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Customs - Case Laws
Showing 241 to 260 of 1606 Records
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2023 (11) TMI 569
Classification of imported goods - Chromecast with Google TV - to be classified under sub-heading 8517 62 90 of Customs Tariff Act, 1975 - or under Tariff Item 8517 69 60 of the First Schedule to the Customs Tariff Act, 1975? - matter of classification of own similar device is pending decision before Honourable Tribunal, CESTAT - HELD THAT:- In the instant case the principal or primary function of ‘Chromecast with Google TV’ is not distinctly different from the functionality of ‘Google Chromecast’. Hence on this basis ‘Chromecast with Google TV’ device cannot be treated as an apparatus that is entirely different from ‘Google Chromecast’ the classification of which is under legal dispute over classification under Customs Tariff Act, 1975.
Thus, “Chromecast with Google TV” cannot be treated as an altogether generically different product qualifying for a different classification under Customs Tariff Act, 1975 - against the claim of the applicant, as declared at Sr. No. 11 of the CAAR-I application, the matter of classification of their own similar device is pending decision before Honourable Tribunal, CESTAT - in view of provisions of Section 28-I of the Customs Act, 1962, it is refrained from passing an order till the matter in dispute has been settled.
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2023 (11) TMI 531
Seeking provisional release of the goods - Ethanol Alcohol - classification of goods - to be classified under CTH 22.07 or under CTH 98.02 - HELD THAT:- The Petitioner would be justified in seeking provisional release of the goods. Admittedly, there is no dispute that the Petitioner has been importing these goods for last many decades and the classification under 98.02 has been accepted by the Respondents. Except the bill of entries which are the subject matter of show cause notice dated 28th July 2022 all the imports are cleared under CTH 98.02. The Petitioner has replied to the said show cause notice, but till today the Respondents have not adjudicated and pass any order. The Petitioner is a regular importer of the said goods and not a fly by night operator. The goods are in the bottles of 500 ml and confirm to the marking requirement as per the chapter 98 of the Customs Tariff Act. The Respondents would not be justified in not permitting provisional release of goods by contending that the goods under consideration are used in vaccine and sanitizer etc.
The classification has to be seen at the time of import by the Petitioner and not the use to which it is put by the buyers of the goods from the Petitioner. There is no condition in the Customs Tariff under chapter 98 which imposes such an obligations on the Petitioner - the Respondents are not justified in refusing to release the goods provisionally.
The Petitioner is entitled for provisional release goods under bill of entry no. 7594166 dated 30th August 2023 on execution of the bond - Petition disposed off.
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2023 (11) TMI 530
Rejection of the benefit of Preferential Trade Agreement - Steaming Non-Coking Coal imported by the appellant - rejection on the ground that invoice has been raised by the third party country - rejection also on the ground of difference in the invoice number as noted in the Country of Origin Certificate compared to the invoice issued by the Dubai supplier.
Rejection on the ground that invoice has been raised by the third party country - HELD THAT:- On perusal of the Preferential Trade Agreement, it is found that it allows the invoice to be issued by a third party country - the rejection of the benefit of the Notification on this ground cannot sustain and requires to be set aside.
The second ground for rejection is that there is a difference in the invoice number as noted in the Country of Origin Certificate compared to the invoice issued by the Dubai supplier - HELD THAT:- On perusal of the invoice, it is found that along with the number of the invoice there is an addition of the letters A and B in the invoices issued by the Dubai, UAE supplier. It is understood that the invoices were split into two for the convenience of the quantity of the goods exported and for issuing the Country of Origin Certificate respectively. These discrepancies do not have any bearing to the benefit under the Preferential Trade Agreement. The Ld. counsel has been able to give plausible explanation for the minor difference in the invoice numbers - the rejection of the benefit on the second ground also cannot sustain and requires to be set aside.
The impugned order rejecting the benefit of concessional rate of duty as per the Preferential Trade Agreement is not justified. The impugned order is set aside - Appeal allowed.
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2023 (11) TMI 493
Validity of Arbitral Award - non-availment of BCD concession - allegations of serious fraud by the Claimant thereby rendered the dispute non-arbitrable or otherwise - Arbitral Tribunal held that at the higher the allegation in the statement of Defence is a case of simple fraud and not a case of serious allegations of fraud thus held that the claims are arbitrable - time limitation.
