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• 2020 (9) TMI 952 - CESTAT MUMBAI
  
  Classification of imported goods - heavy melting scrap - benefit of concessional rate of duty - serial no. 368 in N/N. 50/2017-Cus dated 30th June 2017 - applicability of note no. 7 in Section XV of the First Schedule to Customs Tariff Act, 1975 - Difference of Opinion - matter placed before Hon’ble President for reference. HELD THAT:- In view of difference of opinion as to allowing of appeal, as held by Member (Technical), and remanding the matter for re-test, as held by Member (Judicial) in appeal no C/88315/2019, Registry is directed to place the records before Hon’ble President for reference, under section 129C (5) of Customs Act, 1962, to Third Member for answering the following points: i. In the light of concurrence of finding that the impugned goods are not ‘copper alloy’ in paragraph no.13, and the show cau....... + More

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• 2020 (9) TMI 951 - CESTAT MUMBAI
  
  Classification of imported goods - split air-conditioners - classified at sub-heading no. 841510 of First Schedule Customs Tariff Act, 1975 at serial no. 49 or not - benefit of N/N. 85/2004-Cus dated 31st August 2004 denied - HELD THAT:- From heading no. 8415 of First Schedule to the Customs Tariff Act, 1975, it is seen that air conditioning machines comprise of a motor driven fan and elements for controlling humidity and temperature. Generally, and more particularly in the retail segment, such machines are either of ‘window or self-contained’ or ‘split system’ types. There are several other equipment which are designed for larger spaces and for applications that go beyond residential or commercial. In the structuring of the sub-headings, emphasis is placed on the ‘split system’ and, by default, the &ls....... + More

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• 2020 (9) TMI 950 - CESTAT BANGALORE
  
  Conversion of shipping Bills - conversion of free shipping bills into drawback shipping bills - duty drawback - rejection on the ground of non-fulfillment of conditions of Notification No. 158/95 dated 14.11.1995 - HELD THAT:- The appellant initially exported Phycocyanin and a part quantity of the same was rejected for quality reasons which was re-imported by him without payment of duty in terms of Notification No. 158/95-Cus dated 14.11.1995 on executing Bond with Bank Guarantee. Also the appellant have re-exported the said goods after rectifying the defect and the identification of the re-exported goods is not disputed by the Department. Further, we find that the appellant also paid an amount of ₹ 13,81,543/- as demanded by the Department. Further, it is found that after payment of the duty along with interest, the appellant sough....... + More

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• 2020 (9) TMI 949 - CESTAT MUMBAI
  
  Legality of import of ‘wheat gluten amygluten 160’ - production of ‘duty-free import authorization (DFIA)’ licenses, permitting import of ‘flour’ for the manufacture of ‘biscuits’ - N/N. 40/2006-Cus dated 1st May 2006 or of notification no. 98/2009-Cus dated 11th September 2009 - period between November 2011 and September 2012 - HELD THAT:- With the removal of starch from dough made of ‘flour’, the resultant product is wheat gluten. Hard ‘wheat flour’ is hydrated to activate the gluten within it, processed for removal of the inherent starch by washing which, after dehydrating, is then powdered. Thus the composition of wheat, in a depleted form, in the flour does not appear, to us, to be an alteration of the essence of the product. With the threshold eligibility thus s....... + More

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• 2020 (9) TMI 902 - CESTAT MUMBAI
  
  Valuation of imported goods -steel nuts - misdeclaration of value - enhancement of value with the consolation of reducing the fine - primary contention of the appellant is that there has been no misdeclaration, that specific authority for adoption of London Metal Exchange (LME) prices is not on record and that the fine and penalty are not proportionate to the extent of alleged undervaluation - HELD THAT:- On perusal of note 1 in chapter 72 of the First Schedule to Customs Tariff Act, 1975, it is observed that several forms of ‘iron and steel’ have been described and while all of them are intended for determining the rate of duty in relation to goods enumerated in the said chapter, those of ‘steel’, ‘stainless steel’ and ‘other alloy steel’ in (d), (e) and (f) in the note are intended to appl....... + More

