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Customs - Case Laws
Showing 61 to 80 of 110 Records
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2023 (3) TMI 791 - SC ORDER
Denial of Bail - Smuggling of Gold - HELD THAT:- Petitioners have been in custody for nearly one year. The prosecution intends to examine 35 witnesses, out of which 3 have deposed during the proceedings. Considering that in this case the recoveries were made and even the penalty order has been framed by the competent authority, the petitioners are directed to be enlarged on bail subject to such conditions as the trial court may impose.
SLP allowed.
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2023 (3) TMI 754 - CESTAT CHENNAI
Eligibility for benefit of exemption under Notification No.06/2006-CE (Sl. No.84) - imported goods (Tubular Tower) are parts of the Wind Operated Electricity Generator or not - HELD THAT:- As per list 5 wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller are eligible for exemption. The issue as to whether towers form part of WOEG was considered by the Tribunal in the case of HYUNDAI UNITECH ELECTRICAL TRANSMISSION LTD. VERSUS CCE., NAGPUR [2005 (7) TMI 129 - CESTAT, MUMBAI] where it was held that When the exemption in respect of the excise duty is granted to the parts of the wind operated electricity generator at the time of clearance from their factory and the Tribunal having held that the tower is a part of wind operated electricity generator, ratio of the above decision of the Tribunal squarely applies t the facts of the present case. Undisputedly, the goods manufactured by the appellants and cleared by them were meant for wind operated electricity generator, being tower material and, as such, were entitled to the benefit of Notification 6/2000.”
Thus the appellant is eligible for the benefit of exemption as per the Notification No.6/2006-C.E. - appeal allowed.
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2023 (3) TMI 753 - CESTAT CHENNAI
Levy of of additional duty - seeking a direction to the Assistant Commissioner to refund the excess duty collected - rejection of appeals on the ground that the duty was not paid under protest nor the Bills of Entry have been assessed provisionally - HELD THAT:- During the relevant time, after an importer files a Bill of Entry (BE) under section 46 of the Customs Act, 1962 (Act) for the goods imported by him, it shall as per section 17(1) be examined and tested by the proper officer. As per 17(2) after such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed by him. While as far as the description of the goods, quantity, value etc. are concerned, the importer is bound to state the truth in the BE, it is left to the proper officer to assess the goods to duty. Assessment means determination of the tax liability. While an importer can make a claim for exemption under any notification he feels is applicable to his goods, it is left to the proper officer to examine that claim, accept or reject it or to assess the goods to duty based on a provision not factored by the importer in the BE. In case the proper officer does not agree with the claim for exemption made by the importer or he seeks to impose duty not factored in the BE filed by the importer, he can resort to finalizing the assessment as provided for in section 17(5) of the Act.
This being so it was for the Learned Commissioner ((Appeals) to examine whether the provisions of the said section had been satisfied. When he had found that the appellant was directed by the original authority to take steps for assessing the goods under Notification No.49/2008-CE(NT) dated 24.12.2008, he should also have examined whether there was a written acceptance of that direction by the appellant/ importer, in the absence of which the proper officer should have passed a speaking order within fifteen days of the date of assessment of the BE - Without a written acceptance it could not have been concluded by the Learned Commissioner (Appeals), that since the appellants have cleared the goods on payment of duty as suggested by the proper officer, they have accepted the assessment of the BE.
Matters remanded back to the original authority to pass a speaking order as contemplated under section 17(5) of the Customs Act, 1962.
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2023 (3) TMI 752 - CESTAT CHENNAI
Benefit of exemption of SAD - refund claims filed were rejected as premature by the Assistant Commissioner of Customs (Refunds) as there was no challenge of assessment done in terms of the Hon’ble Apex Court decision in the case of PRIYA BLUE INDUSTRIES LTD. VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) [2004 (9) TMI 105 - SUPREME COURT] - Applicability of N/N. 51/96-Cus dated 23.07.1996 for import of various scientific and technical instruments during June, 2011 to August 2011 - excess duties paid are refundable or not without challenging the self-assessment or order of the assessment of the bills of entry as found in this appeal.
