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Customs - Case Laws
Showing 261 to 280 of 1607 Records
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2023 (11) TMI 421
Maintainability of appeal - non-fulfilment of pre-deposit - Seeking clarification from the Appellant as to whether he is contesting the Customs Duty arrived at by the Adjudicating Authority enhancing the value and re-determining the same at Rs.3,41,984/- - HELD THAT:- It is observed that the Commissioner (Appeals) has dismissed the Appeal on account of non-fulfillment of pre-deposit. Even before the Tribunal, the Appellant has not complied with the directions given on 17th July 2023. No explanation is forthcoming from the Appellants in spite of several opportunities given to them.
Appeal dismissed.
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2023 (11) TMI 404
Refund of Anti Dumping Duty - refund application filed without challenging the assessment order under Section 17(4) of Customs Act, 1962 - Bills of Entry were finally assessed without mention of demand/ payment of Anti Dumping Duty - HELD THAT:- Though there is a mention in the order of the authority’s below about the endorsement on system about payment of Anti Dumping Duty. However, the finalization of bill of entry does not show any reference of payment of Anti Dumping Duty nor there is any order showing reassessment of Bills of Entry with regard to payment of ADD.
From the perusal of the bill of entry which is a final assessment order there is no mention of Anti Dumping Duty for the obvious reason that the Anti Dumping Duty was not leviable at the relevant time. The department emphasized that the appellant should have challenged the final assessment order of the bills of entry in order to claim refund of Anti Dumping Duty. It is very surprising that when the finally assessed bills of entry do not bear any reference to the assessment/reassessment order in respect of payment of Anti Dumping Duty there is no purpose of challenging the bills of entry which was assessed finally.
As regard the payment of Anti Dumping Duty by the appellant it is nothing but only a deposit without having part of the final assessment of bills of entry. As per the Hon’ble Supreme Court judgment in the case of ITC Ltd [2019 (9) TMI 802 - SUPREME COURT] importer can file a refund claim only if the duty which was assessed under final assessment of bills of entry is challenged by way of filing appeal. However, in the present case since the Anti Dumping Duty is not part and partial of final assessment of bills of entry there is no question of challenging the assessment of bills of entry for claiming the refund of Anti Dumping Duty. Since the Anti Dumping Duty was separately paid without having included in the final assessement of bill of entry, the appellant is entitled for refund without any challenge to the assessment order which was otherwise not required.
In the present case it is undisputed fact by the revenue also that the ADD paid by the appellant was not at all leviable at the relevant time. Therefore, duty which was not leviable and there is no is on that there can not be assessment/ reassessment of such not leviable duty. This fact also strengthen the case of the appellant.
In absence of any final assessment order in respect of payment of Anti Dumping Duty and particularly in the fact that the Anti Dumping Duty was not leviable at the relevant time - appellant is legally entitled for the refund claim - Impugned order set aside - appeal allowed.
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2023 (11) TMI 383
Validity of Notification dated 29th January, 2020 - revocation of benefit under the Merchandise Exports from India Scheme [MEIS] in respect of Flexible Intermediate Bulk Container [FIBC] bags, with effect from 07th March, 2019, retrospectively.
The Petitioner seeks directions against the Respondents to ensure that the impugned notification is applied prospectively.
HELD THAT:- While the MEIS was in operation from 1st April 2015 to 31st December 2020, its retrospective discontinuation for the FIBC sector has become a point of contention and distress for the Petitioner and it’s member units. Upon learning about the prospective withdrawal of the MEIS benefit, the Petitioner promptly voiced concerns to the relevant authorities. Despite this, the DGFT portal ceased accepting MEIS benefit applications as of 01st August 2019. Despite subsequent representations, the contested notification was issued on 29th January 2020, retracting the MEIS benefits for the FIBC sector from 07th March 2019. Although the initial grievances highlighted in the petition spanned a broader spectrum, during the hearing, the Petitioner narrowed their challenge to two specific reliefs: (i) The controversial notification should have a prospective, not retrospective, effect and (ii) immediate approval of the claims made by the Petitioner’s member units under the MEIS scheme for the disputed period. Given these revisions, our analysis is confined to addressing these specific contentions and reliefs.
Retrospective Effect of Impugned Notification - HELD THAT:- The Kanak Exports ruling [2015 (11) TMI 80 - SUPREME COURT] , though anchored in the context of an earlier iteration of Section 5 of the FTDR Act, 1992, still holds relevance. A close examination reveals that the 2010 Amendment has not altered the statute's stance on retrospective provisions. Furthermore, the Respondents have not indicated any provision that would counter this interpretation - Further, disentangling the Respondents’ case law references, the decisions in S.B. International [[1996 (1) TMI 125 - SUPREME COURT], P.T.R Exports [1996 (5) TMI 413 - SUPREME COURT] , and the Karnataka High Court’s verdict in Rajesh Exports [ [2005 (9) TMI 695 - KARNATAKA HIGH COURT] , alluded to by the DGFT, to highlight the Government's policy discretion in the public interest, do not align with the present case. This is primarily because in those case there was no retrospective amendment to policy or such a finding by the Court although urged, as opposed to the clear retrospective withdrawal of a benefit herein. Guided by the precedents previously discussed, we conclude that the retrospective withdrawal of the MEIS benefits through the impugned notification does not stand.
