|
Advanced Search Options
Customs - Case Laws
Showing 81 to 100 of 110 Records
-
2023 (3) TMI 382 - CESTAT NEW DELHI
Refund of SAD - rejection of refund claims on the ground of limitation, following the ruling of Bombay High Court in the case of M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] holding that the refund claim had to be filed within a period of one year from the date of payment of SAD.
HELD THAT:- The issue herein is squarely covered by the rulings of the Hon’ble Delhi High Courts cited above, in favour of appellant. Further, the ruling of the Hon’ble Bombay High Court in M/s. CMS Info Systems Ltd. has been distinguished by this Tribunal in COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS S.R. TRADERS [2020 (12) TMI 503 - CESTAT NEW DELHI], which judgement has been upheld by the Hon’ble Delhi High Court in COMMISSIONER OF CUSTOMS VERSUS S.R. TRADERS [2022 (4) TMI 1167 - DELHI HIGH COURT].
The Adjudicating Authority is directed to grant refund along with interest @ 12% p.a., starting from the end of 3 months from the date of filing of refund application - appeal allowed.
-
2023 (3) TMI 381 - CESTAT AHMEDABAD
Levy of Custom Duty - import of Flexi containers - durable container or not - denial of benefit of N/N. 141/94- Cus dated 16.03.1994 - responsibility of the importer themselves to export the goods in terms of the notification - imposition of penalty under Section 112 of the Customs Act, 1962 - Whether the fact that the exporter of goods has claimed drawback or otherwise has any impact of the applicability of Notification No. 141/94- Cus.?
HELD THAT:- The issues are answered by Tribunal in the case of C.C. -JAMNAGAR (PREV) VERSUS JR ROADLINES PVT LTD WITH JR ROADLINES PVT LTD AND DHIREN RAJDE VERSUS C.C. -AHMEDABAD [2020 (9) TMI 856 - CESTAT AHMEDABAD] where it was held that Tribunal in various cases has categorically held that merely because the container does not have repeated use, the nature of durability cannot be rejected. The only criterion to be seen is that whether the container in itself is durable in nature. As per the nature of container and use thereof, it is clear that the container imported by the assessee is durable.
It was further held that it is clear that the Flexi Tank Containers imported by the assessee is durable container. Consequently notification no. 104/94-Cus is available to such containers.
Appeal allowed - decided in favor of appellant.
-
2023 (3) TMI 380 - CESTAT NEW DELHI
Levy of penalty u/s 114 of Customs Act - attempt to export of red sanders whose export is prohibited unless one has a licence - case of appellant is that appellant was not at fault for filing the shipping bill as per the documents as received by it and it was not aware about the true contents of the consignment.
Whether any act or omission of the appellant had rendered the goods liable for confiscation, and if so, the appellant is liable for penalty?
HELD THAT:- It is found that a benami shipping bill was filed by the appellant. It would have been a different case if the appellant had filed the shipping bill at the behest of the IEC holder and thereafter it was found that consignment had some prohibited goods. However, in this case the appellant had not obtained any authorisation from IEC holder. It is also on record that IEC holder had no business dealings with appellant so there is no possibility on the appellant innocuously filing a shipping bill in the normal course of the business. The papers were all provided by one Shri Vir Bahadur who was a clearing agent at the ICD and was neither an employee nor an agent of the IEC holder. The appellant had not obtained any authorisation from the IEC holder and Shri Vir Bahadur also did not project himself to be the employee of the IEC holder.
There was a gross negligence on the part of the appellant and appellant’s act of filing the benami shipping bill and processing it and consequently bringing the consignment into the customs area had resulted in rendering the goods liable for confiscation under section 113 of the Customs Act - penalty imposed under section 114 of the act is justified and calls for no interference - Appeal dismissed.
-
2023 (3) TMI 337 - PATNA HIGH COURT
Seeking grant of bail - Smuggling - Gold - petitioners admitted their guilt - documents not genuine - HELD THAT:- The statements of the apprehended persons were recorded under Section 108 of the Customs Act, 1962 wherein they admitted their guilt and stated that they are engaged in smuggling of gold. After investigation, show-cause notices were issued against the petitioners and others and based on the grounds, the A.D.G, D.R.I, Luckhnow Zonal Unit sanctioned the prosecution against the accused persons including the petitioners. During investigation, the documents produced by the petitioners in favour of the alleged seized gold Biscuits/Bullions were not found genuine.
Considering the fact that recovery of gold Biscuits/Bullions from the individual possession of the petitioners are less than Rs. One Crore and the period under custody, let the petitioners, above named, be released on bail on furnishing bail bonds of Rs. 10,000/- each with two sureties of the like amount each to the satisfaction of learned Special Judge, Economic Offences, Patna - Petition disposed off.
