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Customs - High Court - Case Laws

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• 2020 (1) TMI 950
  
  Waiver of penalty u/s 114AA of CA - reduction in the quantum of penalty imposed u/s 112(a) of CA - abetment of the smuggling activities - maintainability of appeal - HELD THAT:- As a matter of fact, no question of law arises from the order of the learned Tribunal, much less substantial question of law, which is the requirement for maintaining the appeal under Section 130 of the Act. The matter relates to imposition, deletion or reduction of the amount of penalty are within the discretion of the fact finding bodies and the learned Tribunal being the highest fact finding body, in its fair exercise of discretion, has reduced the penalty under Section 112(a) of the Act while setting aside the penalty under Section 114AA of the Act. The activity of the import of the prohibited goods by covering them with the help of some goods, which are decla....... + More

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• 2020 (1) TMI 907
  
  Writ of Habeas Corpus - Release of detained petitioner - detention sought on the ground that the detention of petitioner in custody is illegal and the same is violative of Article 14, 21 and 22 of the Constitution of India - smuggling - HELD THAT:- In view of the serious allegations levelled against the petitioner about his involvement in the multi crore scam of the smuggling of gold in which the petitioner has actively participated, we are not inclined to exercise our discretion in favour of the petitioner for issuance of Writ of Habeas Corpus. The petitioner has efficacious remedy of filing the Bail Application and seeking regular bail before the competent court. Even if the remand order is illegal, which is passed mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot be said to be an efficacious remed....... + More

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• 2020 (1) TMI 906
  
  Vires of Policy Circular Nos.6 and 35 - denial of benefit of the DEPB or Duty Drawback - HELD THAT:- There is no merit in the present intra Court Appeals filed by the Revenue and the view of the learned Single Judge deserves to be upheld - We are of the opinion that the Circulars like Circular No.74/1999-Cus dated 05.11.1999 as well as the Circular No.31/2000-Cus dated 20.04.2000 could not have restricted or denied the benefit of Drawback or DEPB if such manufacturing was done by 100% EOU Units and then exports were made by such 100% EOUs. The denial of benefit to the Assessee under the guise of a clarification for which, no power was bestowed on the Central Board. More so, if such Circulars come in direct conflict with clear statutory provisions of law or Import Export Policy having statutory character. Appeal dismissed.

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• 2020 (1) TMI 848
  
  Classification of goods - Kapok - whether Kapok could not be classified under heading 53.05 or not? - HELD THAT:- There is no finding in the order of the Tribunal as to whether the observations of the Commissioner (Appeals) that Kapok could not be classified under heading 53.05, are correct or not. No appeal was filed by the Respondents on this count. The question would now remain whether the Kapok could be classified under heading 14.04. The argument that the Commissioner (Appeals) in the appeal can never look into a different entry is belied by the proviso to Section 128A of the Act. However, a procedure is laid down in the said proviso. A prior notice and time limit is contemplated. The contention of the Appellant that such a notice, even if it is issued, was beyond time even on the date the Commissioner passed the order can be made by....... + More

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• 2020 (1) TMI 846
  
  Imposition of redemption fine - section 125 of CA - goods in question have already been released in favour of the assessee on a bond - HELD THAT:- the mere fact that the goods were released on the bond being executed would not take away the power of the customs authorities to levy redemption fine. However, tribunal has recorded that, "It is also on record that the goods were not physically available for confiscation. Redemption fine was not to be imposed in lieu of confiscation of any goods where the goods are not physically available to be redeemed." The learned Tribunal has erred in holding that the cited case of the Hon'ble Supreme court in the case of WESTON COMPONENTS LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2000 (1) TMI 45 - SC ORDER] referred is distinguishable. This observation written by hand by the learned M....... + More

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• 2020 (1) TMI 768
  
  Smuggling - foreign marked gold bars - acquittal of accused - offence punishable under Section 135 (1) (b) read with Section 135 (1) (i) of the Customs Act, 1962 and under Section 8 (1) of Gold Control Act punishable under Section 85 (1) (ii) of the Gold (Control) Act, 1968 - cross-examination of witnesses. HELD THAT:- There is nothing on record to indicate that respondent no.1 was apprised of his rights under Section 102 and consequences thereof. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. For that purpose, at the outset, prosecution must prove that the seizure effected from the person of accused on 25th March 1985 at Kalbadevi Road, was legal. The provisions of Section 102 of The Customs Act, 1962 accord a protectio....... + More

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• 2020 (1) TMI 767
  
  Smuggling - sale proceeds from sale of Gold Bars - Indian Currency - acquittal of accused - offence punishable under Section 135 (1) (A) and (B) read with Section 135 (1) (i) of the Customs Act, 1962 - compliance with the provisions of Section 102 of the said Act or not - reliability of statements - HELD THAT:- Admittedly the formalities to be followed under the provisions of Section 102 of the said Act have not been followed. Mr. Natarajan, in fairness, true to his role as an Officer of the Court, admitted that the requirements of Section 102 of the said Act have not been complied with and compliance with those requirements is mandatory - For proving the offence under Section 135 of the said Act, prosecution must prima facie establish the case of legal seizure. For that purpose, at the outset, prosecution must prove that the seizure effe....... + More

