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Customs - High Court - Case Laws
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2011 (3) TMI 1381
Smuggling - Order of detention passed under Section 3(1)(i) of the Conservation of Foreign Energy and Prevention of Smuggling Activities, 1974 (COFEPOSA Act) - samples were drawn from the consignments found at M/s. Viking Warehousing Container Freight Station, there is nothing on record to show that the samples were tested in any laboratory and there are communications to the effect that the customs authorities simply relied on the alleged certificate of analysis produced by the Export Manager - there was no other past activity on the part of the detenu to come to a reasonable conclusion that he was regularly indulging in smuggling activities - order of detention passed by the first respondent stands vitiated on the ground of non-application of mind since the subjective satisfaction of the detaining authority regarding the description of the contraband is based on inconclusive test report and on reports obtained from laboratories, which are not notified and also on the ground that the valuation was not made as per Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, Habeas Corpus Petition is allowed and the impugned detention order of the first respondent in Detention Order set aside
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2011 (3) TMI 1367
CHA - stay application- undue drawback claim - it was noticed that two companies had filed forty two shipping bills for the export, companies made export with very less quantity of utensils, but falsely declared the weight to nearly 5 to 8 times more than the actual weight exported, only with the fraudulent intention of claiming undue Duty Drawback - Managing Director of the petitioner has given a statement before the investigating officers of the customs that his employee by name S.P. Boopalan connived with the said two exporters and committed violation of the Customs Act, with the sole intention to claim undue Duty Drawback - main thrust of the arguments of the learned counsel for the petitioner is that in view of the action of the Tribunal in not passing any orders in the stay application, the petitioner is prejudiced as there is no effective remedy to protect his interest. Therefore, he moved this court under Article 226 of the Constitution - when there as an effective, efficacious alternative remedy available and having chosen that remedy, it is not proper for any party to come before this court under Article 226 of the Constitution of India, unless it is shown to this court that there is a violation of any fundamental right or the principles of natural justice, writ petition is disposed of with a direction to the 3rd respondent to take up the stay application filed by the petitioner pending before them and dispose of the same in accordance with law
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2011 (3) TMI 1339
Demand - Provisional assessment - The case of the petitioner that, till October, 2010, the duty was being assessed, on the basis of the 'declared value' which substantially got changed, thereafter - Held that:- Taking note of the fact that the final assessment order had already been passed in W.A No.2048//2010 and connected cases, it was observed by the Division Bench that the concerned assessee had to pursue the statutory remedy, if he was aggrieved by the final assessment - respondents are directed to finalise the proceedings and pass final assessment orders, in respect of the pending bills of entries, after considering the entire materials on record forthwith - Decided in favor of the assessee by way of remand.
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2011 (3) TMI 1338
Provisional assessment - Held that:- What is clear from Section 18(1) read with the above Regulations is that the Officer could make provisional assessment and release goods under Section 18 of the Act pending final adjudication only after ensuring that the actual duty that could be levied later will be recoverable from the party - Regulation 2 makes it clear that besides remittance of the admitted duty in terms of the claim of the importer / exporter the officer can demand payment of duty up to 20% of the duty provisionally determined by him which is over and above the admitted duty payable in accordance with the claim of the party and assessed by the Officer - credentials of the importer / exporter and such other matters should weigh with the Department in relaxing the condition for security, which in the normal course should be Bank Guarantee.
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2011 (3) TMI 1336
Provisional assessment - writ of mandamus directing the respondents to clear the consignment of 'betel nuts' imported by the petitioner as per Ext.P2 and Ext.P3 Bills of Entry, on the basis of Ext.P6 judgment passed by the CESTAT - petitioner submits that the petitioner has already obtained all the relevant documents to substantiate the case - The prayer of the petitioner is to direct the concerned respondent to finalise the assessment within a time frame - Held that:- Respondents are directed to have the assessment within 'seven days' and a speaking order as contemplated under the relevant provisions of the Customs (Provisional Duty Assessment) Regulation, 1963 shall be passed within 'two weeks' thereafter; also considering Ext.P7, if the same is applicable to the case in hand.
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2011 (3) TMI 1315
Penalty u/s 28 - Time limitation - notice imposing penalty is issued immediately after 5-6 years - short landing of the cargo since there is a Form/Declaration field by the petitioner himself - Held that:- As there is loss of revenue to the state in not initiating action at the inception - The petitioner has undertaken under clause (7) of the Agreement that for any contravention of the provision of the Customs Act, petitioner is responsible - Petitioner is directed to deposit the balance amount after the reduction of Rs. 5 lakh from the total amount.