DGFT’s decision to repeal the scheme with a retrospective effect, combined with their refusal to honor claims for the valid period, is arbitrary and indefensible, both in principle and law.
Respondents’ Assertions of Prior Publicity and RoSCTL Scheme - HELD THAT:- The MEIS, falling under Chapter-3 Exports from India Schemes of the FTP 2015-20, serves as an incentive, while the RoSCTL merely rebates state and central embedded taxes and levies. They operate under separate governance: DGFT for MEIS and the Ministry of Textile for RoSCTL, emphasizing their distinct purposes and mechanisms. Therefore, equating the two schemes is erroneous. RoSCTL, in its very nature, cannot compensate for claims associated with exports executed or committed before the release of the impugned notification, for which the Petitioner was rightfully eligible. The claims under each scheme are distinct, separate, and cannot be juxtaposed or adjusted against one another.
Notably, given that the entire MEIS scheme faced scrutiny at the WTO - singling out FIBCs from export incentives retrospectively, while retaining benefits for other products, especially those under Chapters 61 to 63, exhibits arbitrariness and discrimination. In our considered opinion, no valid justification has been brought forth, for such selective retrospective withdrawal of benefits. Such an action arguably violates Article 14 of the Constitution of India. Therefore, selectively withdrawing the scheme with retrospective effect for specific categories not only appears arbitrary but also compounds the deprivation felt by the FIBC sector, which was already excluded from the RoSCTL benefit.
Blocking of DGFT’s Portal for Submission of Claims - HELD THAT:- For exports having already been carried out for the period from 07th March, 2019 till the date of the impugned notification was notified – exporters would have already factored in and priced exports in line with MEIS benefits. Now, given that it is held that impugned notification could not have been given effect retrospectively, it follows that the benefit should be disbursed to all bona fide applicants, who have applied in terms of the orders of this Court – subject to fulfilment of other applicable conditions.
The Petitioner has restricted the reliefs to seeking the prospective application of the impugned notification and the processing of claims submitted for MEIS benefits. Considering the same, the following directions are issued:
(i) The impugned notification dated 29th January, 2020, insofar as it withdraws the MEIS benefit on FIBC bags classified under HS-ITC 6305 3200, shall apply prospectively.
(ii) Respondents shall forthwith process the applications for the MEIS benefit on FIBC bags classified under HS-ITC 63053200, submitted in terms of the interim order of this Court dated 22nd February, 2022 – in respect of the exports made during the period from 07th March, 2019 till the date of the issuance of the impugned notification.
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2023 (11) TMI 382
Refund of SAD - time limitation - relevant time - rejection on the ground of limitation i.e beyond 1 year from the date of payment of customs duty - whether the 1 year limitation should apply for granting the refund of 4 % SAD from the date of payment of customs duty or from the date of sale of goods and payment of VAT?
HELD THAT:- In order to grant the refund of 4 % SAD an assessee is required to submit the sales invoices and proof of payment of VAT/ Sales Tax. In this position, if the goods is not sold then the assessee cannot filed a refund claim, and even, if it is filed as a precautionary measure the department will not entertain such refund claim, for the reason that there will be neither sale invoice nor payment of VAT. Considering this position the Delhi High Court in the case of SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT], held that the period of limitation of 1 year from the date of payment of duty shall not apply, whereas 1 year shall apply from the date of sale of the goods.
The appellant’s refund claim is not time barred as the same was filed while within 1 year from the date of sale of the goods.
The impugned order set aside - appeal allowed.
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2023 (11) TMI 381
Condonation of delay in filing the Cross Objections - rejection on the ground that the application not filed in the manner prescribed by the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - HELD THAT:- It is seen from a perusal of section 129A(4) of the Customs Act, that it is only on receipt of notice that the party against whom the appeal has been preferred, may file within 45 days of the receipt of the notice, a Memorandum of Cross Objections - In the present case, the notice dated 26.02.2020 was sent to the respondent by the Registry of the Tribunal by registered post with acknowledgment due on 03.03.2020. The office has also reported that the said letter dated 28.02.2020 with copy of appeal was also served in the office of the Chief Commissioner (Authorised Representative) on 03.03.2020.
