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Customs - Case Laws
Showing 341 to 360 of 1607 Records
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2023 (10) TMI 1050
Permission to export of non-basmati rice - refusal to grant permission to export the consignment on the ground that the petitioner has not handed over the consignments to the customs on or before 20th July 2023 since on the earlier occasion vide letter dated 22nd July 2023, the petitioner requested for offloading the consignments under the shipping bills and the said request was accepted by the respondents.
HELD THAT:- In the instant case, there is no dispute that the export duty with respect to shipping bill under consideration has been paid by the petitioner on 19th July 2023 and, therefore, new condition specified in Notification No. 29/2023 is satisfied. This read with Trade Notice No. 23/2023 which clarifies that each of the conditions is an independent and export is allowed in case of satisfaction of any one of the conditions, the petitioner would be entitled to export the goods as per Notification No. 29/2023. Admittedly, the export duty was paid on 19th July 2023 has not been refunded till today.
The petitioner became entitled to export the consignment under the clarificatory notification dated 29th August 2023 when it provided for export on payment of export duty on or before 20th July 2023 which undisputedly has been paid by the petitioner. There appears to be no dispute that the petitioner clearly falls in this category which was added by the clarificatory notification dated 29th August 2023. The respondents themselves have allowed the export of other consignment only on the ground of payment of export duty without goods having been handed over to the Customs and that too under clarificatory notification. Therefore, there cannot be different yardstick to be adopted by the respondents with respect to different shipping bills of the very same petitioner. Hence there can be no question of the petitioner being denied the permission to export the consignment under Shipping Bill Nos. 2465780 and 2486893.
The respondents are directed to permit the export of non-basmati rice under Shipping Bill Nos. 2465780 dated 14.07.2023 and 2486893 dated 15.07.2023 before 30th October 2023 - Appeal disposed off.
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2023 (10) TMI 1049
Levy of penalty u/s 112 A of the Customs Act 1962 - import of 475 cartons containing artificial flowers, photo frames, fancy mirrors etc. - goods imported by resorting to undervaluation - wilful mis-declaration - HELD THAT:- No acts of omission or commission, which would render the goods liable for confiscation have been alleged or proved on the part of the appellant. No charge of abetment is also evidenced against the appellant.
Penalty imposed on the appellant is set aside - Appeal allowed.
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2023 (10) TMI 1048
Condonation of delay in filing appeal - appeals were not filed within the stipulated time frame of 60 days and also for a further period of condonable 30 days - HELD THAT:- It is found that no physical final assessment order was issued to the appellant.The final assessment was updated online only. Moreover, for the differential duty, the challan was generated only on 11.07.2017. In this position, it is 11.07.2017 when the appellant could notice the final assessment of bill of entry. Therefore, the date 11.07.2017 is the correct date of communication of final assessment to the appellant.
The identical issue was considered by this Tribunal in the case of GAIL (INDIA) LTD. VERSUS C.C. -AHMEDABAD. [2023 (10) TMI 1044 - CESTAT AHMEDABAD] wherein the Tribunal has held that even though the final assessment has been made but the communication of the final assessment is relevant.
In the present case also, the appellant came to know about the final assessment only on 11.07.2017. Accordingly, the appeal was filed well within the time.
The impugned order is set aside and appeal is allowed by way of remand to the Learned Commissioner (Appeals) for deciding the appeals before him on merit.
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2023 (10) TMI 1044
Rejection of refund claim - relevant date for claiming refund, is the date of the order of finalization of the provisional assessment, or not - HELD THAT:- The Tribunal as has held that the order of finalization of the provisional assessment is the relevant date for the purpose of claiming refund. In the case of INDIAN OIL CORPORATION LTD. VERSUS CC. (EXPORT), NEW DELHI [2014 (12) TMI 1047 - CESTAT NEW DELHI] where it was held that date of service of finalization of provisional assessment is the relevant date for this purpose.
There is merit in the argument of the appellants, the appeal is allowed.
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2023 (10) TMI 1007
Denial of permission for conversion/ amendment of 13 free shipping bills filed by the filed by the appellant without claiming AIR drawback - oversight of the clearing agent and denying AIR drawback to the appellant.
