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- 2020 (3) TMI 1158
Refund of SAD - N/N. 102/2007-Cus dated 14.09.2007 - rejection on the ground of unjust enrichment - CBEC Circular No.6/2008-Cus dated 28.04.2008 and Circular No.18/2010-Cus dated 08.07.2010 - HELD THAT:- As per the Circular dated 28.04.2008, a certificate issued by the statutory auditor who certifies the annual accounts of the importer, that the burden of 4% SED has not been passed on by the importer to the buyer was sufficient for satisfying the principals of unjust-enrichment. Such requirement was fulfilled by the appellant and therefore the present ground are in violation of circular No.6/2008-Cus. It is repeatedly held by the Hon’ble Supreme Court and other Judicial Authorities that CBEC circulars are binding on the departmental offices, thus inspite of clear instructions revenue has preferred this appeal in violation of said instruction in circular dated 28.04.2008 and by doing so revenue has wasted time of this court. Application of Revenue dismissed.
- 2020 (3) TMI 1062
Revocation of CHA License - forfeiture of security deposit - denial of the procedural right of the licensee in enquiry proceedings - regulation 17(4) of the Customs Brokers Licensing Regulation, 2018 - HELD THAT:- The manner in which the enquiry report has discarded the request of cross-examination received from the notice is not in conformity with regulation 17 of Customs Brokers Licensing Regulations, 2018. It was incorrect on his part to have come to the conclusion that the statements recorded therein, which is perceptible as the foundation of the show-cause notice, did not merit being subjected to the test of cross-examination. Considering the nature of defence offered in reply to the show-cause notice, the inference of substitution should have been permitted for ascertainment in the enquiry proceedings. This breach of responsibility ....... + More
- 2020 (3) TMI 1011
Valuation - assessable value of imported goods - Aluminium scrap - rejection of declared value - HELD THAT:- Reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, NOIDA VERSUS M/S. SANJIVANI NON-FERROUS TRADING PVT. LTD. [2018 (12) TMI 738 - SUPREME COURT] where it was held that The Tribunal has clearly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, Order-in-Original was, therefore, clearly erroneous. Inasmuch as, the Appellate Authority has relied upon the Hon’ble Supreme Court’s decision in the case....... + More
- 2020 (3) TMI 1010
Smuggling - Pharmaceutical Bulk Drugs (PBD) - Miglitol - Mifepristone - Ethynal Estradiol - prohibited goods or not - demand based on various statements - retraction of statements - onus to prove - Circular No. 95/2003-Cus dated 06.11.2003 - Confiscation of sale proceeds of smuggled goods - penalty - principles of natural justice - HELD THAT:- The standard of proof in a case like this would obviously different from other cases. When Shri Bavishi himself has agreed about the smuggling activity in general and was corroborated by others and when they could not produce any evidence of legal procurement, it has to be construed that the department has discharged its burden and thus, we have no hesitation in concluding that the goods are smuggled in nature and accordingly the provisions of Section 11(d) and (l) of Customs Act, 1962 are attracted....... + More
- 2020 (3) TMI 1009
Maintainability of appeal - compliance of pre-deposit - section 129E of CA - Valuation - inclusion of royalty in the assessable value of imports - HELD THAT:- There can be no order for recovery of duties of Customs on past imports that were finally assessed without recourse to Section 28 of Customs Act, 1962. Should that eventuality occur, the ‘proper officer’ would, doubtlessly, issue an order quantifying the demand after following the procedure laid down in law. That could be a cause of grievance and any appeal therefrom, in compliance with Section 129E of Customs Act, 1962, could be entertained by the first, or subsequent, appellate authorities. The appellant is not aware of any action initiated on the prospective ruling on assessments of future imports, whether provisional or final. In Customs (Finalisation of Provisional ....... + More
- 2020 (3) TMI 926
Smuggling - Gold - discharge of onus under Section 123 of the Customs Act - HELD THAT:- The appellant, Mr. Dinesh Bansal, who was in possession of the 59 gold bars, from the very time of interception and seizure, in his statement recorded under Section 108, soon thereafter, he has stated that he has purchased the gold bars from M/s.Lawat Jewellers Pvt. Ltd., Jaipur on the same day. This fact has been corroborated by Shri Suresh Soni, Managing Director of M/s.Lawat Jewellers Pvt. Ltd., recorded on the very next day i.e. 11.09.2002 before S.I.O., DRI, wherein he affirmed having sold the 59 gold bars in question to the appellant, Shri Dinesh Bansal also produced the invoices. He also stated that the gold bars were delivered by their employee, Shri Parmeshwar in the premises of the bank itself (when M/s. Lawat Jewellers took delivery of 150 g....... + More
- 2020 (3) TMI 925
Misdeclaration of imported goods - Bitumen - Country of Origin - It was alleged that the appellants misdeclared country of origin; GSEC (appellant) & Gulf Petrochem were related parties; appellants misdeclared value, to evade payment of Customs Duty and that Shri Anand Mathur, Shri Nikharv Hashmukh Shah, Shri S K Gowri Shankar and Shri Sachin Saxena abetted with GSEC Ltd. to undervalue the said goods - conduct of search and drawing of Panchnama have not been followed - cross-examination of Panch witnesses were not allowed - principles of natural justice. Procedures to the conduct of search and drawing of Panchnama - HELD THAT:- The electronic evidence discussed relied upon in the show-cause notice were not obtained as per the procedure laid down under Section 65B of Indian Evidence Act, 1872 or Section 138C of Customs Act, 1962, as ri....... + More
- 2020 (3) TMI 924
Maintainability of appeal - non-compliance with the direction of pre-deposit - Section 129E of the Customs Act, 1962 - HELD THAT:- The Commissioner (Appeals) has not decided the appeal on merit but dismissed the appeal for non-compliance with the provisions of Section 129E of the Customs Act, 1962. Before this Tribunal, the appellant has deposited the directed amount vide order of this Tribunal dated 08.04.2014. Since the issue has not been considered on merit by the learned Commissioner (Appeals), the matter is remanded to the learned Commissioner (Appeals) to decide the case on merit. Appeal allowed by way of remand.
