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Customs - Case Laws
Showing 421 to 440 of 1607 Records
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2023 (10) TMI 183
Scope of notification dated 09th July, 2020 - prohibition on importation of a variety of cut flowers into India through all airports, save for the Chennai airport - Petitioner contends that this regulatory measure discriminates against Delhi’s flower traders by putting them in an unfavourable position relative to their Chennai-based counterparts - infringement of Petitioner’s rights under the Constitution of India.
Whether the Union Government, represented by its respective departments, is justified in allowing the importation of cut flowers exclusively through Chennai Airport?
HELD THAT:- Considering the Respondents’ ongoing initiatives for phased enhancements to laboratory facilities and equipment across several ports, including Delhi, it is clear that the core concern of the Petitioner-the challenges faced in importing cut flowers via Delhi-has not only been recognized but is also presently being addressed by the appropriate authorities. Therefore, judicial intervention at this stage is not warranted.
Petition disposed off.
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2023 (10) TMI 182
Levy of penalty u/s 112(a) and u/s 114AA of Customs Act, 1962 - employee of the company - helping the importer in importing mis-declared and under-valued goods - evasion of Customs Duty - HELD THAT:- Admittedly, the said importer – Mr. M.A. Mujahid, Proprietor of M/s Great Overseas, has used the email ID and address of this Appellant behind his back and without his permission - It is further found that the said mobile number 9246368100 was being used as a common telephone of the concern of the Appellant, wherein, all the staff were using it for making and receiving calls in connection with the business of the Appellant as well as for personal purposes. Thus, Mr. M.A. Mujahid had used the said phone which was also available to him as an employee.
The statement of M.A. Mujahid was recorded on different occasions and he has never uttered a word or stated anything implicating this Appellant or pointing out any abetment on his part. We further find that the said importer – M.A. Mujahid, having come to know of the error in the shipping documents had approached the Customs Department at the Gateway Port for amendment of their IGM.
Under the facts and circumstances, on being so advised, the said importer had filed Bill of Entry on ‘first check basis’. Thus, under such admitted facts, no case of mis-declaration or undervaluation is made out - The whole case of Revenue is based on assumptions and presumptions which have no legs to stand.
Appeal allowed.
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2023 (10) TMI 181
Confiscation of goods imported - penalty under Section 112 (a) of the Customs Act, 1962 - misuse of its IEC - forgery of signature - no request for cross-examination made - burden to prove - HELD THAT:- The assessee is trying to blow hot and cold at the same end; on the one hand, he writes a letter complaining about the misuse of its IE Code, two days later he says that there is no misuse of his code insofar as the present bills-of-entry are concerned. But in any case, when a complaint which is of serious nature is received, the authority has initiated investigation into the same and hence, we find that the subsequent letters/request made by the assessee while the investigation was on, were only to distract the progress of the investigation.
There is also a serious issue as to the signatures in document accompanying the bills of entry: assessee’s manager categorically denies some of the signature as his own insofar as some of the signatures are concerned; he clearly says that there were some differences, which fact has not at all been denied by the assessee in any of his pleadings either before the lower authority or before us. Hence, the fact that there were differences in signature stood established.
It has been clearly admitted that in the clearance process, the assessee himself had filed the documents on self-clearance basis without engaging the services of CHA. The investigation carried by the SIIB, as brought out in the impugned order, clearly establishes that neither the appellant-assessee nor the firm in the name of M/s. Ghazzali Trading, Chennai did seek any clearance on self-clearance basis, which is a very serious issue according to us. Other than merely claiming so, the assessee has not furnished any documentary evidence in his support.
The assessee has not proved beyond reasonable doubt that the goods in question imported under the air way bills/bills-of-entry in dispute were in fact filed by him and hence the only natural corollary available to the Revenue is the confiscation of the same - the Revenue need not prove the owner of the goods; when a claimant does not prove that the goods in question belongs to him, it is not for the Revenue to thereafter establish a certain actual owner of the goods. The assessee made the Revenue believe his words, which resulted in the initiation of investigation and thereafter, he also claimed that he was the actual owner of the goods imported - the assessee could be held to be ‘any person’ within the meaning of Section 112 of the Customs Act, 1962 and therefore, the Revenue is justified in imposing penalty on the assessee-appellant.
