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Customs - Case Laws
Showing 141 to 160 of 1606 Records
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2023 (12) TMI 85
Revocation of Customs Broker License - forefeiture of security deposit - levy of penalty - Over-valuation of goods - failure of exercising supervision required to ensure proper conduct over the employee.
It is the contention of the appellant that there is nothing in the show cause notice as well as the order passed by the learned Commissioner which could associate or attribute the appellant for the offence relating to over-valuation of the export goods.
HELD THAT:- While deciding the question of over valuation on part of the exporter, there is nothing on record to in any way conclusively link the conduct of the said offence with the connivance of the Customs Broker. There is nothing to decisively link the appellant with the commissioning of the said fraud and mere oral, unverified testimony cannot substitute as proof in the matter. It is also not established from records that the chartered engineer was fixed by the appellant. Further, the declaration of the export value is the sole prerogative of the exporter and not that of the Custom Broker, who files the Customs documents as per information supplied by the exporter/importer as the case be. If any conscious contumacious conduct is ascribed to the Custom Broker it has to be led by positive evidence which in this case is none. Also, there is nothing in the order or the show cause notice to link, the appellant with the non-realization of the export proceeds in respect of export shipments made in the past.
There are no infringement of Regulation 10(q) as well in the matter as it is on record that the appellant has always co-operated in the enquiry. The fact that the chartered accountant could not expressly prove that the Custom Broker or his employee was the person who had represented before him as the exporter, only goes in to strengthen the appellant’s case. Therefore, the allegation only exposes the hollowness of the department’s claim with reference to Regulation 13(12) of CBLR, 2018 - the allegations levelled by the department as misdirected and mis-founded.
To implicate the appellant with the commissioning of the fraud, the charge has to be led by positive and reliable evidence and vague hypothesis and presumptions cannot be the basis for any unilateral action initiated against the Broker - the department has failed to make out any sustainable case of violation of the provisions of the CBLR, 2018 by the Custom Broker.
The order passed by the learned Commissioner being not legal and correct is therefore liable to be set aside - the order of revocation of the Customs Broker license is annulled.
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2023 (12) TMI 84
Non-imposition of redemption fine and penalty on the respondent - Zero Duty EPCG Authorization - failure to fulfill the export obligation within a block of 4 years (under wrong impression) - HELD THAT:- In this case no doubt the respondent in terms of Notification, has failed to fulfill the export obligation within a block of 4 years, the respondent is required to pay 50% of duty along with interest @ 15% within 30 days from the expiry of each block, but the respondent was not aware of this condition as they were under an impression that they were required to fulfill the export obligation within a period of 6 years - But, as and when investigation started the respondent immediately paid duty and interest. Further, as per the condition of the Notification, the appellant is required to pay duty along with interest. In that circumstances, the adjudicating authority has rightly refrained from imposing redemption fine and penalty on the respondent. As the respondent has complied with the condition of the Notification, therefore, there are no infirmity in the impugned order.
Appeal filed by Revenue dismissed.
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2023 (12) TMI 83
Refund claim - rejection on the ground that the export duty was charged on the basis of Wet Metric Tonne (WMT), whereas the contract value was on Dry Metric Tonne (DMT) - no reason exists to challenge the assessment of the shipping bills - HELD THAT:- It is found that it is a fact on record that the appellant filed shipping bills at the time of export of goods and duty was to be paid on the basis of DMT instead of WMT. The Adjudicating Authority without assigning any reason, demanded duty on the basis of WMT in terms of Section 17 (4) of the Customs Act, 1962. As per the said provisions, where on verification or otherwise, it is found that the selfassessment is not done correctly, the proper officer may, without prejudice to any other action, which may be taken under this Act, reassess the duty leviable on such goods. Further, Section 17 (5) of the Customs Act, 1962, mandates that if any order passed by the proper officer under Section 17 (4) of the Act, he shall pass a speaking order on the re-assessment within 15 days from the date of reassessment of shipping bill.
