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2023 (12) TMI 1114
Depriving duty credit under RoDTEP on exports - exports fall under the restricted category or not - prior period i.e. 01.01.2021 to 31.05.2022 - subsequent period i.e. 01.06.2022 to 13.12.2022 - HELD THAT:- Having considered the facts of the case which are identical to the case of M/s. Shree Renuka Sugars Ltd. [2023 (4) TMI 789 - GUJARAT HIGH COURT], it is opined that the respondents could not have denied the benefit of rebate under the RoDTEP scheme to the petitioners, more particularly, when the petitioners have exported product after fulfilling the conditions as prescribed by the Directorate of Sugar as well as the Notifications issued by the Central Government from time to time. The Coordinate Bench of this Court has also passed the order permitting rebate to the petitioner of the said case.
As per the Government circular dated 5th November 2022, the schedule quantity of sugar for export in Sugar Season for 2022-23 was also issued with various conditions, whereby the quantity for export of sugar to various mills was also quantified - By Notification dated 21st October 2022, the Government has also issued export release order for sugar from Somalia.
In view of the Notifications issued by the Government from time to time permitting export of sugar, the basic objective of the RoDTEP scheme is to grant benefit of rebate to the exporter as an incentive or exporting product.
The respondents are directed to grant benefit of rebate under the RoDTEP scheme to the petitioners who have exported sugar with specific permission under the specific condition prescribed by the Directorate of Sugar as per Notification No. 19/2015-20 dated 17th August 2021 and Clause 3 of paragraph 2 of the Notification No. 76/2021-Customs (N.T.) dated 23rd September 2021 - petition allowed.
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2023 (12) TMI 1113
Clearance of warehoused Goods - Seeking clearance to export the consignment of Crude Palmolein imported by the petitioner and warehoused for its own consumption - HELD THAT:- The question for consideration would be whether an importer of a warehoused consignment could, pending investigation as regards the previous imports and when the clearance is not issued under Section 68 of the Customs Act, have recourse to the right to export as contemplated under Section 69 of the Customs Act without paying import duty, and the concerned must examine this question simultaneously with the question whether the petitioner, even if it does not derive any profit from export of the warehoused consignment, would be liable to pay import duty, and conversely, whether the Revenue would be entitled to recover import duty. These aspects will have to be considered recording reasons for the conclusion to enable complete adjudication.
In view of the exigent circumstance viz. that the consignment is a perishable commodity with a shelf life which expires on 21.12.2023 and the petitioner proposes to export the consignment within this time filing shipping bills and other documents to demonstrate that it cannot receive a price which is more than the price at which the consignment is imported, the proper officer must consider these questions and take a decision within a reasonable time, and this Court must observe that if the petitioner is permitted to export upon furnishing a Bank Guarantee, and the Bank Guarantee is so furnished, the same will be subject to the final decision on the questions as aforesaid.
The petition is disposed of with liberty to the petitioner to file a request to export the warehoused consignment of Crude Palmolein imported and warehoused under Section 69 of the Customs Act with the shipping bills and such other documents to demonstrate the price that it will receive on export of crude Palmolein.
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2023 (12) TMI 1112
Classification of imported goods - T4 Fingerprint Time & Attendance System and K200 Proximity Time & Attendance System - to be classified under Customs Tariff Heading 8471 4190 or under 8543 7099? - crossing over the remand directions or not - HELD THAT:- The claim of the appellant that the authorities have gone beyond the remand directions is baseless in as much as from the orders it is seen that the authorities have limited themselves to the directions in deciding the classification. The Tribunal while remanding the case also observed that “He will not be hindered in the exercise by our views on the issue appearing in the order”. Therefore the authorities have only restricted themselves in analysing the impugned item as per its features to arrive at the correct classification.
As noted by the Original Authority, the device captures the data from the employee’s card or the data of the particular employee who key in the PIN into the device. The device does not do anything except for collecting the data at the time of entry or exit and this data is transmitted to a central server for further processing like marking the attendance, preparation of payroll or for other purposes. These facts are not in dispute. Based on the General Rules of Interpretation and the Chapter Notes, the item needs to be classified in the heading akin to it or where the specific description is provided. In this case, the data collection device imported by the appellant is nothing but a card reader working in conjunction with the server. Thus, this device functions as proximity readers/badge readers, which are specifically classified under Chapter Heading No.8543.
Since the specific function of the imported item is to mark attendance or to take note of the persons of the employees for the purpose of attendance or payroll or leave, they cannot be classified under Chapter 84 as it excludes from this Chapter as per the Chapter Note 5(E).
This Tribunal, recently, in the case of COMMISSIONER OF CUSTOMS, BANGALORE VERSUS M/S. KRONOS SYSTEMS INDIA PVT. LTD. [2023 (10) TMI 1006 - CESTAT BANGLORE], in an identical issue held the product to be rightly classifiable under Chapter 8543.