There are no merit in the appeals, for which reason the appeals are dismissed.
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2023 (10) TMI 180
Absolute Confiscation - Penalty - Gold Bar - entire allegation is based upon the statement of Shri Narayan Sharma - despite request cross examination of the said person was denied - violation of principles of natural justice - HELD THAT:- As far as the appeal of Shri Narayan Sharma is concerned, it is found that in his confessional statement, he has admitted that he was a carrier of the gold which was recovered from the cavity near the driver seat in the Bus bearing No. PB-02-CR 3991 operated by M/s Inter Globe Aviation Limited (Indigo Airlines). Further, Shri Narayan Sharma has stated in his confessional statement that he is working as salesman with M/s Ganesh Book Depot and went to Dubai along with Shri Vaibhav Rai son of Shri Rakesh Rai and brought the gold which was handed over to Shri Sahib Singh driver of the bus. Further, in his statement, he admitted that Shri Rakesh Rai and Shri Vaibhav Rai played major role in the entire smuggling of gold and both were the actual beneficiary of the smuggling of gold and he was only getting Rs. 10,000/- as a carrier for carrying the gold and handing over the same to the driver of the bus.
The demand of customs duty has been wrongly confirmed under Section 28 of the Customs Act along with interest under Section 28AA because no show cause notice which is required to be served upon the person chargeable with duty was issued to Shri Narayan Sharma - the demand of duty of Rs. 11,80,872/- alongwith interest under Section 28AA of the Customs Act is not sustainable in law - Penalties upheld.
It has been held by the Hon'ble Supreme Court in the case of KI. PAVUNNY VERSUS ASSTT. COLLR. (HQ.) , C. EX. COLLECTORATE, COCHIN [1997 (2) TMI 97 - SUPREME COURT], the confessional statement under Section 108 of Customs Act, 1962, if found to be voluntary, can form the sole basis of conviction and that the burden is on the accused to prove that the statement was obtained by threat, duress or promise.
The entire case is based on facts and statements of the appellants coupled with documentary evidence about purchase of gold in Dubai and how its purchase/smuggling was facilitated by the appellants and the role played by each one of them has been discussed in detail in order-in-original - further, the penalties imposed on Shri Pardeep Saini and Shri Rakesh Rai amounting to Rs. 15,00,000/- each is on the higher side which is reduced to Rs. 5,00,000/- in each case.
Appeal disposed off.
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2023 (10) TMI 179
Suspension of license of Customs Broker - Violation of principles of natural justice - no proper notice about the SCN which was issued by DRI which was the basis for these proceedings was given to the appellant - Mis-declaration of value and description of goods - willful misstatement and suppression with an intent to evade payment of customs duty - HELD THAT:- It is observed that all the six importing firms herein had duly applied for IEC and the Directorate General of Foreign Trade issued IEC. Though Shri Sandeep Jain was taking care of the transactions of these firms. These statements have been the sole basis for the order under challenge. It is observed from the statement of Shri Anil Ahuja, Proprietor of M/s. Durga Enterprises that he has deposed about the impugned imports to have been made at the instance of Shri Sandeep Jain who only had interacted with the exporters, negotiated the prices and had done everything required for importing the Vontron RO machines. However, he simultaneously has deposed that the IEC is obtained in the name of his firm with his consent as he got convinced with the offer given to him by Shri Sandeep Jain that he has not to take any troubles and pains and efforts of importing things except allowing the goods to have been imported on his IEC code against receiving 5% of the profits. This deposition of Shri Anil Ahuja of M/s. Durga Enterprises has fully been corroborated by Shri Sandeep Jain himself.
Further perusal of statement of appellant himself reveals that he had met the proprietors/IEC holders of four impugned importing firms M/s. Arvi International, M/s. Sunshine Enterprises, M/s. Swift Enterprises and M/s. Durga Enterprises. He deposed that KYC of four of these firms was done by him. For completing the said procedure, he met four of the IEC holders at his office, verified all original documents i.e. IEC, GST, Aadhaar Card, PAN Card, cancelled checks and bank statements.