Section 153(1) of the Customs Act provides that a notice may be served by giving or tendering it directly or on the authorised representative of the addressee, or by sending it by registered post with acknowledgment due to the person to whom it is issued. When such a notice is tendered, it shall be deemed to have been served on the date on which it is tendered and when such a notice is sent by registered post with acknowledgement due, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved - In the present case, the copy of the appeal was tendered in the office of the Chief Commissioner (Authorised Representatives) on 03.03.2020 and the letter addressed to the respondent sent by the Registry of the Tribunal by Registered Post with acknowledgement due was despatched on 03.03.2020. All that has been stated in the application filed to condone the delay is that the copy of the appeal was not available in the file of the department and the appeal was received only on receipt of the letter dated 21.07.2022 sent by the Additional Commissioner (Authorised Representative).
The department has, therefore, failed to furnish any satisfactory explanation for condoning the enormous delay in filing the Cross Objections - The Delay Condonation Application, therefore, deserves to be rejected and is rejected.
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2023 (11) TMI 380
Condonation of delay in filing the Cross Objections - rejection on the ground that the application not filed in the manner prescribed by the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - HELD THAT:- It is seen from a perusal of section 129A(4) of the Customs Act, that it is only on receipt of notice that the party against whom the appeal has been preferred, may file within 45 days of the receipt of the notice, a Memorandum of Cross Objections - In the present case, the notice dated 24.01.2020 was sent to the respondent by the Registry of the Tribunal by registered post with acknowledgment due on 30.01.2020. The office has also reported that the said letter dated 24.01.2020 with copy of appeal was also served in the office of the Chief Commissioner (Authorised Representative) on 28.01.2020.
Section 153(1) of the Customs Act provides that a notice may be served by giving or tendering it directly or on the authorised representative of the addressee, or by sending it by registered post with acknowledgment due to the person to whom it is issued. When such a notice is tendered, it shall be deemed to have been served on the date on which it is tendered and when such a notice is sent by registered post with acknowledgement due, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved - In the present case, the copy of the appeal was tendered in the office of the Chief Commissioner (Authorised Representatives) on 28.01.2020 and the letter addressed to the respondent sent by the Registry of the Tribunal by Registered Post with acknowledgement due was despatched on 30.01.2020. All that has been stated in the application filed to condone the delay is that the copy of the appeal was not available in the file of the department and the appeal was received only on receipt of the letter dated 21.07.2022 sent by the Additional Commissioner (Authorised Representative).
The department has, therefore, failed to furnish any satisfactory explanation for condoning the enormous delay in filing the Cross Objections - The Delay Condonation Application, therefore, deserves to be rejected and is rejected.
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2023 (11) TMI 379
Valuation of imported goods - inclusion of demurrage charge in the assessable value of the immovable goods - HELD THAT:- The issue has been decided by the Hon’ble Orissa High Court in the case of TATA Steel Ltd. [2019 (10) TMI 226 - ORISSA HIGH COURT] wherein the Hon’ble court held that it was beyond the legislative power to include it in the Rules is accepted and thus the explanation to sub-rule-(2) of Rule 10 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 is held to be bad and hence declared ultra vires the Constitution/provision of Section 14 of the Customs Act, 1962, and hence the same is struck down.
Thus, the demurrage charges is not includable in the custom valuation of imported goods for the purpose of charging custom duty - the impugned order is set aside - appeal allowed.
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2023 (11) TMI 378
Revocation of Customs Broker license - forfeiture of security deposit - levy of penalty - Import of ‘hearing aids' by over valuation of imported goods for the purpose of money laundering - violation of Regulations 10(d), 10(e) and 10(n) of CBLR, 2018.
Violation of Regulation 10(d) ibid - HELD THAT:- The appellants have duly filed the bill of entry as per the documents given by the importer and they were not aware of the mis-declaration of value of the goods. As there is no specific brand name of the imported goods, nothing was mentioned and it could not be said that ‘unbranded’ needs to be mentioned. In the instant case the mis-declaration was found by the department after physical examination and market inquiry of the goods, and hence the appellants CB cannot be found fault that he did not advise his client to comply with the provisions of the Act - mis-declaration was not known to the appellants CB, and when they had specifically sought for examination of the goods under First Check basis, the non-compliance by the importer of declaring the correct value of the goods, could not have been brought to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs by the appellants, as the Appraising group itself got a reasonable belief of incorrect value only after examination of goods and perusal of samples - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable.
Violation of provision of Regulation 10(e) ibid - HELD THAT:- The appellants CB has declared the value of imported goods as given in the commercial invoice, 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 that importer. In the present case, it is not in dispute that there was any such mis-declaration in the declaration form or in the value particulars declared in the bill of entry as compared to the commercial invoice - There are no evidence or fact indicating that there was a mis-declaration of value and the value was re-determined as per the above legal provisions. There is only a mention that the market inquiry was conducted by the department and it revealed that the actual value of the consignment is Rs.15,000/- as against declared value of Rs.59,79,521/- - such an allegation at the show cause notice stage and later at the findings stage in the impugned order requires factual details or evidence to state that there was mis-declaration and the same is attributable to the appellants CB, in order to invoke the violation of due-diligence having not been undertaken by the appellants - there exists no such evidence and on the contrary the declaration made in the bill of entry corresponds to the value declared in the commercial invoice. Thus, the conclusion arrived by the Principal Commissioner of Customs (General) in the impugned order that the appellants have violated Regulation 10(e) ibid is not sustainable.