In this case, the assessments of shipping bills have been done under Section 17 (4) of the Act and further Section 17 (5) mandates that if any order is passed under Section 17 (4) of the Act, the proper officer is duty bound to pass a speaking order of re-assessment within 15 days of the order passed under Section 17 (4) of the Act - Admittedly, in the case in hand, no order under Section 17 (5) of the Act has been passed.
The re-assessment of shipping bill is not final. Therefore, the appellant has no reason to challenge the assessment of the shipping bills. In that circumstances, the reasons for denying the refund to the appellant are not sustainable - the impugned order set aside - the adjudicating authority/proper officer is directed to pass a speaking order under Section 17 (5) of the Act and thereafter, if any refund claim is maintainable, the same is be decided in accordance with law.
Appeal disposed off by way of remand.
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2023 (12) TMI 51
Compounding of offences under Section 137(3) of Customs Act - Rate for fixing the compounding - re-working of amount of compounding on reduced value as allowed by the tribunal - smuggling of 247 boxes of prescription drugs which could not be exported without due clearance and completion of statutory formalities - compliance with Circular No.27 of 2015 - HELD THAT:- Since it is mandatory for the Department to have adhered to the guidelines laid down in the said Circular No.27 of 2015 and which stood modified and clarified on various occasions from time to time, it was not justifiable for the authorities concerned to have ignored the said guidelines and imposed unreasonable penalty as has been done in the instant case. Once when there is an upper cap limit of 5%, there was no power conferred with the authorities concerned with which the said amount could have been raised.
The rate at which the compounding amount has been finalized by the authorities concerned does not seem to be proper, legal and justified and the compounding amount so finalized under the order of compounding dated 12.09.2023 is liable to be limited to 5% in terms of the Circular No.27 of 2015. To that extent the compounding amount deserves to be and accordingly stands modified.
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2023 (12) TMI 42
Valuation of imported goods - enhancement of value - rejection of declared value - basis of enhancement of the value exists or not - presence of contemporaneous goods or not.
Petitioner submits that the entire enhancement of the value is based on the data taken from the Zuaba Portal and authenticity of the same is not known, there is no evidence of the genuineness of the data in Zuaba.
HELD THAT:- It is found that the appellant has imported stock lot of Jute Bags, which was declared in the bill of entry. The department has enhanced the value on the basis of data gathered from the website of Zuaba. It is undisputed fact that the authenticity of the platform of Zuaba has not been established or department has not made any effort to verify the authenticity of the same. It was also a submission of the appellant that it is not approved by any government agency and the same is a private platform. Therefore, the sole reliance made on the data appearing on Zuaba platform, in our view is not correct and legal.
Since the data of Zuaba is not authentic, there is no any other evidence to doubt the value declared by the appellant. The department has not discharged the burden in rejecting the declared value. Even from the data of Zuaba which was relied upon by the department that the goods appearing on that data are not similar or identical to the one imported by the appellant. A perusal of the description of the said goods mention in the said table. Such as ‘New Binola Jute Bags’, ‘Vegetable Oil Treated New Jute Bags’ etc. are not identical to the goods under import - The stock lot, if not of the same quality of which the new goods are, and thus, the stock lot is available at a lesser price in the market. Therefore,there are no basis for rejecting the declared value by the appellant.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 19
Seeking a direction to Respondent No. 1 to permit the Petitioner to apply for incentives under the Transport and Marketing Assistance for Specified Agriculture Products Scheme dated 09th September, 2021, which was foreclosed vide gazette notification dated 25th March, 2022 - HELD THAT:- Though the lack of functionality of DGFT portal has been averred, yet keeping in view the fact that the Petitioner has directly approached this Court without filing any documents to show non-functionality of the portal and without making any written representation to DGFT, this Court directs the present writ petition to be treated as a representation and to be decided by the competent authority in the Office of DGFT by way of a reasoned order within twelve weeks. The Petitioner is given liberty to file additional documents with the DGFT within three weeks.
The present writ petition stands disposed of.