HELD THAT:- The issue is covered in the assessee’s own case NATIONAL INSTITUTE OF OCEAN TECHNOLOGY VERSUS COMMISSIONER OF CUSTOMS (AIR) , CHENNAI [2015 (4) TMI 198 - CESTAT CHENNAI] where it was held that In absence of any description and nomenclature of additional duty in the notification there cannot be any interpretation otherwise possible to deprive the appellant from exemption of additional duty of Customs. In view of the clear mandate of the notification to exempt additional duty of customs, the goods imported are eligible to the exemption from additional duty of customs thereon.
Non-challenge to the order of assessment against the bills of entry - HELD THAT:- The Tribunal has held in the case of M/S. FRESENIUS MEDICAL CARE INDIA PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS - IV CHENNAI [2018 (7) TMI 103 - CESTAT CHENNAI] has held that the Court noticed that it was always not necessary to have an order of assessment for a person to claim refund of duty. The initial payment of duty in terms of Section 27(1)(i) of the Act could be pursuant to an order of assessment or in terms of Section 27(1)(ii) of the Act could be borne by him.
However, it is noted that the Hon’ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] has held that the assessment order including self-assessment needs to be challenged to become eligible for refund. In this case, the appellants when applied for refund, the refund sanctioning authority has communicated vide their letter F. No. S25A/ Gen/27/2010-Ref (Air) dated 16.09.2011, that the order of assessment cannot be reviewed or modified in terms of the Hon’ble Apex Court decision in the case of M/s. Priya Blue Industries Vs. Commissioner of Customs. Refund would arise only if the order is reviewed, modified or revised. The decision of the Hon’ble Apex Court in ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV set aside the decisions in the case of AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT] and MICROMAX INFORMATICS LIMITED VERSUS UNION OF INDIA & OTHERS [2016 (3) TMI 431 - DELHI HIGH COURT].
Thus, there is no need to decide about the eligibility of the appellant for SAD exemption under Notification No. 51/1996 was issued on 23.07.1996.
Further, the facts in this appeal clearly indicate that the appellants have not challenged the order of assessment, as such, we have to hold that appellants are not eligible for the refund. The order of rejection of refund by the refund sanctioning authority is upheld.
Appeal dismissed.
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2023 (3) TMI 751 - CESTAT CHENNAI
Classification of goods - import of two seed processing lines for seed processing plant, each with an intake capacity of 10 tons per hour vide two Bills of Entry, among the Bills of Entry, the second Bill of Entry was for partial shipment / part delivery - respondent classified the goods under CTH 8437 as applicable to seed processing machine - adjudicating authority observed that the respondent has not complied with the procedure under Public Notice No.91/87 as applicable for such partial shipment - HELD THAT:- The department has denied the classification adopted by the respondent (CTH 8437), as rightly discussed by the Commissioner (Appeals), it is not stated either in the show cause notice or in the Order-in-Original as to what would be the correct classification if the goods are not to be classified under CTH 8437. The demand has been raised by denying the classification to under CTH 8437.
The Commissioner (Appeals) has analyzed the said issue and held that Only, when the goods, which were other than the complete machinery, imported separately without accompanying the main machinery, there can be a doubt that it can be put to more than one use and cannot be considered to be classified under CTH 8437 and should be classified under the respective heading of its individual description, material of make etc. Last but not the least, the whole consignment imported vide two bills of entry put together formed two processing lines for processing seed can be confirmed from the jurisdictional Central Excise authorities.
The other allegation raised by the department is that the respondent has not followed the procedure laid down in Public Notice No.91/87. The said issue has also been analyzed by the Commissioner (Appeals) holding that Probably for the reason that the consignment might have been received under two IGM numbers, the appellant filed two bills of entry for clearing the same. Further, that may be the probable reason, the appellant might have not followed the procedure laid down under PN No.91/87 as the consignment was cleared together though vide two bills of entry. There is a valid point in the contention of the appellant in this regard.
It has to be seen that the proforma invoice shows the import of composite unit comprising of two seed processing lines. It is not in dispute that the order placed for supply would be complete only by including the goods imported vide both Bills of Entry. Merely because some parts were imported separately and cleared under a separate Bill of Entry, the department cannot contend that the goods cannot be classified under CTH 8437.
