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Customs - Case Laws
Showing 321 to 340 of 1607 Records
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2023 (10) TMI 1400
Valuation of imported goods - Christmas light - enhancement of value - adoption of NIDB data to enhance the value - HELD THAT:- The Department has not made any attempt to follow the procedure given under the Valuation (Determination of Value of Importers Goods) Rules 2007 and has simply adopted the NIDB data and selectively enhanced value. The Commissioner (Appeals), has given a detailed finding along with reasons while setting aside the Order-in-Original. There are no reason to interfere with the same.
Appeal of Revenue dismissed.
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2023 (10) TMI 1381
Classification of goods intended to be imported - Clear Float Glass - classifiable under Customs Tariff Item 7005 2990 of the First Schedule to the Customs Tariff Act, 1975 or not - HELD THAT:- All glass manufactured under the float process (clear, coated or tinted) invariably would contain a layer of tin on one side, which does not mean that the float glass is to be classified under 7005 10. Any float glass said to have an absorbent layer will invariably be coated with a microscopically thin coating of metal or metal oxide, provided the coating is done on-line i.e. during the process of manufacturing of float glass, and before the process of annealing, so that the glass isn't regarded as worked. If otherwise, the float glass has to be regarded as one having no absorbent layer.
The float glass has not been undergone any coating process (coating as absorbent, reflecting or non-reflecting layer) and cannot be classified under the Tariff Sub Heading 7005 10. The occurrence of tin layer on one side of the float glass does not make the glass have an absorbent, reflecting or non-reflecting layer. Further, as it is also not coloured throughout the mass (body tinted), opacified, flashed or merely surface ground, the item would not be covered under the Sub heading 7005 21. Hence, the appropriate classification for "clear float glass" would be under the tariff sub heading 7005 29 as "Others". At the 8 digit level, if the item is 'tinted', it would be classifiable under the CTI 7005 2910 and if the item is 'non-tinted' it would be classifiable under CTI 7005 2990 of the Custom Tariff Act, 1975.
The goods in question i.e. the clear float glass don't merit classification under CTI 7005 1090 as claimed by the applicant, instead they merit classification under CTH 7005 and more specifically under CTI 7005 2990 of the first schedule to the Customs Tariff Act, 1975 and accordingly, the benefit of exemption from duty under notification no. 46/2011- Customs dated 01.06.2011 Serial No. 934 which provides exemption to goods classifiable under 70010020 to 70051090 cannot be extended to the subject goods.
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2023 (10) TMI 1352
Jurisdiction - power to issue SCN - HELD THAT:- The first order passed on the proceedings of IDEA CELLULLAR LTD., INGRAM MICRO INDIA PVT. LTD. GE T AND D INDIA LTD., S. KUSHALCHAND AND COMPANY, GLOBAL EXIM, JINESH T. VIKAM, CHANDRESH G. PATEL, VIJAY G. PATEL VERSUS THE UNION OF INDIA, ADDITIONAL DIRECTOR GENERAL, ADDITIONAL DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE MUMBAI ZONAL UNIT AND ORS. [2023 (6) TMI 1302 - BOMBAY HIGH COURT], whereby this Court has noted that there is a Review Petition arising out of the decision of the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT], which is pending before the Supreme Court. Also subsequent the amendment which was brought about by Finance Act 2022, was subject matter of challenge before the Supreme Court in the proceedings of Writ Petitions which are also pending.
As and by way of ad-interim relief, the impugned order is stated, however with liberty to the respondents to make an application for vacating of the said order in the event the respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of Canon India Pvt. Ltd.
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2023 (10) TMI 1308
Undervaluation of goods - whether the allegation of undervaluation against the respondents is substantiated by the evidence that has been put forth by the investigation? - it was held by CESTAT that Antecedents cannot be an evidence for the alleged undervaluation of the goods. At best antecedents may be a reason for creating a suspicion and be a reason for causing an enquiry or Investigation. Mere propensity of the respondent is not enough proof of undervaluation.
HELD THAT:- This Court is of the opinion that the impugned order(s) does not call for interference. The Civil appeal is accordingly dismissed.
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2023 (10) TMI 1307
Valuation of imported consignments - Linen Yarn, Ramie Yarn and other misc. items from various overseas suppliers, based in China - rejection of declared value - redetermination of the rejected value - retraction of relied statements - Section 28 of Customs Act,1962 - it was held by CESTAT that it is evident that none of the evidences relied upon by the department, to allege the under valuation resorted to by the appellants, stand the scrutiny of Law.
HELD THAT:- There are no merit in these appeals and the same accordingly stand dismissed.
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2023 (10) TMI 1306
Classification of goods intended to be imported - Compounded Rubber - to be classified under CTH 4005 1000 or not - HELD THAT:- In view of scope of tariff headings under CTH 4005 of the first schedule to the Customs Tariff Act, 1975 Compounded rubber formulation 2 (without Carbon Black but with less than 5 parts of SBR -Styrene butadiene rubber) and Compounded rubber formulation 3 (without Carbon Black but with less than 5 parts of clay) merit classification under CTH 4005 99 90: Compounded rubber, unvulcanised, in primary forms or in plates, sheets or strip - 'Other' and are not eligible for duty exemption benefit under serial number 503 of the notification 46/2011-Cus. dated 1-6-2011 amended from time to time. However, they are eligible for partial duty exemption benefit under serial number 504 of the notification 46/2011-Cus. dated 1-6-2011 amended from time to time subject to the fulfilment of conditions of the said notification.
