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• 2021 (1) TMI 663 - CESTAT NEW DELHI
  
  Exemption form IGST - aircrafts and parts thereof re-imported into India after repairs - serial no. 2 in the General Exemption Notification No. 45/2017 dated June 30, 2017, as amended by Corrigendum Notification dated July 22, 2017 - HELD THAT:- Though integrated tax is levied under section 5 of the Integrated Tax Act, but it is collected in accordance with the provisions of section 3 of the Tariff Act on the value as determined under the Tariff Act and at the point when duties of customs are levied under section 12 of the Customs Act. Thus, integrated tax is levied under section 5(1) of the Integrated Tax Act and only the procedure for collection has been provided under section 3 of the Tariff Act - It also needs to be noted that the term “integrated tax” has not been defined either under the Customs Act or the Customs Tariff....... + More

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• 2021 (1) TMI 623 - CESTAT CHENNAI
  
  Classification of imported goods - LCD panels and parts of LCD panels - Department contends that both these items would fall under CTH 8529 9090 whereas the appellant contends that LCD panels would fall under CTH 9013 8010 and parts of LCD panels would fall under CTH 9013 9010 - period of dispute is from January 2018 to February 2018 and February 2018 to February 2019 - HELD THAT:- The very same issue came up for consideration before the Tribunal in the case of M/S SAMSUNG INDIA ELECTRONICS PVT LTD, M/S MOSER BAER INDIA LTD VERSUS COMMISSIONER OF CUSTOMS, NOIDA [2015 (10) TMI 2258 - CESTAT NEW DELHI]. The competing classification with regard to Liquid Crystal Devices (LCDs) imported was CTH 9013 8010 as against CTH 8529 9090. The Department was of the view that the goods will fall under CTH 8529 by relying on Section Note 2(b) of Section ....... + More

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• 2021 (1) TMI 577 - CESTAT NEW DELHI
  
  Levy of IGST on re-import of aircrafts and parts thereof after repairs - Exemption from IGST - Availability of Integrated Goods and Service Tax exemption provided at serial no. 2 in the General Exemption Notification No. 45/2017 dated June 30, 2017, as amended by Corrigendum Notification dated July 22, 2017 - Validity of order that upholds the orders of assessment of Bills of Entry, as a result of which all the appeals have been dismissed by the Commissioner (Appeals) - HELD THAT:- There is no dispute that it is serial no. 2 of the Exemption Notification that is applicable to aircrafts/ parts re-imported into India after repairs. What would, therefore, be payable in terms of serial no. 2 would be the duty of customs on the fair cost of repairs carried out including cost of materials used in repairs, insurance and freight charges, both way....... + More

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• 2021 (1) TMI 523 - CESTAT NEW DELHI
  
  Absolute Confiscation - subject exotic birds and animals owned by the appellant - town seizure of the birds /animals - ‘prohibited’ and ‘smuggled’ or not - burden to prove the allegation of smuggling - HELD THAT:- It is a case of town seizure and not interception at the point of entry in India. Admittedly, the appellant have purchased the exotic birds/ animals in domestic area within India, which has been corroborated by the two suppliers based at Indore namely Golu and Monu who are also the co-noticees. Further, there is no evidence on record that the said Golu and Monu have smuggled the exotic birds/animals in India. Further, I find that the Revenue has failed to establish the allegation of smuggling with any cogent evidence, either by the appellant or the other two co-noticees. The burden of proof lies on Revenu....... + More

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• 2021 (1) TMI 454 - CESTAT CHANDIGARH
  
  Rejection of request of provisional release of imported goods - doubt in Country of origin - Section 110 (A) of the Customs Act, 1962 - HELD THAT:- Admittedly, the goods in question were cleared for home consumption, therefore, at the time of importation the assessment has been made after investigate the goods, in that circumstances, on mere presumption or on the basis of third party evidence, it creates doubts that the country of origin is not Kingdom of Saudi Arabia. Therefore, in that circumstances, the goods are required to be provisionally released under Section 110 (A) of the Customs Act, 1962 by putting reasonable condition for release of the goods in terms of precedent decision. Therefore, the matter is remanded back to the adjudicating authority to re-consider the request of provisional release of impugned goods in judicious manner as the goods are in perishable nature within seven days from the date of receipt of this order. Appeal allowed by way of remand.

