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Customs - Case Laws
Showing 81 to 100 of 1606 Records
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2023 (12) TMI 576
Denial of conversion of shipping bills under Advance Authorization scheme to Duty Drawback scheme for realization of export benefits - time limitation specified under Section 149 of the Customs Act or not - HELD THAT:- The Hon’ble Gujarat High Court in MESSRS MAHALAXMI RUBTECH LTD. VERSUS UNION OF INDIA [2021 (3) TMI 240 - GUJARAT HIGH COURT] has considered Section 149 ibid. in extenso and therefore, the Tribunal, as a lower authority, is bound by the said decision since the very Circular, which has been relied upon by the original authority even in the case on hand, has been clearly struck down by the Hon’ble High Court as ultra vires. Hence, the views expressed by the original authority for denying the conversion request of the appellant, not subscribed.
The impugned order is set aside - the appeal is allowed.
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2023 (12) TMI 575
Levy of Anti Dumping Duty - import of goods described as Extra Clear Glass - goods imported was Extra Clear Glass or Clear Float Glass? - HELD THAT:- The appellant, by raising a ground that the duty was paid for Extra Clear Glass, is indirectly trying to justify its classification which cannot be permitted. When there were clearly no doubts in the minds of the Revenue as to what was imported was float glass, then necessary consequences ought to follow, inasmuch as the liability to ADD cannot be overlooked just because the appellant has been magnanimous in remitting more duty. If the said theory is accepted, then the same would affect the classification itself! Hence, the theory of the appellant cannot be accepted as the same lacks any merit.
Insofar as the Anti-Dumping Duty levy is concerned, the appellant-importer has given a working wherein it has claimed that what was paid as duty by it was more than what was hypothetically worked out by the Revenue, but however, we cannot get into the arithmetics of the same since, the scope of the appeal is limited.
There are no merit in the case of the appellant for which reason the appeal is dismissed.
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2023 (12) TMI 574
Enhancement of redemption fine and penalty - Import of old and used worn clothing, completely fumigated - restricted item or not - HELD THAT:- This issue came up before this Tribunal in the case of VENUS TRADERS, RAINBOW INTERNATIONAL, AL-YASEEN ENTERPRISES, GLOBE INTERNATIONAL, KRISHNA EXPORT CORPORATION, PRECISION IMPEX, BMC SPINNERS PVT. LTD., SHIVAM TRADERS, LEELA WOOLEN MILLS, M.U. TEXTILES VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) MUMBAI [2018 (11) TMI 625 - CESTAT MUMBAI], wherein this Tribunal has observed the paucity of evidence and the negligible scope for ascertainment at this stage deters us from doing so. In the light of the admitted failure to comply with the licensing requirements, we uphold the confiscation of the goods under Section 111(d) of Customs Act, 1962. However, it is our opinion that the ends of justice would be served by reducing the redemption fine to 10% of the ascertained value and penalty to 5%.
Against the confirmed duties and the penalties the Redemption Fine imposed by the Adjudicating Authority, the Respondent has not filed any appeals.
Following the cited decision of this Tribunal, it is held that the redemption fine and penalty imposed on the respondents by the adjudicating authority is sufficient to meet the end of justice. Therefore, the redemption fine and penalty confirmed by the adjudicating authority are upheld.
There are no infirmity in the impugned order and the same are upheld - appeals filed by the Revenue are dismissed.
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2023 (12) TMI 573
Clandestine removal of goods from ICD, TKD by procuring illegal and forged gate pass - Forgery - smuggling of air conditioners R-22 gas cylinders - restricted goods or not - HELD THAT:- From the entire evidence on record, it is clear that all the above names persons have acknowledged that they knew about Customs manual gate passes have been forged by Shri Rohit Sakhuja and Shri Ajit Singh Chadha for clandestine removal of containers from ICD,TKD. They knew that the goods are illegally imported by Shri Rohit Sakhuja and Shri Ajit Singh Chadha by adopting such modus operandi so as to defraud the competent authority.
