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Customs - Case Laws
Showing 1 to 20 of 246 Records
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2015 (12) TMI 1855 - DELHI HIGH COURT
Validity of detention order - no copy has been served upon petitioner - HELD THAT:- Petitioner submits that he does not wish to press the present writ petition and he would seek appropriate remedy as available to him in accordance with law at the appropriate stage.
In view of the stand taken by learned counsel, present writ petition and all pending applications are dismissed as not pressed.
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2015 (12) TMI 1837 - GUJARAT HIGH COURT
Assessment and clearance of imported goods - import of used tyres - HELD THAT:- Identical issue decided in the case of KADRI ENTERPRISE A PROPRIETOR CONCERN OF GULAM RASUL GULAM MUSTUFA SHAIKH VERSUS UNION OF INDIA & 2 [2015 (11) TMI 677 - GUJARAT HIGH COURT] where respondents are directed to forthwith permit assessment and clearance of the goods imported by the applicant - petitioner.
Situation being identical, in these petitions also, similar interim directions are issued subject to similar conditions as in the said order.
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2015 (12) TMI 1823 - SC ORDER
Import of helicopters - Breach of Condition No. 104 contained in Customs Notification No. 21/2002 (as amended by Notification No. 61/2007).
HELD THAT:- Issue notice.
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2015 (12) TMI 1755 - CESTAT HYDERABAD
Benefit of N/N. 21/2002-Cus., dated 1st March, 2002 - ‘kits’ for conversion of petrol and diesel vehicle into compressed natural gas/propane or liquefied petroleum gas driven vehicles - Held that: - Tribunal has in STANDARD CONSULTANTS LTD. Versus CC., CE. & ST. (APPEALS-II), HYDERABAD [2008 (9) TMI 656 - CESTAT, BANGALORE] held that the benefit of concession of additional duty at 5% is available on the goods imported.
Unjust enrichment - Held that: - the respondent has furnished a certificate of the Chartered Accountant indicating that the burden of duty has not been passed on - the ground of ‘unjust enrichment’ would not hold against the assessee.
Appeal dismissed - decided against Revenue.
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2015 (12) TMI 1727 - DELHI HIGH COURT
Cross examination - supply of documents - Held that: - learned counsel for the petitioner states that an appropriate application for the same would be filed before the adjudicating authority within a week and the adjudicating authority shall dispose of the said application in accordance with law within four weeks thereafter - petition disposed off.
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2015 (12) TMI 1700 - RAJASTHAN HIGH COURT
Cancellation of Bail application - illegal storage and then export of red sanders, a prohibited item - case of respondent is that the accused respondents have correctly been granted bail and bail once granted is not liable to be cancelled - Held that: - the court below is found to have released the accused respondents on bail relying on the judgment rendered in the case of Sanjay Chandra v. CBI, [2011 (11) TMI 537 - SUPREME COURT], which was a case relating to telecommunication laws and telecom service license and spectrum obtained fraudulently, whereas in the present case, the offence committed by the accused respondents is an offence of social economic offence of international ramifications, which is very serious offence considering the fact that Red Sanders (Red Sandalwood) is included in the endangered list of plants in CITES, an international agreement signed by 180 countries, and the accused respondents are habitual offenders and the possibility of re-occurrence of offence of similar nature cannot be ruled out, particularly when red sandalwood has a lucrative market for smugglers and as per the details given by co-accused person, the Red Sanders of the value of ₹ 4-5 crores has been smuggled out of the India, the Court below is found to have committed error while granting bail to the accused respondents.
The cancellation of bail applications filed by the petitioner are allowed - decided in favor of Revenue.
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2015 (12) TMI 1696 - ANDHRA PRADESH HIGH COURT
Import of Gold jewellery - preferential rate of duty - case of petitioner is that there is no doubt regarding the credibility of the declaration given by the exporter; the country of origin certificates also bear a specific certification from the concerned authorities in Indonesia to the effect that the declaration of the exporter, that the goods are of Indonesian Origin, is correct; therefore, the goods ought to have been cleared by granting exemption in terms of the exemption notification, and the Origin Rules; however the goods, imported by the petitioners under the relevant Bills of Entry, were not cleared for home consumption - the petitioner has an effective and efficacious alternative remedy of an appeal under Section 128 of the Customs Act, without availing which they had invoked the jurisdiction of this Court under Article 226 of the Constitution of India - Held that: - Alternative remedy, Not a bar for invoking the jurisdiction of the High Court under Article 226 of the Constitution - The existence of an alternative remedy is merely a factor to be considered, and would not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed - As the petitioners question the adjudication order on the grounds of violation of principles of natural justice, and that the 3rd respondent lacks jurisdiction to pass the adjudication order even before a retroactive check is conducted, we see no reason to relegate them, after having heard the matter elaborately on merits, to the alternate remedy of an appeal under the Customs Act.
