023 (3) TMI 899 - CESTAT NEW DELHI
Demand of duty along with interest as well as imposition of penalty under Section 112 of Customs Act - warehousing period extension not sought as well as no steps for taking delivery of the warehoused goods taken - in the meantime goods (wine) was rendered unfit for human consumption - relinquishment to the title to goods - HELD THAT:- In the facts and circumstances of this case, the appellant have exercised their right of relinquishment, as permissible under Section 68 (as amended). However, it seems that the appellant exercised the right of relinquishment when they realized that the goods are no longer fit for human consumption. It is further found that Revenue has also been sleeping over the matter and in spite of expiry of the warehousing period, as early as in June, 2004 and the last order of warehousing period expired on 16.08.2008. Revenue also kept sleeping over the period and never issued any notice for demanding the duty along with applicable interest etc., which clearly indicates the contributory negligence on the part of the Revenue. The provisions of warehousing, particularly Section 61(1) read with proviso provides, that where the goods are likely to deteriorate , the period referred to (one year) may be reduced by the authority to such shorter period as he may deem fit. Thus, there was obligation on the part of the customs authorities also to keep in mind the period of expiry of goods, which were meant for human consumption and to pass orders accordingly in the interest of Revenue.
The appellant is not liable to pay duty, as till the time of relinquishment, no duty or other charges had been demanded from them. However, in the circumstances, as the appellant have also allowed the goods to deteriorate by not taking action timely to relinquish the goods within a reasonable time, they are held liable to penalty - penalty under Section 117 is imposed instead of Section 112 - reduced penalty of Rs. 1 Lakh is confirmed.
Appeal allowed in part.
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2023 (3) TMI 848 - MADHYA PRADESH HIGH COURT
4th bail application under Section 439 of the Code of Criminal Procedure, 1973 - Smuggling - gold - bail also claimed on medical grounds - habitual offender - Revenue opposes the bail application and prays for its rejection submitting that the applicant's earlier two bail applications have been rejected on merit after considering all the facts and circumstances of the case and there is no material changes in the circumstances, in which the applicant may be deserve for bail.
HELD THAT:- Taking note of the fact that the applicant's earlier two bail applications were rejected on merit after considering all the facts and circumstances of the case and the arguments advanced by counsel for the applicant; the applicant is a habitual offender or not is the fact which may be proved during trial; although the co-accused Shankar Singh Yadav has been enlarged on bail in SHANKAR SINGH YADAV VERSUS DIRECTORATE OF REVENUE INTELLIGENCE & ANR. [2023 (3) TMI 791 - SC ORDER], but the case of present applicant is different from the co-accused Shankar Singh Yadav, therefore, he cannot claim parity with the co-accused Shankar Singh Yadav.
So far as medical ground taken by the applicant is concerned, from the report dated 06/03/2023 issued by Meeical Officer, Central Jail, Indore, it is clear that proper treatment is being provided to present applicant and he had been sent to M.Y. Hospital, Indore for the purpose of colonoscopy and other treatment and he was advised for surgery at M.Y. Hospital, Indore, but after admission, the applicant himself denied for the aforesaid surgery; the applicant himself is not ready to take treatment; the required treatment is available in Government Hospital also, therefore, on the basis of the treatment, he cannot be enlarged on bail.
This Court is not inclined to grant bail to the applicant - Application dismissed.
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2023 (3) TMI 847 - DELHI HIGH COURT
Maintainability of appeal - allegations regarding fraudulent import of goods (tyre scrap) - forging customs copy of the Bills of Entry - right to prefer an appeal under Section 129A or 129D of the Customs Act, 1962 against an order passed under Regulations 21 or 23 of the Custom Broker Licensing Regulations, 2013 is available only to a Custom Broker?