BCD concession not having been availed of by the Respondent - HELD THAT:- The Arbitral Tribunal has interpreted Clause 5.2 of the Contract as per its plain language and upon such interpretation arrived at a finding that it is apparent from the said Clause read with Clause 5.1 of the Contract that the intent of the parties was to consider BCD distinct from CVD in the Supply Contracts. The said Clause 5.2 is applicable only to BCD concession and not to CVD concession. The Arbitral Tribunal has also considered the notifications which were issued prior to the Supply Contracts and found that no concessional Customs Duty applicable on coal. Clause 5.2 of the Contract was made to cover import of coal under Notification No. 12/2012 and if concessions became available on BCD during the period of the contract to such imports, they would be applicable.
In view of the interpretation of the Arbitral Tribunal on Clause 5.2 and that CVD not being covered by the said Clause, it was irrelevant as to when the said Circular had been issued i.e. prior to or during the contractual period. In any event the Arbitral Tribunal had noted that the parties chose not to lead oral evidence and having done so, there was nothing on record to show as to when the said Circular dated 03.10.2013 was issued. There is much merit in the submission of the Respondent that the Petitioner cannot now call back the Circular which according to the Petitioner was not in existence on the date of the execution of the contract.
It is settled law that the Arbitral Tribunal is empowered to interpret the contract and the Court cannot interpret contracts for the Arbitrator. The interpretation and construction of a contract is primarily for the Arbitrator. The Arbitrator’s view on the interpretation of the Clauses of the contract, is a possible view and hence calls for no interference under Section 34 of the Arbitration and Conciliation Act, 1996 - Arbitral Tribunal having interpreted the aforementioned clauses which this Court finds is a possible interpretation cannot be a ground of challenge under Section 34 of the Arbitration Act.
Restriction upon the Respondent making its claims as per Notice of Invocation dated 31.10.2017 - HELD THAT:- The Arbitral Tribunal has correctly interpreted Section 11 of the Arbitration and Conciliation Act, 1996, as not requiring the Chief Justice or his designate to identify the disputes whilst referred them to the Arbitral Tribunal for adjudication. The Arbitral Tribunal has considered these Claim Nos. 2 to 5 to be arbitrable. The Arbitral Tribunal has appreciated that the Chief Engineer (FMC) has already rejected the Respondent’s Claim Nos. 2 and 3 and hence there could be no question of the Respondent again going to the same Authority for adjudication of its claim - there are no error on the Arbitral Tribunal’s part in adjudicating these claims. The Respondent had also addressed these claims on merits and the Arbitral Tribunal has after considering the Respondent’s defence on these claims arrived at the finding in the impugned award.
The Arbitral Tribunal has correctly accepted the contention of the Respondent that the tolerance limit of +/- 2% under Clause 8.7 of the contract cannot independently or on stand alone be applied to the diverted quantity of 80,000 MT since it is a part of the ordered quantity and the tolerance limit of +/-2% necessarily would have to be calculated on the total quantity of coal supplied to the Chandrapur TPS. There is no separate contract for 80,000 MT diverted to Khaperkheda TPS. Thus, the Respondent had made the related deduction under Clause 8.7 of the Chandrapur Contract on the basis that there was no shortage of coal supplied to Khaperkheda TPS.
Liquidated Damages - Arbitral Tribunal has held that this issue will no longer arise in view of the finding there was no shortfall of supply of coal more than permissible limits under the supply contracts - HELD THAT:- The deduction effected by the Petitioner by way of liquidated damages were impermissible. I find no error in the Arbitral Tribunal holding that presuming that this issue was to be considered the Petitioner has failed to prove damages suffered as no evidence was produced in this regard. The deduction of Rs. 1.12 crores by way of liquidated damages is under Clause 15.1 of the Chandrapur Contract. There is much merit in the contention on behalf of the Respondent that the Petitioner needs to prove loss caused by alleged breach of short supply beyond permissible limits of Clause 8.7 of the Chandrapur Contract - The finding of the Arbitral Tribunal that damage/loss caused is a sine qua non for the applicability of Section 74 of the Contract Act and in view of there being no proof of any damage / loss, the Petitioner had not suffered any loss cannot be faulted.