Violation of Regulation 10(n) of CBLR, 2018 - HELD THAT:- 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 CBLR, 2018 by the appellants in the impugned order.
There is definitely delay in adjudication and that for the import transaction in 30.01.2018, the order of revocation of appellant’s CB license has been passed on 12.02.2021. Revenue is unable to explain why there was such a long delay in taking action against appellants, when the information about over valuation of import through SIIB investigation was received vide letter dated 22.02.2019. There are no reasons recorded in detail justifying the delay in passing the impugned order by the learned Principal Commissioner. It appears that the reasons having been not quoted and if such reasons exist, the same being not specified and not explained for undue delay cannot be accepted as reasonable grounds in terms of the test laid down by the Hon’ble High Court of Bombay.
There is no basis for sustaining the impugned order of the learned Principal Commissioner - Appeal allowed.
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2023 (11) TMI 321
Seeking provisional release of 22 KT Plain Gold Jewellery (Pendent) - country of origin of the goods - benefit of Notification dated 1st June 2011 (Notification No. 46/2011-Cus) - HELD THAT:- It is observed that the goods dealt by the very same exporter with the other importers in the country have been cleared by the Respondent-Revenue. Hence according to the Petitioner, it cannot be a case that in the face of the documents as provided the foreign exporter would indulge into any irregularity in relation to the agreement in question in regard to supply on the origin of the goods imported by the Petitioner. Thus, the contention of the Revenue is only in the context of duty i.e.; whether the Petitioner qua the goods in question would at all be entitled to claim an exemption from payment of duty.
The goods ought not to suffer any further detention and they are required to be provisionally released, on the Petitioner furnishing an appropriate bond for the differential duty, more particularly considering the letter dated 30th October 2023 as issued by Mr. Mulyadisimatupang as addressed to the Ambassador of Indian Embassy in Indonesia. Ordered accordingly.
Petition disposed off.
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2023 (11) TMI 320
Classification of imported goods - Steel Balls - to be classified under Chapter Heading 84829900 or under CTH 8714 9990? - recovery of differential duty and imposition of penalty on the company and two Directors - HELD THAT:- As per Chapter Note 6 to Chapter 84 in HSN “Heading 8482 applies, inter alia, to polished steel balls, the maximum and minimum diameters of which do not differ from the nominal diameter by more than 1 per cent, or by more than 0.05mm, whichever is less. Other steel balls are to be classified in heading 7326.” Section Note 2(a) to Section XVII says that parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective heading. A cumulative reading gives an understanding that Steel Balls if polished fall under CTH 8482 and if not polished under CTH 7326 and no way under Chapter 87 - the report given by the said Chartered Engineer mentions that 5/16” and 7/32” size is rarely used in some special hub applications in bicycles as per the information collected in the survey; sizes 5/8”, 9/16” and 18.6mm are not generally used in bicycles; if they are to be used in bicycles, they should be polished. On going through the certificate issued by the Chartered Engineer, it is found that the certificate does not specify whether the impugned Steel Balls are polished and gives an impression that the same is issued on the basis of a survey rather than on technical testing and examination.
Hon’ble Supreme Court in the case of KRISHNA STEEL INDUSTRIES VERSUS COLLECTOR OF CENTRAL EXCISE, PATNA [2004 (9) TMI 107 - SUPREME COURT] held that with the incorporation of Chapter 6, the item now has to be classified either under Chapter 84 or under Chapter 73 and that an item has to be classified in accordance with Chapter notes. Tribunal in the case of Pratap Engineering Works (supra) held that in view of Note 6 to Chapter 84, Steel Balls of sizes 3/16”, 5/32” and 1/8” with the variation, of both maximum and minimum diameter from the nominal diameter in accordance with the permissible limits, merits classification under heading CTH 8482.
Thus, the impugned goods can only be classified under CTH 8482 which is a specific heading; moreover, other Notes of Section XVI or Chapter 84 do not exclude the classification of Steel Balls under CTH 8482 - the classification of any goods should be per se as per the descriptions in the individual headings, related Section/ Chapter notes and under no circumstances on the end use of the product. The impugned order has completely ignored the submission of the appellants that the steel balls are also usable in other industries. Moreover, the Chartered Engineer, on whose certificate Revenue places reliance only makes and averment that the impugned goods are generally used by bicycle manufacturers. It is not the case of the Department that they are solely used by the bicycle manufacturers. Thus, the classification cannot be based on end use.
