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Customs - Case Laws
Showing 121 to 140 of 1606 Records
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2023 (12) TMI 262
Seeking permission for re-export of goods on imposition of redemption fine and penalty - quantum of penalty - inadvertent import of battery scrap which was declared at the time of import as Cast Iron Scrap - restricted goods or not - HELD THAT:- Considered, the flow of the decisions in the recent past on redemption fine on re-export is in favor of assessee based on the proposition that on reexport no import takes place on the soil of India and therefore the goods are not redeemed within the territory of India and therefore the redemption fine no more remains imposable. This Court is inclined to agree with the proposition of the learned advocate based on the above quoted decisions and is inclined to do away with the redemption fine of Rs. 3 Lakhs imposed at the time of re-export of goods. However, considering the nature of offending goods which are covered under Hazardous Substances Act, the imposition of fine of Rs. 1 Lakhs appears proper. Even if it is conceded that Section 112(a) requires mens rea, it is trite law that quoting improper Section cannot be reason not to impose penalty when residuary penal Section like Section 117 exist in the legislation, which does not require ‘mens rea’.
Considering the offending nature of the goods which can create environment perils for Indians, the wrong quoting of section by the department should not come in the way of imposition of penalty, the same is found reasonable and is maintained, in the facts and circumstances of this matter.
Appeal allowed.
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2023 (12) TMI 261
Violation of principles of judicial discipline - Smuggling - foreign origin betel nuts - foreign origin black pepper - burden to prove - HELD THAT:- It is observed that the impugned goods i.e. Betel Nuts and Black Pepper are not the goods specified or notified under Section 123 of the Customs Act, 1962. Thus the burden to prove the smuggled nature of these goods lies on the Custom Authorities as held by the Tribunal in the case of BABOO BANIK VERSUS COMMISSIONER OF C. EX. & CUS., LUCKNOW [2004 (7) TMI 482 - CESTAT, KOLKATA]. Tribunal in the case of BIJOY KUMAR LOHIA VERSUS COMMISSIONER OF CUSTOMS (PREV.), PATNA [2005 (11) TMI 306 - CESTAT, KOLKATA] has held that the local trade opinion cannot take the place of the legal evidence.. No case has been made out for the seizure and confiscation of the Black Pepper or Betel Nuts is made out as no evidence has been placed on record to establish the foreign origin of these goods, or of illegal importation of the same.
The Tribunal in the case of COMMISSIONER OF CUSTOMS (PREVENTIVE) , LUCKNOW VERSUS SHRI SHANTI BISWAS [ 2020 (9) TMI 525 - CESTAT ALLAHABAD] given a clear finding to the effect that there was no evidence to establish that the goods which were moved within the country were smuggled in the country and therefore has held that action on the part of the revenue to detain the said goods and not released the same in spite of the order of Commissioner (Appeals) is an action of high handedness. It was directed that the black pepper and Betel nuts being released to the respondent immediately. When there was clear-cut finding of the Tribunal that there existed no evidence that black pepper and betel nuts were smuggled into the country. The entire proceedings subsequently on issuance of show cause notice and adjudication thereof is contrary to the principles of judicial discipline.
There are no merits in the impugned order of Commissioner (Appeals) - appeal allowed.
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2023 (12) TMI 200
Invocation of extraordinary jurisdiction - HELD THAT:- The relief prayed by the petitioner not granted, for quashment of FIR as the petitioners/company is not an accused in the FIR and they have no locus to seek quashment of FIR. In regard to the relief for custody of vehicle and goods, the remedy lies to the petitioners, to apply for custody of the vehicle and goods under Section 451 & Section 457 of Cr.P.C. The said prayer cannot be considered in a writ jurisdiction when the remedy is available to the petitioners. However, the liberty is granted to the petitioners to file an application under Section 451 & 457 of Cr.P.C before the competent Court of law and if such application is filed, the Court shall consider the said application in accordance with the law without being influenced by the order dated 6/11/2023 rejecting the application for custody of vehicle and goods, filed by accused driver.
The petition is dismissed.
