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Customs - Case Laws
Showing 41 to 60 of 1606 Records
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2023 (12) TMI 919
Prayer for direction upon the respondent customs authority concerned to pay to the petitioner value of goods in question as on the date of seizure - seizure was on the ground of foreign origin and that it was smuggled in nature - HELD THAT:- Considering the facts and circumstances of the case and submission of the parties and in view of the order of the appellate authority dated 1st March, 2021 holding that the adjudication order confiscating the goods in question and imposition of penalty not sustainable in law, action of respondents customs authority neither returning the seized goods in question to the petitioner nor paying the value of goods as on the date of the seizure is arbitrary and illegal and accordingly the respondent customs authority concerned is directed to pay to the petitioner the value of goods in question as on the date of seizure within a period of four weeks from the date of communication of this order.
Petition disposed off.
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2023 (12) TMI 918
Provisional release of goods - Valuation of goods - applicability of N/N. 5/2023 which imposes minimum cap of Rs. 50/- per kg. for import of Apples - HELD THAT:- The petitioner is entitled to provisional release of goods as prayed for for more than one reason. Notification No. 5/2023 which imposes minimum price of Rs. 50/- per kg for import of apples has been stayed by the Kerala High Court. Secondly, only issue is with respect of valuation and goods being perishable in nature and further the petitioner is willing to comply with the terms and conditions to be put forth by respondent no. 2 for provisional assessment of goods there does not seem to be justifiable release to detain the goods. In the light of these facts, it would be in the interest of justice that the petition be allowed.
The Respondents are directed to provisionally assess the Bill of Entry No. 8733339 within a period of four days from today and release the goods on the petitioner furnishing the bond - petition disposed off.
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2023 (12) TMI 917
Maintainability of appeal - non-prosecution of the case - HELD THAT:- There are no justification for adjourning the matter beyond three times which is the maximum number statutorily provided.
The Appeal is dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
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2023 (12) TMI 916
Provisional release of the seized goods - appellants were availing exemption from payment of customs duty on import of Gold bars under Advance Authorisation Scheme - HELD THAT:- From the perusal of the legal provisions of the Customs Act, 1962, it transpires that ‘the proper officer’ under Section 110(1) ibid, if he has reason to believe that any goods are liable to confiscation, then he may seize the goods. In terms of sub-section (2) to Section 110 ibid, a Show Cause Notice (SCN) in respect of the seized goods is required to be given within a period of 6 months to the person from whose position the goods were seized. For any reasons to be recorded in writing, such period of 6 months may be extended to another 6 months’ time by competent authority specified therein. It is also provided that this time limit does not apply in cases where the goods have already been released to the goods. However, CBIC in its instructions No.1/2017-Customs dated 08.02.3017 had required that the field formations shall adhere to the time limits prescribed under Section 110(2) ibid, irrespective of the fact that whether goods remain seized or are provisionally released.
For cases to be adjudicated within the competence of Principal Commissioner/ Commissioner of Customs or an Addl./ Joint Commissioner of Customs, one year from the date of service of the SCN has been fixed as the outer time limit; for the authorities below, namely Asst./Dy. Commissioners and other gazetted officers, the time limits have been fixed as 6 months and 3 months, respectively. Further, in cases where such time limits could not be adhered to by an adjudicating authority, due to circumstances that prevented from observing that time limits, then the supervisory officer has been asked to fix appropriate timeframe for disposal and monitoring of such cases.
On analysis of the legal provisions contained in Section 110 (A) ibid, and in view of the development in the pending show-cause proceedings before the Commissioner of Customs- IV (Export), the appeal for provisional release of goods has become infructuous on account of final orders having been passed on the show cause notices issued in respect of such seizure of goods.
The appeal filed by the appellants has become infructuous inasmuch as the SCNs issued by the department had already been adjudicated. Hence, the present appeal filed before the Tribunal for unconditional release of the seized goods cannot be considered - appeal dismissed.
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2023 (12) TMI 860
Recovery of customs duty - warehoused goods - priority to recover dues - attachment of property - charge created by the second respondent Bank / financial institution, being a secured creditor - overriding effect of SARFAESI Act, 2002 on the provisions of the Central Excise Act of 1944 or not - HELD THAT:- Having heard learned ASG for the petitioner, the special leave petition is dismissed both on the ground of delay (404 days) as well as on merits.