The appellants cannot be forced to continue the classification they adopted in the past even though it was incorrect. The appellants are free to correct the classification of the imported products. If the classification, so claimed, was wrong, it was incumbent upon the Department to rectify the same by taking legal recourse. For that reason, it cannot be held that the classification adopted by them previously is only correct.
Penalty on Directors - HELD THAT:- When the classification and duty demanded in the show-cause notice are set aside, there is no way that the penalty on the appellant’s company and their directors can survive.
The classification adopted by the appellants under CTH 8482.9900 upheld - the impugned order is not sustainable - appeal allowed.
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2023 (11) TMI 319
Revocation of appellant’s customs broker license - forfeiture of security deposit - imposition of penalty - weight of pan masala mentioned on invoice cum packing list was much higher than the actual weight thereof found during examination - an opportunity of cross-examination not provided - no finding has been given with respect to the submissions made by the appellant - violation of principles of natural justice - violation of Regulations 10(a), 10(b), 10(d) 10(e), 10(j), 10(k) and 10(q) of CBLR, 2018.
Violation of 10(a) of CBLR, 2018 - HELD THAT:- It was obligatory for the appellant to obtain an authorization even from the individuals by whom he is for the time being is employed as customs broker. Appellant has failed to produce any such authorization from exporter M/s. Batra Enterprises mentioning Shri Pran Shanker Jha, an employee of their freight forwarder (M/s. Toshnek International) to be the authorized representative not only for the exporter but also for the customs house agent. Absence of such authorization is more than sufficient to prove the violation of 10(a) of CBLR, 2018.
Violation of 10(b) of CBLR, 2018 - HELD THAT:- The transactions of business in relation to customs house is the idea behind Regulation 10(b). Transaction of business in customs station in case of exports is filing of shipping bills along with the invoice, packing list, checklist and all other requisite documents. In today’s era of virtual transactions/online processings, physical presence in customs house for transacting the business is not required. However, the intent of the provision remains the same that business has not to be transacted by an unauthorized person i.e. Shri Pran Shanker Jha that too to the notice and knowledge of the appellant. Apparently and admittedly the customs house related transaction of business has been done by an unauthorized person. The same is sufficient to confirm violation of 10(b) of CBLR, 2018.
Violation of Regulation 10(d) of CBLR, 2018 - HELD THAT:- The appellant had no means to verify item wise quantity or weight of the goods and in fact as, customs broker, he is not required to do so. With these findings, the penalty as was imposed upon the appellant under Section 114 (iii) was also set aside. Once there was no knowledge with the appellant about the alleged mis- declaration, once it was a case of clerical mistake and over sightedness while preparing invoice/packing list no question arises for informing anything to the department. Violation of 10(d) therefore is not sustainable.
Violation of Regulation 10(e) of CBLR, 2018 - HELD THAT:- The mistake has already been acknowledged by the exporter to be a clerical mistake at the end of his Accountant namely, Ms. Aakansha Mishra. The same cannot be attributed to the appellant - these submissions are insufficient to justify the two packing lists for the same shipment. Irrespective the appellant had no mens rea to support the exporter for availing inadmissible export incentive but the fact remains is that once there cannot be two different documents as that of packing list with different description of the goods, it was the incumbent duty of the customs house agent to diligently check the veracity about the same. There is nothing on record about any such exercise of due diligence by the appellant. Hence, there are no infirmity with the violation of 10(e) has been confirmed against the appellant.
Violation of Regulation 10(j), 10(k) and 10(q) of CBLR, 2018 - HELD THAT:- There is no allegation in the show cause notice that up to date records were not being maintained by the appellant - With respect to his cooperation with the customs authority, it is coming apparent that he only ensured the presence of Shri Saurabh Batra, the partner of the exporter, their employee including Ms. Aakansha Mishra and the freight forwarder i.e. Shri Pran Shanker Jha. He got his authorized representatives Shri Prasanta Kumar Samanta, the F-Card holder and Shri Om Prakash Kashyap, the G Card holder examined not once but on several occasions, Hence, violation of regulation 10(j), 10(k) and 10(q) has wrongly been confirmed.
Though the appellant is held guilty of the violations under Regulation 10(a), 10(b) and 10(e) but these are not so grave as to justify the revocation of the customs license. These violations are observed to be the consequence of negligence on part of the appellant custom broker. Depriving him of his livelihood is held to be disproportionate in the light of given findings - the violations as far as Regulation 10(d), 10(j), 10(k) and 10(q) of CBLR, 2018 are concerned are not confirmed - the ends of justice would be met if the order of forfeiting security deposit and imposing penalty is upheld and as far as the order of revocation of license is concerned, the same be set aside.
Appeal allowed in part.