HELD THAT:- In terms of Regulation 21 of the CBLR, 2013, an appeal against the order of the Commissioner is available only to the Custom Broker and not to the Revenue. The question whether an appeal by the Revenue would be maintainable is covered against the Revenue, by the decision of this Court in CCOMMISSIONER OF CUSTOMS (GENERAL) VERSUS FALCON INDIA [2018 (11) TMI 314 - DELHI HIGH COURT]. The said decision was also followed by a Co-ordinate Bench of this Court in COMMISSIONER OF CUSTOMS (GENERAL) VERSUS D.S. CARGO AGENCY [2022 (10) TMI 752 - DELHI HIGH COURT]. The Court had held that, CBLR was a complete code. Further, the expression “any person aggrieved” as used in Section 129A of the Customs Act, 1962 would not include Revenue insofar as any order passed by the Commissioner of Customs under the CBLR, 2013 is concerned.
Appeal dismissed/
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2023 (3) TMI 846 - MADRAS HIGH COURT
Refund claim - seeking re-assessment of the Bills of Entry in terms of Section 149 read with Section 154 of the Customs Act, 1962 - duty paid without noticing that the petitioner is eligible for a concessional rate of tax at of 15% vide Notification No.57 of 2018 – Cus dated 07.08.2018 - rejection of request for re-assessment and refund on the ground that the petitioner had not filed statutory appeal with the appropriate authority seeking modification of the self-assessment.
HELD THAT:- Inter-alia the first respondent refers to a Public Notice issued by the Commissioner of Customs / R2 in Public Notice No.88 of 2009 dated 18.10.2019. In this public notice, the authority refers to a judgment of the Hon'ble Supreme Court in the case of IITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT]. In that judgment, the Hon'ble Supreme Court was concerned with the question as to whether in the absence of any challenge to an order of assessment by way of appeal, a refund application against the assessed duty could be entertained.
Public Notice No.88 of 2019 which states that 'no reassessment shall be allowed unless the order of assessment including self assessment is duly modified by way of appeal' is incorrect as it places a restriction on the mode of re-assessment. No restrictions was envisaged by the Hon'ble Supreme Court that has made it clear that the modification could be by way of statutory appeal or under relevant provisions of the Act. To this extent, the stipulation in public notice dated 15.10.2019, does not align with the ratio of the judgment of the Supreme Court.
In light of the categoric pronouncement of Hon'ble Supreme Court as aforesaid, resort to Section 149 of the Customs Act is perfectly in order and thus the application of the petitioner is restored to the file of the first respondent for consideration in line with the conclusion in the case of ITC and observations made herein - In the present case, the document is a statutory Notification. The authority is directed to hear the petitioner, consider applicability or otherwise of the Exemption Notification to its case and pass orders afresh, all within a period of four weeks from date of receipt of this order.
Petition allowed.
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2023 (3) TMI 845 - KARNATAKA HIGH COURT
Refund / return on amount collected during investigation - It submitted that, teh amount collected and retained by the Respondent No.3 without the authority of law - payment was made under compulsion and has to be construed as "payment under protest" - respondents/revenue contended that the petitioner had deliberately chose to insure value of the imported goods and excluded the customs duty and consequently, the question of refunding the customs duty / tax to the petitioner do not arise.
Can any subsequent show-cause notice or adjudication proceedings be made the basis to deny refund?
HELD THAT:- As can be seen from the Circular dated 25.05.2022, no recovery can be made unless the amount become payable in pursuance of the order passed by the Adjudicating Authority or otherwise become payable under the provisions of the GST Act as well as under the provisions of the Customs Act also. The Circular dated 19.01.2022 clearly states that arrears are the over due payment of the amount of tax, interest, fine or penalty that is confirmed against a person who is liable to pay the same to the exchequer and it arises as result of Order-in-Original. The said Circular also clarifies the amount in the case under investigation, unconfirmed demands, Show Cause Notice etc., and the Order-in-Original that has been set aside or remanded for de-novo adjudication by Appellate authority do not fall under the category of arrears.