HELD THAT:- The Appellant is a regular exporter as well as manufacturer of CPC. We further find that such goods are not stocked in containers for export. These goods are exported without any packing as bulk cargo, which is admitted fact. Further, admittedly, Appellant was regularly claiming the benefit of drawback at AIR.
It is found that the exports in question were made during the period April, 2016 to December, 2016. The Appellant came to know of the mistake during verification of records during the end of December or beginning of January and have immediately filed the request for grant of drawback before the Commissioner of Customs by allowing them to amend shipping bills without converting them into drawback shipping bills, as provided under Sec 149 of the Act read with Rule 12(1)(a) of the Drawback Rules, 1995, read with aforementioned Circular No. 36/2010-CUS.
The reasons given for rejection by the Commissioner of Customs are flimsy and against the very spirit of Sec 149 of the Act read with Rule 12(1)(a) of Drawback Rules, 1995, read with clarification given by the Board vide its Circular No. 04/2004-CUS read with amended Circular No. 36/2010-CUS - the Board have categorically provided for allowing the benefit of drawback on AIR where there is no case of any mis-declaration or fraud, etc. In the present case, there is no such allegation or finding in the Impugned Order.
Appeal allowed.
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2023 (10) TMI 1006
Classification of imported goods - 553 series for 4500 Full A/N Prox. Exp Memory - to be classified under Chapter Heading 8473 3020 as part of the computers or classifiable under chapter 8543? - HELD THAT:- As noted by the original authority, the device captures the data from the employee’s card or the data of the particular employee who key in the PIN into the device. The device does not do anything except for collecting the data at the time of entry or exit and this data is transmitted to a central server for further processing like marking the attendance, preparation of payroll or for other purposes. These facts are not in dispute. Based on the General Rules of Interpretation and the Chapter Notes, the item needs to be classified in the heading akin to it or where the specific description is provided. In this case, the data collection device imported by the respondent is nothing but a card reader working in conjunction with the server - Since the specific function of the imported item is to mark attendance or to take note of the persons of the employees for the purpose of attendance or payroll or leave, they cannot be classified under Chapter 84 as it excludes from this Chapter as per the Chapter Note 5(e).
In the case of COMMISSIONER OF CUSTOMS BANGALORE-CUS VERSUS M/S. SHAKYA TECHNOLOGIES LTD [018 (8) TMI 1029 - CESTAT BANGALORE], a similar product viz., fingerprint scanner was classified under Chapter Heading 8543 7099 as per the observations made by the Tribunal at para 5.1, wherein it has held that We find that the Head 8543 covers electrical machines and apparatus having individual functions not specified or included elsewhere in the chapter. Therefore, the classification of the Finger Print Reader would be more appropriate under this heading.
Hence, based on the discussions above and by following the decision of this Bench, the product is rightly classifiable under chapter 8543.
Appeal allowed.
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2023 (10) TMI 1005
Smuggling - foreign origin Gold - evidences available on record indicate that the goods seized in this case are smuggled in nature or not? - burden to prove - HELD THAT:- The Commissioner has given a detailed finding as to why the seizes goods are not smuggled in nature.
The gold seized were of 99.5 purity. There was no foreign marking available on the gold. In fact, they were in the shape of ornaments. The adjudicating authority has given a clear finding as to why the goods are not smuggled in nature - the findings of the adjudicating authority agreed upon. In order to seize the goods, there must be a reasonable belief that the goods are smuggled in nature.
The provisions of section 123 of Customs Act are not applicable in this case. Accordingly, the impugned order passed by the adjudicating authority is legal and proper and it does not warrant any interference.
Appeal of Revenue dismissed.
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2023 (10) TMI 1004
Classification of imported goods - Joss Powder for usage in their finished goods known as Jigged Powder - to be under Chapter sub-heading 1211 9029 as against the Appellant’s claim that the product was classifiable under 4401 30 00 or not - HELD THAT:- On going through the Chapter Notes of Chapter 12, it is seen that Heading 12.11 applies to the plants or parts thereof: basil, borage, ginseng, hyssop, liquorice, all species of mint, rosemary, rue, sage and wormwood. The Test Report obtained from the CRL by the Department does not specify that the goods in question fall under any of these categories.
