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Customs - Case Laws
Showing 441 to 460 of 1607 Records
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2023 (10) TMI 12
Permission to amend 32 shipping bills from free shipping bills to drawback shipping bills under Section 149 of the Customs Act, 1962 - HELD THAT:- A reading of the impugned order indicates that the only reasoning assigned is that the importer was unable to satisfy the Deputy Commissioner that it had “intended” to file the shipping bills under the export work relating to drawback - the aforesaid reasoning cannot be sustained since it is not incumbent upon the exporter to prove an “intention” to claim drawback or other benefits. Section 149 of the Act enables an exporter to claim amendments in the shipping bills for any reason that may be deemed expedient. However, that provision nowhere speaks of an obligation or duty cast upon the exporter to establish intendment.
In the present case, the impugned order does not rest on an impossibility to scrutinize or dispose of the application for amendment nor does it allude to any other practical difficulty or aspect of impossibility which would have hindered consideration of the request made by the petitioner.
In Terra Films [2011 (4) TMI 13 - DELHI HIGH COURT], the Division Bench had on facts noted that the respondents had taken the position that it would be impossible to accede to the request for amendment. In view of the aforesaid, we find ourselves unable to sustain the view as expressed by the Deputy Commissioner in the impugned order.
The impugned order dated 06 September 2022 is hereby quashed and set aside - petition allowed.
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2023 (9) TMI 1675
Challenge to impugned order on the ground that the same has been passed beyond the limitation prescribed under Section 28 (9) of the Customs Act, 1962 - HELD THAT:- The show cause notice, dated 26.12.2014, had to be examined in the light of Section 28 (9) as it stood prior to the amendment w.e.f. 29.03.2018. Therefore, the show cause notice was required to be adjudicated within six months from the date of issuance of such notice. The above limitation was qualified with expression '' Wherever, it is possible, to do so''. Prima facie, it appears that the Department was not precluded from adjudicating the show cause notice beyond six months.
If it is the case of the Department that the pendency of the Appeal before CESTAT against the Order-in-Appeal dated 30.08.2015 was a reason for not passing orders earlier, it remains to be explained, as to why, the impugned order has been passed eventhough the petitioner's appeal is still pending adjudication before CESTAT - This ought to have been explained properly in the impugned order. Admittedly, the impugned order passed by the third respondent is bereft of such reasons. Only in the counter affidavit filed in this Writ Petition, the respondents have stated that the delay was on account of the pendency of the Appeal before the CESTAT for the earlier Bills of Entry, dated 10.10.2014.
Conclusion - The indifference of the concerned officer to complete the adjudication within the time period as mandated, cannot be condoned to the detriment of the assessee.
This Court is inclined to interfere with the impugned order by quashing the same and remits the case back to the third respondent to pass a fresh order on merits - petition allowed by way of remand.
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2023 (9) TMI 1654
Classification of goods - whether a Multiple Input / Multiple Output [“MIMO”] is liable to be read in conjunction with Long Term Evolution [“LTE”] product or whether the Department would be correct in its contention that Entry (iv) in CTI 8517 is principally concerned with two separate articles? - HELD THAT:- The Customs, Excise and Service Tax Appellate Tribunal [“CESTAT”] itself in its impugned order dated 12 September 2022 has understood MIMO and LTE to be the following:-
“(ii) MIMO: It is a technology wherein multiple antennas are used simultaneously for transmission and multiple antennas are used simultaneously for reception;
(iii) LTE: In telecommunication, it is a standard for highspeed cellular communication for mobile devices and data terminals. It increases the capacity and speed using a different radio interface together with core network improvements.”
The appeal merits consideration. Consequently, the appeal shall stand admitted - Issue notice.
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2023 (9) TMI 1641
Classification of Linear Accelerator - to be classified under Heading 9022 or not? - HELD THAT:- The apparatus based on the use of X-Rays whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus are aptly covered under Heading 9022.
