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- 2019 (9) TMI 716
Refund in cash - unjust enrichment - refund claim amounts in cash which have been ordered to be credited to the Consumer Welfare Fund on the ground that the appellants were not able to discharge the burden of unjust enrichment - HELD THAT:- The comparative analysis of prices, in a situation of change in the tax rates, is absolutely important to decide whether the additional tax burden in situation of increase in tax rates is being shifted to the buyer or not. This also has to be the important parameter to determine whether in a given situation whether there is a presence of unjust enrichment or not. We find that in the case at hand, the prices (both dealer price and RSP) indicate that the burden of enhanced rate of CVD has not been shifted to the buyers and, therefore, there cannot be any element of unjust enrichment. Hon’ble Suprem....... + More
- 2019 (9) TMI 715
Valuation of imported goods - marble slabs - rejection of declared value - enhancement of value based on contemporaneous imports - HELD THAT:- The findings of the original authority, which was upheld in the impugned order, have based the enhancement of assessable value on imports that were contemporaneous as well as others that were not contemporaneous. Moreover, despite the enhanced value being in excess of the threshold prescribed in the Foreign Trade Policy for free importability, the first appellate authority has confirmed the actions of the original authority in confiscating the goods for violation of the import policy prescription. The confiscation of 21.71 sq meter of ‘marble slabs’ that were in excess of the declaration is sustainable in law. The enhancement of the assessable value appears to have relied upon four bill....... + More
- 2019 (9) TMI 677
SEZ unit - Amendment in shipping bills - MEIS benefit - Section 149 of the Customs Act, 1962 - HELD THAT:- As far as examination of the consignment is concerned during the relevant time, there was no provision for physical examination of the cargo exported from SEZ unit under MEIS Scheme and that requirement was incorporated only on 19.09.2018 vide Notification G.S.R. No. 909 (E) dated 19.09.2018. Further, the entire export took place prior to incorporation of the physical examination requirement. Further, in the case of SEZ, the entire operations are under the control of Development Commissioner and the officers of the Customs posted therein and they can easily verify the entire records but the same was not done in this case. The impugned order denying the amendment of the Shipping Bills is not sustainable in law - Appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 651
Valuation of imported goods - import of HSS Drills - rejection of declared value - enhancement of value - re-assessment done without following the procedure - Commissioner (Appeals) directed the revenue to conduct audit - Section 17(6) of the Customs Act, 1962 - HELD THAT:- On going through the records of the case, it is seen that the value of the goods imported vide Bill of Entry No. 5500405 dated 19/12/2011 has been increased and the Respondents have cleared the goods by paying duty of ₹ 8,59,459. However, it is not clear as to whether the Respondent have contested the loading of the value or whether duty has been paid under protest. Further, it is not coming forth by records whether the provisions of Section 17(5) of the Customs Act, 1962 have been complied with or otherwise. From a plain reading of the provisions of Section 17(6....... + More
- 2019 (9) TMI 596
Import of one used motor cycle under Transfer of residence (TR) facility - non-fulfillment of condition for availing the relaxation from import conditions - under-valuation - second adjudication proceedings initiated vide impugned order related to house hold items brought by appellant - HELD THAT:- In the case of house hold items they were subject to adjudication and released on payment of fine and penalty then the second adjudication proceedings initiated by the impugned order related to house hold items are not sustainable in law. Further, the appellant has proved on record that he is entitled to claim the benefit of TR because as per the Import Policy, the appellant is entitled to bring vehicle after staying abroad for the minimum period of 2 years - In the present case, the appellant has proved that he is staying abroad for the last m....... + More
- 2019 (9) TMI 539
Extension of anti-dumping circumvention duty - Relevant date of imposition - import of Cold-rolled Flat products of width not covered under customs notification dated 11 December 2015 originating in or exported from China PR, Japan, Korea, European Union, South Africa, Tiwan, Thailand and USA - validity of imposition of ADD on the PUI from the date of publication of the notification on 24 October, 2017 and not retrospectively from the date of initiation of the anti-circumvention proceedings on 19 February, 2016 - Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. HELD THAT:- Section 9A (1) of the Tariff Act empowers the Central Government to impose anti-dumping duty. Section 9A (1A) of the Tariff Act deals with circumvention of anti-....... + More
- 2019 (9) TMI 538
Imposition of penalty u/s 112(a) and 114AA of CA - Misdeclaration of imported goods - Firecrackers - prohibited goods or not - role attributed by the Revenue to the present appellant is that he filed the online bill of entry for the said import and as such must have been aware of the fact that the goods were being declared - HELD THAT:- The use of the expression ‘must have’ is indicative of the fact that Adjudicating Authority is not sure about the role played by the said appellant. Otherwise also the filing of online bill of entry by itself cannot be held to be punishable offence unless Revenue produce evidences to establish that the person concerned, by his active involvement, aided and abated the importer. There is no justifiable reasons to impose penalty upon the appellant - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 537
Recovery of Customs Duty - Section 143 (3) readwith Section 142 of the Customs Act, 1962 - the basic ground on which the customs duty has been confirmed and ordered for recovery, is for the reason that the appellant have failed to adduce the evidence of fulfillment of their export obligation under advance authorization - HELD THAT:- The claim of the appellant that they have fulfilled the export obligation with regard to the advance authorization dated 10 January 2013 and, therefore, there is no cause for demanding customs duty against the duty free imports effected by them under the above-mentioned advance authorization - it will be proper if the original Adjudicating Authority considers the claim made by the appellant regarding fulfillment of the export obligation and decide the matter afresh. Matter remanded for denovo adjudicating for taking into account the claims of export obligation fulfillment made by the appellant - appeal allowed by way of remand.