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• 2020 (1) TMI 682
  
  Smuggling - Gold - confiscation of seized goods alongwith penalty - process of adjudication of the Show Cause Notice dated 29th August, 2017 has already been started, which is yet to be completed - HELD THAT:- This writ petition has been preferred for correction of methodology of adjudication, which we are not going to interfere at all because it is left on the discretion and wisdom of the respondents and with the expectation that they shall follow the law, rules, regulations and Government policy as applicable to the facts of the case. Petition disposed off.

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• 2020 (1) TMI 645
  
  Smuggling - foreign marked gold bars - complaint not exhibited - sanction for prosecution - acquittal of accused - HELD THAT:- There is a sanction dated 2-4-1993 in the records and proceedings, but the same is not brought on record as exhibit. It is settled law that a sanction for prosecution is not an idle formality. The sanction is a solemn and sacrosanct act, which has to be by due application of mind after satisfaction by perusal of the relevant materials. It was the duty of the prosecution to have the sanction exhibited - It is rather unfortunate that this sanction was also not proved through witnesses and consequently, the sanction is not exhibited. Therefore, one could safely state that the prosecution itself is vitiated - the complaint is not proved and exhibited and the sanction also is not proved and exhibited. On these grounds ....... + More

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• 2020 (1) TMI 644
  
  Smuggling - contraband item - foreign marked gold biscuits - evidences before charge were not cross-examined, but after framing of charges they were cross-examined - acquittal of accused. HELD THAT:- The prosecution has totally failed to prove that accused was responsible or in any way responsible for fraudulent evasion of duty or he had been instrumental in the importation of the gold. Prosecution has also failed to prove that accused knew or had reason to belief that the gold found in his person are liable to confiscation. There is no evidence in that regard because the gold seized admittedly did not have any foreign marking. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. The provisions of Section 102 of The Customs Ac....... + More

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• 2020 (1) TMI 600
  
  Jurisdiction - powers of the Appellate Court while dealing with an appeal against an order of acquittal - case of forgery - offence u/s 138 of NI Act - acquittal of accused of offence under Section 5 of the Imports and Exports (Control) 1947 - HELD THAT:- According to P.W.-3, the export, however, was made after the expiry of period fixed by the competent authority. The period, what P.W-3 is referring to, is the period prior to granting of third extension. In this case, the appropriate authority had commenced investigation and filed a complaint in view of non compliance with export obligations by accused. Accused, however, had applied for an extension, which extension was granted after the complaint was filed and investigation was commenced. P.W-3 also has stated that he had discussed the matter in the office of the Chief Controller of Imp....... + More

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• 2020 (1) TMI 599
  
  Inaction of the Respondent authority of not releasing the imported goods - import of Areca Nuts from Sri Lanka within the period from 1 March 2003 to 18 March 2003 - clearance of goods for home consumption - section 47 of the Customs Act, 1962 - HELD THAT:- There is no dispute that in the normal circumstances, the Petitioner's goods will be entitled to be cleared under section 47 of the Act. What is being put forth by the Respondent is pendency of appeal. We have not been shown any statutory provision that pendency of appeal by itself would amount to a stay or mere pendency of appeal without even moving any application for stay would mean that the authorities need not to take any steps under section 47 of the Act - In the present case, the Respondent has not even filed an application for stay in the pending appeal. The fact that the a....... + More

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• 2020 (1) TMI 598
  
  Benefit of SFIS Scheme - FTP 2004-2009 - interpretation of provisions of FTP - rejection of Refund of duty - HELD THAT:- Para 3.6.4.2 of the FTP 2004-2009 is clear and unequivocal in its terms. All Service Providers, who provided service enlisted in Appendix 10 of the FTP, and who have a total free foreign exchange earning of at least ₹10 Lakhs in the preceding financial year, qualified for the benefits of the SFIS. Significantly, the clause talks that all such service providers, shall qualify for the benefits of the SFIS Scheme. Etymologically, the expression “shall” denotes a mandate, and the Supreme Court has, in various decisions, held so - It is also well-settled that beneficial fiscal statute sought to be liberally construed, and provisions which confer tax benefits, conditional to obligations to be fulfilled by th....... + More