There are no reason for the Department to suddenly change the classification from CET 44013000 to CET 12119029 when several consignments have been imported through Kolkata (Port) as well as Haldia (Port) during the period 2003 to 2004 were allowed to be classified under CET 44013000. Even the provisionally, assessed Bills of Entry has been finalized by classifying the goods under CET 44013000.
There are no proper evidence being brought in by the Customs Department to adopt new classification under CET 12119029, particularly when even the Test Reports obtained from CRL do not support the view of the Department - appeal allowed.
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2023 (10) TMI 1003
Classification of exported goods - Upgraded Beneficiated Ilmenite (Synthetic Rutile) TiO2 95% Min. Moisture 0.5% Max. - classifiable under CTH 2614 as contended by the Revenue, or CTH 2823 as declared by the exporter-assessee? - HELD THAT:- There are no hesitation to hold that the scientific analysis carried out by the Government agencies like BARC/CSIR are clear and understandable and hence, the same prevails over the mere download from website of Kerala Minerals. It is the above Government agencies who have reported that the change in the chemical composition/crystallographic structure from Raw Ilmenite ore and the final exported goods has happened during the chemical process of leaching. In view of this, the final product that emerges and which is exported is nothing but synthetic Rutile and not natural Rutile, not only because there is a structural change but also for the fact that such a change has occurred as a result of the leaching process. Further, only natural Rutile stands excluded from the heading CTH 2823 as per HSN and it remains classified under Chapter 26 - the goods in question i.e., synthetic Rutile can only be classified under CTH 2823.
In the order of learned Hyderabad Bench in the case of M/s. Trimax Sands Pvt. Ltd. [2017 (11) TMI 489 - CESTAT HYDERABAD], it has been held that Assuming that the Department’s argument is that only upgraded Ilmenite which is synthetic rutile is classifiable under 2614 00 20, the argument is self-defeating because rutile clearly falls under 2614 00 31, 2614 00 39 and 2614 00 90 in the tariff and no distinction is made between naturally occurring rutile and synthetic rutile in the Heading for Rutile.
The ratio in the above order is squarely applicable to the case on hand to justify the conclusion that the goods in question could only be classified under Chapter Heading 2823.
It is well known that classification depends on various factors including description, and not description per se. Assuming that the description is the only criterion, then the same should sync with the HSN. It is well settled that the core element of determinative factor has to be gone into which is the first and essential step. Whereas, the classification appears to have been made on incorrect assumptions, which is not as per law.
The goods in question are synthetic Rutile which merit classification only under CTH 2823 and hence, the stand of the assessee is accepted - Appeal allowed.
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2023 (10) TMI 966
Conditions of eligibility and procedure for allocation of quota for export of broken rice on humanitarian food security grounds - Conditions restricting the eligibility for securing allocation of quota to only those exporters, who had exported rice to the countries in question (Senegal, Gambia and Indonesia) in the three preceding financial years.
Whether restricting the allocation of quota for export of broken rice to only those exporters that had exported rice to the respective countries in question prior to such exports being prohibited, bears a nexus to the object of ensuring “capacity and quality”?
HELD THAT:- The Court is neither required to ascertain the best classification for achieving the objective of such classification nor evaluate the efficacy of the same. The Court is merely required to ascertain whether the classification has any rational nexus with the object sought to be served.
It is also well settled that a classification is not required to be “scientifically perfect or logically complete” - The classification need not be mathematically accurate and cannot be called into question merely because it is disadvantageous to certain individuals or class of persons. However, it is equally well settled that the intelligible differentia to support the classification must be “real and substantial”.
In the present case, there is no material on record, which would even remotely suggest that persons who have exported broken rice to the respective countries would have a higher capacity to export rice or the quality of broken rice to be exported by them would in any way be superior than that which may be exported by rice exporters who had exported to other countries in the past. There is also no material to indicate that the channels of export to the countries in question are different from the channels of export to other countries. The underlying assumption of the classification is that the rice exporters who had exported rice to the countries in question in part have comparatively assured capacity to export broken rice and to ensure their quality. This assumption is not founded on any material or rational basis.
