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Customs - Case Laws
Showing 381 to 400 of 1607 Records
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2023 (10) TMI 754
Smuggling - red Betel Nuts - Foreign origin goods - notified goods or not - onus to prove - confiscation of vehicle in terms of Section 115(2) of the Customs Act - HELD THAT:- The Tribunal in the case of BIJOY KUMAR LOHIA VERSUS COMMISSIONER OF CUSTOMS (PREV.), PATNA [2005 (11) TMI 306 - CESTAT, KOLKATA] has held that the local trade opinion cannot take place of the legal evidence.
The reliance on the opinion of Arecanut Research & Development Foundation (ARDF), Mangalore as regards the country of origin by the Original Adjudicating Authority was not proper inasmuch as the said organization in reply to an RTI query has stated that it is not possible to determine the place of origin of betel nuts through test in laboratory - the Appellate Authority is agreed upon that the said report can only be treated as an opinion and not as scientific test report regarding the country of origin. Further, even if the betel nuts are held to be of foreign origin, the same can be confiscated only when it is proved that betel nuts have been illegally smuggled into the country. Revenue has not produced any evidence to show that the betel nuts in question were smuggled into India.
In the absence of any positive evidence to establish the foreign origin of the goods and their illegal smuggling into the country, the Appellate Authority is agreed upon that their confiscation is neither warranted nor justified. As such, there are no infirmity in the impugned order of the Commissioner (Appeals).
Appeal of Revenue dismissed.
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2023 (10) TMI 753
Levy of penalty u/s 112 (a) of the Customs Act 1962 - Customs House Agent (CHA) - violation of Regulation 13 of CHALR 2004 - It is alleged that the appellant did not verify the antecedents of the importer - HELD THAT:- There is nothing brought out from the records that the appellant had in any manner abetted the importer or the import of impugned goods. In para 53 it is clearly stated that the appellant has only assisted to file the documents on behalf of importer as required of a CHA Firm. It is not done in his individual capacity. There is no allegation that the appellant committed any act helping the import of the illegal goods.
The department has not been able to establish sufficient grounds for imposing penalty under section 112 (a) of Customs Act 1962. The penalty imposed is not warranted and not justified.
The impugned order is modified to the extend of setting aside the penalty of Rs. 50,000/- imposed on the appellant herein - Appeal allowed.
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2023 (10) TMI 684
Classification of goods - Liquid Crystal Display (LCD) panels - to be classified under Chapter Heading 8259 9090 as decided by the Revenue or under Chapter Heading 9013 8010 as claimed by the appellant? - HELD THAT:- The matter is no longer res integra as the issue has been already settled in appellant’s own case M/S. XIAOMI TECHNOLOGY INDIA LIMITED VERSUS THE COMMISSIONER OF CUSTOMS, BANGALORE [2023 (7) TMI 325 - CESTAT BANGLORE]. Further, the Apex Court in the case of CCE, AURANGABAD VERSUS M/S VIDEOCON INDUSTRIES LTD. THR. ITS DIRECTOR [2023 (3) TMI 1338 - SUPREME COURT] on interpreting the General Rules of Interpretation and the Section Notes and Chapter Notes observed The CESTAT’s reasoning and conclusions, in both cases, that the LCD sets were under Chapter 90, Entry 9013.8010, is sound and unexceptionable.
Thus, the LCD Panels are to be classified under Chapter Heading 9013 8010 - appeal allowed.
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2023 (10) TMI 610
Non-determination of fulfillment of export obligation certificate - HELD THAT:- This Court is of the opinion that the larger interest of justice will be subserved if the impugned order is sustained except to the extent of the slight modification - No substantial question of law arises.
The direction to pay penalty imposed upon the Directors/employees of the appellant(s)-Company to the extent of ₹ 25 lacs in aggregate is hereby set aside. The balance, if any, may be paid after adjusting the amounts encashed through the Bank Guarantee and the amounts paid subsequently by the appellant(s)-Company.
Appeal allowed in part.
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2023 (10) TMI 609
Review application - especial grievance of petitioner is that the learned Commissioner has not returned any finding, one way or the other, on the request of the petitioner for being provided copies of the licenses/scrips containing all annexures and amendments under which exemptions for customs duty was granted and which formed subject matter of the dispute in the show cause notice.
HELD THAT:- The learned Commissioner has not returned any finding of the petitioner’s request for being provided the original copies of the licenses/scrips as requested in para 7 of the representation dated 30th July, 2019.
