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2024 (4) TMI 876
Smuggling - Gold - suppression of bill for the purchase of gold despite its seizure from his bag - retraction of statement given under section 108 of Customs Act - reliability of the statements - accused admitted the commission of offence or not - validity of judgment of acquittal of the accused - it was held by High Court that The prosecution had not examined any witness or produced any document to show such previous conduct by the accused, and on the other hand, the evidence of DW1 indicates that the accused had been coming down to Kerala for business purposes, which evidence could not be dented by the prosecution during cross-examination. Therefore, the impugned judgment cannot be said to be perverse or impossible - HELD THAT:- There are no reason to interfere with the impugned order(s) - SLP dismissed.
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2024 (4) TMI 875
Revocation of Customs Broker license - forfeiture of security deposit - levy of penalty - gold smuggled in a consignment of medical equipment, Air Nebulizer - violation of Regulations 10(a), 10(d), 10(m) and 10(n) of CBLR.
Violation of of Regulation 10(a) - failure to check whether third person Shri Ravindra Sonar (from whom CB accepted the documents) is an authorised representative of the importer firm M/s Albela Traders and has power to authorize the appellants CB for filing the documents or not - HELD THAT:- In the absence of any document to prove the claim of that the appellants had acted in an unauthorized manner in mis-declaration of the goods or in smuggling of the contraband, it is difficult for fastening such liability on the appellants CB for holding them responsible for violation of Regulation 10(a) ibid.
Violation of Regulation 10(d) ibid - HELD THAT:- In the instant case, the smuggling of gold in imported consignment was found by the department only on the basis of specific investigation conducted by the DRI authorities, and it was a case of concealment of gold in the declared imported goods. It is also a fact that there was no misdeclaration in any of the documents or in the imported goods. Hence, the appellants CB cannot be found fault for the reason that they did not advise their client importer to comply with the provisions of the Act. The act of smuggling is a conspiracy created by the smuggling syndicate in which there was no role of appellants CB. Further, the voluntary statement given by Ms. Priya Hemant Bandarkar, Proprietor of the appellants CB firm on 04.04.2019 clearly show that such smuggling activity in the imported consignment was not known to the appellants CB. Thus, there is no possibility for the appellants CB to bring it to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) about the misdeclaration of imported goods involving smuggling of gold - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable.
Violation of Regulation 10(m) - HELD THAT:- There is no case of importer or any other person having complained about the inefficiency or delay in clearance of the imported goods by the appellants CB. In the DRI investigation report recorded in inquiry proceedings also it was brought out that the smuggling of gold has been orchestrated by a syndicate in which none of the appellants CB’s employees or proprietor is involved. Therefore, the conclusion arrived at by the learned Commissioner of Customs that the appellants have failed to discharge their obligations cast on him under Regulation 10(m) ibid is factually not supported by any evidence and thus it is not legally sustainable.
Violation of Regulation 10(n) - HELD THAT:- In the present case, the appellants CB had obtained the KYC documents and submitted the same to the Customs Department. Thus, there are no legal basis for upholding of the alleged violation of Regulation 10(n) ibid by the appellants in the impugned order on this basis.
There are no merits in the impugned order passed by the learned Principal Commissioner of Customs (General), Mumbai in revoking the CB license of the appellants; and for forfeiture of entire security deposit, inasmuch as there is no violation of Regulation 10(a), 10(d) and 10(m) of the CBLR, 2018, and the findings in the impugned order is contrary to the facts on record. However, in view of the failure of the appellants to have acted in a proactive manner in fulfillment of the obligation under Regulation 10(n) ibid, particularly when they had received the documents from importer through intermediary, we find that it is justifiable to impose a penalty of Rs.10,000/-, which would be reasonable.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 874
Valuation of exported CD ROMS - Import of goods by availing excess export promotion benefits i.e. DEBP/DEEC Credits - intention of fraudulently obtaining excess DEBP/DEEC Credits, which were subsequently utilized for duty free import thereby causing loss of the Customs Duty - mis-declaration of value - suppression of facts - whether the duty foregone amount is liable to recovered from the respondents? - HELD THAT:- The transaction value declared is fair and the exports are genuine, the second allegation that respondents are not eligible for the DEPB entitlements, automatically loses its sanctity. Since the issue is no longer res integra, the instant revenue’s appeals can not be sustained.