Time Limitation - HELD THAT:- The Arbitral Tribunal has upon proper appreciation of the material on record rightly held that the claims of the Respondent were within limitation. The Arbitral Tribunal has considered there were part payments made by the Petitioner to the Respondent between October and November, 2015. Thereafter the Chief Engineer (FMC) of the Petitioner had rejected the Respondent’s claim vide letters dated 24.07.2015 and 10.09.2015. The balance payment could have been sought only after joint reconciliation of accounts which were completed by the parties on 24.05.2017 in relation to the Bhusawal Contract and on 22.03.2017 in relation to the Chandrapur Contract. The Notice invoking the arbitration has been issued by the Respondent/Original Claimant on 31.08.2017 - there are no merit in the challenge of the Petitioner to the findings of the Arbitral Tribunal on the issue of limitation. This apart from the settled law that a Court whilst considering a Petition filed under Section 34 of the Arbitration Act cannot re-appreciate evidence.
There are no grounds raised in the Arbitration Petition which fall within the acceptable grounds of challenge to an award under Section 34 of the Arbitration and Conciliation Act, 1996.
The Arbitration Petition is devoid of any merit - petition dismissed.
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2023 (11) TMI 492
Seeking release of imported goods - Gold Dore Bars of Guinea - country of origin - Benefit of Sl.No 1 of Customs Notification No.96/2008-Customs, dated 13.08.2008 and also AIDC Notification No.011/2021-Cus., dated 01.02.2021 - HELD THAT:- Taking into consideration of the suggestion putforth by the learned counsel for the petitioner, this Court is of the view that, it need not labour much to resolve the controversy raised in the Writ Petitions inasmuch as the petitioner has come forward to pay 100% duty under protest.
The Authority concerned is directed to consider the petitioner's request and release the goods subject to payment of 100% duty by the petitioner within a week's time from the date of payment of 100% duty made by the petitioner in accordance with law - The petitioner, after making the payment of 100% duty, is at liberty to make an appropriate application seeking release of the goods, which shall be considered by the Authority concerned.
Petition disposed off.
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2023 (11) TMI 491
Seeking release of provisionally attached Bank Account of petitioner - continuation for a period exceeding six months under sub-section (5) of Section 110 of the Customs Act, 1962 - HELD THAT:- The provisional attachment is dated 28th November 2022 and six months’ period expired on 28th May 2023. The petitioner vide various letters dated 1st July 2023, 25th September 2023 and 18th October 2023 requested for lifting the said attachment. However, the respondents have not replied to the same. There is also no extension as required under the first proviso to Section 110(5) of the Customs Act. Therefore by operation of law, provisional attachment has expired and same is required to be defreeze.
It was incumbent upon the respondents and they were duty bound to respond to the letters for defreezing the bank account and more particularly since the period of 6 months had expired and there was no further extension - The respondents have failed in their duty by not defreezing the bank account after the expiry of 6 months, which they should have done suo-moto, but have failed to do so inspite of various letters written by the petitioner. Such inaction of the respondents have led to the present petition being filed before this Court. Not responding to the reminders for defreezing the account after the expiry of the statutory period of 6 months would also be contrary to the policy of the Government of ease of doing business.
The provisional attachment dated 28th November 2022 has expired and is set aside - petition disposed off.
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2023 (11) TMI 490
Violation of principles of natural justice - adjudication of the show cause notice took more than 11 long years - Levy of penalty under Section 114(iii) of the Customs Act, 1962 - HELD THAT:- This Court is of the considered opinion that prima facie the petitioners have been able to carve out an exception with regard to violation of principles of natural justice based on PARLE INTERNATIONAL LIMITED VERSUS UNION OF INDIA AND OTHERS [2020 (11) TMI 842 - BOMBAY HIGH COURT] and M/S GODREJ SARA LEE LTD. VERSUS THE EXCISE AND TAXATION OFFICERCUM- ASSESSING AUTHORITY & ORS. [2023 (2) TMI 64 - SUPREME COURT] in as much as the adjudication of the show cause notice took more than 11 long years for which there appears to be no explanation. In fact, the writ petitions were dismissed in limine only on the ground of alternative remedy without examining the issue of violation of principles of natural justice.
Review petition allowed.
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2023 (11) TMI 489
Incorrect declaration of the description, value and classification of the imported goods - Replica Fire Arms - daggers and swords - rejection of declared value - import of replicas of contemporary or modern firearms would be subject to the submission of a certificate of innocuousness from the manufacturing company of the country of Export or not - Absolute Confiscation - penalty - non-application of mind - HELD THAT:- On perusal of the impugned order, it is found that the same is repetition of the order in original passed by the adjudicating authority - the learned counsel for the appellant is agreed upon that the impugned order lacks application of mind, in as much as it is verbatim the same as the order under challenge. Neither the applicability of the legal provisions particularly with reference to the Arms Act and the Rules and various notifications have been considered nor any reasoning has been given with reference thereto by the Commissioner (Appeals) though being the first appellate authority.
