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Customs - Case Laws
Showing 461 to 480 of 1607 Records
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2023 (9) TMI 1395
Refund of Terminal Excise Duty - deemed exports - HELD THAT:- The issue in the present matter is no longer res integra in view of the authoritative pronouncement of the Apex Court in the case of SANDOZ PRIVATE LIMITED VERSUS UNION OF INDIA & OTHERS [2022 (1) TMI 225 - SUPREME COURT] - the Apex Court has considered Chapter 8 of FTP and also the policy circular dated 15.03.2013 and held that EOU entities who had procured and imported specified goods from DTA supplier are entitled to do so without payment of duty having been ab initio exempted from such liability under para No.6.11(c)(ii) of the FTP, being deemed exports.
Thus, no error has been committed by the learned Single Judge. The writ appeal, as such, is dismissed.
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2023 (9) TMI 1394
Validity of summons issued in the course of investigation - DRI is a proper officer to issue SCN or not - Detention order passed against the father of the petitioner - HELD THAT:- It is well settled that investigation should not be interfered with except in grave and special circumstances and where it would be manifest that no offence had been committed. Bearing in mind the material which stands placed on the record, the relief claimed cannot be sustained - It is by now well settled that High Courts in exercise of either their inherent powers under Section 482 of the Code of Criminal Procedure, 1973 or their constitutional power flowing from Article 226 of the Constitution would interfere with an ongoing investigation or thwart it only in rare and exceptional cases and where it may be established that no offense at all appears to have been committed.
The power to arrest stands conferred upon the respondents to be utilised in aid of the enquiry or investigation which may be ongoing. The respondents upon forming the requisite opinion of the presence of a party being required in the course of investigation or inquiry are duly empowered by the statute to summon persons who may then be asked to participate in the inquiry that is pending.
Detention order passed against the father of the petitioner - HELD THAT:- The learned counsel completely fails to appreciate that the aforesaid detention order has come to be passed by virtue of the provisions made in Section 3 of the COFEPOSA. Section 3 is a preventive measure which is adopted in terms of the provisions contained in COFEPOSA and is designed to ensure that a person against whom requisite belief or opinion has been formed and who is habitually engaged in the commission of offences is restrained from proceeding in violation of the law. This is also evident from the following satisfaction which has come to be recorded by the competent authorities and stands so reflected in the order of detention.
It is observed that while certain questions of law do appear to have been framed for further consideration, there is no restraint in the interregnum for the authorities duly empowered under the Act to proceed in accordance with law.
There are no merit in the instant writ petition. It shall stand dismissed.
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2023 (9) TMI 1393
Seeking release of detained goods - perishable goods - Inshell Walnuts and Almonds - seeking direction to respondent authorities to release the cargo without insisting upon NOC from first consignee as per the notification no.47/2017 dated 11.04.2017 as the said company is desirous of purchasing the cargo - HELD THAT:- It appears that there is a dispute with regard to the ownership of the goods between the petitioners of both the petitions and in absence of bills of entry being filed with the respondent authorities, it would not be possible for the custom authorities to make assessment order for determining the duty payable for release of the goods either for home consumption or for warehousing the same.
Without prejudice to the rights and contentions to be raised by all the parties and to see that the perishable goods in question are released by customs after proper assessment and to keep such goods in warehouse, if required-in a refrigerated warehouse, the respondent no.5 - Zestmarine Services Private Limited is directed to file Bills of Entry in respect of all the seven Bills of Lading before the respondent - Custom Authorities within a period of one week from today - respondent Customs Authorities as well as Assessment-cum-Authorized Officer, Kandla SEZ, are directed to pass assessment order on Bills of Entry to be filed by the respondent no.5 within a period of one week from the date of receipt of the same for warehousing purpose. It is clarified that the Bills of Entry would further be assessed for home consumption as per the further orders which may be passed by this Court.