The department’s appeal does not allege that the licences had been cancelled by the Additional Directo rGeneral of Foreign Trade in the instant case. Clearly, the facts are on record that the DGFT has not cancelled the DEPB credit scrips and same were valid in the eyes of law. The DGFT has still not cancelled or modified the DEPB licences already granted. So it is clear that DGFT does not agree with the contention of the department.
The allegation of the revenue that the exports have been misdeclared and DEPB scrips have been sought for and obtained fraudulently and imports have been made using invalid DEPB scrips, cannot be agreed upon. If it is the case of the department that DEPB scrips are fraudulently obtained by the respondents, It would have been appropriate that the department and customs authorities should have taken steps to get the DEPB scrips cancelled by making reference to the DGFT authorities who issued the scrips. Without taking any such action, to say that the DEPB scrips issued by competent authorities are invalid and fraudulently obtained is not proper and legal.
The Hon’ble Bombay High Court in the case of PRADIP POLYFILS PVT. LTD. VERSUS UNION OF INDIA [2004 (1) TMI 93 - BOMBAY HIGH COURT] considered the scope of jurisdiction of the customs authorities to question the validity of DEPB licences and held Once the licensing authorities have held that the export product is covered under the DEPB Scheme and have issued the DEPB licence, it is not open to the Customs authorities to hold that the said export product is not covered under the DEPB Scheme and have issued the DEPB licence, it is not open to the Customs authorities to hold that the said export product is not covered under the DEPB Scheme.
As valid DEPB scrips have been used for import of the goods by the respondents, there are no reason for demand of duty or confiscation of the goods, or imposition of penalties. In the light of this, no valid grounds have been brought out to interfere with findings of the Ld. Adjudicating authority.
There is no infirmity in the impugned orders and they need to be upheld - appeals filed by the revenue are dismissed.
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2024 (4) TMI 873
Seeking grant of bail - custody for more than 41 days - Smuggling - Gold - Indian and Foreign currency - HELD THAT:- There is possibility that, there may be more recovery and more involvement of the persons who are yet to be arrested. But it is required to note that as per their statement they themselves were not bringing gold from the Dubai but the part of smuggling. It is not disputed that there is huge recovery of Indian and foreign currency with gold and silver bars. But thereafter no further progress in the investigation is shown. Moreover, no further statement of the accused is recorded on the basis of further investigation. Already there was sufficient time with the respondent to investigate about his further involvement in the alleged smuggling. The prosecution is suspecting that he may again involved himself in similar type of activity. But care can be taken by imposing certain conditions to prevent him from engaging in smuggling activity. Therefore considering all these circumstances and already the seized currency and other goods were with the respondent it is just and proper to enlarge her bail on certain conditions.
Accused is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed.
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2024 (4) TMI 872
Seeking grant of bail - custody for more than 41 days - Smuggling - Gold - Indian and Foreign currency - HELD THAT:- There is possibility that, there may be more recovery and more involvement of the persons who are yet to be arrested. But it is required to note that as per their statement they themselves were not bringing gold from the Dubai but the part of smuggling. It is not disputed that there is huge recovery of Indian and foreign currency with gold and silver bars. But thereafter no further progress in the investigation is shown. Moreover, no further statement of the accused is recorded on the basis of further investigation. Already there was sufficient time with the respondent to investigate about his further involvement in the alleged smuggling. The prosecution is suspecting that he may again involved himself in similar type of activity. But care can be taken by imposing certain conditions to prevent him from engaging in smuggling activity. Therefore considering all these circumstances and already the seized currency and other goods were with the respondent it is just and proper to enlarge him bail on certain conditions.
Accused is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed.
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2024 (4) TMI 833
Infraction of the principle of natural justice - demand passed without considering the written submissions of the petitioner - SCN was kept in call book for 14 years - HELD THAT:- No mistake, much less any mistake apparent on record was pointed out by the Learned Advocate for the applicant inasmuch as this Court has given the cogent reasons while allowing the Special Civil Application and at that point of time it was not pointed out by the applicant that the show cause notice was never transferred to the call book.
This Court has perused the documents on record wherein it is revealed that it is undisputed fact that the issue involved in the show cause notice was for the year 2003 and on 28-12-2017, the petitioner made detailed reply along with the submissions by relying upon the decision in case of SIDDHI VINAYAK SYNTEX PVT LTD. VERSUS VERSUS UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT]. In such circumstances, it was held by the Court that the show cause notice was kept in abeyance for more than 14 years.
Therefore, in absence of any material on record to justify the submissions made, the application is not entertained and is accordingly dismissed.