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2023 (12) TMI 859
100% EOU - Remission of duty on goods destroyed in the fire - liability to pay anti-dumping duty (ADD) - eligibility for the benefit of notification No.52/2003 CUS, in respect of the materials destroyed in the fire accident.
HELD THAT:- In the present case, Notification No.96/2007 CUS dated 29.08.2007, which imposes the levy of anti-dumping duty on the goods does not make any mention that it is specifically made applicable to EOU/SEZ. The second condition is that the goods imported are either cleared as such into DTA or used in the manufacture of any goods that are cleared into the DTA. The goods having been destroyed in fire, there is no occasion of the goods cleared as such into DTA or used in the manufacture of finished products for clearance into DTA - The department has relied upon Notification No.5/1994 CUS dated 18.11.1994. The said notification also states that only if the goods are cleared as such into DTA or used for manufacture of finished products and are cleared into DTA, the exemption of the notification would become ineligible.
The goods imported were destroyed in fire and therefore, there is no requirement to look into the fulfilment of the conditions of Notification No.52/2003 dated 31.03.2003 - the appellant is eligible for remission of duty. Having been paid under protest, the appellant is eligible for refund.
The impugned order is set aside. The appeal is allowed
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2023 (12) TMI 799
Maintainability of appeal - low tax effect - appellant submitted that in view of Customs Notification dated 02.11.2023, issued by the Ministry of Finance, Government of India, these appeals may not survive for consideration, owing to low tax effect - Attachment and Recovery of Customs duties - Scope of the Definition “Defaulter” - HELD THAT:- The Civil Appeals are dismissed owing to low tax effect keeping the questions of law, if any, open, to be advanced in any other appropriate case.
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2023 (12) TMI 798
Levy of penalty u/s 114AA of the Customs Act, 1962 on the firm as well as on Director - appellants sold the stock of duty-free gold in the open market (domestic) which was procured under the condition to be used for the export of the jewellery - HELD THAT:- The very fact that the customs authorities acted on the export obligation papers, as submitted by the appellant, is evident that export of jewellery by the appellant has taken place. Consequently, the conditions of the exemption notification read with the relevant circular and FTP stands fulfilled. Once the appellant had exported the jewellery and submitted all the proof of exports to the bank / importer and relying on those documents of export the customs authorities had not even doubted on the genuineness, the appellant cannot be held responsible for any violation so as to be charged with any kind of penalty under the Act.
The reasoning adopted by the revenue is that as per the tally sheets on certain days, the appellants were having stock of only duty-free gold and they did not have any stock of duty-paid gold and therefore the inference would be that they have diverted the duty-free gold in the market. The submissions of the revenue deserves to be rejected in view of the Circular No. 23/2018 dated 23.07.2018 issued by the CBIC, clarifying that there can be no one-to-one correlation between the consignment of imported precious metal and the export of jewellery due to the homogeneous nature of precious metal. The said circular is binding on the department and resolve the doubt raised by them in this case.
Once it is held by the adjudicating authority that the demand of duty would arise only if the condition of export of jewellery is violated, the necessary implication is that the exporter has fulfilled its obligation of exporting the gold jewellery of equivalent quantity of gold procured by them from the nominated agency.
It is not a case where the appellant has submitted any false or incorrect undertaking so as to attract the provisions of section 114AA of the Act - The adjudicating authority while imposing the penalty on the appellant under section 114AA had proceeded on assumptions and presumptions that the jewellery has been made from the gold purchased from the domestic market on the basis of VAT invoice and depending on price fluctuation, they sold the gold in the domestic market and therefore they have not complied with the undertaking, resulting in giving a false and incorrect declaration. The said reasoning is not sustainable as it is not based on any evidence.
There is no ground for imposing penalty under section 114AA of the Act - impugned order imposing penalty of Rs.5 lakhs on M/s Derewala Industries Ltd., and Rs. 1 lakh on Shri Yogendra Garg, Director of M/s. Derewala Industries Ltd., under section 114AA of the Customs Act, 1962 is, therefore set aside - Appeal allowed.
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2023 (12) TMI 797
Classification of imported goods - Automotive Diesel Fuel misdeclared as Mixed Glycol or Base Oil - restricted goods or not - validity of the test reports on the ground that the samples have not been tested on all the 21 parameters specified in IS:1460:2005 (BIS standard for Automotive Diesel Fuel) - undervaluation of imported consignments - misdeclaring the net weight of the consignments to evade proper payment of customs duty - Penalty under section 112(a) and section 114AA.