Stand over to 12.10.2023 for further orders.
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2023 (9) TMI 1392
Classification of imported goods - coloured rubber granules - import policy restrictions - whether the importation of goods are ‘Restricted’ or ‘Free’ depending upon classification of the imported goods under the First Schedule to the Customs Tariff?
HELD THAT:- The description of the heading for 4001 specify that it covers products of ‘natural rubber in primary forms or in plates, sheets or strip’; similarly the description of heading 4002 provides that it covers ‘Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip’. Further, heading 4003 covers ‘reclaimed rubber in primary forms or in plates, sheets or strip’ and heading 4004 covers under its scope ‘waste, parings and scrap of rubber (other than hard rubber) and powders and granules obtained therefrom’.
The imported goods are to be treated as finished goods instead of raw rubber in any primary forms. Thus by the scope of coverage of the chapter heading 4001 and 4002 and its tariff entries, relative Chapter Note 5(A), inasmuch as there is presence of pigments/colouring matter, carbon black and accelerators in the imported goods, it does not merit classification under heading 4001 as well as 4002.
The imported goods is presented in granules of size 2mm to 4mm which is one of the primary form and are being used for outdoor rubber tiles, indoor rubber mats, rubber pavers etc. and thus are covered under chapter heading 4003. The relevant import policy for goods of chapter heading 4003 are ‘Free’ and there are no restrictions on import. Thus, the impugned order proposing absolute confiscation of imported goods classifying the imported goods under tariff item 4004 0000 is not legally sustainable.
From the plain reading of the entry in the restrictions placed under Basel No. B 3080 of Part-B to Schedule III, it is clear that this entry do not cover the granules of rubber derived from truck tyres. The Prior Informed Consent procedure and permission to be obtained by the importer is applicable only to ‘waste, parings and scrap of rubber’. Hence, even otherwise, irrespective of the policy condition not being applicable to imported goods of chapter 4003, there is no restriction from the point of HW Rules, 2016.
The impugned order passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai-II set aside - appeal allowed.
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2023 (9) TMI 1391
Suspension of Customs Broker License in exercise of authority under regulation 16 of Customs Broker Licencing Regulations, 2018 - HELD THAT:- No case has been made out in the impugned order that continued operation of the appellant as ‘customs broker’ would prejudice public interest or jeopardizing the investigations. The decision to suspend the licence was taken on 19th September 2022 which is more than a month after the impugned goods had been seized; moreover, statement of responsible person in the appellant-company was also recorded well before such suspension and there is nothing contained therein that could have prompted such apprehension.
Many months have passed since the impugned order and the timeframe prescribed for initiation of proceedings had also elapsed in the meanwhile. Learned Authorized Representative has not been able to shed any light on such proposal. One of the essential conditions for legitimize suspension is the intent to do so. The impugned order appears to have been issued without deliberating on such intent.
The revocation of suspension of the licence directed with immediate effect - impugned order set aside - appeal allowed.
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2023 (9) TMI 1390
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - Advance Authorisation scheme - recovery of Customs Duty - HELD THAT:- It is on the finding of breach of obligation to advise client to comply with statutory provisions and for reporting any non-compliance thereof and to discharge duties as customs broker with utmost speed and efficiency that the extreme detriment has been visited on the appellant. This has been rendered on the finding that no activity was undertaken at the premises of the importer or their supporting manufacturers, M/s Crocus Enterprises or M/s Maks Technologies, which, ostensibly, would have come to light had the appellant undertaken necessary inquiries before taking on their assignment.
There are no evidence in the records that the appellant had not undertaken a preliminary ascertainment of the existence and identity of the importer; indeed, it is on record that the importer was an undertaking of standing. There is also no allegation about any misdeclaration in the bills of entry filed for clearance of ‘plastic granules’ imported under the scheme.