The linear accelerator is not specifically covered under any sub-heading of CTH 9022 of Customs Tariff. CTH 9022 covers all the apparatus based on the use of X-Rays and that include Radiotherapy apparatus as well. Further, the applicant has submitted that LINAC is Non-portable and hence cannot be classified under CTI 9022 14 20 which covers Portable X-Ray Machine. I find that the product under consideration is rightly classifiable under residual entry CTI 9022 14 90.
Conclusion - Linear Accelerator merit classification under Heading 9022 and specifically under sub-heading 9022 14 90 of the First Schedule to the Customs Tariff Act, 1975.
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2023 (9) TMI 1614
Eligibility for exemption notification - Benefit subject to the condition of manufacture - Notification no 30/2004-CE dated 9.7.2004 as amended by N/N. 34/2015-CE dated 17.7.2015 - it was held by CESTAT that 'the appellants were not entitled to the benefit of 30/2004-CE dated 9.7.2004 as amended by Notification No. 34/2015-CE dated 17.7.2015 for the CVD on the imported goods' - HELD THAT:- Issue notice to the respondent(s).
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2023 (9) TMI 1598
Charges u/s 420 and 120-B of the IPC - malafide and dishonest intention on the part of the accused Company in connivance with officials of the department for evading countervailing duty and for getting wrongful gain - HELD THAT:- It is needless to say that so far as the allegation of conspiracy is concerned, it is very difficult to collect any direct evidence of conspiracy. From the material collected or the evidence adduced on record, inference of conspiracy is required to be drawn. The Investigating Officer has collected voluminous documentary evidences and evidence of the Intelligence Officers, the offence of evasion of CVD of 85% payable to the government on MRP of the products is noted. Merely because, subsequently in appeal the Customs Department has cleared the doubts and Company has subsequently paid the differential amount of CVD of Rs.1,51,45,378/- is not a ground to exonerate the applicant Company from the charges leveled against it as said proceedings are afterthought and amount paid after the raid conducted by the Customs Department. The said proceedings are initiated after closing of the present prosecution.
Before the date of receipt of the application under Section 32-K of the Central Excise Act, already prosecution came to be instituted. Hence, no such immunity can be granted and said act is nothing but afterthought i.e. not prior to complaint and said fact is also not disclosed before the authority hence, question of bonafide intention and debatable question of interpretation of Rules also does not arise considering peculiar facts of the case.
Even, the act on the part of the accused prima facie appears to be false. Section 23 of the IPC defines “Wrongful gain”, which provides that “wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled and due to such act, wrongful loss is caused to the government for which government is legally entitled to recover dues. Thus, as per section 24 of the IPC, whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”. Herein, only with intention of getting unlawful gain to company and to cause loss to government exchequer, act is committed.
Whether the defence raised by the present applicant is bonafide or not, all these aspects are required to be considered at the time of full-fledged trial as the learned Special Judge is satisfied that prima facie case is made out and there is sufficient material and evidence and ground for framing of charge and the Court has not gone into the merits of the case and considered on the basis of material on record that the accused is likely to be convicted or not. Hence, the order passed by the learned Special Judge does not call for any interference as at the time of framing of the charge, Court has not to weigh evidence and come to conclusion as to whether or not there is a possibility of recording conviction. Court has to only see as to whether there is sufficient ground or material against the accused based on which accused may be put to trial.
In view of the law laid down by the Hon’ble Apex Court in the case of P. Vijayan [2010 (1) TMI 1097 - SUPREME COURT], Ashok Kashyap [2021 (4) TMI 1299 - SUPREME COURT] and M.R. Hiremath [2019 (5) TMI 1986 - SUPREME COURT] and in view of the fact that on the basis of all the material on record, the learned Special Judge has satisfactorily come to conclusion that accused Company might have committed an offence so no any suspicion qua interpretation of Rules or provisions arise at this stage.
Hence, present criminal revision application stands dismissed. Resultantly, the impugned order dated dated 19.07.2017 passed by the learned Special Judge (CBI), Ahmedabad in CBI Special Case No.48 of 2010 is hereby confirmed. As the offence is registered way back in the year 2005, learned Special Judge, CBI Court, Ahmedabad is directed to expedite the trial preferably within a period of one year. Rule is hereby discharged.