The impugned order is therefore unsustainable and deserves to be set aside with a direction to the appellate authority to consider the appeal and decide the same giving proper and substantive reasoning in support thereof.
Since the impugned order does not reflect any application of mind, it would be appropriate to remand the appeal to the Commissioner (Appeals) to discuss the issues on merit - appeal allowed by way of remand.
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2023 (11) TMI 488
Refund of SAD - Rejection for the reason that the invoice did not contain the endorsement “no credit of additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible” - HELD THAT:- The issue is settled by the decision of the Tribunal’s Larger Bench in the case of Chowgule & Company Pvt. Ltd. Vs CC & CCE [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] where it was held that A trader-importer, who paid SAD on the imported .good and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus., notwithstanding the fact that he made no endorsement that “credit of duty is not admissible” on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein.
Thus, the rejection of refund claim is not justified. Impugned order is set aside - Appeals are allowed.
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2023 (11) TMI 487
Confiscation of imported goods - undervaluation of goods - Radiators, Cylinder Block, Crankshaft and Oil Pump - no MRP/RSP was found on certain packages and the goods entering the port meant to be cleared by the Customs authorities for home consumption - non-complaince with the provisions of Notification No. 40 (RE2000) 1997-2002, dated 24.11.2000, issued by the Ministry of Commerce and Industry - HELD THAT:- The impugned matter for assessment of the imported goods rightly and ordinarily fell within the adjudication competency of the Deputy/Assistant Commissioner. Though there is no prohibition in law for the Commissioner to undertake adjudication in the impugned case, however, as a matter of practice that is ordinarily, not resorted to. We find that no reasons as required to be adduced for the rejection of the declared value, in terms of sub-rule (2) of Rule 12 of the CVR- 2007, have been spelt out in the present adjudication undertaken by the Commissioner. Also none of the ingredients indicated in Explanation (1) of Rule 12 ibid are also indicated in the adjudication order - the re-enhancement of value for assessment purposes, undertaken when the goods were already assessed and exercise for enhancement of declared value was already undertaken at the time of assessment, is patently illegal and unjustified.
Further, there is an inherent contradiction in the department’s proposal with reference to assessment of the goods imported, thus while at para 11 B of the order, it is admitted that the assessed value models of MPFI and MC appeared to be acceptable, yet at the same time learned adjudicating authority has resorted to enhancement of the declared values of the said items as well.
Following the law as pronounced by the Apex Court in the case of EICHER TRACTORS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2000 (11) TMI 139 - SUPREME COURT], there are no hesitation in stating that the transaction value has been rejected, arbitrarily, as the department was not able to adduce any sustainable evidence in the matter. The golden rule being that ordinarily the transaction value has to be accepted, the rejection of transaction value has to be based only on extraordinary or special reasons and considerations.
The Order in Original set aside - appeal allowed.
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2023 (11) TMI 486
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - Mis-declaration of description of goods and its value in import of ‘Button Tips’ - undervaluation - Violation of Regulations 10(a), 10(d), 10(f) and 10(n) of CBLR, 2018 - Timelines to be followed in the entire process of adjudication of the suspension/revocation of CB license under CBLR, 2018 by Customs authorities.
Violation of Regulation 10(d) of CBLR - HELD THAT:- The appellants CB has declared the value of imported goods as given in the commercial invoices, which is the transaction value. Further, submitting the declaration form (GATT valuation declaration) in terms of Rule 11, is primarily the responsibility of the importer and in case of proper authorization being given by them, then by the agent of the importer - In the present case, it is not in dispute that there was any such mis-declaration in the GATT value declaration form or in the value particulars declared in the bill of entry as compared to the commercial invoice. Further, any exercise in re-determination of value other than the transaction value has to be adopted step-by-step on the basis Rule 3 ibid, and after rejection of transaction value as per Rule 12 ibid - there are no such evidence or fact indicating that there was a mis-declaration of value and the value was re-determined as per the above legal provisions - the conclusion arrived by the Commissioner of Customs (General) on this valuation issue in the impugned order is not supported by any evidence or factual detail, and thus the impugned order stating that the appellants have violated Regulation 10(d) ibid is also not sustainable.