Doubtlessly, ‘customs broking’ does fall within the logistic sector and it is not inconceivable that such ‘brokers’ do undertake activities that precede as well as follow from such licenced functions which is not legal ground to bring such too within the ambit of Regulations intended for a specific purpose. Therefore, any activity that occurs after clearance of goods is clearly beyond the jurisdiction of Customs Broker Licencing Regulations, 2018.
The inquiry report, as concurred with by the licencing authority, is bereft of any foundation that could lead to a conclusion that obligations in regulation 10 of Customs Broker Licencing Regulations, 2018 had been breached by the appellant - Appeal allowed.
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2023 (9) TMI 1389
Suspension of license of the Custom Broker (CB) - shipping bills filed during the period of 27.02.2021 to 15.05.2021 on behalf of an exporter whose first GSTIN was Suo-moto cancelled retrospectively, and the second GSTIN although active, was non-functional at the registered premises - HELD THAT:- The Revenue has not brought forward any evidence that the earlier export documents filed by the appellant are fabricated or manipulated. The Revenue has also not been able to lead any evidence that the said exporter was not existent at the time of export, and the CB had connived in any fraud to defraud the Government exchequer. It has also been brought on record that one of the GSTINs was still in existence at the time of suspension of the appellant’s license.
Although there is enough power vested in the Commissioner to suspend the license of Custom Broker, in terms of Customs Brokers Licensing Regulations, 2018, however the said power which impacts the livelihood of the person and his employees needs to be exercised with caution and in accordance with the inbuilt safeguards, to prevent the arbitrary and reckless use of the power - in the present case, Commissioner has not recorded any reason for the cause of immediate suspension. Infact, there is no cogent reason or finding recorded by the Commissioner to suspend the license of the appellant two years after the date of export.
The present impugned order passed under Regulation 16 is without there being any finding as to why immediate action is necessary to suspend the license - Appeal allowed.
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2023 (9) TMI 1388
Mis-declaration of imported goods - Import of new footwear - Non-declaration of imported goods as stock-lot - country of origin of goods - valuation of goods - HELD THAT:- The OIO passed by the Adjudicating Authority who has passed the OIO after granting the Personal Hearing on 02/03/2011 which was attended by two Consultants on behalf of the Noticee.
Non-declaration of imported goods as stock-lot - HELD THAT:- The notice, at the time of submission of B/E and the concerned Invoice, did not declare the imported goods as stock-lot. But later on, they produced a copy of a correspondence with the seller of the goods where it had been mentioned that the goods they wanted to import were stock losts. Now, from the study of the case and reply of the notice, it is observed that the notice imported the goods taking the opportunity of economic recession in European Countries which were making hectic efforts to sell their products at a reduced price with some conditions - the factor that worked behind the import of shoes at a uniform rate in this case irrespective of size and quality was only to get the benefit of stock clearance at a reduced sale price by the exporter who faced certain problems related to market economy. This is not a case of sale of seconds or old goods. The notice also admitted in their written submission that they imported new footwear and also from the correspondence made by the importer with paolo Sanini Spol, the exporter, there are no mention that the footwear so imported as of second-hand quality.
Country of origin of goods - HELD THAT:- The noticee in the B/E declared the country of origin of the product as China. However, during joint examination of the consignment at ICD, it was observed by the departmental officers that there was only a nominal number of footwear that were of Chinese origin. Most of the goods were of Austrian origin - the notices therefore had misdeclared their goods as goods of Chinese origin.
Valuation of goods - HELD THAT:- The notice declared the goods as stock lot and submitted in the B/E the discounted value as transaction value. Since the goods have been, as discussed before, not stock lots but new ones and are liable to be sold in India as new ones, therefore, it is observed that the value shown in the B/E was not the real value of the imported goods but a very much reduced value and had no nexus with actual sale price of the goods. Therefore, transaction value in terms of Section 14 of the Customs Act, 1962 read with Rule 3(1) of CVR’07 was not applicable - residual Rule 9 of CVR’07 is applicable in this case.