Thus, by following the decisions of this Bench, it is found that the product is rightly classifiable under Chapter 8543 - the impugned order is upheld and the appeal is dismissed.
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2023 (12) TMI 1083
Detention of goods - consignment of apples - prohibited goods or not - hit by the N/N. 5/2023 - HELD THAT:- In the present case, the Bill of Entry seeks to clear the imports of apples which are imported by the petitioner at a price which is at Rs. 50/- per kg. Thus clearly the price per kilogram being Rs. 50/- per kg. which is not below the price fixed by Notification No. 5 of 2023, it would be correct for the petitioner to contend that the respondents cannot detained the petitioner’s consignment on the basis of the minimum price as fixed by the said notification.
It is opined that there is no reason as to why the petitioner ought not to be permitted to clear the goods - it is directed that the imports of the petitioner be not detained on the ground that this goods are prohibited goods under NN. 5/2023 and on such count be released on the petitioner furnishing a bond - An appropriate assessment of the bill of entry be accordingly undertaken in accordance with law within a period of 3 days from today - Petition disposed off.
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2023 (12) TMI 1082
Seeking provisional release of the consignment of apples imported by the petitioner - Detention on the ground that N/N. 5/2023 has been issued, which caps the minimum price of apples for import at Rs.50/- per kg - HELD THAT:- It is seen from the documents as annexed in the petition, which are Bill of Entry and Invoices, that the price at which the petitioner has imported the apples in question is at Rs. 50/- and the embargo to any clearance of such import under Notification No. 5/2023, which would operate if the value is below Rs. 50/- per kg. Thus, it would not be correct on the part of the revenue only on the ground of the notification in regard to fixing of the import price, the present consignment of the apples, as imported by the petitioner should be labelled as prohibited goods.
It is also observed that not only this Court in the case of M/S. INDUSINA EXIM L.L.P. VERSUS THE COMMISSIONER OF CUSTOMS (IMPORT) & ORS. [2023 (12) TMI 918 - BOMBAY HIGH COURT] but also the Kerala High Court as well as the Madras High Court have taken a consistent view in regard to permitting clearance of the apples on the ground that Notification No. 5/2023 has been stayed - there are no contrary judgment which takes a contrary view in regard to the notification in question.
It is directed that the imports of the petitioner subject matter of Bill of Entry No. 8854586 dated 20 November, 2023, be released on the petitioner furnishing a bond - An appropriate assessment of the bill of entry be accordingly undertaken in accordance with law within a period of three days from today - petition disposed off.
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2023 (12) TMI 1081
Seeking permission to complete the obligation of manufacturing and exporting copper wire by purchasing additional copper of the same grade from the open market and also seeking advance authorization license - HELD THAT:- The request of the Petitioner is to fill up the shortage of raw material by purchasing the same from the domestic market, the same has been rejected by the Department placing reliance on Para 4.03 of the Foreign Trade Policy 2015-20. Since the Foreign Trade Policy specifically insists that in case advance authorization is issued to allow duty free import which is physically incorporated in the export product, the request to allow the Petitioner to purchase the raw material from open market for these exports could not be permitted.
The Court while adjudicating administrative orders exercising its jurisdiction under Article 226 of the Constitution of India only looks into the decision making process and also the fact that whether the order is violative of any law. The reasons given in the order passed by the Respondent does not require any interference under Article 226 of the Constitution of India.
A perusal of the Order challenged in the present Writ Petition indicates that the DGFT has given a proper opportunity of hearing to the other sides and, therefore, this Court is of the opinion that the decision-making process is fair. Further, even on merits, the learned Counsel for the Petitioner has not been able to establish as to why the Order is contrary to the law or that any provisions of the Foreign Trade Policy or the handbook of procedures has been violated. Resultantly, this Court finds no reason to interfere with the present Writ Petition.
The writ petition is rejected.
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2023 (12) TMI 1080
Classification of goods - Bulk Reishi Gano Powder 100% Ganoderma - Bulk Ganocelium Powder 100% Gano Mycelium - whether the products are classifiable as Ayurvedic medicaments under chapter 3003.9011 of the First Schedule to the Central Excise Tariff Act, 1985 (CETA) as contended by the appellant or as food supplements under CTH 2106999 of CETA? - Invocation of the extended period of limitation under section 28(4) of the Act - Confiscation of goods under section 111 (m) and (o).
Classification - HELD THAT:- The said issue is no longer rest-integra and has been decided by the Chennai Bench in DXN Manufacturing India Private Ltd. vs. Commissioner of Central Excise and Service Tax, Pondicherry [2017 (11) TMI 608 - CESTAT CHENNAI], where the Tribunal reconsidered the matter at length on being remanded by the Supreme Court [2015 (8) TMI 1418 - SUPREME COURT] and concluded that both the impugned goods fail both the twin test for being considered as Ayurvedic medicament and therefore the products in question are nothing but food supplements promoted mainly for general health or well-being and therefore merit classification under 2108 of the CETA and more specifically under 2108.99, as it stood at the relevant time and assessed accordingly under section 4A of the Act for discharge of duty liability. The issue of classification was thus decided in favour of the revenue and against the assessee.