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2024 (4) TMI 832
Misdeclaration of classification - confiscation - Penalty u/s 112 (a) - children building/constructable robot toys in CKD condition with individual box packing and are electronic toys - drones - Teaching Aid's in schools - classified under CTH-90230010 - Seeking for re- export the goods to Qatar - huge demurrage charges and goods - HELD THAT:- In the present case, the appellant has produced sufficient evidence to substantiate that the goods are imported for the purpose of demonstration in schools. Hence, the goods imported from Sl. No. 1 to 3 may not be classifiable as toys under CTH 9503 as held by the Adjudication Authority and the Appellant Authority. Further, the adjudication authority‘s finding that since the quantity imported is 30 nos. each they cannot be for demonstrational purpose is not tenable, since the quantity imported cannot have a bearing on the classification of the imported goods. Since there is no other classification confirmed, the goods from S.No. 1 to 3 can be classified under 9023 as declared by the importer. Further in the absence of any restriction to import the goods falling under CTH 9023, the said goods are also not liable for confiscation.
Violation of importing restricted goods - Import of Litebee wing-Nano Drone Components kits - Re-export of goods - HELD THAT: We find as regards the import of drone at Serial No. 4, as per the DGFT Notification No. 54/2015 -2020 dated 09.02.2022, import of drone is prohibited and even if it is permitted to import it is subject to approval from DGFT. Drone in CBU, SKD or CKD form is permitted to be imported only by education institutions recognised by Central or State Governments. In the present appeal , though the appellant is involved in activity related to supporting education institutions, appellant is not an educational institution recognised by Central or State Governments. Moreover, import of drone is prohibited due to security reasons.
Thus, drone imported by the appellant cannot be allowed to be released for home consumption even on payment of redemption fine and penalty. Since, violation of importing restricted goods is admitted, confiscation of drone ( Serial No. 4 ) is upheld. However, considering the delay, a lenient view can be taken for redemption of the same for re-export to Qatar as requested by the appellant.
Thus, appeal is partially allowed directing release of the goods at serial number 1 to 3 at para 2 supra as per the declaration made by the appellant for home consumption. Regarding drone (Sl. No. 4 ) order of confiscation is upheld. However, the appellant is permitted to redeem the drones having declared value of Rs. 2 ,68,943 /- for re-export to Qatar on payment of reduced redemption fine of Rs. 25,000/- and Penalty of Rs. 10 ,000/-.
In the result the appeal is partially allowed as per the above terms.
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2024 (4) TMI 831
Levy of penalty for abetment - Fraudulent export of substandard goods by description in the shipping bills filed by the exporter - Value for undue DEPB benefit - Subletting CHA license - Liability of a Customs Broker - license used for monetary consideration - signing of blank shipping bills and allowing license to be used - consignments of inferior quality of fabrics after mis-declaring the goods as Ladies nightwear - value rejected u/s 14 of the Customs Act - Penalty - Misrepresentation as the employees of the CHA - HELD THAT:- The appellants in the present appeals do not dispute any of the facts that have been part of the impugned order except to state that there is no evidence to show that they were aware of the fact that the goods were of inferior quality and they had knowledge of the undue benefit that the exporter was availing by mis-declaring the goods and the value. They also stated that remittances were received without any proof of the same. The exporter had not disputed the alleged offence nor had contested the alleged offence of misdeclaration of goods and value. Shri Surendran (Appellant 1) having arranged containers and advising them to ensure factory sealing so that it is not opened at ICD Bangalore; arranging a CHA and getting the blank shipping bills signed by the CHA admittedly for monetary consideration; getting a letter from the exporter not to export substandard goods and charging unusually high price for containers, all goes to prove the mala fide intention behind these exports. Moreover, the same team has worked for similar exports at Hyderabad ICD, thus, without doubt all the circumstantial evidences clearly prove their involvement in mis-declaring goods and value for undue DEPB benefit.
Shri Ashok Shukla (Appellant 2) also admits having sublet his license for monetary consideration, signing of blank shipping bills and allowing his license to be used without knowing the exporter and what for it is being used goes to prove that he is not clean in his intentions. Both the appellants have also admittedly misrepresented to the customs about their employees and enabled them to get the ID cards from the customs by misrepresenting that they were the employees of the CHA.
Therefore, the admitted facts do not provide any immunity to the appellants. The reliance placed on the decision of the Hon’ble High court in the case of Rajeev Khatri Vs. Commissioner of Customs (Export) [2023 (7) TMI 218 - DELHI HIGH COURT] is not applicable in the facts of the present case where none of the statements and the irregularities committed by them have not been retracted. “Abet” means instigating, conspiring, intentionally aiding the acts of commission or omission that render the goods liable for confiscation. The facts discussed above clearly spell out the commissions and omissions of both the Appellants where the goods were made liable for confiscation.