-
2023 (3) TMI 336 - CESTAT NEW DELHI
Refund of Special Additional Duty (SAD) - rejection on the ground of limitation, following the ruling of Hon’ble Bombay High Court in the case of M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] holding that the refund claim had to be filed within a period of one year from the date of payment of SAD, in view of the amendment vide Notification no.93/2008- Customs.
HELD THAT:- The issue herein is squarely covered by the rulings of the Hon’ble Delhi High Courts in COMMISSIONER OF CUSTOMS (IMPORT) VERSUS GULATI SALES CORPORATION [2017 (11) TMI 1300 - DELHI HIGH COURT], in favour of appellant.
Further, the ruling of the Hon’ble Bombay High Court in M/s. CMS Info Systems Ltd. has been distinguished by this Tribunal in COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS S.R. TRADERS [2020 (12) TMI 503 - CESTAT NEW DELHI], which judgement has been upheld by the Hon’ble Delhi High Court in COMMISSIONER OF CUSTOMS VERSUS S.R. TRADERS [2022 (4) TMI 1167 - DELHI HIGH COURT].
The Adjudicating Authority is directed to grant refund along with interest @ 12% p.a., starting from the end of 3 months from the date of filing of refund application. The appeal is allowed.
-
2023 (3) TMI 304 - DELHI HIGH COURT
Benefit of Exemption - aircraft - Usage Conditions - Non-compliance with the requirement that the aircraft is required to be used for providing non-scheduled (passenger) service (aircraft used for private purposes) - allegation against the respondent was that it had not complied with the undertaking furnished in terms of the Condition 104 of the Notification No.21/2002-Cus. dated 01.03.2002 as amended by the Custom Notification No.61/2007-Cus. (CUS dated 03.05.2007), In terms of the Condition No.104.
Whether in the facts and circumstances of the case the Hon’ble Tribunal is right in holding that the Customs Authority cannot examine whether the appellants have fulfilled the condition of exemption notification? - HELD THAT:- The same is covered in favour of the Revenue and against the assessee by a recent decision of this Court in EAST INDIA HOTELS LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND CENTRAL GST, NEW DELHI [2023 (2) TMI 47 - DELHI HIGH COURT]. The question whether an undertaking, as furnished in terms of Condition 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.
Whether the respondent had complied with Condition 104 of the Notification and had used the aircraft for providing non-scheduled (passenger) services? - HELD THAT:- The said question is also covered by the decision in EAST INDIA HOTELS LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND CENTRAL GST, NEW DELHI [2023 (2) TMI 47 - DELHI HIGH COURT]. It is not disputed that the respondent has provided the said services for remuneration.
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 Explanation to Condition 104 of the Notification in question.
No substantial questions of law arise in the present appeal - Appeal disposed off.
-
2023 (3) TMI 303 - CESTAT NEW DELHI
Refund of customs duty - time limitation - Detention of imported goods declared as Calcium Grease - Section 27 of the Customs Act, 1962 - HELD THAT:- In the present case, admittedly, the duty was paid at the time of filing the Bill of Entry. However, the appellant became entitled to claim the refund of said customs duty by virtue of the Order-in-Original dated 18.03.2016, vide which imported goods of the appellant were ordered to be absolutely confiscated - In view of the discussion about Section 27 and the admission about the order dated 18.03.2016, it becomes apparently clear that the relevant date for the statutory period of one year to reckon, in the present case, is 18.03.2016. The refund claim of 14.11.2017 is therefore is the one as was filed after one year and nine months of the said relevant date. Hence, it is clear that the refund claim is not filed within the time prescribed for the same. Commissioner (Appeals) is therefore held to have rightly upheld the claim as being barred by time.
As per the appellant himself till date there is no final assessment in the present case. Consequent to entire discussion, there are no reason to differ from the findings arrived at by the adjudicating authority below.
Appeal dismissed.
-
2023 (3) TMI 251 - SC ORDER
Search and Seizure - Smuggling - reasons to believe - Quashing of search and seizure proceedings and all consequential proceedings, launched against the respondent/assessee - assessee had impugned the action contending that there were “no reasons to believe” in terms of Section 110 of the Central Excise Act, 1944 read with Section 123 of the Customs Act, 1962 - HELD THAT:- The power of search which in this case was resorted to, can be gathered from Section 105 of the Customs Act. Section 105 confers power to search premises if the Assistant Commissioner of Customs or Deputy Commissioner of Customs “has reasons to believe” that goods liable to confiscation or documents relevant for such proceedings are secreted in any place. In such event, the search proceedings can be authorized by the Assistant Commissioner or other official. Section 123 on the other hand enacts a burden of proof which is that where any goods to which that provision applies are seized under the Act on the reasonable relief that they are smuggled goods, the burden of proof would then shift to the person in possession of such goods to prove that they were not smuggled goods.