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2023 (11) TMI 318
Invocation of principles of unjust enrichment - Valid sanction of refund or not - conversion of foreign going vessel to coastal run - subsequent on finalization, whatever un-utilised consumables were there, the excess amount of duty paid was refundable or otherwise - HELD THAT:- The admitted facts are that the Appellants were agents for liners, who filed refund claim under authorization given to them in respect of excess customs duty paid on bunkers and other stores in connection with conversion and reversion of vessel, as per the procedure provided in Circular No. 58/97 dated 06.11.1997 - The CBEC has prescribed a procedure for collection of duty on ship’s stores and bunker consumed during coastal run vide Circular No. 58/97 dated 06.11.1997. This special procedure, inter alia, provides that the duty on the bunkers like diesel, furnace oil, etc., may be recovered at 110% of duty leviable on the quantity estimated to be consumed during the coastal run at the time of conversion from foreign run to coastal run on provisional assessment basis.
Admittedly, the respondent agent is following the procedure prescribed for the steamer agents in terms of Board Circular dated 06.11.1997 and Board’s letter dated 24.11.2005. It is essentially meant for recovery of applicable customs duty on the quantity actually consumed during the coastal run and based on the actual consumption, the duty could turn out to be either short or excess than quantity on which duty was paid, based on estimated quantity.
The matter is no longer res integra. In the case of COMMISSIONER OF CUSTOMS, PUNE VERSUS M/S ATLANTIC SHIPPING PVT LTD [2014 (12) TMI 109 - CESTAT MUMBAI] dismissed the Appeal of Revenue.
There is no error in the impugned Order-in- Appeal, upholding the original order - appeal of Revenue dismissed.
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2023 (11) TMI 274
Maintainability of appeal - principle of low tax effect - Valuation of imported goods - white poppy seeds 99% purity - Tribunal has discarded the valuation and demand on the basis of ‘Public Ledger’ price - HELD THAT:- These Civil Appeals are dismissed on account of the principle of low tax effect.
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2023 (11) TMI 273
Seeking grant of regular bail - recovery of contraband item - Heroin - narcotic substance - proper sampling procedure or not - it was held by Delhi High Court that it is premature at this stage to say that the samples drawn are not true representative samples of the contraband seized. In the present case, at the time of examination of case property, the learned Special Judge can satisfy himself with regard to the correctness of the procedure followed.
HELD THAT:- The Special Leave Petition is dismissed.
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2023 (11) TMI 272
Maintainability of appeal - low tax effect - Classification of Acrylic fiber vis-a-vis soft waste - Order of Commissioner (appeals) confirmed by the tribunal - HELD THAT:- The appeal is dismissed on account of low tax effect.
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2023 (11) TMI 271
Provisional Attachment of bank accounts of the Petitioners - legality of letter dated 19th October 2023, in terms of Section 110(5) of the Customs Act, 1962 or not.
Petitioner submitted that the letter addressed to the bankers were not communicated to the Petitioners and furthermore the said letter cannot be termed as an order under Section 110(5) of the Customs Act, 1962.
HELD THAT:- The letter dated 19th October 2023 can be construed as an order for the purpose of Section 110(5) of the Customs Act, 1962. The total purchase is from the three parties referred to herein-above by the Petitioners aggregates to Rs. 22 crore and the duty calculated at 10% on the said amount would be Rs. 2 crore, assuming the Respondents are correct in their contentions.
At the same time, the Petitioners have attended the summons and they are cooperating with the investigation. The Respondents also need to be protected in case of any demand arising on account of the investigation. The Petitioners’ business should also not to be affected by the attachment of the bank account and at the same time, the interest of the revenue should also be protected, therefore, looking at the facts of the present case and to protect the revenue, following order can be passed to meet the ends of the justice.
The Petitioners to keep a sum of Rs. 1.50 crore as a fixed deposit and the said fixed deposit and a lien would be marked in favour of the revenue with respect to the said fixed deposit of Rs. 1.50 crore - Petitioners would execute bond to protect the revenue from liability arising out of the any order-in-original to be passed - petition disposed off.
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2023 (11) TMI 270
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - mastermind of the impugned offence of availing undue draw-back by means of fraudulent export - HELD THAT:- With the apparent and corroboratively admitted facts alongwith the absence of the proprietor of the present appellant Shri Ram Pratap, there are no reason to differ from the said findings of the original adjudicating authority that the appellant has transferred his license to Shri Souvik Guha Sarkar to transact the business in appellant’s name. The said act is highly impermissible in terms of Regulation 1(4) of CBLR, 2018. In the light of absence of appellant to bring evidence to falsify the evidence brought against him or to cross-examine the witnesses who had deposed about using his license and authority to facilitate a fraudulent export transaction, the findings arrived at by the adjudicating authority cannot be faulted.
Violation of Regulation 10 (a) of CBLR - HELD THAT:- Apparently no authorization letter in favour of the appellant from M/s. Linwood Sales could be produced on record. Hence, there are no infirmity when violation of Regulation 10 (a) of CBLR has been confirmed against the appellant.