All the concerned i.e. employees, transporters, the labourers/contractors, CHA the dummy proprietors of firms Shri Rohit Sakhuja and Shri Ajit Singh Chadha have acknowledged that they knowingly indulged in impugned fraudulent act of removing illegally imported goods from customs area. Their statements have already been appreciated above - there are nothing which may falsify testimony of any of these witnesses. There are no infirmity in the findings where all these people are held responsible for abetting and facilitating impugned fraud committed for clandestine removal of the goods and improper importation of such goods also. Shri Kamal Virmani also has acknowledged about knowingly storing, distributing and selling illegally imported air conditioners and prohibited R-22 gas cylinders. Shri Satish Kumar also acknowledged about knowingly purchasing R-22 gas cylinders that those restricted goods have been illegally imported. Similarly Mr.Dilip Singh Jain and Vijay Kumar Sharma were found in possession of illegally imported goods with full knowledge in that respect.
Penalty upon Shri R.K.Mahapatra, Junior Executive (Commercial Operations) CONCOR,ICD,TKD, New Delhi and and Shri S.K.Dubey, Senior Executive (Commercial & Operation), CONCOR, ICD, TKD, New Delhi are also found rightly imposed for issuing the CONCOR ‘job orders’ without verifying the particulars of the bills of entry.
There are no reason to differ from the finding of the adjudicating authority. There is sufficient evidence even against shipper, K Line Singapore Pvt. Ltd. for colluding and abetting the impugned illegal import of goods - there are no infirmity in the order demanding differential duty from Shri Rohit Sakhuja and Shri Ajit Singh Chadha nor with the order penalizing all the other appellants - appeal dismissed.
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2023 (12) TMI 572
Forfeiture of security deposit - non-initmation of change in the Board of Directors within 60 days as is required under Regulation 14 of CHALR, 2004 - HELD THAT:- There was enough evidence to show that the delay was not deliberate and was only because of the illness of the Appellant’s farther. It is seen that no case has been made out against the Appellant that the delay in submission of the change in Board of Directors was deliberate on his part.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 534
Denial of interest on the refund (of SAD) sanctioned - HELD THAT:- The effect of Section 11BB is that when any duty ordered to be refunded, is not refunded within three months from the date of receipt of application, then there shall be paid interest at the applicable rates from the date immediately after the expiry of three months from the date of receipt of application for refund until the date of refund of such duty.
The appellants are entitled to the interest on refund since the claim of the appellants is relatable to the date of its applications, and not the date of compliance with the query raised by the Revenue. Going by the said dates of applications, the refund sanctioned vide Orders-in-Original dated 01.04.2013 are clearly beyond the prescribed period of three months.
There are no reasons to sustain the impugned orders of the first appellate authority, for which reason the impugned Order-in-Appeal Nos. 135 & 136/2013 dated 16.07.2013 and Order-in-Appeal Nos. 141 & 142/2013 dated 30.07.2013 are set aside - appeal allowed.
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2023 (12) TMI 533
Levy of penalty u/s 114(iii) of the Customs Act, 1962 and Section 114AA of the Customs Act, 1962 - export of goods at highly over invoiced values - availing undue export incentives - HELD THAT:- All merchandise entering or leaving the country must do so through authorised entry/exit ports, report to Customs, and follow all applicable laws and regulations, including paying any customs that may be due. Infractions are also subject to civil and criminal fines, according to the Customs Act. Criminal liability can result in incarceration and financial penalties, while civil liability can result in monetary fines and the seizure of property. The nature of the punishment depends on the gravity of the offence, with penalties for improper import or export of goods outlined in Sections 112 and 114 of the Customs Act.