The basic premise of Section 105, and indeed search proceedings is the reasonable belief that some objective material exists on the official record to trigger searches. The person authorizing the search must express his satisfaction that the material is sufficient for him to conclude that search is necessary; further there should exist something to show what is such material. The mere recording that the person concerned is satisfied, without the supportive materials, therefore, is insufficient to trigger a lawful search - In the present case the concerned official who authorized the search did not refer to any information nor indeed any report on the record which was produced before the High Court.
Appeal dismissed.
-
2023 (3) TMI 250 - DELHI HIGH COURT
Time Limitation to issue SCN to a Customs Broker (from date of receipt of offence report) - whether the learned Tribunal was correct in holding that a show cause notice under Regulation 20 of the Customs Brokers Licensing Regulations, 2013 (CBLR) is required to be received by the customs broker within a period of ninety days of the receipt of the offence report and it is not sufficient that the notice is sent within the said period of ninety days?
Whether the word ‘issue’ is required to be construed as ‘served’?
HELD THAT:- As it would be apparent in the facts of the present case, notice was, in fact, issued within the period of ninety days as contemplated under Regulation 20(1) of the CBLR. Attempts to deliver the said notice to the respondent were also made within the said period but the notice could not be delivered by the postal authority as the premises of the respondent was found closed. Clearly, the question whether the procedure under Regulation 20 of the CBLR is triggered within time is not dependent on the customs broker receiving the notice - there are no reason to interpret the word ‘issue’, as used in regulation 20(1) of CBLR, in any way other than its plain meaning. In the context of issue of summons or notices, the same would be issued when they are prepared and put in the course for communicating to the recipient.
In Banarsi Debi [1964 (3) TMI 11 - SUPREME COURT], the date of the notice for re-opening the assessments was within the eight years from the end of the relevant Assessment Year but the same was served beyond the period of eight years. One of the questions that arose for consideration of the court in that case related to the interpretation of Section 4 of the Indian Income Tax (Amendment) Act, 1959 (hereafter ‘the Amending Act’). The object of the said Section was to save the validity of the notices which were issued beyond the prescribed time. Section 4 of the Amending Act used the word ‘issue’. The court held that if the narrow meaning is given to the expression ‘issue’, the Section would be unworkable because the objective of the Amending Act was to save the validity of the notices issued under Section 34(1) of the Income Tax Act, 1922, which were beyond the period of eight years. It is in that context that the court held that the word ‘issue’ under Section 4 of the Amending Act was used interchangeably as ‘served’, as the object was to save the notices which were served beyond the period of eight years. The court held that it was obvious that the expression ‘issue’, as used in Section 4 of the Amending Act, was not used in a narrow sense of ‘sent’ as the principal Section 34(1) of the Income Tax Act, 1922 required the notice to be served within the prescribed period (eight years).
In the present case, there is no ambiguity in the language of Regulation 20(1) of the CBLR. It requires that the Commissioner issues a notice within the period of ninety days from the receipt of the offence report. There is, thus, no reason to construe the expression ‘issue’ any different from its plain meaning. The decision of the Supreme Court in R.K. Upadhyaya8 also recognizes that the plain meaning of the expression ‘issuance of notice’ would be to dispatch the same.
The learned Tribunal has erred in holding that the Commissioner was required to serve a notice to the respondent within a period of ninety days from the date of receipt of the offence report. The Commissioner was required to issue a notice within the period of ninety days and there is no dispute that it had done so - The impugned order is set aside and the matter is remanded to the learned Tribunal to consider the respondent’s appeal on merits - Appeal allowed by way of remand.
-
2023 (3) TMI 249 - CESTAT NEW DELHI
Validity of Notification dated 11.05.2022 issued by the Central Government rescinding the Notification dated 16.05.2017 imposing anti-dumping duty - seeking direction to the Central Government to issue a Notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority - Maintainability of appeal under section 9C - Whether the Central Government exercises legislative power? - Provisional assessment of imports.
The main contention that has been advanced is that despite the recommendation having been made by the designated authority in the final findings to impose anti-dumping duty, the Central Government kept quiet and did not issue the consequential notification for imposition of anti-dumping duty - submission is that under rule 18 of Anti Dumping Rules, the Central Government has to take a decision within three months of the publication of final findings, and as the Notification was not issued for a long period of time it should be presumed, particularly when the Central Government issued the Notification dated 11.05.2022 revoking the imposition of duty that the Central Government had decided not to impose anti-dumping duty on the subject goods from the subject country.