There are thus no hesitation in concluding the issue of classification of the products in question under CTH 21069099 as food preparation - the issue of classification on merits stands affirmed in favour of the revenue and against the appellant.
Invocation of the extended period of limitation under section 28(4) of the Act - HELD THAT:- In view of the proceedings which was pending since 2012 and the department itself had preferred an appeal, it cannot be said that the department was not aware of the classification of the products as declared in the instant bills of entry by the appellant and therefore no fault can be found on the part of the appellant as 9 out of the 10 bills of entries were filed before the final order was passed by the Tribunal on 10.01.2018 and the Order-in-Appeal by the Commissioner (Appeals) was holding the field.
The law on invocation of extended period of limitation is well settled. Mere omission or merely classifying the goods/services under incorrect head does not amount to fraud or collusion or wilful statement or suppression of facts and therefore the extended period of limitation is not invocable.
The Supreme Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT] has categorically laid down that where facts are known to both the parties, the omission by one to do what he might have done, and not that he must have done, does not render it suppression. Thus when all the facts are before the department as in the present case then there would be no wilful mis-declaration or wilful suppression of facts with a view to evade payment of duty - the revenue cannot invoke the extended period of limitation under section 28(4) of the Act, hence the show cause notice dated 2.07.2018 is barred by limitation for the period beyond the normal period.
Imposing penalty under section 114A of the Customs Act - HELD THAT:- As it is held that it is not a case of willful suppression, mis-statement or misdeclaration by the appellant, the ingredients required for invoking the penalty being the same, the penal action under the provisions of section 114A as imposed by the impugned order is not justifiable and is hereby set aside - the appellant cannot be held liable for penalty under section 114 AA of the Customs Act and the reasoning given by the Principal Commissioner that at the time of presenting the bill of entry, the importer made and subscribed to false declaration against the contents of bills of entry, in contravention to section 46(4) of the Act is unsustainable
Confiscation of goods under section 111 (m) and (o) - HELD THAT:- The findings in the impugned order that section 111(m) can be invoked for misdeclaration of any material particular, in respect of the goods and not necessarily only the value of the goods stands quashed and the issue stands decided in favour of the appellant that there cannot be any confiscation of goods under section 111(m) in the case of wrong classification - it is a simple case of mis-classification/incorrect classification and not mis-declaration of goods on the part of the appellant, the logical inference would be that the appellant has not wrongly claimed the exemption benefit and therefore there can be no confiscation under Section 111(o) of the Act.
The appeal is remanded to the Adjudicating Authority for the limited purpose of computing the differential duty to be demanded in respect of normal period only - the appeal is partly allowed by way of remand.
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2023 (12) TMI 1079
Levy of Anti-Dumping Duty - clearance of tyre making machines (old and used) including used Chinese origin tyre curing presses under EPCG scheme - applicability of N/N. 01/2010 dated 08.01.2010 - HELD THAT:- At the outset it has to be stated that the respondent-company has gone into liquidation as per the order of the NCLT, Bangalore Bench dated 30.12.2019. Further, in the present case, the goods imported are “used and second-hand machines”. The Chartered Engineer has reported that the goods are used and second-hand. There is no dispute on the fact that the goods are used and second-hand machines.
The Tribunal in the case of Trinity Exporters [2019 (2) TMI 1370 - CESTAT CHENNAI] had an occasion to analyse the issue as to whether ADD is leviable on import of used and second-hand machines. The issue was answered in favour of the importer and against the Department.
Taking note of the fact that the respondent-company has gone into liquidation and also following the decision in the case of Trinity Exporters, there are no merit in the appeal filed by the Department - the appeal filed by the Department is dismissed.
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2023 (12) TMI 1078
Classification of the imported goods - Frequency Converter (variable speed drive) and its parts - to be classified under Chapter Heading 9032 89 90 or under Chapter Heading 8504 4010? - HELD THAT:- The classification of the said goods has already been decided by this Tribunal’s order in M/S. ABB LIMITED VERSUS THE COMMISSIONER OF CUSTOMS (APPEALS) , BANGALORE [2023 (11) TMI 20 - CESTAT BANGALORE] which has fairly been admitted by both sides. Accordingly, following the above decision for the earlier appeals, it is held that the goods are rightly classifiable under Chapter Heading 8504 as against the classification under Chapter Heading 9032 claimed by the appellant.
The Authorized Representative on behalf of the Revenue referring to the impugned order submits that the goods are presented in the form of plugs and sockets which are rightly classifiable under 8536 in terms of Note 2(a) of Section XVI of the Customs Tariff Act, 1985. As seen above at para 4, this Tribunal has classified the frequency converter under Chapter Heading 8504 as against 9032 as claimed by the appellant. Therefore, the question of classifying the plugs and sockets as parts of frequency converter under chapter heading 9032 does not arise. Since the fact that plugs and sockets are general in nature and having cleared them for retail sale and having not being produced any evidence to prove that these items can only be used in frequency converter, the classification by the Commissioner (Appeals) under Chapter Heading 8536 69 10/90 is to be upheld. Moreover, Chapter 8536 includes lamp holders, plugs and sockets and therefore, as per the Interpretative Rules when there is a specific description, the item has to be classified accordingly.
