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Customs - Case Laws
Showing 61 to 80 of 1606 Records
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2023 (12) TMI 696
100% EOU - Fixation of wastage norms for the downstream products of the Petitioners - seeking waiver of requirement of data "certified by Excise" or, in the alternative; direct the Ministry of Commerce to collect data afresh after affording reasonable time to the Petitioners to restart the process of production of downstream products - influence on the process of fixation of wastage norms - seeking to keep the Petitioners' Settlement Application in abeyance till the fixation of wastage norms by the Respondent No. 2.
HELD THAT:- The importance of fixation of the Wastage Norms has been highlighted by the respondents themselves when they state that the nature of the EOU Scheme necessitates the Government to closely monitor the consumption of input and the production process in the EOU Unit, and with this intent, the detailed guideline for determining the ratio of input to its output has been provided - Para 9.30(b) of the Handbook of Procedure also mandates that the Wastage Norms in respect of the items not covered by the Appendix 41 are to be fixed by the BOA. Para 6.8(e) of the Chapter 6 of the FTP 2004-2009 also states that with respect to the items not covered by the norms notified by the Duty Exemption Scheme, Development Commissioner may fix ad-hoc norms, which would be valid for a period of six months, and within this period, final norms shall be fixed by the BOA.
It is apparent that the function and the duty of the BOA is to fix the Wastage Norms. The BOA cannot refuse to exercise this jurisdiction and this power merely because it is of the opinion that the product for which such norms are requested to be determined, would not be commercially viable, or due to the high quantity of wastage, such products should not be allowed in the EOU. The power vested in the BOA is coupled with a duty inasmuch as it is required for giving full effect of EOU Scheme, and without such norms, the Scheme itself would be difficult to implement. It is, therefore, mandatory for the BOA to fix the Wastage Norms, when requested or applied for - In the present case, the Norms Committee refused to determine the Wastage Norms on the ground that the products sought to be manufactured by the petitioner would result in high quantity of wastage of raw materials. The Norms Committee further opined that such activities would not be commercially viable and, in any case, should not be allowed in the EOU.
Commercial viability - HELD THAT:- It is for the petitioner to decide whether the production of the products in question is commercially viable to it or not. The commercial viability of the products cannot be a ground for the BOA to refuse to exercise the jurisdiction and duty vested in it - Similarly, whether such products can be and should be allowed under EOU Scheme, is a matter of policy, which is to be determined by the concerned Ministry.
The Impugned Report of the Norms Committee dated 08.05.2015 is set aside - the Committee shall re-consider and fix the Wastage Norms for the products applied for by the petitioner, in accordance with the law - petition disposed off.
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2023 (12) TMI 695
Jurisdiction of tribunal to entertain appeal related to duty drawback - Validity of Notice U/S 128A(3) of the Customs Act, 1962 - recovery of Duty Drawback erroneously sanctioned and paid to the Firm alongwith interest - HELD THAT:- Chapter X of the Customs Act not only deals with the eligibility as to Drawback but also contains the provision for its recovery in case the Drawback has been paid erroneously. In our view, even though proviso (c) of Section 129A(1) of the Customs Act mentions the word “payment”, the same would also include the recovery of the Drawback. This is because whether it is the claim for payment or the claim of the Revenue for recovery, both would include an adjudication on merits, that is, the eligibility and entitlement of the assessee for the Duty Drawback on the exports made by it.
It would be erroneous to accept that the entitlement of the Firm claiming payment of Drawback cannot be considered by the learned CESTAT, but the Revenue’s demand for recovery of the erroneously paid Duty Drawback, can be considered by learned CESTAT. This would lead to a situation where if the Drawback is not fully sanctioned by the Revenue, and the Revenue later claims the refund of the partly paid Drawback, the assessee resisting the Revenue’s claim for recovery of the part Drawback would have to appeal before the learned CESTAT, but claim payment of the remaining part of the Drawback before another authority.
There is merit in the contention that the Revenue’s appeal is grossly delayed. However, the principal controversy sought to be raised is regarding the jurisdiction of the learned CESTAT to entertain the Firm’s appeal. Although, Revenue had not filed an appeal against the order dated 02.11.2018 within the stipulated time, the concerned authority has taken the steps for reviewing the consequential steps taken pursuant to the said order which is impugned in the said appeal. The issue whether the said order is valid is also sought to be raised in defence to the relief sought by the Firm in the present writ petition. In view of above, this Court considers it apposite to condone the delay in filing the appeal.