Whether Central Government has taken a decision not to impose anti-dumping duty? - HELD THAT:- In the present case, it is not in dispute that the final findings of the designed authority were published on 11.01.2021. In the appeal, the appellant has stated that an office memorandum was not issued by the Central Government. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum.
The issue that arises for consideration is whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty as a decision was not taken within three months by the Central Government from the date of publication of the final findings by the designated authority and infact the notification dated 11.05.2022 was issued rescinding the notification dated 16.05.2017. On a consideration of the provisions of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that a presumption can safely to be drawn that the Central Government, by keeping silent for a long period of time, shall be deemed to have taken a decision not to impose anti-dumping duty and such a case would also fall in the category of cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty.
The inevitable conclusion, therefore, that follows from the aforesaid discussion is that it has to be presumed that the Central Government has taken a decision not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. This presumption also finds support from the fact that the Central Government issued a notification dated 11.05.2022, after the final findings were submitted by the designated authority on 15.02.2022, rescinding the notification dated 16.05.2017 earlier issued by the Central Government imposing anti-dumping duty for a period of five years. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority.
Maintainability of appeal under section 9C - HELD THAT:- The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/s. Apcotex Industries Limited vs. Union of India and 38 others [[2022 (11) TMI 1096 - CESTAT NEW DELHI]] and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty.
In Balaji Amines Ltd. vs. The Union of India [[2022 (12) TMI 985 - CESTAT NEW DELHI]], the Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping duty.
Whether the Central Government exercises legislative power? - HELD THAT:- The reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty. The matter, therefore, would have to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority for imposition of anti-dumping duty on the import of the subject goods from the subject countries.
Provisional assessment of imports - HELD THAT:- The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being - It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry.
The matter is remitted to the Central Government to consider the recommendation made by the designated authority - Appeal allowed by way of remand.
-
2023 (3) TMI 187 - DELHI HIGH COURT
Seeking issuance of import licences in ‘Form X’ format as per Rule 88 of the Arms Rules, 2016 in respect of the licences that it has already procured from the Department of Defence Production (DDP), Ministry of Defence - import of restricted item - It is the case of the Petitioner that it obtained seven licences from the DDP for import of restricted items from the U.S. and various other countries - HELD THAT:- The factual situation reveals that in view of the applicability of the FTDR Act and the Arms Act, there has been some confusion between the authorities as to the manner in which licenses are to be granted for import of arms and parts thereof. The stand of the DGFT is that ‘Form X’ license would be required for import of fire arms in India. However, on a specific query as to whether there was any methodology prescribed for filing an application under ‘Form X’ on the DGFT portal, the Court has been informed that there is no procedure for online application under ‘Form X’ and a physical copy would have to be filed by the importer.
Insofar as the DDP is concerned, though, it is the delegatee of the DGFT under the FTDR Act, insofar as the Arms Act is concerned, the power of granting import licence under the said Act has not been delegated. Even during the submissions before this Court when officials from both the authorities have appeared, it is clear that there was a lack of clarity on this matter which led to the issuance of the circular dated 8thFebruary, 2023 by the DDP, which now seeks to clarify all the required forms to be filled, the authorities to deal with the same and the permissions thereof to be granted.
The clear position that therefore emerges is that the Petitioner has been issued licences for imports by the DDP. Two consignments have already arrived in India. These two consignments are in respect of licences which are at pages 61 and 64 of the writ petition. Both these consignments are meant for indigenisation of rifle production in India under Technology Transfer Collaboration with LMT Defence, USA, and for indigenisation of shotgun production in India under Technology Transfer Collaboration with Hugul Firearms Cooperative, Turkey. Such imports are crucial and clearly are meant to expedite indigenisation which is an important aspect of achieving self-sufficiency for defence purposes. The holding-up of these consignments on procedural grounds, especially owing to confusion between two authorities would be contrary to the object behind issuance of the licences itself by the DDP. Insofar as the defence requirements are concerned, the DDP is well conversant of the same and has duly licensed the imports.
The application shall be made within a period of one week from now to the DGFT along with the requisite fee and the permission under ‘Form X’ shall be issued within a period of two weeks thereafter.
It is made clear by the Petitioner that none of the products are meant for commercial sale and the same shall not be sold without obtaining requisite licenses and permissions. An undertaking to this effect shall be recorded by the DGFT at the time of processing the permission.
The Petitioner is permitted to approach this Court by way of an application if there is any delay in processing of licence in ‘Form X’ or if any other objections are raised by the concerned department - Petition disposed off.