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2011 (3) TMI 1310
Difference in duty between the show cause notice and the admitted amount - Demand raised - Held that:- As the first respondent has failed to consider the report of the Commissioner (Investigation) and pass appropriate orders and simply shirked its duty by throwing the blame on the petitioner as if the petitioner had been making disclosures many a time each at variance with the other. As pointed out earlier there has been only one disclosure at the time of admission. The clarifications given by the petitioner is only at the time of investigation by the Commissioner (Investigation) who was duly authorised by the first respondent in terms of Section 127C(6). Such clarification or statement cannot be equated to disclosure. Therefore, it is for the first respondent to accept the disclosure originally made on the basis of the investigation report and come to the conclusion as to what will be the appropriate amount that should be demanded by way of duty and what will be the penalty and interest which should be levied for the purpose of settlement. In this case, this court finds that the Settlement Commission has grossly mislead by itself by failing to consider the investigation report which it had called for and thereby fell into error by accepting the untenable plea of the Revenue that there are inconsistencies in the disclosures. Such finding is based on no evidence and contrary to the records. Merely because there is a huge difference in duty between the show cause notice and the admitted amount, the case of the petitioner cannot be thrown out.
As the first respondent failed to consider the vital and relevant documents viz., the investigation report which had been called for by the Settlement Commission before deciding the issue finally. The non-application of the mind of the first respondent on this vital relevant document clearly goes to the root of the matter. The order impugned suffers from error apparent on the face of the records - matter remitted back to the first respondent for reconsideration.
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2011 (3) TMI 1291
Confiscation of 5 gold biscuits with foreign markings totally weighing 582.8 grams - Refund claim on sale of gold - Held that:- Since, the Assistant Commissioner of Customs, sold out the 5 gold biscuits overlooking the order passed by the Commissioner of Appeal, dated 28-8-1997, allowing the petitioner to redeem the gold on payment of fine and penalty the action of the Assistant Commissioner in selling the gold biscuits is contrary to the earlier order passed by the Commissioner of Appeal dated 28-8-1997 - assessee is entitle to get refund - Decided in favor of the assessee.
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2011 (3) TMI 1286
Special Additional duty of Customs - Deciding the date of filing of Bill of Entry - Held that:- The corrections made in the Bill of Entry like number of packages etc., would rate back to 1-6-98, and consequentially, the Bill of Entry correction in all particulars, would be deemed to have been filed on 1-6-98 itself. Having regard to the said aspect, the question of levy of Special Additional Customs, which came into force on the midnight of 1-6-98 did not arise. See ACC for Appraisement, Group-II v. Associated Forest Products Pvt. Ltd. [1999 (11) TMI 72 - SUPREME COURT OF INDIA] wherein held that any amendment to Bill of Entry subsequent to the date of original filing thereof would relate back to the original filing date. When the Bill of Entry was numbered in accordance with the departmental procedure and in the case on hand, on the date of filing of Bill of Entry i.e. on 1-6-98 itself, the Bill of entry was represented with corrections carried out, the Tribunal rightly came to the Conclusion that exigibility on the Special Additional duty of Customs did not arise.
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2011 (3) TMI 1285
Search and seizure - Cash found source from the smuggled goods - the allegation of the prosecution is that the currencies which were seized from the possession of A3 and A4 are the sale proceeds of smuggled gold bars which were brought through fraudulent evasion and mis-declaration of value and also by evasion of duty chargeable thereon - Revision petion - Held that:- As the learned Magistrate has already come to the conclusion that the perusal of evidence adduced by the prosecution would show that the prosecution has succeeded in establishing a prima facie case as alleged by the prosecution in the complaint and by adopting the very correct and legal tests, the learned Magistrate has concluded that there is no doubt, that if the accused are not able to rebut the above case made out from the preliminary evidence, it would warrant their conviction for the offences under Sections 132 and 135 of the Customs Act. Of course, the contention raised by the counsel for accused Nos. 5 to 7 that no offence under Section 135 of the Customs Act is attracted is a contention to be considered at the time of appreciation of evidence and it is for the trial Magistrate to come to a conclusion, on the basis of such contention, after appreciating the evidence.
Thus the learned Magistrate is perfectly legal, correct and proper in rejecting the prayer of the revision petitioners for a discharge under Section 245 of Cr.P.C. and as such, no merit in the Crl.R.Ps. and accordingly, the same are dismissed.