In the instant case, it is an undisputed fact that prior to recovery of a sum of INR 1.5 crores from the petitioner, there is no adjudication or any order made/passed by the respondents, which entitled them to recover the money paid by the petitioner. As rightly contended by the learned Senior counsel for the petitioner, the respondents have themselves admitted in their statement of objections that the petitioner did not voluntarily make the payment and that he made it under protest. Under these circumstances, in the light of the aforesaid material on record, which clearly establishes that the petitioner had made the payment under protest and that the payment was not preceded by any order of adjudication, the respondents did not have any jurisdiction or authority of law to recover INR 1.5 crores, which is clearly violative of Article 265 of the Constitution of India and consequently, the petitioner would be entitled to refund of the aforesaid amount collected by the respondents without jurisdiction or authority of law.
In the case of M/S. VALLABH TEXTILES VERSUS SENIOR INTELLIGENCE OFFICER AND ORS. [2022 (12) TMI 1038 - DELHI HIGH COURT] the High Court of Delhi has held that The violation of the safeguards put in place by the Act, Rules and by the Court, to ensure that unnecessary harassment is not caused to the assessee, required adherence by the official respondents/revenue, as otherwise, the collection of such amounts towards tax, interest and penalty would give it a colour of coercion, which is not backed by the authority of law.
This Court has categorically held that the contention of the Department that the amount under deposit must be made subject to the outcome of the pending investigation cannot be accepted. It is therefore clear and evident that in the instant case also, the subject amount of INR 1.5 crores collected from the petitioner – company by the respondents is in violation of Articles 265 and 300-A of the Constitution of India and the same deserves to be refunded back to the petitioner - in the facts of the instant case, in the absence of any material to establish that there was any order or adjudication made by the respondents quantifying the amount of tax / duty payable by the petitioner as on the date of collecting / recovering the same during investigation, the respondents were clearly not entitled to recover the same, leading to the sole inference that the respondents are liable to refund the amount collected by them.
The facts of the instant case clearly establishes that the respondents have recovered INR 1.5 crores during the course of search proceedings, is without jurisdiction or authority of law and without being any order of adjudication and consequently, in the facts of the instant case, the respondents would be liable to pay refund with applicable interest - Petition allowed.
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2023 (3) TMI 844 - MADRAS HIGH COURT
Applicability of doctrine of unjust enrichment to claims of refund made prior to the introduction of Section 11 B of the Central Excise Act, 1944 and Section 27 (1A) of the Customs Act, 1962 - applicability of the doctrine to capital goods, raw material/ test material.
HELD THAT:- The view of the Tribunal that in the absence of an express provision the doctrine of unjust enrichment cannot be applied is contrary to the judgment of the Hon’ble Supreme Court in the case of SAHAKARI KHAND UDYOG MANDAL LTD. VERSUS COMMISSIONER OF C. EX. & CUS. [2005 (3) TMI 116 - SUPREME COURT], wherein it was held that the doctrine of “unjust enrichment” is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11-B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11-B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in the absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner-appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss.
The Hon’ble Supreme Court in the case of COMMNR. OF CENTRAL EXCISE, CHENNAI-III VERSUS GRASIM INDUSTRIES [2015 (4) TMI 389 - SUPREME COURT] had held that the unjust enrichment will also apply to the capital goods, inputs and raw materials and any claim for refund ought to be tested by examining whether the higher duty paid has led to higher costing/price of the final product which should be demonstrated by the assessee to be in the negative to claim the benefit of refund.
It thus appears that the order of the Tribunal insofar as it holds that the doctrine of unjust enrichment is not applicable to the facts is erroneous. In view of the same, the matter is remanded back to the original authority to decide the claim of the Respondent/Assessee to refund applying the doctrine of unjust enrichment after giving the Respondent/Assessee a reasonable opportunity.
Appeal allowed by way of remand.
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2023 (3) TMI 843 - CESTAT AHMEDABAD
Valuation of import goods - Levy of custom duty on the value determined on the quantity received in Shore Tanks as claimed by the Appellants or on transaction value based on invoice price of the overseas suppliers - bulk liquid cargo imports of Motor Spirit (MS) - whether the cargo is chargeable to ad valorem rate of duty or to specific rate of countervailing duties?