- 2019 (9) TMI 536
Valuation - duty on remnant Aviation Turbine Fuel (ATF) in the Aircraft at the time of its conversion from international sector to domestic sector - Determination of insurance, freight and landing charges required to be added to the IOC price (the basis for payment of duty) for determination of assessable value of remnant ATF in the aircraft at time of conversion from international to domestic run - demand of differential duty alongwith interest and penalty - Scope of Rule 10(2) of the Custom Valuation (Determination of Price of Imported Goods) Rules, 2007- Scope of Rule 10(2) of the Custom Valuation (Determination of Price of Imported Goods) Rules, 2007 - extended period of limitation - Confiscation - contrary views. HELD THAT:- Since there are contrary views to the view earlier taken by the coordinate benches of tribunal, we refer the m....... + More
- 2019 (9) TMI 432
Valuation of goods - Aluminium scrap - enhancement of value based upon the NIDB data - HELD THAT:- The enhancement stands set aside by Commissioner (Appeals) by referring the earlier matters of the same assessee in which case such assessments were set aside. Appeal dismissed - decided against Revenue.
- 2019 (9) TMI 431
Condonation of delay of 99 days in filing appeal - HELD THAT:- It is mentioned in the Misc. Application that the appeals could not be filed within due date owing to un-avoidable circumstances. It is also submitted that the delay is bonafide and un-intentional and accordingly, prayed for condonation of delay - In view of the submissions as mentioned in the Misc. Applications, the delay in filing both the appeals before the Tribunal is condoned. Permission for withdrawal of appeal - monetary amount involved in the appeal - Appellant-Revenue has prayed for withdrawal of their appeals in terms of litigation policy vide Board’s instruction being F.No.390/Misc./163/2010-JC (17.12.2015) dated 17.12.2015 - HELD THAT:- The prayer of the Revenue is allowed and the appeals are dismissed as withdrawn under National Litigation Policy. Application disposed off.
- 2019 (9) TMI 334
Smuggling - Gold - Gold of Foreign Origin or not - it was alleged that appellant did not produce any licit document for possession of said quantity of gold - HELD THAT:- The purity of gold in the seized gold was less than purity of gold of foreign origin. Further, revenue also could not establish from where the gold was smuggled. On the contrary the appellant has established that he has procured the said gold from Shri Shivanshu Agarwal after making payments through banking channels. It was up to revenue to further investigate as to from where Shri Shivanshu Agarwal has obtained the same. Though it is not available on record but it is more probable that after investigation with Shri Shivanshu Agarwal, revenue could not bring out any evidence to establish that Shri Shivanshu Agarwal had obtained smuggled gold and therefore, no such evidenc....... + More
- 2019 (9) TMI 290
Import of catalyst called “Petromax-MD” for use in the production of other final product manufactured in FCC unit of its refinery - benefit of N/N. 228 of notification 21/02-Cus dated 01/03/2002, available to all goods specified in entry no. 45 of List 17 - Revenue submits that the entry no. 45 of list 17 of Sno. 228 of notification no. 21/2002-Cus is unambiguous, according to which, only those goods are exempted which are used for setting up of “Crude Petroleum Refinery”. It is beyond doubt that catalyst which is used for production of final products is not used for setting up of refinery. HELD THAT:- It is a case of the appellant that the goods is used as consumable for running, repair or maintenance of the goods specified in list - We are of the view that the use of goods for running, repair or maintenance of th....... + More
- 2019 (9) TMI 289
Re-classification of imported goods - Import of ‘stickers’ and ‘license’ for Windows XPE Embedded software - recovery of duties - reliance on statement which was retracted later - section 28 of Customs Act, 1962 - denial of N/N. 12/2012-CE dated 17th March 2012 (at serial no. 266) - Imposition of penalties u/s 112(a) or section 114A of the Customs Act, 1962 - retraction of statement of deponent. HELD THAT:- The value declared itself is not in doubt. The statement recorded from Shri Aditya Bhuwania is undoubtedly inculpatory but not against the claim of having been retracted which, even if not done before the authority which recorded the statement, was, nevertheless, placed later before the adjudicating authority, there can be no doubt that the contents of the said statement is not acceptable without some corroborat....... + More
- 2019 (9) TMI 288
Valuation of imported goods - enhancement of declared value - violation of Import Trade Control restrictions - enhancement of value has been ordered by the First Appellate Authority on the basis of concurrence given by the importer for such enhancement - quantum of redemption fine and penalty - HELD THAT:- The Ld. Commissioner (Appeals) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by the Three Member Bench of CESTAT, Delhi in the case of M/S. OMEX INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (4) TMI 112 - CESTAT NEW DELHI (LB)]. The Three Member Bench has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of import violating Exim Policy Provisions. There are no reason to interfere with the findings of the Ld. Commissioner (Appeals) on the basis of such decision. Appeal dismissed - decided against Revenue.
