Cancellation of a Customs Broker license - clearing the export consignments - Violations of various regulations under the Customs Brokers Licensing Regulations, 2018 - transfer of license in terms of Regulation 1(4) of CBLR, 2018 or not.
Violation of Regulation 1(4) of the CBLR 2018 - HELD THAT:- The Tribunal was convinced on facts that this being an internal arrangement it cannot be treated to be an alleged violation of Regulation 1(4) of the CBLR 2018. Noting the factual position, we affirm the view taken by the learned Tribunal, more particularly, when it is not in dispute that Arup Ghosh has been handling the clearance work for the respondent in the capacity of a G Card holder and authorised representative.
Allegation against the respondent was that they violated the regulation 10(d) of the CBLR - Tribunal was right in coming to the conclusion that there was no evidence available on record to substantiate the allegation that the respondent has not advised their clients properly. Therefore, the finding rendered by the Tribunal in this regard stands affirmed.
Violation of Regulation 10(m) - Noting the facts the Tribunal, in our view, rightly held that there was no record to prove that the respondent has not performed its duties efficiently or in an expeditious manner. Therefore, we find that the conclusion of the Tribunal that the respondent has not violated Regulation 10(m) of the CBLR 2018 is affirmed.
Allegation against the respondent is with regard to Regulation 13(2) - Tribunal took note of the fact that Arup Ghosh, the G-Card holder and authorised representative of the respondent, has handled the clearance work for the exporter M/s. S. S. Impex, Hydrabad and the department has not raised any objection in this regard. Furthermore, as noted previously, the shipping bill in question was not filed by the respondent but was filed by Just Logistic–1 and, therefore, the Tribunal rightly held that the respondent cannot be held liable for any violation that might have been committed by Just Logistic–1. Therefore, the finding rendered by the Tribunal in this regard also stands affirmed.
Violation of Regulation 10(n) of the CBLR 2018 - The Tribunal examined this aspect of the matter and has found that all those documents are not in dispute and have been issued by various Government agencies and entities, which would go to substantiate the existence of the exporter at the relevant time when these documents were issued. The Tribunal has also taken note of the other facts and also examined as to in what manner the Customs broker can proceed to verify the authenticity and the reliability of the documents pertaining to his clients.
In conclusion, the High Court affirmed the Tribunal's decision, dismissing the appeal and upholding the relief granted to the respondent. The substantial questions of law were answered against the appellant revenue, and the stay application was also dismissed.
Seeking to permit the export Of non basmati Indian White Rice with HS code 1006 30 90 - issuance of Notification No. 20/2023 - banning/ prohibiting export of Non-basmati white rice - contracts entered into prior to the date of the impugned notification - HELD THAT:- There is no dispute regarding existence of concluded contracts prior to issuance of the impugned notification. The impugned notification fetters the petitioner from discharging its obligations under concluded contracts. The interim direction granted by this Court only permits the petitioner to supply the rice that was stored in the warehouse before 20.07.2023. That would only facilitate the petitioner to discharge his obligations partially. It is fairly settled that notifications issued imposing restrictions shall not be permitted to operate retrospectively. No doubt the restrictions imposed in the notifications operate retrospectively and impede the traders from honouring their obligations. Such impediment is impermissible being in violation of the doctrine legitimate expectation.
Thus, without expressing any opinion on the constitutional validity of the impugned notification, the interim orders dated 19.10.2023 passed in I.A. No. 1 of 2023 is modified and the petitioner is permitted to export 18,900 Mts. of non-basmati Indian White Rice with HS Code 1006 30 80 in discharge of the contractual obligation under concluded contracts. Accordingly, I.A. No. 2 of 2023 is allowed.
Therefore, in view of the modification done to the interim relief granted vide orders dated 19.10.2023 passed in I.A. No. 1 of 2023 and since the petitioner has not pressed part of the relief sought in the writ petition, the writ petition is closed.