Violation of provision of Regulation 10(f) ibid - HELD THAT:- As the appellants had ‘never met the importer/IEC holder, which indicated that they withheld the information contained orders, instructions or public notices relating to clearance of cargo from the importer of the goods, which led to the duty evasion in the said case’. Even for an argument sake, if it is accepted that the appellants had not met the importer/IEC holder in person, it is not clear how such an act would automatically would tantamount to non-supply of information relating to Customs law & procedures to the importer for compliance purpose - In the absence of any specific evidential document or factual record to state that the information contained in any specific orders, instructions or public notices issued by Customs have been withheld by the appellants, it is not feasible to sustain such a charge on the appellants and thus the conclusion arrived at by the Commissioner of Customs (General) without any basis of documents or facts, in the impugned order with respect to Regulation 10(f) ibid, is not sustainable.
Violation of Regulation 10(n) of CBLR - HELD THAT:- Circular No. 9/2010-Customs dated 08.04.2010 clearly explains the provision of CBLR/CHA Regulations which require the Customs Brokers to verify the antecedents, correctness of Import Export Court (IEC) Number, identity of his client and the functioning of his client in the declared address by using reliable, independent, authentic documents, data and information. The said guidelines provide for the list of documents that is required to be verified and that are to be obtained from the client importer/exporter. it is also provided that any two documents of among such specified documents is sufficient for fulfilling the obligation prescribed under Regulation 10(n) of CBLR, 2018 - in the present case, the appellants CB had obtained the KYC documents and submitted the same to the Customs Department. Thus, there are no legal basis for upholding of the alleged violation of Regulation 10(n) ibid by the appellants in the impugned order.
The Hon’ble High Court of Delhi has held in the case of KUNAL TRAVELS (CARGO) VERSUS COMMISSIONER OF CUSTOMS (IMPORT & GENERAL) NEW CUSTOMS HOUSE, IGI AIRPORT, NEW DELHI [2017 (3) TMI 1494 - DELHI HIGH COURT], the appellants CB is not an officer of Customs who would have an expertise to identify over valuation or under valuation of goods.
Timelines to be followed in the entire process of adjudication of the suspension/revocation of CB license under CBLR, 2018 by Customs authorities - HELD THAT:- In the instant case, the alleged offence in importation of goods took place in respect of Bills of Entry dated 22.08.2016 and 27.08.2016 which was reported by a SCN/offence report dated 27.09.2017 and on that basis the jurisdictional Commissioner had suspended CB license of the appellants under Regulation 16(1) of ibid, with immediate effect vide Order No. 21/2018-19 dated 30.05.2018. Simultaneously, SCN No.10/2018-19 dated 30.05.2018 was issued to the appellants for initiating inquiry proceedings against violations of CBLR, 2018 due to failure of the appellants to comply with Regulations 10(a), 10(d), 10(f) and 10(n) ibid. Upon completion of the inquiry, vide Inquiry report submitted on 14.11.2019, and having not agreed to the said report, the Commissioner of Customs (General), Mumbai, being the licensing authority under Regulations 14 of CBLR, 2018 had passed the impugned order dated 28.08.2020. The above timelines indicate that the suspension was continued during the inquiry proceedings for about 27 months. Normally, immediate suspension action prior to conduct of regular inquiry is taken considering the serious violations of CBLR, 2018 by the action of the Customs broker - the Customs broker has already suffered a lot, as they were out of his normal business for almost 5 years and 5 months as of now. It is also noted that the livelihood of Customs broker and the employees is dependent upon the functioning of Customs broker’s business. The punishment suffered by being out of Customs broker business for about five years is more than sufficient to mitigate the case of violations or contraventions of CBLR, 2018.
There is definitely delay in adjudication and that for the import transaction that occurred in August, 2016, the order of revocation of appellant’s CB license has been passed on 28.08.2020. Revenue is unable to explain why there was such a long delay in taking action against appellants, when the information about under valuation of import through Customs APU, R&I Division was received vide SCN dated 27.09.2017 - The prescribed time under CBLR for timely completion of inquiry proceedings right from the beginning i.e., issue of SCN within a period of 90 days from the date of receipt of offence report, submission of inquiry report within 90 days of issue of SCN, passing of order by the Commissioner of Customs within 90 days of receipt of inquiry report was neither followed nor given credence to.