The Adjudicating Authority has gone into considerable details of the consignment imported and has passed a very considered Order justifying all his findings - there are no reason to interfere with the same - appeal dismissed.
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2023 (9) TMI 1302
Refund of amounts deposited towards provisional duty - whether claim for refund of amounts deposited towards provisional duty, as a condition for clearance of imported goods can be the subject matter of refund after conclusion of assessment proceedings and having regard to its outcome, under Section 18 of the Customs Act?
HELD THAT:- It is brought to the notice of this Court that a judgment subsequent to the ruling in “Allied” i.e. SAHAKARI KHAND UDYOG MANDAL LTD. VERSUS COMMISSIONER OF C. EX. & CUS. [2005 (3) TMI 116 - SUPREME COURT] appears to have expressed a different view in that the Court held that to maintain a claim for refund, the assessee has to establish that he or it had paid the amount for which relief is sought and had not passed on the burden to the consumers. This judgment though rendered by a three Judge Bench, overlooked the ruling in Allied - Furthermore, even though the judgment has generally referred to the nine Judge Bench ruling in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] nevertheless the specific observations in Para 104 appears to have escaped the attention of the Court.
There is no infirmity with the findings and conclusions recorded in the impugned judgments, which are in accord with the ratio in Allied - Appeal of Revenue dismissed.
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2023 (9) TMI 1301
Jurisdiction of the Designated Officer to issue show cause notices to the petitioners who are foreign exporters - Applicability of Customs Act to the transactions which have taken place in a foreign territory - HELD THAT:- When the proceedings are listed on the backdrop of such prior orders, Mr. Mishra, learned Counsel appearing for the revenue would submit that in issuing the impugned show cause notice, the department has basically relied on the decision of the learned Single Judge of the CESTAT in the case MS. PRERNA SINGH, CEO M/S. SEVILLE PRODUCTS LIMITED AND INDIAN AUTHORISED REPRESENTATIVE: V. LAKHSMIKUMARAN VERSUS COMMISSIONER OF CUSTOMS (IMPORT-II) MUMBAI [2020 (1) TMI 905 - CESTAT MUMBAI], hence, the respondents were justified in issuing the show cause notice to a foreign party. Prima facie the stand of the department is not satisfying even assuming that the provisions of the amended sub-section (2) of Section 1 of the Customs Act are taken into consideration as applicable to the facts and circumstances in the present case.
Accordingly, as purely an issue of law arises for consideration in the present proceedings which goes to the root of the authority and jurisdiction of the designated officer to issue the impugned show cause notices to a foreign entity, we would be required to hear the parties on the merits of their respective contentions, at the final hearing of the petition. Hence, Rule. Respondents waive service.
Considering the provisions of Section 1(2) of the Customs Act prior to its amendment by Finance Act, 2018 (w.e.f. 29.3.2018) as also considering the effect of the said amendment, the petitioners have made out a prima facie case for grant of interim reliefs. Hence, pending the hearing and final disposal of the petitions, the impugned show cause notices shall stand stayed.
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2023 (9) TMI 1300
Seeking release of detained goods - legality of search conducted at the factory premises, office premises as well as the residential premises of one of the directors of the Petitioner Company - import of the commodity Ethephon - prohibited goods or not - HELD THAT:- It is an admitted fact, Ethephon is a scheduled commodity under the Insecticides Act. Therefore, by virtue of the language of section 17(1)(c) read with Section 3(e)(i) of the Insecticides Act, a stipulation in law does arise on the import of Ethephon to allow its import only upon fulfillment of conditions of prior registration obtained under Section 9 of the Insecticides Act. To that extent, the second submission advanced by learned counsel for the petitioner that the requirement to obtain a prior registration under the Insecticides Act is only a regulatory measure not provided with any consequence (for its non-compliance), is misconceived.