In the peculiar facts of this case where the Revenue originally had not taken any objection on the appeal being heard by the learned CESTAT, and had also, following the order of the learned CESTAT, sanctioned refund of the Drawback, the Firm should not be left remediless - opportunity granted to the Firm to prefer a revision, under Section 129DD of the Customs Act, against the order dated 14.05.2018 passed by the Commissioner (Appeals).
Petition disposed off.
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2023 (12) TMI 694
Refund claim for differential CVD - Period of limitation - re-assessment/modification of Bills of Entry - refund can be claimed by the respondent on Bills of Entry amended under Section 149 of the Customs Act, 1962 or not - HELD THAT:- The issue is no longer res integra. The Principal Bench of this Tribunal in the respondent importer’s own case PRINCIPAL COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS M/S LAVA INTERNATIONAL LIMITED [2023 (3) TMI 25 - CESTAT NEW DELHI] had considered these two issues in detail and held that It would be seen that the Bombay High Court held that the question of refund would arise only when the assessment order is rectified - the Commissioner (Appeals), therefore, committed no illegality in holding that the refund claims were not barred by time.
It has also been brought to notice that the aforesaid order of the Tribunal has attained finality, as no appeal has been filed.
Appeal dismissed.
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2023 (12) TMI 693
Valuation - addition of royalty to value of the imported goods - Rule 10(1)(C) OF Customs Valuation Rules - Power of the Commissioner (Appeals) - HELD THAT:- The learned Commissioner (Appeals) vide the impugned order has concluded that going by the agreements, the payment of royalty can be certainly said to be not related to imports. Having come to such a conclusion, it is found that he has erred by still remanding the matter to the lower authority for a decision afresh instead of rejecting the departments appeal. He compounded his error by going on to mention that the scrutiny of cost structure of all the facilities from where the goods were imported was necessary to be done by the lower authority while allowing the appeal of the department.
The Commissioner (Appeals) cannot examine and pronounce upon any issue beyond the factum of the appeal. It is imperative that all actions of public functionaries be guided by reason and not by whim or caprice - it is found that the directions given in the impugned order is improper and travels beyond the appeal. The issue of royalty not being related to the impugned goods during the said period has become final as no cross objections have been filed on the issue by Revenue.
The portion of the impugned order giving directions to the original authority while remanding the matter is set aside - Appeal allowed.
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2023 (12) TMI 692
Classification of imported goods - Kerosene - to be classified under CTH 2710 1990 of the Customs Tariff Act, 1975 or not - Power of commissioner (appeals) to remand back the case - HELD THAT:- Having disputed the classification, the Revenue approached an expert and obtained the expert’s opinion, whereas the appellant, having filed its Bills-of-Entry, did not lead any evidence, but kept on raising objections after objections in the approach of the Department as well as the expert opinions. No affidavit is filed, nor did it file any iota of evidence in its support.
Hence, going by the dictum of the Hon’ble Apex Court in HINDUSTAN FERODO LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, BOMBAY [1996 (12) TMI 49 - SUPREME COURT], it is required to go by the only evidence available, that is, expert opinion of CRCL, New Delhi since, admittedly, the appellant did not lead any evidence. Classification, as it is understood, cannot be determined based only on arguments since arguments, howsoever forceful, cannot take the place of proof or substitute evidence.
The Revenue in order to reach the conclusion as to the classification of the impugned goods, has placed reliance on the expert opinion and the same is not based on assumptions and presumptions and nor is it the personal view of the adjudicating authority.
There are no piece of evidence to take a contrary view to the finding of the first appellate authority as to the classification of the imported goods as ‘Superior Kerosene Oil’ by rejecting the uncorroborated classification as LAWS by the appellant - the Commissioner (Appeals) should have closed the case instead of remanding the matter back to the file of the original authority, which is against the amended provisions of Section 128A of the Customs Act, 1962, which has withdrawn the power of the Commissioner (Appeals) to remand the case for fresh adjudication except for those issues mentioned at Section 128A(3)(b), which does not cover the impugned issue.
The order of the original authority is restored - Appeal dismissed.
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2023 (12) TMI 691
Valuation of imported goods - used office furniture - rejection of declared value - enhancement of value - dispute is based on the Inspection Report of the Charted Engineer - HELD THAT:- The Inspection Report filed by the Chartered Engineer which is placed on record is perused. They said Chartered Engineer has not disputed that the goods in question were in fact used goods. At paragraph 2.6 of his report, the said engineer is giving an estimated new equipment value at the YOM; other than this, the said engineer has not considered any other similar goods which were imported at about the same time/date.