It appears that the finding, in judgment dated 27th November, 2019 [2019 (11) TMI 1361 - DELHI HIGH COURT] to the effect that the learned Commissioner had adequately dealt with the representation dated 30th July, 2019 does not appear to be correct.
The application for review is allowed.
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2023 (10) TMI 608
Classification of imported items - Golden Star Chafing Dish Fuel Wick - Liquid Chafing Fuel wick Plant - to be classified under CTH 36061000 or under CTH 84198190? - absolute confiscation - penalty - Waiver of demurrage charge - HELD THAT:- Regarding classification of goods under CTH 36061000 and on claiming the benefit of Exemption Notification No. 26 of 2000, as per HSN 3606 10 00, Liquid or liquefied-gas fuels in containers of a kind used for filling or refilling cigarette or similar lighters and of a capacity not exceeding 300 cm3 will fall under said category. Moreover, as evident from the documents relied by appellant, same goods are traded by classifying the same under CTH 3606 1000 and allowed to clear under CTH 36061000 through Nhava Sheva port and Chennai port. On the other hand, while rejecting the above said classification, department considered the proper adjustment as falling under Chapter 8419 which lies to plant and machinery. Even as per the impugned order, Appellate Authority held that “impugned goods cannot be considered as a machinery or as a plant.
There is no specific Tariff item for the impugned goods, which is basically and equipment incorporating a fuel and a wick for heating/warming food.” Hence goods are classifiable under CTH 36061000 and appellant is entitled for the benefit of Exemption Notification No. 26 of 2000 as claimed.
Confiscation of goods - HELD THAT:- Regarding violation of the provisions of Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, said Rules would apply only in cases where chemicals listed in the Schedules of above Rules are imported and not when imported as a finished product “Chafing Dish Fuel Wick”. Moreover, fuel in the imported containers is less than 300 Cm3 and as per the definition it is clear that if liquid or liquefied-gas fuels in containers of a kind used for filling or refilling cigarette or similar lighters of a capacity not exceeding 300 cm3, it is to be treated as different category. Thus confiscation of goods on the alleged violation of the provisions of Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 is unsustainable.
Waiver of demurrage charge - HELD THAT:- There is no finding in impugned order. However considering the order of absolute confiscation, appellant if approach respondent for issuing detention certificate, same will be considered in accordance with law.
Classification of goods under Tariff item 8419 8190 and penalty imposed on appellant are set aside - Appeal allowed.
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2023 (10) TMI 542
Territorial jurisdiction of courts - principle of Forum Conveniens - Seizure of goods - Supply of Pashmina Embroidered Ladies Shawls - prohibited goods or not - Contention that, cause of action had started at Srinagar only and the Notices/Communications have been made/received by the appellant-petitioner at Srinagar - HELD THAT:- Merely receiving of shawls from its suppliers by the appellant-petitioner, without any descriptive details in its petitions, cannot be said that the part of the cause of action had accrued within the territorial jurisdiction of this Court.
It was for the appellant-petitioner, to at least plead and also urge at the time of arguments before the learned Writ Court or even before this Bench substantially, as to wherefrom it had received supplies of the consignment of shawls manufactured from the prohibited yarn, so that the learned Writ Court or this Court in appeal could have said that in view of commission of offences in J&K, the appellant’s cause of action had arisen within the territorial jurisdiction of this Court, so as to entertain the writ petitions for their disposal on merits.
Merely pleading that the consignment was booked from Srinagar by the appellant-petitioner and the Notice/Communications from the respondents were received by the appellant-petitioner at Srinagar, does not disclose any cause of action having arisen at Srinagar so as to confer territorial jurisdiction on the basis of part of cause of action, exercising writ jurisdiction of this Court. In absence of any specific pleadings in the writ petitions as well as memoranda of appeals, it cannot be said that any part of cause of action had accrued to the appellant-petitioner at Srinagar. The learned Writ Court has rightly held that the seizure of the shawls containing prohibited material had taken place in Delhi, therefore, Delhi Courts/Fora shall be having jurisdiction in the matter and not this High Court.
The impugned common judgment passed by the Writ Court is maintained and upheld.