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2023 (12) TMI 199
Recovery of customs duty / dues - Perior over secured creditors - Validity of order of attachment - Seeking removal of entry of attachment made by the 4th respondent on the property of the petitioner company - overriding effect of SARFAESI Act than any other Act including Customs Act under Section 26E under Chapter IV-A - HELD THAT:- In the present case, if the plea of the respondents ought to be considered that deposit of title deeds is not registered, then at the same breath, it ought to be considered that the attachment is also not registered. Then the bank and the Customs Department are standing on the same footing.
Moreover, there is no provisions in the Customs Act granting 1st charge to its dues under its Act. In such circumstances, when both the parties are standing on the same footing and when there are no provisions of 1st charge to Customs Department then it ought to be seen which proceedings is first.
A similar issue was considered by the High Court of Andhra Pradesh and Telangana in the case of ICICI Bank Limited Vs. Tax Recovery Officer [2019 (3) TMI 701 - TELANGANA AND ANDHRA PRADESH HIGH COURT]. The challenge in the said judgment is an attachment order 14.03.2018, issued by the Tax Recovery Officer under Rule 48 of second schedule. After considering section 281 and rule 48, the Court has elaborately dealt with the issue and has held that there is no provision in the Income Tax Act by which a first charge is created automatically on the properties of the assesses. And also held it is now well settled that wherever the statute does not create a first charge over the property, the crown's debt does not take precedents over the claim of the secured creditor - In the present case also, there is no provisions in the Customs Act creating 1st charge on the property of the defaulter and the above judgment is applicable to the present case.
Admittedly the bank had executed mortgage of deposit of title deeds on 31.07.1997, which is prior to the attachment of the Customs Department which was passed on 01.11.2004. Therefore, financial institution is having 1st charge as secured creditor than the crown debt. Hence, the impugned attachment cannot sustain the scrutiny of law. Hence, the impugned attachment is liable to be quashed.
Petition allowed.
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2023 (12) TMI 198
Seeking release of goods - goods imported freely or not - Second hand Multifunction Print and copying machines - materials imported by the petitioners falls under Clause 2.31 of the Foreign Trade Policy 2023 effective from 01.04.2023 under the category second hand goods or not - HELD THAT:- Sl.No.(b) of Notification No.5/2015-2020, dated 07.05.2019, states that all electronics and IT goods notified under the Electronics and IT Goods (Requirement of Compulsory Registration) Order, 2012, as amended from time to time are “restricted”. Therefore, they are supposed to get authorization from the DGFT. When the said policy was in force, at that point of time also several imports have been made for importing second hand multi-function devices and similar issue was raised that these are all the multi function devices coming under Sl.No.(b). Therefore, unless otherwise authorization is obtained from the DGFT, the same cannot be imported.
In the Notification No.5/2015-2020, dated 07.05.2019, only two clauses are available viz., (a) and (b), but, in the case of Foreign Trade Policy 2023, there are four clauses under Sl.No.I. This Court is of the considered view that as per Foreign Trade Policy, 2023, the petitioners' goods would not fall under the category I(b), but it falls under the category I(d) which indicates that other than goods mentioned in I(a), I(b), I(c), all other second-hand capital goods can be imported freely without any restriction. Therefore, if the petitioners not fall under clause I(b) automatically they fall under I(d). The Supreme Court has taken note of the said fact and stayed the confiscation of goods in a similar matter. Further, this Court, on a comparison of Notification No.5/2015-2020, dated 07.05.2019 and Foreign Trade Policy 2023, does not find any new changes brought in so that prohibited multi function devices should get authorization from DGFT.
This Court is inclined to allow these writ petitions to the extent of releasing the goods provisionally - petition allowed.
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2023 (12) TMI 197
Seeking provisional release of goods - two gold chains weighing 360 grams - Section 110A of the Customs Act, 1962 - HELD THAT:- This Court is of the view that it would be appropriate to direct the respondents, if the petitioner files a proper application under Section 110A of the Act, to release the seized goods. Therefore, by granting liberty to the petitioner to file an application under Section 110A of the Act, this Court is inclined to dismiss the present writ petition.
In the event, if an application is filed by the petitioner under Section 110A of the Act, the same shall be considered by the Customs Authorities and release the seized goods provisionally in accordance with law. Further, the petitioner is intend to deposit the entire duty and also execute a bond for the release of the seized goods. The same shall be considered by the respondents and take appropriate decision in accordance with law with regard to the release of the seized goods.