HELD THAT:- The issue is no longer res integra as the same has been decided by the Hon’ble Supreme case in the of MANGALORE REFINERY AND PETROCHEMICALS LTD. VERSUS COMMISSIONER OF CUSTOMS, MANGALORE [2015 (9) TMI 245 - SUPREME COURT] where it was held that the quantity of crude oil actually received into a shore tank in a port in India should be the basis for payment of customs duty. Consequential action, in accordance with this declaration of law, be carried out by the customs authorities in accordance with law. A
The appellant’s claim of payment of Customs duty on quantity received in shore tank is correct and legal and revenue claim of duty payment on transaction value based on invoices of all overseas suppliers is not sustainable - appeal allowed.
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2023 (3) TMI 842 - CESTAT AHMEDABAD
Classification of imported goods - import of de-natured ethyl for re-exports - classifiable under the Chapter Heading 22072000 of the Customs Tariff or under CTH 22071000? - confiscation alongwith option of redemption fine - penalty - case of the revenue in the present matter is that subject goods found to be Ethyl Alcohol in terms of test report dated 20.01.2021 and further clarification issued by the CRCL, Kandla.
HELD THAT:- In the present matter by relying the test report given by CRCL, Kandla revenue argued that sample of goods are not considered as denatured Alcohol as per the Indian Standard, Alcohol Denaturants Specification IS 4117 (2008). Therefore the impugned goods are Ethyl Alcohol and not denatured ethyl alcohol. In this context we noticed that Board issued circular 02/2006 dated 10.01.2006 wherein the requirement of IS 4117-1973(2008) related to alcohol denaturants is made.
We agree with the argument of Learned Counsel that the aforesaid Circular is not applicable to the disputed goods under consideration because the above circular issued with regard to denaturation of ethyl alcohol that is to be allowed clearance for industrial use in India and not with regards the goods imported and bonded for re-export. There is no allegation against the appellant that the disputed goods was imported for industrial use in India. Since such goods are not meant for any use in India, the same are not required to be allowed clearances in India. Hence the charges of mis-declaration of goods against the appellant by citing the non-compliance with IS 4117-1973 (2008) is completely misconceived and cannot be sustained.
Confiscation of goods on the non-compliant of IS 4117 (2008) - HELD THAT:- As per the Board Circular No.2/2006 dated 10.01.2006 this requirement is applicable to goods meant for clearance into India and not to any such goods which are meant for re-export and use outside India, the goods which are admittedly meant for re-export. First of all, there is no violation of compliant of IS 4117 (2008) even if it is required in view of the goods being re-exported. There is no case of confiscation of goods under Section 111(m) of the Customs Act, 1962 accordingly, the penalty under Section 112 and 114 of the Customs Act, 1962 are not sustainable.
Penalty under Section 114AA of the Customs Act, 1962 - charge of mismatch in the date of bill of lading in as much as the date mentioned in the bill of lading presented by appellant along with bill of entry was also reported by the master/agent in the Import General Manifest filed in the EDI system - HELD THAT:- It is clearly mentioned in the bill of lading that the shipment of 1900 MT. was loaded on board of vessel as part of one original lot of 38,386.137 MT. as Galveston Tx, USA on 27.10.2020. This has been corroborated by the statement of various representative recorded by the officers in the course of inquiry therefore, in absence of contrary evidence, the allegation that the date of lading mentioned in the bill of lading is incorrect and not justified.
There are force in the appellant’s submission as reliance placed on ‘Commercial Certificate of Quality’ No. LABORATORY JOB NO.DP 20-11252.004 dated 29.10.2020 when the goods were mentioned as ‘Undenatured Ethyl Alcohol’ is misplaced in as much as the said invoice was issued prior to denaturation at the Galveston anchorage. After arrival into India, the Chemical Examiner of Custom House laboratory at Kandla has certified that goods have been denatured with Bitrex/Denatonium Benzoate. On this basis, the conclusion of the authorities below that the bill of lading is incorrect and false in respect of description of goods as well as imposing penalty on the appellant under Section 117 of the Customs Act, 1962.