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2023 (10) TMI 541
Revaluation of imported goods - Vitrified and Porcelain Tiles - rejection of declared value - reliance placed on NIDB data - HELD THAT:- There is no discussion as to the quantity of import, commercial level and other data insofar as the NIDB data referred to is concerned, nor anywhere is found to any discussion by the original authority as to how the same were comparable with the impugned goods on hand, imported by the appellant. There is no discussion also as to the quality, thickness, etc., in the goods referred to in the NIDB data.
The Tribunal Benches across India have held that the NIDB data alone cannot be the basis for rejection of the transaction value. There is a reference to under-valuation way back in 2000, no specific reference to the appellant’s case, no reference ever made to the price being at arm’s length, nor is there any allegation that the transaction was between related parties. In the case on hand, the Revenue has not alleged anything other than relying on NIDB data.
The Revenue has to first establish that the goods imported and contemporaneous goods are identical in the first place before proceeding further, which exercise has not at all been done by the Revenue in the case on hand - The Hon’ble Apex Court in its latest judgement in the case of COMMISSIONER OF CUSTOMS (IMPORTS) , MUMBAI VERSUS M/S GANPATI OVERSEAS THROUGH ITS PROPRIETOR SHRI YASHPAL SHARMA & ANR. [2023 (10) TMI 364 - SUPREME COURT] has held that the legal position is that transaction value can be rejected if the invoice price is not found to be correct but it is for the Department to prove that the invoice price is not correct.
The under-valuation attempted by the Revenue does not persuade to approve the same in any manner - the re-valuation cannot be accepted that came to be upheld in the impugned Order-in-Appeal as well, for which reason the impugned order is set aside.
Appeal allowed.
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2023 (10) TMI 540
Claim for nil rate of CVD in terms of the N/N. 12/2012-C.Ex Sl. No. 105, List 1 Sl. No. 11 - requirement to pay CVD, which came to be debited in the FMS scrip furnished by the appellants - HELD THAT:- Serial number 105 describes the “bulk drugs specified in List 1” which would attract nil rate of duty, and there is no dispute that List 1 includes Hydrocortisone (Sl. No. 11) as well. But the description of excisable goods at Column No. (3) has something more, by way of explanation. That means the description has to be read along with the explanation and the same are not mutually exclusive. The explanation provides the purposes of that particular entry - bulk drug to mean any pharmaceutical, chemical, biological or plant product, including its salts, esters, stereo-isomers and derivatives, conforming to pharmacopoeial or other standards specified in the Second Schedule to the Drugs and Cosmetics Act, 1940, and which is used as such or as an ingredient in any formulation. It is therefore incumbent upon the importer who imports any of the goods or bulk drugs as in the case on hand specified in List 1 to demonstrate that the same are conforming to the pharmacopoeial or other standards specified in the Second Schedule to the Drugs and Cosmetics Act, 1940.
Admittedly, the appellant/assessee has nowhere demonstrated that the goods imported by it did conform to the standards specified under the explanation nor are the goods available for testing as they were cleared from Customs control before making the claim for exemption.
There are no hesitation in holding the authorities below were absolutely correct in rejecting the claim of the appellant - the appeal filed by the assessee is dismissed.
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2023 (10) TMI 539
Valuation of imported goods - mis-declaration on the part of the importer of the vessel with regard to transaction value of the vessel declared at the time of importation - Levy of penalty u/s 112 (a) & (b) and Section 114AA of the Customs Act, 1962 - HELD THAT:- The MOA dated 10.10.2010 wherein the price indicated as USD 63,68,295/- some sort of a performa invoice rather than actual sale agreement. The basic evidence on which the department has relied upon is this agreement wherein the price has been indicated as 63,68,295/- whereas it is found that on the same date and by the same party another agreement has been signed wherein the price agreed between the owner and the cash buyer is USD 61,31,400 (CIF).
It can be seen that as per Section 14 of the Customs Act, 1962 that value of the imported goods for the purpose of levy of Customs duty shall be the transaction value of the imported goods which is paid at the time of importation. It is found that transaction value is decided between the supplier of the goods and the buyer, which is importer in this case declared on the bills of entry for the purpose of assessment of the customs duty. The importer has opened a Letter of Credit in favour of the supplier of vessel which is for the amount indicated in MOA. The transaction value which have been declared on the bill of entry is the invoice value for which letter of credit through a recognized banking system has been opened. There is no evidence to suggest any extra payment to the supplier of the vessel except the invoice value - the invoice value is the true transaction value in this case and there is no element of misdeclaration of value.