There are no merits in the impugned order passed by the learned Commissioner of Customs (General), Mumbai in revoking the license of the appellants; for forfeiture of security deposit; and for imposition of penalty, inasmuch as there is no violation of regulations 10(d), 10(f) and 10(n) ibid, and the findings in the impugned order is contrary to the facts on record - However, in view of the failure of the appellants to have acted in a proactive manner in fulfillment of the obligation under sub-regulation 10(a) ibid, particularly when they have received the documents from importer through intermediary logistics operator, we find that it is justifiable to impose a penalty of Rs.10,000/- against the appellants, which would be reasonable and would be in line with the judgement of the Hon’ble Supreme Court in the case of K.M.Ganatra [2016 (2) TMI 478 - SUPREME COURT], in bringing out the importance of crucial role played by a Customs Broker.
Appeal allowed.
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2023 (11) TMI 485
Classification of imported goods - Clear Float Glass (CFG) - to be classified under Tariff Item 7005 10 90 or under CTH 7005 2990 of the Customs Tariff Act (CTA) or not - benefit of exemption under Sl.No.934 (I) of Notification 046/2011-CUS dated 01.06.2011 - HELD THAT:- There is no dispute that the impugned goods is nonwired glass. By conjoint reading of the note 2(c) and the manufacturing process, it can be inferred that CFG would have microscopical layer of metal, namely tin, which is an absorbent layer as contemplated under the above said Chapter Note 2(c). Hence, the correct classification of the impugned goods is under CTH 7005 1090 of Customs Tariff Act - the manufacturers in India of the identical goods namely M/s. Saint-Gobain India Pvt.Ltd., M/s. Goldplus Float Glass are manufacturing and clearing CFG under CTH 70051090 of the CTA and the same has been accepted by the department.
The appellant sought reply under RTI dated 17.07.2023, wherein the question was raised that it is observed that in some of the Report, no other layer other than Tin layer is found on one side of the Glass which is fluorescent is mentioned. Whether such layers are reflective or not-reflective and whether such layers are absorbent or not? The reply is given as (a) not-reflective and (b) absorbent (UV).
If the same is considered then the said clarification is satisfying the Chapter Note 2(c) of Chapter 70 of the Customs Tariff Act and the said Report has not been relied upon by the adjudicating authority while adjudicating the case. Therefore, the impugned order is bad in law.
As from the facts of the case, it is clear that the Clear Float Glass imported by the appellant are absorbent and having non-reflecting layer, in that circumstances, the appellant has qualified the merit classification under CTH 7005 1090, therefore, the correct classification of the Clear Float Glass imported by the appellant under the impugned Bills of Entry is classifiable under CTH 7005 1090. Consequently, the appellant is entitled for benefit of Serial No.934 (I) of Notification No.046/2011-CUS dated 01.06.2011.
The impugned orders deserve no merit, hence, the same are set aside - Appeal allowed.
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2023 (11) TMI 484
Valuation of imported goods - assessment of bulk liquid cargo shown in the imported documents - whether the quantity shown in the import invoices and other related import documents be considered for assessment of bulk liquid cargo or the actual quantity received in the Shore Tank after import, be the basis for determination of value as well as duty?
HELD THAT:- This issue has been considered by the Hon’ble Supreme Court in the case of Mangalore Refinery and Petrochemicals Ltd. [2015 (9) TMI 245 - SUPREME COURT] after analysing the provisions of Customs Act, their Lordships observed that the quantity of crude oil actually received into a shore tank in a port in India should be the basis for payment of customs duty.
There are no merit in the impugned orders - the impugned orders are set aside - appeal allowed.
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2023 (11) TMI 483
Classification of imported goods - Cheese Polvaromas (semi-finished) / Cheese Polvaromas (semi-finished flavour compound) - to be classified under CTH 3302 1090 or under CTH 2106 9060? - demand of differential duty - confusability of the impugned goods besides imposition of penalties.
HELD THAT:- In this case, impugned goods are imported for use in manufacture of dry seasoning powder. The products that are classifiable under Chapter Heading 2106 mostly consist of food and edible preparations which are meant to be used either directly or after processing such as cooking, dissolving or boiling in milk or water or other liquids, for human consumption. As per the HSN Notes, the said heading i.e., 2106 excludes mixture of odoriferous substances, which can be either natural or synthetic or mixed or both, which are used as raw materials in the perfumery, food or drink industries.
There is no dispute and it is an admitted fact that the impugned products cannot be directly used by the end users or consumers in any food/food preparation and they are used as industrial raw materials and mixed with other ingredients to manufacture their final product ‘Dry Mixed Seasoning’. Dry Mixed Seasoning is used by their customers as raw material in manufacture of the customers’ finished products. Impugned goods are not directly edible and meant to be used to impart flavour / olfactory characteristics to the products in which it is used. To be classified under CTH 2106, the product should be used as food or beverages either as such or after a minimum processing such as dissolving, boiling in water / milk or other liquids for home consumption. What is imported are not edible but merely used to impart cheese flavour.