A perusal of the provisions of section 114 and 114AA makes it clear that any action by any person which renders imported or exported goods to confiscation is liable for penal action under section 114 of the Customs Act. In addition, any person who has signed a false or incorrect document is liable for penalty under section 114AA of the Customs Act. The Customs Act deals with the "Confiscation of goods and conveyances, and imposition of penalties". It is further significant to note that the Legislature has simplicitor used the word "any person" to fasten the liability of a penalty. The Customs Act has not defined the word "person" and, therefore the definition and rules of interpretation contained in the General Clauses Act, 1897, can be taken recourse to.
Hon'ble Apex Court in the case of OM PRAKASH BHATIA VERSUS COMMISSIONER OF CUSTOMS, DELHI [2003 (7) TMI 74 - SUPREME COURT] dealt with the over invoicing of export goods, and held that, when the importation or exportation, of the goods are subjected to certain prescribed conditions to be fulfilled either before or after clearance of the goods, and if those conditions are not fulfilled, the said goods would be considered as prohibited goods and Sections 2(23), 11 and 113(d) of the Customs Act, 1962 would come into play and the exporters would be liable for penalty - In a catena of decisions of the Tribunal in respect of cases of over valuation of export goods for benefit under export incentive schemes, the imposition of penalties under Section 114 of the Customs Act, 1962 has been upheld.
Delay in adjudication - HELD THAT:- It is noted that there were several noticees in the show cause notice, which by itself would lend to the delay in adjudication. We are not inclined to accept this contention of the learned counsel.
The impugned order is upheld - appeal dismissed.
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2023 (12) TMI 532
Doctrine of Merger - merger of original order with the appellate order - Benefit of duty exemption provided under Notification No. 52/2003-Customs dated 31.03.2003 availed - denial of benefit on the ground that such benefit was not available to the respondent in terms of the permission granted by the Inter-Ministerial Standing Committee (IMSC) - HELD THAT:- From the sequence of events, it transpires that the original order dated 26.08.2013 was merged with the order dated 01.04.2014 passed by the Tribunal and the said order of the Tribunal was also upheld by the Hon’ble Bombay High Court in COMMISSIONER OF CENTRAL EXCISE, PUNE III VERSUS KUMAR HOUSING CORPORATION LTD. [2018 (2) TMI 820 - BOMBAY HIGH COURT]. Thus, under the circumstances of the case, the doctrine of merger applies to the case in hand and since the order dated 26.08.2013 is no more in existence, in our considered view, the appeal filed by Revenue against such original order cannot be sustained for judicial scrutiny. Further, the prayer made by Revenue in this appeal cannot also be sustained inasmuch as the order dated 26.08.2013 was passed by the learned Commissioner of Central Excise, pursuant to the limited remand directions made in the Order dated 29.06.2012 by the Tribunal.
There are no merits in the appeal filed by Revenue and therefore, the same is dismissed.
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2023 (12) TMI 531
Amendment of Bills of entry - Essentiality Certificate was not in existence at the time of clearance of the goods - Section 149 of the Customs Act, 1962, to deny the benefit of duty exemption provided under notification No.84/1997-Customs dated 11.11.1997 - HELD THAT:- On reading of the above provisions, it transpires that amendment of the documents filed for the import or export goods is permissible under the statute. The proviso clause appended to section 149 provides that amendment of the documents are permissible on the basis of evidence in existence at the time of clearance of the goods from the customs station. In this case, it is not the case of Revenue that the impugned capital goods were not imported by the appellants for accomplishing the purpose mentioned in the notification dated 11.11.1997. This fact is evident from the application dated 10.10.2019 filed by the appellants before the competent authorities for issuance of the DEC. Since, the B/Es in question were filed much after the date of such application, seeking for availment of duty exemption, it cannot be said that the department was ignorant about the entitlement of the appellants for such benefit provided in the notification.
It is also an admitted fact on record that the application dated 10.10.2019 filed by the appellants were favorably considered by the competent authority for the duty exemption entitlement viz. Essentiality Certificate. Since, such certificate was issued upon subjective analysis that the goods are meant for use in the designated project(s), spelt out in the notification, denial of such benefit by the department is contrary to the legislative intent behind issuance of such notification, which was specifically designed in the public interest to grant the benefit provided thereunder.