Does the third respondent lack jurisdiction to pass the adjudication order without a retroactive check being conducted? - Held that: - From a reading of Clause 16(b), it is evident that the requirement of obtaining information of the documents, relating to the origin of the imported goods in accordance with its domestic laws and regulations, is a preclude to the request for retroactive check in terms of Clause 16(a). If the documents, sought for by the competent authority, are furnished by the importer and, if the concerned authority is satisfied with it, then preferential tariff can be extended to the importer. If, on the other hand, the information, or the documents furnished, are found not to be satisfactory, then, in terms of Clause 16(a), a retroactive check can be conducted - It is only after a retroactive check is conducted, and the concerned authorities are satisfied that the Certificate of Origin cannot be accepted, are they entitled, thereafter, to pass an adjudication order under the Customs Act. Without conducting a retroactive check, in terms of Clause 16(a) of Annexure-III to the 2009 Rules, it was not open to the 3rd respondent to pass an adjudicating order. The impugned orders dated 30-10-2015, passed even before conducting a retroactive check in terms of Clause 16(a), are without jurisdiction.
Was the adjudication order dated 30-11-2015 passed in violation of principles of natural justice? - Held that: - Reliance placed on documents, not made available to the assessee, violates principles of natural justice; and necessitates the impugned order being set aside on this ground also. - A person, against whom an order is passed, is entitled to a proper hearing which would include supply of the documents relied upon by the adjudicating authority. Only on knowing the contents of the documents, can he furnish an effective reply.
Does the judgment in Mahadev Metaliks Pvt. Ltd. [2015 (12) TMI 476 - ANDHRA PRADESH HIGH COURT], to the extent imported goods were directed to be released on payment of 30% differential duty, constitute a binding precedent? - Held that: - On provisional assessment, the assessee can only be asked to deposit a sum not exceeding 20% of the provisional duty. In addition thereto, it is open to the concerned officer to call upon the petitioner to furnish such security or surety or both as he deems fit. While the 2011 Regulations disable the concerned authority from requiring deposit of a sum exceeding 20% of the provisional duty, the nature of the surety and the extent of the security to be furnished is, under Regulation 4, left to the discretion of the proper officer - If the order in Mahadev Metaliks Pvt. Ltd. constitutes a binding precedent, this Court would be required to refer the matter to a Full Bench for resolution of the issue, even if it were to disagree with the view taken in the said judgment, for it is well settled that when a bench of coordinate jurisdiction disagrees with another bench of coordinate jurisdiction, whether on the basis of “different arguments” or otherwise on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety, forms the basis of judicial procedure and it must be respected at all costs - If, on an analysis of Regulation 4, the said regulation was misconstrued, it would then not have been a ground for impugning the authority of the earlier judgment. It is only because Regulation 4 was not considered, despite it being brought to their notice, and was not preceded by an analysis of the said Regulation, and no reasons were assigned for issuing such a direction, does the judgment, in Mahadev Metaliks Pvt. Ltd., not constitute a precedent binding on a co-ordinate bench.
Can an order, similar to that passed by the Supreme Court in “Commissioner of Customs v. M/s. Navashakti Industries Pvt. Ltd.” [2010 (5) TMI 592 - DELHI HIGH COURT], be passed in these writ petitions also? - Held that: - Exercise of the extraordinary jurisdiction, constitutionally conferred on the Supreme Court under Article 142(1) of the Constitution, can be of no guidance on the scope of Article 226 - It would be wholly inappropriate for us, therefore, to issue a direction, similar to that passed by the Supreme Court, with regards surety or security to be furnished by the assessee for release of the subject goods.
The High Court cannot substitute its views for that of the authority on whom the statutory regulations confer discretion - Discretion conferred by statutory regulations, must be exercised in a rational and reasonable manner.
The discretion conferred on the proper authority, under the 2011 Regulations, is not fettered by the C.B.E. & C. Circular dated 6-10-2015.
We wish to make it clear that we have not expressed any opinion on the amount which the petitioner must be asked to deposit or the nature of surety or the extent of security which the petitioner should be called upon to furnish for release of the imported gold jewellery, as these are all matters in the discretion of the proper officer under Regulation 4 of the 2011 Regulations. Suffice it to direct the third respondent to release the imported goods, after exercising his discretion in terms of Regulations 2 and 4 of the 2011 Regulations and assigning reasons therefor, with utmost expedition and, in any event, not later than two (2) weeks from today.