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• 2021 (1) TMI 453 - CESTAT MUMBAI
  
  Absolute Confiscation - penalty u/s 112(a) of Customs Act - goods are LED chains or LED Modules? - rejection of BIS certification - primary ground for rejection of the BIS officials test report submitted by the importer appellant before the adjudication authority was that the sample forwarded by the dock officer to the concerned group was different from the photographs annexed to the test report - HELD THAT:- Photographs being secondary piece of evidence which appearances can vary with the angle of photography, it should not form the basis of his decision that the goods are ‘LED chains’’ and not ‘LED modules’ as opined by the BIS Authorities. In such an event also if discrepancy is noticed Circular No. 30/2017-Cus. dated 18.07.2017 at clause (f) of para 2 that permits redrawal of sample even for a second test....... + More

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• 2021 (1) TMI 223 - CESTAT ALLAHABAD
  
  Rectification of Mistake - typographical error or not - HELD THAT:- There is no dispute regarding the first prayer made in the application as it appears to be a typing mistake. ₹ 60 lakhs mentioned in the third line of paragraph 25 of the Final Order dated September 12, 2019 requires to be deleted and replaced by ₹ 60 thousand. Rectification of mistake - prayer made in the context of appropriation of ₹ 1,00,00,000/- deposited by the applicant during investigation - Section 35C(2) of the Act - HELD THAT:- In the present case, the mistake apparent from the record that has been pointed out is non-consideration of an important contention raised by the appellant in the Final Order regarding legality of the order to the extent it appropriated the deposit of ₹ 1,00,00,000/- made by the appellant during investigation - It ....... + More

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• 2021 (1) TMI 152 - CESTAT BANGALORE
  
  Exemption to goods imported by EOUs from payment of Customs Duty - benefit of N/N. 52/2003-Cus dated 31.3.2003 - full exemption to goods procured by EOUs from DTA units from payment of Central Excise Duty - benefit of N/N. 22/03-CE dated 31.03.2003 - import of raw materials like fuses, resistors, gold wire, etc. for manufacture of electronic goods such as hybrid micro circuits, resistors, etc - Violation of condition of notifications or not - further allegation is that the Appellant did not have permission for DTA Clearances - main contention of the appellant appears to be that finished goods were taxable and Central Excise Duty was to be demanded on finished goods and not the Customs duty foregone on inputs imported by them - Confiscation - redemption fine - penalty. Whether the appellants are liable to pay duty on the raw materials whic....... + More

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• 2021 (1) TMI 151 - CESTAT ALLAHABAD
  
  Refund/release of Sale proceeds along with interest - seized Betel Nuts, which were released, were sold during the pendency of the appeal - HELD THAT:- The Tribunal directed the Revenue to handover the sale proceeds of the goods along with interest to the appellant as per provisions of law. Learned Advocate has submitted that the sale proceeds have been handed over. He further brings to my notice that Deputy Commissioner, Lucknow has passed an order dated 05 March, 2020 to refund the sale proceeds but refusing to pay the interest. On being questioned, he fairly agrees that the said order of the Deputy Commissioner is an appealable order and he will file an appeal thereagainst. However, as regards the release of pre-deposit and trucks, he submits that appropriate directions be issued. Inasmuch as the Tribunal directed the Revenue to pay th....... + More

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• 2021 (1) TMI 118 - CESTAT MUMBAI
  
  Absolute Confiscation - penalty - Skimmed Milk Powder - imports under Duty Free Import Authorisation - prohibited goods or not - non-production of BIS Certificate at the time of assessment - HELD THAT:- It is not disputed that the department did not ask for redemption fine and rather went for complete confiscation of the goods under the guise of prohibited goods, which is not correct as per discussions already made. The Hon’ble Supreme Court in the matter of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [2019 (1) TMI 1324 - SUPREME COURT] has specifically laid down that there exist a fundamental distinction between what is prohibited and what is restricted. In the present case also the absence of BIS certificate can’t made the skimmed milk power as prohibited goods and since the ....... + More