The impugned orders are set aside and the appeals are allowed by way of remand to the original authority for the limited purpose of verification of the ‘Essentiality Certificate’ dated 08.05.2020 and thereafter, for grant of the benefit of duty exemption provided under the notification No. 84/1997-Customs dated 11.11.1997 - Appeal allowed by way of remand.
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2023 (12) TMI 530
Rejection of application for remission of duty in respect of imported raw-material destroyed in fire, in the appellant’s SEZ unit - Application of Section 23 for remission of duty in the SEZ unit - customs duty along with the value of the goods not insured - HELD THAT:- It is found that there is no dispute that the fire incident has taken place in the appellant’s factory located in SEZ units. As per survey report, it is clear that there is no negligence on the part of the appellant as the fire broken out suddenly beyond the control of the appellant. Therefore, the allegation that the appellant have not taken the proper precaution to avoid fire incident is absolutely baseless and imaginary. Moreover, it is the appellant who has to be most careful about their goods as it is not only the duty but the huge stake of value of the goods is involved. Therefore, it cannot be imagined that the appellant was careless and negligent due to which fire incidence has taken place.
It is found that once after carrying out thorough inspection and survey, the insurance company has satisfactorily granted the insurance claim that itself is evidence to establish that the fire incidence was beyond the control of the appellant. Therefore, the ground that the appellant was negligent in the matter of fire incident cannot be accepted.
Application of Section 23 for remission of duty in the SEZ unit - HELD THAT:- In the present case the grant of remission in respect of customs duty in terms of Section 23 does not contradict any of the provision of the SEZ Act. Therefore, the contention of the Adjudicating Authority about non-applicability of the Section 23 of the Customs Act, is not sustainable.
Appellant have not insured the customs duty along with the value of the goods - HELD THAT:- It is obvious that only the value of the goods is liable to be insured, which is appearing in the invoices. If the invoice contain any taxes or duties, obviously the gross value inclusive of all these elements shall be taken for the purpose of insurance. However, in the case of SEZ, when the goods are imported and entered into SEZ, the value of goods remain the only principle value and since no duty was payable, question of inclusion of duty does not arise. However, this cannot be the reason for denying the remission of duty - appellant has made out very strong case of remission of customs duty in respect of the destroyed goods in fire.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 529
Classification of export goods - Iron Oxide Powder - to be classified under chapter 28211010 or under Tariff Heading 26011119? - It is claimed by the appellants that processes carried out by them make it fit for use in oilfield chemicals - HELD THAT:- There was a definite claim by the party by virtue of above flow chart that they had subjected the Iron Ore to various processes, that no more allowed it to be considered product of metallurgical industry.
Learned Commissioner (Appeals) while dealing with the proposition extended the scope of the same by using expression “manufacturing processes’ - It is found that in the statute only the requirement of ‘processes’ having been under taken is existing in Section note to Chapter 26, so as to make it no more a metallurgical item. However, both the lower authorities have not considered the processes as above in the flow chart and whether processes done by them have made item it fit for oilfield industry as claimed. In which case it will be an item of Chapter 26, but of Chapter 28.
Matter remanded back to the Commissioner (Appeals) to consider the processes, which are stated already on record and the outcome of such processes. Appeal is allowed by way of remand.
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2023 (12) TMI 493
Recovery of customs duty forgone proportionately with respect to the utilization of the licence - non-fulfilment of export obligation - appellant had engaged third party exports - HELD THAT:- The Circular No.7/2002 dated 11.7.2002 was issued by the Ministry of Commerce and Industry, Directorate General of Foreign Trade, New Delhi, on the basis of the representations given from various exporters for condonation of procedural lapse of not mentioning the EPCG licence number and the date on the shipping bills relating to the exports for fulfillment of EO under EPCG scheme. A decision was taken under para 2.5 of the EXIM policy that such procedural lapse may be condoned in relaxation of the existing policy provisions subject to submission/verification of the documents as enumerated therein.