Petition disposed off.
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2023 (12) TMI 196
Jurisdiction of Customs authorities - Claim of benefit of AIFTA - Wrongful availment of benefit of exemption of basic customs duty under Notification No. 46/2011 - fraudulently obtaining Country of Origin certificate by the supplier - submitting incorrect declaration while presenting the bills of entry under Section 46(4) of the Customs Act, 1962 - recovery of differentail duty alongwith interest and penalty.
It is the case and the contention of the petitioners in alia that the proceedings initiated by the respondent customs authorities and the orders consequently passed are without jurisdiction.
HELD THAT:- It is well settled that the Directive Principle provisions of Part IV of the Constitution are not enforceable in the Court of law, however, it is true that they are guiding principles fundamental to the governance of the country and that in interpretation of the fundamental rights, and in constitutional interpretation in any area, the Directive Principles become an aid to play their role, however, for noncompliance of any of the Directives in Part IV, a citizen cannot seek remedy through courts. The Court also cannot compel the State to implement the Directives.
Looking to the language of Article 24 juxtaposed with the aspects of the present dispute and the controversy about the contents of RVC in the Country of Origin Certificate, it is debatable and doubtful whether the provisions of Article 24 would apply. What the Article contemplates is that a dispute concerning origin determination, classification of products or other related matters, the Government authorities of the exporting and importing parties may consult each other. In the present case, the origin of goods to be of Malaysia is not in dispute - Nor the dispute relates to classification of products or other related matters. However, the contention of the petitioner that Article 24 mechanism should have been resorted to by the respondents may be dealt with irrespective of and independent of the above aspect and consideration.
In Entertainment Network (India) Limited [2008 (5) TMI 671 - SUPREME COURT], the Supreme Court when observed that in interpreting the municipal laws, the international norms can be relied on for the purpose including to fill up the gaps in law, the Supreme Court speaks of gaps to be filled up in the interpretational process only. The Court cannot apply treaty provision not forming part of the State law and fill the gap. Filling of the gap is not to be perceived in this way which otherwise would be contrary to the basic principle that without competent legislation at the sovereign State level, the treaty provision cannot be enforced.
When AIFTA Article 24 is not part of State law and Indian law making body has not recognised it for its implementation by excluding it from statutory law and rules, the proceedings taken out against the petitioner under the substantive provision of Customs Act, cannot become bad or stand illegal on their count.
The suppression of facts is evident from the findings recorded by the Director of Revenue Intelligence which provided the basis for the Customs authorities to act and exercise the powers, was in respect of contents of wrongfully showing of RVC of the goods. The details for arriving at RVC was misleading and there was suppression of due and correct facts - The facts of the instant cases could attract the provisions of section 28 (4) and attendant provisions. Due to wrongful availment of the concession in the duty(0%), there was non-payment or short levy of the Customs duty in the goods and the exemption notification benefit was not available.
The suppression of fact is clearly attributed to the petitioners inasmuch as what was required to be disclosed and proof of contents of the Bills of Entry was to be subscribed in form of declaration under Section 46 of the Act. The petitioners had been in regular course of business of import and acted in such course - In the present case, the Origin Certificate containing the RVC value details was part and parcel of the documents for which truthfulness was declared.
Procedural provisions cannot override the substantial statutory provisions of the Customs Act. It is trite that non-compliance of procedural law would not automatically vitiate the legally permissible action taken under the substantive legal provisions - It is the substantive law which would govern and override.
This Court is exercising jurisdiction under Article 226 of the Constitution. In that view, the finding of facts stands binding. Even otherwise, having regard to the cogent nature of the findings, they do not warrant any interference by the Court. The action initiated and the impugned order passed needs to be upheld.
The Order-in-Original dated 29.05.2020 challenged in Special Civil Application No. 14028 of 2020 and in Special Civil Application No. 13365 of 2020, as also Order-in-Original dated 24.06.2020 impugned in Special Civil Application No. 14937 of 2020 passed by Additional Commissioner, Customs House, Kandla and by Assistant Commissioner, Customs House, Mundra, respectively could not be said to be without jurisdiction - application dismissed.