The order of confiscation and subsequent penalties is bad in law as well in fact - the confiscation and redemption fine are set aside - Penalties also set aside - appeal allowed.
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2023 (3) TMI 841 - CESTAT KOLKATA
Levy of penalty for non finalization of provisionally assessed Bills of Entry - HELD THAT:- It is seen that in case of 4 Bills of Entry, the assessment were not finalized without any fault on the part of the Appellant. The issue is also covered by the case law of Jai Balaji Industries Ltd. [[2021 (1) TMI 767 - CESTAT KOLKATA]] wherein, this Tribunal has held The department has not been able to establish any deliberate delay or any mala fide intention on the part of the appellant. As and when the appellant could gather the requisite documents they were presented before the assessing officers for finalizing the provisional assessments. In fact, out of the 35 Bills of Entry involved, 27 could be finalized even before passing of the adjudication order. Keeping all this in view, the adjudicating authority took a fair decision and imposed a nominal penalty of Rs.20,000/ which comes to Rs.2,500/- for each of the remaining 8 Bills of Entry yet to be finalized for want of all the documents.
The Appeal is allowed holding that the Adjudicating Authority was correct in taking a lenient view imposing penalty of Rs.10,000/-
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2023 (3) TMI 840 - CESTAT CHENNAI
Demand of Differential Duty - inclusion of clean energy cess with the Basic Customs Duty for the calculation of Customs Education Cess and Higher Education Cess - HELD THAT:- The issue stands covered in the appellant’s own case CHEMPLAST SANMAR LTD. VERSUS COMMISSIONER OF CUSTOMS, TIRUCHIRAPALLI [2018 (2) TMI 89 - CESTAT CHENNAI] where it was held that it is amply clear that Education Cess levied under Section 81(1) of Finance Act, 2004 on imported goods specified in First Schedule to the Customs Tariff Act, 1975 into India at the rate of 2% on aggregate duty of Customs levied under Section 12 of Customs Act, 1962 as per Section 84 (1) read with Section 84 (2) of Finance Act, 2004 will also levied on Clean Energy Cess as being part of aggregate of Customs.
There are no merit in these appeals. Appeals filed by the appellants are dismissed.
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2023 (3) TMI 808 - CALCUTTA HIGH COURT
Revocation of Customs Broker License - whether the Principal Commissioner of Customs was justified in revoking the Customs Brokers License granted in favour of the respondent?
HELD THAT:- The Tribunal took note of the facts of the case and noted that let export orders were issued by the Customs Department after due verification by the concerned officials and the export manifest was also generated thereby implying that the goods in question has crossed the border. The Tribunal noted that in such factual scenario, the mere allegation that the respondent has not advised the exporter in an appropriate manner and he did not exercise due diligence was not established by the revenue by bringing on record the role played by the respondent in the alleged fake exports. It appears to be not in dispute that the respondent was not a co-noticee against any action initiated under the Customs Act along with the exporters and the allegation against the respondent is that they alleged to have violated regulation 10(d) and 10(e) of the Act. The Tribunal after noting the facts of the case slightly modified the order of penalty by ordering forfeiture of only Rs.25,000/- from and out of the security deposit furnished by the respondent.
The Tribunal has examined the facts of the matter and exercised discretion and interfered with the order of revocation of license - there is no question of law, much less substantial question of law arising for consideration in this appeal.
Appeal dismissed.