It would be premature for the writ Court to reach a fact conclusion whether Ethephon is an insecticide that may not cause any of the specified harm to any form of plant or animal life, generally. Neither the Court is an expert in the science of chemistry or environment, nor it has any expert jurisprudential material available to it as may safely lead it to the conclusion that import and/or manufacture of Ethephon may not cause the effect of preventing or destroying or repelling or mitigating any insect or rodent or fungi or weed or any other form of plant or animal life. 35. A fact enquiry would be required to be conducted before the contention being canvassed by the learned counsel for the petitioner may be accepted. That consideration has become necessary in the face of the claim of exemption set up by the petitioner. That claim must arise and be tested before the fact-finding authority i.e., the statutory authorities.
At present, Ethephon being a scheduled commodity under the Insecticides Act, it falls outside the scope of any fruitful discussion if it is an insecticide for the purpose of the Insecticide Act. Clearly, it is. In absence of any further fact proven to establish any exemption available to it under section 38 of the Insecticides Act, prima facie it stands made out that Ethephon is a regulated insecticide. It may not be imported or manufactured, except under a valid Registration Certificate etc. and upon fulfilment of the conditions thereto - in the absence of any further legislative and/or executive declaration expressed, at present, the only authority that may deal with the issue of claim of exemption being made by the petitioner would be the quasi-judicial authority under the Act. At present, the proceedings initiated under Section 124 of the Act are pending.
The FSSAI established under the Food Safety and Standards Act, 2006 seeks to guard the health interests of the human species only. On the other hand, the Insecticides Act seeks to guard the minimum existential interest of all life forms, from the harmful effects that may be caused by use of an insecticide. To that extent and for that reason, the Insecticides Act is both a special Act and an enactment with wider outreach and spread than the Food Safety and Standards Act, 2006.
There are no good ground to set aside the seizure memorandum and remit the matter to the seizing authority to pass a fresh order, at this stage. Under the scheme of the Act, the seizure memorandum would remain subject to outcome of the confiscation proceeding. Those being pending before the adjudicatory authority, keeping in mind the further fact that the adjudication on the issue whether Ethephon is exempt under the Insecticide Act, would have a direct bearing on all subsequent transactions of import and manufacture of that commodity, by the petitioner, it is deemed desirable and in the interest of justice that the adjudication proceedings be expedited and concluded without further delay.
The writ petition is disposed of with a direction, in case the petitioner files its reply to the show cause notice dated 21.12.2021 within a period of four weeks from today, the adjudicating authority may ensure expeditious conclusion of the adjudication proceedings, after due opportunity of hearing etc. to the petitioner, preferably within a period of three months therefrom.
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2023 (9) TMI 1299
Seeking provisional release of goods - dispute related to valuation - silver articles/utensils - Section 110-A of the Customs Act, 1962 - binding effect of orders of the higher authority unless stayed - HELD THAT:- The Respondents are not justified in not provisionally releasing the goods which were imported in December, 2021 and are lying with Respondents till today that is for almost one year and nine months. The Respondents have fairly stated that the goods imported are not prohibited goods and the only issue in dispute is with respect to the valuation. There is also no dispute that as of today, there is no stay of the Order-in-Original dated 16th December, 2022, whereby the show cause notice for misdeclaration of the value of the goods was dropped.
The Petitioner is justified in relying upon the decisions of the Supreme Court in the case of Union of India [1991 (9) TMI 72 - SUPREME COURT], Collector of Customs, Bombay [1993 (9) TMI 124 - SUPREME COURT], Himgiri Buildcon & Industries Limited and Agsons Agencies (I) Private Limited [2021 (2) TMI 391 - BOMBAY HIGH COURT] and HLG Trading [2018 (8) TMI 1608 - MADRAS HIGH COURT] in support of his contention that orders of the higher authority is binding on lower authorities unless same is stayed. Since, there is no stay as of today, the Order-in-original is binding on the Authorities and therefore the Petitioner is justified in seeking provisional release of the goods under Section 110-A of the Customs Act, 1962.