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• 2020 (9) TMI 856 - CESTAT AHMEDABAD
  
  Flexi Tank Containers - durable goods or not - Benefit of exemption N/N. 104/94-Cus dated 16/03/1994 - entire emphasis of the Revenue is that the subject Flexi Tank Containers are not repeatedly used - scope of SCN - Time Limitation. HELD THAT:- Tribunal in various cases has categorically held that merely because the container does not have repeated use, the nature of durability cannot be rejected. The only criterion to be seen is that whether the container in itself is durable in nature. As per the nature of container and use thereof, it is clear that the container imported by the assessee is durable. Moreover, even taking reference from the above judgments, we find that on comparison basis also, all the packing containers which were subject matter in the above cases, the Flexi Tank Container is much durable. Therefore, applying the rati....... + More

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• 2020 (9) TMI 855 - CESTAT KOLKATA
  
  Levy of penalty under Sections 112(a), 112(b) and 114AA of the Customs Act, 1962 - Valuation of Export goods - High Seas Sale - rejection of declared value based on contemporaneous imports - the case of the Appellant is that they had been denied an opportunity of personal hearing by the Adjudicating Authority - principles of natural justice - HELD THAT:- Since the statement of Mr. Kuntal Mitra (CHA) has contributed substantially to the case made out by the Department against the Appellant, the Department ought to have granted an opportunity of cross-examination to the Appellant. The process of cross-examination is not a mere empty formality but a part of an assessee’s right to put forth a proper defence. The reasoning given by the Department for denying the cross-examination to the appellant, that they failed to appear on the appoin....... + More

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• 2020 (9) TMI 854 - CESTAT MUMBAI
  
  DFIA Scheme - Actual user condition - Benefit of exemption in notification no. 40/2006-Cus dated 1st May 2006 - - the impugned order finds that ‘float glass’ was not amenable to use in the manufacture of ‘finished leather from hide of cow/buffalo’, that the intent of the policy had been violated as the flexibility of importing alternative inputs, allowed in circular dated 24th March 2009, did not extend to goods that were not capable of being used in the industry, and that clarification dated 14th February 2002 on use of ‘float glass’ as ‘glazing glass’ stood withdrawn by the advisory of 15th January 2013. HELD THAT:- It is clear from the narration in the impugned order that the item permissible for import in the norms relating to ‘finished leather from hide of cow/buffalo’, as w....... + More

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• 2020 (9) TMI 853 - CESTAT MUMBAI
  
  Levy of penalty - Valuation of imported goods - Laminated Sheets and Plywoods - rejection of declared value - Rule 12 of Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 - HELD THAT:- The order of confiscation of goods and imposition of redemption fine is not under challenge. We also find that importer M/s Shri Saibaba Impex is not in appeal before us. As per the scheme of Section 111 and Section 112 of the Customs Act, 1962, penalties under Section 112 of the Customs Act, 1962 flow as natural consequence of goods being liable for confiscation under Section 111 of Customs Act, 1962. Apparently penalties under Section 112 are imposable both on the person who has imported the goods held liable for confiscation and on all those who had aided and abetted in the act of illegal importation. From the order of the Commissi....... + More

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• 2020 (9) TMI 714 - CESTAT NEW DELHI
  
  Valuation of imported goods - Batteries - rejection of declared value - suppression and misdeclaration of import price of goods - HELD THAT:- So far as the batteries imported from M/s Power ROC Company Ltd. vide three bills of entries dated 24.1.2007 is concerned, the bill of entries were assessed provisionally and were pending finalisation. Accordingly, the impugned order is bad under Section 28 of the Customs Act, as the provisional assessment is still not finalised. Accordingly, the demand in respect of three bills of entry nos. 101168, 101169 and 101167 is set aside. In the present case, the appellant has imported VRLA batteries 6-V/4.5 GLA/4.2 AH/4.5 A.H. We also find that the show cause notice was issued by relying upon the data from seized hard disc and pen drive. However, the appellant was informed later on that the said pen drive....... + More