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2023 (12) TMI 18
Maintainability of Public Interest Litigation - seizure of jewellery / ornaments worth Rs. 50,000/- Constitutional validity of Circular instruction No. 22/2022-Customs dated 06th September, 2022 and Circular instruction No. 27/2021-Customs dated 03rd December, 2021 - mandating compulsory disposal and sale to RBI of all gold ornaments/ jewellery within three months from the date of seizure - ultra vires Section 150, 125 and 110(2) of the Customs Act, 1962 and violative of Articles 14, 21, 31 and 300A of the Constitution of India.
HELD THAT:- This Court is of the view that the present petition is not maintainable as it is a settled principle of law that an aggrieved person must approach the Court. The standing doctrine characteristic is that a potential litigant must be injured by the action it is challenging. In the opinion of this Court, the petitioner is a stranger, who has not been adversely affected by either of the impugned Circular Instructions as none of his ornaments or articles or jewellery items have been seized.
Undoubtedly, the rule of locus standi is relaxed in case of public interest litigation, but that is to be done only to ensure that the poor or socially and economically backward or persons with disability are not denied their rights. In a public interest case, there need be no litigant, if a problem is deemed by the Court as worthy of attention. The concept of public interest litigation, as stated hereinabove, is linked to the enforcement of the social and economical rights in India.
At this stage, learned counsel for the petitioner states that the petitioner has filed the present Public Interest Litigation as jewellery / ornaments worth as low as Rs. 50,000 can be seized at the airport and sold immediately - This Court is of the view that any individual who owns gold jewellery/ ornaments and who travels by air is not economically or socially backward and can approach the Courts directly.
The present petition which has been filed as Public Interest Litigation is held to be non-maintainable and the same is dismissed alongwith pending application.
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2023 (12) TMI 17
Classification of imported goods - Canned Pineapple Slices - classifiable under Customs Tariff Heading No. 0804 3000 or under CTH 08119010? - reliance placed upon the statement of the appellant - demand of differential duty alongwith interest and penalty - extended period of limitation.
HELD THAT:- As per the explanatory notes, it is noted that for any product to be classified under CTH 0804, they have to be fresh or dried. For fruits to be classified under CTH 0811, the said product has to be “Frozen”, as elaborated above. In the instant case, the product being imported by the appellant is not frozen. This is amply clear from the statement of the Director of the appellant, wherein he submitted that the fresh fruits (Pineapple) are received, graded, washed, peeled, cut, core, sliced and then put in sterile cans (sterilized by passing under steam); boiling Hot Sugar syrup is added to balance the natural sugar content of the fruit and prevent it from draining out; sugar is added to maintain taste and palatability of the fruit and it is not a preservative; the Hot syrup (water+ sugar pre mixed) is heated till boiling point to kill any ambient bacteria that may be present and to create vacuum in the cans thus completing the preservation process due to the isolation from atmospheric contact and vacuum. Thereafter, such cans are cooled and released to market.
In the instant case, the fresh pineapple slices are sterilized by passing under steam which is followed by adding boiling Hot Sugar syrup to balance the natural sugar content of the fruit and prevent it from draining out. This Hot syrup (water+ sugar pre mixed) is heated till boiling point to kill any ambient bacteria and to create vacuum in the cans thus completing the preservation process. Thereafter, such cans are merely cooled, and not frozen to enable them to be released for sale. Thus, it is very clear from the facts of this case, the canned pineapple slices are akin to fresh pineapples and are liable to be classified under CTH 0804, and not under CTH 0811, as claimed by the appellant.
In the instant case, the classification of the canned pineapple slices would have to be decided as per the HSN explanatory notes and would therefore be appropriately classifiable under CTH 0804 only. It is also noted that in the impugned order, it is recorded that the appellant had themselves quoted that it was their CHA who filed their Bills of Entry under the wrong CTH 20082000 without taking instructions from the regarding the correct classification, which would be CTH 08119010 - it is already opined that the appropriate classification would have to be arrived at by going through the tariff headings, the chapter notes, the HSN explanatory notes therein.
The material incriminates the petitioner in the contravention of the provisions of the Customs Act. Such material can certainly be used to connect the petitioner to the contravention. Therefore, there are no infirmity in the impugned order which has relied on the statement of the appellant.