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2023 (9) TMI 1553
Interest on the delayed payment of CVD, SAD - order of confiscation of the goods - redemption fine imposed in lieu of confiscation - penalties - Classification and valuation of imported laptops - Department was of the view that as the appellants have undertaken the activity of loading of software on the laptops which amounts to ‘manufacture’ they are liable to discharge duty on the goods on transaction value and not on RSP basis.
HELD THAT:- Sub-section (8) of Section 3 does not speak that the provisions of Customs Act, 1962 relating to interest on belated payment of duty as applicable to the CVD and SAD levied under the Customs Tariff Act. Section 28AA deals with payment of interest on Basic Customs duty i.e, the duty levied under Customs Act, 1962. Unless there is substantive provision to levy interest, the same cannot be collected.
The Hon’ble High Court of Bombay in the case of Mahindra & Mahindra Ltd. [2022 (10) TMI 212 - BOMBAY HIGH COURT] analysed the very same issue as to the demand of interest and penalty in relation to amounts payable as duty other than Basic Customs Duty. The Hon’ble High Court held 'Respondent No. 2 certainly cannot pass an order beyond the provisions of the Customs Act, 1962. The provisions relating to interest contained in Section 28AB of the Customs Act, 1962 are not borrowed in the legislation imposing levy of surcharge or CVD or SAD. Respondent No. 2 cannot include interest in the settlement arrived at by it on the ground that petitioner has derived financial benefits by not paying the correct rate of duty when it was due. Deriving financial benefits itself cannot be a ground to order payment of interest in the absence of any statutory provisions for payment of interest.'
The above judgment of the Hon’ble High Court was affirmed by the Hon’ble Apex Court in UNION OF INDIA & ORS. VERSUS MAHINDRA AND MAHINDRA LTD. [2023 (8) TMI 135 - SC ORDER]. Applying the ratio laid in the above judgment, we are of the considered view that the demand of interest (on the total differential duty of Rs. 4,81,74,877/-) cannot sustain and requires to be set aside. For the same reason, the confiscation of the goods and the imposition of redemption fine are set aside.
Penalty u/s 114A of the Customs Act, 1962 - HELD THAT:- The penalty u/s 114A is levied in cases of short levy or non-levy. Subsection (8) of Section 3 of CTA, 1975 has borrowed the provisions with regard to collection of duty (CVD & SAD). However, there is no express mention of borrowing the provisions for imposing penalty in regard to these duties. Be that as it may, though the SCN is issued alleging willful suppression of facts with intent to evade payment of duty, it has to be noted that the appellant would be eligible to avail credit of the duties paid. The entire situation is revenue-neutral. The Larger Bench in the case of Jay Yushin Ltd. CCE, New Delhi [2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI-LB] held that the demand cannot be sustained on account of revenue neutrality - the penalty imposed requires to be set aside.
The impugned order is modified to the extent of setting aside, the demand of interest, the order of confiscation of goods, the imposition of Redemption fine, penalties imposed and the appropriation of interest paid by the appellant without disturbing the confirmation of duty.
Appeal allowed in part.
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2023 (9) TMI 1549
Baggage rules - Challenge to Seizure-proceedings - permission to reexport his seized personal gold jewellery - return of Seized personal gold jewellery of the petitioner - HELD THAT:- Undisputedly, and since the petitioner held a foreign passport, it would be the Proviso to Rule 3 alone which would apply. In terms of the said Proviso, a tourist of foreign origin is permitted clearance of duty free articles in his bona fide baggage, and the articles and the limits/restrictions of those articles which are not allowed duty free are mentioned in Annexure-I. As we read Entry 5 in Annexure-I, it speaks of gold or silver in any form other than ornaments. The chain and the kada which were found on the person of the petitioner would undoubtedly fall in the category of jewellery and ornaments. Clause 5 of Annexure-I would therefore not sustain the seizure of the articles in question.