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2011 (3) TMI 1271
Confiscation - Misdeclaration - it was submitted that Supplementary Vegetable Tanning Agents, are allowed to be imported on actual user condition and that the petitioner not being an actual user, is even otherwise not entitled to import the said goods under the DFIA Schenne - Held that:- A perusal of the Bill of Entry annexed along with the affidavit-in-reply indicates that the petitioner has described the subject goods as Beetle Nut Industrial Grade and has also indicated the Tariff Heading under which the same are classifiable - all that the petitioner has done is that it has made a claim that it is entitled to exemption of duty in respect of the goods imported by it under the DFIA Scheme on the ground that Areca Nut would stand covered under Item No. 12(c)(i) of the group G-7 of the SION - prima facie, the provisions of Section 111 of the Act would not be attracted in the facts and circumstances of the present case. Consequently, it cannot be said that there is any material on the basis of which the proper officer could form the requisite belief that the subject goods are liable to seizure under Section 110 of the Act - Decided in favor of the assessee by way of direction to deposit 50% in cash and balance by way of bank guarantee
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2011 (3) TMI 1233
Refund - assessee imported Hooks, Loops and Adhesive Tapes from Taiwan - confiscation of the above goods giving option to redeem the goods on payment of re-demption fine - Held that:- CEGAT disposed of the application vide order dated 2nd June, 1994, inter alia observing that their earlier order dated 13th March, 1992 had been complied with and, therefore, no further directions were required to be issued as the claim of the petitioner was rejected on the ground of unjust enrichment - The petitioner could not produce relevant documents to show that they had not passed the incidence of duty to the customers/consumer. The order dated 2nd June, 1994 passed by the Assistant Collector of Customs, records that repeated opportunities were granted to the petitioner to furnish proof to the effect that the burden/element of duty was not been passed to the customers/consumers, but no documents were produced to substantiate the case. On several dates the petitioner had not appeared inspite of opportunity granted. As noted above, the petitioner wanted to donate the amount to a Charitable/Welfare Trust. Accordingly, the claim of refund of Rs. 1,54,230 and Rs. 42,783 was rejected - Decided against the assessee
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2011 (3) TMI 845
Discretionary power - find that though power under Sections 111 and 112 of confiscation and penalty are available, under Section 125 of the Customs Act, Authority also enjoys discretionary power to impose fine in lieu of confiscation. Tribunal in exercise of such discretionary powers ordered reduction in fine and also reduced penalty - Such being exercise of discretionary power, no question of law arising - Appeal is therefore, dismissed.
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2011 (3) TMI 816
Penalty - Mere suspension of license, in the facts of the present case, would be wholly unjustified. Ordinarily, matters of discipline lie in the realm of the competent authority i.e., the Commissioner of Customs who is best placed to understand the importance of the CHA in a customs area, and the trust and confidence reposed on him by the customs department. - he punishment imposed on the respondent, by the Commissioner of Customs, of revocation of their license, when viewed in the light of the grave and serious acts of misconduct held established, is justified. The punishment imposed is not one which can be said to shock the conscience of courts/Tribunals. The order passed by the CESTAT on mere surmises and conjectures and their interference, with the punishment imposed by the Commissioner, on grounds of misplaced sympathy is in excess of their jurisdiction, and gives rise to a substantial question of law necessitating interference by this Court under Section 130 of the Customs Act. The order of CESTAT is, therefore, set aside, and the order of the Commissioner, revoking the license of the respondent CHA, is affirmed. The appeal is, accordingly, allowed. However, in the circumstances, without costs.
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2011 (3) TMI 815
Speaking order - Section 17(5) was introduced with effect from 13-7-2006, the date on which Act 29 of 2006 came into force - The decision relied on by the learned standing counsel appearing for the respondents was delivered on 31-3-2006, prior to the introduction of Section 17(5) of the Act - In view of the amendment brought about by Act 29 of 2006 the decision relied on by the learned standing counsel can have no application - In such circumstances as the dispute is regarding the value of the goods and the importer has not accepted in writing the assessment of the 3rd respondent - Therefore,the 3rd respondent was bound to pass a speaking order within 15 days from the date of assessment of the bill of entry, namely within 15 days from 10-5-2010 - In the instant case, the said period of 15 days has expired -Held that:- it will be open to the petitioner to challenge the assessment made by the 3rd respondent by filing an appeal within the period of 60 days computed from the date on which a speaking order is passed under Section 17(5) of the Act.