In the present case, the contention of the respondents nned not be considered that the appellant had not fulfilled the export obligation within the stipulated period. The same was not the ground in denying the benefit to the appellant.
It is worth noting that the appellant even failed to place on record the shipping bills. Moreover, the appellant admitted that it did not mention the names of third parties and the licence holder on the shipping bills. It would be difficult for the respondents to verify the genuineness of the claim in the absence of the names of third parties on the shipping bills so also the names of the licence holder. Paragraph 5.7.1 of the Hand Book of Procedures prescribes that EPCG licence number and date shall be endorsed on the shipping bills which are proposed to be presented towards discharge of export obligation. The appellant did not comply with the same. Moreover, the shipping bills were not placed before the respondents so as to enable the respondents to verify the same.
There are no error in the order passed by the respondents negativing the claim of the appellant - the writ appeal stands dismissed.
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2023 (12) TMI 492
Smuggling - Gold Bullion - procedure contemplated under Section 108 of the Customs Act, 1962 not followed - retraction of statements of petitioner - violation of principles of natural justice - HELD THAT:- When the petitioners’ case is verified with reference to the available material on record, it creates prima facie suspicion on the version projected by the petitioners. Further, the investigation is in the nascent stage and not yet completed. In these circumstances, it is not apposite to rush to the conclusion that the statements of the petitioners 2 to 5 were recorded by the authorities by applying threat or coercion. This aspect and the truth or falsity of petitioners’ case can be determined only after completion of investigation and when the matter is taken up for trial by the concerned court.
It is not considered apt to order release of the seized gold to the petitioners. Thus, at the outset, there are no merits in the case of petitioners.
The Writ Petition is dismissed, however with an observation that respondent authorities shall proceed with investigation and complete the same without being influenced by our observation in this order.
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2023 (12) TMI 491
Requirement of previous sanction as contemplated in Section 137 of the Customs Act, 1962 for taking cognizance of the alleged offences - petitioners submits that when such specific authorities are empowered to accord sanction; even by excluding superior officers like Principal Commissioner of Customs or Chief Commissioner of Customs, the sanction accorded in this case by an officer who held only charge and not by the officer empowered by the statutory provision is illegal.
HELD THAT:- Section 4(2) governs only authorisation of the officers enlisted therein by the Board to appoint officers below the rank of Assistant Commissioner or Deputy Commissioner of Customs; whereas notification dated 07.03.2002 was issued to classify the officers and appoint Commissioner of Customs. Before amending Section 4(1) on 11.05.2002, it was the Central Government and not the Board the authority to appoint officers of Customs. Hence, the notification dated 07.03.2002 issued by the Central Government is quite valid.
The notification dated 07.03.2002 says that the Commissioner of Central Excise to be the Commissioner of Customs (Appeals) within their respective jurisdiction as specified under Rule 3 of the Central Excise Rules, 2002. Thus there is valid appointment of the Commissioner of Central Excise to be the Commissioner of the Customs. Hence, appointment of the officer officiating as the Commissioner of Customs could validly accord sanction. The petitioners cannot be heard to contend that such an officer did not have the power to discharge the functions and duties of the Commissioner of Customs under Section 137 of the Customs Act.
In that view of the matter, the contention of the learned counsel for the petitioners that the sanction accorded for prosecution in this case is illegal cannot be prima facie accepted.
The criminal revision petition is dismissed.
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2023 (12) TMI 490
Refund of the Clean Energy Cess paid by them in cash in addition to the debits made through DEPB scrips - Power of Commissioner (Appeals) to remand.
Refund of the Clean Energy Cess paid by them in cash in addition to the debits made through DEPB scrips - HELD THAT:- It is noticed that revenue has field cross objections on the ground that the Commissioner (Appeals) has no power to remand.