The only contention of the appellant is that the item to be classified under Chapter Heading 9032 as parts of frequency converter, since 9032 is ruled-out, the classification under 8536 as per Rule 3(a) of the General Interpretative Rules is upheld. As per Note 2(a), parts which are included in any of the Headings of Chapter 84 or 85 or in all cases are to be classified in their respective headings. Since, frequency converter is already classified under Chapter 8504, based on Section 2(a) of Section XVI the goods are rightly classifiable under Chapter Heading 8536 69 10/90.
Appeal dismissed.
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2023 (12) TMI 1077
Confiscation of imported goods - import of aircrafts/helicopters - whether non-scheduled (passenger) services permit would qualify as non charter services permit also? - whether the appellant would qualify for providing charter service? - HELD THAT:- These issues were decided by the Larger Bench of the Tribunal in M/S VRL LOGISTICS LTD VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [2022 (8) TMI 720 - CESTAT AHMEDABAD (LB)] where it was held that It is, therefore, clear that an operator providing non-scheduled (passenger) services can always provide such services either on individual seat basis or by chartering the entire aircraft and such a restriction is not contained either in Condition No. 104 or Aircraft Rules or the Civil Aviation Requirements - The Larger Bench also held that remunerative flights qualify as a air transport services and would be covered under the exemption.
Whether the appellant had violated Condition No. 104 of the notification merely because on one occasion one aircraft had been used without remuneration? - HELD THAT:- In reply to the show cause notice the appellant had pointed out that in regard to the aircraft VT-RAN which was imported on 13.11.2007, the first flight was undertaken on 25.01.2008 and the second flight was undertaken on 27.01.2008. The second flight was for crew familiarization and it had two pilots and Mr. Sunil Godhwani and Mrs. Dhillon, who as prospective users were travelling on the flight only for experiencing the aircraft. The flight was also from Delhi-Raipur-Bagdogra-Delhi with no stoppage time at the airports. Thus, it cannot be urged by the department that Condition No. 104 of the notification had been violated merely because one particular flight was undertaken without any remuneration - the order dated 30.09.2010 passed by the Commissioner confiscating the imported aircrafts/helicopters with an option to the appellant to redeem the same after payment of redemption fine and also confirming the demand of customs duty with interest and penalty cannot be sustained. The appellant would, therefore, be entitled to refund of the redemption fine paid by the appellant in terms of the order passed by the Commissioner.
Whether the appellant would be entitled to interest on the redemption fine amount deposited by the appellant, which is now liable to be refunded? - HELD THAT:- The issue, therefore, stands settled against the appellant in the aforesaid decision of the Larger Bench of Tribunal in Advance Mechanical Works [2004 (12) TMI 107 - CESTAT, MUMBAI]. The Larger Bench of the Tribunal had placed reliance upon the decision of the Supreme Court in Union of India vs. Orient Enterprises [1998 (3) TMI 137 - SUPREME COURT] to hold that no interest would be payable on redemption fine, while refunding the same in pursuance of an order of a higher judicial forum - The appellant would, therefore, not be entitled to any interest on the refund of the redemption fine.
The bank guarantees, however, furnished by the appellant are liable to be discharged as the order passed by the Commissioner has to be set aside.
The order dated 30.09.2010 passed by the Commissioner is set aside with a direction to the department to refund the redemption fine deposited by the appellant within a period of two months from the date of service of a copy of this order - Appeal allowed.
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2023 (12) TMI 1022
Direction for issuance of a detention waiver certificate - It is submitted that the delay in releasing the goods is on account of detention of the goods by respondent Nos. 1 & 2 for the purpose of investigation which lasted for almost 2 months and, therefore, the delay in releasing the goods cannot be attributed to the petitioner - HELD THAT:- The procedure for issue of “Detention Certificate” is notified in Public Notice No. 111 of 1985 dated 29.07.1985 of the Bombay Custom House issued much prior to the Handling of Cargo in Customs Area Regulations, 2009. Paragraph 2 of the Public Notice No. 111 of 1985 sets out the circumstances under which a regular detention certificate could be issued by the Customs House for facilitating the importers to get remission of demurrage charges.
Section 46 (4A) provides that the importer shall ensure the accuracy and completeness of the information given therein and the authenticity and validity of any document supporting it and compliance with the restriction or prohibition, if any, relating to the goods. It appears that on account of price difference between the supplier invoice and manufacturer invoice, the respondents are contending that the petitioner has not ensured the accuracy and completeness of the information given therein - one cannot say that the petitioner has not given accurate and complete information with respect to the price difference. The petitioner has filed the documents in support of its explanation which has not been rebutted by the respondents, and therefore reliance placed by the respondent Nos. 1 & 2 on Section 46(4A) of the Customs Act is not appropriate to deny the issuance of detention waiver certificate.