There are no reasons to interfere with the decision arrived at by the Commissioner (Appeals) - appeal filed by Revenue dismissed.
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2023 (3) TMI 750 - CESTAT CHENNAI
Refund of Special Additional Duty (SAD) - rejection of part amount observing that appellant has not satisfied the requirement as stipulated in para 2 (b) of the notification (endorsement as required under para 2(b) of the notification was not made, and in the invoices it was handwritten that ‘credit is not admissible on SAD’).
Whether the appellant is eligible for refund even though the requirement under condition 2(b) of the Notification No.102/2007-Cus. dated 14.09.2007 has not been complied?
HELD THAT:- It is not disputed that the appellant-importer is a trader. In CHOWGULE & COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2014 (8) TMI 214 - CESTAT MUMBAI (LB)], the Larger Bench has decided the issue holding that A trader-importer, who paid SAD on the imported .good and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus., notwithstanding the fact that he made no endorsement that “credit of duty is not admissible” on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein.
Thus, the rejection of refund cannot be justified - the appellant is eligible for refund - appeal allowed.
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2023 (3) TMI 703 - CALCUTTA HIGH COURT
Smuggling - Betel nuts (foreign Origin goods) - goods notified under Section 123 of the Customs Act or not - burden to prove - reliability on statements which were subsequently retracted - HELD THAT:- Based on presumptions and assumptions, it cannot be held that the goods were smuggled goods and in the absence of any evidence produced by the revenue to discharge the burden cast upon them, the Tribunal noting the facts of the case had rightly granted the relief in favour of the respondents. Furthermore, there was no testing of the seized goods through any accredited Agency for determining any constituent property or characteristic that would indicate or establish foreign origin of the said goods. The Tribunal noted that the only evidence on the basis of which the proceedings were initiated and the order of adjudication was passed against the nine respondents is based on a statement recorded from the respondent in CUSTA 22 of 2022. All the respondents were arrested and produced before the learned Chief Judicial Magistrate, Siliguri before whom the so-called voluntary statements were retracted.
Furthermore, the Tribunal noted that there was no discussion on the retraction of statements made on oath by the respondents and the witnesses who implicated the respondents were not produced for cross-examination in spite of a specific request made by the concerned respondent and this request was rejected on the ground that the occupants of the trucks had allegedly described the true facts in course of the statements recorded under Section 108 of the Act which were affirmed by the respondent.
Whether the request of cross-examination could have been rejected? - HELD THAT:- On a thorough factual analysis and noting the legal position, the Tribunal came to the conclusion that the department has failed to establish that the said goods are smuggled goods. The respondent in claimed ownership of the seized goods and prayed for a direction to return the goods to him and the Tribunal analysed the documents and directed return of the goods - The entire case is fully factual and, no substantial question of law arises for consideration
Return of the goods - HELD THAT:- Admittedly, the goods are perishable in nature and the goods were seized on 1st march, 2016 and the question of returning the goods to the respondent in CUSTA 22 of 2022 at this juncture does not arise as the goods would be unfit for human consumption and it will be against the public interest to direct return of the goods. Therefore, to that extent, the order passed by the Tribunal stands modified giving liberty to the respondent, namely, Md. Tashin Shah to seek for payment of the value of the goods by making an application before the concerned authority and if such application is made within a period of thirty days from the date of receipt of server copy of this order, the said application shall be processed in accordance with law.
Appeal dismissed.
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2023 (3) TMI 702 - CESTAT AHMEDABAD
Classification of goods - bhusi/ bhuki of pulses / pulses waste cleared from Kandla SEZ - classifiable under Chapter heading 07139099 or 11061000 of Customs Tariff Act, 1975? - eligibility for exemption Notification No. 12/2012-Cus dated 07.03.2012 - case of the department is that the goods cleared by the appellants from Kandla SEZ is Pulses Grinding (Atta of Pulses)- Powder hence the same is not classifiable under Chapter heading 07139099 but classifiable under heading 11061000.