The notice clearly alleges the penalty to be levied un/s 114 of the Customs Act, 1962 and though, the Commissioner in the penultimate order had not specified Section 114; from para 59 to 61 of the impugned order it is clearly held that penalty is imposed u/s 114 for violation of the provisions u/s 113 and the Foreign Exchange Regulation Act, 1947.
DEPB licenses were cancelled and the DEPB credit of Rs.98,54,987/- is denied, and the exporter having penalised, it would be fair to reduce the penalty to Rs.5,00,000/- on each of the Appellants. Accordingly, the penalty stands reduced to Rs.5,00,000/- (Rupees Five Lakhs Only) on Appellant 1 (Shri Surendran) and Rs.5,00,000/- (Rupees Five Lakhs Only ) on Appellant 2 (Shri Ashok Shukla).
Appeals are partially allowed on above terms.
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2024 (4) TMI 830
Classification of imported goods - Imports aluminium shelving for Mushroom - Benefit of exemption - appellant classifying the said goods under CTH 84369900 at ‘nil rate of duty’ - Department proposed the goods to be classified under CTH 76109010 - Penalty - Whether the goods imported can be called as machine or mechanical appliances covered under chapter 84 or are more precisely & specifically classifiable as the aluminum structures of chapter 76 - HELD THAT:- From the general rule of interpretation, as discussed, it is clear that the goods have to be classified to the more appropriate category instead of being covered under the generic category. Chapter 76 is generic to all aluminium structures but chapter 84 is specific for any machine/ device of any metal which is used for agriculture purpose. There can be no denial that growing mushroom is an agricultural or horticultural activity and the product imported is crucial and specific for the said activity that the product is specifically designed part of mushroom growing apparatus.
Chapter 76 is all about anything made of aluminium. On the contrary chapter 84 is about mechanical appliances of whatsoever metal but specific for agricultural use. There is no denial to the fact that the aluminium shelving in question is not known to the common trade parlance as a mere aluminium structure but is specifically known as Mushroom growing rack.
Hence, we hold that the goods under question as imported by appellant (mushroom shelving) are classifiable under CTH 84369977. Appellant is held to have rightly classified the same under CTH 84369900. The decisions relied upon by the Department in the case of Saraswati Sugar Mills [2011 (8) TMI 4 - SUPREME COURT] is about captive use of iron and steel structures in the sugar mill and the question adjudicated therein is whether or not these structures could be called as capital goods to entitle the assessee credit of duty paid on those goods. Similarly the extract that China Customs is classifying this product under CTH 7610 is also not that relevant, as the said observations are not binding on the Indian Customs or on the Indian importers. The agricultural equipments are otherwise eligible for duty benefits in Indian scenario.
Hence we hold that the appellant has rightly claimed the duty exemption while importing a product which is exclusively for the purpose of agriculture and which otherwise is a mechanical device. With these findings the order under challenge is hereby set aside and the appeal is hereby allowed.
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2024 (4) TMI 829
Revocation of the Customs Broker Licence - forfeiture of the full amount of security deposit - confiscation - Penalty in exercise of powers vested under Regulation 18 of the Customs Brokers Licensing Regulations, 2018 (CBLR) - Goods imported being edible oil - HELD THAT:- In the instant case, the goods imported being edible oil were brought into India in Bangladeshi tankers having been given permission for entry by the Proper Officer of Customs. It is on record that samples of imported goods were drawn, goods assessed and duty paid thereon. The imported oil was transferred to India tankers, which were taken up for verification of the nature of the edible oil and subsequently seized. The tankers, therefore, bringing oil into India were reportedly not available when DRI officers visited the spot. The Indian trucks were parked in private parking place where trucks loaded with export cargo were parked in an unorganised manner depending upon the availability of space that the trucks loaded with imported oil could manouvre and that is said to be the reason for not being instantly able to take out the vehicle from the jumbled up trucks, trailers and tankers.