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2023 (12) TMI 195
Confiscation of imported goods - redemption fine and penalty - old and used Digital Multi Function Printer - permission and No Objection Certificate (NOC) from the concerned Ministry not obtained - Bill of Lading dated 13.02.2013 - Restricted goods or not - HELD THAT:- As the Bill of Lading is in this case is 13.02.2013, which was issued prior to 28.02.2013 and this Tribunal in the case of COMMISSIONER OF CUSTOMS (PORT) , KOLKATA VERSUS BHAWANI ENTERPRISES [2017 (11) TMI 974 - CESTAT KOLKATA], has observed upto 28-2-2013, there was no restriction on import of subject goods.
As in this case also, it is held that the Bill of Lading is prior to 28.02.2013 for import of the identical goods as in the case of Bhawani Enterprises, wherein it has been held that there was no restriction on import of the subject goods, therefore, it is held that the appellant is not required to obtain any specific license for import of the impugned goods - further it is held that the enhancement of value on the basis of Chartered Engineer’s certificate cannot be a ground for treating declared value as mis-declared unless there is other corroborative evidence.
The value declared by the appellant is correct and no license is required by the appellant for import of the said goods - the impugned order set aside - appeal allowed.
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2023 (12) TMI 194
Revocation of CB license - forfeiture of entire security deposit - levy of penalty - illegal import of cashew kernel broken/whole into India by mis-declaration of the description and value of the goods, with intention to evade the legitimate Customs duty - HELD THAT:- The detailed examination under Panchnama proceedings 25/26.02.2022 revealed that imported goods in the above consignment actually contained only 2487 Kg. of declared goods i.e., ‘raw cashew nuts’ and the rest of 24,753 kg. were undeclared broken cashew kernel commercially known as ‘cashew baby bits’.
It is seen that DGFT had issued a notification No.08/2015-2020 dated 12.06.2019, whereby the import policy conditions in respect of ‘Cashew Kernel, broken’ classifiable under Exim code 0801 3210 and ‘Cashew Kernel, whole’ 0801 3220, prescribed as “Free” was amended to be notified as “Prohibited”; along with revision of the minimum CIF value condition by enhancing it from Rs.288/per Kg. to Rs.680/- per kg. and Rs.400/per Kg. to Rs.720/- per kg., respectively - During the enquiry proceedings, as the importer had stated that a similar consignment with mis-declaration is arriving at JNCH, Nhava Sheva, the import of ‘raw cashew nuts’ in B/E No. 7614852 dated 23.02.2022 with mis-declaration of goods, which was handled by another customs broker M/s Shiv Kumar Gupta, was put on hold by JNCH Customs. Detailed examination of the said imported goods also revealed that declared goods of 27,000 kgs. of ‘Raw Cashew Nuts in shell’, the physical examination of the goods by SIIB(I), JNCH Customs revealed that it actually contained 2500Kg. of raw cashew nuts and the rest of 24,500 kg. were undeclared broken cashew kernel commercially known as cashew ba by bits.The above details indicate that the said Shri Krishnat Shankar Kadam, Proprietor of importer M.s K.K. Traders, had in collusion with some persons planned about the illegal activities in import of the prohibited cashew kernel from Vietnam and one Shri Chetan Yadav, working in M/s Ninai Shipping Agency had played major role in this modus operandi, and the appellants were not involved.
The mis-declaration of imported goods is limited to the extent that the CIF prices of imported goods were not conforming to the permitted higher threshold limits under the DGFT Notification. In other words, the imported goods of value below threshold limit had been imported, which is prohibited by prescribing Minimum Import Price (MIP). The Foreign Trade Policy (FTP) notified by the Ministry of Commerce & Industry, Directorate General of Foreign Trade provide under para 2.07, the Principles of Restrictions for which DGFT may, through a Notification, impose ‘Prohibition’ or ‘Restriction’ for various purposes specified therein - the importer M/s K.K. Traders, Satara, had violated the conditions prescribed in the FTP by import of cashew kernels below the threshold MIP, and the appellants had no role in the said violations of MIP.