Challenge the issuance of Notification No. 20/2023 - exporters precluded from exporting Non-Basmati White Rice - entered into contracts with foreign entities prior to issuance of the notification - HELD THAT:- The contracts entered into by the petitioners prior to 20.07.2023 are on the premise that the export of Non-Basmati White Rice was permitted. Prima-facie, since the petitioners had entered into the contracts prior to 20.07.2023 when the export of Non-Basmati White Rice was permissible and as we find that the exemptions granted exclude the petitioners who had acted on the basis of the existing policy, following the interim order passed by the Andhra Pradesh High Court in the case of Shri Chitra Agri Exports & Others Versus Union of India & Others[2022 (10) TMI 1221 - ANDHRA PRADESH HIGH COURT], we are inclined to issue a similar direction.
Accordingly, it is directed that the respondents shall permit the petitioners to export Non-Basmati White Rice that was stored by the petitioners at the concerned warehouses prior to 20.07.2023. This arrangement would be subject to outcome of the writ petition. The petitioners shall not claim any equity in this regard. It is made clear that in case the petitioners fail in the writ petition, the respondents would be free to take recourse to the provisions of the Customs Act, 1962 and especially Sections 113(D) and 114 thereof.
Classification of imported goods - import of furnace oil from UAE - to be classified under CTH 27101950 (furnace oil) as declared by the appellant or under CTH 27109900 (waste oil) as alleged by the revenue? - entire case of classification of the goods imported by the appellant was decided on the basis of test report of CRCL- Vadodara -Confiscation - redemption fine - penalty under Section 112(a) of Customs Act, 1962.
HELD THAT:- From the perusal of all the Circulars, it is found that the facility to test waste oil or furnace oil was made available only as per the circular dated 07.06.2009 prior to that the CRCL Vadodara or as the case may be CRCL Delhi, did not have the facility to test the waste oil/furnace oil. Admittedly in the present case, the tests of goods in question were done prior to the issue of Circular No. 15/2009-Cus. Accordingly, the testing done by CRCL Vadodara/Delhi cannot be said to be the correct test as these Laboratories did not have the facilities for testing waste oil/furnace oil. It is a settled law that the Board Circulars are binding on the departmental officer as held by the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS M/S RATAN MELTING & WIRE INDUSTRIES [2008 (10) TMI 5 - SUPREME COURT].
In view of above undisputed fact that during the relevant time as per Board Circular the CRCL Vadodara or as the case may be CRCL Delhi being not equipped with the facility to test waste oil/furnace oil the test report of the said laboratories cannot be accepted.
Since the goods were supposed to be released as per the High Court order, the act of department is clearly the non-compliance with the High Court order for which if any action to be taken it is by the High Court. Therefore, even after prima facie finding that the goods were supposed to be released this Tribunal can not give any direction in this regard with reference to the Hon’ble High Court in GAURAV LUBRICANTS INDUSTRIES PRIVATE LIMITED VERSUS UNION OF INDIA [2018 (10) TMI 2016 - GUJARAT HIGH COURT]. However, since in the present case the matter decided on merit, the appellant is otherwise entitled for release of the goods.
Since the test report of CRCL Vadodara/Delhi cannot be accepted the declaration made by the appellant in respect of nature of goods, classification and also valuation are found to be absolutely correct.
The impugned orders are set aside - Appeals are allowed.
Levy of Terminal Excise Duty in terms of the Foreign Trade Policy, 2009-14 - HELD THAT:- Referring the judgment of a Division Bench of this Court in Union of India v Aurobindo Pharma Ltd. [2023 (5) TMI 677 - DELHI HIGH COURT], which relies on a judgment passed by the Supreme Court in Sandoz Private Limited v. Union of India & Others, [2022 (1) TMI 225 - SUPREME COURT] it is submitted that, the provisions in relation to Terminal Excise Duty have now been struck down.
Thus, the prayers of the Petitioner can be granted by Respondent No.3 - In the interest of justice, list the matter for directions on 22.11.2023.
The Supreme Court dismissed the appeal due to low tax effect following a recent notification on monetary threshold for filing cases. Pending applications were disposed of accordingly.