It is to mention that the presence of zinc oxide and stearic acid in this formulation requires sample testing post-importation from the point of view of checking whether this formulation is still in a unvulcanized state or not. Applicant has categorically submitted that the presence of zinc oxide and stearic acid in this formulation is not as an active agent or vulcanizing agent. Claim of applicant is required to be objectively proved by way of an outcome of the chemical test conducted at the time of importation. This aspect of product testing is a part of Customs Compliance Verification (CCV) process after importation of goods - the utility of the claim of applicant that the presence of zinc oxide and Stearic acid in this formulation is not as an active agent or vulcanizing agent is limited only to support applicant's contention, during advance ruling process, that the goods will not be in a vulcanized state.
It is thus concluded that:
a. Compounded rubber formulation 1 (with less than 5 parts of Carbon Black) mentioned in para 5.1 merits classification under CTH 4005 1000 Compounded rubber, unvulcanised, in primary forms or in plates, sheets or strip - compounded with carbon black or silica and is eligible for duty exemption benefit under serial number 503 of the notification 46/2011- Cus. dated 1-6-2011 amended from time to time subject to the fulfilment of conditions of the said notification as well as notification 189/2009-Cus. (N.T.) dated 31-12-2009 amended from time to time,
b. Compounded rubber formulation 2 (without Carbon Black but with less than 5 parts of SBR -Styrene butadiene rubber) mentioned in para 5.1 merits classification under CTH 4005 99 90 Compounded rubber, unvulcanised, in primary forms or in plates, sheets or strip -Other and is eligible for duty exemption benefit under serial number 504 of the notification 46/2011-Cus. dated 1-6-2011 amended from time to time subject to the fulfilment of conditions of the said notification as well as notification 189/2009-Cus. (N.T.) dated 31-12-2009 amended from time to time.
c. Compounded rubber formulation 3 (without Carbon Black but with less than 5 parts of clay) mentioned in para 5.1 merits classification under CTH 4005 99 90 Compounded rubber, unvulcanised, in primary forms or in plates, sheets or strip -Other and is eligible for duty exemption benefit under serial number 504 of the notification 46/2011 -Cus. dated 1-6-2011 amended from time to time subject to the fulfilment of conditions of the said notification as well as notification 189/2009-Cus. (N.T.) dated 31-12-2009 amended from time to time.
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2023 (10) TMI 1261
Suspension of Customs Broker License - handling large number of containers which would be arriving at the port everyday.
The petitioner contended that around more than 360 employees are employed by the petitioner for carrying out its cargo handling services and therefore, a serious prejudice would be caused if the impugned order to the extent it suspends the licence of the petitioner is allowed to operate.
HELD THAT:- Having perused the record it would be appropriate for the petitioner to avail the remedy of an appeal, so that the rival contentions of the parties on the aspects of facts and law can be adjudicated before the Tribunal.
Since the petitioner is a running concern employing more than 350 employees and handling large number of consignments day-in day-out, if the suspension order is not stayed certainly a prejudice would be caused to the petitioner who is dealing with the cargo belonging to third parties, further the petitioner has also more than 360 employees.
Petitioner is permitted to approach the Tribunal in an Appeal to assail the order dated 20 October 2023 passed by the Commissioner of Customs. Let the Appeal be filed along with the stay application within a period of two weeks from the date of uploading the present order - Petition disposed off.
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2023 (10) TMI 1260
Classification of imported goods - Quicklime - to be classifiable under Customs Tariff Item 2522 10 00 as claimed by the appellants; or, is it classifiable under Customs Tariff Item 2825 90 90 as contended by the Department? - HELD THAT:- From careful examination of the tariff entries of chapter heading 2522 & 2825, it reveals that it is not the case that the goods covered under CTH 2522 and CTH 2825 represent contending classification for applying GIR 3 as made out by Revenue. This is for the reason that quick lime cannot be referred to as containing wholly or partly of goods of CTH 2522 and CTH 2825. There is clear exclusion of calcium oxide and hydroxide of CTH 2825 from the scope of CTH 2522, and only separate chemical elements or separate chemically defined compounds are covered under the scope of CTH 2825.
n the present case, the facts reveal that the imported goods are quicklime. There is no case of mixture of different material or substance to merit application of GIR 2 or 3. Thus, the Revenue’s argument for classification of quick lime under heading 2825 as it occurs last among other classification under heading 2522 is not legally sustainable - there is no case for application of Rule 3 of GIR in this case. In view of the above, the imported goods are appropriately classifiable under CTH 2522 10 00.
From the above HSN explanatory notes it could be concluded that ‘lime stone’ being a mineral product is calcined to produce ‘quicklime’. Further, when lime stone is subjected to the process of low temperature of calcination then ‘hydraulic lime’ is produced. These two products would remain classifiable under Chapter heading 2522. However, when the lime stone is subjected to high temperature calcination ranging as high as 1340°C, dissociation of limestone happens i.e., a general chemical process in which molecules (or ionic compounds such as salts, or complexes) gets separated or split into other things such as atoms, ions, or radicals, usually in a reversible manner. In simple words, it can be said that the mineral product ‘quicklime’ when subjected to high temperature calcination becomes ‘calcium oxide’ by eliminating carbon-dioxide (CO2) and such calcium oxide is not covered under Chapter 25, as these are chemical products classifiable under heading 2825.