It is true that as an individual person Shri Chetan Yadav, of M/s Ninai Shipping Agency who assisted the importers in the violation, and the appellants as a Customs Broker associated with such imports may be responsible for the omission and commission which had led to import of prohibited goods in violation of the Customs Act, 1962 read with relevant Rules and Regulations - there cannot be a case for taking action against violations of CBLR. Hence, the impugned order does not sustain on grounds of factual matrix of the case as detailed therein and also as explained in the SCN dated 08.12.2022.
Thus, it is factually incorrect to state that the appellants had for their acts of omission and commission in dealing with importer in misdeclaration of imported goods have failed to adhere to the responsibilities expected in terms of Regulations 10(e), 10(n), 13(3) and 13(4) of CBLR, 2018. Thus, the conclusions arrived at by the Principal Commissioner in the impugned order is contrary to the factual position and thus it is not legally sustainable.
The impugned order is modified by setting aside the same in respect of revocation of CB license of the appellants and for forfeiture of security deposit as there was no violation of Regulations 10(e), 10(n), 13(3) and 13(4) of CBLR, 2018. Further, by modifying the impugned order for imposition of penalty, a penalty of Rs.10,000/- imposed on the appellants under Regulation 18 ibid on account of their failure to supervise their employee for compliance with the law in examination of goods as per provisions of Regulation 13(12) ibid.
The appeal is partly allowed.
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2023 (12) TMI 193
Quantum of penalty u/s 114 of CA - penalty imposed is around ten times the value of the impugned goods - misdeclaration of export goods - appellant in collusion with his DTA supplier (appellant-2) attempted to export the impugned goods which were liable for confiscation.
It is contention of revenue that Commissioner (Appeals) has decided the appeal in favour of respondents without discussing departmental views on merits.
HELD THAT:- The Commissioner (Appeals) has discussed the relevant portion of show cause notice and has concluded for deduction of the penalties imposed upon the respondents. He has discussed in his order that why he do not find respondents guilty of mis-declaration etc. and imposition of penalties under Section 114 and specifically under Section 114AA is a discretionary power whereby penalty could have been imposed up to the value as declared or to the value as determined under the Customs Act. It is not the case that penalties imposed under the provisions is a mandatory penalty that needs to be reduced. Commissioner (Appeals) in exercise of discretion have reduced the penalties imposed as indicated in his order. Nothing has been stated in the appeal to show that the discretion as exercised was in a malafide manner.
In case of COMMISSIONER OF CUSTOMS (IMPORTS), MUMBAI VERSUS RA SPINNING MILLS (P) LTD. [2004 (4) TMI 405 - CESTAT, MUMBAI] Mumbai bench held Section 112 of the Customs Act does not provide for a mandatory penalty and the discretion to impose penalty or not to impose penalty depends upon each case.
In COMMISSIONER OF CENTRAL EXCISE, CUS. & S.T. VERSUS BARNWAL CARPET MFG. CO. [2017 (11) TMI 1046 - ALLAHABAD HIGH COURT] Hon’ble Allahabad High Court has held When the adjudicating authority is empowered to impose lesser penalty than the maximum provided it cannot be said that the Tribunal is not vested with the same power. The Tribunal having exercised the above discretion for the reasons recorded which do not appear to be arbitrary or whimsical, in any way, we are of the view that the said discretion is not liable to be interfered with and the Tribunal was justified in reducing the penalty imposed under Section 114(iii) of ‘the Act’.
There are no merits in the appeal - appeal dismissed.
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2023 (12) TMI 192
Confiscation of goods - Smuggling - foreign origin Betel Nuts - specified or notified goods? - Burden to prove - consigner appellant firm M/s Ganga Enterprises was found to be non-existent at the address mentioned in the invoice number - HELD THAT:- The impugned goods i.e. Betel Nuts are not the goods specified or notified under Section 123 of the Customs Act, 1962. Thus the burden to prove the smuggled nature of these goods lies on the Custom Authorities as held by the Tribunal in the case of BABOO BANIK VERSUS COMMISSIONER OF C. EX. & CUS., LUCKNOW [2004 (7) TMI 482 - CESTAT, KOLKATA]. Tribunal in the case of BIJOY KUMAR LOHIA VERSUS COMMISSIONER OF CUSTOMS (PREV.), PATNA [2005 (11) TMI 306 - CESTAT, KOLKATA] has held that the local trade opinion cannot take the place of the legal evidence. No case has been made out for the seizure and confiscation of the Betel Nuts is made out as no evidence has been placed on record to establish the foreign origin of these goods, or of illegal importation of the same. These goods were seized when they were being transported within the country, which do not cross any international border from the place of origin to destination.