It is important to note that the Respondents have not doubted the credentials of the Petitioner who is a regular importer of such goods. The Petitioner has approached this Court only after receiving no response from the Respondents inspite of several request for provisional release of the goods.
The petition is allowed by directing the goods, subject matter of Bill of Entry No. 669283 dated 17th December, 2021, be provisionally released on the Petitioner paying the duty on the value as declared i.e. Rs. 1,01,23,813/- and furnishing a bond containing an undertaking that the Petitioner shall pay the duty fine and/or penalty of the differentiated amount and/or as may be adjudged by the adjudicating authority, subject to the appellate provisions under the Act. The bond and undertaking shall be appropriately furnished.
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2023 (9) TMI 1298
Seeking release of seized goods - goods purchased by the petitioner from an importer - privity of contract - banned goods or not - Allegation of undervaluation on the basis that other importers have imported the same goods at higher rate - HELD THAT:- As per definition under Section 2(25) of the Act, the term “imported goods” clearly changes the nature, once the same are cleared for home consumption. Admittedly, in this case, the goods were duly cleared in favour of the importer and were subsequently sold to the present petitioner for home consumption. Coupled with the above, the authorities have not challenged the sale made by the said importer in favour of the present petitioner. Therefore, the respondents were not within their rights to seize/ confiscate the said goods.
Principle of Natural Justice - HELD THAT:- No notice was served upon the petitioner before such an action was taken - It is not a case where the petitioner was dealing in some illegal or banned goods, which had to be confiscated - where the goods are not banned or against any violation of any other law, a business transaction cannot be ruined at the whims and fancies of the respondents. Merely because one of the importer was successful in clicking a deal for a lesser amount of price, cannot be a reason for such a bizarre action.
Allegation of undervaluation on the basis that other importers have imported the same goods at higher rate - HELD THAT:- There is nothing on record to show that the price at which the said importer had imported the said goods was wrong and it may be a case that the other importers are purposefully importing the said goods on a higher price for higher profits. Fixation of price of the goods is absolutely relative and based on multiple factors, which two businessmen take a call before entering into an agreement. It is not a case where diamond worth Rs. 100 Crores has been imported at Rs. 100/- to avoid tax. However, in case it is found to be a fake diamond then probably Rs. 100/- could also be a higher price.
The seizure memo dated 14.02.2023 (Annexure P-1) is quashed and the respondents are directed to release the goods seized vide seizure memo dated 14.02.2023, forthwith - Petition allowed.
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2023 (9) TMI 1297
Seeking provisional release of the seized goods - mismatch in the disclosure made by the supplier as well as by the importer, the petitioner herein - Section 110A of the Customs Act, 1962 - HELD THAT:- This Court is of the considered view that no prejudice would be caused to the respondents if the petitioner’s representation seeking for provisional release of the seized goods is considered by the respondents, on merits and in accordance with law, within a time frame to be fixed by this Court.
This Court is of the considered view that six weeks’ time will suffice for the respondents to pass final orders on the petitioner’s representation seeking for provisional release of seized goods.
These writ petitions are disposed of by directing the respondents to pass final orders on the petitioner’s representation dated 23-11-2022 seeking for provisional release of the seized goods as per the provisions of Section 110A of the Customs Act, 1962, on merits and in accordance with law.
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2023 (9) TMI 1296
Application for a new Customs House Agents Licence, in terms of Section 146 of the Customs Act, 1962 - violation of provisions of Regulation 11 of Customs Broker Licensing Regulations 2013 (CBLR) (Regulation 13 of Customs House Agents Licensing Regulations, 2004) - HELD THAT:- There are no hesitation in holding that the issuance of the impugned notice under Section 124 of the Customs Act, for the aforesaid purpose, is just not made out under the statute. In the circumstances, the show cause notice issued by the Department is ab initio void and is therefore liable to be quashed.