-
2023 (3) TMI 186 - KARNATAKA HIGH COURT
Exemption from levy of whole of Basic Customs Duty and from whole of Agriculture Infrastructure and Development Cess as per Notification No. 30/2022-Cus dated 24.05.2022 - degummed and Crude Sunflower seed oil - freely importable goods, as per the ITC (HS) Schedule 1 - Import Policy, 2022, or not - legality and validity of ‘condition x’ mentioned in para-2 of the Public Notice at Annexure-J dated 14.06.2022 and consequential condition No.3 in the Condition sheet of the TRQ dated 05.07.2022 (Annexure-M) issued / allotted to the petitioner - subject goods of the petitioner lying at Indian Ports (under warehousing etc.,) before the date of issuance of TRQ licence.
HELD THAT:- The power and jurisdiction to issue Public Notice stipulating the procedure and amending the same by the DGFT is circumscribed and traceable only to the FTP and consequently, the DGFT does not have jurisdiction or authority of law to stipulate any condition contrary to the FTP and which has the effect of amending, modifying or altering the FTP, thereby establishing that ‘condition x’ in the Public Notice dated 14.06.22 being contrary to Para 2.13 of FTP, the same clearly tantamounts to amending the provisions of the FTP, which power cannot be exercised by the DGFT, especially when the power to amend the FTP is within the sole domain of the Central Government and not by the DGFT and on this ground also, the impugned ‘condition x’ and consequential condition in the TRQ issued in favour of the petitioner deserve to be quashed.
Issuance of license is only procedural aspect and in any case, the DGFT cannot impose conditions and restrictions in license which are contrary to FTP and FTDR Act and any such condition cannot be sustained in law. On this score also, the impugned ‘condition x’ is not sustainable in law.
Under similar circumstances in Kanak Export’s case supra, the Apex Court held that exports and imports shall be free, except in cases where they are regulated by the provisions of the said Policy or any other law for the time being in force. As per Para 2.4, DGFT was authorised to specify the procedure which needs to be followed by an exporter or importer or by any licensee or other competent authority for the purposes of implementing the provisions of the Act, the Rules and the Orders made therein and this Policy. Such a procedure was to be stipulated and included in the Handbook (Vols. I & II), Schedule of DEPB and in ITC (HS) and published by means of a public notice. It was permissible to amend this procedure from time to time.
The impugned ‘condition x’ mentioned in Para 2 of the Public Notice at Annexure-J dated 14.06.2022 and the consequential Condition No.3 in the Condition sheet of the TRQ dated 05.07.2022 vide Annexure-M issued / allotted to the petitioner deserve to be quashed and necessary directions are to be issued to the respondents to refund the excess duty paid by the petitioner back to him, in addition to returning the Bank Guarantee dated 05.08.2022 furnished by the petitioner pursuant to the orders of this Court.
Petition allowed.
-
2023 (3) TMI 185 - MADRAS HIGH COURT
Demand of Differential Duty - portable emergency lamp, Model PRL 786, imported by the petitioner in the year 2002 - recovery notice and the attachment letter were issued by the second respondent only on 14.02.2020 and immediately after coming to know the same, the petitioner has approached this Court and therefore, there is no delay on his part - HELD THAT:- Admittedly, the impugned Order in Original is dated 11.05.2004. The petitioner has filed this writ petition only in the year 2020. Under the impugned Order in Original, the petitioner has been directed to pay the differential duty of Rs.2,22,427/-. Since the petitioner has approached this Court belatedly, this Court is of the considered view that after a lapse of almost sixteen years from the date of the impugned Order in Original, he must be put on terms for quashing the impugned Order in Original dated 11.05.2004 and for reconsideration of the same, on merits and in accordance with law, based on the decisions relied upon by the learned counsel for the petitioner as well as the order dated 30.07.2004 passed by the Commissioner of Customs (Appeals), involving a batch of identical cases.
No prejudice would be caused to the respondents if such a direction is issued as the respondents will be getting revenue in view of the deposit made by the petitioner pursuant to the directions given by this Court today.
This writ petition stands allowed by directing the petitioner to deposit with the first respondent a sum of Rs.2,22,427/- within a period of four weeks from the date of receipt of a copy of this order.
-
2023 (3) TMI 184 - GUJARAT HIGH COURT
Non-compliance of the directions of this Court - Seeking waiver of the demurrage and detention charges - seeking release the consignment comprising Chinese Knotted Woollen Carpets which were detained by the respondent no.2 - HELD THAT:- In absence of any notice of seizure of goods, on provisional basis, the goods were not released which otherwise is permissible taking the bond from the owner in proper form and with certain security conditions. There were certain inquiries pending, for which, the petitioner was being called and he could not attend to the summons because of the reason of his health as put forward by him and he approached this Court by invoking the writ jurisdiction. He, however, had ensured to cooperate with the inquiry after furnishing the bond before this Court.