Classification of imported goods - HELD THAT:- According to the appellant, the two reports have given different findings for same parameters and since there is no other corroborative evidence, the impugned order is unsustainable. There are no merit in the submissions made by the learned Counsel for the simple reason that test have been conducted by highly specialized government laboratories, i.e., CRCL and SFPL and no fault can be found on the test reports submitted by them.
From the two reports, it is clear that the impugned goods are ‘Automotive Diesel Fuel’ and conform to the standards of IS:1460:2017 and therefore the challenge that the samples have not been tested on all the 21 parameters is baseless and does not establish that the goods are not Automotive Diesel Fuel.
The controversy that the goods have not been tested on all 21 parameters would not really make any difference and even on the basis of limited parameters the identity of the goods stands established in view of cogent and substantive evidence in the form of test reports by the two independent government laboratories. These test reports cannot be said to be incomplete or inconclusive. Consequently, the goods in question imported by the appellant were mis-declared as they were not Mixed Glycol and Base Oil but were Automotive Diesel Fuel, the import whereof is restricted only by State Trading Enterprises in terms of the Import Policy, 2017. Therefore, the impugned goods being Automotive Diesel Fuel was covered under CTH 2710 1944 and not under CTH 2710 1971 as per the declaration made by the appellant.
The veracity of these test reports given by highly technical experts is not open to challenge on frivolous grounds of cross examination sought to be raised by the appellant and as rightly noted by the adjudicating authority that it is only an attempt by the appellant to delay the proceedings. The statement of the proprietor has been recorded under Section 108 which is admissible in evidence, wherein he accepted the test reports and refused to comment thereon and in that view no fruitful purpose would have been served by allowing cross examination. Moreover, the said statement has never been retracted by him.
Valuation of the impugned goods - HELD THAT:- In the present case, on the basis of the intelligence, the data of live import of subject goods were examined in respect of four individual importers, namely, M/s Mangli Enterprises, M/s Vishal Oil and Lubricants Co., M/s. Shobhag International Private Ltd and M/s Petro Lubes India Ltd. - the value declared by the appellant of Rs.66,31,08,429/- was rejected and the same was redetermined at Rs. 79,57,301/- under Rule 4 and 5 of the Customs Valuation Rules, 2007, read with Section 14 and Section 17(4) of the Customs Act. I, therefore, uphold the demand on account of value difference as calculated by the Authority.
Mis-declaration of goods - HELD THAT:- The appellant had mis-declared the goods, and therefore mis-classified them, which resulted in misdeclaration of the value of the goods, the authorities below rightly held that the goods were liable to confiscation under section 111(d)(f) and (m) of the Customs Act. The said goods are restricted goods as only State Trading Enterprises could import them and the appellant had no authorization to import the restricted goods. Since the import is contrary to the restrictions placed on such imports by the Government of India, hence, the seized goods have become prohibited goods in terms of section 2 (33) of the Customs Act and therefore order of absolute confiscation in the present case is justified - Also, considering the fact that the impugned goods are highly inflammable and require expertise to handle them, requiring special storage facilities, the adjudicating authority rightly rejected the redemption of these goods and ordered absolute confiscation.
Penalty under section 112(a) and section 114AA - HELD THAT:- The Adjudicating Authority had imposed penalty of Rs. 35 lakhs under Section 112 (a) and Rs. 20 lakhs under Section 114AA of the Customs Act, however, the Appellate Authority reduced the same to Rs. 15 lakhs and Rs 10 lakhs under section 112(a) and 114AA respectively, considering that the section prescribes only the upper limit of penalty that can be imposed and since the goods have been absolutely confiscated, the penalty needs to be moderate - the impugned order agreed upon that the penalty as imposed by the adjudicating authority was excessive.
Appeal dismissed.
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2023 (12) TMI 796
Classification of imported goods - Rubber Processing Oil (RPO) - classifiable under CTH 27101990 as claimed by the appellant or under CTH 2707 99 00 as per final assessment ordered by the department? - country of origin - Singapore or UAE where the appellant has not claimed any preferential rate of duty? - penalty - Enhancement of declared value twice.