As such what is imported may be of animal origin i.e., Cheese, but, having components of synthetic aromatics, their appropriate classification is under CTH 3302 of the CTA, 1975.
The impugned goods are classifiable under CTH 3302 1090 of the Customs Tariff Act and there is no merit in the appeal filed by the Department. Accordingly, the appeal is rejected.
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2023 (11) TMI 427
Violation of principles of natural justice - appellant's request for cross-examination of parties, whose statement has been relied upon, has not been considered - Opportunity of hearing not granted - Article 14 of the Constitution of India - HELD THAT:- While the submission is agreed that cross-examination is also a part of/ facet of natural justice, however, there is no absolute right for cross-examination, for it would depend on the facts of each case.
As found by the learned Judge, whether the appellant was granted personal hearing or not, turns out to be a disputed question of fact. The examination of such disputed question of fact is normally an exercise, which is beyond the realm of writ jurisdiction - It is also found that when there is an alternate remedy that is available, Courts would exercise restraint in entertaining the writ petitions. Further, entertaining the writ petitions is a matter of discretion and such discretion having been exercised by the learned Judge by rejecting the writ petition on the ground of existence of alternate remedy, this Court in appeal would normally be loathe in interfering with exercise of such discretion.
There are no reason to interfere with the order of the learned Judge - this court permits the appellant to file appeal before the Appellate Authority, within a period of 30 days from the date of receipt of a copy of this judgment - appeal disposed off.
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2023 (11) TMI 426
Seeking direction to respondents to permit the petitioner to utilize the ROSCTL scrip and to take steps to retrieve the illegally utilized ROSCTL scrip within the time as fixed by this Court - HELD THAT:- Though there is no representation on behalf of the respondent, considering the limited scope of the prayer in this Writ Petition, this Court is of the view suffice, it would be to dispose of the Writ Petition by directing the second respondent to consider the representation made by the petitioner within the stipulated time and to pass orders.
This Writ Petition is disposed of by directing the second respondent to consider the representation of the petitioner, dated 29.07.2023 and after affording an opportunity of hearing to the petitioner shall pass orders on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.
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2023 (11) TMI 425
Smuggling - Absolute confiscation of 22 numbers of gold bars - levy of penalty u/s 112(b)(i) of the Customs act - match with respect to the serial numbers on the gold biscuits - HELD THAT:- It is found that it is evident from the facts apparent in the show cause notice, that the serial numbers of the 22 gold biscuits are covered within the 40 kg gold purchased by DP Gold Pvt Ltd., Chennai from MMTC-PAMP India Pvt Ltd., and there after they had sold the gold to other dealers/ other jewellers. Thus, the allegation of smuggled nature of gold in question, does not stand - it is further held that the gold in question is not smuggled in nature.
The gold in question has already been sent to appropriate Government Authority for re-sale and or melting by the Government. Accordingly, the Revenue is directed either to return the gold to the appellant - M Sunil Kumar, or to pay the value, amount of gold as valued on the date of sale/melting with interest as per rules.
Appeal allowed.
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2023 (11) TMI 424
Confiscation - dumb barge Century Star-3002 (without self propulsion) - movement in and out of the country the barge in any event will have to be construed as a foreign going vessel or as “Imported goods”? - HELD THAT:- In view of the law propounded in the case of SHAHI CONTAINERS VERSUS COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI [2003 (9) TMI 453 - CESTAT, MUMBAI], it is amply clear that the adjudicating authority had erred in imposing penalty and confiscating the barge Century Star-3002, even though it was allowed conversion from foreign to coastal run. The plea that the duty paid in respect of the barge was with reference to consumables alone that were required for consumption during the coastal run, is only open for consideration of the appropriate juridical authority, who in the first place allowed the conversion or by way of appeal proceedings of the said orders. That being not the case herein, the plea is not open for such an assertion. It need be pointed out that if at all any duty was required to be paid on the dumb barge at the time of conversion, the jurisdiction to collect such duty rested with Paradip Customs only and would certainly not fall within the territorial jurisdiction of the present authority.
The fact that the barge was already converted from foreign to coastal run and thereafter Customs Duty was paid on the bunkers for voyage, question of any illegal import of the dumb barge Century Star-3002 into India does not arise.