From the test reports of samples of imported goods, which are relied upon documents in the adjudication proceedings, we find that the chemical test conducted by the Central Revenue Control Laboratory (CRCL), Jawaharlal Nehru Custom House, on the samples of imported goods and its report dated 18.04.2018 indicate that the description of the goods as ‘white lumps of irregular shapes & sizes along with waste powder - in terms of the HSN explanatory notes, both on account of presence of specified material making it not in pure state and the composition of calcium oxide not upto the requisite 98% making it not a product of high degree, would not enable the imported goods to be classified under sub-heading 2825.
The imported goods ‘quicklime’ would be appropriately classifiable under Customs Tariff Item 2522 10 00 and not as ‘other’ under the Customs Tariff Item 2825 90 90, as claimed by Revenue - the impugned order passed by the learned Commissioner (Appeals) dated 05.04.2021 cannot stand for judicial scrutiny by confirming the classification under the Customs Tariff Item 2825 90 90 in respect of the impugned goods and thus, the same is liable to be set aside.
The confirmation of demands and penalties imposed on the appellants in the impugned orders are set aside - Appeal allowed in favour of appellant.
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2023 (10) TMI 1224
Validity of SCN - authority issuing the show-cause notice not being the competent authority - authorities have not taken into consideration the response and explanation given to the department at the time of the pre-notice consultation - SCN does not deal with the submission of the petitioner made in their explanation to the pre-notice consultation - laboratories have given a report that the product being unfit for human consumption.
HELD THAT:- On going through the contents of the impugned show-cause notice there were certain serious allegations levelled against the petitioner, firstly, so far as selling the product in the open market loosely and which presumably was for human consumption; secondly, the sale being not made to any of the agencies dealing with animal feeds; thirdly, the petitioner violating the declaration that he had given in the course of the import being made; fourthly, there being no sufficient documents / invoices or details of the sale made by the petitioner in respect of the entire consignment imported by them.
Reliance placed in the decision of the Hon’ble Apex Court in MALLADI DRUGS & PHARMA. LTD. VERSUS UNION OF INDIA [2004 (3) TMI 67 - SC ORDER], wherein the Hon’ble Apex Court held Neither party knows whether the Department has proceeded further and / or whether any order has been passed pursuant to the show-cause notice. Even otherwise, in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. We see no reason to interfere. The appeals stand dismissed.
Taking into consideration the gravity of the contents of the show-cause notice, the writ petitions not entertained at this juncture - petition dismissed.
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2023 (10) TMI 1223
Levy and collection of Social Welfare Surcharge (SWS) computed @10% on the notional BCD in cash - Challenge to assessment of SWS in each of the BOEs - HELD THAT:- Since both EC and SWS are in the nature of surcharge and the provisions pertaining to their quantification as contained in Section 94(1) of the Finance (No. 2) Act, 2004 and Section 110(3) of the Finance Act, 2018 are pari materia, the jurisprudence as regards non applicability/non levy of Education Cess in respect of goods imported against the DEPB and/or Target Plus Scheme should equally apply in the context of SWS in respect of goods imported against the MEIS/SEIS Schemes.
The circular dated 10.1.2020 which takes the same view for SWS as was canvassed in Circular dt. 31.01.2005 for Education Cess cannot be given primacy over the later circular dt. 01.02.2022.
Hon’ble Supreme Court in M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT] was concerned with the interpretation of an exemption notification no. 71/2003-CE dt. 9.9.2003 granting area based exemption to units located in the north east. Under Notification No. 71/2003-CE, units in the north east were entitled to refund of specified duties paid on value addition and the question before the Hon’ble Court was whether EC, SHEC, NCCD imposed by the Finance Act 2001, 2004 and 2007 which were not specifically exempted under Notification No. 71/2003 shall also come within the scope of the said exemption for the purposes of refund - The Hon’ble Supreme Court denied refund of the un-specified duties under Notification No. 71/2003-CE as would be evident from para 40 of the said order as the exemption was categorical in its scope. Further, since refund of specified duties under Notification No. 71/2003-CE was only possible post collection, the question of non leviability of Education Cess under Section 94 of the Finance (No. 2) Act 2004 for want of collection of the underlying duty was not germane to the issue before the Hon’ble Supreme Court and was therefore not gone into.
The assessments in each of the impugned BOE’s covered by the impugned orders are modified in so far as imposition of SWS is concerned and the appeals are allowed with consequential relief.
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2023 (10) TMI 1179
Payment of penalty as a condition to re-export can be imposed or not - Seeking permission to re-export the goods - Mis-declaration of quantity of goods - import of Shikakai and Areca nut - 9845 kgs of Areca nuts were in excess and 9920 Kgs of Shikakai were in short supply in terms of quantity declared in the bill of entry - HELD THAT:- Penalty imposed by the respondent authorities is for violation of the provisions of the Act, 1962 which has nothing to do with the redemption of the goods which are permitted to be re-exported on payment of fine though the same is also subject matter of the appeal. In such circumstances, the respondent authorities ought to have permitted the petitioner to re-export the goods without insisting upon the payment of penalty imposed by the said order as the same is subject matter of appeal before the Appellate Authority.