HELD THAT:- The appellant declared the product as Pulses Grinding (Atta of pulses)-Powder and with this description, it prima-facie appears that the goods are not in the form of pulses but in the form of Atta or Powder. However, the learned Counsel submits that the same is not arising out of milling process as they do not have milling industry.
The learned Counsel submitted a detailed affidavit of the Director of the Appellant Company. However, the said affidavit was not seen by the Adjudicating Authority. Therefore, in the interest of principle of natural justice, the Adjudicating Authority should re-consider the matter in the light of the affidavit submitted by the appellant’s Director.
The matter remanded to the Adjudicating Authority for fresh decision, after affording sufficient opportunity of personal hearing to the appellants. Appeals are allowed by way of remand.
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2023 (3) TMI 701 - CESTAT CHENNAI
Provisional release of the goods for the purpose of re-export only - dyed polyester with modified twill - dyed polyester fabric coated/laminated with Polyurethane - classifiable under CTH 54076190 and 59032090 - dyed Poly vinyl chloride coated polyester fabric - dyed polyester fabric coated / laminated with Polyurethane - classifiable under CTH 59031090 and 59032090 or not - Section 110A of the Customs Act, 1962.
HELD THAT:- It is clear that samples have been drawn and sent for testing to the Textile Committee. The report has been received on the basis of which the goods have been seized. There is misdeclaration of the goods as to their description, classification and quantity. The Ld. Counsel has submitted that the appellant has undertaken not to contest the classification, identity and quantity of the goods in the proceedings. The Ld. A.R has not been able to put forth any reason as to the necessity to still keep the goods in custody. The request is to provisionally release the goods for re-export only. We also take note that the appellant has paid Rs.50 lakhs.
The Hon’ble jurisdictional High Court in the case of KAUSALYA IMPEX VERSUS CHIEF COMMISSIONER OF CUSTOMS, CHENNAI [2001 (6) TMI 73 - HIGH COURT OF JUDICATURE AT MADRAS] held that when the goods are freely importable, refusing the request to re-export is not legal or proper.
The goods in the present case are freely importable and not prohibited goods. The appellant has undertaken not to contest the classification, description or quantity of the goods. The appellant has also made payment of Rs.50 lakhs. After appreciating these facts and following the ratio laid in the above decisions, refusal to provisionally release the goods for the purpose of re-export only is not justified.
The impugned order (letter refusing to provisionally release the goods for re-export) is set aside. The adjudicating authority is directed to consider the request of the importer-appellant for provisional release of the goods for re-export only within a period of one month from the date of receipt of this order, subject to reasonable conditions, if necessary, for safeguarding the revenue.
Appeal allowed.
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2023 (3) TMI 700 - CESTAT BANGALORE
Direct appeal to Tribunal bypassing the appellate remedy before Commissioner (Appeals) - provisional release of goods - exorbitant amount of bank guarantee which is five times of the differential duty, is imposed by the adjudicating authority - classification of goods - Optical PLC Splitter - to be classified under chapter sub-heading 8517 79 90 as claimed by the appellant, or to be classified, as proposed by the Department under 8517 62 90 of Customs Tariff Act, 1975 - HELD THAT:- The appellant ought to have filed appeal before the learned Commissioner(Appeals), instead of approaching this Tribunal directly. However, in the interest of justice, we therefore direct the appellant to approach the learned Commissioner(Appeals), if so advised and the learned Commissioner(Appeals) would consider to condone the delay of the period consumed before this Tribunal in pursuing the remedy, if the appeal before him is filed by the appellant within a reasonable period.
Appeal disposed off.
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2023 (3) TMI 652 - CALCUTTA HIGH COURT
Interest under Section 27A of the Customs Act, 1962 - refunds were made allegedly after delay of more than 90 days of receipt of applications for refund and for which respondents are liable to pay interest under Section 27A of the Customs Act, 1962, according to the petitioner - HELD THAT:- The claim of the petitioner under Section 27A of the Customs Act, 1962, for the alleged delayed refunds cannot be granted for the reason that the Section 27A of the aforesaid Act provides the condition that a person is entitled for the refund on receipt of application under Section 27(1) of the Customs Act, and on fulfilling the conditions under Section 27 (1) of the aforesaid Act which in this case is not admitted and is highly disputed as to whether the applications under Section 27 (1) of the Act were made by the petitioner in proper Form and manner as prescribed under the law - On a plain reading of Section 27 (2) of the Customs Act it appears that such application for refund can be allowed on the satisfaction of the Assistant Commissioner of Customs and which according to the respondent Customs authority, in this case, has not been fulfilled which is established from the fact that memos were issued pointing out the deficiencies and the petitioner has responded to those memos of deficiencies in the applications for refund, under the aforesaid Act.