Extended period of limitation - HELD THAT:- It has been brought on record by the learned counsel for the appellant that there was confusion in the Department itself regarding the classification of canned sliced pineapples - there are merit in the contention that the Department themselves have classified the said goods under different headings. In view of the prevailing circumstances, the extended period cannot be invoked in the instant case.
The classification of the canned pineapple slices would be CTH 0804. However, the demand for differential duty is limited to the normal period only. The interest would accordingly be reduced proportionately. The penalty under section 114A is set aside - Appeal allowed in part.
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2023 (12) TMI 16
Classification of imported goods - G-24 PL 001 GSM Chipset Wavecom (modem) - to be classified under chapter Heading 8517 6230 or under Chapter Heading 8537 1000? - HELD THAT:- There is no dispute that the items imported are a programmable processor mounted on a printed circuit board. The Commissioner (Appeals)’s classification under Chapter Heading 8517 is misplaced in as much as this Chapter includes Telephone sets, smartphones and other telephones for cellular networks or for other wireless networks; other apparatus or for the transmission or reception of voice, Images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of Heading 8443, 8525, 8527 or 8528 - It is a settled fact that the principles of classification endorses that any classification should be based on the description and function of an item as it is imported and not based on its end-use as held by the Supreme Court in number of cases.
The HSN Explanatory Notes to Chapter Heading 8537 states that this heading covers ‘programmable controllers which are digital apparatus using a programmable memory for the storage of instructions for implementing specific function such as logic sequencing, timing, counting and arithmetic to control through digital or analogue input/output modules, various types of machines’. It is also a fact that the appellant are manufacturers of electric metre and their products are classifiable under chapter heading 90283010 and it is also an admitted fact that these impugned goods are used in automatic metering system. Therefore, Commissioner (Appeals) justification for classification under Chapter Heading 8517 as part of modem is inappropriate.
Since programmable controllers are specifically covered under Chapter Heading 8537, they are rightly classifiable under this Heading and not under Chapter Heading 8517 as part of modem - the imported item viz., G-24 PL 001 GSM Chipset Wavecom (modem) are rightly classifiable under Chapter Heading 8537.
The impugned order is set aside - the appeal filed by the Revenue is allowed.
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2023 (12) TMI 15
Valuation of imported goods - Aluminium Scrap - rejection of transaction value - procedure contemplated under Rule 12 of the valuation rules not followed - Commissioner of Customs (Appeals), while allowing the appeal of the importer, set aside the re-assessment of goods at enhanced value and restored the self-assessment at the declared value - HELD THAT:- On identical facts, this Tribunal in the case of COMMISSIONER OF CUSTOMS DELHI VERSUS M/S HANUMAN PRASAD & SONS [2020 (12) TMI 1092 - CESTAT NEW DELHI] has examined the provisions relating to valuation as prescribed in the Customs Act, 1962 and the Customs Valuation Rules, 2007 and after examining the same, the Tribunal has come to the conclusion that when the importer has voluntarily accepted the enhanced value without any protest then in that case it is not incumbent upon the department to pass a speaking order.
In the case of CC (IMPORT) , ICD, TKD, NEW DELHI VERSUS M/S SODAGAR KNITWEAR [2018 (5) TMI 686 - CESTAT NEW DELHI] where the Tribunal has held that once the importer voluntary accepted the enhancement then he is precluded from challenging the same. This judgement of the Tribunal has been upheld by the Hon’ble Apex Court in SODAGAR KNITWEAR VERSUS COMMISSIONER [2018 (8) TMI 1777 - SC ORDER] wherein the Hon’ble Apex Court has held that “we do not find any infirmity in the order passed by the CESTAT, the appeal is dismissed.”
The impugned order is not sustainable in law - Appeal allowed.