Levy of penalty u/s 112 (a) & (b) and Section 114AA of the Customs Act, 1962 - HELD THAT:- These penalties have primarily been imposed by the learned Adjudicating Authority holding that transaction value has been misdeclared. Since it is already held in the preceding paras that charges of misdeclaration are not established, therefore, the penalties imposed on the other appellants are not sustainable and the same are set-aside.
Appeal allowed.
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2023 (10) TMI 538
Option to choose benefit of exemption - Allegation of wrongful availment of benefit under Sl. No. 91 of the Notification No. 04/2006-CE dt. 01.03.2006 - concessional rate of duty - allegation of the department that the CENVAT Credit availed on inputs and utilized the same in discharging duty for clearance of the goods availing concessional rate of duty inadmissible cannot be sustained - HELD THAT:- This issue has been considered by this Tribunal in the case of BALKRISHNA PAPER MILLS LTD, LAXMI BOARD AND PAPER MILLS LTD, COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE –I AND LAXMI BOARD AND PAPER MILLS LTD [2015 (11) TMI 210 - CESTAT MUMBAI] where it was held that appellant-assessees cannot be forced to pay duty as per serial No. 90 of Notification 4/2006 and they have option to pay the duty under other numbers, viz. 91 and 93.
There are no merit in the impugned order. Consequently, the impugned order is set aside. Appeals are allowed.
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2023 (10) TMI 510
Valuation of imported goods - Tin plates defective rejected sheets scrolled - re-determination of import value - rejection of declared value - reliance placed on contemporaneous imports of similar goods - HELD THAT:- While there is a reference made to contemporaneous imports of allegedly similar goods cleared through Group-4, there are also references made to distinguishing factors like numerable types of descriptions, grades, country of origin, place of exportation and importation, etc. This clearly throws a doubt as to the admissibility of such alleged contemporaneous imports and the very basis to treat the same as comparables with the goods in question that were imported.
Moreover, the officer has relied on alleged contemporaneous imports which were never put across to the appellant for rebuttal, but however, that such reliance on the contemporaneous imports itself has been doubted by the adjudicating authority when he holds that the value of the imported goods could not be determined under Rule 4 and Rule 5 due to variable factors like numerable types of descriptions, grades, country of origin, etc.; Rules 7 and 8 also could not be applied for want of quantifiable data at the place of exportation and importation respectively.
The quantity of import is much higher than the quantity of import in respect of the contemporaneous imports. Hence, so-called contemporaneous imports were in fact incomparables, due to which the rejection of the value of import as declared by the appellant is without any basis.
The re-determination of the import value by the Revenue is without any basis and certainly not in accordance with the spirits of law, for which reasons the same deserves to be set aside - Appeal allowed.
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2023 (10) TMI 509
Valuation of imported goods - Urea - rejection of the declared import values - primary observation in the Show Cause Notices appears to be that by virtue of the Government of India being a shareholder to the extent of 50% in the joint venture, the same had influenced the import value of urea - HELD THAT:- In its latest order in INDIAN FARMERS FERTILIZERS CO OPERATIVE LIMITED VERSUS C.C. -KANDLA [2023 (8) TMI 561 - CESTAT AHMEDABAD] the Ld. Ahmedabad Bench of the CESTAT in the respondent’s own case has held that it is apparent that the appellant importer and the foreign base exporter cannot be the treated as related parties.
There are no infirmity in the impugned orders passed by the Commissioner of Customs, Tiruchirappalli and the Commissioner of Customs, Tuticorin - appeal filed by Revenue dismissed.
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2023 (10) TMI 508
Valuation of imported goods - Wet Dates - rejection of declared value based on NIDB data of similar/ identical goods - enhancement of value of the imported goods without passing any speaking order - violation of principles of natural justice - HELD THAT:- In the instant case the Commissioner (Appeals) while accepting the departmental appeal against the order which was in favour of the appellant erred by not considering various legal requirements. The proper officer was required to indicate the basis of his reasonable doubts about the truth for the accuracy of the value that was declared and also as to why he was not satisfied with transaction value indicated by the appellants. Further the Commissioner (Appeals) did not address the issue that re-assessment under Section 17(4) of the Customs Act, 1962 was done without assigning any reason and without taking consent in writing from aggrieved appellants. Further while agreeing with the re-assessment done by the proper officer, Learned Commissioner (Appeals) has failed to appreciate that the proper officer had not passed any order indicating as to why the NIDB data should be accepted by the party and which one in particular and why transaction value was rejectable.