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• 2020 (9) TMI 661 - CESTAT NEW DELHI
  
  Valuation of imported goods - old and used Digital Multifunctional Devices - rejection of transaction value - enhancement of the value of the imported goods on the basis of Chartered Engineer’s Certificate - non-submission of specific licence for importation from the DGFT - CBEC Circular No.4/2008-Cus dated 12.02.2008 - HELD THAT:- The ld. Commissioner (Appeals) has relied upon the CBEC Circular No.4/2008-Cus dated 12.02.2008, which deals with valuation of second hand machinery/capital goods and has upheld the enhancement of the declared value based on the valuation done by the Chartered Engineer at the instance of the Department. In the same circular in Clause 2(iii), it has been provided that however the transaction value of Rule (3) cannot be rejected by ab initio application of Rule 9, in as much as, one cannot, before rejecting....... + More

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• 2020 (9) TMI 660 - CESTAT MUMBAI
  
  100% EOU - benefit of exemption Notification No. 53/97- Cus dated 3.6.1997 - benefit denied observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by availing the concessional benefit under EPCG Scheme - whether the respondents are to be denied the benefit of exemption Notification No. 53/97-Cus dated 3.6.1997, allowed at the time of import two DG Sets in 1997, on clearance of said two DG Sets on being obsolete in DTA to EPCG License holders at concessional rate of duty? HELD THAT:- The adjudicating authority simply denied the benefit of Notification No. 53/07-Cus dated 3.6.1997 observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by av....... + More

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• 2020 (9) TMI 659 - CESTAT MUMBAI
  
  Provisional release of the seized goods - IGST refund - duty drawback - it was opined that the goods were grossly overvalued to claim undue benefits of enhanced IGST refund and Drawback - Section 113(i) and 113(ia) of the Customs Act, 1962 - HELD THAT:- From the facts available it appears that while determining the quantum of bank guarantee, departmental authorities have taken into account the amount of IGST paid and would be admissible as refund on exportation of the impugned goods. The prima facie case of the department is that appellant have overvalued the goods to claim higher export benefits. If the goods have been overvalued then the appellants would have paid the higher IGST at the time of the clearance of goods for export. We do not find any merits in inclusion of the IGST amount paid while determining the quantum of bank guarante....... + More

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• 2020 (9) TMI 658 - CESTAT MUMBAI
  
  Penalty - Anti Dumping Duty (ADD) deposited with interest before issuance of SCN - validity of SCN - quantum of penalty - HELD THAT:- The appellant had deposited the entire amount of Anti Dumping Duty along with interest before issuance of the show cause notice. Since the department has accepted such facts, that as per the provisions of sub-section(5) of Section 28 ibid, the appellant was required to be issued with the show cause notice only for deposit of the penalty amount of 15% of the short levy duty. However, instead of issuing the show cause notice for recovery of the 15% amount of penalty, the department had proceeded against the appellant for confirmation of the 100% penalty in respect of the short paid amount of duty - Since, there is no ambiguity in interpretation of the provisions of sub-section (5) of Section 28 ibid, with reg....... + More

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• 2020 (9) TMI 606 - CESTAT NEW DELHI
  
  Validity of SCN - Penalty under Section 114 of the Customs Act - abetting in Smuggling - export of red sanders - prohibited goods - case against appellant is that he procured red sanders and also stores the same in his godown at Delhi - demand based on statements of persons, which were later retracted - HELD THAT:- Learned Authorised Representative points out from para 34.3 of the show cause notice, it is mentioned that this appellant knowingly engaged in negotiation and illegal supply of red sanders for fraudulent exports and actively associated himself in smuggling of red sanders to Shri Lin of China with the help of other members of the syndicate. Thus for the said act of omissions and commissions, is liable to penalty under Section 114 of the Customs Act, 1962. However, in para 35 of the show cause notice wherein the party put to noti....... + More

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• 2020 (9) TMI 605 - CESTAT NEW DELHI
  