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• 2020 (1) TMI 554
  
  Release the goods seized by the Customs Department from the Railway Brake-Van at Hajipur - shoes of foreign origin - writ petition has been structured on the ground that no notice was sent to the petitioners or even if it was sent, it was not served upon them and therefore if there has not been any sequel action within six months of the seizure - HELD THAT:- What has been harped upon by the counsel for the Customs Department is that now the matter is before the adjudicating authority which had issued summons to the petitioners about which the petitioners are aware of - After the aforesaid points were noted, learned counsel for the petitioners deemed it prudent to seek liberty to move before the adjudicating authority for release of goods. In case the petitioners approach the Customs authorities and satisfy them that they are the rightful ....... + More

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• 2020 (1) TMI 510
  
  Smuggling - Gold - Foriegn Currency - retraction of statements - acquittal of accused - respondents failed to give satisfactory explanation for the possession of those 24 marked gold biscuits and Indian and Foreign currency and also failed to produce any documents regarding lawful possession of the same - HELD THAT:- In the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. One more point which comes to my mind is if the panch witnesses have not been produced, what is the evidence to satisfy that the said premises is where the respondents were found. I have to also note that an electricity bill in the name of Jayantilal Pandya has been seized from the said premises by prosecution. The said Jayantilal Pandya has not been summoned and no effort h....... + More

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• 2020 (1) TMI 508
  
  Smuggling - contraband item - acquittal of accused - confessional statement - statement under coercion - offences punishable under Section 135(1)(a) (i) of the Customs Act 1962, read with Section 67 of the Foreign Exchange Regulation Act, read with Section 11 of the Customs Act, read with Section 77 of the Customs Act 1962, read with Section 135(1)(b)(i), read with Section 5a of the Imports and Exports (Control) 1947 - HELD THAT:- The fact is that the accused were kept in the custody of the customs authorities when the statements were recorded. The accused were arrested only in the evening of 24-1-1987 and produced before the Magistrate on 25-1-1987. As noted earlier, the detention, in my view, was not legal. Therefore, it will be reasonable to assume that there was coercion or undue pressure exerted on the accused to make the confession........ + More

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• 2020 (1) TMI 504
  
  Jurisdiction - power to issue SCN - concealment of smuggled nature of goods - principles of natural justice - HELD THAT:- In the matter of MANGALI IMPEX VS. UNION OF INDIA reported in [2016 (5) TMI 225 - DELHI HIGH COURT], similar issue is being adjudicated and same is at large before the Hon’ble Apex Court wherein the issue relating to the insertion of sub-Section (11) of Section 28 is also under consideration. It is because of this precise reason, Customs, Excise and Service Tax Appellate Tribunal has taken a view that issue of jurisdiction would go to the root of the matter and as such, by setting aside the order passed by the Original Authority has remanded the matter back to the Adjudicating Authority with a direction to adjudicate the issue of jurisdiction at the first instance after receiving the judgment of the Hon’ble....... + More

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• 2020 (1) TMI 503
  
  Smuggling - foreign currency - retraction of statements relied upon - prosecution of accused person - Section 137(1) of the Customs Act - HELD THAT:- On perusal of deposition of PW 1 and PW 2, it has come on record that no incriminating material was found either on the person of the accused no.2 or from his baggage. The only material is sought to be relied upon is his statement recorded on 24th March 1996 which is subsequently retracted. The Appeal is premised on the ground that the learned Chief Metropolitan Magistrate has failed to accord any weightage to the said statement wherein the accused has confessed that he had met one Gurmit Singh and he acted as a carrier for smuggling the foreign currency and he also agreed to accompany the accused no.1 who was to act as a carrier to ensure the safe delivery of the foreign currency at Dubai. ....... + More

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• 2020 (1) TMI 441
  
  Jurisdiction - Advance Authorization - It is alleged that at the time of import, a copy of Advance Authorization was produced before the Customs Authority and had claimed benefit of Notification No.96/2009-CUS and No. 98/2009-CUS. - It is contended that such show-cause notice was replied and requested to cross-examine the owners of the trucks and cross-examination was carried out and during the course of such cross-examination, the transporters have accepted that the material was transported. Whether Custom Authority has no jurisdiction for issuing any notice or adjudicate as refund was given by the DGFT and advance authorization licence is still in existence? HELD THAT:- The DRI has issued the impugned notice proposing recovery of excise duty refunded by the department of DGFT by way of TED for the material supplied to 100% EOU (deemed e....... + More

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• 2020 (1) TMI 440
  
  Mis-declaration of value and description of goods - Base Oil - penalty u/s 112 of CA - finalization of provisional assessment - extension of time for adjudication of SCN - HELD THAT:- The DRI or the Custom Authorities, after the imported goods had been cleared from the custom area, had no authority to draw fresh samples on 28.01.2013 of such cleared imported goods from the factory premises in view of the provisions of Section 144 of the 1962 Act. In the absence of any extension of time after expiry of one year w.e.f. 28.03.2018 for adjudication on the Show Cause Notice dated 07.02.2014 (P-6), either under Section 28 Sub Section (9) or 9(A) of the 1962 Act, we hold that the impugned Show Cause Notice has lapsed. Petition allowed.

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