The reliance on the decision of UNITED COPIER SYSTEMS VERSUS COMMISSIONER OF CUSTOMS, DELHI-III [2009 (7) TMI 973 - CESTAT, NEW DELHI] and RAKESH KUMAR AGARWAL VERSUS COMMISSIONER OF CUSTOMS, TUTICORIN [2008 (7) TMI 738 - CESTAT, CHENNAI] by the appellants has been correctly placed in which it has been properly laid down that without putting before the party, the NIDB data for rebuttal and without bringing cogent evidence and reasons, transaction value cannot be rejected. It has been properly appreciated and relied upon by the original authority. Further we find that the adjudicating authority has also correctly pointed out that the misdeclaration can also be the basis for rejection of transaction value, but the same is absent in the instant case. Further, there are force in various cases law cited by the appellants as well as relied upon by the original authority that sanctity cannot alone be placed on NIDB data for rejecting invoice value.
The rejection of transaction value even when based upon NIDB data cannot be done without disclosing materials, as well as identical nature of the goods, and transaction value rejecting through reasoned order. In absence of the same on the part of proper office rejection of transaction value without complete disclosures is invalid.
There is nothing on record to indicate that the proper officer having doubted the transaction value on the basis of NIDB data, sought any further information from the appellant/importer by way of documents or evidence or even in the absence of such information had applied its mind to the truth or accuracy of the value declared as per above requirement - The truth or accuracy and communication of the same even when requested at the de novo remand stage of litigation by the appellants importers. Further it is also for the proper officer to given opportunity of hearing before deciding transaction value in terms of Valuation Rules 2007.
What has been desired by settled law is woefully lacking in the present proceeding, while rejecting transaction value. Rejection is therefore improper - Appeal allowed.
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2023 (10) TMI 507
Imposition of personal penalty u/s 112(a) of FA - seizure of cigarettes of Indonesian origin imported by concealment inside a consignment declared as Dining Sets - HELD THAT:- The Appellant has deployed his employees to look after the clearance of the import consignment. We also observe that the Appellant has admitted that they have assisted the CHA in clearance of the consignment of cigarettes of Indonesian origin which were concealed inside a consignment declared as Dining Sets. Thus, penalty is imposable on the Appellant for the abetting the commission of the Offence.
The adjudicating authority has imposed a personal penalty of Rs.1,00,000/- in the impugned Order-in-Original dated 26.12.2014, which appears reasonable and commensurate with the offence committed. Accordingly, there are no reason to interfere with the impugned order imposing penalty on the Appellant.
The penalty imposed on the Appellant in the impugned order upheld - appeal filed by appellant rejected.
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2023 (10) TMI 453
Jurisdiction/authority/power of Appellate Tribunal to entertain an appeal against an order passed under Section 137 of the Customs Act, 1962 - application for compounding an offence - HELD THAT:- From a plain perusal of the statutory provision under Section 137 of the Customs Act, it would clearly reveal that an application for compounding of any offence under this chapter has to be placed before the Chief Commissioner of Customs.
The intention of the law makers while enacting the law or any authorized officer or a competent authority who has been entrusted with a power to decide or adjudicate, automatically becomes an adjudicating authority. Sub- section 1 of Section 129-A in this regard would clearly mean that an adjudicating authority is one who has passed a decision or an order. They would be an authority competent and thereby would become an adjudicating authority - on an application which stands decided under Section 137 (3), the Chief Commissioner becomes the adjudicating authority or a competent authority under the Act to take a decision on an application bringing him under the purview of an adjudicating authority. No provision under the Act envisages that decision taken under Section 137 (3) or for that matter, a decision taken by the Chief Commissioner would not be an appealable order and that his order would be final, so as to accept the contention of the learned counsel for the appellant that it is only a writ remedy that is available to him.
There are no infirmity in the order passed by the Tribunal, nor does this Court find sufficient force in the arguments of the learned counsel for the appellant. Moreover, the order of the Tribunal also is not in any manner adverse to the interest of the Department - appeal dismissed.