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• 2020 (12) TMI 1092 - CESTAT NEW DELHI
  
  Valuation of imported goods - The Commissioner (Appeals) set aside the order of enhancement in value - polyester knitted fabric of different weights and colours - enhancement of assessable value, on the basis of contemporaneous imports data - HELD THAT:- In the present case, the proper officer doubted the truth or accuracy of the value declared by the importer for the reason that contemporaneous data had a significantly higher value. It was open to the importers to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared by them and seek a reasonable opportunity of being heard, but they did not do so. On the other hand, the importers submitted in writing that though they had declared the value of the imported goods at 1.20 USD per kg., but on being shown contemporaneous data, t....... + More

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• 2020 (12) TMI 964 - CESTAT KOLKATA
  
  Confiscation of goods - imposition of redemption fine and penalty - absence of valid PSI certificate - import of Tin Waste and Scrap (Light Melting Scrap) - misdeclaration of goods - appellant further submits that there was neither any knowledge nor reason to believe on the part of the appellant herein w.r.t. the alleged mis-declaration of the goods so imported - HELD THAT:- It is apparent that the goods declared as Tin Waste and Scrap (Light Melting Scrap) were on verification by the qualified Chartered Engineer certified as Tin Plated Steel Scrap since steel predominates by weight. The appellant had not asked for any re-test or alike at the relevant point of time. On the contrary under letter dated 24.01.2013 (page no. 23 of the appeal memorandum) the appellant/ importer had waived his right of show cause notice and/or hearing at the st....... + More

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• 2020 (12) TMI 963 - CESTAT KOLKATA
  
  Permission to re-export confiscated goods - redemption fine and penalty - import of Run Flat Tyres from Dubai, UAE - goods were found to be branded radial car tyres and seized - case of Revenue is that wrongdoing on the part of the foreign exporter cannot be treated as bona fide act on the part of the importer and onus lies upon the importer to prove that it is the bona fide act and no mala fide intention existed - HELD THAT:- The lower authority has concluded that though there was mis-declaration of brand and quality of goods imported, there was nothing on record to show that there was a malafide intention on the part of the importers. In fact, immediately after the fact of mis-declaration came to light, the importer conveyed the same to the foreign supplier who has instantly admitted mistake on their part and they were ready to take bac....... + More

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• 2020 (12) TMI 962 - CESTAT NEW DELHI
  
  Right of department to file any appeal or cross-objections before the Commissioner (Appeals) - Section 128 of the Customs Act - Deputy Commissioner had sanctioned the refund amount but a direction was given that this amount should be credited to the Consumer Welfare Fund in terms of section 27(2) - HELD THAT:- A perusal of section 128 of the Customs Act shows that any person aggrieved by any decision or order passed under the Act by an officer of customs lower in rank than a Principal Commissioner or Commissioner may appeal to the Commissioner (Appeals). This section does not provide for filing of cross-objections, unlike sub-section of (4) of section 129A of the Customs Act which, in regard to Appeals to the Appellate Tribunal, provides for filing a memorandum of cross-objections against any part of the order appealed against and also pr....... + More

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• 2020 (12) TMI 919 - CESTAT KOLKATA
  
  Levy of penalty under Section 112 of the Customs Act, 1962 - proceeding of adjudication without supplying the relied upon documents - Alleged recovery and seizure was initially made by the BSF and subsequently was handed over to the Customs authority - burden of proof in terms of Section 123 of the Customs Act, 1962 - HELD THAT:- The learned Commissioner (Appeals) should have verified the facts prior to dismissal of the appeal of the appellant. It is not in dispute that the Show Cause Notice dated 14.8.2018 was issued without appending any relied upon documents though it had placed reliance upon several documents such as BSF seizure, Customs inventory, statements of different persons, Assay report etc. The imposition of penalty upon the present appellant by the Adjudicating authority is based upon such documents - It is a settled position....... + More