In the present case, the export of rice from this country does not entail distribution of rice in the country importing foodgrains. In most cases, the exporter’s obligation is discharged on loading the goods in question on a vessel in India (if the export is by sea). There is not even a suggestion that export of rice to the countries in question involves any special procedure or would yield any special experience - The counter affidavit filed by the respondents also does not set out any material to suggest that the rice exporters having a past experience of exporting rice in a particular country, would be better placed to service the export orders from that country in comparison with other exporters with established track record.
It is apparent that the policy of canalizing exports of manganese ore had a clear nexus with the object sought to be achieved. Established miners and shippers were also permitted to continue exporting ore to ensure that existing export arrangements were not impacted.
In the facts of the present case, the respondent has not produced any material to establish any rational nexus between the restricting the export quote to rice exporters that had exported rice during the three financial years preceding prohibition of export of broken rice, and the object of ensuring capacity and quality.
The impugned trade notice set aside - respondents may re-evaluate the criteria for allocation of quota for export of broken rice - application disposed off.
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2023 (10) TMI 965
Classification of export goods - Duty Drawback - Upgraded Beneficiated IImenite - to be classified under Customs Tariff Item No.28230090 under the Customs Tariff Act or under classification Customs Tariff Item No.28230090?
The specific contention of the petitioner is that it is not Titanium Ores and Concentrates in its natural form, after manufacturing process it is a value added product as “Upgraded Beneficiated Ilmenite”.
HELD THAT:- The respondents had issued periodical 16 show cause notices for the subsequent exports. After the Tribunal’s order the said 16 show cause notices were considered by the respondents in Order-in-Original No.38/2023, wherein it is held that the Tribunal had classified the product under 28230090, therefore on review, the same was accepted by the Commissioner of Customs followed by the Chief Commissioner of Customs, Trichy vide letter F.No.CCO/LGL/MISC/ 211/2023-LGL dated 02.09.2023. And based on the Principles of Judicial Discipline the respondents have dropped the proceedings initiated in the said 16 show cause notices.
The product “Upgraded Beneficiated Ilmenite” will fall under 28230090 under the Customs of Tariff Act. Consequently the petitioner is entitled to drawback and the same shall be granted to the petitioner - Petition allowed.
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2023 (10) TMI 964
Classification of imported goods - Nutritional Supplements, which are preparations of substances such as Creatine, Nitrates, Glutamine and Amino Acids - classifiable under CTSH 2106 9099 or not - liable to IGST at 28% under Sr.No.9 of Schedule IV of Notification No.1/2017-IGST-Rate or at 18% under Sr. No.453 of Schedule III of the said Notification - demand barred by time limitation or not - suppression of facts or not.
HELD THAT:- From tariff entry of 2106, it can be seen that the entry covers various food preparation not elsewhere specified or included. However, out of the many items provided under tariff item 2106, the serial No. 9 described only some of those goods. This also establish that Serial No. 9 is not a general entry which covers entire entry of 2106 but only some of the goods which are specified in the description of goods are provided under serial no. 9 of Schedule IV,. This fact also strengthens the claim of the appellant that their goods are not covered under serial no. 9 of the schedule IV of Notification 1/2017-IGST-Rate and correctly falls under Serial No. 453 according to which the rate of IGST is 18%.
From decision in CASTROL INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, CALCUTTA-I [2005 (2) TMI 847 - SUPREME COURT], it is clear that the word “that is to say” is “mutatis mutandis” applies in respect of the expression “i.e.” in the present case. Accordingly, the word used “i.e.” at serial number 9 of schedule IV of Notification it is fixed, specific and clear that only the description given in such entry shall be covered by serial no. 9. Consequently the goods of the appellant will fall under Serial No. 453 of Schedule III of the Notification 1/2017-IGST, therefore, the demand of differential custom duty shall not sustain.