Rule 5 of the Baggage Rules, pertains to a passenger who is returning to India after having resided abroad for more than one year. That would clearly not apply to the petitioner here who is undisputedly a foreign national. Rule 5 in any case appears to be relating to an “eligible passenger” and which pertain to an Indian national upon his return to the country after having lived abroad for the period prescribed.
The seizure proceedings as emanating from the notice dated 08 December 2022 is quashed - petition allowed.
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2023 (9) TMI 1481
Imposition of penalty of u/s 112 and Rs. 20,00,000/- u/s 114AA of the Customs Act, 1962 - appellant colluded with the proprietor of M/s Shankeshwar Impex Pvt Ltd. in the attempt to remove the imported goods on the basis of forged documentation - mutual interest - HELD THAT:- As would be manifest from the aforesaid findings, the Principal Commissioner of Customs, ACC Imports [Commissioner] essentially came to conclude that merely because the three witnesses had not turned up for the purposes of cross-examination, that would not detract from the complicity of the appellant which was otherwise evidenced from the material gathered in the course of investigation. The CESTAT also found favour with the conclusion drawn by the Commissioner that the persons who were sought to be cross-examined were all co-noticees and thus it would appear to be in their mutual interest and benefit of the co-accused not to respond to the notices issued to them.
The CESTAT also noticed that the appellant had in his own statement admitted to his involvement in the attempted removal of goods on 28 July 2017. It also found no ground to interfere with the view taken by the Commissioner that merely because the appellant was not in Delhi on the relevant date, the same would constitute a ground sufficient to absolve him. The Adjudicating Authority has even otherwise found that the CDR would indicate that the appellant was in contact with the abettors on the fateful day.
The CESTAT appears to be correct in having accepted the case of “mutual interest” of the abettors to impede the investigation and refusing to extend cooperation. In such a situation, the respondent would be justified in proceeding further with the investigation based on the material that exists. In any case, the order impugned does not give rise to any question of law.
Appeal dismissed.
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2023 (9) TMI 1474
Classification of import goods - Nickel Hydroxide Compound under Customs Tariff Subheading (CTSH) 28254000 Or Not - whether or not containing impurities - HELD THAT:- The Nickel Hydroxide, though containing cobalt in minor quantities, remains suitable for general use in manufacture of Nickel Cadmium batteries. Inclusion of Cobalt metal as a conducting additive during the electrode fabrication of pasted electrodes is expected to enhance the electrochemical performance of Nickel Hydroxide.
Thus, the addition of Cobalt does not change the character and application of Nickel Hydroxide. Hypothetically, Nickel Hydroxide does not act as a reaction initiator, accelerator or catalyst to any product, and it cannot do so even with refinement or enrichment processes. Thus, the proposed goods is classifiable under tariff entry 28254000, on the basis of its nature and composition in terms of the chapter notes and the Rule 1 of the GIR.
As per the general Rule 3 (a) of General Interpretation Rules, the specific heading shall prevail over the general heading. In this case there is a specific heading for Nickel Hydroxide under the tariff entry 28254000. Therefore the proposed goods are appropriately classified under the specific tariff entry 28254000.
Thus, it is in terms of the Chapter Note 1 of chapter 28 read with Rules 1, 2 and 3(a) of the GIR, the goods proposed to be imported i.e. Nickel Hydroxide Compound (containing Nickel Hydroxide of 92% to 100%, and balance of Cobalt Hydroxide and Sodium Sulphate) is classifiable under sub-heading 28254000
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2023 (9) TMI 1471
Smuggling - Challenged the Order passed releasing the gold articles - Whether gold could be said to fall in the prohibited category as contemplated under Section 125 of the Act and thus not liable to be released on payment of redemption fine? - HELD THAT:- We find that the gold bars had been deliberately concealed in 08 UPS machines and packing material and were sought to be imported through a courier. The gold bars weighed 12000 grams and had been valued at that time at approximately Rs. 3.56 crores. The import of gold is strictly regulated and is permitted only through certain identified agencies, who too must import the same in accordance with a restricted and regulated regime which stands created in terms of the various Circulars issued by Customs as well as the Reserve Bank of India.