Maintainability of SLP - delay of 308 days in filing SLP - no proper explanation - HELD THAT:- There is a delay of 308 days in filing the Special Leave Petitions which has not been explained satisfactorily. The Special Leave Petitions are dismissed on the ground of delay.
Maintainability of appeal - monetary limit involved in the appeal - HELD THAT:- In view of the low tax effect, the civil appeals are dismissed. However, the question of law, if any, which arises in these appeals, is kept open to be agitated vis-a-vis the respondent assessee in respect of any subsequent assessment year.
Seeking grant of Regular Bail - Smuggling - contraband gold in compound form - alleged involvement of the petitioner or not - HELD THAT:- Though the allegations against the petitioner are serious, considering the fact that the petitioner has been detained since 5.10.2023 and the investigation has progressed, it is held that bail can be granted to the petitioner.
Accordingly, this application is allowed, and the petitioner is granted bail subject to the conditions imposed.
Exemption from Levy of Customs Duty - goods removed from SEZ to DTA (initially procured from DTA) are chargeable to customs duties in terms of section 30 of SEZ Act, 2005 read with rule 47 of SEZ Rules, 2006 or not - re-import of goods - DTA unit has already claimed export benefits - HELD THAT:- The provisions of section 30 of the SEZ Act permits DTA clearances by a SEZ unit on certain conditions and that is goods to be removed from SEZ to DTA would be chargeable to duties of customs etc. It is a settled principle of law that once the provisions of an enactment are simple and there is no ambiguity there is no scope for interpretation. A three Judge Bench of the Apex Court in KALYAN ROLLER FLOUR MILLS (P) LTD. VERSUS COMMISSIONER OF COMMERCIAL TAXES, ANDHRA PRADESH [2014 (1) TMI 1802 - SUPREME COURT], observed that when the language is clear and plain, the courts cannot enlarge the scope by interpretative purposes.
The appellant has raised the contention that he has been wrongly denied the benefit of the exemption Notification No. 45/2017-Cus., which provides different levels / measures of exemption benefits to the re-imported goods depending upon which export benefits, like duty drawback, rebate etc., were availed and subject to several conditions - the Commissioner has noted, that the appellant has submitted few sample invoices and on perusal of one tax invoice issued by the DTA, namely M/s Lupin Limited, Palghar to the appellant bearing Invoice No. 0000002152 dated 08.03.2017, it is observed that it has been dispatched on payment of Central Excise duty and drawback too have been claimed, however, the appellate authority has failed to examine the issue of exemption benefit under the said notification in detail, giving specific reasons.
The matter needs to be remanded on the applicability of the exemption notification and whether the appellant is entitle to any benefit in terms thereof - Appeal partly dismissed and part matter on remand.
Confiscation of imported goods - redemption fine - levy of penalties - Maxx Air Pedestal Fan with essential spares - evasion of Customs Duty - MRP of the goods assumed to be mis-declared by the importer - HELD THAT:- There was differential duty worked out, which was accepted and also paid by the appellant-importer. From the documents placed on record, we do not find any mala fides on the part of the appellant-importer. A perusal of the e-mail exchanged between the appellant and their vendor clearly indicates the request insofar as the MRP is concerned, but however, it was perhaps the mistake of the vendor/supplier in not effecting the required RSP tag. No doubt, the original price as per the purchase order, which is placed at page number 53 of the appeal memorandum (dated 27.05.2013) was INR 2400 per piece - The requirement of Section 4A(1) ibid. is the declaration on the package the retail sale price (RSP) of the goods and sub-section (2) thereof states that such declared value shall be deemed to be the retail sale price (RSP) declared on such goods less such amount of abatement, if any. The price tag admittedly on the package was the maximum retail price (MRP) displayed, which cannot be the RSP, since RSP may not always be the MRP and MRP also may not always be the RSP.
The case of the appellant comes out of the mischief of Section 112(a) since the alleged mis-declaration would not per se justify confiscation of the goods in question under Section 111. This is because the appellant perhaps chose to go by the new MRP list (placed at page 57 of the appeal memorandum) whereas the vendor, for the best reasons known, affixed MRP of INR 2100/- and hence, no mala fides could be attached on the part of the appellant.