In the instant case, the demurrage could have been avoided if after removing the goods for testing, same were directed to be shifted to warehouse under Section 49 of the Act. The petitioner on 13th January 2021 sought such permission and which was immediately granted but the same could have been done when the goods were detained for investigation. Therefore, respondent Nos. 1 & 2 were not justified in not responding to various letters of the petitioner seeking waiver certificate and now to justify the same in reply affidavit. In our view, the petitioner is therefore entitled to detention waiver certificate upto the period 13th January 2021.
The respondent no. 1 has relied upon the decision of the Supreme Court in case of JINDAL DRUGS LTD. & ANR. VERSUS THE UNION OF INDIA & ORS. [2018 (8) TMI 49 - SUPREME COURT]. The Supreme Court in this case held that the revenue cannot be made liable to pay demurrage charges unless the action of the detention is palpably wrong or wholly unacceptable.
Respondent Nos. 1 & 2 to issue detention waiver certificate within a period of four weeks from today - Petition disposed off.
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2023 (12) TMI 1021
Provisional release of perishable goods - apples - petitioner has submitted that N/N. 5/2023 was stayed by the Kerala High Court referring to some interim orders passed in other writ petitions, wherein although as fairly stated, the challenge in such petitions was not to the Notification No. 5/2023 concerning the import of apples, but to a notification on spices.
HELD THAT:- No case is made out by the review petitioner for this Court to exercise its review jurisdiction for more than one reason. The grounds as raised in the review petition, are quite alien to the orders passed by us on the proceedings of which a review is sought. Even otherwise such was not the case of the petitioner when we decided the writ petition. Further, the order passed by the Kerala High Court dated 11th July 2023 which is in the respondent’s (original petitioner’s) own case staying Notification No. 5/2023 continues to operate even today and the same has not been disputed by the review petitioner. The legal position as brought about by virtue of the stay to the notification is to the effect that the department can foist the said notification and refuse clearance of the goods (apples) by applying such notification.
Once the notification is stayed by the High Court, such order would be operational and binding on the department all over considering the well settled principles of law as laid down by the Supreme Court in KUSUM INGOTS & ALLOYS LTD. VERSUS UNION OF INDIA [2004 (4) TMI 342 - SUPREME COURT]. Thus the department could not be heard to say that the said order passed by the Kerala High Court is not binding on the department.
Perusal of order under review makes it clear that the department refused to clear the import of apples relying on the Notification No. 5/2023 which itself was stayed by the Kerala High Court in the petitioner’s own case. Once such position had continued to operate, the review petitioner cannot argue that such stay on the said notification ought to be considered to have been impliedly vacated in the Kerala High Court adjudicating on a similar notification in relation to spices. This would be a misconceived approach on the part of the Department.
There are no merit to review orders applying the well settled principles of law in the exercise of review jurisdiction under Order 47, Rule 1 of the Code of Civil Procedure, 1908 - The Review Petition is accordingly dismissed.
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2023 (12) TMI 1020
Non-imposition of penalty under section 114A of CA - not demanding interest from the respondent - HELD THAT:- The adjudicating authority has held that the goods are liable for confiscation and imposed redemption fine and penalty under section 112(a) of the Customs Act, 1962. Further, the adjudicating authority has relied on the judicial pronouncement of this Tribunal in the case of S.S.Impex where redemption fine was imposed @ 19.5% and penalty @ 7.8% on the value re-fixed.
There are no infirmity in the impugned order and the same is upheld - appeal dismissed.
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2023 (12) TMI 967
Seizure of petitioners’ gold jewellery and its disposal - Violation of Customs Act and the rights guaranteed to the petitioners under Article 300A read with Article 14 of the Constitution of India - legality of action of the respondents to sell / dispose of the gold jewellery of the ownership of the petitioners, as seized from them, without notice to the petitioners, and before an order of confiscation under Section 111 of the Customs Act, 1962 - HELD THAT:- It is not in dispute that on 14 January 2018 the petitioners arrived in India and were apprehended at the Mumbai Airport. The jewellery belonging to the petitioners which were gold bangles came to be seized by the Customs officials - The power of the Customs Authorities to seize the goods is conferred by Section 110 of the Customs Act and its application was subject matter of debate in the present proceedings - On a plain reading of Section 110 of the Customs Act, it is quite clear that it is a provision in relation to seizure of goods, documents and things. It provides that if the proper officer has a reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods.