The paragraph No. 17.4 with regard to making it mandatory for the petitioner to pay the penalty as a condition precedent for re-export the goods is without any basis and the same is required to be modified. Therefore, the paragraph No. 17.4 of the impugned order would now read as that “the petitioner is permitted to re-export the goods on payment of redemption fine only.”
The respondent authorities are directed to permit the petitioner to re-export the goods without insisting upon the payment of penalty imposed by the respondent authority in the order permitting re-export of goods on payment of redemption fine of Rs. 5,00,000/- only - Petition allowed in part.
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2023 (10) TMI 1178
Levy of penalty u/s 112 & 114 of the Customs Act, 1962 - abating the importer to import goods illegally by resorting to undervaluation - Proxy importer or not - HELD THAT:- The investigation was conducted alleging illegality by way of undervaluation of the goods. During investigation statements were recorded and during the pendency of the investigation, the importer approached the Hon’ble High Court of Kerala and as directed by the Hon’ble High Court, goods were released to importer. The Adjudication Authority has concluded the findings against the appellant on the ground that documents pertaining to the import was handed over to clearing agent by the appellant. However, there is no admissible evidence forthcoming in the impugned order that appellants had resorted to undervaluation of goods. Moreover as per the order issued by Adjudicating Authority, goods were released to the Proprietor of the importer M/s Pushpa Telecom. Once the importer itself appears before the Hon’ble High Court by filing an affidavit and when the Hon’ble High Court find the proprietor of the firm M/s Pushpa Telecom Shri R. Mohandas Rangasamy as bona fide importer to order release of goods, there is no reason to consider him as proxy importer as held by the adjudication authority.
In present import, there is no evidence to allege that appellants were actively involved in illegal import of goods by communicating with overseas agencies or by transferring any amount though illegal channel. Merely if the documents pertaining to the import is handed over through the appellants to clearing agent, no conclusion can be drawn that appellants are involved in illegal import.
Appeal allowed.
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2023 (10) TMI 1177
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - Failure to bring the rejection report of FSSAI to the knowledge of Customs authorities - non conduct of due diligence and advise the importer properly - Withholding of information or not - delay or inefficiency or non-cooperation to join the investigation by the appellants or not - contravention of Regulations 10(d), (e), (f), (m) and (q) of the CBLR, 2018 - HELD THAT:- There is definitely delay in adjudication and that for the import transaction in September 2019, the order of revocation of appellant’s customs broker license has been passed on 04.05.2023. Revenue is unable to explain why there was such a long delay in taking action against appellants, when the information about confirmation of penalties for improper import through SIIB investigation was received vide Order dated 31.03.2022. There is no mention of when the offence report was received from Kolkata Customs though it is shown that based on adjudication order of SIIB investigation, prohibition order of Commissioner of Customs, Kolkata, the Mumbai Customs authorities have initiated action under CBLR, 2018. 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.
On the basis of various decisions taken by the coordinate benches of the Tribunal and higher judicial forums on the adherence to time limits prescribed under CBLR, 2018, and for the opportunity to be given for cross examination of witness whose statements were relied upon for action to be taken under CBLR, it is found that there is no basis for sustaining the impugned order of the learned Principal Commissioner.
Failure to bring the rejection report of FSSAI to the knowledge of Customs authorities - non conduct of due diligence and advise the importer properly - violation of Regulation 10(d) and 10(e) of the Rules - HELD THAT:- The records of the case indicate that the Non-compliance certificate/rejection report which was supposed to have generated on 17.03.2020, was communicated to the importer and the appellants by FSSAI vide their letter dated 14.01.2021 only on 14.01.2021 as attachment to the mail. The two e-mail dated 01.01.2021 and 14.01.2021 originating from Deputy Director (Eastern Region) of the FSSAI addressed to appellants and importer have been issued beyond the date of clearance of imported goods by Customs on 20.03.2020, and thus the appellants could not have either advised the importer or brought this to the knowledge of Customs - Further, when the CBEC circular and FSSAI guidelines specifically provide that the Customs authorities should check on the issue of NOC before clearance of imported goods, the responsibility for exercise of due diligence or bringing this to the knowledge of Customs does not lie on the part of the appellants and for the same, responsibility cannot be fastened on the appellants - there is no evidence to indicate any violation of Regulations 10(d) or 10(e) ibid, by the appellants.
Withholding of information or not - delay or inefficiency or non-cooperation to join the investigation by the appellants or not - violation of Regulation 10(f), 10(m) and 10(q) ibid - HELD THAT:- There is no factual evidence to show that the appellants had withheld any information, or was there any delay or inefficiency or non-cooperation to join the investigation by the appellants. The factual records indicate that the appellants were not aware of the non-conformity certificate issued to the importer and they were informed by the importer about the NOC having been issued based on the follow-up visit of the importer to the office of FSSAI. There is no evidence to show any inefficiency or undue delay on the part of appellants in clearance of the imported goods. In fact, the B/E was filed on 25.09.2019 and it is due to inaction on the part of the Customs, the entire clearance of goods was delayed - the show cause proceedings have not duly observed the principles of natural justice in giving reasonable opportunity to the appellants to properly place their case before the appropriate authorities. Thus, there is no evidence to indicate any violation of Regulations 10(f), 10(m) or 10(q) ibid, by the appellants.