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2023 (3) TMI 807 - CESTAT AHMEDABAD
Demand of differential duty - related party or not - influenced import price or not - existence of any relationship between OMIFCO and KRIBHCO, the appellant and Government of India - HELD THAT:- On the identical issue number of Show Cause Notice were issued to IFFCO and KRIBHCO out of that some appeals of IFFCO and KRIBCO have been decided by this Tribunal in INDIAN FARMERS FERTILIZERS CO OPERATIVE LIMITED, KRISHAK BHARTI COOPERATIVE LIMITED VERSUS C.C. -KANDLA AND C.C (PRV.) , JAMNAGAR VERSUS INDIAN FARMERS FERTILIZERS CO OPERATIVE LIMITED [2023 (1) TMI 155 - CESTAT AHMEDABAD]. Since the identical issue and fact are involved in all the cases, in this case there is nothing more to add - It was held in the case that it is clear that even if it is assumed that the buyer and seller are related in terms of Rule 2 (2) of valuation Rules, 2007 read with explanation II of said Rule, the price at which the goods were purchased from OMIFCO is the true transaction value and not influenced by their relationship. In the present matter Department has also not produced any evidence to show that the relationship between the parties has influenced the price. Therefore, the reasons for rejecting the transaction value is not in consonance with law and therefore liable to be set aside.
Appeal allowed - decided in favour of appellant.
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2023 (3) TMI 806 - CESTAT NEW DELHI
Forfeiture of the whole amount of security deposit alongwith imposing penalty on the Appellant a Courier Agency - Appellant irresponsible for the misgivings on the part of their employee Mr M.S. Pareek, who persuaded Navya Creations to introduce the consignment of an outsider without informing or taking permission of the competent officer of the Appellant - ack of internal control procedures at the end of the Appellant - Appellant as an authorised courier has failed to verify the details of actual exporter and its functioning at the given address - failure to comply with the obligation under Regulation 12(iv) of CIER, 2010.
HELD THAT:- It is found that there is no failure on the part of the Appellant under Regulation 6 (4) of CIER, 2010, as no case is made out of any violation of any instructions or public notice issued by the customs. Further, there is no allegation that the export consignments in question were not presented properly to the proper officer or to the satisfaction of the proper officer. Accordingly, the allegation and finding under Regulation 6(4) are set aside.
Regulation 12 (iv) of CIER - HELD THAT:- In the case of booking of consignment through Navya Creations for one Mr. Rakesh Jagid, there is no violation of the provision, as both Navya Creation and Rakesh Jagid have responded in the course of enquiry and cooperated in the matter. However, so far the booking of the 2 consignments through their ASP- Allied Aviation Private Limited for one Mr. Munshi Jogi is concerned, it is evident that the Appellant did produce the relevant KYC documents (Aadhar card) of their client, but there is lack of sufficient efforts to trace and produce the said Mr. Munshi Jogi before the customs for enquiry and investigation. Thus, there is no violation of Regulation 12 (iv) of CIER with regard to the 2 consignments booked for the consignor - Mr. Munshi Jogi. The Appellant had urged that as the consignment was booked through their ASP, they had accepted the consignment relying on their ASP.
Allegation under Regulation 12(v) - only allegation is that there is delay of about 3 months in bringing details/ information to the knowledge of the customs - HELD THAT:- The Appellant was in constant touch and had kept the customs informed. The apparent contravention is only due to involvement of three agencies, the Customs House, thereafter, the DRI and thereafter the SIIB. Thus, there is only few days gap in informing the particular agency but there is no deliberate keeping back of any information or giving or withholding any information whenever asked for. Accordingly, this ground is allowed and the findings of ld. Commissioner is set aside.
Allegation under Regulation 12 (vi) and (vi) - HELD THAT:- It is found that there is lack of control and proper administration on their ASP. Further, appellant should have immediately informed the customs on termination of their employee – M.S. Pareek with his future correspondence address and contact phone numbers. Aslo the illegal activity was found by customs, there being no complicity of the appellant.
The order of forfeiture of security deposit of Rs. 10 lakhs is set aside - amount of penalty under Regulation 14 of CIER is reduced to Rs. 20,000/- - appeal allowed in part.
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