Any consequence flowing out of a mis-conceived assumption of jurisdiction and subjecting the appellants herein to penal consequences, confiscation and imposition of penalty on the barge and accordingly on all others concerned in facilitating the movement of the dumb barge or associated with discharge of other formalities concerned, at subsequent port of call, are not liable to be subjected to any failure or to any consequences of an assumed failure.
The confiscation of the dumb barge Century Star-3002, under section 115(2) of the Customs Act is not called for. Further, in terms of section 115(2) of the Act ibid, any conveyance used as a means of transport in the smuggling of goods is liable for confiscation, unless it is proved by the owner of the conveyance that it was so used without the knowledge of the owner or his agent, if any or the persons in-charge of the conveyance. In the present case there is not even a whisper to assert, least of all establish that the tug – Century Star-1 was used as a means of transport for smuggling of goods and that too with the knowledge or connivance of the owner, agent or the captain of the vessel - confiscation of the tug under section 115(2) of the act cannot be sustained - It is also demonstrated from records that the non-filing of IGM in the present case is certainly without any fraudulent intent, and at best is no more than an inadvertent omission, perhaps spurred because of the peculiarity of circumstances. For the reasons no penalty is also imposable on the owner/representatives and others concerned with, managing the affairs of the vessel.
The order of the lower authority suffers from inherent weaknesses and is not in accordance with the legal prescriptions, and therefore liable to be set aside. Since neither confiscation nor imposition of penalty is sustainable and in view of precedent decisions, the appeals filed are liable to be allowed and the penalties imposed upon the appellants liable to be set aside.
Appeal allowed.
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2023 (11) TMI 423
Confiscation - town Seizure - Gold of foreign origin having inscription of 2(two) Swastika symbol - failure to prove reasonable belief that being the gold in question is smuggled one - HELD THAT:- To decide the issue this Tribunal in the case of SHRI BALWANT RAJ SONI VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) , PATNA, SHRI ANURAG JALAN VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) , PATNA AND SHRI MANOJ KUMAR SETH VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) , PATNA [2023 (5) TMI 940 - CESTAT KOLKATA] has examined the issue and observed the ‘reasonable belief’ on which the DRI officers presumed that the gold bars/pieces were of smuggled nature is not supported by any corroborative evidence. There is no document available on record to establish that gold bars/pieces were smuggled into India from Bangladesh. The impugned order has concluded that the said gold bars/pieces were smuggled into India only on the basis of assumptions and presumptions without any concrete evidence to substantiate this claim. Hence, we hold that material evidence available on record does not establish that the gold bars/pieces were smuggled into India without any valid documents.
It is apparent from the records itself that it is a case of town seizure. The purity of gold is 99.5% and having no embossing of foreign mark, in that circumstances, revenue has failed to prove reasonable belief that being the gold in question is smuggled one. In the absence of that the impugned gold cannot be seized under Section 110 of the Customs Act, 1962 and therefore the gold in question is not liable for confiscation and no penalty is imposable on the appellant.
There are no infirmity in the impugned order - the appeals filed by the revenue are dismissed.
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2023 (11) TMI 422
Levy of penalty u/s 114 (i) and u/s 114 AA of FA - Smuggling - red sanders - replacement of the goods enroute with red sander - penalty imposed only on ground that the appellant have not informed the customs authorities, immediately about the stuffing of red sander in the container and informed only on the next day.
HELD THAT:- It is found that the appellant has given a statement that in the evening when he knew about the stuffing of red sander in the container he was in Mumbai and after returning from their next day itself he informed the customs authorities. The act of the appellant was not found malafide by the Learned Commissioner (Appeals) in his order.
The learned Commissioner (Appeals) accepting that the appellant did not have direct involvement in the illegal export of prohibited good red sander reduced the penalty substantially - once the Commissioner (Appeals) is of the view that the appellant have no direct involvement, the penalty even reduced cannot be upheld.
In an appeal against the Commissioner (appeals) order this Tribunal set aside the penalty in KARAN BABUBHAI CHAUHAN VERSUS C.C. MUNDRA [2023 (5) TMI 1267 - CESTAT AHMEDABAD] where it was held that I do not see any reason or role of the appellant to attract penalties under Section 114 (i) and Section 114 (AA).
From the above decision it can be seen that identical facts and same allegation was made against the appellant in the above decision and the Tribunal has set aside the penalties - in the present case also the appellants being identically placed as appellant in the above decision the penalty are not sustainable. Hence, the same are set aside.
Appeal allowed.
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