Time Limitation - HELD THAT:- In the present case for the clearance for the period July 2017 to November 2017, the show cause notice was issued on 09.07.2022 - since there was no suppression of fact on the part of the appellant, the demand is also hit by limitation. There are force in the submission of the learned counsel that whatever IGST needs to be paid by the appellant, it was available as an input tax credit to them, therefore, the present case is involved revenue neutrality. Accordingly, the malafide intention cannot be attributed to the act of the appellant. For this reason, the demand for the extended period is not sustainable also on time bar.
The impugned order is not sustainable - Appeal allowed.
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2023 (10) TMI 963
Valuation - inclusion of ship demurrage charges paid by the respondent to the owner of the vessel/ ship in which the goods are imported on account of vessel/ ship having to wait at the Port in the Transaction value of the imported goods - entire case based on explanation added to Rule 10 of Custom Valuation Rules, 2007 - HELD THAT:- The very same issue has been considered by the Hon’ble Orissa High Court in the case of Tata Steel Limited [2019 (10) TMI 226 - ORISSA HIGH COURT] wherein the Hon’ble Court has held that the contentions raised by the petitioner that the relevant provisions in the Principal Act is silent about the ‘demurrage’; thus, 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.
From the above order, it is settled that the demurrage charges cannot be included in the transaction value of imported goods.
The entire case of the Revenue is that as per the explanation added to Rule 10 of Custom Valuation Rules, 2007, the cost of transportation of imported goods should be included in the transaction value - HELD THAT:- This Provision was not provided in the Customs Act, 1962 with regard to the Valuation of goods. However the same was brought under the rule by way of explanation. The Hon’ble Orissa High Court in above case has held that the said provision in the Rule is ultra virus to the Customs Act, 1962. Therefore, when the explanation to Rule 10 to Customs Valuation Rules was held ultra virus, the entire basis of the Revenue case falls.
The impugned order passed by the learned Commissioner is just and proper and the same does not suffer from any infirmity - Accordingly, the same is upheld and Revenue’s appeal is dismissed.
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2023 (10) TMI 905
Seeking grant of Bail - Smuggling - foreign origin gold - HELD THAT:- Considering the facts and circumstances of the case and the fact that the nothing has been recovered from the house or possession of the petitioner and his name transpired in this case on the basis of disclosure made by the apprehended persons from the spot, let the, above named, petitioner be released on bail on furnishing bail bond of Rs. 10,0000/- with two sureties of the like amount each to the satisfaction of learned Presiding Officer, Economic Offences Court, Patna in connection with Economic Offence P.S. Case No. 45(o) of 2023 arising out of Unit Case No. 01 of 2023 with the conditions imposed.
Application allowed.
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2023 (10) TMI 904
Jurisdiction - proper officer to issue SCN - Smuggling - beneficial owner - Violation of principles of natural justice - none of the relied upon documents in the Show Cause Notice were furnished to the petitioner by the respondent - HELD THAT:- The Customs Department is not handicapped. It is open to the Customs Department to trace the location from where the payment of the amount was made and the person who made such payment to the petitioner.
It appears that there is either an attempt to shield the persons who were actually involved in the smuggling of the imported consignment of 2,01,13,000 pieces of sewing machine needles of various sizes of Brand “Organ” and “Flying Tiger” and 70,200 pieces of “measuring tapes” of various sizes or there is no will to trace out such a person. Therefore, the impugned order is unsustainable - there are no direct materials to infer that the petitioner was marketing or dealing in the smuggled goods. Therefore, the petitioner cannot be declared as the “beneficial owner” of the smuggled goods within the meaning of Section 2(3A) of the Customs Act, 1962. Unless, the petitioner himself imported the goods and exercised effective control over the smuggled imported goods, the petitioner cannot be called as the “beneficial owner”.
Therefore, while it cannot be construed that the impugned Order-in-Original was passed without a proper authorization from an officer senior in rank to the officer who has passed the impugned Order-in-Original, the petitioner cannot be treated as a “beneficial owner” of the smuggled goods.
The case is remitted back to the respondent to re-do the exercise for imposing penalty on the petitioner in proportion with the role played by the petitioner in the alleged attempt to smuggle 2,01,13,000 pieces of sewing machine needles of various sizes of Brand “Organ” and “Flying Tiger” and 70,200 pieces of “measuring tapes” of various sizes - Petition disposed off.