HELD THAT:- The submission of the appellant is that test report of Customs laboratory, Kandla does not mention, the method adopted by customs laboratory for testing the sample. Therefore, the said test report cannot be qualified as evidence to decide the classification - as against the above test report dated 26.09.2012. The Quality Certificate No. TOP 2012/COQ-148 dated 02.08.2012 provided by the supplier M/s. The Oceanic Petroleum Source Pvt Ltd., Singapore shows aromatic content as 35.8 measured by adopting ASTM D2140 method. Moreover, accredited laboratory namely Geo Chem also vide report dated 06.10.2012 reported aromatic content is 35% and since 50% shown by the custom laboratory test report which does not mention method of testing sample, preference has to be given to the Geo Chem test report dated 06.10.2012 coupled with Supplier's quality certificate according to which the aromatic content being 33.08% - 35% is less than the non-aromatic content - the Rubber Processing Oil (RPO) is correctly classified under CTH 27101990.
Country of Origin - HELD THAT:- The appellant had placed order with Oceanic Petroleum Source Pvt. Ltd, Singapore, who had shipped the goods from Malasiya. The Country of origin was shown in the invoice as UAE. The same was held as Malasiya by the lower authority, by relying on statement of Shri Hemant Shah, Director of appellant - it is found that, it is submitted that the appellant has not claimed any preferential rate of duty on the basis of declaration regarding country of origin.
Penalty - HELD THAT:- Without going into the fact that, which is the correct county of origin, since the appellant has not claimed any concession on the basis of country of origin the issue is only of aromatic content and having no revenue implication. Therefore no consequential penalty is sustainable.
Enhancement of the value of the imported goods twice, from USD 500 PMT(C &F Kandla) to USD 531.500 PMT(C & F Kandla) - further enhancement to USD 585 on the basis of the copy of invoice received from shipping agent - HELD THAT:- Once the value was enhanced from USD 500 PMT to USD 515 PMT , which was accepted by the appellant. However, the value was further enhanced to USD 585 only on the basis of one invoice bearing No. TOP SPL /CP/34 dated 09.07.2012 produced by the shipping agent - the assessable value is determined by adding freight @20 % and insurance @ 1.125%. We find that the appellant tendered copy of Bill of Lading No. MYPKGINIXY517631 dated 12.07.2012 for the subject goods confirming that freight was pre-paid. Therefore, when the freight is pre-paid and inclusive in the price, there is no requirement to add element of freight @20% for USD 585.
It is also observed that about the invoice produced by the shipping line, the appellant had no knowledge and it is not also known when such invoice was produced before custom authority at the port of export - enhancement of the value from USD 531 to UD 585 is without any basis and the same is not sustainable.
The impugned order so far it is against the appellant is set aside and consequential penalty imposed on Shri Hemant Shah, Director is also set aside. Accordingly, the appeals are allowed
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2023 (12) TMI 795
Classification of imported goods - TMR Mixer Wagon for KFL Densified Fodder Plant - to be classified under Chapter 8436 99 00 or under CTH 8716 20 00? - appellant had accepted the assessment order without Any dissent in writing it had attained finality in terms of section 17 of CA - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] has observed as that There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4).
In the present case, the assessment is made against the declaration made by the appellant and inspite of recording the protest made by the appellants against such assessment, no speaking order was issued. As observed by the Hon’ble Supreme Court, even if there is no lis, speaking order is mandatory once the assessment was challenged under protest.
The matter is remanded to the Adjudicating Authority to decide the issue on merits - Appeal allowed by way of remand.
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2023 (12) TMI 794
Confiscation - redemption fine - penalty - import of musk melon dried seeds - restricted goods or not - precondition for resumption of title to the goods for re-export - HELD THAT:- The goods, being agricultural products, are subject to conditions of import which, if diluted, may cause outcomes that may not be particularly palatable to the agricultural interests of the country. Accordingly, there are no reason to entertain the plea that the restriction should be ignored. The absence of authorization to import ‘musk melon dried seeds’ draws the consequence of confiscation under section 111(d) of Customs Act, 1962. Instead of regularization, which is the aftermath of such confiscation and consequential fiscal restitution, the imported goods had been deemed as not fit for home consumption and, therefore, ordered to be re-exported. There are no reason to interfere with barring the entry of goods into the territory of India.
It was on record that the amendment of the erstwhile policy on free import of the impugned goods was effected in April 2021 and the impugned goods had been shipped in the same year. It is quite possible that the appellant was in the dark about the changes in the policy and, considering that the goods have not been permitted for clearance for home consumption, it would be unjust to burden the goods with the detriments of redemption fine and imposition of penalty.