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2023 (10) TMI 452
Reversal of Duty Drawback - Advance Licence and duty drawback are mutually exclusive or not - goods imported duty free under advance licence scheme can be utilized in the manufacture of goods exported under duty draw back (All Industry Rate) or not - Rule 3(1) of the Customs and Central Excise Duties Drawback Rules 1995 r/w General notes No.2(b) to the Notification No. 26/2003 Cus (NT) dated 01.04.2003.
HELD THAT:- Circular No.19/2005 dated 21.03.2005 concedes to the position that duty drawback is sought by manufactures who use exempted/duty free inputs. The rates in such cases are the AIR. To be noted that Clause 4.1.14 of FTP does not specifically talk of either Brand rate or AIR and thus, it is the submission of the assessee that it would apply only to those cases where brand rates apply. This is for the reason that it is only in such cases that a bifurcation of the individual components and consequent apportionment would at all, be possible - A perusal of the Circular makes it clear that AIR duty is to be allowed in full in cases where a portion of inputs would qualify to be non-duty paid. Thus, the absolute position under the 1995 Rules has stands modified somewhat by clause 4.1.14 of FTP and Circular No. 19/2005.
The substantial questions of law are thus answered in favour of the assessee and adverse to the revenue - The Circular proceeds on the basis that the inputs that are duty exempt constitute only a fraction of the over-all inputs used, as otherwise, the very purpose of the DD Scheme would become redundant. Abuse of the position, as recognized even under Circular No.19/2005 is not an impossibility.
In the present case, there is a finding of fact by the Tribunal to the effect that the indigo blue used in the goods claiming duty drawback, is only a fraction. This finding of fact has not been challenged as perverse in this appeal and has become final. Thus, our answer to the questions of law is premised on this factual finding - Appeal dismissed.
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2023 (10) TMI 451
Absolute Confiscation - Seeking redemption of prohibited goods - levy of penalty u/s 112 (a) and (b) of the Customs Act, 1962 and u/s 114AA of the Customs Act, 1962 - Gold of foreign origin - denial of opportunity to declare the goods and to pay Customs duty - retraction of statements - HELD THAT:- There is no bar on the Adjudicating Authority allowing redemption of prohibited goods. The reason for such discretion left to the adjudicating authority is evident. In case of prohibited goods, the nature of the goods and the nature of the prohibition vary and cases have to be dealt with exercising discretion. For instance, spurious drugs, arms, ammunition, food which does not meet the food safety standards, etc. are harmful to the society if released to the owner and they find their way into the market - There is absolutely no bar in Section 125 on the adjudicating authority releasing any goods whatsoever, which are prohibited or restricted on payment of redemption fine. The adjudicating authority can allow redemption under Section 125 of any goods which are prohibited either under the Customs Act or any other law on payment of fine but he is not bound to so release the goods.
The appellant in his statement recorded in his own hand writing has informed that the gold was handed over by an unknown person in Dubai as arranged by Shri Mubash who also hails from his native place Thalasserry, Kerala and he has agreed to carry the gold due to his family financial conditions for a consideration of Rs.25,000/-. There was no retraction of the above statement recorded under Section 108 of the Customs Act, 1962, till the case came up for hearing before the Tribunal. The appellant being an ineligible passenger could not have brought gold and clear after declaration on payment of duty. As, at that relevant time even an eligible passenger can bring only 1 Kg gold in terms of Notification No. 12/2012-Cus dated 17.03.2012. The smuggling of gold by the appellant is proved beyond any doubt. So, it was rightly confiscated absolutely by the original adjudicating authority.
Penalties under Section 112 and also 114AA of Customs Act, 1962 - HELD THAT:- A reading of these provisions make it clear that there is no bar for imposition of penalties under both these Sections. Penalty is imposable for rendering the goods liable for confiscation by one’s acts of omission and commission under Section 112 of the Customs Act, 1962. Whereas, penalty under Section 114AA is imposable if any person knowingly or intentionally makes, signs or uses or causes to be made, signed or used any declaration, statement or document which is false and incorrect - Having rendered the gold liable for confiscation penalty under Section 112 of the Customs Act, 1962, penalty is imposable and has been rightly imposed. In the Customs Declaration Form which has been filed in, he had written “nothing’ against the column of “total value of goods imported’. So, penalty under Section 114AA is imposable. As such penalties imposed under Section 112 & 114AA of the Customs Act, 1962 are in accordance with the legal provisions in the instant case.