Admittedly, the imported goods were used goods/equipment and not new equipment, as observed in the Inspection Report. Hence, the Inspection Report does not inspire any confidence as regards the valuation is concerned and hence the reliance placed on the same is not the correct position. Hence, the lower authority has clearly erred in solely relying on the said inspection report, which is of no evidentiary value.
The said report is ignored, and consequently, the re-valuation as well, which is solely based on the said report - impugned order set aside - appeal allowed.
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2023 (12) TMI 690
Concessional rate of Customs Duty to goods of Indonesian origin - benefit of notification and no. 46/2011 dated 01.06.2011 - certificate of origin rejected by the original adjudicating authority on the grounds that the said certificate of origin did not mention the details of the impugned imports - HELD THAT:- Notification No. 46/2011 grants special concession rate of custom duty to the goods originating from specified countries listed in appendix II of the said notification. The Appellant claimed to have imported 50,000/- MTs. of Indonesian origin coal by vessel MV. Jindal Varad to India. The bill of entry, the commercial invoice, the bill of lading and the certificate of origin all mentioned the name of vessel MV. Jindal Varad.
It is noticed that the original adjudicating authority has pointed out that the invoice no. and date mentioned in the country of origin certificate does not match with the invoice number and date of the invoice presented by the importer. The certificate covers a quantity of 70,000 MTs. of steam coal of Indonesian origin consigned for from PT Yastra – Energy Indonesia to Farlin Energy & Commodities Dubai UAE. The number and date of invoice on the certificate produced by the Appellant as shown as (1) 0002455/BJM/2013 dt. 22.07.2013 whereas, the imports are covered under invoice no. FECFCUST/13-1029 dt. 11.08.2013.
The said order of Commissioner (Appeal) is not a speaking order. He has not examined the reasons given by the Appellant in its appeal before Commissioner (Appeal).
The impugned order is therefore set aside and the matter remanded to the Commissioner (Appeal) to gives specific findings on all the points raised by the Appellant before the Commissioner (Appeal) - Appeal allowed by way of remand.
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2023 (12) TMI 689
Classification of imported goods - classifiable as part of vehicles or otherwise or not - HELD THAT:- In the case of SUZUKI MOTOR GUJARAT PVT LTD VERSUS C.C. -AHMEDABAD [2023 (5) TMI 618 - CESTAT AHMEDABAD] the Tribunal has observed The test of predominant use is incorporated in the set of test to be exercise before classification. In view of above, there are no conflict in the decision of Hon’ble Apex Court cited by the Learned AR and the decision of the Tribunal in the appellant’s own case.
It is found that the test of predominant use is incorporated in the set of test to be exercise before classification. In view of above, follow the decision of Tribunal in the case of Suzuki Motor Gujarat Pvt. Ltd remand the matter to the Commissioner (Appeals) to decide in identical manner as the earlier remand order.
Appeal allowed by way of remand.
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2023 (12) TMI 619
Seeking permission to withdraw this Special Leave Petition - waiver of the pre- deposit requirement as placed in terms of Section 129E of the Customs Act, 1962 - HELD THAT:- The Special Leave Petition is dismissed as withdrawn.
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2023 (12) TMI 618
Seeking condonation of delay of 526 days in filing appeal - no explanation whatsoever for the huge delay - Classification of imported goods - Antenna for base station imported by the appellant - HELD THAT:- The Civil Appeal is hence dismissed on the ground of delay, keeping open the questions of law which arise, to be agitated in any other appropriate case.
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2023 (12) TMI 617
Seeking grant of bail - illegal smuggling of gold from Dubai - prohibited goods or not - HELD THAT:- It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay [1977 (9) TMI 126 - SUPREME COURT], Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, [1977 (12) TMI 143 - SUPREME COURT], Ram Govind Upadhyay v. Sudarshan Singh & Ors., [2002 (3) TMI 945 - SUPREME COURT], Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., [2010 (10) TMI 1199 - SUPREME COURT] and Mahipal v. Rajesh Kumar & Anr., [2019 (12) TMI 1461 - SUPREME COURT], the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Umesh Agrawal, be released on bail on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the conditions imposed - bail application allowed.