- 2020 (3) TMI 923
Condonation of delay in filing appeal - sufficient ground for delay or not - HELD THAT:- The order as has been challenged vide the impugned appeal is acknowledged to have been received by the party within 10 days of the day it was announced. The officer, who is mentioned to have been responsible for the impugned matter, no doubt, had left appellant’s job on 9th July, 2019, but applicant is silent about the date of joining of the person, who succeeded him. Otherwise also after the day the person left there still was sufficient time with the appellant to make necessary arrangements and to avoid the impugned delay. Thus, we are of the opinion that there is absence of due diligence on part of the applicant. The another ground taken about the death in a family is also opined to not to be the sufficient cause for explaining the impugned d....... + More
- 2020 (3) TMI 922
Entitlement for continuation of exemption from duties of customs - import of aircraft against undertaking to be compliant with the condition of operating ‘non-scheduled (passenger) service’ even though the equipment was deployed on charter hire - HELD THAT:- Though we concur with the Learned Authorised Representative that import of aircraft by corporate entities for their own use is not the intent of the exemption notification, we are not entirely convinced that peripheral circumstances such as the absence of published tariff, non-issue of tickets and carriage of employees of associated companies, can be construed as intention for own use. The respondent herein is a person recognised in law as distinct from the associated companies and we perceive no restriction in the notification on carriage of employees of importer, employe....... + More
- 2020 (3) TMI 857
Amendment in the shipping bill - Section 149 of the Customs Act, 1962 - rejection of request on the ground that as per the DGFT Public Notice such correction was only allowed for the period 01.06.2015 to 30.09.2015 Since, the present shipping bill were filed thereafter the correction cannot be made in the shipping bills - HELD THAT:- Only because DGFT Public Notice prescribe certain period that doesn’t mean after that period, amendment cannot be made. Section 149 clearly provides for amendment in the documents such as Shipping Bill Entry, Bill of etc, in the case where document is on record at the relevant time - In the present case, at the time of export which is established from shipping bill wherein the appellant have categorically claimed the benefit of MEIS, therefore, there are no reason why the amendment in the Shipping Bill ....... + More
- 2020 (3) TMI 856
Refrain from imposition of penalty - classification of imported goods - colour data projectors - whether classifiable under 8528 61 00 as projectors of a kind “solely or principally used in an ADP system of Heading 8471” or under 8528 69 00? - Benefit of the Notification dated 1 March, 2005 - extended period of limitation - Section 28(4) of the Customs Act. Whether the colour data projectors imported by Sony India are classifiable under 8528 61 00 as projectors of a kind “solely or principally used in an ADP system of Heading 8471” or under 8528 69 00? - HELD THAT:- The colour data projectors imported by Sony India are classifiable under Heading 8528 61 00 - reliance can be placed in the case of ACER INDIA (P) LTD. VERSUS CC [2009 (11) TMI 931 - CESTAT AHMEDABAD] and COMMR. OF CUS. & C. EX., HYDERABAD-II VERSUS....... + More
- 2020 (3) TMI 772
Valuation of export goods - Claim of benefit of Cum-duty from FOB value - export of Iron Ore Fines - validity of assessments of the shipping bills before the first appellate authority - HELD THAT:- When the goods are imported all costs up to the Indian Port include the transaction value of the goods (FOB) as well as the freight incurred and the transit risk in the form of transit insurance until the goods reach the Indian Port. In fact, even the landing cost i.e., costs involved in landing the goods etc. are also included in the assessable value in case of imports. Therefore, the value for the purpose of imports is CIF value plus cost of landing - The present case is of exports. In case of exports, the cost of freight and transit insurance are not part of the transaction value at the Port of export i.e. the Indian Port where the goods are....... + More
- 2020 (3) TMI 771
Mis-declaration of imported goods - Heavy Melting Steel Scrap - enhancement of value of imported goods - N/N. 21/2002-Cus - HELD THAT:- The appellant has nowhere disputed about the mis-declaration of description of goods and enhancement of value of the imported goods. All along the submission of the appellant is that there is no malafide intention in mis-declaring the description of the goods. We find force in the submission of the appellant that both the descriptions i.e. Heavy Melting Scrap or Shredded Scrap falls under the same tariff description as well as same Customs Tariff Heading. The rate of duty is same. Moreover, the differential duty on enhancement value is CVD which is available to the appellant as Cenvat credit. When this is undisputed fact, we find that there is no malafide intention on the part of the appellant. However, i....... + More
- 2020 (3) TMI 770