From the statements on record there is apparent consensual arrangement between Shri Sandeep Jain and the IEC holders which has nowhere been barred under CBLR, 2018. In any circumstance CB/appellant cannot be held responsible for the reason that admittedly he is not the party to the alleged mis-declaration and undervaluation nor department could produce any evidence that the appellant had been a beneficiary of this arrangement.
The exports for these two firms also have been made during the same proximity of time and imported goods have been transported through the same transporter Vijay Transport Company to the same godown at Paschim Vihar and Mundka Village in Delhi where used to go the imported goods of remaining importing firms. These godowns have been acknowledged by Shri Sandeep Jain. In the given circumstances irrespective Shri Sandeep Jain is admittedly the beneficiary of imports made by six importers but the fact remains is that all importers have requisite documents, all of them are actually existing and it was a consensual arrangement between them and said Shri Sandeep Jain with no benefit to the appellant out of the said arrangement. Appellant otherwise was admittedly having all the requisite documents of these importing firms which he admittedly produced before the department. Thus, the appellant has not violated Regulation 10 (n) of CBLR, 2018.
The adjudicating authority has failed to appreciate the statements on record - if the statements would have been read as a whole, apparently there is no violation of 10(d) and 10(n) of CBLR, 2018 is observed to have been committed by the appellant - appeal allowed.
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2023 (10) TMI 178
Condonation of delay in filing refund claim - condonation sought on the ground that refund claim filed in a wrong jurisdiction - HELD THAT:- If the refund of duty paid was filed by an assessee in the wrong jurisdiction before an authority who not competent to entertain the refund claim, that too within the time limit, the said authority must transfer the application for refund claim to the competent authority, as has been correctly done in this case. As rightly held in the impugned order, the period during which the claim remained with the wrong jurisdictional authority should not be considered for calculating the time limit.
The Hon'ble Apex Court in The State of Jharkhand and others v. Brahmaputra Metallics Ltd and others [2020 (12) TMI 1241 - SUPREME COURT] held that a decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
Rejecting the refund claim simply on the ground of delay in filing the claim before the proper authority while admitting that the appellant had filed the claim before the department on time, albeit at a wrong jurisdiction cannot be approved - Appeal dismissed.
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2023 (10) TMI 177
Revocation of Customs Broker License - Forfeiture of Security deposit - levy of penalty under Regulation 18 read with Regulation 14 of CBLR, 2018 - fraudulent import - illegal clearance of consignment having cigarette - HELD THAT:- In the present case Sunil Dutt G- card holder in connivance with other accused managed to illegally cleared the consignment having cigarette and later deleted all the whatsapp chat/call records in connivance with their crime partners.
It is found that Sunil Dutt has categorically admitted in his statement that he has not obtained any KYC documents from the actual importer and all the documents including the KYC were given to him by Sandeep Kumar inspector and he has never contacted and met the actual importer at any point of time. Thereby, he has violated the regulation 10(n) which prescribed that the custom broker has to verify correctness of the importer exporter code (IEC) number, goods and services tax identification number (GSTIN), identify of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. The appellant had failed to verify the correctness of IEC, identity and whereabouts of the firms with authentic data and information thereby violating the obligations cast upon it under Regulation 10 (n) of CBLR 2018.
From the evidence on record, it appears that the custom broker was having the knowledge that container does not contain the scrap but something else. It is also fact that Sunil Dutt informed the CGST team after the goods were cleared and thereafter the CGST department seized the goods when the same was in transit. Therefore, there is no doubt he has helped the Custom Department to confiscate the illegal smuggled items which was cleared without payment of duty and without examination.
There is no doubt that the appellant has not performed his duty with due diligence and utmost efficiency and has connived with Sandeep Kumar inspector and Rambir Superintendent in illegally clearing the consignment having cigarette and later on deleted all the whatsapp chats/call records with their crime partners which clearly shows that he has not fulfilled the obligation under regulation 10 of CBLR, 2018 but his act and conduct does not warrant the imposition of extreme penalty of revocation of custom broker licence depriving him of his livelihood. But certainly his conduct warrants, the imposition of penalty and forfeiture of security deposit.