The penalties imposed are harsh as he accepted and acted to smuggle gold for a consideration of Rs.25,000/-. So, penalty imposed under Section 112 of Customs Act, 1962 is reduced to Rs.2,00,000/- and penalty imposed under Section 114AA of the Customs Act, 1962 is reduced to Rs.1,00,000/- - appeal allowed in part.
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2023 (10) TMI 447
Seeking waiver (exemption) of cost recovery basis - whether the CFS has achieved the bench marking for waiver of cost recovery charges - CFS has operated for two consecutive years from the date of sanction order for creation of posts - conditions as mentioned in instructions issued by GOI on 12.09.2005, fulfilled or not.
Case of appellant is that waiver of recovery of charges could not be restricted on the ground that the proposal for exemption from payment of cost can be considered after the CFS has operated for two consecutive years from the date of sanction order for creation of posts which sanction order was dated 18.03.2020.
HELD THAT:- The petitioners on 12.05.2008 made an application for establishment of a service unit at Mundra. By a notification dated 19.08.2011, in exercise of powers under Rule 11(11) of the Rules, the entire area of the CFS of the petitioner company was designated as Landing Place for unloading of imported cargo and loading of export goods meant for both SEZ and DTA. By a notification no. 2/2016-17, the office of the Principal Commissioner of Customs appointed the petitioner company as a Custodian of such cargo in accordance with the notification dated 19.08.2011 on certain conditions.
Reading the aforesaid condition would indicate that the posting of custom officials at the CFS of the petitioner company, the petitioners had to bear costs of the custom officials posted at the station of the petitioners. This was on a cost recovery basis and the payments were at such rates and the manners specified by the Government of India. Reading of the notification dated 12.09.2005 would indicate that it deals with waiver of payment of cost recovery charges in respect of CFS.
Reading the communication would indicate that the authorities considered regularization of those cost recovery posts at ICDs/CFS which have been in operation for two consecutive years with following performance benchmarks for the past two years. In case of the petitioners , admittedly, for the two yeas i.e. 2017-18 & 2018-19 the benchmark beyond 1200 for handling containers and as far as the number of bills of entry and shipping bills has been complied with.
In the impugned communication, it is the case of the respondents that since the sanction of such posts was with effect from 18.03.2020 the waiver can be considered only after two years from such date and on fulfilling the additional conditions as per the circular dated 12.09.2005.
Perusal of the records in the petition would indicate that when the sanction was accorded to the petitioner company for operating as a Designated Landing Site in accordance with the notification dated 19.08.2011 on 11.05.2016, on 17.07.2014 the office of the Commissioner of Customs, Kandla on the subject of creation of posts on cost recovery basis had observed that the office was in the process of granting approval as custodian to the petitioner company under Section 45 of the Act. As per para 2(b) of Circular No. 34/2003 dated 24.04.2003, it was mandatory to take prior approval for posting of officers and staff on cost recovery basis in the ICD/CFS. The creation of the requisite number of posts should precede the notification and therefore an approval was sought for.
It is undisputed that the petitioners have qualified for waiver of cost recovery charges on completion of two years when in the years 2017-18 and 2018-19 they have achieved the benchmark as stipulated in the circular of 12.09.2005 and therefore the sanction of a post was a matter of internal arrangements between the departments which had no bearing on the cost recovery and/or waiver of such charges. The denial of waiver on the ground that such costs cannot be waived as the posts had not been sanctioned at the relevant point of time certainly is arbitrary and therefore cannot be sustained.
The petitioners are entitled to waiver of cost recovery charges in light of circular dated 12.09.2005 with effect from 01.07.2019. Costs recovered towards posting of custom officials at the petitioners’ CFS post 01.07.2019 be refunded to the petitioners - Petition allowed.
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2023 (10) TMI 438
Quantum of penalties levied under Section 112 as well as Section 114AA of Customs Act - levy of personal penalty imposed on the second appellant Mr. K. Naser - whether the penalties are unjust and disproportionate to the quantum of offence? - Smuggling - gold concealed inside the pressure washer pumps, absolutely confiscated.
HELD THAT:- Considering the overall facts and circumstances including the fact that imported goods and the gold suffered absolute confiscation, it is opined that the imposition of penalty under Section 114AA if reduced from Rs.10,00,000/- to Rs.5,00,000/- it would meet ends of justice in the case of appellant-company.
There are no justifiable reason to interfere with the personal penalty imposed on the second appellant Mr. K. Naser.
Appeal disposed off.
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9911796707