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2023 (12) TMI 14
Condonation of delay in filing appeal - whether the appeal filed by the appellant was filed within the prescribed period of limitation specified under Section 128 of the Customs Act, 1962 or not? - HELD THAT:- The period of limitation provided under the said Section 128 is ‘sixty days from the date of communication of decision or order’. On one hand the appellant claims that the Order-in-Original dated 06.07.2018 was communicated to him for the very first time only on 05.05.2022 when copy of the said order was made available to him on request being made whereas on the other hand the impugned order records that the said order was dispatched by speed post vide letter dated 06.07.2018.
In the present case, since it was the specific case of the appellant before the Commissioner (Appeals) that the speed post was not delivered to him, hence it was incumbent upon the revenue to bring on record the date of speed post and the ‘acknowledgement’ of such speed post. However, despite such an specific assertion being made, the impugned order neither records the date on which the speed post was sent/dispatched nor the date of acknowledgment of the speed post. In absence of the date of dispatch by speed post and date of acknowledgement, the revenue has clearly failed to discharge the initial onus and therefore it cannot be said that the order dated 06.07.2018 was communicated to the appellant at any time on or around 06.07.2018.
Further, in the facts and circumstances of the present case, when the appellant changed its address on account of closure of business, he had no means to be aware of the order and has nothing to gain by not filing the appeal timely - the date of communication of the order is to be considered as 05.05.2022, when the copy of order dated 06.07.2018 was provided on the request made by the appellant. As the revenue failed to comply with Section 153 and has not brought on record any other date prior to 05.05.2022, when the order was served in any of the modes specified under Section 153.
The matter is remanded back to the Commissioner (Appeals) to decide the matter on merits after giving personal hearing to the appellant - the appeal is allowed by way of remand to the Commissioner (Appeals) for decision on merits.
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2023 (12) TMI 13
Undervaluation of the imported goods - Rejection of transaction value - redetermination of value based on contemporaneous imports of similar goods available in the NIDB database - HELD THAT:- Once the appellant accepted the enhanced value in writing, it was binding on both sides as per section 147. In fact, there was not even a need to issue any speaking order as per section 17(5) of the Act - There was no forced acceptance of the valuation based on the NIDB data. If the appellant did not agree to the re-determination of value, it did not have to accept the proposed value or it could have paid duty under protest. If the appellant wanted to get the goods cleared while not accepting the values proposed by the department, it could have also got the goods provisionally assessed pending finalization of assessment. If it wanted to avoid demurrages, it could have got the goods shifted to a Customs bonded warehouse under section 49.
The appellant’s contention that the rejection of the transaction value under Rule 12 was not correct holds no water. The values declared in the Bills of Entry were doubted because they were far lower than the values of the contemporaneous imports available in the NIDB. When these were shown, the appellant accepted valuation on the basis of the NIDB data. Therefore, rejection of the transaction value as per Rule 12 is absolutely correct - The appellant’s contention that valuation should have been done as per Rule 3 is not correct because, Rule 3 is subject to Rule 12 under which the transaction value can be rejected as has been done in this case.
Having rejected the declared assessable value under Rule 12, the department sought to re-determine it under Rule 5 based on the contemporaneous value of similar goods imported into the country. It needs to be noted that since the imported goods were miscellaneous motors of various specifications there cannot be identical goods to determine duty as per Rule 4 and hence determining duty on the basis of values of similar goods under Rule 5 is fair and proper. To determine the value of the contemporaneous imports, the relevant data was extracted from the NIDB. The department also referred the matter to a Chartered Engineer to determine the value of the imported goods.
In this case, since the fact that the goods were undervalued and the correct assessable value for the goods imported under the two Bills of Entry dated 9.2.2009 and 17.2.2009 are as per the charts prepared by the officers as per the NIDB data was not only not disputed but positively accepted, in writing, by the appellant, these facts were not in dispute and neither side needed to produce any evidence - there is no force the submissions of the learned counsel for the appellants that the department failed to provide evidence in support. Revenue need not produce any evidence. In fact, it did not have to even issue the SCN or hold a personal hearing insofar as the re-assessment of these two Bills of Entry is concerned because the appellant had waived them in writing.