Impugned goods namely betel nuts are not specified under Section 123 of the Customs Act, 1962 and the burden to prove the smuggled nature of the same is on the Custom Authorities. If the evidences on the basis of which foreign origin of the goods are found unsatisfactory as per the above said decision, it is not found that the Custom Authorities have discharged the burden cast on them under Section 123, ibid. Cancellation of registration under GST may be for violation of the provisions of that Act, and non existence of consignor etc., at specified address do not establish the case of the revenue for holding the goods to be of foreign origin and smuggled into India.
There are no merits in the impugned order of Commissioner (Appeals) - appeal allowed.
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2023 (12) TMI 191
Classification of imported goods - EDTA Zinc 12% - to be classified under CTH 3105 9090, with exemption from CVD vide Notification No. 04/2006-CE dated 01.03.2006 or it would fall under CTH 2921 2100 and thereby, not entitled to the CVD exemption, by considering the said product as “Ethylenediamine and its salts”?
Whether the product in question can be considered as separate chemically defined compound as Revenue is arguing or otherwise? - HELD THAT:- From the manufacturing process, as well as expert opinion, it is apparent that Nitrogen is added deliberately in the process simultaneously, along with Zinc Oxide, as also EDTA acid. Therefore, Nitrogen is not an in situ development rather it is part of the manufacturing process and Nitrogen remains in the product even after the reaction is over, as confirmed by the test report of the final product. Therefore, even if it is a micronutrient or plant growth regulator essential for providing Zn, since it also contains fertilizing element i.e., Nitrogen also, it would be more appropriately classifiable as ‘other fertilizers’.
Whether nitrogen is used as fertilizer or otherwise or whether it is intended to be used as fertilizer or otherwise? - HELD THAT:- Admittedly, it is an agriculture grade product, where the Revenue has also provided the IS standard meant for agriculture grade Zinc-EDTA. IS standard for chelated Zinc for agricultural use (IS 13921:1994), inter alia, provides for certain minimum requirements of Zinc i.e., 12% which is satisfied in this case. Similarly, the Fertilizer (Control) Order also classifies chelated Zinc i.e., Zn-EDTA, as micronutrient, where the minimum content should be 2%. Therefore, when the chelated Zinc is treated as fertilizer or micronutrient and when the same is also having ‘other fertilizing component’ like Nitrogen in substantial proportion (here 6.5%), this needs to be classified as micronutrient fertilizer or other fertilizer in terms of Chapter Note 6 to Chapter 31.
The Commissioner (Appeals) had rightly decided the classification of EDTA Zinc 12% under CTH 3105 9090. Accordingly, there are no merit in interfering with the Impugned Order - appeal dismissed.
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2023 (12) TMI 190
Violation of principles of judicial discipline - Seeking provisional release of seized goods - Smuggling - foreign origin gold and cash - release denied on the ground that respondent was not cooperating with the investigation proceedings - HELD THAT:- From the plain reading of Section 110A of the Customs Act, 1962, it is quite evident that provisional release of the seized goods in terms of Section 110A goods, document and things seized, pending adjudication has been allowed as a right to the person who claims ownership of the said goods, documents and things. The only requirement is that at the time of release the bond in proper form with security and conditions as adjudicating authority may impose, should be taken from him.
The only grounds stated by the Additional Commissioner in Order-in-Original for not allowing the provisional release of the seized goods and Indian currency is that respondent was not cooperating with the investigation proceedings. The ongoing investigation cannot be ground for the denial of right to the provisional release of seized goods conferred on the respondent by the Customs Act, 1962. It seems that the Additional Commissioner, while passing this order has not acted as quasi judicial authority but an agent of investigating team of DRI officers and have instead of implementing the rule of law has decided to implement the will of the investigating authorities. Such an approach or interference in quasi judicial functioning by the investigating authorities is totally uncalled for and is condemned.