Also, it is not at all the case that eventually the tankers could not be produced for consideration and sampling by the officers undertaken and anything contrary came to notice. When the lot of export cargo blocking the movement, were cleared, the subject tankers were said to be brought to the area in front of the Customs Office for needful. Further, it cannot be denied, that the tankers loaded with imported oil could not move without Bills of Entry and other import documents which were still lying with the Customs authorities for want of out of charge. We therefore find it highly unjustified to initiate such harsh action without plausible assessment of the ground realities. Further, it is not that inquiry was initiated against the appellants alone. Also, there is no specific charge of mens rea. Therefore, under the circumstances bona fide’s of the Customs Broker could not be doubted, merely on the basis of obligation of a Customs Broker, simpliciter.
Further, the importers have readily joined the investigations and admittedly the duty as assessed had been duly paid by the importers, before even the cause of this action was initiated. Moreover, nothing wrong with the consignment imported was detected by the authorities as a result of their enquiry. Further, it is also on record that the goods as well as the vehicles after enquiry were instantly allowed release (though provisionally) to the owners and no penal provisions u/s 112 of the Act were invoked.
We therefore are of the view that there was absolutely no justification to subject the Customs Broker to action as aforesaid under the provisions of CBLR, 2018 and take recourse to punitive action like revocation of the Customs Broker License, forfeiture of their security deposit besides imposition of penalty on the appellants. The charges levelled by the department are therefore unsustainable and without even a fig leaf of credence.
Thus, the impugned order is set aside, with all consequential benefits to the appellants as accruable, in law. The Customs Broker License of the appellant is directed to be restored forthwith.
In the result, the appeal succeeds and is thereby allowed, with consequential relief as per law.
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2024 (4) TMI 794
Adjudication of SCN after 17 years - Validity of categorizing the petitioner as an importer of barge that drifted due to bad weather - The same was being taken by a tug owned by one MLC Marine Pvt. Ltd. from Singapore to Baharin sometime in the year 2006. - HELD THAT:- We are of the prima facie opinion that for more than one reason the impugned show cause notice ought not to proceed; firstly prima facie there appears to be grave doubt as to whether the respondents would have jurisdiction to issue the show cause notice in question by categorizing the petitioner to be an importer. Secondly and more significantly, we find that the show cause notice itself is dated 08 June, 2007. The record indicates that there was no stay on the adjudication of the show cause notice for seventeen years.
It may be true that the owner of the tug-MLC Marine Pvt. Ltd. had approached this Court in Writ Petition No. 811 of 2007 in which the show cause notice issued to the owners of the tug MLC Marine Pvt. Ltd. which was challenged. A coordinate Bench of this Court by an order dated 27 October 2020 in the present proceedings observed that the adjudication of the show cause notice in question was subject to the result of the decision which would be rendered on such writ petition. It, however, appears that the said writ petition was dismissed for want of prosecution some time in December 2022, and it is on such backdrop, the show cause notice as issued to the petitioner, who is the owner of the barge, has now been taken up for adjudication, when admittedly there was no stay on the adjudication of the show cause notice from 08 June, 2007 till date i.e. for a period of 17 years as already noted by us.
We thus find that such action on the part of the respondents to adjudicate the show cause notice after 17 years would also be hit by the settled principles of law that a belated adjudication of the show cause notice would render sch adjudication arbitrary and illegal.
Thus, we are of the opinion that the petition would require admission.
Pending the hearing and final disposal of this petition, the impugned show cause notice dated 08 June, 2007 shall remain stayed.
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2024 (4) TMI 793
Finalization of the provisional assessment - return the Bank Guarantees furnished at the time of provisional assessment - Import of alkalized cocoa powder from Indonesia - HELD THAT:- We may observe that although stand has been taken by the respondents in the reply affidavit, however, a deficit memo of any nature was furnished to the petitioners. The internal processes which have been undertaken by respondent no. 3 cannot take indefinite time. They are required to be concluded as expeditiously as possible and more particularly when the petitioner has complied all the conditions in regard to the provisional release of the goods.
Thus, in the facts and circumstances of the case once all the documents as called upon by the designated officer were submitted by the petitioners including the submission of the certificates of the country of origin (in some of the cases), and if any further compliances were required to be fulfilled by the petitioner, in that case, respondent no. 3 ought to have issued a specific communication calling upon the petitioner to submit such documents/compliances. In absence of any such action being taken coupled by a decision not being taken to finalize the bills of entries, would fall into the realm of arbitrariness, as also abdication of duties by the concerned officers of the department.
Thus, we are of the opinion that the petition needs to be disposed of keeping open all contentions of the parties, by directing respondent no. 3 to finalize the bills of entries in each of the petitions, which shall be completed within four weeks from today. If any further documents are required to be submitted by the petitioner, the same be called upon to be submitted within a period of one week from today.