Re-determination of value and confirmation of demand in respect of the five past Bills of Entry - HELD THAT:- At the time of recording the statement, the appellant could not remember the exact number of Bills of Entry filed before and also did not have the details. All that is stated is that he is ready to pay Customs Duty for the same, if any. Neither were the details of the Bills of Entry nor the goods imported under them, their declared values, corresponding values of goods in the NIDB and why it became necessary to re-open the assessment which were already finalized shown to the appellant nor were they agreed to. This statement does not support the case of the Revenue in any sense.
Confiscation of the goods imported in the two Bills of Entry and their release on payment of redemption fine - HELD THAT:- Once the goods are confiscated, section 125 requires that, unless the goods are prohibited goods, the owner should be given an option to redeem the goods on payment of fine. If they are prohibited goods, the adjudicating authority has the discretion of allowing redemption or not. This section further restricts the quantum of penalty to the market value of the goods. It is not the case of either side that the motors imported by the appellant were prohibited goods. Therefore, they were released on redemption fine. The seized goods imported under Bill of Entry dated 9.2.2009 were valued at Rs. 48,36,860/- and the redemption fine imposed was Rs. 10,00,000/-. The seized goods imported under Bill of Entry dated 17.2.2009 were valued at Rs. 63,09,086/- and the redemption fine imposed was Rs. 12,50,000/. In the factual matrix of this case, the fines imposed are fair.
Order holding the goods imported under the five past Bills of Entry liable to confiscation and imposition of redemption fine since they were not available - HELD THAT:- If the goods are not available neither can the government take over the goods nor can it return them to the owner or payment of fine. The case of the goods imported under the above two Bills of Entry was different as they were seized and were provisionally released on execution of a bond and bank guarantee. The bond and bank guarantee are meant to cover the redemption fine, if any, imposed if the goods are confiscated and released.
Penalty on the importer under section 114A - HELD THAT:- As it is found that the demand of differential duty under section 28 in respect of the past Bills of Entry cannot be sustained, the penalty under section114A as well is set aside. As far as the duty on the two current Bills of Entry are concerned, they are a matter of re-assessment under section 17 and not a case of duty not levied or short levied under section 28.
Penalty on Shri Qasim under section 112(a) - HELD THAT:- As it is already found that the confiscation of the goods imported under the two current Bills of Entry and their release on payment of redemption fine need to be upheld and the confiscation and imposition of redemption fine in respect of the five past Bills of Entry is set aside - Shri Qasim is the person most directly connected with the filing of the two Bills of Entry and the values of the goods in these did not match the imported goods which rendered the goods liable to confiscation under section 111(m). Therefore, Shri Qasim squarely falls under Section 112(a) and is liable to penalty under it.
The penalty under section 112(a) has been imposed considering the differential duty confirmed in respect of the two current and five past Bills of Entry. As it is already found that the demand in respect of the five past Bills of Entry cannot be sustained - it is found proper to reduce the penalty on Shri Qasim also from Rs. 15,00,000/- to Rs. 3,00,000/-.
Appeal allowed in part.
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2023 (12) TMI 12
Levy of penalty on the appellant since goods were found in his name - Levy of penalty on the Valuer and other persons - Absolute Confiscation - seized gold bars - denial of cross-examination - relevance of statements - HELD THAT:- From the facts as recorded in the impugned order it is evident that the two persons namely Shri Rajat gupta and Shri Rajesh Kumar Gupta, valuer are neither co-accused in the matter nor are they the panch witnesses. The persons whose cross examination has been asked by the appellant were the person whose statement revenue intends to rely for proceedings against the appellant.
In the present case it is interesting to note that the Commissioner has by the impugned order imposed penalties under Section 112 (a) and 112 (b) on the appellant and others in respect of the same offense. This only goes to show total lack of understanding of the legal provisions by the adjudicating authority. While imposing the penalties in this manner adjudicating authority has even failed to examine the legal provisions and the case law on the subject. Not a single word is recorded in the impugned order as to why penalty is imposable under Section 112 (a) and/ or section 112 (b) in the impugned order. This clearly shows that the impugned order has been passed in haste without even recording a finding on the basic issues and the legal provisions.