It is not understood as to how officers responsible for implementing a Central Law - Customs Act, 1962, holding high positions of “Commissioner” in the justice delivery system as per the Act, ibid, direct contrary to the provisions of the law as have been interpreted by the Higher Judicial Forums including the Jurisdictional High Court. The appeal filed itself goes contrary to the principles of judicial discipline which are so sacrosanct for establishing rule of law.
It is directed that copy of this order should be given to the Chief Commissioner of the zone and Member Investigation/ Member Customs for taking necessary action and to ensure that such practices is avoided - appeal dismissed.
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2023 (12) TMI 189
Smuggling - Betel Nuts being of foreign origin - no documentary evidences could be produced with regards to legal import - burden to prove - appeal filed without application of mind - HELD THAT:- The appeal are filed in routine manner without any application of mind. The Form CA-5 which has been filed is incomplete and fails to record even the basics of the cases as per the impugned orders of the lower authorities. Commissioner (Appeal) has in appeal filed by four of the aggrieved persons against the order in original set aside the entire Order-in-Original even against the persons whose appeal was not under consideration by him, and revenue files this appeal even without uttering a single word about the same. Might be the revenue is only aggrieved by the setting aside of the order against the respondent and not against setting aside of the entire order in original without any appeal.
On going through the impugned order of Commissioner (Appeals), it is noted that he has primarily gone by the fact that betel nuts are not notified under Section 123 of the Customs Act and the onus to prove that the same are smuggled is on the Revenue as held by the Tribunal in the case of BABOO BANIK VERSUS COMMISSIONER OF C. EX. & CUS., LUCKNOW [2004 (7) TMI 482 - CESTAT, KOLKATA]. Further, the Tribunal in the case of BIJOY KUMAR LOHIA VERSUS COMMISSIONER OF CUSTOMS (PREV.), PATNA [2005 (11) TMI 306 - CESTAT, KOLKATA] has held that the local trade opinion cannot take the place of the legal evidence.
It is noted that the reliance on the opinion of Arecanut Research & Development Foundation (ARDF), Mangalore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory. As such, the Appellate Authority is agreed upon that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin.
There are no infirmity in the impugned order of the Commissioner (Appeals) to the extent it pertains to the respondent in this appeal and the same is upheld - appeal of Revenue dismissed.
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2023 (12) TMI 188
Valuation and assessment of imported goods - Artificial PU, and leather cloth of varied thickness - Enhancement of value on the basis of NIDB data as well as contemporaneous evidence available in the EDI system - enhancement without disclosing any reason or passing any speaking order under Section 17(5) of the Customs Act - principles of natural justice - HELD THAT:- The law is amply clear in the matter and that any rejection of declared value and its re-determination has to be qualified by way of a speaking order issued in terms of Section 17(5) of the Customs Act - It goes without saying that the issuance of a speaking order is the basic minimum for adherence and compliance with the principles of natural justice. In the absence of any order in writing regarding reassessment and revaluation, the same can at best be cryptic and arbitrary with no cogent justification for rejection of the declared value. It is an admitted position that no orders as warranted in terms of Section 17(5) were issued by the department in the present matter. Moreover, no show cause notice was also issued to the appellant.
There are no illegality in the impugned order passed by the learned Commissioner (Appeals). We note that the appeal filed by the revenue is bereft of substance and merit, in as much as no reasonable opportunity has been given to the respondents to present their case. The revenue has not doubted the importers invoice submitted at the time of assessment. No re-valuation of the goods imported can be directed in law without first rejecting the transaction value. Therefore, the Commissioner (Appeals) has rightly rejected the order passed by the lower authority, enhancing the transaction value declared, without spelling out any reasons thereof.
There are no merit in the appeal filed by the department - appeal of Revenue dismissed.
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2023 (12) TMI 131
Correctness of remanding the matter - absence of there being any stay of the impugned order of the High Court - Refund claim - Benefit of concessional rate of duty - HELD THAT:- It is found that the question as to whether the order of remand was justified or not has been rendered otiose. Therefore, this Special Leave Petition is disposed off on the basis that the order of remand has been given effect to reserving all contentions on both sides to be agitated on merits, in the event any of the parties is unsuccessful before the appropriate forum.
It is needless to observe that the disposal in the instant case is solely on the basis that there was no stay of the order of remand and the said order has been given effect to during the pendency of the Special Leave Petition before this Court.