The Commissioner (Appeals) has not dealt with the issue on merits. While remanding the Commissioner (Appeals) has observed I find that the adjudicating authority had concluded that their application for revalidating the DEPB licence is lying alive before the PRC. I find the aforesaid facts and issues need proper verification and re examination by the original authority - thus, It is seen that the Commissioner (Appeals) has not examined the issue on merits and therefore the said order cannot be sustained.
Power of Commissioner (Appeals) to remand - HELD THAT:- The issue becomes infructuous, as there was no need to remand the matter. The Commissioner (Appeals) to decide the issue on merit - the order ser aside and matter remitted back to the Commissioner (Appeals) to decide the issue of the refund on merits.
Appeal disposed off.
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2023 (12) TMI 489
Jurisdiction - power of Commissioner (Appeals) under Section 128A (3), to modify order after inquiry - change of heading by the Commissioner (Appeals), without affording opportunity - Classification of imported goods - Malvern Master Sizer - HELD THAT:- While Commissioner (Appeals) is within its powers to confirm the decision or order appealed against or modify the same, but there is an initial requirement that he should make further inquiry as may be necessary and pass such order i.e just and proper. In the present instance, no inquiry it appears was conducted about the product or details and the matter has been decided without opportunity to the appellants. Appellants too are agreeable and seek remand, but with rider of opportunity about correct classification on (even of third head).
Thus, change of heading by the Commissioner (Appeals), without affording opportunity is improper, and same can only be done after conducting proper inquiry and following natural justice.
Matter therefore is remanded in the interest of settling classification at the earliest - Appeal is allowed by way of remand.
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2023 (12) TMI 488
Classification of imported goods - mixed hydro carbon oil - classifiable under 2707 5000 or under 2710 1990? - whether one test report in which 10 out of 21 parameters which have been tested can be held as good enough to hold the same against the party? - HELD THAT:- The Hon’ble High Court in COMMISSIONER OF CUSTOMS, KANDLA VERSUS RAJKAMAL INDUSTRIAL PVT. LTD. [2022 (2) TMI 264 - GUJARAT HIGH COURT] said that department is not required to prove its case with mathematical accuracy and beyond reasonable doubt - the observations in the instant case are to be followed, where 10 out of 21 parameters have been tested but conclusion arrived.
It is opined that the Chemical analyst to which there is no serious challenge by way of any other report produced by the party is correct - appeal of the appellant is dismissed.
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2023 (12) TMI 451
Smuggling - Gold - suppression of bill for the purchase of gold despite its seizure from his bag - retraction of statement given under section 108 of Customs Act - reliability of the statements - accused admitted the commission of offence or not - validity of judgment of acquittal of the accused.
Has the accused retracted his statement given under section 108 of the Customs Act as per Ext. D1? - HELD THAT:- In the instant case, Ext. D1 was produced from the Official custody, pursuant to summons. The contents of Ext. D1 have not been spoken to by anyone. The person who signed the document or, who received the document, or in whose custody it was kept, has not been examined. The only circumstance that stands proved is that a written document was handed over to the prison authorities while the accused was in custody.
When a document, admissible in evidence, is marked, for it to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, apply i.e., evaluation, which is a judicial exercise. Unless all these stages are carried out, a court of law cannot rely upon any document produced or marked before it - For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, apply i.e., evaluation, which is a judicial exercise. Unless all these stages are carried out, a court of law cannot rely upon any document produced or marked before it. Viewed in the above perspective, the contents of Ext. D1 cannot be said to have been proved. Hence, Ext. D1 cannot be treated as a retraction of the statement given under section 108 of the Act.