Hence, the Adjudicating Authority has clearly erred in directing the release of the seized articles on the payment of redemption fine. Thus, we find ourselves unable to sustain the order impugned. The appeal shall consequently stand allowed. The impugned order dated 10 November 2020 is hereby set aside.
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2023 (9) TMI 1446
Seeking remand of matter for reassessment of the bills of entry taking into consideration the country-of-origin certificate - Concessional rate of duty - Eligibility for benefit of N/N. 152/2009- Cus. - HELD THAT:- The prayer put forward by the respondent before the Commissioner (Appeals) was only to remand the matter for reassessment of the bills of entry taking into consideration the country-of-origin certificate. The Commissioner (Appeals) has, however, gone beyond the prayer made in the appeal before him and held that the respondent is eligible for the benefit of the notification.
The respondent having produced the country-of-origin certificates, the matter requires to be remanded to the original authority to consider the benefit of concessional rate of duty as per the Notification No.152/2009-Cus. The original authority is also directed to take into consideration Notification No.187/2009-Cus. dt. 31.12.2009 (Determination of Origin of Goods under the Preferential Trade Agreement between the Government of India and the Republic of Korea Rules, 2009) which provides for production of the countryof-origin certificate within a period of 12 months from the date of shipment of the goods.
The impugned order is modified to the extent of remanding the matter to the original authority to look into the benefit of Notification No.152/2009-Cus. as well as 187/2009-Cus. - the appeal filed by the Department is disposed of by way of remanding the matter to the original authority.
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2023 (9) TMI 1425
Jurisdiction - power to issue SCN - HELD THAT:- As and by way of ad-interim relief, the impugned Order dated 23rd February, 2023 is stayed, however, liberty to the Respondents to make an application for vacating the said order in the event the Respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT].
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2023 (9) TMI 1413
Jurisdiction - power of DRI to issue the impugned SCN - It is contended that such an action on the part of the DRI would be contrary to the binding decision of law laid down by the Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] - HELD THAT:- Reliance placed in the case of KULODAY PLASTOMERS PVT. LTD., THROUGH SHRI. RAMSWAROOP GUPTA VERSUS THE UNION OF INDIA, THROUGH ITS SECRETARY, MINISTRY OF FINANCE & ORS. [2023 (8) TMI 1397 - BOMBAY HIGH COURT] where it was held that We may also observe that insofar as the legal contentions as raised by the Petitioner in regard to the interpretation Section 97 of the Finance Act is concerned, as to whether any authority/power is vested with the designated officer to issue show cause notice, can also be gone into in the adjudication of the proceedings of the show cause notice.
Respondents waive service - So far as interim reliefs are concerned, the show cause notice is pending adjudication.
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2023 (9) TMI 1405
Illegal export of prohibited goods - red sanders - Suspension of approval which was granted to the appellants for operation as Customs Cargo Service Provider (CCSP) for a period of 15 days - Penalty u/s 117 ibid and Regulation 12(8) of HCCAR on appellant-custodian - recovery of the value of pilfered goods under Regulation 5(6) of HCCAR - removal of seized red sanders kept in safe custody in the appellants CFS, by substituting the container having seized goods with another empty container pasted with same unique container number, similar to the seized goods container, by certain unscrupulous elements - violations of clauses (a), (b), (f), (i) and (q) of sub-regulation (1) of Regulation 6 of Handling of Cargo in Customs Areas Regulations, 2009 (HCCAR) and Sections 45(2), 141 of the Customs Act, 1962.
HELD THAT:- It is a clear case of prohibited goods attempted for illegal export which were thwarted by SIIB wing of JNCH Customs by taking timely action and thus such export goods attempted for illegal export was rightly seized as the same were liable to confiscation under Section 113 of the Customs Act, 1962.
The argument advanced by learned Advocate for the appellants that the seized container was not an export cargo, but was kept in safe custody as a courtesy to customs department and the copy of Panchanama was not available with them, is factually incorrect.