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• 2020 (12) TMI 870 - CESTAT NEW DELHI
  
  Classification of imported goods - Executive IP Phone with 7” colour touch screen, 100 programmable keys, POE and 10/100/100 LAN and PC connections- FON 670i (VoIP Telephone) - whether classified under CTH 8517 18 10 (as claimed by the Appellant) or under CTH 8517 69 90 (as contended by the Department)? HELD THAT:- The appellant imported an Executive Level IP Phone of model FON 670i. It is, therefore, an IP Phone. The description of the goods under consideration will not fall in either of the two Sub-Headings 8517 11 or 8517 12. Being an IP telephone it would fall under Sub-Heading 8517 18 (third double dash) under which the description of the goods is ‘others’. It is a push button type telephone and, therefore, would fall under Tariff Item No. 8517 18 10. Rule 1 of the General Rules also provides that the titles of Sect....... + More

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• 2020 (12) TMI 866 - CESTAT MUMBAI
  
  Absolute Confiscation - penalty - import of Access Control Card Readers - non-availability of BIS certificate & labelling - HELD THAT:- Issue decided in the case of M/S. GLOBAL ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (NS-V) [2019 (4) TMI 1050 - CESTAT MUMBAI] where it was held that the imported goods viz “Access Control Card Reader” cannot be released for home consumption without requisite ‘No objection Certificate’ from MSAL, WPC and BIS. It is a fit case where re-export would have been ordered by the Commissioner (Appeals) on the basis of request already received in writing from the appellant by the respondent-department on 10th June, 2019 since, Section 128A(3) empowers the Commissioner (Appeals) to make “such further inquiry” as may be necessary and pass such order - Therefore, when a request....... + More

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• 2020 (12) TMI 805 - CESTAT KOLKATA
  
  Eligibility of SAD exemption - “Blanks” cleared from the “SEZ Unit” of the Appellant by way of stock transfers to its “DTA Unit” - benefit of Notification No.45/2005 as amended - time limitation - HELD THAT:- The Notification exempts all goods “cleared from a SEZ” and “brought to any other place in India”. The nature of clearance, whether by way of sale or otherwise, is not qualified in any manner in the body of the Notification. The proviso which embodies the condition/test governing the exemption gets attracted only if the goods which are the subject matter of clearance, when sold in the DTA, are exempted from the payment of Sales Tax/VAT - In the instant case, it is undisputed that the clearance of blanks to the “DTA” is not by way of sale and that the underlying g....... + More

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• 2020 (12) TMI 804 - CESTAT KOLKATA
  
  Principles of natural justice - gist of submissions by the learned counsel for the appellants are that the department did not consider their submissions in entirety - Valuation of imported goods - related party or not - time limitation - HELD THAT:- The original authority as well as the appellate authority have gone only on the basis that the buy and seller are related in terms of Rule 2(2) of CVR, 1988 and proceed to judge transactions in terms of 4(3)(a) and 4(3)(b) ibid. The original authority has given a finding that that the onus to prove that their relationship has not affected the pricing lies on the importer in terms of the rules cited above. This is not the correct proportion of law - In terms of Rule 3(a) of CVR, 1988, where the buyer and seller are related, the transaction value shall be accepted provided that the examination o....... + More

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• 2020 (12) TMI 711 - CESTAT NEW DELHI
  
  Evasion of Anti-Dumping Duty - import of melamine - rejection of assessable value declared by the Appellant and redetermination of the assessable value - whether the importers of melamine had resorted to evasion of anti-dumping duty by over valuation of the goods imported? - extended period of limitation - penalty - HELD THAT:- It is by a Notification dated February 19, 2010 that the Central Government imposed anti-dumping duty on melamine originating from China or any other country other than China at a rate that was equivalent to difference between the amount mentioned in Column No. 9 i.e US$ 1681.49 per MT and the landed value. It was also mentioned in the Notification that the landed value would mean the assessable value as determined under the Customs Act and would include all duties of customs except duties levied under sections 3, ....... + More

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