  Imposition of penalty u/s 114(iii) and Section 114AA of the Customs Act - allegation of abetting the fraudulent export of goods - availment of undue export incentives drawback/ DEPB/ focus products scheme, etc. - export of various goods by inflating value - HELD THAT:- The appellant as an employee carried out the instructions and directions of his employer. Further, the appellant had not filed any documents before the Customs Department. Thus, the allegation of attempt to export goods improperly is not established. Accordingly, we set aside the penalty imposed under Section 114(iii) of the Act. Penalty under Section 114AA of Customs Act - HELD THAT:- The allegation of aiding and abetting is not proved. However, it is found that the appellant have knowingly made documents like invoices and packing list for export and had further knowledge ....... + More

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• 2020 (9) TMI 604 - CESTAT BANGALORE
  
  Levy of personal penalty for abetment - Quantum of Penalty - Section 114 of the Customs Act - Smuggling - illegal export - red sanders wood logs - HELD THAT:- The appellant Sachin Kumar was a transport agent who arranged the truck for the exporter and appellant No. (2) Venugopal acted as a CHA for clearance of the goods at the NMPT, Mangalore and appellant No. (3) Ravichandra arranged the CHA and the container. Further, the goods were stuffed at the KSDL factory, Bangalore in the presence of Mr. Hashim, Director of the exporter company and Superintendent of Central Excise and thereafter it was sent to Mangalore and from Mangalore it was exported. During the investigation DRI recorded the statement of Mr. Hashim, Director of exporter company and also the appellants. In the statement of Mr. Hashim, he has clearly stated that he was responsi....... + More

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• 2020 (9) TMI 561 - CESTAT MUMBAI
  
  Refund of Customs Duty - Liquefied Petroleum Gases for supply to household domestic consumers - Effect of Notification, prospective or retrospective? - N/N. 37/05-Cus dated 2.5.2005 was issued exempting Liquefied Petroleum Gases for supply to household domestic consumers at subsidized prices from whole of customs duty - period September, 2004 to April, 2005. HELD THAT:- The undisputed facts are that the appellants had imported commercial butane (Liquefied Petroleum Gases) classifying it under Chapter heading 2711.1300 of Customs Tariff Act, 1975 on payment of applicable Basic Customs Duty (BCD) of 10%. Two amended notifications of the basic notification No. 21/02-Cus dated 1.3.2002 were in force during the period namely, Notification No. 82/04-Cus dated 18.8.2004 and 11/05- Cus dated 1.3.2005. Under Notification No. 82/04-Cus dated 18.8.2....... + More

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• 2020 (9) TMI 560 - CESTAT MUMBAI
  
  Served Form India Scheme (SFIS) - Exemption of Customs duty under N/N. 92/2004-Cus. dated 10.09.2004 - Import of two golf carts with accessories - restricted goods or not - HELD THAT:- The department did not file any appeal against the order dated 26.12.2008 passed by the Commissioner (Appeals) in the first round of litigation. Since the department had not challenged the said order, the original authority as well as the appellate authority cannot go beyond the direction issued by the Commissioner (Appeals). In the present case, DGFT has clarified by issuing various clarifications to the effect that golf carts do not come under the restricted category of vehicles, which is stated in para 3.6.4.5 of the Foreign Trade Policy - Further, the licensing authority, i.e. DGFT, has not taken any action against the appellant for wrongly availing the....... + More

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• 2020 (9) TMI 527 - CESTAT NEW DELHI
  
  Valuation of imported goods - various kind of polyester knitted fabric of different weight and colour - rejection of declared value - enhancement of declared value - Commissioner (Appeals) allowed the appeal accepting the declared value - period 8 June, 2018 to 9 February, 2019 - HELD THAT:- The assessing officer have been making enhancement in a routine manner and the respondent who are regular importers are left with no choice but to sign on the dotted line for taking delivery of their goods to carry on their business, and also save the demurrage charges if the consignment is delayed in the port for want of clearance. Appeal dismissed - decided against Revenue.

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