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2023 (12) TMI 616
Provisional release of goods - Constitutional Validity of Circular No. 35/2017-Cus dated 16.08.2017 - ultra vires and violative of Section 151A of the Customs Act, 1962 - HELD THAT:- A plain reading of the impugned order indicates that the said conditions were imposed in the light of paragraph 2.1 and 2.2 of the impugned Circular issued by the Central Board of Excise and Customs. Paragraph 2 of the impugned Circular, which indicates the conditions on which the provisional release of the goods can be granted, was declared as void by a Coordinate Bench of this Court in ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) VERSUS M/S. ITS MY NAME PVT. LTD. [2020 (6) TMI 72 - DELHI HIGH COURT].
In view of the above, since the impugned order has been passed on the basis of paragraph 2 of the impugned Circular, the same is liable to be set aside.
The impugned order is set aside and the matter is remanded to respondent no. 6 to decide afresh and the petitioner’s application for provisional release of the goods is restored before respondent no. 6 - Petition allowed.
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2023 (12) TMI 615
Classification of imported goods purchased on High Seas Sale - waste paper – printed waste books - classifiable under RITC 49011010 or under RITC 47079000? - HELD THAT:- The condition of the goods at the time of import, which is the taxable event, is the material factor for the purpose of classification and that end use to which the goods are put to by itself cannot be determinative of the classification of the product. However, it is noticed that at times post import procedures of goods to suit policy guidelines have been permitted by the department.
CBEC vide Circular No. 33/2016-Customs dated 22/07/2016 at Para 1.5.2 of Section 1 prescribes certain relaxations for importers of AEO-T2 including affixation of MRP label at their premises.
The appeal is disposed off by way of remand for a decision afresh, within 90 days of receipt of this order.
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2023 (12) TMI 614
Classification of coal - HELD THAT:- The Larger Bench of the CESTAT in a batch of appeals in the case of TAMIL NADU GENERATION & DISTRIBUTION CORPN. LTD. VERSUS C.C., TUTICORIN [2017 (8) TMI 765 - CESTAT CHENNAI] wherein an identical issue was involved, vide common Order dated 16.01.2017 had remanded the matter to the file of the adjudicating authority to await the decision of the Hon’ble Apex Court in the case of M/S. MARUTI ISPAT AND ENERGY PVT LTD VERSUS THE COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX [2017 (11) TMI 1629 - SUPREME COURT].
Thus, no purpose would be served in holding these appeals since most of the other appeals have been remanded to the file of the original authority and hence, this matter is also remanded to the adjudicating authority to await the decision of the Hon’ble Apex Court.
The appeals are disposed of by way of remand.
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2023 (12) TMI 613
Imposition of penalty u/s 114A of the Customs Act, 1962 equivalent to the duty short-paid - personal penalty of other appellants under Section 112(b) of the Customs Act, 1962 - tax amount has been paid with interest before issuance of show-cause notice - HELD THAT:- The mis-declaration of the assessable value by the appellant resulted into short-payment of Rs.14,97,179/-, hence imposition of penalty equivalent to the said differential duty of Rs.14,97,179/- under Section 114A of the Customs Act, 1962 on the appellant is justified. There are no error of facts or in application of law in arriving at the said conclusion by the learned Commissioner when the allegation of gross undervaluation of the product and transferring the suppressed amount later through non-banking channels have been accepted in the statements of the Managing Director and other persons of the appellant-company; consequently, the penalty imposed on the appellant-company is hereby upheld.
There are no reason to interfere with the findings of the learned Commissioner on the personal penalties imposed on each of other appellants who were actively involved in the gross undervaluation. However, considering the gravity of offence committed and the facts and circumstances of the case, the penalty imposed on Shri T. Gopi, Managing Director is reduced to Rs.2,00,000/- (Rupees Two Lakhs Only) and the penalty imposed on Shri D. Madan Raj, Marketing Director is reduced to Rs.1,00,000/- (Rupees One Lakh Only) under Section 112(b) of the Customs Act, 1962 to meet the ends of justice.
The appeal filed by the appellant-company is dismissed and the appeals of other appellants are partially allowed.
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2023 (12) TMI 612
Refund of Excess Customs Duty paid - application for refund filed beyond the period of limitation prescribed under Section 27 of Customs Act, 1962 - HELD THAT:- This Court finds that the decision relied upon by learned AR in the matter of Cummins Technologies India Pvt. Limited vs. UOI [2023 (9) TMI 199 - BOMBAY HIGH COURT] pertaining to not pursuing remedies or due diligence was in that matter pertained to statutory period of filing appeal before the Hon’ble Bombay High Court having expired and the question therefore of entertaining writ was refused. Additionally the mistake was not considered bonafide and due care and diligence was found lacking therefore the Hon’ble Court viewed that claim was correctly rejected on the ground of limitation as per applicable Section 27 read with Section 128 of Customs Act, 1962. As against this, Hon’ble Gujarat High Court considered two years a reasonable period when the duty was paid by mistake.