Considering all the relevant provisions of Section 27 (1), 27(2), 27A of the Customs Act, 1962, and Regulation 2 along with Explanation under Regulations 2(3) of the Customs Refund Application (Form) Regulations Act, 1995, that the petitioner is not entitled to get interest on the refund on all those applications submitted by the petitioner making claim of refund, where memo of deficiencies were issued and after compliance of such memo of deficiencies refund has been made within the time prescribed under the statute and petitioner will be entitled to get interest only in those cases in which even after responding and compliance to deficiencies of memos and submitting the requisitioned documents, refund has been made by the respondent authorities beyond the time prescribed under the statute.
Respondents authorities shall make payment of interest to the petitioner within four weeks from the date of communication of this order if any amount of interest found due after verification from record and after taking into consideration the discussion, observation and law laid down in this judgment.
Writ petition disposed off.
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2023 (3) TMI 595 - DELHI HIGH COURT
Non-compliance with the conditions of providing non-scheduled (passenger) services as defined in the Explanation to the Condition No.104 of the N/N. 21/2002-Cus. dated 01.03.2002 as amended by the Customs Notification No.61/2007-CUS dated 03.05.2007 - aircraft used for private purposes and not for providing non-scheduled (passenger) services - HELD THAT:- The question whether an undertaking, as furnished in terms of the Condition No.104 of the Notification in question is complied with or not is required to be considered by the Custom Authorities. The Custom Authorities are not bound by the decision of the DGCA.
It is not disputed that the respondent has provided the said services for remuneration. In the aforesaid view, notwithstanding that the respondent has not published its tariff for providing the said services, it has nonetheless complied with the conditions of providing non-scheduled (passenger) services as defined in the Explanation to the Condition No.104 of the Notification in question.
The question as projected by the Revenue, is decided in its favour and the impugned order to the said extent is set aside - Appel disposed off.
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2023 (3) TMI 594 - GUJARAT HIGH COURT
Illegal detention of imported goods - dry dates - goods detained without executing any detention memo, which are still lying uncleared as the same has been illegally detained by the respondents - goods not detained by Customs authorities - seeking waiver from demurrage charges - HELD THAT:- Without going into further details and merits of the case, the respondent Nos.3 and 4 are hereby directed to release the goods which are under their custody and not under the detention of the Customs Authorities by implementing the order dated 19.04.2022 for waiver of the demmurage charges under Regulation 10(1)(l) of the SCMTR. Such exercise shall be completed within two weeks from the date of receipt of this order.
Petition disposed off.
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2023 (3) TMI 593 - CESTAT HYDERABAD
Classification of imported goods - I Stat Blood Gas Investigation Cartridges - I Stat Wireless Analysers with printer kit - I Stat Alinity Instruments with accessories - whether the said goods are classifiable under Customs Tariff Heading 9027 as classified by the Appellant Importer or under CTH 9018, as contended by Revenue and further regarding eligibility of concessional duty/exemption under Notification Nos.24/2005-Cus and 25/2005-Cus, both dated 1st March, 2005?
HELD THAT:- The instrument – I Stat System along with cartridges, etc are prima facie used for anylysis of various parameters of blood, and is prima facie a blood analyser. Both in case of glucometer or in the case of the present I Stat System with cartridge, blood is drawn and a few drops of blood are put on the cartridges or test strip and thereafter, on being attached to the I Stat System/Analyser, gives the readings. The only difference is that the item under consideration is more sophisticated than the glucosemeter. The testing of blood by analyzing and indicating the various parameters is undisputedly an outcome of chemical analysis, etc. In the facts and circumstances, we find that the heading 9027, which covers instruments for chemical analysis is more specific than CTH 9018, which covers instruments used in medical/surgical science, etc. Further, we find that Rule 3 of General Rules of Interpretation provides that a specific description is to be preferred over a general description.