It is factually incorrect to state that the appellants had colluded with the importer in clearance of imported goods contrary to the FSSAI rejection certificate. Thus, it is found that the conclusions arrived at by the Principal Commissioner in the impugned order is contrary to the factual position and thus it is not legally sustainable.
There are no merits in the impugned order passed by the learned Principal Commissioner of Customs (General), Mumbai in revoking the license of the appellants, as well as in imposition of penalty against them and for forfeiture of security deposit - appeal allowed.
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2023 (10) TMI 1176
Refund claim - fulfilment of the condition of filing Appeals against the self-assessed Bills of Entry as a pre-requisite to entertain the refund claim or not - classification of goods Pisum Sativum [Peas] - to be classified under Sl No.20 or under Sl No.20A during the period under dispute? - interpretation of Notification No.50/2017 Cus dated30.6.2017, as amended by Notification Nos.84/2017 Cus dated 8.11.2017, 93/2017 Cus dated 21.12.2017 and 29/2018 Cus dated1.3.2018.
Whether the present case calls for fulfilment of the condition of filing Appeals against the self-assessed Bills of Entry as a pre-requisite to entertain the refund claim as per the judgement in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] by the Hon’ble Supreme Court being relied on heavily by the Revenue? - HELD THAT:- The AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT] decision pertains to pre-amendment provisions and has been held as not correct by the Apex Court in the ITC case. The Micromax decisions of 2016 and 2019 MICROMAX INFORMATICS LIMITED VERSUS UNION OF INDIA & OTHERS [2016 (3) TMI 431 - DELHI HIGH COURT] and MICROMAX INFORMATICS LIMITED VERSUS THE UNION OF INDIA AND ORS. [2018 (12) TMI 802 - BOMBAY HIGH COURT] respectively considered the amended provisions of Section 27 to arrive at the decisions. During the period under dispute the importers were without doubt covered by these decisions since the ITC judgement was rendered by the Supreme Court subsequently.
In these decisions, it was held in respect of self-assessed Bills of Entry, the importers were not even required to file any application for re-assessment as was being directed vide the Board Circular 24/2004 Cus dated 18.3.2004. These decisions had effectively overruled the Board Circulars - In the present case, by documentary evidence the importers have proved that they have made the efforts to get the self-assessed Bills of Entry re-assessed as per the factual matrix.
Whether the re-assessment request under Section 149 would meet the requirement of filing of Appeal, because the Hon’ble Supreme Court in the ITC case has held that before the refund claim is entertained, Appeal has to be filed against the self-assessed Bills of Entry? - HELD THAT:- From a careful analysis of section 149, it is found that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption - In the instant case, petitioner has not sought for any refund on the basis of the self-assessment. It has sought re-assessment upon amendment of the Bills of Entry by correcting the customs tariff head of the goods which would then facilitate the petitioner to seek a claim for refund.
Madras High Court in M/S. HEWLETT PACKARD ENTERPRISE INDIA PRIVATE LIMITED VERSUS JOINT COMMISSIONER OF CUSTOMS, DEPUTY COMMISSIONER OF CUSTOMS, THE PRINCIPAL COMMISSIONER OF CUSTOMS, UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2020 (10) TMI 970 - MADRAS HIGH COURT] correctly held that in a case of correction of inadvertent error, the appropriate remedy would be seeking an amendment to the Bills of Entry and not fling of appeal because there is no legal flaw in the order of self-assessment amenable to appeal but only a factual mistake which can be rectified by way of amendment or correction. Such correction or amendment has been sought for by the petitioner on the basis of documents which were already in existence at the time of release of the goods for home consumption.
This judgement after considering the Supreme Court’s decision of ITC with detailed analysis, clearly holds that the self-assessed Bills of Entry can be entertained for re-assessment under Section 149. It holds that there is no specific requirement for an Appeal under Section 128 and relies on the decision of ITC. Against this decision of Bombay High Court, the Revenue filed SLP, which has been dismissed by the Supreme Court as reported in COMMISSIONER VERSUS DIMENSION DATA INDIA PRIVATE LTD. [2022 (2) TMI 750 - SC ORDER].
Whether during the period under review the goods in question, Pisum Sativum [Peas] falling under Customs Tariff Heading 0713 10 00, are required to be assessed @ NIL rate of BCD in terms of Sl No.20 as claimed by the importers [two appellants and five respondents] or the goods are required to be assessed @50% rate of BCD in terms of Sl No.20A, as claimed by the Revenue? - HELD THAT:- During the period under dispute, in view of the amendment carried out under Notification No.29/2018 dated 1.3.2018, it is amply clear that the product under dispute fell both under for Sl No.20 and Sl No.20A during the period under question. If it were not to be so, there are no reason for the Revenue to bring in the amendment by way of this Notification No.29/2018 Cus dated 1.3.2018 at all.