The matter needs to be reconsidered by the Original Authority after permitting the cross-examination of the referred two persons before deciding the matter - Matter is remanded to the Original Adjudicating Authority for allowing the cross examination request of the appellant - Appeal allowed by way of remand.
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2023 (12) TMI 8
Confiscation of goods - capital goods imported as per EPCG licenses - levy of redemption fine, penalty and interest - non-fulfilment of Export obligation - scope of extension granted by the committee - denial of exemption availed under notification 102/2009-Cus. dt. 11.09.2009 - HELD THAT:- The SCN has been issued in 2016 alleging the non-fulfilment of 50% EO, and diversion of capital goods. The appellants were informing the adjudicating authority about the steps taken for getting extensions of time. Further on 25.03.2019, they submitted letter to the adjudicating authority informing that they are in the process of complying with the conditions of the EPCG Committee’s decision. This being so, it was incumbent upon the adjudicating authority to give the appellants reasonable time to comply with the conditions and should not have passed the order in a hurried manner even without grant of personal hearing. The EPCG Committee had not prescribed any time limit for compliance of the conditions. The assessee is then supposed to comply within a reasonable time. The assessee has been diligent to comply within a time period of about three months - The DGFT and Customs have to act hand in hand to give effect to the object of issuing such beneficial schemes. It should not be a tug of war so as to drive the assessee from pillar to post and getting their resources tied up in litigations. We therefore find that the changed circumstances as to the extension of period and compliance has to be taken into consideration.
The EPCG Committee has not stated any time period to comply with the conditions. There is no mention in the order of EPCG Committee that the extension of two years is to be applied retrospectively. When there is no specific mention of such event in the decision of EPCG Committee, the extension has to be construed as intended in the decision itself, which is nothing but extension of time by two years to fulfil their export obligation.
The order passed by adjudicating authority without considering the relaxations, compliance and fulfilment of export obligations so as to confirm the duty demand, confiscation and imposition of penalties on M/s.Ashok Leyland, the main appellant, requires reconsideration - the matter requires to be remanded to the adjudicating authority who is directed to consider the decisions passed by the Committees, the compliances made by the appellants and the fulfilment of export obligations and pass fresh order preferably within 3 months from the date of receipt of this order.
Appeal allowed by way of remand.
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2023 (11) TMI 1366
Classification of Roasted Areca Nuts / Betel Nuts intended to be imported - to be classified under Chapter 8, which includes edible fruits and nuts, or under Chapter 20, which covers preparations of vegetables, fruits, nuts, or other parts of plants? - HELD THAT:- The processes mentioned in Chapter 8 include chilling, steaming, boiling, drying and provisionally preserving. It does not specifically include the process of roasting. Here it is important to understand the difference between the processes of moderate heat treatment & dehydrating/drying referred in chapter 8 and processes of dry roasting, oil-roasting and fat-roasting referred in chapter 20. The terms dry-roasting, oil roasting and fat-roasting however are not defined in the Customs Tariff Act, 1975 - Chapter 20 of the Tariff covers the Preparations of vegetables, fruit, nuts or other parts of plants. As per Chapter Note 1 (a) to Chapter 20, the Chapter does not cover vegetables, fruits or nuts prepared or preserved by the processes specified in Chapters 7, 8 or 11. Therefore, vegetable, fruit or nut products or preparations made other than by the processes specified in Chapters 7, 8 or 11 are classifiable in Chapter 20. The processes specified in Chapters 7, 8 or 11 mainly include freezing, steaming, boiling, drying, provisionally preserving and milling. Therefore, any vegetable, fruit, nut or edible parts of a plant which is prepared or preserved by any other process than these are liable to be classified under Chapter 20.