Disposed of in the above terms.
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2024 (4) TMI 792
Remission of duty - Application of Section 23 - Whether the appellant are eligible for remission of duties in respect of duty free goods brought into SEZ and the same were destroyed in fire or otherwise - HELD THAT:- We find that subsequent to the passing of impugned order by the Adjudicating authority, in number of cases, it has been held that if the goods are destroyed in SEZ the duty involved on such destroyed goods can be remitted under the Customs Act. In the case of ONGC Petro Additions Ltd. Vs. CC- [2023 (12) TMI 530 - CESTAT AHMEDABAD], this Tribunal on the same legal issue that whether the goods destroyed in SEZ is eligible for remission of duty or otherwise.
In view of the above decision, thee Tribunal has held that the goods destroyed in the SEZ is eligible for remission of duty in terms of Customs Act. However, the Adjudicating authority had no occasion to come across the aforesaid decision. Therefore, the matter needs to be remanded to decide a fresh.
Thus, the impugned order is set aside. Appeal is allowed by way of remand to the adjudicating authority.
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2024 (4) TMI 791
Levy of penalty u/s 114A - Classification of imported goods - duty demand - suppression of facts - import of Shell Flavex Oil 595 B/H - item being Plasticizer - classified by all Custom Houses under CTH 38122090 but DRI, Gandhidham classified under CTH 27079900 - HELD THAT:- We find that the case relates to classification of the imported goods, the appellant have classified the goods under CTH 38122090 on a bona fide belief that the imported goods were Plasticizer and the same were used as Plasticizer in the manufacture of the tyre. The compound Plasticizer is clearly mentioned in the tariff entry against CTH 38122090. Therefore, the bona fide belief of the appellant that the product being a plasticizer classifiable under CTH 38122090 cannot be doubted with. We further find that the appellant without contesting the duty liability paid the entire amount along with interest and seek relief only for waiver of penalty.
We also observed that in all over India at all the Ports said goods was being classified and accepted under CTH 38122090 considering the same as plasticizer. Therefore, it is not only belief of the appellant but also the view of the department that the goods is classifiable under CTH 38122090. However, it could only be ascertained that the good is classified under CTH 27079900 after detailed analysis of the product. Therefore, penalty u/s 114A cannot be imposed.
Thus, in our mind it is absolutely clear that non payment of duty on the part of the appellant is not by reason of suppression of fact, collusion or any willful misstatement. Therefore, the ingredients for imposing penalty u/s 114A are absent. Therefore, the penalty u/s 114A cannot be imposed.
As per the discussion the duty demand along with interest and payment thereof are upheld and maintained. The penalty imposed u/s 114A is set aside. Accordingly, the appeal is allowed in above terms.
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2024 (4) TMI 732
Penalty imposed on the appellant being the employee of the Shipping Line u/s 114AA - manipulation in the document - statement recorded u/s 108, wrongly stated that the supplier of the goods in the subject container was Jubilee Middle East General Trading LLC, Dubai - HELD THAT:- From the RUDs placed on record by the learned AR, we find the Bill of Lading dated 6.11.2014 the supplier has been mentioned as M/s. Jubilee Middle East General Trading LLC Dubai, UAE. Therefore, the appellant is not wrong in saying that the shipper/supplier is M/s. Jubilee Middle East General Trading LLC. Hence, no fault can be attributed on the appellant.
The provisions of section 114 AA provides for imposition of penalty on a person who knowingly or intentionally make, sign, uses or causes to be made any declaration, statement or documents, which is false or incorrect in any material particular in the transaction of any business for the purpose of the Act. From the statement of Shri Ravinder Singh, we find that the manipulation in the documents were done by the Dubai Branch of the shipping line at the behest of the actual supplier. There is no evidence to link the appellant with the said manipulation done at Dubai office. The shipping line has not been roped in the present proceedings. The revenue has not substantiated the charge of connivance of the appellant with the illegal import rather he was instrumental in ascertaining the correct valuation of the impugned goods. We, therefore, do not find any justification for imposition of penalty u/s 114AA of the Act.
The consistent stand taken in the judicial pronouncements is that no penalty can be imposed on the employee, who acts under the instructions of his employer unless and until there is proof of fraud having been committed by him. We are, therefore of the view that no penalty can be imposed on the appellant who was working as an employee being the Operation Manager with the Shipping Line and on the basis of the Bill of Lading made the statement that the supplier was M/s. Jubilee Middle East General Trading LLC, Dubai and the manipulation in the document was at the Dubai office of the shipping line stands proved by the statement of Shri Ravinder Singh, the present employee of the shipping line.