The revocation of custom broker licence of the appellant is not warranted and revocation is set aside - As far as the imposition of penalty and forfeiture of security deposit are concerned, the imposition of penalty of Rs. 50,000/- and forfeiture of security are justified in the facts and circumstances of the case.
Appeal allowed in part.
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2023 (10) TMI 124
Condonation of delay of 331 days in filing special leave petition - Sufficient reasons for delay or not - HELD THAT:- No satisfying explanation offered by the petitioner seeking condonation of delay.
The application seeking condonation of delay is dismissed - SLP dismissed.
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2023 (10) TMI 123
Refund of SAD - rejection on the ground that the declaration as stipulated under condition 2(b) of Notification No. 102/2007-Cus. not filed - other ground for rejection is that there is no finding in the Order-in-Original to the effect that the goods imported tally with the goods sold - HELD THAT:- The respondent has not filed cross objections or a written reply against the appeal. The issue involves determining the authority who has to decide on the merits of the refund claims. A question of the power to remand lies at the heart of the appeal. Delay in a decision on this issue does not help even the respondent in settling his claims. The matter can move forward on merits only when placed before the proper authority for consideration. Adjournments will only delay statutory relief. Hence the matter is decided based on the legal position that has evolved and the issues available on record, as applicable.
Having original powers in matters related to assessment as per the statute, it was expected of the lower authority to examine and dispose of the matter on merits. The Commissioner (Appeals) was not vested with any powers to remand a matter under consideration with a direction for the issue to be reviewed once again and if necessary to file a fresh appeal under the Customs Act, 1962. The amendment brought out in the sections pertaining to the powers of the Commissioner (Appeals) vide Finance Act, 2001 w.e.f. 11.5.2001, is a part of a beneficial legislation to ensure that matters are disposed of quickly and must be respected.
Similarly, the powers of the Commissioner (Appeals) being a statutory one he cannot act in breach of the provisions under which he functions. His powers are circumscribed by the conditions of the Customs Act 1962.
The issues stands restored back to the Commissioner (Appeals) for a de novo decision - lower authority shall follow the principles of natural justice and afford a reasonable and time bound opportunity to the appellant-department and the respondent to state their case on merits both orally and in writing - appeal disposed off.
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2023 (10) TMI 122
Seeking stay of disposal of seized ‘gold dore bars’ - gold in question has requisite purity of less than 95% or not - HELD THAT:- There are contradictory reports about the purity of 27 number of ‘gold dore bars’ in question. It is pertinent to note here that ‘gold dore bars’ should have the purity of less than/ upto 95% while being imported. The reports on record are observed to be both ways, i.e. less than 95% as well as more than 95%. In these circumstances, clause 2.4.3 of the guidelines for disposal of seized goods as produced by the department is relied upon.
In the present case appellant is claiming it to be licensed importer of the ‘gold dore bars’ - Learned Authorised Representative has acknowledged that no reply has so far been received from the DRI with respect to the disposal of impugned seized gold. Also it is observed that the period of two months from the date of seizure, as is prescribed under the guidelines produced by the department, stands already expired.
It is deemed necessary that the seized gold bar shall not be disposed of till further orders as may be passed. It is also held relevant that the impugned appeal be disposed of expeditiously.
Application allowed.
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2023 (10) TMI 121
Recovery of duty by invoking extended period of limitation - fabricated DEPB scrips - dispute pertains to the period Jan 2004 for which the show cause notice was issued on 21.05.2008 - existence of mens rea or not - levy of penalty - HELD THAT:- In view of the definite findings of the Apex Court in M/S. MUNJAL SHOWA LTD. VERSUS COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (DELHI – IV) AND M/S. FRIENDS TRADING CO. VERSUS UNION OF INDIA AND ORS. [2022 (9) TMI 1076 - SUPREME COURT] that fraud vitiates everything and it having been considered and decided that for the fake scrips, no right accrues, same holds good for the appellant in the present matter too. However, since in the decision of Division Bench from the same facts cited by the appellant, it has already been decided that there is no allegation of fraud against the importer, penalty cannot be invoked in the absence of mens-rea, therefore regarding penalty party is entitled to relief.