This is rather a case of ambiguity in the Taxation liability and not a case of ambiguity on account of exemption granted. The Revenue cannot deny that during this period, any importer could have insisted on getting the NIL rate of BCD benefit by citing the co-existence of Sl No.20 and Sl No.20A for the brief period. The very fact that the Sl No.20 was further modified on 1.3.2018 to include Pisum Sativum in the exclusion list, it would clarify that this product was very much part of both Sl No.20 and Sl No.20A.
If there is a scope to hold that the product may fall both under Sl No.20 as well as under Sl No.20A during the period under dispute. If so, as to whether the beneficial rate of BCD can be claimed by the importers or the same is not to be extended to them in terms of the Hon’ble Supreme Court’s judgement in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT] as is being canvassed by the Revenue? - HELD THAT:- During the period in question the Notification itself specifies two Effective Rates of 50% and NIL rate. This has resulted in ambiguity about as to whether the Taxing provision in this case is NIL or 50% BCD. As a matter of fact,the importers are not availing any exemption, but taking recourse to lesser Tax liability as per the Effective Rates specified in the Notification, which is beneficial to them, for which they are eligible to do so. The case law of Dilip Kumar, in fact helps the importer rather than the Revenue.
The arguments of the Revenue cannot be agreed upon that the case law of Dilip Kumar would be of any help to them so as to overcome the dual rates of BCD specified during the period in question. The Notification No.50/2017 Cus dated 30.6.2017, being an Effective Rates Notification in respect of the goods in question, Pisum Sativum, rather helps the importer’s case.
Appeals of Revenue dismissed.
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2023 (10) TMI 1174
Rectification of mistake - Error apparent on the face of record - appeal is dismissed under litigation policy - HELD THAT:- It is found that the appeal filed by the appellant before this tribunal in case of seizure/confiscation of gold biscuits to be maintainable before this Tribunal. Accordingly the same is dismissed as non maintainable.
Same should have been the fate of the appeal filed by the Revenue which has been against the same order of Commissioner (Appeals). The appeal of the revenue was also filed before the wrong forum and could have been dismissed as not maintainable. However the bench dismissed the appeal on the ground that the amount involved in appeal is less than the threshold limit provided for by the litigation policy circular issued by the revenue. Against the order dismissing the appeal filed by revenue for the reason of amount involved, revenue has filed the application for rectification.
When Revenue itself has stated in appeal as above they cannot claim any error apparent on record taken for which their appeal was dismissed. The grounds stated in the application for rectification of mistake are not the part of records before the tribunal for consideration. The new facts and grounds taken in the rectification application, which were never the part of the appeal considered cannot justify the rectification application. Accordingly, this rectification of mistake application can be dismissed on this ground itself.
Rectification of Mistake application filed by the Revenue is dismissed.
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2023 (10) TMI 1127
Maintainability of SLP - Seeking permission to avail of the appellate remedy - HELD THAT:- The Special Leave Petition is disposed of by reserving liberty to the petitioner herein to seek permission to avail of the appellate remedy, if so advised - If any appellate remedy is availed of by the petitioner herein, the same shall be considered by the Appellate Authority on merits.
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2023 (10) TMI 1126
Valuation of imported goods - Brass Ceramic Cartridge (L) size ½” Parts for use in Sanitary ware - 2976 kg. weight of the consignment was found in excess than the declared weight - rejection of declared value - Confiscation - redemption fine - penalty - HELD THAT:- The basis of the order under challenge has been the market enquiry and the valuation in terms of Rule 7 of the Valuation Rules coupled with the acceptance of reassessed value by the appellant. The modus operandi for reassessment has been objected by the appellant - As per Section 14 of the Act, value of the imported goods shall be the transaction value of such goods, which means the price actually paid or payable for the goods when sold for export to India where the buyers and sellers are not related and the price fixed is the sole consideration for sale.
Proper officer can reject the declared transactional value based on ‘certain reasons to doubt the truth or accuracy’ of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression “grounds for doubting the truth or accuracy of the value declared” has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out above-mentioned conditions when the ‘reason to doubt’ exists. These instances are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared. The expression “reason to doubt” cannot be equated with the requirements of positive reasons to believe, for the word ‘doubt’ refers to un-certainty and irresolution reflecting suspicion and apprehension - It is therefore held that in the context of the proviso to Section 14 read with Rule 12 and clause (iii) of Explanation to the 2007 Rules, the doubt must be reasonable and based on ‘certain reasons’. The proper officer must record ‘certain reasons’ specified in Clause (a) to (f) Rule 12 or similar grounds in writing at the second stage before he proceeds to discard the declared value and decides to determine the same by proceeding sequentially in accordance with Rules 4 to 9 of the 2007 Rules.
Reverting to the facts of the present case, it is observed that the only reason to invoke Rule 12 of Valuation Rules was the difference in weight of the goods. It has been the apparent submission of appellant since the very first stage of interception of goods that the goods have been imported on piece basis and not on the basis of weight - there was no cogent reason to doubt the truth and accuracy of the value declared. Hence the transaction value mentioned in the Bills of Entry should have been accepted Rule 12 should not have been invoked.