The Court Below have erred in deciding the classification relying on the facts that the goods in question are mostly used on bedside or in an ICU - the goods under consideration are appropriately classifiable under CTH 9027.
Extended period of limitation - HELD THAT:- The extended period of limitation is not attracted in the facts and circumstances, the issue being wholly interpretational in nature and there being no res judicata in tax matters.
Appeal allowed.
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2023 (3) TMI 545 - CESTAT, AHMEDABAD
Levy of penalty on CHA u/s 114 (iii) and Section 114AA respectively of the Customs Act, 1962 - allegation of abatement - fraudulent export of ladies Leather Uppers Shoe for claiming Drawback Incentive Scheme from ICD - mis-declaration of quantity of export goods - HELD THAT:- The exporter has made a serious offence by mis-declaring the quantity i.e. against 30,000 pairs declared in the export document only physical quantity found 405 pairs. Moreover, the value was also shown exorbitantly high. Though the appellant has acted as CHA and it does not appear the direct involvement of the appellant in the fraud of export goods but when against one invoice, the exporter asked the appellant CHA to split the consignment and make 8 shipping Bills, that itself is a reason that the appellant should have acted diligently and inquired about the reason for this abnormal act of splitting the consignment into 8 shipping Bills. He was also supposed to inform this to the Customs authority.
The Customs authority also found suspicious because of 8 shipping Bills against one consignment. Therefore, this negligence of the CHA resulted into attempted of fraudulent export by his client. Therefore, the appellant is liable for penalty under Section 114(iii) and Section 114AA. However, looking to the nature of role of the CHA in the entire episode, penalty of Rs. 5,00,000/- in each section is very harsh, therefore, the penalty reduced from 5 lakhs each under Section 114(iii) and Section 114AA to Rs. 2 Lakhs in each section.
Appeal allowed in part.
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2023 (3) TMI 501 - CESTAT AHMEDABAD
Redemption fine in lieu of confiscation of goods - Mis-classification of imported goods - new Aluminium, Extrusion doors and panels or Aluminium Extrusion Scrap (trade) - request for mutilation of goods not accepted - visual examinations by officer cannot be preferred over and expert opinion about serviceability or otherwise of any imported goods - HELD THAT:- The goods have been cleared and duty discharged as per the Tariff Heading proposed by the department. The Certificate of Chartered Engineer produced by the party is actually deficient, as it has been obtained behind the back of Customs Officials and does not show the time and date of entry at the port for examination of goods by this expert. Even the expertise in the field of Chartered Engineering is not coming forth on record, as also the language of the certificate does not indicate that the author is prepared to face legal scrutiny of its document and to get it examined as per law in case of need by the authorities. It is therefore found that the same has been correctly rejected by the Commissioner (Appeals).
Also, the party had made a request for mutilation of the imported consignment to indicate their bona fides which does not appear to have been considered by the department view of their acceptance of the department’s stand exhibited through waiver of show cause notice as well as clearance of the consignments.
It is noted that the party has already paid duty under the Tariff Heading proposed by the department and also shown its bona fides subsequent to the import as they sought mutilation of goods before clearance. The redemption fine is reduced to Rs. 1,00,000/- and the personal penalty under Section 112 to Rs. 10,000/- - appeal disposed off.
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2023 (3) TMI 454 - ALLAHABAD HIGH COURT
Smuggling - Gold - petitioners submitted that petitioners have been falsely implicated in the present case as the DRI has not brought any evidence on record that particular alleged gold was the smuggled gold, on which import duties were evaded - HELD THAT:- Perusing the impugned panchnama and also considering that as per impugned panchnama, cognizable offence is made out against the petitioners, we are of the opinion that no interference is called for by this Court in its extraordinary power under Article 226 of the Constitution of India for quashing of the panchnama or for grant of any interim relief to the petitioners.
Petition dismissed.