The duty demand is sustained on the basis of fake scrips and not vested any right in the appellant. However, since there is no intention to the fraud/ forgery, the penalty imposed is set-aside. The appeal is partly allowed.
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2023 (10) TMI 120
Classification of goods intended to be imported - Dried Black Currants i.e. dehydrated dark and small seedless raisins from Greece and other countries - classifiable under HS Code 0806 20 10 or not - Sr. No. 32 of Notification No. 50/2017-Cus., dated 30-6-2017 - HELD THAT:- Dried Black Currant (subject goods) is classifiable under HS Code 0806 20 10; and the subject goods are eligible to be covered under Sr. No. 32 of Notification No. 50/2017-Cus., dated 30-6-2017. It is noticed that the applicant has stated that Black Dried Currant is a kind of dried grape, of vitis vinifera species commonly known as Zante currant in Greece region made from grapes (Vitis vinifera) which are raisins produced by drying grapes.
In light of the foregoing facts and discussions, black dried currant of vitis vinifera species, intended to be imported as ‘raisin’ merit classification under 0806 20 10 of the First Schedule of the Customs Tariff Act, 1975. As regards, applicability of exemption vide Sr. No. 32 of N/N. 50/2017-Cus, dated 30-6-2017, it is noted that exemption under the said serial number of the notification is admissible to dark seedless raisin classifiable under 0806 20 10. Since the subject goods are dark seedless raisin, exemption under the said notification is admissible to the subject goods.
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2023 (10) TMI 80
Amendment in shipping bills - Seeking to redecide the amendment request of the Petitioner and carry out amendment of GSTIN details in the BOE from Delhi to Vadodara Unit - HELD THAT:- The reasons as set out in the impugned order and more particularly, the Assistant Commissioner referring to the provisions of Section 25 of the GST Act, 2017 does not commend in the present case. It is found that the reasons as set out in the impugned order are quite different from the justification, the officer intends to give in the reply affidavit. Be that as it may, there are much substance in the contention as urged on behalf of the Petitioner that the Assistant Commissioner ought to have confined himself to the provisions of the Customs Act, namely, the provisions of Section 149, which provides for amendment of the documents.
There is no material adverse to the Petitioner as to why the amendment of the Bill of Entry to change the GSTIN number of Head Office, Delhi to Vadodara, Gujarat ought not to have been granted.
The Assistant Commissioner certainly did not have any jurisdiction as to what would be the position of the Revenue and/or the jurisdiction or the consequences which would fall under the CGST Act, 2017. Thus, ex-facie, there was no jurisdiction with the Assistant Commissioner in taking such view and passing an order of the nature as impugned.
The Commissioner of Customs needs to look into such approach of the officers and not take it lightly so as to prevent a likelihood that such officers for reasons best known to them acting contrary to the binding orders passed by this Court and this is one of such cases. In these circumstances, it is requested that the Commissioner of Customs to look into the issue on understanding of the legal matters by such officers as in the present case wherein the Assistant Commissioner has totally discarded to consider the binding effect of the orders of this Court.
Petition allowed.
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2023 (10) TMI 79
Rejection of request for re-testing made by the petitioner in respect of the imported goods - HELD THAT:- This Court is of the considered view that no prejudice would be caused to any of the parties if the test with regard to the imported goods of the petitioner viz., lining materials is conducted once again by a reputed laboratory engaged by the respondents to find out whether the imported goods contain Polyurethane or not and the cost for the same will have to be necessarily borne by the petitioner.
The impugned order dated 1-11-2022 passed by the respondents is hereby quashed and the matter is remanded back to the respondents for fresh consideration with regard to the issue as to whether the imported goods of the petitioner under the Bill of Entry dated 16-7-2022 contains Polyurethane or not with the directions imposed.