Appellants have no reason to be concerned about the actual selling price of the impugned goods in the retail market. He also conveyed vide the said statement that their supplier i.e. manufacturer in China is not related to them except that they have continuous business relations with the said manufacturers. In the light of this statement, there are no convenience to accept the statement of the appellant made the very next day as a cogent admission - Since it is apparent that the Department has not followed the statutory procedure nor there was any mis-declaration of quantity as alleged, the mere acceptance of the re-assessed value and payment thereof will not be sufficient to confirm the allegations of under valuation. The burden was still on the Department to prove the allegations levelled. The said burden has not been discharged.
Appeal allowed.
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2023 (10) TMI 1125
Levy of Anti-dumping duty - imported goods (live consignment) cleared by the appellant are mill edged or slit edged - goods assessed and cleared out of charge can be reopened by issuance of a notice and duty be demanded or not - the earlier consignments which are not available for examination can also be said to be mill edged coils which attracted antidumping duty or not - Confiscation - redemption fine - penalty.
HELD THAT:- The live consignment consisting of 31 coils was Mill edge and the allegation by the appellant that only one or two core coils have been inspected proved baseless in as much as the above report clearly shows that all coils were inspected and the report was submitted based on physical examination of the same. These goods are also tested by Shri R. Sreedhar, Chartered Engineer and his certificate where it was held that Based on these reports the goods are Mill edge and liable to payment of anti-dumping duty is beyond doubt therefore the demand for 31 coils is upheld.
Whether the Department was right in reopening the assessments for the past imports based on their investigations? - HELD THAT:- The Revenue can reopen the assessments after out of charge being given if investigations proved deliberate attempt to evade duty based on the incriminating documents if unearthed by the Revenue. The law laid down by the Hon’ble Court and maintained by the apex court in the case of VENUS ENTERPRISES VERSUS COMMISSIONER [2007 (1) TMI 564 - SC ORDER] relied by the learned Authorised Representative clearly allows the Revenue to reopen the assessments if on investigation and evidences surface subsequently to prove misdeclaration or undervaluation of already assessed and cleared goods.
Whether these reports can be extrapolated to the consignments already cleared and assessed to duty by the customs authorities? - HELD THAT:- The 13 consignments which were imported earlier were from the same supplier is not in dispute and the price quoted in the earlier consignments when compared to the present consignments are more or less the same. It is also not under dispute that the slit edge coils are more expensive when compared to the Mill edge coils because the Mill edge coils are trimmed and slit to size to arrive at a uniform width and contours - Appellants were aware of the fact that anti-dumping duty is to be paid if it is less than 1250 mm and the reply given by the appellant also suggest that they can buy coils of 1255 mm to avoid antidumping duty. This mail clearly suggests that the appellant was aware of the fact that if the coil was of 1260 mm they had to pay anti-dumping duty which is not under dispute.
In the present case, investigations have only proved that the appellant was aware of the fact that anti-dumping was leviable on mill edged coils and he had imported some of the consignments from other suppliers with the specifications regarding mill edged or slit edged. However, no incriminating documents were unearthed to prove the consignments cleared earlier were mill edged coils - Without any such evidences based on the examination report of live consignment, one cannot extrapolate the same to the past consignments.
For all the past consignments is set aside and therefore, the order to the extent of confiscation and penalty also stands set aside. We uphold that the live consignment of 31 coils is mill edged and anti-dumping duty is liable to be paid on the same. The matter is remanded to the original authority to re-determine the demand only for the 31 coils for which the reports suggest they are mill edged coils.
The appeals are disposed of by way of remand.
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2023 (10) TMI 1124
Valuation of imported goods - old and used Digital Multi Function Printer - restricted goods or not - applicability of Circular No.27/2011-Customs dated 04.07.2011 - confiscation - redemption fine - penalty - HELD THAT:- As the Bill of Lading is in this case is 06.02.2013, which was issued prior to 28.02.2013 and this Tribunal in the case of COMMISSIONER OF CUSTOMS (PORT) , KOLKATA VERSUS BHAWANI ENTERPRISES [2017 (11) TMI 974 - CESTAT KOLKATA], has observed We agree with Commissioner (Appeal)’s findings that (i) mere enhancement of value on the basis of C.E. certificate cannot be a ground for treating declared value as mis-declared unless there is other corroborative evidence. (ii) except enhancement on the basis of C.E.’s Certificate, there is no other material on record to inform that declared value was mis-declared.”
It is also held that the Bill of Lading is prior to 28.02.2013 for import of the identical goods as in the case of Bhawani Enterprises, wherein it has been held that there was no restriction on import of the subject goods, therefore, the appellant is not required to obtain any specific license for import of the impugned goods. The enhancement of value on the basis of Chartered Engineer’s certificate cannot be a ground for treating declared value as mis-declared unless there is other corroborative evidence.
As the issue is no more res integra, it is held that the value declared by the appellant is correct and no license is required by the appellant for import of the said goods.
The impugned order is set aside - Appeal allowed.