This Court had specifically held that there was sufficient independent device and mechanism under the law for him to be asked to appear and assist the inquiry/investigation and non-appearance cannot be a valid ground for the authority to hold back the goods without following the legal procedure as contemplated under the law of seizure. Therefore, release was directed within one week from the date of receipt of copy of the order.
As held by the Apex Court in case of Mumbai Port Trust vs. M/s. Shri Lakshmi Steels and Ors. [2017 (7) TMI 977 - SUPREME COURT], this Court had already permitted the petitioner to approach the respondent authority for exemption and remission of demurrage for the authority concerned to take a sympathetic view while considering the case of the petitioner. At the same time, the detention charges of the shipping lines are to be paid on the basis of the contract between the petitioner and the shipping line. The Apex Court had been quite clear that the High Court cannot in writ proceedings direct the DRI/Customs to pay the detention charges to the shipping line, firstly because there was a contract between the importer and the shipping line and moreover, under the writ jurisdiction, these aspects are not to be adjudicated as there are many aspects on facts which would need the proper adjudication.
The petitioner had 14 days of free period to clear the consignment by making payment of all the due charges and releasing the empty container to the present respondent no.5. In default of such clearance and non-return of the empty container to the respondent no.5 within the scheduled time frame, the detention as well as the demurrage charges would start applying to the consignment. The charges are due and payable by the petitioner as a pre-condition to get the delivery order of the subject consignment. The detention of the cargo by the customs as well as the DRI was held to be legal and therefore, the release was directed by an order and judgment of this Court.
It appears that without passing any order of seizure under Section 110 of the Customs Act, when there was a detention and there was a specific denial for shifting the goods to the public warehouse under Section 49 in order to save the demurrage and detention charges, the respondent authority cannot insist on the demurrage which is in its hand. So far as the detention charges are concerned, the contract of the parties would govern the detention charges if eventually it is found that it was without any valid and justifiable reasons, the other respondents, other than respondent no.5, are the reasons for this detention charges, the Court concerned can definitely decide. It was the action of the other respondents which was under challenge by the petitioner in earlier litigation
The only aspect that needs to be determined by this Court is as to whether the same can be directed against the authorities which also has its defence of the petitioner not responding to its summons officially issued. The detention of the goods without the seizure under Section 110 of the Act was not found sustainable under the law and the respondent had acted as if it was powerless and it needed to continue to use this tactic of detaining the goods till the petitioner actually attends to the proceedings of inquiry/investigation. It is worth noting that now that inquiry is completed and there has been a cooperation of the petitioner as well.
The respondent – Customs Authority has acted fairly by expressing that it is not going to charge the demurrage charges, however, the shipping line would have a right and lien over the goods until the matter is decided by the CESTAT. There shall a need to direct furnishing of some security which should be in the form of the bank guarantee, in the given circumstances.
The petition is partly allowed - The respondents shall release the consignment imported under B/E No. 4956991 dated 06.08.2021 on the petitioner furnishing the bank guarantee to the tune of Rs. 16,00,000/- for a period of six (06) months.
-
2023 (3) TMI 183 - CESTAT CHENNAI
Export of Finished Leather or Unfinished Leather - whether CLRI’s interpretation of the conditions/norms prescribed in DGFT’s Public Notice No. 21/2009-2014 dated 01.12.2009 is correct or not for Export of Finished Leather? - HELD THAT:- We have been persuaded to come to the conclusion that shaving/snuffing as used in the DGFT’s Public Notice dated 01.12.2009 to mean shaving or snuffing. As all the major manufacturing operations are carried out on the impugned goods, the same could not be termed as unfinished goods. The fact of buyer accepting the goods and making payment, ordering further quantities and terming only 13 cartons of suede leather of grey colour as unfinished leather when 24 cartons of other colours of the same consignment as finished leather have weighed in our mind.
On consideration of the decision rendered in the case of COLLECTOR OF CUSTOMS, MADRAS VERSUS M. ASLAM AEJAZ & CO. [1995 (5) TMI 130 - CEGAT, MADRAS], to the effect that minor deficiency in the processing may not ipso facto make the leather as not fully finished as the appellant’s have carried out all the major operations.
Appeal allowed.