Application disposed off.
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2023 (12) TMI 130
Maintainability of appeal - pre-deposit - Appeal rejected on the ground that the petitioner has failed to deposit 7.5% of the amount demanded on account of duty drawback and penalty imposed by the Order-in-Original - HELD THAT:- Having perused the record as also the impugned order, in our opinion, the view taken by the Additional Secretary to the Government of India is too technical to say least. The petitioner has urged specific ground in regard to financial difficulty, which ought to have been considered - the issue on merits of such contention has not at all been touched and what has weighed with the authority is that the Revisional and Appellate authority will have to follow the provisions of Section 129-E of the Customs Act, which is in regard to the pre-deposit of 7.5% of the amount demanded.
The interest of justice imminently would require that the impugned order passed by the Appellate Authority as confirmed by the Revisional Authority are quashed and set aside and the petitioner be granted an opportunity of its appeal being adjudicated on merits - order passed by the Appellate Authority as confirmed by the impugned order passed by the Revisional Authority is quashed and set aside. The appeal before the Appellate Authority is restored to the file of the Appellate Authority – Commissioner of Customs (Appeals), Mumbai Zone-III to be heard on merits.
Petition allowed.
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2023 (12) TMI 88
Seeking release of seized goods - Gold Dore Bars of Guinea - petitioner has come forward to pay 100% duty under protest.
HELD THAT:- This Court is of the view that, it need not labour much to resolve the controversy raised in the Writ Petitions inasmuch as the petitioner has come forward to pay 100% duty under protest.
The Authority concerned is directed to consider the petitioner's request and release the goods subject to payment of 100% duty by the petitioner within a week's time from the date of payment of 100% duty made by the petitioner in accordance with law - The petitioner, after making the payment of 100% duty, is at liberty to make an appropriate application seeking release of the goods, which shall be considered by the Authority concerned.
Petition disposed off.
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2023 (12) TMI 87
Seeking prohibition from continuing the illegal investigations and from acting in an arbitrary manner, and to cease causing continued and repeated harassment to the Petitioner - seeking release of the goods detained by the DRI and waiver off the demurrage charges incurred by the Petitioner due to the continuous illegal detention - HELD THAT:- It is manifest that the detention of goods cannot be said to be unjustified. The record further reflects that the petitioner was not the original importer and only appeared subsequently before the respondents claiming to be the beneficial owner of the subject goods.
Tested on facts and the principles enumerated by the Supreme Court in Mumbai Port Trust [2017 (7) TMI 977 - SUPREME COURT], there are no justification to grant the reliefs as prayed for in the writ petition.
Undisputedly, by the time the instant writ petition was taken up for consideration, it is informed that the goods had already been released and that the exercise of valuation had also been concluded - the prayers as framed in the writ petition are clearly rendered infructuous.
Petition dismissed.
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2023 (12) TMI 86
Smuggling - heroin - contraband item - quantitative analysis of the sample not done even as per the report - sanction required to prosecute the accused for the offences under NDPS Act or not - HELD THAT:- It is not the case of the petitioner that the samples were opened or missing. As per the test report dated 09.08.2011 of Assistant Chemical Examiner that all the seals were intact and were tallying with the facsimile seals kept in the Court letter and in the memo. It is further reported that the samples are in the form of brown coloured powder. It answers the test for the presence of Diacetyl morphine (Heroin) and is covered under N.D.P.S. Act, 1985.
In so far as the sanction is concerned, no sanction is required to prosecute the accused for the offences under NDPS Act. In so far as the Customs Act is concerned, the Principal Commissioner of Customs had accorded sanction to prosecute the accused for the offence under Section 135 of Customs Act. The petitioner is prosecuted for the offence under Section 135 of Customs Act and not for the offence under Section 132 of Customs Act. Further there is typographical error, instead of Section 9(c) of NDPS Act, it has been typed as Section 8(c) of NDPS Act in the complaint and it is nothing but a curable defect and it is not a ground for quashing the proceedings as against the petitioner.
This Court is not inclined to quash the proceedings in C.C. No.56 of 2016 on the file of the Special Court under E.C. & N.D.P.S. Act, Chennai as against the petitioner - Petition dismissed.
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