The impugned order deserves to be set aside and the appeal needs to be allowed. Accordingly, the appeal stands allowed.
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2024 (4) TMI 731
Penalty under Rule 18 (1) of CBLR 2018 on customs broker - exporter availed undue benefit under Merchandise Exports from India Scheme (MEIS) in the export of safety matches - misclassifying the same under CTH 36050090 as against CTH 36050010 - facilitated the filing of documents relating to export on behalf of their exporter client - violation of Regulations 10(d) & 10 (e) ibid - HELD THAT:- In the case of M/s. Max Miller Agencies [2024 (1) TMI 1220 - CESTAT CHENNAI] this Bench has considered an almost similar issue and after considering several judicial pronouncements has found it proper to delete penalty imposed for violations of regulation in 10 (d) and 10 (e).
Thus, I deem it proper to delete the penalty imposed on the appellant and therefore, the impugned order calls for interference. Resultantly, the impugned order is set aside and the appeal is allowed.
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2024 (4) TMI 730
Period of limitation for filing refund claim of SAD - Period start from the date of payment Or from the date of sale of the goods - HELD THAT:- The ratio laid down in the case of M/s. Abhishek Marketing [2024 (3) TMI 1050 - CESTAT KOLKATA] wherein the Tribunal has held that the one-year period for filing the refund claim should start from the date of payment of additional customs duty, is squarely applicable to the factual matrix of the present appeals.
I observe that the judgements of the Hon’ble Delhi High Court cited by the appellant pertain to refund claims filed prior to the amendment carried out vide Notification No. 93/2008-Cus. dated 01.08.2008. Thus, I find that the decisions cited by the appellant are not relevant in the facts and circumstances of the present case.
Accordingly, I do not see any reasons for interfering with the impugned orders and the same are accordingly upheld.
In the result, the appeals filed by the appellant stand dismissed.
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2024 (4) TMI 729
Benefit of exemption from Customs Duty - Validity Of Original re-assessment orders - Modification of self assessment made by the appellant claiming the benefit of exemption under Sl. No. 29 and 30 of Notification No.24/2005-Customs as amended - Classification of impugned goods viz. “Open Cells” under CTH 85.24 and in classification of “associated parts of Open Cells” under CTH 85.29 - whether the imported goods is the ‘Liquid Crystal Device’ or not - HELD THAT:- On careful reading of the impugned order passed by the learned Commissioner of Customs (Appeals), it transpires that he has given a specific finding that there is no dispute in the classification of impugned goods viz. “Open Cells” under CTH 85.24 and in classification of “associated parts of Open Cells” under CTH 85.29. Further, he had stated that the issue in contention is whether exemption under Serial No. 29 & 30 of Notification No.24/2005-Customs dated 01.03.2005 is applicable to the impugned goods or not. In answering to the issue in dispute, learned Commissioner of Customs (Appeals), had concluded that “Open Cell” cannot be considered as the Liquid Crystal Display (LCD) itself, as certain other components have to be attached to convert it into a fully functional LCD.
We also find that such an examination has not been carried out. This is for the reason that firstly, the description of the goods specified in the exemption entry at Sl. No. 39 viz., ‘Liquid Crystal Devices’ has not been explained to state whether the imported goods is the ‘Liquid Crystal Device’ or not. Instead, it has been simply stated that the imported goods are not a fully functional ‘Liquid Crystal Display’, as open cell needs to be added with certain other components to make it so. Even the original authority did not examine these aspects despite the claim made by the appellants that ‘Open Cell’ is a ‘Liquid Crystal Device’ in terms of HSN Explanatory note to the heading 8524.
The facts of the case further indicate that in the Original order dated 17.11.2022, customs duty exemption benefits under Sl. No.515A and 516 of Notification No.50/2017-Customs dated 30.06.2017 have been extended, whereas in the Original order dated 29.11.2022, merit rate of duty has been applied without extending any duty exemption benefit, while reassessing the B/Es u/s 17(5) ibid, in contrary to the declaration made for self assessment of goods by the appellants u/s 17(1) ibid. In this context, the learned Commissioner of Customs (Appeals), has not examined in detail how the exemption was allowed for imported goods under one B/E and in other B/E the same was rejected, without verifying the fulfillment of the exemption entries under Sl. No.515A and 516 of Notification No.50/2017-Customs dated 30.06.2017 which are subject to certain conditions under Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017, and upheld this contradictory original orders, in the same Order-in-Appeal i.e., impugned order dated 21.02.2023. Thus, in our considered view is a clear case of non-application of the mind and thus the impugned order dated 21.02.2023, is liable to be set aside on these grounds alone.