Facts of the case on hand are very peculiar inasmuch as, clearly there was an understanding as regards the value is concerned, in support of which documents in the form of e-mails have been placed on record, which are not disputed by the Revenue. The value affixed on the label did not clearly show the price agreed upon in the purchase order dated 27.05.2013. Further, the said price tag was sought to be revised for the reason of fluctuation in the value of the Indian Rupee as against the U.S. Dollar, which fact was also not disputed, but however, the same apparently was not implemented by the foreign vendor / supplier.
Thus, the bona fides of the appellant cannot be suspected just because the vendor / supplier chose to affix a different price tag and therefore, there is no case for the Revenue to order confiscation of the goods in question - there is no question of redemption fine under Section 125 ibid - appeal allowed.
Failure to implement the order of the tribunal - Re-export of goods - Application filed under Rule 41 of the CESTAT (Procedure) Rules, 1982 for implementing the Final order of the tribunal - direction to permit the applicant/ appellant to re-export the gold jewelleries within a period of two months.
HELD THAT:- From the facts as narrated, it is quite evident that concerned officers are acting in defiance of the orders of this tribunal, by violating the principles of judicial discipline. Sufficient time and opportunity has been given to the concerned authorities to act as per the law, and follow the rule of law as has been provided by the Constitution of India. However the arrogance of these officers by not implementing the orders of this tribunal is self evident even when by the order dated 21.06.2021, the tribunal by asking the applicant to file a bank guarantee and keep it alive till the disposal of the Appeal Filed by the revenue before Hon’ble Allahabad High Court has protected the interests of revenue.
As the Respondent Commissioner and Commissioner of Customs (Exports) New Delhi has not implemented the order of the Tribunal even after being directed under Rule 41 of CESTAT Procedure Rules, 1982 and having been allowed sufficient time and opportunity, this is a fit case for imposition of cost on the Commissioner to ensure that he understands the meaning of the phrase “Judicial discipline’ - As the Commissioner has acted in flagrant falling the authority of this Tribunal the matter needs to be referred to the Hon’ble jurisdictional High Court for initiation of contempt proceedings against the concerned Commissioner.
It is directed that the concerned Commissioner should implement the order dated 12.09.2019 within fortnight of the receipt of this order - List this matter for reporting compliance with this order on 11.12.2023.
Conversion of Free Shipping Bills to Drawback Shipping Bills - Period of limitation - Monetary limit involved in the appeal - HELD THAT:- The Review Committee has put forward grounds challenging the Final order passed by the Tribunal dt. 30.09.2021 directing the adjudicating authority to verify and allow the conversion of shipping bills. When the order passed by the department denying the request for conversion has been set aside by the final order dt. 30.09.2021 passed by Tribunal, the only remedy available for the department is to file an appeal against such order before the Higher Forum. The Tribunal while passing the Final order has already taken into consideration the Board’s circular as well as the decisions passed on the very same issue. The Commissioner has correctly followed the direction of the Tribunal and passed the impugned order - there are no grounds to interfere with the impugned order. Same is sustained.
Monetary limit involved in the appeal - HELD THAT:- On perusal of records, it is seen that the matter does not involve any duty, penalty or fine, or confiscation of goods and it falls below Rs.50 lakhs and therefore falls under the new Litigation Policy with regard to Customs cases to be filed before the Tribunal. The appeal falls within the monetary limits of litigation policy.
Exemption from Customs Duty - import of Boron Ore - applicability of Sr.No. 130 of customs notification No. 15/2017-CUS dated 30.06.2017 - period from 26.12,2017 to 11.05.2020 - HELD THAT:- It is found that the eligibility of the exemption on import of ‘Boron Ore’ was in dispute in many cases and a bunch of appeals have been disposed of by this Tribunal in the case of PRADIPKUMAR P PATEL VERSUS C.C., AHMEDABAD [2023 (1) TMI 1318 - CESTAT AHMEDABAD], wherein the Tribunal has remanded the matter to the Adjudicating Authority.