The show cause notice issued by the Department as a nullity in law. Under the circumstances, all and any proceeding issued in pursuance of a void show cause notice are in themselves void ab initio and therefore, carry no legal force. The proceedings initiated are therefore set aside on this preliminary ground alone, without going into the merits of the case.
The Appeal filed by the Department is dismissed.
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2023 (9) TMI 1295
Levy of anti-dumping duty - Classification of imported goods - Amoxicillin Sodium with Clavulanate Potassium - to be classified under Tariff Entry No. 30032000 or under CTH 29411030? - HELD THAT:- Admittedly letter dated 22.11.2019 is the response to the clarification sought by the appellant from DGTR. From the said letter it is clear that while clarifying regarding anti-dumping duty on import of ‘Amoxicillin Trihydrate from China PR in the light of final findings dated 3rd April, 2017 recommending anti-dumping duty on the import of ‘Amoxicillin Trihydrate’ from China PR in para 5, 6 & 7 thereof - In the light of said clarification, hold that the product in question is not covered under the notification vide which the anti-dumping duty was imposed upon another product called ‘Amoxicilin Trihydrate’.
The impugned clarification was not available to the adjudicating authority below but in the light of said clarification duly conceded by the department, it is held that anti-dumping duty as has been levied on Amoxicillin Sodium with Clavulanate Potassium, the product imported by the appellant is not sustainable - Appeal allowed.
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2023 (9) TMI 1294
Classification of goods intended to be imported - Data Projector (Model - ZH 350, ZW350e, ZX 350e) - classifiable under CTH 85286900 or not - applicability of Sr. No. 17 of Notification No. 24/2005-Customs, dated 1-3-2005, as amended - HELD THAT:- A projector is an optical device that projects an image/video onto a surface, commonly a projection screen. The idea of a projector is to convert a small image into a much larger one so that a greater number of people can see it. A projector accepts a video/image as an input, processes it with the assistance of its inbuilt optical projection system consisting of a lens and optical source and projects the enhanced output on the projection screen. Therefore, the compatibility of a projector with input devices, such as a computer, a DVD player, etc. feeding images/videos to it and its ability to project these inputs accurately on the screen forms the most important attribute for the classification of a projector.
The projectors under consideration have got certain additional ports such HDMI x 2, Audio Out, USB-A (5V/1.5A), RS-232, etc., which make them capable of being a video projector and consequently classifiable under CTH 85286900 also. GRI Rule 3 states that “the heading which provides the most specific description shall be preferred to headings providing a more general description”. The website, https://www.optoma.com/ap/product, of the manufacturer of the impugned devices were referred to understand how these projectors are marketed by the manufacturer. These are listed under the business/education category of projectors on the said website - From the description, it is clear that these are marketed as data projectors only. From the product catalogues and information available on the websites, it is clear that data projectors are principally meant for use in/with an automatic data processing system. They are designed to project in places like conference rooms, business meetings, financial institutions, tradeshows, exhibition venues etc. with connectors matching that of a laptop/computer. They possess both indoor and outdoor projection capability. The projectors proposed to be imported by the appellant have got additional features such as an HDMI x 2, Audio Out, USB-A (5V/1.5A), RS-232, etc. along with the capability to adjust the aspect ratio in 3 models.
The presence of additional features cannot disentitle the impugned goods from classification under sub-heading 8528 62 00.
Sr. No. 17 of Notification No. 24/2005-Customs, dated 1-3-2005, as amended, exempts all goods of a kind solely or principally used in an automatic data processing system of 8471 and falling under Heading 8528 62. As the impugned goods are held as classifiable under sub-heading 8528 62 00 and are principally used in/with automatic data processing system they are entitled to the exemption.