While holding the goods liable for confiscation under section 111(d) of Customs Act, 1962 and, as the same are directed to be re-exported but for which the central government would be saddled with possession of such prohibited goods with no evidence of deliberate contravention of restriction, it is deemed appropriate to set aside the redemption fine. Likewise, the penalty is also set aside - appeal disposed off.
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2023 (12) TMI 793
Classification of imported goods - insoluble Sulphur with trade name “Crystex HS OT 20 - to be classified under CTH 2503.00.90 of Customs Tariff Act, 1975 or under CTH 3812.30.30? - appeals rejected without deciding the issue on merits taking the recourse of Section 17(5) of the Customs Act, 1962 - HELD THAT:- In the present case, it is found that after rejection of the classification of the appellant declared in their Bills of Entry, they paid the duty under protest and preferred appeal before the learned Commissioner(Appeals). Therefore, the learned Commissioner(Appeals) ought to have decided the appeals on merits instead of rejecting the same by observing that the appellant has accepted the re-assessment. Further, the Hon’ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] has held that Revenue as well as appellant can prefer an appeal against the order of the assessment.
The impugned orders are set aside and the case is remanded to the learned Commissioner(Appeals) to decide the issue of classification on merit, after affording an opportunity of hearing to the appellant - Appeals are allowed by way of remand.
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2023 (12) TMI 792
Levy of penalty on appellant u/s 114 (i) and 114 AA of the Customs Act, 1962 - export of Bentonite Powder - exporter mis declared the goods - assisting / abetment of export of Muriate of Potash - HELD THAT:- The allegation by the department is that appellant assisted the main accused in illicit export of goods. Moreover after filing shipping bill, routine examination of the goods was done and Let Export order was also issued. There is no evidence available on record to establish that the appellant had knowledge regarding export of Muriate of Potash in the guise of Bentonite Powder. Based on the fact that the Appellant had prepared the documents without the signature of the exporter, no conclusion can be drawn that Appellant was aware about the presence of prohibited goods. While considering the very same issue, this Tribunal set-aside the penalty on the ground that “it is not the case of the department that driver or agent or person in-charge of the vehicle had knowledge nor such ground has been taken in the show-cause notice”.
There is no concrete admissible evidence to prove that the appellant had facilitated the mis-declaration of the goods so as warrant penalty on the Appellant. Considering the same, penalty imposed on the Appellant both under section 114 (i) and 114 AA of the Customs act, 1962 are set aside - Appeal allowed.
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2023 (12) TMI 791
EPCG Scheme - fulfillment of export obligation partly - evasion of customs duty - denial of benefit of Notification No. 160/1992-Cus dated 20.04.1992 - Scope of the order passed in remand back proceedings - HELD THAT:- There is no provision in the notification for giving any such benefit. Notification 160/92 dated 20.04.92 stipulates that the importer undertaking an export obligation equivalent to 4 times the CIF value of the capital goods over a period of five years shall import the goods at concessional rate of 15%".
The Tribunal in Ajawat Industries Ltd. Versus Commissioner Of Customs, Bangalore [2006 (6) TMI 448 - CESTAT, BANGALORE] on appeal against this order had clearly observed that "the extent of export obligation fulfilled should be taken into consideration towards the duty liability in view of the amendment to the notification No.160/92 dated 20.04.92 with retrospective effect by section 115 of the Finance act read with entry No.2 of the eighth schedule". When the respondents filed an appeal against this order of the Tribunal, the Hon'ble High Court of Karnataka held that "if the revenue is aggrieved by the order of the Tribunal, the revenue has to file an appeal before the Hon'ble Supreme Court since the dispute is in relation to the rate of duty leviable on the assessee in view of two different notifications".
The Tribunal in its final order had categorically observed that there is no justification for holding the goods liable for confiscation as there was no willful non-compliance of the notification, the order of confiscation by the Commissioner is not justifiable when the remand order was purely for re-quantification of demand of duty. Therefore, confiscation of the goods along with the redemption fine set aside.
Further regarding interest and penalty, this Tribunal had taken a clear view and held that there is no provision for interest at that relevant time and set aside the demand for interest.