Violation of Regulation 10 (b) of CBLR - HELD THAT:- The G card holder of the custom broker has admitted that he was signing the blank papers required to transact the business in customhouse and was handing over the same to M/s. Guha Sarkar. These observations since have not been refuted by the appellant who rather opted to remain absent are sufficient to confirm the violation of Regulation 10 (b) of CBLR of 2018 by the appellant.
Violation of Regulation 10 (d) of CBLR of 2018 - HELD THAT:- Since the custom broker is responsible for all acts and means of his employees during their employment as per Regulation 13 (12) of CBLR of 2018, it was mandatory for the appellant to advice the exporter to comply with the provisions of the Customs Act, else to have brought to the notice of the Dy. Commissioner Customs about the non-compliance. But neither the appellant nor his G card holder has ever brought the impugned fraud to the notice of the competent authorities - there are no reason to differ from the findings arrived at against the appellant.
Violation of Regulation 10 (k) and 10 (n) of CBLR of 2018 - HELD THAT:- The address as was declared as the address of Directors of M/s. Linwood Sales pvt Ltd in the IEC details was found to be the residential address of Directors/Proprietors of other Companies/ Firms. Though it was noticed that an account was opened in the name of M/s. Linwood Sales Pvt. Ltd in February, 2015 but the Directors shown were Shri Krishan Chandra Dey and Shri Dayal Singh. However, the later got substituted by Shri Pradeep Singh alias Anil Singh in August, 2017. The Articles of association of the said company were also found to be forged. No evidence could be brought on record to falsify these findings. In the circumstances, there are no reason to differ from the findings that the appellant has failed to make the appropriate enquiries of their clients prior transacting the business in customhouse station. Hence, the findings confirming the violation of Regulation 10 (k) and 10 (n) are held sustainable.
There are no reason to differ with the decision under challenge revoking the licence of the appellant which was otherwise valid up to 05.09.2023 alongwith forfeitures of the security deposit - appeal dismissed.
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2023 (11) TMI 269
Levy of penalty - Confiscation of goods - item classifiable under tariff heading 89.01 of Custom Tariff Act 1975 and where no duty is involved - other requisite permissions/approvals/intimation for post import activity were all in place - HELD THAT:- For the unintended omission on the part of the Steamer Agent, the tug Century Star-1 cannot be confiscated under Section 115(2) of the Customs Act, in as much as nothing has been brought on record to implicate the appellant or his agent or the person in-charge of any prior knowledge or connivance with regard to non-filing of the requisite documents by the steamer agent. For the reason, the confiscation of tug Century Star-1, cannot be upheld and is liable to be set aside. Moreover, there is no finding in the order under appeal, that the Captain of tug Century Star-1, or the person in-charge was associated with the alleged illegal import of cruise vessel Pandaw-IV.
Further, there is no finding recorded in the impugned order so as to implicate the tug Century Star-1 as well as M/s. Century Shipping Ltd. of any wrongdoing in law with regard to the lapse of non-filing of IGM for vessel Pandaw-IV. Moreover, there is nothing to even remotely connect them with any omission, aiding or abetting or to impute any previous knowledge on their part hence. Under the circumstances no case can be made out for imposition of penal liability under Section 112(a)/112(b) of the Customs Act on the appellants.
Given the fact, that all approvals and permission for promoting inland river tourism with the help of cruise vessel Pandaw-IV were duly applied for and obtained from all concerned government agencies, as well the Kolkata Port Trust, and presented to the authorities, to impute the charge of smuggling for non-compliance of IGM formalities, at best can be merely theoretical. It is evident that there is no mens rea or any premediated thought in non-complying with the statutory requirements, as no duty was actually payable upon import, being exempted goods. Thus, under the circumstances, imposition of penalty on any of the appellants would be unduly harsh and not in proportion to the nature of omission/offence particularly when no mens rea can be imputed on part of any of the parties concerned.
It is settled law that to subject the steamer agent to imposition of penalty, it has to be demonstrated that he was acting as the agent of the owner vehicle and unless so established no penalty can be imposed thereon.
It was well-settled that in the matter of imposition of redemption fine and/or penalty, mens rea and/or conduct and/or attendent extenuating circumstances are material and relevant. Imposition of fine, in effect, amounted to awarding a punishment to the person held liable to pay the same and a person can be held liable to punishment only if he is found to be responsible for some act of omission or commission with reference to the law and the goods in question. It was emphatically held by the Hon’ble High Court that to impose or inflict punishment on a person who is not guilty is against all canons of natural justice and fairplay - there are no merit in the order passed by the lower authority which is liable to be set aside.
Appeal allowed.