-
2023 (3) TMI 182 - CESTAT MUMBAI
Levy of penalty u/s 114 of CA - contravention of provisions of Section 113 of the Customs Act, 1962 - appellant could not produce any authority letter received from the exporter and, therefore, it cannot be held that appellant was reasonable for confiscation of goods - HELD THAT:- The original authority has held that the appellant were liable for penalty under Section 117 of the Customs Act, 1962 and subsequently ordered imposition of penalty of Rs.2.0 lakhs under Section 114(i) of the Customs Act, 1962 and penalty of Rs. 1.0 lakh under Section 117 of the Customs Act, 1962 and the said penalties sustained through Order-in-Appeal.
There is no finding recorded by the original authority as to why the original authority had imposed penalty under Section 114(i) of the Customs Act, 1962 in the original order. The original authority without giving any reason why penalty under Section 114(i) of the Customs Act, 1962 is liable to be imposed on the appellant, has imposed the said penalty.
The penalty of Rs. 2.0 lakhs imposed on appellant under Section 114(i) of the Customs Act, 1962 is set aside - other part of demand upheld - appeal allowed in part.
-
2023 (3) TMI 181 - CESTAT MUMBAI
Maintainability of appeal - rejection on the ground of time limitation - recovery of drawback for failure to produce evidence of receipt of export proceeds in foreign exchange - HELD THAT:- The learned Commissioner (Appeals) has reproduced Section 153 of the Customs Act, 1962, which provides for services of order or decision. It is provided that the order etc. should be served by sending it by registered post or by such courier as may be approved by the Commissioner and if it is not possible to serve the order etc. in the said manner, then by affixing it on notice board of the Custom House. The learned Commissioner (Appeals) has held that the filing of appeal was time barred. However, on which date the concerned Order-in-Original was sent by registered post to the appellant or on which date the said Order-in-Original was affixed on the notice board of the Custom House, has not been stated in the impugned order.
The impugned order not found to be reasonable because the date from which period of 90 days is reckoned with is missing.
Matter remanded to the appellate authority to decide the issue on merit - appeal allowed by way of remand.
-
2023 (3) TMI 180 - CESTAT MUMBAI
Non-speaking order - Modification of self assessment made by the appellant claiming the benefit of exemption under Notification No 50/2017- Cus (S No 502) without issuance of any speaking order as per Section 17 (5) of the Customs Act, 1962 - classification of GoPro Digital cameras and their accessories - to be classified under tariff heading 85258020, availing exemption under Notification No 50/2017-Cus (Sl No 502) or under heading 85258090 (without exemption benefit)?
HELD THAT:- Classification is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. From the plain reading of the heading 85258020, it is quite evident that for classification under this heading the goods under question should be a “Digital Camera” and the terms of the heading are not restricted to “Digital Still Image Video Camera”. All the cameras which are digital cameras get classified under this heading. Further revenue do not dispute that the goods covered by the referred bill of entries are “action cameras”. In para 7 of the impugned order specific finding has been recorded to this effect.
In case of Panam Corporation [2020 (2) TMI 1434 - CESTAT MUMBAI] for the period prior to insertion of the Explanation in 2012, tribunal refused to restrict the meaning given to the phrase “Digital Still Image Video Cameras” and allowed the benefit of exemption at Sl No 13 of 2005 notification.
The findings recorded in the impugned order not agreed upon, to the effect that the phrases used in the Notification No 50/2017-Cus at Sl No 502 has to be interpreted in light of the Explanation which was there in some other Notification at any point of time, the interpretation of the Notification wherein explanation was given defining the phrase “Digital Still Image Video Cameras” need not be examined. The said explanation cannot be used to restrict the phrase used in the notification under consideration. If government intended that the said phrase should have been interpreted according to the explanation contained in the earlier notification then same explanation could have been inserted in the present notification.
There are no merits in the said argument of the revenue because it is settled law that if two notifications are available to the importer at the same time in respect of the imported goods, then it is for importer to choose the exemption which is beneficial to him, revenue cannot force him to chose a particular exemption notification. The argument made by the revenue by the revenue that the exemption notification No 50/2017_Cus was General exemption Notification and Notification No 25/2005-Cus as amended by the Notification No 15/2012 dated 17.03.2012, is more specific for the goods under question, is still in existence and should have been applied, was rejected by the Hon’ble Supreme Court in case of HCL. LIMITED VERSUS COLLECTOR OF CUSTOMS, NEW DELHI [2001 (3) TMI 971 - SC ORDER].
There are two notifications one of which impose a restriction in terms of capacity and time limitation of the recording, whereas the other do not impose and such restriction, once it is found that the imported action camera qualifies as “Digital Still Image Video Camera” , benefit of exemption under the notification no 50/2017-Cus cannot be denied.