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2023 (10) TMI 1123
Confiscation - redemption fine - penalty - import of Brass Scrap Pallu - mis-declaration of Country of Origin - Customs officials alleged that the goods originated from Pakistan instead of UAE - cancellation of bill of entry under Section 149 of the Customs Act, 1962
Country of Origin - HELD THAT:- On physical examination of the goods some worn and torn PP bags filled with brass scrap were found on which the words Karachi, Pakistan, Government of Punjab, Korangi Industrial Area etc. were found printed. Coupled with this, the tracking details also revealed the actual arrival date of the said container, i. e. the B/L from Karachi to JEBEL ALI was issued on 18.11.2021 at Karachi and B/L from JEBEL ALI to Nhava Sheva was issued on 28.11.2021 and the container was found to be intact with the same seal throughout from Pakistan to India. This only reflects that there could not have been any inspection at Sharjah, UAE as per the PSIC Certificate dated 13.11.2021 issued by PSIA and therefore the necessary corollary is that the PSIC was fake and forged. This also points to the fact that the container in question originated from Pakistan.
The department having found that the goods originated from Pakistan was not wrong in re-classifying the goods under CTH 98060000 as per Notification No. 5 /2019-Cus dated 16.2.2019. Nothing further was required to be done at the end of the department as pleaded by the importer company. The justification or non-justification of procuring the goods i. e., Brass scrap "Pallu" from Pakistan was on the importer company which they failed to substantiate by any valid supporting evidence. The burden was exclusively on the importer company and not on the revenue to place on record positive evidence in support of their submissions.
Responsibility of the Importer Company - HELD THAT:- Declaring the Country of Origin is an essential part of the Bill of Entry and the assessment, inter alia, depends on the Country of Origin. Duty could be exempted or increased (as in this case) depending on the Country of Origin. Restrictions on imports and exports could also depend on the Country of Origin. The Country of Origin Certificate also has to be obtained from the authorized agency of that country. Pre-shipment inspection certificates have to be obtained from the agency, which is authorized to issue such certificate in the country, where they are exported from. Thus, it is impossible that any importer would not know both the Country of Origin and the Country of Export of every single consignment - The appellant has attributed the burden of mis-declaration of the country of origin as UAE on the supplier or the indenter, however the same is not believable as the appellant is a regular importer of these goods and during the investigation of the live consignment the past imports were also unearthed which were also routed in similar fashion - the authorities below have rightly observed that in terms of Para 2.32 of FTP 2015-2020 read with para 2.54 of Handbook of Procedures, such PSI Certificate is not valid and no reliance can be placed thereon.
Confiscation of goods - HELD THAT:- The issue needs to be examined in the light of the provisions of section 46 under which the appellant had filed the bill of entry for home consumption as the provisions thereof makes it obligatory on the part of the importer to make a declaration as to the truth of the contents of such bill of entry and shall in support of the same produce to the proper officer the invoice relating to the goods under import. The appellant has submitted commercial invoices along with bill of lading etc showing the country of origin of the goods as UAE, country of origin of the goods herein is Pakistan. In that view, the goods are liable for confiscation under section 111 (m) of the Act, which categorically provides any goods which do not correspond in respect of value or ‘in any other particular’ with the entry made under this Act. Thus the order of confiscation passed by the authorities is held to be in accordance with law.
Penalty under Section 112 (a)(ii) and 114AA of Customs Act - HELD THAT:- The quantum of penalty imposed by the impugned order is justifiable. Section 112 (a)(ii) provides for duty related penalty, i.e., penalty not exceeding ten percent of the duty sought to be evaded. Thus the outer limit or the maximum amount of penalty that could be levied could not be more than ten percent of the duty. Similarly, the penalty under section 114AA is value related, i.e., penalty not exceeding five times the value of goods - Here also the Commissioner has proportionally increased the penalty and we find no reason to interfere with the same. Normally, the principle in levying penalty by way of punishment has to commensurate in terms of the provisions providing the penalty. As against the penalty imposed by the adjudicating authority, the appellate authority has considerably increased the penalty amount on all counts both against the importer company and also its director which is not only sufficient to penalise them but would also act as a deterrent in future. Hence no interference is called here.
Re-export & Redemption Fine with Penalty - HELD THAT:- The exercise of discretion both by the adjudicating authority as well as by the appellate authority in not ordering absolute confiscation and allowing the importer to redeem the goods on payment of redemption fine and penalty with permission to re-export the goods is in consonance with the object and purpose with which the notification was issued, i.e. to dissuade commercial transactions with Pakistan byimposing extremely high penalty of 200%.
Notification No 05/ 2019 dated 16.2.2019 in simple words provides that the goods imported having country of origin as Islamic Republic of Pakistan shall be classified under the new entry CTH 9806 0000 and BCD @200% shall be applicable on them. It nowhere says that such goods shall not be allowed to be re-exported. It is a settled principle of law that the words of the notification has to be read as they are and the contents thereof cannot be added or expanded by way of implication. Since there is no express bar for re-export of such goods in the notification, we uphold the impugned order allowing the appellant to re-export the goods.
The country of origin of the containers in question is Pakistan and therefore, the same are classifiable under the Notification No.5/2019 as per CTH 980060000. Since the goods have been imported on the basis of fake PSIC, they are liable to be confiscated in terms of Section 111(m). - In the event of confiscation, the redemption fine under Section 125 has been rightly levied. As the importer company and its director are responsible for the import having been made in violation of the statutory provisions and FTP 2015-2020, they are liable to penalty both under Section 112 (a)(ii) and also under 114 AA.
There are no reason to interfere with the impugned order - appeal dismissed.
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