Can the statement given by the accused under section 108 of the Act, produced as Ext. P8, Ext. P8(a) and Ext. P8(b) be relied upon? - HELD THAT:- The initial burden to prove that a statement given under section 108 of the Act was voluntary is on the prosecution. Even if such a statement has not been retracted, the prosecution still has the burden to prove that the accused made the statement voluntarily - As per section 3 of the Indian Evidence Act, 1872, a fact is proved only when the Court believes its existence so probable that a prudent man ought, under the circumstances of the particular case, act upon the supposition that it exists. In the nature of the circumstances referred to above, this Court does not believe that the statements Ext. P8, Ext. P8(a) and Ext. P8(b) purported to have been made under section 108 of the Act were voluntarily made by the accused. Therefore, no reliance can be placed upon those statements.
Has the accused admitted to the commission of the offence in the statement under section 313 Cr.P.C? - HELD THAT:- The accused is alleged to have admitted in his statement under section 313 Cr.P.C to the act of smuggling. This Court could not identify any specific admission of commission of the offence. Even if it is assumed that there is any admission in the statement under section 313 Cr.P.C, the same cannot be relied upon as the sole material to convict the accused. Legally, a statement given under section 313 of Cr.P.C is not given under oath and hence cannot replace evidence. If the evidence of the prosecution leaves out an essential ingredient of the offence, that gap cannot be filled up by the statement under section 313 Cr.P.C. - The evidence of the prosecution witnesses indicates various inconsistencies and contradictions between them. Though few of the inconsistencies are inconsequential, some are substantial. Smuggling takes place when the Customs area is crossed without paying duty.
Though the prosecution denied the existence of any place for storing goods, it is evident from section 42(2) read with section 12(3)(g) of the Airport Authority of India Act, 1994 that there are provisions for setting up warehouses to store goods brought by passengers. Similarly, there is absolutely no evidence regarding any previous smuggling of goods by the accused. The prosecution had not examined any witness or produced any document to show such previous conduct by the accused, and on the other hand, the evidence of DW1 indicates that the accused had been coming down to Kerala for business purposes, which evidence could not be dented by the prosecution during cross-examination. Therefore, the impugned judgment cannot be said to be perverse or impossible.
The judgment of acquittal of the accused on the files of the Additional Chief Judicial Magistrate (EO), Ernakulam, needs no interference - Appeal dismissed.
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2023 (12) TMI 450
Maintainability of appeal before Supreme Court in terms of Section 130E (b) of the Customs Act - recovery of erroneous drawback - HELD THAT:- Going by the 1st proviso to Section 129A(1) therefore, an appeal cannot be maintained before the Appellate Tribunal, and the said Tribunal does not have jurisdiction to decide such an appeal if the order of the Commissioner (Appeals) under Section 128A relates to payment of drawback as provided in Chapter X and the Rules made thereunder. It is therefore not clear as to how the Appellate Tribunal could have passed the impugned order in favour of the respondents herein. However, as that is not an issue that can be considered in these appeals, which themselves are not maintainable before us in view of the valuation of goods being an issue that was considered by the Appellate Tribunal, it is refrained from expressing any opinion on the said aspect.
This aspect is best left to be considered by the Supreme Court in the appeal preferred by the revenue against the order of the Appellate Tribunal.
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2023 (12) TMI 449
Change in classification - suppression of facts - Import of parts of mobile phones - Section 28(1) of the Customs Act, 1962 - HELD THAT:- As would be manifest from the report of the Expert, the parts imported constituted an incomplete mobile handset. It also noted that various other steps would be required to be completed including addition of essential components before the imported article could function as a mobile phone. We also bear in mind the stand of the petitioner which had consistently taken the position that it was importing parts of mobile handsets. Presently, the respondents have failed to draw our attention to any material which may prima facie sustain an allegation of suppression or misdeclaration so as to justify invocation of Section 28(4). The matter requires consideration.
Till the next date of listing, the respondents shall stand restrained from taking further steps pursuant to the impugned SCN dated 01 September 2023. This order however, shall not preclude the respondents from proceeding further in terms of the SCN dated 25 July 2023.
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