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2023 (10) TMI 78
Revocation of suspension of the respondent’s (Cotoms Broker) licence - irregular availment of IGST drawback and refund by using bogus manufacturing registration - failure to comply with Regulation 10(e) and 10(n) of CBLR, 2018 - HELD THAT:- It has come on record that M/s Fine Overseas is a firm existing only on the papers which was created in the name of Shri Sirajul Kallu. The exporter was not existing at the address mentioned in the IEC. The IEC and bank accounts were obtained for facilitating the fraudulent exports to avail ineligible IGST refund / drawbacks. From the RBI remittances report regarding accepted realization of exports by M/s Fine Overseas during the relevant period it has come on record that remittance of Rs. 41,575 USD against one shipping bill was realized as against an amount of Rs. 2,10,14,836/- for 8 shipping bills. To our opinion and in light of the unretracted admission of respondents/ CB’s G-card Holder about involvement of CB in this transaction we hold that this is a case of not merely the violation of Regulation 10(n) but a case of fraud committed by CB and fraud vitiates everything. The cardinal principal which is enshrined in section 17 of the Limitation Act is that fraud nullifies everything.
This Tribunal in the case of M/S. SWASTIK CARGO AGENCY VERSUS COMMISSIONER CUSTOMS, (AIRPORT & GENERAL) , NEW DELHI [2023 (5) TMI 725 - CESTAT NEW DELHI] has held that this being a case of facilitating the fraudulent exports carried out and it being duly proved during the enquiry proceedings that the exporter were non-existent. CB is rightly held to have failed to verify the correctness of the document thereby violating its obligation as a customs broker even forfeiture of security deposit has rightly been ordered. In the light of the obligations conferred upon the CB by the Regulations CBLR, 2018 and the proven fraudulent act and conduct of CB on record, we hold that suspension of his licence is quite a proportionate penalty. The order under challenge is upheld to this extent.
There is no violation of Regulation 10(e) has been set aside but violation of Regulation 10(n) of CBLR, 2018 by the appellant has been confirmed with confirmation that CB licence, in given circumstances is proportionate penalty - Appeal allowed in part.
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2023 (10) TMI 77
Classification of imported goods - poultry Feed Milling machinery - to be classified under CTH 9406 00 93 or under CTH 8436 10 00? - HELD THAT:- Admittedly, the Assessee has placed the purchase order dated 19.01.2011 for “Poultry Feed Milling Machinery”. For these items, the exporter has raised the proforma invoice on 10.08.2011. The packing list has been prepared by the overseas exporter for various items falling under these categories of the goods. All these documents were before the Customs Officials when the Bill of Entry was presented based on the Proforma Invoice issued by the exporter. After examining the goods, it is seen that the officials have directly held that the goods are found to be “silos” without giving any detailed findings as to how they have arrived at this conclusion. The Adjudicating Authority in the OIO has not given any detailed findings as to how the conclusion can be drawn that the goods are ‘silos’ when the description given in the Bill of Entry, Proforma Invoice, Bill of Lading, Packing list, etc., specifically speak of feed milling machinery. We observe that there is direct entry at CTH 8436 which speaks of machineries used in poultry keeping - there is no categorical assertion that the goods in question fall under “silos”. Further there is nothing to show by way of evidence that the imported goods have been used for “storing ensilage”. Therefore, the classification arrived at by the Adjudicating Authority cannot be agreed upon.
Classification arrived at by the Commissioner (Appeals) - HELD THAT:- He has come to an independent and different classification which amounts to going beyond the brief available to him, without putting the importer to notice about this re-classification proposal. This also amounts to non-following of principles of natural justice. It is also clearly seen that when the specific classification is available at CTH 8436 10 00, he could not have classified them under CTH 8479 90 90. Therefore, the impugned OIA is dismissed on this count.
Appeal of assessee allowed.
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2023 (10) TMI 76
Validity of assessment order - refund of BES - rejection on the ground that claim is pre-mature - appeal pending before the Tribunal - HELD THAT:- The refund was claimed within the prescribed time but, the appeal against rejection of claim was rejected by the Court below, on the grounds that since the appeal on merits was pending before this Tribunal, it was premature - the appeal of the assessee have been finally allowed in their favour in RASHTRIYA CHEMICALS & FERTILIZERS LTD VERSUS CC & ST, VISAKHAPATNAM CUS [2019 (1) TMI 2032 - CESTAT HYDERABAD], wherein, it had been held that CVD was chargeable at 1% and not 5%, by following rulings of Supreme Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT].