While examining the scope of CTH 2008, it is found that as per HSN Explanatory Notes, heading 2008 covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter. Specifying what is included in this heading, the explanatory note states that almonds, ground nuts, areca (or betel) nuts and other nuts, dry-roasted, oil-roasted or fat-roasted, whether or not containing or coated with vegetable oil, salt, flavours, spices or other additives. Dry-roasting, oil-roasting & fat-roasting, as a process, are very much a part of chapter heading 2008 by virtue of HSN Explanatory Notes. It is also pertinent to observe that none of these processes are mentioned in the chapter note 3 to Chapter 8 of the Customs Tariff Act, 1975 as well as HSN Explanatory Notes to Chapter heading 0802.
The Honourable High Court of Madras in its recent judgement on 01.08.2023 [2023 (8) TMI 492 - MADRAS HIGH COURT], has upheld the classification of Roasted Betel Nuts under CTH 2008 19 20.
Conclusion - The Roasted areca/betel nuts fall under Custom Tariff Heading 2008, specifically under CTI 2008 19 20 "Other roasted nuts & seeds" of Chapter 20 of the First Schedule of the Customs Tariff Act, 1975.
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2023 (11) TMI 1326
Refund claim filed under Notification No. 102/2007- Cus dated 14.09.2007, in respect of lubricating oil imported by the appellant - rejection on the grounds of limitation - HELD THAT:- The matter has been decided earlier in the case of BHARAT SHIP BREAKERS CORPORATION, RISHI SHIP BREAKERS VERSUS COMMISSIONER OF CUSTOMS, JAMNAGAR (PREV.) [2023 (3) TMI 1547 - CESTAT AHMEDABAD], wherein it was held that 'In these facts, I find that when the assessment is provisional, it cannot be said that the duty which was paid during the provisional assessment was a final payment of duty. Final payment of duty is confirmed as and when the assessment of Bills of Entry is finalized. Therefore, the date of finalization of bills of entry should be reckoned as the actual date of payment and refund filed within one year from finalization of assessment to be treated as refund claim filed within one year.'
Relying on the aforesaid decision, in the case of M/s. Bharat Ship Breaker Corporation, the appeals are allowed.
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2023 (11) TMI 1287
Refund claim - unjust enrichment - time limitation - HELD THAT:- The judgment rendered inter partes on 06 August 2018 has attained finality. Even the Supreme Court in its order of 15 September 2023 [2023 (12) TMI 131 - SC ORDER] has not interfered with the judgment handed down by this Court. Thus, issues which stand conclusively settled in terms thereof cannot be reopened.
The observation of the Hon’ble Supreme Court with respect to the contentions being left open to be agitated by parties on merits, can only be confined to an issue which did not stand concluded in terms of the judgment which was rendered on 06 August 2018.
There are no ground to interfere with the order impugned - appeal dismissed.
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2023 (11) TMI 1280
Quantum of penalty - use of IEC code for import to be made by Sh. Rajan Arora - HELD THAT:- It is the undisputed position that the appellant had lent the Importer Exporter Code [“IEC”] for the purposes of facilitating import. Bearing in mind the fact that there was no connivance, the CESTAT had found it fit to reduce the penalty imposed on the appellant from Rs. 12 lakhs to Rs.50,000/-.
The appeal raises no question of law which would warrant consideration - Appeal dismissed.
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2023 (11) TMI 1279
Maintinability of appeal - monetary limit involved in the appeal - HELD THAT:- It is found that in each of the appeals, the amount involved is less than Rs. 50 Lakhs which is below the monetary limit as per the instructions issued by the CBIC under F. No. 390/Misc/116/2017-JC dated 22.08.2019.
All the appeals are disposed of under the Litigation Policy without going into the merits of the case with the liberty to the Department to seek restoration by moving appropriate applications if the matter is not covered by the said policy.
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2023 (11) TMI 1266
Application of Government's Litigation Policy on appeal amount threshold - HELD THAT:- On perusal of the record, we find that amount involved is less than Rs. 50 Lakh. In terms of Board’s Circular on Government’s Litigation Policy Instruction vide F.No. 390/Misc/30/2023-JC dated 02.11.2023, as amended, Revenue is not supposed to file appeal where the amount involved is not exceeding Rs 50 Lakhs.
Accordingly, the appeals are dismissed in view of aforesaid Government’s Litigation Policy, and CO also stands disposed of.
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