The adjudication authority ought to have followed the findings given by this Tribunal by quantifying the extent of duty without ordering confiscation of goods, imposing interest and penalty. Hence the Adjudication Authority violated the terms of the remand order. Regarding non-consideration of the extent of export obligation, once the Tribunal has given a finding that the appellant complied with the export obligation, Adjudication authority ought to have quantified the duty liability of 40% against goods imported under License No. 3031914 dated 04.07.1994 as the appellant fulfilled export obligation to the extent of 60% and quantify the duty liability of 85% against goods imported under license No. 2183783 dated 04.01.1994 as the appellant completed export obligation of 15%.
The appeal is allowed so far it exceeds the re-quantification of duty liability with consequential relief if any as per law. Confiscation and redemption fine along with interest and penalty also set aside.
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2023 (12) TMI 757
Classification of imported goods - Echo Family Devices - classifiable under CTH 8517 and more particularly Tariff Entry 8517 62 90 thereof or under CTH 8518? - HELD THAT:- A similar question arose for the consideration of the Supreme Court in Commissioner of Customs, Central Excise and Service Tax, Hyderabad vs. Ashwani Homeo Pharmacy [2023 (5) TMI 191 - SUPREME COURT]. In this case also the manufacturer had asserted that notwithstanding the product being styled as a ‘hair oil’, it was liable to be classified as a ‘medicament’ where it was held that substance of the matter remains that in common parlance, the product in question would be approached essentially for its claimed medicinal qualities and not as another hair oil.
It is thus evident from the aforenoted principles as enunciated by the Supreme Court that the mere description of the product as a ‘hair oil’ or ‘shampoo’ would not be conclusive for the purposes of classification under the CTH. The decisions in Sarvotham Care [2015 (8) TMI 250 - SUPREME COURT]] and Ashwani Homeo [2023 (5) TMI 191 - SUPREME COURT] thus clearly explain the legal position to be that nomenclature alone would not constitute a defining basis for the purposes of answering a question of classification. When the aforesaid principles are applied to the facts at hand, it becomes clear that merely because the appellant or others had chosen to describe the products as smart speakers, the same could have neither been accepted as being conclusive of the issue that arose nor could the description of the products detracted from the right of the appellant to urge the AAR to examine the issue of classification by applying the dominant function test.
The tests evolved by courts in connection with the issue of classification such as nomenclature, common parlance, principal function, primary and incidental purpose are all aids and rules of guidance liable to be cumulatively borne in consideration in order to ascertain the true character of a product. While none of those tests are accorded preeminence, it is ultimately for the authorities to ascertain which of those rules would merit adoption and represent an accurate understanding of the nature of the product.
As is evident from the explanation of the unique features of the products in question, they were principally designed to act as mediums for reception and transmission of data and could additionally and as an aside also be used as a speaker. However, since these were essentially reception and transmission devices which could analyze data and perform the varied functions noticed above, they were rightly described by the appellant as being communication devices and thus answering the requirement of machines for the reception, conversion and transmission or regeneration of voice, images or other data as contemplated under Tariff Entry 8517 62 90.
The impugned devices perform a host of functions including reception, conversion and transmission of voice or other data to produce the requisite final output warranting their classification under CTH 8517 - merely because these devices could if so chosen by the user also be used as mere speakers, the same would not justify us recognising their primordial attribute to be that of a speaker alone.
The eleven devices are correctly classifiable under CTH 8517 and more particularly under Tariff Entry 8517 62 90. Echo Show 5, Echo Dot 4th Generation and Echo Dot 4th Generation with Clock are held eligible to claim exemptions in accordance with SI. No. 20 of the Notification dated 30 June 2017, as amended vide Notification dated 01 February 2021 - the impugned order set aside.
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2023 (12) TMI 756
Confiscation of the goods alongwith the vehicle - Clearance of goods from Noida SEZ - demand of duty on the goods allegedly manufactured and clandestinely cleared to DTA by the appellant without paying the excise duty - benefit of notifications for CVD and SAD.
Exemption notifications applicable to CVD - HELD THAT:- Entry at S.No. 171 exempts ornaments and like articles ‘whether or not set with stones or gems or pearls’ which leaves no manner of doubt that diamond studded jewellery was clearly exempted under the notification. For these reasons, it is found that the appellant was entitled to the exemption from additional duty of Customs (CVD) under Notification no. 6/2002-CE (S.No. 171) which provides full and unconditional exemption - the case is found in favour of the appellant insofar as the exemption from CVD is concerned.