If the argument of the Revenue is accepted, it will amount to miscarriage of justice in as much as the original refund application filed was admittedly within the time limit prescribed under the Act. Further, when the refund was rejected on merits, which in appeal, was dismissed as pre-mature on the grounds that appeal on merits was pending before Tribunal and when the Tribunal finally decided the appeal on merits, the refund is now being proposed to be denied on the grounds that it was not filed within the prescribed time limit. When the grounds for considering the appeal was the pendency of the appeal before the Tribunal, the Order of the Commissioner (Appeals) dismissing the appeal as pre-mature would not tantamount to the rejection of the original application filed before the Original Authority, which was admittedly within the time limit. Therefore, the original claim of refund has to be decided on merits considering it filed within the time limit without denying on the grounds of limitation, in the facts of the case.
Matter remanded to the Original Adjudicating Authority to consider and allow refunds - appeal allowed by way of remand.
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2023 (10) TMI 75
Detention of imported goods - illegal import - mis-declaration of value and description of goods - rejection of declared value - valuation of the goods - HELD THAT:- On perusal of the impugned order, as submitted by Learned AR, the goods were detained on reasonable believe that they are illegally imported by mis-declaring the value and description of the goods. Preliminarily, when details were sought, manufacturer of the goods informed that the value of the imported goods are lower than the market value of the goods. Based on the above email and data from Internet, further investigation was carried out. However, on inspection of the goods by Advocate Commissioner appointed by the Hon’ble High Court of Kerala, it was found that there is no such mis-declaration regarding quantity as alleged. There is no such finding in impugned order as well.
Valuation of imported goods - HELD THAT:- During investigation, matter was taken up with the Authorized importer of Corelle brand items to disclose the import price of the said goods, when imported by them and they have furnished the same. However, without considering this value, respondent took assistance from Chartered Engineer. Regarding the report submitted by the Chartered Engineer, the Chartered Engineer relied on the market value of similar indigenous items in India to ascertain the assessable value. In view of above facts, the method adopted by respondent to reject the transaction value based on such report of Chartered Engineer seems to be without any legal basis.
As per the law laid down by the Apex Court in the matter of EICHER TRACTORS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2000 (11) TMI 139 - SUPREME COURT] and also in the case of COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS SOUTH INDIA TELEVISION (P) LTD. [2007 (7) TMI 9 - SUPREME COURT] what should be accepted as transaction value for the purpose of assessment under Customs act is the price actually paid by the importer for the particular transaction unless it is unacceptable for the reasons set out in Rule 4, thus the Hon’ble Supreme Court directs the customs authority to decide the validity of the particular value instead of rejecting transaction value. In the impugned order there is no reference to transaction value and the value paid by the importer for procurement of the goods.
This kind of valuation of the imported goods is incorrect and an improper appreciation of the Customs Valuation Rules, 2007 - Appeal allowed.
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2023 (10) TMI 74
Classification of goods proposed to be imported - Portable Computers viz. Barcode Mobile Computers, RFID Mobile Computer and Tablet Mobile Computer - classifiable under Heading 8471 as Automatic Data Processing (ADP) machines or under Heading 8517? - HELD THAT:- From the working and features of the impugned devices, it appears that these are not the units of ADP machines, but ADP machines themselves. Note 6(D) to Chapter 84 lists certain separately presented products that are to be excluded from Heading 8471, even if they can be classified as part of an ADP system. Note 6(f) to Chapter 84 mentions that a machine incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings. As the impugned devices, as described by the applicant, appear to be akin to ADP machines performing capturing of data and its further processing, Notes 6(D) and 6(E) do not appear to have application in this case.
In respect of possible alternate Heading 8517, there is a need to examine the features of these devices in the context of Note 3 to Section XVI of the Tariff. Heading 8517 covers, “Telephone sets, including smartphones and other telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of Heading 84.43, 85.25, 85.27 or 85.28” - As the devices also have communication capabilities, including cellular connectivity in 18 out of 36 devices, the classification under Heading 8517 needs to be examined.