What manner Section 110 of the Customs Act would be applicable to the seizure of the petitioners’ gold jewellery as seized on 14 January 2018? - HELD THAT:- There is something more fundamental in the present proceedings inasmuch as on 14 January, 2018 the gold jewellery in question was seized from the petitioners. Sub-section (2) of Section 110 provides that where any goods are seized under sub-section (1) and no notice in respect thereof is issued under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Thus, the seizure having taken place on 14 January, 2018, six months period was to end on 14 July, 2018, however, what is significant is that a show cause notice for confiscation of such gold came to be issued to the petitioners on 6 July, 2018, however, the same was never served on the petitioners in a manner known to law - On a plain reading of Section 124 what would be implicit is that an order confiscating any goods or imposing any penalty can be passed only after the owner of the goods is issued a notice in terms of the said provisions interalia informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty and an opportunity of making a representation in writing is given to him within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty and a reaonsable opportunity of being heard.
Sub-section (1A) of Section 110 cannot be read as absolute entitlement or authority with the proper officer to dispose of the items like gold in the absence of any cogent reasons, which would attract the ingredients of sub-section (1A) of Section 110. Such reasons as falling under sub-section (1A) are required to be intimated to the owner of the goods for the reason that ultimately the disposal of the goods would entail serious consequences of affecting the constitutional rights of the owner of the goods guaranteed under Article 300A of the Constitution, as the owner would be deprived of his property. This would be the basic requirement of law the proper officer dealing with any goods, which are merely seized and not confiscated would be required to be followed.
It is well settled that the provisions of Article 300A of the Constitution are available to any person including a juristic person and not confine to only citizen and that the illegal seizure would amount to the owner being deprived of his right of property as contained under Article 300A of the Constitution of India.
In the present case the gold jewellery belonging to the petitioners has been dealt, disposed of and sold in patent disregard to the basic principles of law as Articles 14 and 300A of the Constitution would ordain. This apart, even the provisions of the Customs Act stand violated not only in taking away the substantial statutory rights as the law would guarantee to the petitioners, on seizure of the petitioners gold jewellery but also in the manner in which the gold jewellery has been disposed of.
In the present case, it is difficult to imagine as to what could be the reason for the Customs Officers to dispose of the goods hurriedly and with such lightening speed and by throwing to the wind the norms of fairness and reasonableness. This is not acceptable even from the reading of the provisions of Section 110. Any reading of Section 110 otherwise than what has been discussed, would amount to foisting draconian, reckless and/or unfettered authority on the Customs Officers conferring a licence to commit illegality - such substantive provisions of the Customs Act cannot be rendered nugatory, by recognizing unguided and unfettered powers being conferred under Section 110 on the Customs Officers, to dispose of the seized property, till the orders of any confiscation attains finality, unless there are strong reasons which would justify any such action when tested on such constitutional and legal parameters, and that too on the satisfaction of the officers to be reached only after hearing the owner of the property.
There are no manner of doubt that the petition needs to succeed. The question, however, is as to what can be the relief which can be granted to the petitioners in these circumstances, when there is no iota of doubt, in regard to illegality which has been committed by the respondents in depriving the petitioners of their valuable rights to property - the principles of law which would be required to be applied, is that once the action of the respondents is held to be void, ab initio, illegal and unconstitutional, there can be no second opinion that the rights of the petitioners in regard to illegal seizure would be required to be restituted.
It is declared that the action on the part of the Assistant Commissioner of Customs in disposing of / selling the gold jewellery belonging to the petitioners subject matter of the present proceedings, is illegal and unconstitutional - The respondents are directed, to restore to the petitioners, equivalent amount of gold namely 1028 gms. and / or to compensate the petitioners by making payment of amounts equivalent to the market value of the said gold, as on date.
Petition disposed off.
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2023 (12) TMI 966
Contempt of court - Continuous, repeated, deliberate and wilful disobedience by the respondents (DRI officials) - violation of stay order granted by this Court against launching of any kind of civil as well criminal prosecution with respect to the subject matter - possession of unsold gold jewellery brought back from a Trade Exhibition in a foreign country weighing about 51172 grams - prohibited goods or not - HELD THAT:-The manner in which the proceedings after proceedings are being foisted upon the petitioner and others besides the company in question, leave a lasting impression that there is a repeated, deliberate and contumacious attempt by the respondents officers to corner them from all angles, evidently to harass and prosecute the petitioner by whatever means in terms of purported action by intentionally over-reaching the directions of this Court.
It goes without saying that the sanction accorded under Section 137 of the Act appears to be hit by the dictum propounded by the Supreme Court in the case of Canon India Pvt. Ltd. v. Commissioner of Customs [2021 (3) TMI 384 - SUPREME COURT] in which it was held that “the DRI officers are not customs officers, and therefore, not proper authority in law to initiate proceedings under the Act.” In the process, evidently again, the respondents appear to have been instrumental in the initiation of proceedings against the petitioner and others connected with the company besides the company itself by other agencies including the DGFT as well as the Central Bureau of Investigation [CBI].