Exemption notifications applicable to SAD - benefit of exemption notification No 6/2004-Cus dated 08.01.2004 - HELD THAT:- The appellant cannot claim the benefit of a notification applying Section 9A(5) of the Central Excise Rules, 1944 which was not even in existence at the time of the SCN and had already been superseded in 2001 and further in 2002. The appellant claimed that the date of removal was not known in the case and therefore, the benefit of the exemption notification available on the date of the SCN should be extended to it. While it is true that the exact date of removal of goods was not known, they are alleged to have been removed from 7.9.2000 and 4.10.2002. Undisputedly, the exemption notification no. 6/2004-Cus was not available during this entire period. Therefore, the appellant is not entitled to the benefit of the exemption notification not available during any of the dates of the clearance - the issue is found in favour of the Revenue and against the appellant and hold that the benefit of exemption notification no. 6/2004-Cus was not available to the appellant on the SAD to be paid.
Entries in the work in progress (WIP) register - HELD THAT:- It is not found that in the first round of litigation, this Tribunal remanded the matter for the limited purpose of deciding the claims with respect to CVD, SAD and the entries in the WIP register - it is also found that it is true that the demand in this case was not based only on the WIP register but this register was used as supporting evidence only. The demand was based on the entries in the two notebooks Priya and Rishu and the some other entries and there was no separate demand on the basis of the WIP register. WIP register was only used as supporting evidence. The claim of the appellant with respect to some entries (known as contra entries by the appellant) were required to be examined by the Commissioner which he did in the impugned order.
Personal penalty imposed on Shri Anand Shrivastava - HELD THAT:- Since there was no specific direction with respect to the penalty imposed on Shri Shrivastava by the Tribunal in the Final Order remanding the matter to the original authority, evidently, the only reason his appeal was also remanded was that the demand itself was being remanded. If the demand is dropped naturally the penalties would also need to be dropped. However, the appellants (including Shri Shrivastava) were also given the liberty to submit additional documents before the Commissioner in the de novo proceedings. The ground of appeal of Shri Shrivastava in this appeal is not new nor has it brought in any additional documents. This ground was taken in the original proceedings as well as in the de novo proceedings before the Commissioner. In the original proceedings, this plea was rejected by the original authority and such rejection was not interfered with in the Final Order of this Tribunal while remanding the matter.
The ground taken by Shri Shrivastava that, although he was the promoter of the Global Diamonds, he was not concerned with the day-to-day affairs during the relevant period was rejected by the original authority in the original proceedings and such rejection was not interfered with by this Tribunal while remanding the matter for the limited purposes indicated. There is nothing on record to show that the order of the Tribunal was either appealed against or any application for rectification seeking modification of the order was filed by either side.
The demand in the impugned order is upheld except giving the benefit of Notification No. 6/2002-CE dated 1.3.2002 (S.No. 171) for CVD - there are no reason to interfere with the penalty - appeal allowed in part.
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2023 (12) TMI 755
Rejection of request for provisional release of the impugned goods - Gold - prohibited goods or not - alleged noncompliance with Notification No. 12/2012-Cus., dated 17.03.2012 - HELD THAT:- In instant case, three samples were subjected to test at various stages. Firstly, as per the requirement of the impugned notification before importing the goods from source country from the Lab of mining company which is placed at page 49 of the paper book. Secondly, we find that at the running page 56 of the paper book, Customs had drawn a sample and obtained report while granting discharge of the cargo on 24.02.2023 which found the purity to be 94.70 which was conformity with the report of mining which company is available - the last report of the CRCL obtained by DRI which is a running page 21 ( to be termed as 3rd report) indicates slightly higher percentages in three samples than the prescribed 95% but largely within the tolerance limits of ±/.25 indicated by the CRCL itself and its reply of RTI. Further, the report based on which seizure has been made has subjected sample to a test other then Fire Assay Method as is prescribed by BIS.
It is found that out of 27 Gold Bars admittedly 1 bar below was 5kg i.e. of 4.240 kg which is claimed to be erroneously imported due to error on the part of exporter by the appellants and the same in any case shall not be allowed to be imported under the conditions of Notification No. 50/2015-Cus dated 30.06.2017 or Notification No. 96/2008-Cus. Further, we also find that the appellants had initially claimed benefit of Notification No. 96/2008-Cus dated 13.08.2008 based on the country of origin being of Republic of Rwanda. However, on the behest of Investigating Agency and under protest to get release of consignment, they paid duty under protest on TR-6 challan No. 446 dated 21.12.2022. However, the goods were not released to them detention was converted into seizure - it is found that the differential duty which was paid on the goods which were to be released but eventually not released was to the extent of 15.20 Crores (approx) which is with the department available for any appropriation, if so needed - it is further found that the another Gold Bar 4.240 which cannot be subjected to claim of exemption at present. The fate of the same whether being eligible for re-export are not has to be decided by the adjudicating authority, at the time of adjudication, the same will have a value exceeding Rs. 2.5 crores - the availability of this amount of security exceeding Rs. 17.5 crores along with execution of bond of full value of the goods should suffice to safeguard the interest of revenue.