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2023 (3) TMI 453 - CESTAT CHENNAI
Refund of SAD - rejection on the ground that the sales invoices were not endorsed with the mandatory declaration that "no cenvat credit can be availed on the invoices".
Whether refund can be granted as per the benefit of Notification No.102/2007-Cus. Dated 14.09.2007, if condition 2(b) of the notification has not been complied by a trader who cleared the goods on the strength of commercial invoices?
HELD THAT:- The said issue has been decided by the Larger Bench in the case of CHOWGULE & COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] wherein it was held that A trader-importer, who paid SAD on the imported goods and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification No.102/2007-Cus., notwithstanding the fact that he made no endorsement that “credit of duty is not admissible” on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein.
The Tribunal in a similar matter in the case of IM/S. INFINITY INDUSTRIES PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , CHENNAI-IV [2019 (12) TMI 655 - CESTAT CHENNAI] wherein the authorities below had rejected the refund claim on the ground that the commercial invoices did not contain the declaration that ‘no credit is admissible on the duty paid’ and also refused to accept the C.A certificate, considered the issue and observed that On perusal of description of the goods mentioned above, it is found that character of the goods (paper) has been shown in the sales invoices. So also, the goods sold are paper of different grades. The appellant has pointed out that he has used description of the goods as known in the trade in India. Department does not have a case that the description shown in the invoices are not the goods known in the local market in India. Thus, there are no major discrepancy in the description of the goods in the Bill of Entry and the sale invoices.
The rejection of refund is without legal basis. The impugned order rejecting the refund is set aside - Appeal allowed.
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2023 (3) TMI 452 - CESTAT BANGALORE
Conditions / Security for Provisional release of the goods - mis-classification of goods - Toughened Glass Top (Part of Gas Stove) - whether the conditions imposed for the provisional release order by the adjudicating authority and upheld by the Ld. Commissioner(appeals), particularly the quantum of bank guarantee/ cash deposit and other conditions imposed to safeguard the interest of Revenue pending adjudication on the face of the allegation of mis-classification of ‘Toughened Glass Top – Part of Gas Stove’ is too harsh and warrants modification?
HELD THAT:- At this stage, learned advocate for the appellant, on instruction, submitted that the Appellant since incurring heavy warehousing charges for the last one year, are willing to deposit the differential duty and execute bank guarantee / security deposit of Rs.3,00,000/-; also they have no objection to execute B-1 Bond for the estimated value of Rs.39,64,262/- as conditions for provisional release of the goods. In our considered opinion, keeping in view the principles of law settled in this regard, furnishing B-1 Bond for the estimated value of Rs.39,64,262/-, bank guarantee/cash deposit of Rs.3.00 lakhs, and deposit of the differential duty at the time of provisional release of goods would sufficiently safeguard the interest of revenue and meet the ends of justice. Accordingly, the impugned order is modified to the extent that on execution of B-1 Bond for the estimated value of Rs. Rs.39,64,262/-, furnishing of bank guarantee/cash deposit for Rs.3.00 lakhs and on deposit of differential duty by the Appellant, the adjudicating authority shall release the goods provisionally forthwith pending adjudication of the case.
Appeal disposed off.
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2023 (3) TMI 451 - CESTAT NEW DELHI
100% EOU - withdrawal of permission granted for allowing job work in DTA - violation of principles of natural justice - HELD THAT:- The present proceedings before this Court emanate from a letter dated 6.1.2020 which cannot be treated as a proper show cause notice. No reason or evidence to support the allegation has been brought on record by the respondent – Department, in the letter. While the same has been collated, as per the contention of the learned authorized representative subsequently after search, as allegedly certain discrepancies were found which indicated violations. It, therefore, appeared to the Department that the imputations in the letter dated 6.1.2020 were later on found to be true. Same, however is a subsequent development, but at the time the show cause notice was issued, the allegation was merely based on suspicion. Clearly, therefore, there is violation of natural justice and manifestation of arbitrariness. Matter related to seizure at job worker premises is part of separate proceedings.
For the purposes of the present proceedings before this Court, it is found that the show cause notice is improper and unsustainable and the proceedings based thereupon are liable to be set aside - Appeal allowed.
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