Petition disposed off - decided partly in favor of petitioner.
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2015 (12) TMI 1656 - CESTAT NEW DELHI
Imposition of penalty u/s 112(a)(i) read with Section 114 AA of the CA, 1962 - import of restricted item - fire crackers were found concealed along with the declared goods - confiscation - penalty - Held that: - the appellant introduced the middle man with the CHA and is no way connected to the importer of the goods and also was not aware about the goods contained in the container. Thus, the person who has not dealt with the clearance of goods and also not connived with CHA or importer in clearance of prohibited goods, penalty cannot be imposed on such person as a mediator/ facilitator - penalty set aside - appeal allowed - decided in favor of appellant.
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2015 (12) TMI 1639 - CESTAT HYDERABAD
Conversion of free shipping bill to DEPB scheme shipping bill - denial on the ground of time bar - the request for conversion has been filed around 8 months after filing of Export General Manifest - Held that: - The appellant has sought amendment of document (shipping bill) u/s 149 of the Customs Act, 1962. When the appellant has satisfied the requirements of the proviso under Section 149, the Commissioner ought to have allowed the request for conversion instead of disallowing the same by applying the Board’s Circular No. 4/2004. It is also to be stated that Section 149 does not lay down any time limit for seeking amendment of the documents - Though the appellants omitted to declare the DEPB benefit on the shipping bill, they have clearly declared the same in the ARE-1 forms in respect of the said shipping bill. Therefore there was sufficient documentary evidence available at the time of export indicating that the appellants were eligible to avail the DEPB benefit - the rejection of the request for conversion of shipping bills is unjustified - appeal allowed - decided in favor of appellant.
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2015 (12) TMI 1637 - CESTAT HYDERABAD
Provisional assessment u/s 18 of CA, 1962 - penalties u/s 114A and 112(a) of Customs Act, 1962 - Held that: - it would appear that the appeal confuses provisional release of seized goods with provisional assessment. Provisional assessment under Section 18 of Customs Act, 1962 is subject to furnishing a bond and appropriate security for payment of differential duty - The suspicion of undervalued imports led to provisional assessment in the present matter. The statute permits recovery of differential duty and interest.
Penalty u/s 112 can be invoked only in relation to goods liable for confiscation. An order of confiscation is not a pre-condition for imposition of penalty. A finding of confiscability suffices for such penal action - The imposition of penalty u/s 112 of Customs Act, 1962 on M/s. Truwoods Pvt. Ltd. is based on such finding.
There is, therefore, no lacuna in the impugned order in not having confiscated the imported goods and in not having quantified a fine for redemption of confiscated goods - appeal dismissed - decided against Revenue.
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2015 (12) TMI 1635 - CESTAT CHANDIGARH
Denial of benefit of N/N. 21/2002, dated 1-3-2002 (S. No. 200) - classification of goods - Heavy Melting Scrap - The authorities below classified the goods as Rerollable scrap as against declared description of Heavy Melting Scrap - Held that: - the material cannot be rerolled without cutting does not hold much water as they have cited no authority to say that the maximum length of rerollable material cannot exceed 2000 mm. The Commissioner has cited ISRI circular as authority for the size of the heavy melting scrap. The claim of the appellant that they used the material for melting does not hold much water. Firstly it is unsubstantiated and secondly, if the material as imported was rerollable scrap, the use to which it is put after import, does not change its character for assessment at the time of import - appeal dismissed - decided against appellant.
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2015 (12) TMI 1606 - DELHI HIGH COURT
Compliance with the order of the Settlement Commission - The petition seeks a mandamus to the respondent no.1 Union of India (UOI), respondent no.2 Commissioner of Customs (Import), respondent no.3 Directorate of Revenue Intelligence (DRI) and respondent no.4 Commissioner of Customs (Export) to release the Bank Guarantees/Bonds and cash payments in terms of the order dated 23rd September, 2015 of the Settlement Commission - The Settlement Commission had vide the aforesaid order directed for such release within 15 days of its order - Held that: - The respondent no.1 UOI which has no role in the matter should not be seeking time for filing counter affidavit without any cause and application of mind - In view of the aforesaid, the petition is disposed of by directing the respondents no.2 & 4 Customs Authorities to comply with the order of the Settlement Commission on or before 30th December, 2015 - The person occupying the Office of the Commissioner of Customs (Import) is made personally responsible for compliance of the order.