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2011 (3) TMI 802
Penalty under section 128 - illegal import of gold jewellery - under Section 111(d) and 111(m) of the Customs Act, 1962, read with 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 -Respondents had submitted that the provisions under Notification No. 31/2003-Customs, dated 1-3-2003, would be available only if the goods in question belong to the petitioner - Therefore, the gold jewellery would not be available for re-export, as the petitioner is not the owner of the goods - Further, they were only carriers of the goods, in favour of an unknown dealer - It had also been submitted that an enhanced penalty had been paid by nearly 13 out of the 15 persons, who were liable to pay the same - It had also been submitted that an efficacious alternative appellate remedy is available to the petitioner, under the 128 of the Customs Act, 1962. However, it had been admitted that the owner of the goods is not known - finds it appropriate to set aside the impugned order of the third respondent, dated 24-12-2010, in so far as it relates to the deposit of Rs. 3,00,000/-, being the enhanced penalty imposed on one Rahamathullah, for the release of the gold chains and to direct the second and the third respondents to release the goods in question for the purpose of re-exporting the same, without imposing any conditions, as per the provisions of the Customs Act, 1962. The respondents have not been in a position to show as to how the petitioners would be liable to pay the enhanced penalty imposed on Rahamathullah. Further, there is no finding that the goods in question belongs to Rahamathullah. It is also noted that the order of the Commissioner of Customs (Appeals), Chennai, dated 5-2-2010, had become final. In such circumstances, the petitioner need not be compelled to avail the appellate remedy, available under the provisions of the Customs Act, 1962.
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2011 (3) TMI 801
Doctrine of proportionality - Respondent No. 3-the CEGAT has upheld the order of respondent No. 2, revoking the licence of the petitioner as CHA on the ground of petitioner having committed breach of statutory regulations and the misconduct by misusing its licence - In the opinion of this Court, once the decision of the respondent Authorities that the petitioner committed violation of statutory regulations and the misconduct is found to be within the legal parameters, all the legal consequences as a result of such violation and the breach have to follow - The case of the petitioner being the case of contravention of said regulations and misuse of licence as CHA, the respondent Authorities have rightly revoked the licence of the petitioner - The said decision having been arrived at by the respondents, after taking into consideration all relevant material and the said Regulations, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational - Therefore,it could not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality - The petitioner having failed to point out any perversity or unreasonableness on the part of respondent Authorities warranting judicial intervention, this Court does not find any merits in the present petition.
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2011 (3) TMI 790
Power of settlement commission to impose penalty - Clandestine removal - MPTEL is an 100% EOU engaged in the manufacture of ACSR conductors etc.- The duty free raw materials were used for manufacture of conductors, which were cleared to Domestic Tariff Area (DTA in short) - settlement commission imposed penalties imposed on the company and the persons responsible for the affairs of the company - Held that:- That power is available with the Settlement Commission in terms of Section 32F(9) of the Central Excise Act, 1944. In terms of Section 32K of the Central Excise Act, 1944, power to grant immunity from prosecution and penalty is available to the Settlement Commission. Section 32M of the Central Excise Act, 1944 makes the order of settlement conclusive. Petitioners are not able to establish a case to show that the order under challenge is contrary to law or is in any way perverse, arbitrary or without jurisdiction. The Court under Article 226 of the Constitution is not inclined to go into the issue relating to the quantum of penalty imposed by the Settlement Commission and the rational behind imposition of such penalty. The power given to the Settlement Commission, unless exercised in violation of the provision of the Act, cannot be challenged and the petitioners’ plea on the above issue fails.
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2011 (3) TMI 761
Non-resident - Respondents had submitted that the provisions under Notification No. 31/2003-Customs, dated 1-3-2003, would be available only if the goods in question belong to the petitioner - Therefore, the gold jewellery would not be available for re-export, as the petitioner is not the owner of the goods - Further, they were only carriers of the goods, in favour of an unknown dealer - It had also been submitted that an enhanced penalty had been paid by nearly 13 out of the 15 persons, who were liable to pay the same - It had also been submitted that an efficacious alternative appellate remedy is available to the petitioner, under the 128 of the Customs Act, 1962 - However, it had been admitted that the owner of the goods is not known.
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2011 (3) TMI 760
Whether ‘Dettol’ is a ‘Disinfectant’ and hence exempted from Sec. 18 of the Act as contended by the accused - Hence, going by the definition of the word ‘Disinfectant’ and the use for which Dettol is manufactured I hold that Dettol is a ‘Disinfectant’ used to treat inanimate objects and materials though it may also be applied to agents used to treat the skin and other body membranes and cavities (externally) - Dettol contains some chemicals which are antiseptic but does not loose its character as a Disinfectant for the said reason or that it can be used to treat skin and other body membranes and cavities - ‘Dettol’ thus comes under item 12 of Schedule K of the Rules and hence is exempted from Chapter IV of the Act by virtue of Rule 123 of the Rules. - Hence for stocking, exhibiting and sale of ‘Dettol’ a license under the Act is not required - Prosecution against petitioners/accused have to fail - Decided in favour of assessee.
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