From the arguments advanced by the Advocates for the appellants, explaining in detail the relevant customs tariff entries and the Chapter 85 and 90, introduction of Chapter Note 7 chapter 85 and the explanation for the insertion of new CTH 85.24 and the entries therein, legislative history of ‘open cell’, ‘technical literature and explanation’ in the form of an affidavit duly notarized stating that open cell are used for Television or monitor or display screen application and the various process involved in manufacture of such articles, concluding that open cell and panel are both LCD devices; various decisions of the Tribunal and the judgements of the Hon’ble Supreme Court relied upon by them, there is legal force in the argument that the exemption benefit under Sr. No.29 & 30 of the Notification No.24/05-Cus., dated 01.03.2005 should be extended to the impugned goods.
We are also of the considered view that the authorities below in reassessment of impugned goods u/s 17(5) ibid, are required to pass a reasonable order, which is of a speaking nature, conforming to the requirements of the definition of ‘assessment’ which include such ‘reassessment’. Hence, it is imperative that amongst other issues, tariff classification of imported goods and exemption or concession of duty issued under notifications issued under Section 25 ibid are required to be examined and determined in order to fulfill the requirements of reassessment in terms of Section 2(2) ibid.
We are of the considered view that the impugned order passed by the learned Commissioner (Appeals) cannot be sustained on merits. However, we are also of the considered view that in order to examine the various issues of reassessment of impugned goods covered under the two Bills of Entry (B/E) No. 9574139 dated 16.07.2022 and B/E No.2453614 dated 15.09.2022 for deciding upon the eligibility to Customs duty exemption benefits under Sl. No. 29 and 30 of Notification No.24/2005-Customs dated 01.03.2005, as amended, the matter needs to be decided afresh in de novo proceedings by the original authority.
Therefore, the impugned orders are set aside and the appeals are allowed in favour of the appellants by remanding the matter for a fresh decision by Original Authority after duly taking into consideration the various submissions made by the appellants and the points advanced by Revenue in these appeals before the Tribunal.
In the result, the appeals are allowed by way of remand for fresh de novo proceedings in the above terms.
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2024 (4) TMI 704
Territorial jurisdiction of Court - Confiscation of gold - levy of penalty on the petitioner - burden lies on the respondents to establish that the seized gold was smuggled in nature and there was violation of the Customs Act, 1962 by the petitioner or not - seeking release of seized gold - HELD THAT:- This Court observes that the preliminary objection of the respondent regarding the territorial jurisdiction of this Court deserves acceptance and the same is hereby accepted, because after a perusal of the record as a whole, it is clear that the entire proceedings, including confiscation, recording of the statements, hearing of the case etc. were conducted at Shillong (Meghalaya), and that, the gold biscuits i.e. the articles in question, never reached the territory of the State of Rajasthan.
Therefore, only on count of the fact that the residence of the petitioner is situated in the State of Rajasthan, the territorial jurisdiction does not lie with this Court. While making such observations, this Court is conscious of the fact that the present matter is quite old, but the same also cannot persuade this Court to hear and decide the case on its own merits, for lack of jurisdiction, and that, in reiteration, not even a fraction of the cause of action arose in the State of Rajasthan, so as to persuade this Court to make the effective adjudication of the case. Moreover, no interim order is operating in the present case.
This Court does not find it a fit case so as to grant any relief to the petitioner in the present petition - petition disposed off.
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2024 (4) TMI 703
Jurisdiction - DRI - proper officer to issue SCN - power of assessment under Section 17 - When Section 28(11) of Customs Act, 1962, envisages that all persons appointed as officers of Customs under sub-Section (1) of Section 4 before the 6th day of July 2011, shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purpose of this Section, whether CESTAT is correct in disputing/questioning the jurisdiction of the DRI to issue show-cause notice?
HELD THAT:- The issue raised in this appeal had already been dealt with by this Court in THE COMMISSIONER OF CUSTOMS VERSUS SHRI SANKET PRAFUL TOLIA [2021 (6) TMI 432 - MADRAS HIGH COURT] where the same substantial question of law has been raised, and it was held that The appeals are restored to the file of the Tribunal with a direction to keep the appeals pending and await the decision of the Honourable Supreme Court.
The impugned order is set aside - appeal allowed.
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