There was a categorical direction by this Court vide order dated 12.04.2021 that no coercive process shall be initiated pursuant to SCN and the main file in question bearing No. F.No. DRI/HQ-G/338/VI/ENG-2/INT-NIL/2019 dated 26.09.2019. The filing of the complaint before the Court of learned CMM for initiating action under different provisions of the Act is based on sanction accorded by respondent No.1 arising from the same main file and by deliberately suppressing the directions and orders passed in favour of the petitioner. Evidently, the SCN arising out of the main file is under a cloud and once the very foundation is on a sticky wicket, the purported prosecution is not fathomable. The purported prosecution entails a heavy burden on the entire justice delivery system at a huge cost, time and efforts on the part of the Court after Court.
This Court finds the respondents guilty of committing patent breach of the directions passed by this Court and holds them guilty for committing a civil contempt under Section 2(b) read with Section 11 and 12 of the CC Act.
Let notice be issued to the respondent officials for the next date of hearing i.e., 14.02.2024 to show cause as to why they should not be punished under Section 2 (b) read with Section 11 and 12 of the CC Act for being in gross violation of the directions of this Court dated 12.04.2021.
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2023 (12) TMI 965
Levy of penalties under section 112 of the Customs Act, 1962 - possession of contraband or not - HELD THAT:- On going through the statements of the appellants which were recorded during the course of investigation, the appellants themselves have admitted that one Ayub Bhai has told them that the vehicle is carrying 120 pieces of gold which were kept in fuel chamber secretly concealed in the said vehicle. The said fact was in the knowledge of the appellants and at the time of interception of the vehicle, the appellants have made statement that they were not carrying any contraband goods with them, which shows that the mala fides of the appellants, in that circumstances, the penalty is rightly imposed by the adjudicating authority to meet the ends of justice and to teach a lesson to the appellants not to involve in such activities in future.
There are no infirmity in the impugned order for imposing penalty on the appellants.
The impugned order qua imposing penalties on the appellants of Rs.10.00 Lakhs and Rs.1.00 Lakh respectively, is upheld - Appeal dismissed.
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2023 (12) TMI 964
Recovery of amount refunded erroneously - export of goods - IGST paid at the time of export and the goods have been exported on payment of Customs duty - applicability of CBEC Circular F.No.390/Misc./30/2023-JC dated 02.11.2023 - HELD THAT:- It is not disputed by both sides that it is a case of refund of IGST and the appeal is filed under the Customs Act,1962 for erroneously refund of duty paid to the respondent. Admittedly, there is no refund of Customs duty involved in this case, it is a refund of IGST, which is not governed by the Customs Act, 1962. Therefore, this appeal is not maintainable under the Customs Act, 1962.
The Revenue has filed this appeal in terms of Section 54 (3) of the CGST Act, 2017. Section 54 (3) of the CGST Act, 2017 is not applicable to the facts and circumstances of the case as it is a case of refund of input tax credit. Further, there is no other case is pending with regard to the respondent in litigation, therefore, on litigation seeking also, the respondent succeeds.
There are no merit in the appeal filed by the Revenue, accordingly, the same is dismissed.
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2023 (12) TMI 963
Valuation of iron ore fines - ‘Fe’ content - Value of iron ore fines was to be determined on the basis of Certificate of Inspection and Quality (CIQ) analysis - ‘Fe’ content in iron ore fines exported - consequent determination of value for purposes of levy of export duty - whether the CRCL report can be accepted and the assessment of the export goods carried out based thereon? - HELD THAT:- In the present case, it nowhere comes on record that the sample of Customs House Laboratory were drawn in strict adherence to the BIS Standards, as also contained in the Board’s Circular. Moreover, the sample is alleged to be drawn by the Customs Officer at the back of the appellant and without the knowledge of the exporter, which is against the statutory mandates provided under Section 144 of the Customs Act, 1962 - Since the report of the Customs Lab is cryptic and incomplete without showing the BIS Standard and protocol and method of testing, it is noticed that the appellant sought to cross examine the Customs Officer who had drawn the sample and the Chemical Examiner who had tested the sample.
It is thus evident that the CRCL test report is not only cryptic, but it is also not clear whether the same was in accordance with the prescribed standards. The fact that the sample was tested nearly two months after its drawal and had not been stored in accordance with the prescribed conditions, the reliability of the test result, therefore is not only doubtful but also unreliable - It is also noted that the Board’s Circular- 12/2014-Cus clearly states that the sample is to be drawn in accordance with the BIS standards.
The coordinate bench of the Tribunal in M/s. Vedanta Ltd. Vs. Commissioner of Customs (Preventive) Bhubeneshwar [2023 (8) TMI 947 - CESTAT KOLKATA] had held in that case that the samples were required to be tested as early as possible and had held the inordinate delay of over a hundred days as unforgivable.
There are no legal substance in the order of the learned Commissioner (Appeals), and are of the view that the learned Commissioner was in error of law in passing the impugned judgement - appeal allowed.