The memorandum attached to the Finance Bill, 2008 provides full information and, purport and effect of the delegation of power to subordinate authorities, the points which may be covered in the area of delegation, the particulars of subordinate authorities who are to exercise the delegated powers, and the manner in which such power is to be exercised, in respect of the above amendment. Thus the sub-section (2)n of Section 141 became part of the Customs Act, 1962, upon passing of Finance Act, 2008 w.e.f. 10.09.2008. Therefore, the Handling of Cargo in Customs Areas Regulations, 2008 (HCCAR) which had been framed by CBEC in exercise of the powers thereof, as provided under Section 141(2) ibid, has proper force of law. Thus, an order passed by the learned Commissioner in exercise of the powers vested with him under Regulation 12(7) of HCCAR for suspension, imposition of penalty is legally sustainable.
From the detailed analysis of the background of the legislation for incorporating Section 141(2) in the Customs Act, 1962, and the formulation of HCCAR, it is clear that custodians appointed under Section 45(2) ibid, subsequent to the implementation of HCCAR, were also required to be approved as CCSP for handling of import/export goods in a customs area under Section 141(2) ibid and HCCAR. Considering the factual position that the appellants were notified by the jurisdictional Commissioner of Customs for handling both the export and import containers as well as for processing of related documents, right from the beginning vide various notifications dated 18.07.1999, and subsequent renewals vide notifications dated 11.11.2003, 21.03.2006, 04.01.2011 and thereafter periodically till the last renewal on 14.10.2020, the appellants cannot escape from the responsibilities and obligations cast upon them as CFS operator and CCSP under HCCAR for proper handling of import/export goods as mandated under Section 141(1) and (2) ibid.
The nature of the goods have clearly proved as ‘export goods’ and precisely for the illegal act of export, the customs authorities have initiated action on various persons concerned separately the provisions of Customs Act, 1962. Therefore, the argument advanced by the learned Advocate for the appellants that the goods under seizure, which were pilfered, are not ‘export goods’ do not find any support of law.
It is clearly proved by the factual reports arising out of the investigation conducted by Customs and Police authorities, and hence there are no hesitation in arriving at the conclusion that the appellants did not fulfil the conditions of Regulation 5(1)(i)(n) and 6(1)(i), by their failure to restrict unauthorized access into the premises and allowing the pilferage of goods and by their failure to provide safe and secure storage facility of customs seized goods kept in the containers within CONCOR-DRT CFS premises and allowed certain unauthorized persons to remove the customs seized goods.
The responsibility of the custodian under Section 45(2) is to keep the imported goods in safe custody, maintaining of records and not to permit its removal without any authorization from Customs. The absence of proper system of security, control and maintenance of records in the present case of seized export goods mutatis mutandis apply to the imported goods also. Hence the appellant cannot escape from the responsibilities and obligations cast upon them as CFS operator under HCCAR for proper handling of import/export goods. In view of this, the appellants have failed to fulfil the responsibilities entrusted on them under Regulation 6(1)(a) and 6(1)(b) of HCCAR.
Section 117 of Customs Act, 1962 provide for imposition of penalty on any person who contravenes any provision of the said Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, to be liable to a penalty not exceeding four lakhs rupees. The maximum amount of penalty prescribed under Section 117 initially at Rs. One lakh was revised upwards to Rs. Four lakhs, with effect from 01.08.2019 - The detailed discussions clearly prove that the appellants not only failed to fulfil the conditions and to abide by the responsibilities reposed on them as CCSP, but also failed to rectify the situation as one another attempt was made again for illegal removal of seized red sanders, which was identified by SIIB Customs on 14.08.2014. Hence, there are clear violations of the HCCAR and Section 141(2) of the Customs Act, 1962 by the appellant and thus we do not find any infirmity in the impugned order imposing penalty under Section 117 ibid on the appellants.
The appeal filed by the appellants is dismissed.