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2023 (11) TMI 268
Undervaluation - rejection of declared value on the basis of such inadmissible documents - Whether the Export Declarations received from China are genuine documents to be read into evidence? - HELD THAT:- Nothing has been produced by appellant to Show that these documents were incorrect or that the declarations made before the Chinese Authorities were different.
The mode of procuring the documents during investigation and the absence of any other Export Declarations with the appellants is therefore sufficient for us to hold that the appellant has failed to rebut the presumption of correctness attached to these documents in terms of section 139 of the Customs Act. Appellant has not produced any other cogent document to show that price as was declared to the Chinese Customs was different from the price which is mentioned in the export declaration obtained by the department from China through Consulate General of India The Export Declarations as received from China are, therefore, admissible in the evidence - there appears no doubt about the authenticity of documents as these were obtained by DRI through the Government channel and were obtained from the concerned Department of the exporting country.
Whether appellant mis-declared the goods imported under the Bills of Entry? - HELD THAT:- The appellant had admitted the presence of five different rolls of Reflecting Sheets of different series TM 18 100 to have been sent by the exporter as samples, but still had not shown the same in the Bills of entry. This admission corroborates the Department’s stand that the appellant despite having knowledge of the content of his consignment and the correct/export value of the goods in the said consignment, has failed to declare the same - vide letter dated 25.02.2010 the Chinese exporter has certified that appellant is their Customer for years for reflective sheets under “Sablite” brand. This document confirms the alleged mis-declaration as the said brand has not been declared in Bill of Entry. Though the price in said certificate is mentioned to be @ USD 0.48 per Sq. Mtr. but simultaneously the exporter has rescued itself from any responsibility due to any problem with reference to the grade ordered.
The defence taken by appellant that Chinese declarations are merely the photocopies is also not acceptable - appellant mis-declared the goods while importing them - appellant mis-declared the goods while importing them. This issue also stands decided in favour of the Revenue.
Whether in the Bills of Entry the goods were undervalued and if so, whether the re-determination of the value and demand of differential duty and the confiscation of the goods imported under the Bill of Entry dated 9.2.2010 and the redemption fine and the penalties imposed can be sustained? - HELD THAT:- If the transaction value is rejected under Rule 12, then it must be determined sequentially under Rules 4 to 9. Rule 4 provides for the valuation to be done on the basis of identical goods. Rule 5 provides for the valuation to be done on the basis of the value of similar goods. Rule 6 states if Rules 4 and 5 cannot determine the value then they must be done as per Rule 7 and thereafter Rule 8 but this sequence can be reversed at the option of the importer - Thus, if the officer has reason to doubt the truth and accuracy of the transaction value, he can call for information including documents and evidence. If the information and evidence is presented and after examining it or if no information or evidence as called for is presented, if the proper office has reasonable belief then it shall be deemed that the value cannot be determined as per Rule 3 (i.e., based on transaction value with additions, if necessary). The grounds on which the proper officer may raise doubts about the truth and accuracy of the transaction value have been illustrated in explanation 1 (iii) to Rule 12.
The Commissioner confiscated goods imported under the Bill of Entry dated 9.2.2010 which were seized and provisionally released on execution of a bond under section 111(m) but she refrained from confiscating the goods imported under the past Bills of Entry. Since the undisputed fact is that the goods imported in the Bill of Entry were not fully declared and five additional rolls were imported but not declared and also since we found that the value declared in this Bill of Entry was correctly rejected under Rules 12 and re-determined under Rule 4, we find that there was mis-declaration of the goods both in terms of value and quantity and the confiscation under section 111(m) must be upheld. The redemption fine of Rs. 5,00,000/- imposed under section 125 on the goods valued at Rs.64, 86,108/- is very fair and reasonable and calls for no interference.
The appellant had, undisputedly, mis-declared the quantity of the goods imported in the Bill of Entry dated 9.2.2010. Shri Varinder Singh admitted in his statement that he had not declared five rolls of a different type which were also imported. Further, in respect of four of the past Bills of Entry, the values declared by the exporter before the Chinese authorities was much higher than the values declared in the Bills of Entry by the appellant - the appellant was liable to penalty under section 114AA and the penalty of Rs. 10,00,000/- was just and fair in the factual matrix of this case.
The findings of the adjudicating authority below agreed upon - appeal dismissed.
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2023 (11) TMI 227
Conversion from EOU to EPCG - Quantification of duty - department has not provided the details of computation of the demand of duty, therefore, the appellant is unable to make their defense submission - HELD THAT:- It is found that the individual duty demand from serial No. 1 to 16 is not supported by the documents it is necessary to arrive at the conclusion that whether the quantification of demand is correct and whether such duty is payable by the appellant.
The matter needs to be reconsidered by the adjudicating authority by providing the necessary documents whereby the correct quantification of duty, if any can be ascertained. Accordingly, the impugned order set aside and the appeal allowed by way of remand to the adjudicating authority for passing a fresh order.
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