Absolute Confiscation - import of marble - restricted goods - DGFT Policy Circular No. 37 (RE-08) 2004-2009 dated 31/10/2008 - Section 48 of the Customs Act, 1962 - ground that the imported goods have already been disposed off during the pendency of appeal has no relevance to the payment of Redemption Fine - HELD THAT:- Once confiscation of the goods is held to be valid in any proceedings, the property in the goods is vested in the Government and the sale proceeds being the total consideration of such property, as a natural corollary such sale proceeds will represent the confiscated goods. Once the confiscated goods allowed to the redeemed on a redemption fine, the sale proceeds which represent the goods, will be paid to the importer only after deduction of such fine. Thus, the redemption fine is to be charged from the importer while rele....... + More
- 2020 (3) TMI 769
Change in classification of goods - monitors and T.V. tuners - principles of natural justice - HELD THAT:- The request made by the respondent herein for cross-examination of the concerned officials of the department who changed the classification of the goods were not being adhered to and no specific reasons have been assigned for denial of cross-examination of those persons. Further, it is also noted that the respondent herein have specifically stated before the original authority that it is in a position to establish the fact that the goods in question imported by it should appropriately be classifiable under CTH mentioned in the bill of entry. Thus, it is a classic case that the matter was adjudicated against the respondent by denying the principle of natural justice. The law is well settled that the matter cannot be adjudicated behind....... + More
- 2020 (3) TMI 768
Import of telecom cables - Benefit of N/N. 25/2005-Cus. dated 01.03.2005 - benefit under Sl.No.28 of the said notification has been denied by the department alleging that the cables are capable of carrying more than 80 Volts - HELD THAT:- The very same issue as to whether the appellant is eligible for exemption under Sl.No.28 and Sl.No.33 was considered by the Tribunal in the appellant’s own case M/S. VOLEX INTERCONNECT (INDIA) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2018 (9) TMI 1156 - CESTAT CHENNAI]. The Tribunal in the said case disallowed the claim of the appellant under Sl.No.28. However after placing reliance on the decision of the Hon’ble Supreme Court in the case of FORMICA INDIA DIVISION VERSUS COLLECTOR OF CENTRAL EXCISE [1995 (3) TMI 98 - SUPREME COURT] the claim of benefit exemption under S.No.33 of the....... + More
- 2020 (3) TMI 767
Mis-declaration of imported goods - Zinc Dross Scrub - goods were found in excess quantity, that is against the declared quantity 19.33 Metric tones, physically it was found as 22.32 Metric tones - Confiscation - redemption fine - penalty - HELD THAT:- There is no dispute on the facts on the present case that the imports of the appellant were found in excess, as per the quantity mentioned in import documents. There is nothing on record to establish that the appellant has mala fide to import excess quantity. However, there is no dispute that the excess quantity were imported therefore, the same is liable for confiscation but found without any mala fide intention. The duty attributed to the excess quantity goods is ₹ 1,24,350. As against the duty liability of excess found goods, the redemption fine and penalty was very exaggerated whi....... + More
- 2020 (3) TMI 766
Re-computation of the duty liability - Notification No. 65/88-Cus, dated 01.03.1988, which provides 40% effective rate of duty - Confiscation - redemption fine - penalty - HELD THAT:- On going through order of the adjudicating authority, the earlier adjudication order was set aside and the matter was remanded back only for re-computation of duty liability in terms of Notification No. 65/88-Cus, dated 01.03.1988. As the said order has reached its finality, therefore, the adjudicating authority has no option to go beyond the direction of this Tribunal while remanding the matter to the adjudicating authority. The order of the confiscation of goods and imposing redemption fine of ₹ 65,00,000/- is against the directions of the order of this Tribunal, dated 03.09.2007 - the redemption fine imposed on the appellant by way of impugned order is set aside - appeal disposed off.
- 2020 (3) TMI 765
Refund of SAD - N/N. 102/2007- Cus dt. 14.09.2007 - Time limitation - HELD THAT:- The date of communication of the finalization of the assessment of bills of entry are not in dispute and refund claims filed by the appellants are within time from the date of communication of final assessment of bills of entry. Hon’ble High Court in the case of PIONEER INDIA ELECTRONICS (P) LTD. VERSUS UNION OF INDIA & ANOTHER [2013 (9) TMI 705 - DELHI HIGH COURT] has held that the refund claim can be filed within the period of one year or six months, as the case may be, of the final assessment as stipulated by Explanation II to Section 27 of the Act or within the enlarged period of one year from the date provisional release as stipulated by Notification No. 93/2008-Cus dt. 01.08.2008, which means the appellants were at the liberty to file the ref....... + More
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