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2023 (9) TMI 1402
Valuation of imported goods - various kinds of scrap of aluminium like zorba, tally and twitch - enhancement of assessable value on the basis of contemporaneous imports data - rejection of appeals primarily for the reason that the appellant had accepted the re-determined enhanced value of the imported aluminium scrap in writing and thereafter cleared the imported goods after paying duty on the enhanced value - HELD THAT:- It would be seen that section 14 of the Customs Act provides that the transaction value of goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer and the seller of the goods are not related and the price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules made in this behalf - It would be seen that though in a case where re-assessment has to be done under sub-section (4) of section 17 of the Customs Act, the proper officer is required to pass a speaking order on the re-assessment, but if the importer or exporter confirms his acceptance of the re-assessment, a speaking order is not required to be passed.
It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Subsection (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper officer shall pass a speaking order on the re-assessment, except in a case where the importer confirms his acceptance of the said re-assessment in writing - In the present case, the proper officer doubted the truth or accuracy of the value declared by the appellant for the reason that contemporaneous data had a significantly higher value. It was open to the appellant to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared and seek a reasonable opportunity of being heard, but the appellant did not do so.
It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance in writing.
The very fact that the appellant had agreed for enhancement of the declared value in the letters submitted to the assessing authority, itself implies that the appellant had not accepted the value declared by it in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the appellant had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules - There was no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially.
Once the appellant had accepted the enhanced value it was not necessary for the revenue to determine the valuation as the consented value, in effect, became the declared transaction value. Further, once the appellant accepted the enhanced value it would not be open to the appellant to now contend that the procedure as contemplated under rule 12 of the Valuation Rules should have been complied with.
In M/s Sunland Alloys vs C.C.,- Ahmedabad [2020 (6) TMI 71 - CESTAT AHMEDABAD] the Tribunal found that the assessing authority had reassessed the Bills of Entries by enhancing the value not on the basis of the any material evidence but on the basis of Director General of Valuation guideline letter dated 15.11.2018. The Tribunal held that the assessing officer should have followed the provisions of the Valuation Rules and should not have made the reassessment only on the basis of the Director General of Valuation guideline. The reason would, therefore, not help the appellant.
There is, therefore, no good reason to interfere with the orders passed by the Commissioner (Appeals) upholding the orders of reassessment - Appeal dismissed.
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2023 (9) TMI 1399
Seeking condonation of gross delay of 289 days in filing the appeal - HELD THAT:- The explanation offered by the appellant seeking condonation of delay not satisfied - the application seeking condonation of delay is dismissed.
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2023 (9) TMI 1398
Valuation of imported goods - machinery oil /machinery lubricant oil - rejection of declared value - redetermination of value - Ash content in the samples - it was held by Tribunal that It is settled position of law that unless the transaction value could be established to be improper upon the finding that import invoices were either fabricated or fake or that any relationship exists between the importer and the exporter, the transaction value has to be accepted as correct value for assessment under Rule 3 of the Customs Valuation Rules, 2007.
HELD THAT:- There are no reason to interfere with the order(s) impugned in these appeals - appeal dismissed.
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2023 (9) TMI 1397
Levy of penalty - guar gum was of food grade or not - Revenue’s contention that it is of food grade is based on the test reports of AES to whom the samples were sent by CRCL - valuation should be based on transaction value or not - Rejection of transaction value - Tribunal held that The impugned order is correct in rejecting the transaction value and re-determining the value based on the contemporaneous values of imports available in NIDB.
HELD THAT:- There are no reason to interfere with the order(s) impugned in these appeals - appeal dismissed.
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2023 (9) TMI 1396
Refund of deposit made at the time of provisional clearance of the goods - applicability of principles of unjust enrichment - HELD THAT:- This Court considered an identical question in Commissioner of Customs v. Hindustan Zinc Limited Through its Managing Director [2023 (9) TMI 1302 - SUPREME COURT]. The Court had in that case ruled that the judgment in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [2004 (3) TMI 63 - SUPREME COURT] and the earlier judgment in Commissioner of Customs, New Delhi v. M/s. Oriental Exports, New Delhi [2006 (4) TMI 501 - SUPREME COURT], were applicable and binding.
The revenue’s appeal must therefore be rejected - Appeal dismissed.
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9911796707