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2023 (10) TMI 903
Validity of SCN - perceived statutory requirement of pre-notice consultation being undertaken before the issuance of a SCN - HELD THAT:- The concept of pre-notice consultation stands incorporated only in Section 28 of the Act and more particularly in terms of the First Proviso appended to sub-section (1) of that provision. The action which is proposed to be taken in terms of the SCN, however, rests on the provisions of Section 124 and the 1995 Rules. Those provisions neither mirror nor adopt the principles of pre-notice consultation.
There are no merit in the challenge raised to the impugned SCN - petition dismissed.
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2023 (10) TMI 902
Issues involved:
The petition filed u/s 438 Cr.P.C. for anticipatory bail in a complaint u/s 132 and 135 of the Customs Act, 1962.
Judgment Details:
Issue 1: Anticipatory Bail Application
The petitioner sought anticipatory bail in a complaint u/s 132 and 135 of the Customs Act, 1962. The petitioner's counsel argued that the offenses under the Customs Act were non-cognizable at the relevant time as per Section 104(4) of the Act. Citing a relevant case law, it was contended that offenses under the Customs Act were bailable during the period in question. The respondent's counsel, however, informed the Court that a challan had been presented, and the petitioner was avoiding appearing before the trial Court, leading to non-bailable warrants being issued. The respondent requested that the petitioner be directed to approach the Court of Sessions first. The petitioner, in light of the respondent's submissions, prayed for the withdrawal of the petition with liberty to approach the trial Court or Court of Sessions as per the law.
Final Decision:
The Court dismissed the petition as withdrawn, granting the petitioner liberty to approach the trial Court or Court of Sessions as per the law.
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2023 (10) TMI 901
Classification of imported goods - Cotton Polyester Fabrics - classifiable under Customs Tariff Heading (CTH) 52113190 or classifiable under CTH 52114200 - goods imported having characteristics of Denim fabrics or not - Confiscation - redemption fine - penalty - HELD THAT:- There is no procedural error in the drawal of the samples and sending the remnant samples for retest as directed by this Tribunal. Accordingly, this objection raised by the Appellant is not sustainable.
No material in the show cause notice to show that there was an assessment done in respect of all the four Bills of Entry - HELD THAT:- In the absence of any assessment so made, the question of short levy under section 28 would not arise. It is observed that Notice has been issued by the department proposing reclassification of the goods imported under the said four Bills of Entry. On adjudication, the Commissioner has reclassified the fabrics under the CTH 52114200. The classification dispute is further on appeal before this tribunal - During the course of this process, Notice can be issued for reclassification demanding duty as per the proposed new classification. The demand will be finally confirmed only when the classification dispute attains its finality. Thus, there is no infirmity in the demand issued under Section 28 of the Customs Act, 1962 . Accordingly, the objection raised by the Appellant on this count is not sustainable.
Fabrics having the characteristics of Denim fabric cannot be equated with the Denim fabric itself, if it does not otherwise satisfy the requirements of Chapter Note 52 - In the present case, the sample fabric satisfy the requirements of Denim fabrics in the warp yarp yarn, but does not satisfy the requirement in the weft yarn as its composition contains 4% of elastomeric material. Also, the weft yarn does not satisfy the requirement in the chapter note "unbleached, bleached or dyed, grey or coloured a lighter shade of the colour of the warp yarns". Thus, the fabric cannot be called ,Denim' fabric as per the Chapter Note 52, as it does not fulfill all the requirements of the chapter Note 52.
For classifying the fabrics, it is found from the Test Report that the sample fabrics contains Cotton yarn: 79.2% Polyester Yarns - 16,8% and rest 4% being elastomeric material. The CTH 52113190 deals with Cotton Polyester Fabric. As per the Test Report, The fabric contains both Cotton and polyester in the ratio of 79.% and 16.8% respectively. Thus, the fabric is rightly classifiable under the CTH 52113190 as Cotton Polyester fabric. Accordingly, the classification declared by the Appellant in the Bills of entry is upheld and the department's reclassification of the fabric is rejected.