The Data Projector (Model - ZH 350, ZW350e, ZX 350e) are classifiable under sub-heading 8528 62 00 of the First Schedule to the Customs Tariff Act, 1975 and would be eligible to avail benefit of Sr. No. 17 of Notification No. 24/2005-Customs, dated 1-3-2005, as amended.
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2023 (9) TMI 1274
Large scale under valuation in the import of luxury cars - Matter placed at the bottom of the Board and, thus, could not be taken up - locus standi - HELD THAT:- The impugned order passed is surprising which directs that the matter be placed at the bottom of the Board. Without commenting upon the same any further, it is opined that interest of justice would stand served by requesting the Hon’ble Chief Justice of the High Court to nominate Bench for disposal of the said writ petition expeditiously preferably within a period of three months since the issue involved has lot of cascading effect on the revenue.
In so far as locus is concerned, having gone through the record and also the fact that this Court had entertained the Writ Petition filed by the petitioner under Article 32 of the Constitution of India and passed an order dated 15-7-2016, the petitioner has locus to approach the High Court for the reliefs claimed in the writ petition filed by him. Thus, the High Court shall proceed to consider and decide the writ petition in accordance with law on its own merits without entering into the question of locus of the petitioner to maintain the writ petition.
SLP disposed off.
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2023 (9) TMI 1273
Maintainability of SLP - when this batch of matters are taken up for further hearing, it was pointed out that in the year 2017, the goods in question have been released on payment of penalty - HELD THAT:- In that view of the matter, when the goods in question are already released by the Department on recovery of the penalty, we dismiss all these Special Leave Petitions and Appeals, keeping the question of law open.
SLP and appeal dismissed.
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2023 (9) TMI 1272
Delay of 14 years in adjudication of SCN - Assessee was not knowing that matter was put in the call book - constitutional validity of Section 97 of the Finance Act, 2022 - provision authorising an officer of the Directorate of Revenue Intelligence (DRI) to act as a proper officer under the Customs Act, 1962 can have any retrospective operation or not.
Whether the time period for adjudicating the show cause notices in terms of Section 28(9) of the Customs Act, as in force prior to 29.03.2018, has lapsed? - Whether it is permissible for the Commissioner (Adjudicating) to now resume adjudication of the impugned show cause notice?
HELD THAT:- During the prolonged period of 03.04.2009 to 21.07.2016, no effective steps were taken for adjudication of the impugned show cause notice. It is not disputed that during this period there was no impediment for the concerned officers to proceed with the adjudication. The fact that various communications were sent by the Adjudicating Authority to the concerned officers of the DRI for supply of the RUDs is clearly no ground to justify that it was not possible to adjudicate the impugned show cause notice during the said period. In view of the above, it cannot be accepted that it was not feasible or possible for the Adjudicating Authority to adjudicate the impugned show cause notice till 06.02.2017.
It is stated that the impugned show cause notice was retrieved from the Call Book on 06.02.2017 in view of the instructions dated 06.01.2017. However, the Board opined that it was not feasible to adjudicate the notices issued prior to 08.07.2011 and therefore the said impugned show cause notice was not adjudicated. It is stated that it was re-entered in the Call Book and was retrieved from the Call Book on 23.01.2023 - Admittedly, the petitioners were not informed that the impugned show cause notice was put in the Call Book.
It is at once clear that the period within which the impugned show cause notice was required to be adjudicated has long since elapsed. The controversy raised is squarely covered by the recent decision of this Court in SWATCH GROUP INDIA PVT LTD & ORS. VERSUS UNION OF INDIA & ORS. [2023 (8) TMI 864 - DELHI HIGH COURT]. In view of the above, it is no longer open for the respondents to proceed with the adjudication of the impugned show cause notice. Accordingly, the impugned letters recommencing the adjudication proceedings are set aside. Since the period for adjudication of the impugned show cause notice has elapsed, the same cannot be adjudicated.
Petition allowed.
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9911796707