Since, in the above decision of this Tribunal identical issue that of in the present appeal is involved, it is in the interest of justice that the present matter may also be remanded and to be decided by passing a de-novo order by the Adjudicating Authority considering the observation made in the above decision.
Appeals are allowed by way of remand to the Adjudicating Authority.
Levy of anti-dumping duty on the imports of MEG from Kuwait, Saudi Arabia and United States of America (subject countries) - Validity of Notification dated 27.10.2022 - domestic industry suffered material injury in terms of the provisions contained in the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 or not - HELD THAT:- It can be seen that there has been a significant increase in imports from the subject country in the period of investigation, in excess of the demand supply gap. Further, since financial year 2019-20, the imports have started coming at dumped prices and the landed value of such imports has been even below the raw material prices. Thus, evidently there has been a significant increase in dumped imports from financial year 2019-20 onwards. It needs to be noted that though in the period of investigation there was a slight decline in subject imports as compared to financial year 2019-20, such decline was on account of Covid-19 pandemic and, therefore, cannot undo the previous increase - it can be concluded that there has been an increase in ‘dumped imports’ in the period of investigation as compared to 2017-18 and 2018-19.
The accepted position on record is that even in the absence of volume injury to the domestic industry during the period of investigation, the price effect of dumped imports by itself would be a sufficient factor for examining whether the dumped imports are causing material injury to the domestic industry.
It is seen that with respect to the factors relevant for assessing the price injury of the domestic industry, the designated authority has relied only on the increase in profit and return on investment in the period of investigation as compared to 2019-20, and has ignored the fact that the profit and return on investment has remained significantly below 2017-18 and 2018-19 level.
The designated authority, in the present case, has exclusively relied upon the marginal improvement in the period of investigation as compared to 2019-20 and has ignored the trends over the years before that. Such selective examination, particularly in the present facts where the domestic industry itself has claimed injury since 2019-20, may defeat the entire purpose of injury assessment.
The inevitable conclusion, therefore, is that the designated authority would have to re-examine the matter in the light of the observations made above. For this purpose, the designated authority shall give an opportunity to both the appellant and the respondents for submitting their written submissions and after examination of the submissions and after considering the observations made, give its final findings.
The final findings of the designated authority contained in the Notification dated 27.10.2022 are, accordingly, set aside and the matter is remitted to the designated authority to give final findings - Appeal allowed.
Refund of the value of the goods that were seized and confiscated - Auction of goods by the Customs Department - the order of seizure were set aside - petitioner claims for a refund of the complete value of the goods and not the value as per the auction - HELD THAT:- No material is placed by the petitioner before the Court to arrive at any conclusion that the estimated value stated in the order of seizure is also a determined value of the goods at the time of its seizure. As it is the petitioner who had procured the goods which were seized and confiscated and later on put up on auction, he would be the best person to have the knowledge about the actual value of the goods as it may have been. The same would also be in conformity with provision of Section 106 of the Indian Evidence Act, 1872. But as a dispute has been raised by the petitioner that he is entitled to the value of the goods as it stood on the date of seizure, the basic material to adjudicate the said issue would be what would be the value as may be determined as on the date when the goods were seized.
In the absence of such material being available, it would be futile to decide the issue as to whether in a circumstance where the goods were sold by public auction, the petitioner would be entitled to a refund of the value of the goods as it stood on the day it was seized.
In the meantime, liberty is granted to the petitioner to assail the auction of the goods that may have been done by the respondents in the Customs Department as regards the valuation of the goods and we are clarifying that the liberty to challenge the auction would be confined to a challenge to the value of the goods as determined in the auction - Petition disposed off.
Validity of provisional assessment order - direction to execute bond and furnish bank guarantee for release of the goods imported by the petitioner - Violation of Customs Act or not - HELD THAT:- The order impugned cannot be said to be without jurisdiction even if the order can be said to be against some provisions of the law. When there is provision of appeal, this Court would not assume the jurisdiction of the Appellate Authority on the ground that the order passed by the Assessing Authority is against the law. If the order impugned is not without jurisdiction or it is not in violation of the principles of natural justice, this Court would not entertain the writ petition merely on the ground that in the opinion of the petitioner, the order runs contrary to some provision of the Customs Act, 1962.