Since, the fabric is classifiable under the CTH 52113190, the demand of differential duty of customs in the impugned order, is not sustainable. Since there is no misclassification of the goods imported, the confiscation of the goods is not warranted. Accordingly, the redemption fine imposed is not sustainable. For the same reason, the penalty imposed on the Appellant is also not sustainable.
Appeal allowed.
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2023 (10) TMI 900
Refund of SAD paid at the time of importation - rejection on the ground that the appellant did not pay VAT/Sales Tax while selling the goods in the domestic market - non-fulfilment of conditions as stipulated in the Notification No.102/2007 dated 14.09.2007 - appeal is barred by limitation as they have filed the appeal beyond the period of limitation as prescribed under section 128 of the Customs Act, 1962.
HELD THAT:- On limitation the Ld.Commissioner(Appeals) observed that the adjudication order was dispatched on 02.04.2014 through Speed Post whereas in reply to the RTI, it is stated by the department that the adjudication order has been received by one Shri Puroshattam Giri on 01.04.2014. In that circumstances, there is contrary observations made by the Ld.Commissioner(Appeals). Moreover, the Ld.Commissioner(Appeals) mentioned the letter dated 09.06.2014 as 09.04.2014 and to that effect the appellant has filed an affidavit before this Tribunal stating that Shri Puroshattam Giri neither an employee of the appellant nor the appellant has authorized any person to collect the adjudication order and that affidavit is filed on oath, therefore, the benefit of doubt goes in favour of the appellant that they have received the adjudication order on 09.06.2014 as claimed and against the said order the appeal has been filed before the Ld.Commissioner(Appeals) on 19.08.2014, which is well within the condonable period in terms of Section 28 of the Customs Act, 1962.
The appeal filed by the appellant before the Ld.Commissioner(Appeals) is not time barred. On that ground the appellant succeeds.
The Ld.Commissioner(Appeals) has held that the refund claims are not maintainable on merits, as the same are time barred - It is found that there is no allegation in the show cause notice issued to the appellant that why not the refund claims be rejected as time barred.
The adjudicating authority as well as the Ld.Commissioner(Appeals) has gone beyond the allegation in the show cause notice, which is not permissible in law, therefore, on merit also, the refund claim cannot be rejected as time barred as there is no allegation in the show cause notice - the impugned orders set aside - appeal allowed.
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2023 (10) TMI 899
Confiscation of certain goods - imposition of redemption fine - penalty under Section 112(a) of the Customs Act - liability and claims pertaining to (ESIL) after approval of the Resolution Plan - HELD THAT:- The original case was booked against (ESIL) Essar Steel India Ltd. During the pendency of this case (ESIL) Essar Steel India Ltd underwent Corporate Insolvency Resolution Process (CIRP) under Insolvency and Bankruptcy Code, 2016 (IBC). The appellants were earlier known as Essar Steel India Ltd (ESIL). The appellant had imported certain scrap and paid duty thereon. However, later on, it was found that there was an excess of 1300 MTS as against declared quantity of 29307.318 metric tons. The said goods were confiscated under Section 111(m) of the Customs Act, and redemption fine of Rs.16.5 Lakhs, penalty of Rs. 3.5 Lakhs was imposed by original adjudicating authority under Section 112(a) of the Customs Act. The matter was challenged before the Commissioner (Appeals), and the Commissioner (Appeals) reduced the redemption fine from 16.5 to 5 Lakhs, and penalty from Rs. 3.5 Lakh to Rs. 1 Lakhs.
In a similar situation in appellants own case, Tribunal in ARCELOR MITTAL NIPPON STEEL INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, SURAT-I [2023 (7) TMI 1303 - CESTAT AHMEDABAD] has observed that resolution plan has been approved by NCLT vide order dated 08.03.2019 according to which any government dues as on date of the NCLT order stand extinguished. In this position, we are of the view that the present appeal is liable to be disposed of as infructuous.
The appeal becomes infructuous and the same is dismissed as infructuous - Appeal disposed off.
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9911796707