In the instant case, these devices combine computing and scanning functions for monitoring deliveries, tracking assets, and managing inventory. 18 out of 36 devices also have communication capabilities. However, for the products under consideration, automatic data processing appears to be the main function, while other functionalities of said machines are not different from auxiliary functions that could be seen on any computer, such as desktop or laptop computers.
In regards to the classification opinion of the 68th session of the Harmonized System Committee, it is observed that the committee has classified RFID/barcode readers with a mobile operating system capable of scanning and cellular connectivity under sub-heading 8517 13. This sub-heading covers smartphones. Note 5 to Chapter 85 states that “For the purposes of Heading 85.17, the term “smartphones” means “telephones for cellular networks, equipped with a mobile operating system designed to perform the functions of an automatic data processing machine such as downloading and running multiple applications simultaneously, including third-party applications, and whether or not integrating other features such as digital cameras and navigational aid systems”. The note clearly states that these devices are telephones for cellular networks designed to perform the functions of ADP machines. However, the devices under consideration are principally not telephones for cellular networks.
The impugned devices have many features such as higher scanning capacity, ruggedness and enterprise-level security features, which a smartphone for cellular device connection lacks. These devices are used by enterprises to capture data. As already stated the products are used in inventory management, store receiving, order processing, package tracking, tracing delivering etc. These devices use Wi-Fi connectivity and Bluetooth for information sharing. Cellular connectivity is essentially used for GPS and information sharing, where Wi-Fi is not available. Cellular connectivity is also used for making calls. However, 18 out of 36 models do not have cellular connectivity. In view of forgoing discussion and facts on record, it is opined that the devices under consideration are not classifiable as smartphones. They merit classification under sub-heading 8471 30 90.
The 36 devices listed in the first paragraph of the ruling are classifiable under Customs Tariff Heading 8471 and more specifically, under sub-heading 8471 30 90 of the First Schedule to the Customs Tariff Act, 1975.
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2023 (10) TMI 13
Permission for clearance and loading of the goods - Non-Basmati Rice for exportation on board vessel M.V. KEN COLON - notification no. 20 of 2023 - HELD THAT:- Condition no. (ii) of para no. 2 of the notification provides that where the shipping bill is filed and the vessels have already berthed or arrived and anchored in Indian ports and their rotation number has been allocated before the notification then the approval of loading in such vessel will be issued after confirmation by the concerned Port Authorities regarding anchoring/ berthing of the ship for loading of Non-Basmati Rice prior to the notification, whereas applying this condition to the facts of the case it is not in dispute that the vessel M.V.KEN COLON arrived Land Anchored in Indian Port (Kandla) on 11.07.2023 and it sailed to Bhavnagar Port on 14.07.2023 for unloading of coal and returned to the Kandla Port for loading of the export cargo of the petitioners on 26.07.2023. It is also not in dispute that the VCN Export Number as well as the rotation number was allotted by Port Authority on 18.07.2023.
The condition no.(ii) of para 2 of the notification no. 20 of 2023 stands fulfilled and the interpretation of the respondent no. 2 authority that the vessel ought to have arrived in India for the purpose of export and ought to have berthed prior to 20.07.2023 is not the case as the vessel had arrived in India prior to 20.07.2023 and it has anchored in two Indian Ports namely at Kandla Port on 11.07.2023 and at Bhavnagar Port on 14.07.2023, it is not necessary that the vessel ought to have arrived at Indian Port for export of the cargo coupled with the fact that the Voyage Call Number as well as the rotation number was issued for berthing of the said vessel for export of the cargo on 18.07.2023 i.e. prior to issuance of prohibitory Notification No. 20 of 2023 dated 20.07.2023.
The respondent No. 2-authority ought to have permitted the petitioners to export the cargo of the remaining 13,500 metric tons of Non-Basmati Rice with regard to ten shipping bills which were already filed prior to issuance of notification no. 20 of 2023 dated 20.07.2023.
The respondent authorities are directed to finally assess ten shipping bills listed at Annexure B by making an order under Section 51 of the Customs Act permitting the clearance and loading of the goods covered under these shipping bills for export of 13,500 metric tons of Non-Basmati Rice on board of the vessel which now the petitioners may hire for export of the same - petition allowed.
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