In the instant case, this court finds that payment was made twice due to technical glitch in the Customs payment system. The appellants to file refund pursued the matter with bank to get confirmation of double payment, as well as taking certification from Chartered Accountant on the basis of accounts to indicate such double payment and therefore, lack of diligence is not indicated on the face of record.
Appeal allowed.
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2023 (12) TMI 611
Request to amend the shipping bill for converting free shipping bill to DEPB shipping bill denied - time limit prescribed for amendment of the shipping bill or not - HELD THAT:- While considering the issue the Tribunal in the matter of M/S. CARBOLINE INDIA PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2022 (2) TMI 745 - CESTAT CHENNAI], observed that the exporter realise the mistake in two shipping bills dated 18.04.2018 and 02.05.2018 and request was made for amendment vide letter dated 19.08.2020. In the above circumstances the Tribunal held that ” When the statute does not prescribe any time limit for filing an application for conversion of a shipping bill, the department cannot rely upon a circular to frustrate the provisions contained in the statute. When there is a conflict, the statute will definitely prevail over the Board circular.
Though it is admitted that the circular No.36/2010 dated 23.09.2010 fixing time limit of 3 Months is not proper, as held by Hon’ble High Court of Delhi in the matter of COMMISSIONER OF CUSTOMS (EXPORT) VERSUS E.S. LIGHTING TECHNOLOGIES (P) LTD. [2019 (11) TMI 736 - DELHI HIGH COURT], merely because no time limitation is prescribed under Section 149 for the purpose of seeking amendment/conversion, it does not follow that a request in that regard could be made after passage of any length of time. The request by the appellant was to convert shipping bill from free to advance license shipping bill. The Respondent cannot entertain such request for conversion without examination of the records. It is not fair to expect the department to consider the request for such amendment after 5 long years. Thus there is no infirmity in the impugned order rejecting the request for amending shipping bill for converting free shipping bill to DEPB shipping bill 6 years after export of goods.
The appeal is rejected.
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2023 (12) TMI 597
Seeking provisional release of the goods imported by the petitioner albeit on furnishing a bond equivalent to the value of seized goods and a bank guarantee/security deposit equivalent to 120% of the said amount - Constitutional Validity of Circular bearing No. 35/2017-Cus dated 16.08.2017 - HELD THAT:- Paragraph 2 of the impugned Circular to the extent it curtails the discretion accorded to the adjudicating authority is set aside as being contrary to the Customs Act - The impugned order is set aside and the petitioner’s application for the provisional release of the goods is restored before respondent no. 6.
Considering that the goods involved are perishable, respondent no. 6 is directed to decide the matter afresh and pass a speaking order within a period of four working days from date after hearing the petitioner - The petitioner shall appear before respondent no. 6 on 11.12.2023 at 10:30 a.m.
Application disposed off.
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2023 (12) TMI 578
Refund - Period of limitation - duty paid under protest or not - Importer had preferred an appeal challenging the enhancement of the value of the goods - HELD THAT:- There is delay of 192 days in filing this special leave petition - the matter does not require interference.
The special leave petition is dismissed both on the ground of delay as well as on merits.
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2023 (12) TMI 577
Short payment of Customs Duty - Approval of Resolution Plan - extinguishment of claims once resolution plan approved u/s 31 of IBC - overriding effect of IBC over Customs Act - HELD THAT:- Undisputedly, the Supreme Court in ABG Shipyard Liquidator vs. Central Board of Indirect Taxes & Customs [2022 (8) TMI 1161 - SUPREME COURT] has unequivocally held that the provisions of the IBC would override and have precedence over the Act.
Insofar as the extinguishment of claims is concerned, the said issue too is no longer res integra and stands authoritatively answered by the Supreme Court in Essar Steel India Ltd. Committee of Creditors vs. Satish Kumar Gupta [2019 (11) TMI 731 - SUPREME COURT] and Ghanashyam Mishra & Sons Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Pvt. Ltd. [2021 (4) TMI 613 - SUPREME COURT], where it was held that Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were.
The impugned order cannot be sustained - petition allowed.
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