- 2019 (9) TMI 247
Source of Gold bars of foreign origin - Received under Will - appellants contention is that Will does not require any registration under the Registration Act and the same was Notarized as is clear from the stamp of the Notary Public, who is an officer of the court - absolute confiscation - conversion of absolute confiscation into option of redemption. HELD THAT:- No doubt that gold is specified item in terms of the provisions of section 123 of the Customs Act and the onus to prove that the foreign origin gold, found in possession of any person, was legally imported by them is on the possessor. In the present case, the appellants have contended that the gold bars in question were possessed by them as a result of execution of the Will by her grandmother, after her death in the year 2010. Revenue has tried to find some holes in the said Will....... + More
- 2019 (9) TMI 135
Benefit of Duty Free Import Authorization (DFIA) - FTP, 2009-14 read with Notification No. 98-2009-Cus dated 11.09.2009 - import of Green Cardamom - DFIA benefit denied on the ground that Green Cardamom is not mentioned in the Licence in the list of imported goods, Green Cardamom was not used actually in the export goods and that Customs Tariff Head is not mentioned in the Licence. HELD THAT:- In the Licence, there is no mention of name of specific items but it only mentioned relevant Food Additives for Pickles FDI approved, therefore, all those goods which are used as Food Additives for making Pickles will be covered under this category. Similarly in the case of export product of Biscuits, the imported goods includes Flavouring Agent therefore, there is no doubt that the Green Cardamom is used as Flavouring Agent in the manufacture of Bi....... + More
- 2019 (9) TMI 134
Imposition of penalty u/s 117 of CA on CHA - it is alleged that CHA has failed to make necessary corrections in the Bills of Entry - presence of malafide intent or not - HELD THAT:- The appellant before filing the Bill of Entry has sent the checklist and after confirmation from the importer, he filed the bill of Entry containing the details which were supplied to him by the importer. Further, the appellant has filed the Bill of Entry on the basis of the invoices which is given to him and if the importer has given him the wrong invoice then it is the importer who has contravened the provisions of the Act and penalty should have been imposed on the importer and not the appellant who is only acting as a CHA. Further, the department has not brought any evidence on record to prove that the appellant had the knowledge of the final invoice or th....... + More
- 2019 (9) TMI 133
Penalty on CHA under Regulation 18 of Customs Brokers Licensing Regulation, 2018 - appellant submits that for imposition of penalty under Regulation 18 of said Regulations, the appellant was not put on notice and as a result appellant did not have opportunity to defend himself - principles of natural justice - HELD THAT:- Through the proceedings we have not come across anything to suggest that the appellant were put on notice for imposition of penalty under Regulation 18 of said Regulations. The contention of Revenue is that the Commissioner is having power to impose penalty. There is no doubt that the Commissioner is having power to impose penalty under Regulation 18, however, the said power needs to be exercised by observing principles of natural justice. The appellants were not put on notice to defend themselves against imposition of penalty. Therefore, the penalty imposed is not sustainable. Appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 132
Grant of interest on delayed refund - appellant had paid the duty under-protest during the pendency of litigation - Section 27 of Customs Act, 1962 - HELD THAT:- As per Section 27 of the Customs Act, 1962, the appellants are eligible for interest in case refund is not sanctioned within three months from the date of application. On perusal of the facts presented before me, it is seen that the department has filed stay application before the Tribunal. The stay application was dismissed on 30.4.2013. The refund ought to have been sanctioned to the appellant on dismissal of the stay application. Thus, there is indeed delay in sanctioning the refund. The appellant is therefore eligible for the interest on the delayed refund - the appellants are eligible for interest from three months after the dismissal of the stay application - the impugned order rejecting the interest on delayed refund is unjustified - appeal allowed - decided in favor of appellant.