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2023 (12) TMI 962
Revocation of licensed courier - no documents pertaining to KYCs (Know Your Customers) and POD (proof of delivery) were found - violation of Rule 12 (iv) of Regulation of CIER, 2010 - Adherence to the provisions laid in the Notification No.07/98-Customs (NT) dated 9.11.1998 or not - HELD THAT:- The respondent has failed to verify the correctness of IEC code and even identity of its clients. The respondent was aware of the use of same Aadhaar Number for all BOEs still the Authorized Courier nor to verify the said Aadhaar Number or did not verify the antecedent, correctness of Import Export Code (IEC) number, identity of its client. Further, the respondent during the time of uploading of the Bill of Entry failed to take note that the data entered was not correct - The respondent did not even bother to inform the said mistake to the Customs department, despite that KYC details filed by him in the Bills of Entry was not the same as was reflected in those Bills of Entry. Accordingly, the respondent has contravened the provisions of Regulation 12(1) (v) of CIER.2010.
It is also observed that to ascertain as to whether the imported goods indeed reached the declared importers, a verification of genuineness of the PODs (Proof of Deliveries), submitted by the authorized courier and KYC was carried out by the Commissioner of Customs, ACC (Export), New Delhi through the jurisdictional Commissionerate(s) - Failure of delivery of the consignment to the consignee or denial of receipt of the consignment by the consignee that the addresses were found bogus during verification of genuineness of the PODs, proves that the imported goods were never destined to the consignees named in the BOEs and have been intentionally diverted.
Respondent gave no information about the said mistake to the department nor ever took the plea that it was happening due to software error. From said statements above, it becomes clear that software was so designed under the instructions of respondent. GSTIN field showing Aadhaar number was directed by the respondent himself to be kept constant while software was developed. The edit option was with the respondent. He has failed to upload the correct edited information. Thus respondent cannot be allowed to take shelter of plea of “software error”. Thus, the alleged/impugned act was not merely lack of due diligence but was intentional misconduct.
The verification report sufficiently established the fact that the respondent has imported consignments in the name of consignees who were not even aware of the fact that their identity has been misused by the respondent i.e. courier company for import purpose. The report is held cogent evidence to show that authorized courier has failed to verify the correctness of IEC code and even identity of its clients. As observed above, it was done intentionally by the respondent, hence is wrongly held to be the mere act of negligence.
There is sufficient evidence on record to hold that the above said Regulations have been violated by the respondent. The violation invite revocation of courier licence as per Regulation 11. But the original adjudicating authority despite acknowledging the alleged violations has merely imposed penalty. Since the alleged act is proved to be intentional act of the respondent, mere imposition of penalty of Rs.50,000/- (fifty thousand) is disproportionate punishment - the prayer made by the appellant-department is accepted for revocation of courier registration of the respondent for committing intentional fraud while importing several goods in the name of those being gifts from Non Resident Indian (NRI) to their family member residing in India, which otherwise were not imported by them nor were meant for them.
The findings under challenge are hereby set aside and the appeal of Department is hereby allowed.
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2023 (12) TMI 920
Smuggling - Betel Nuts - Violation of order dated 31 March 2017 passed by the Authority for Advance Rulings (AAR) under the Chapter V B of the Customs Act, 1962 (the Act) containing Sections 28E to 28M.
The only contention raised by the respondents is that because of change in law on account of dismissal of appeal by the Supreme Court against the order passed by CESTAT in case of other assessees, advance ruling is not binding.
HELD THAT:- It is a well settled in law that the assessee can invoke writ jurisdiction under Article 226 of the Constitution of India, despite an alternate statutory remedy of an appeal interalia on the ground that there is a breach of fundamental rights, breach of natural justice, order passed is without jurisdiction or there is a challenge to the vires of the statute. In these circumstances, the Court can exercise writ jurisdiction inspite of appeal remedy being available to the petitioner.
The decision of the CESTAT, Chennai Bench in case of S.T. Enterprises [2021 (3) TMI 27 - CESTAT CHENNAI] and Ayush Business Overseas [2021 (3) TMI 1285 - SC ORDER] certainly cannot be a binding precedent on High Court nor can it be binding on all the authorities/assessees throughout the country. The decision of the Chennai Bench of CESTAT is binding interse between the parties before the Tribunal and not the petitioner or the authorities having jurisdiction over the petitioner. The dismissal by the Supreme Court without going into merits of the case acts only as res judicata between the parties before the Court and same cannot be said that CESTAT bench decision amounts to a declaration of law. Therefore dismissal of appeal by the assessees before the Chennai Bench of CESTAT, by the Supreme Court does not attract provisions of Section 28 J(2) of the Act for not following decision of the advance ruling rendered in the petitioner’s own case.
In the instant case, the respondents have passed the O-I-O contrary to the provisions of Section 28J of the Act and, therefore, the same is without jurisdiction. In view of the above discussion that the impugned order is passed without jurisdiction, writ petition is maintainable. The petitioner hence ought not to be relegated to take recourse to an appellate remedy.
The impugned O-I-O dated 11th November 2022 is hereby quashed and set aside - Petition allowed.
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