The goods even if there is any remote possibility of being found prohibited or restricted at the time of adjudication is there, cannot be subjected to non release in terms of Section 110A. In view of foregoing the provisional release of 26 Gold Dore weighing 5 kg plus more allowed, subject to the conditions imposed - appeal disposed off.
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2023 (12) TMI 754
Import of Wireless Access Points [WAP]/ MIMO Product - Availability of exemption from the whole of the customs duty under Serial No. 13 of the notification dated 01.03.2005, as amended by notification dated 11.07.2014 - Classification of imported goods - classifiable under Customs Tariff Item [CTI] 8517 62 90 or not - period from 11.07.2014 to 30.06.2017 - HELD THAT:- What needs to be remembered is that MIMO is a technology and cannot be treated as an independent product. If the intention was to exclude even products having only MIMO technology, then the word ‘products’ should have been used after MIMO as well as after LTE. It, therefore, follows that the scope of ‘products’ excluded by entry (iv) would be products which use both MIMO and LTE. Thus, the term ‘Multiple Input/Multiple Output (MIMO) and Long Term Evolution (LTE) Products’ means products which contain both MIMO and LTE.
A Division Bench of the Tribunal in Ingram Micro India [2020 (11) TMI 9 - CESTAT CHENNAI] also confirmed the classification of identical product (i.e. WAP) under CTI 8517 62 90 and extended the benefit of the subsequent notification dated 30.07.2017. The Department has accepted the Order passed by the Tribunal. Therefore, once the benefit has been granted to Ingram Micro in the subsequent notification for an identical product, the benefit under the notification dated 01.03.2005, as amended on 11.07.2014 should also be extended to Redington.
What also needs to be noted is that India is a signatory to the Information Technology Agreement [ITA] dated 13.12.1996 by the World Trade Organization. The ITA requires each participant to eliminate and bind customs duties at zero for all products specified in the Agreement. India signed the Agreement on 01.07.1997. Pursuant to ITA, India introduced the notification. At the time of introduction, all goods falling under CTH 8517 were exempted from payment of duties. In 2014, on specified telecommunication products that were not covered under the ITA, the Government imposed customs duties by notification dated 11.07.2014 - Imported WAP is a networking equipment working in LAN connecting Wi-fi enabled devices such as laptops, smartphones, tablets, etc. to a wired network. Thus also, imported WAP is entitled to the exemption from the whole of the customs duties under the ITA.
Thus, WAP imported by the appellant works on technology and does not support LTE standard. Beetal Teletech was, therefore, justified in claiming exemption from the whole of the customs duty under Serial No. 13 (iv) of the notification. There is, therefore, no infirmity in the order dated 29.11.2019 passed by the Additional Director.
Appeal dismissed.
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2023 (12) TMI 697
Finalization of provisional assessment - release of Bank Guarantee which had been furnished by the petitioner awaiting finalization of the provisional assessment proceedings - HELD THAT:- The claim for interest as raised by the petitioner clearly merits acceptance. As it is found, the DRI had duly completed the COO Certificates verification exercise and had also shared the requisite results thereof with the respondents. Despite the above, the respondents failed to conclude the provisional assessment proceedings. The information in respect of the COO Certificate verification had been shared with the field authorities way back in 2016. There was thus no justification for the respondents having failed to render a closure to the proceedings at that stage itself.
We were also not apprised of any other legal impediment that may have operated and restrained the respondents from finalizing the provisional assessment. It also becomes pertinent to note that the provisional assessment itself was initiated not on an allegation of any undervaluation or wrongful declaration of the value of goods, the same was founded solely on the opinion formed by the respondents that the COO Certificates merited verification. In view of the above, it is opined that the indolence exhibited by the respondents is rendered wholly arbitrary.
The respondents are directed to release the BG and any other monies retained forthwith subject to whatever final orders that they may choose to pass while finalizing the provisional assessment proceedings - petition allowed.
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