The petitioner is permitted to file appeal against the impugned order within a period of fifteen days from today and the appellate authority should consider the same expeditiously in accordance with the law - petition dismissed.
Seeking grant of anticipatory bail - bar of Section 82 Cr.P.C. - proclamation issued under Section 82 Cr.P.C. to be published in the manner prescribed under sub Section (2) of Section 82 Cr.P.C. - smuggling of contraband goods of foreign origin like gold - non-cognizable and bailable offence - HELD THAT:- There is nothing on record to indicate that the steps mentioned in sub section (2) and (3) of Section 82 Cr.P.C. have been taken in the present case. Therefore, the proclamation issued under Section 82 (1) Cr.P.C. had not been published in the manner provided under sub Section (3) of Section 82 Cr.P.C. No further statement was signed by the Court as provided in sub Section (3) of Section 82 Cr.P.C. There is no bar against the application for anticipatory bail being considered by this Court on its merits, hence, the merits of the present case is examined.
Keeping in view the fact that the alleged recovery was made on 19.12.2019 but the F.I.R has been lodged on 10.08.2022 and there is no explanation for the delay in lodging the F.I.R.; that the substantive offence allegedly committed by the applicant is non-cognizable, bailable and carries a maximum punishment of imprisonment up to 3 years; that although the C.B.I. has alleged commission of offences under the Prevention of Corruption Act, 1988, the applicant is not a public servant; that the applicant has no other criminal history and that a co-accused person Ajeet Kumar and Khalid Anwar have already been granted bail and without making any observations which may affect the outcome of the case, the aforesaid facts are sufficient for making out a case for granting anticipatory bail to the applicant.
The anticipatory bail application of the applicant is allowed subject to conditions imposed.
Redemption for the purpose of Re-export - Absolute Confiscation - Gold bars - goods are not available for redemption and re-export as the Customs Authority already disposed off the gold bars - HELD THAT:- It is admitted that before this order came to be passed on 30.11.2018 in Ext.P10, the Customs has already disposed of seized two gold bars of the petitioner. Therefore, the direction issued by the Principal Commissioner in Ext.P10 order for redemption for the purpose of re-export the gold on payment of redemption fine of Rs.25,00,000/- and reduced penalty of Rs.8,00,000/- are impossible to comply with inasmuch as the goods are not available for redemption and re-export. This fact of disposal of the two gold bars by the Customs Authority was not before the Principal Commissioner & Ex-Officio, Additional Secretary to Government of India, the Revisional Authority and therefore, the order impugned came to be passed.
This is an important fact which must be brought to the notice of the Revisional Authority for passing a fresh order in accordance with law. Therefore, the present writ petition is allowed, impugned order is set aside and the matter is remitted back to the file of the Revisional Authority/ 1st respondent to pass a fresh order after taking note of the fact that the two gold bars of two kilograms(one kilogram each) which were seized from the possession of the petitioner had already been disposed of before Ext.P10 order came to be passed.
Validity of a Seizure Memo and SCN - respondents have called upon the petitioner to show cause why the gold jewellery and ornaments weighing approximately 20,756 grams should not be confiscated - HELD THAT:- On a holistic consideration of the SCN, the contention cannot be accepted that the same is a manifestation of a predisposed state of mind of the respondents - also it is a well settled principle that courts should desist from entertaining challenges to SCNs’ and interference being warranted only in exceptional circumstances and where it be found that the same is questioned on jurisdictional grounds. The challenge as mounted in terms of the instant writ petition clearly fails to meet the aforesaid tests as formulated.
The challenge laid to the impugned SCN is negativated - the writ petition is disposed off by observing that the competent authority shall endeavour to dispose of and conclude the SCN proceedings within a period of two months from today.
9911796707