Since no speaking order has been made either by the assessing officer Commissioner (Appeal) and matter remanded to the assessing officer to pass an speaking order, there are no any infirmity in the order of the Commissioner (Appeals).
All the appeals are allowed in the cases where the bill of entries pertain to importation of the “Digital Cameras” by the appellant, holding that the benefit of exemption under Notification No 50/2017-Cus as claimed by them will be admissible to the appellant - Matter is referred back to the original assessing officer to assess the Bill of Entries as per directions contained in this order.
-
2023 (3) TMI 138 - MADRAS HIGH COURT
Adjudication of SCN - Period of Limitation - SCN was issued to the petitioner in the year 2009 and a personal hearing was granted to them in the very same year but the impugned order came to be passed only in the year 2020 after a lapse of more than eleven years - contentions of the petitioner in this writ petition is that even though Section 75 of the Customs Act, 1962 does not prescribe a period of limitation for recovering the duty drawback amount, any recovery can be made only within a reasonable period.
HELD THAT:- In the instant case, admittedly the show cause notice which culminated in the passing of the impugned Order-in-Original was issued on 12.03.2009, whereas the Order-in-Original was passed after a lapse of more than eleven years i.e., only on 25.09.2020. Pursuant to the show cause notice dated 12.03.2009, the petitioner has sent a reply on 09.09.2009 and a personal hearing was also afforded to the petitioner on 10.09.2009 itself. However, the Order-in-Original which is challenged in this writ petition was passed only on 25.09.2020 after a lapse of more than eleven years.
The Hon'ble Supreme Court in the case of STATE OF PUNJAB VERSUS BHATINDA DISTRICT CO-OP. MILK P. UNION LTD. [2007 (10) TMI 300 - SUPREME COURT], though dealing with a case involving reopening of an assessment under the Punjab General Sales Tax Act, 1948 has held that though limitation is not prescribed under Section 21 of the said Act, the statutory authority must exercise jurisdiction, within a reasonable period - Having passed the Order-in-Original on 25.09.2020 even though the show cause notice was issued by the 2nd respondent as early as on 12.03.2009 which was also replied by the petitioner on 09.09.2009 and a personal hearing was afforded to the petitioner on 10.09.2009 itself, the 2nd respondent did not pass the final order immediately thereafter or within a reasonable time but has chosen to pass the impugned Order-in-Original only on 25.09.2020 after a lapse of more than eleven years.
The petitioner claims that the said amount was paid under protest, though there is no documentary evidence produced by the petitioner before this Court to show that the same was paid under protest. Even assuming that the petitioner's statement that the said amount was paid under protest is to be accepted by this Court, even otherwise, the petitioner is not entitled for refund, as any refund claim will also be barred by limitation. When the petitioner has pleaded before this Court that on the ground of limitation the Order-in-Original ought not to have been passed, the same yardstick applies to the petitioner as well. The petitioner cannot blow hot and cold - this Court makes it clear that the petitioner is also not entitled for refund of the amount, which they had already paid in the year 2007 itself, which is the subject matter of the Order-in-Original which is challenged in this writ petition.
The impugned show cause notice dated 12.03.2009 and the Order-in-Original, dated 25.09.2020 are hereby quashed and the writ petition is allowed.
-
2023 (3) TMI 137 - CESTAT MUMBAI
Valuation of imported goods - prime cold rolled sheets (non-alloy) - enhancement of assessable value - rejection of declared value, by recourse to rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - HELD THAT:- The impugned goods are ‘cold rolled coils of non-alloy steel’ and ‘cold rolled sheets of non-alloy steel’ from Ukraine backed with documentation for value of US$ 530 and US$ 517 per MT (CF). For coils, the price indicated in the Metal Bulletin of 10th September 2012 was adopted as the base on the finding that these, on FOB terms, is common across CIS countries; no evidence is at hand for concluding that these are not local market prices in Ukraine - The allowance for quantity at 4.5% is equally cryptic, as also the further abatement for not being coil, assigned to sheets. The addition of US$ 50 per MT towards freight is not compatible with the corresponding provision in Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 especially as actual freight was easily ascertainable.
The arbitrariness of the computation is sufficient to discredit the confirmation of enhancement by resort to rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 in the impugned order. That assessable values of contemporaneous imports are said to be available and, indeed, claimed to be basis of rejection by empowerment in rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 renders resort to a later option to be travesty of the valuation mechanism prescribed by law. The original authority should have placed the importer on notice of those very contemporaneous imports that were invoked as prelude to enhancement of assessable value.
The impugned order is set aside and matter remanded back to the original authority for a fresh decision hearing.
|