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2015 (12) TMI 1591 - ORISSA HIGH COURT
Implementation of Order of the CEGAT dated 26-7-1993 - Held that: - the ground on which the application for implementation of the order dated 26-7-1993 was rejected does not survive. Hence, there can be no alternative before this Court than to direct for release of the seized gold ornaments to the petitioner after observing necessary formalities within a period of three months from the date of this order - writ petition disposed off.
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2015 (12) TMI 1590 - CESTAT KOLKATA
Whether pulses seized from a godown within two kms of the Indo-Nepal border were attempted to be exported to Nepal - Held that: - It has also been observed by the first appellate authority that the factors of improper transactions in procuring of seized goods can best indicate some lacuna in the functioning of trading activity and cannot be termed as attempt to export - In the present appeal pulses are not specified goods under Chapter-IV of the Customs Act, 1962 to infer that bringing into specified area could be with an intention to export the same out of India - Appeal dismissed.
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2015 (12) TMI 1581 - SC ORDER
Discrepancy in respect of the quantities found in the containers, vis-a-vis those declared - discrepancies in quantity, admittedly, relate to an excess DEPB - decision in the case of COMMISSIONER OF CUSTOMS, MUMBAI Versus RK. TOMAR [2007 (11) TMI 262 - CESTAT, MUMBAI] referred - appellant is granted four weeks’ time for doing the needful as per office report dated 1-12-2015, failing which the civil appeal shall stand dismissed without further reference to the Court - appeal disposed off.
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2015 (12) TMI 1579 - CESTAT MUMBAI
Confiscation of vessel – Classified as ‘Happy Success’ under CTH 8904 or as Supply Vessel under CTH 8901 – N/N. 21/2002-Cus – Held that: - various statutory authorities have categorically certified the description of subject vessel as ‘Supply Vessel’. In the certificates shown at Sl. No. (i),(ii) and (iv), the survey of the vessel was also conducted and thereafter the classification of subject vessel was made as ‘Supply Vessel’. On going through the judgments on the identical issues, it is found that in the case of Hull Offshore Ltd. v. Commissioner of Customs (Import), Mumbai [2013 (10) TMI 409 - CESTAT MUMBAI], the classification of the vessel was decided on the basis of various certificates of different statutory authorities similarly. In the present case also the same authorities classified the subject vessel as ‘Supply Vessel’. Hence the certification of the various above authorities that the subject vessel is a Supply Vessel is absolutely in the line of the above judgment.
Discrepancy in the Memorandum of Agreement is due to inadvertence – at some page it was mentioned as “Ocean Going Utility-cum-Offshore Supply Vessel” while in other it was described as “Steel Tug MV NAVIS SUCCESS”. In the same agreement “Supply Vessel” was mentioned and the same gets confirmed on the basis of other various certificates, which establish that the Steel Tug was mentioned due to inadvertence. Therefore when statutory bodies classified the vessel as ‘Supply Vessel’, no weightage can be given to an inadvertent mistake appearing in MOA.
Printout of various website - vessel categorized as Offshore Tug/Supply Vessel. Held that: - the website is neither of the supplier nor of the appellants, it is maintained by some third party. Moreover when there are many statutory authorities certified the subject vessel as Supply Vessel, only unauthenticated website data can not be given credential.
Chartered Engineer’s report - from any material it could not be proved that the vessel has ever used as Tug. On the contrary, ample of evidences prove that the vessel is ‘Supply Vessel’ and used as ‘Supply Vessel’. As regard Winch on the vessel, this alone is not sufficient to conclude the classification of the vessel as Tug. Even though the vessel has winch, this will not suffice to hold the classification of vessel as Tug.
As regard non-filing of Bill of Entry - once goods is exempted by customs exemption notification, non-filing of Bill of Entry at the time of import is merely a procedural lapse as there is no mala fide intention of the appellant as no benefit accrues to the appellant by non-filing of Bill of Entry.
Vessel correctly classified as supply vessel – confiscation of vessel lapses – decided in favor of appellant.
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2015 (12) TMI 1578 - MADRAS HIGH COURT
SEZ unit - Release of confiscated 12 kgs of gold bars - confiscation of gold bars - imposition of penalties - SEZ - mandatory intimation under the Trade Facilitation Notice No.02/07 dated 3.3.2007 to be sent to the Department - Whether the failure on the part of the passenger to adhere to the rules provided in Rule 29(5) of the SEZ Rules, 2006 and in the absence of valid permit or authorization, the detention of gold bars justified? - opportunity of being heard - applicability of section 51 - Held that: - the implication of section 51 of the SEZ Act is that anything inconsistent to the provisions of the SEZ Act will not be considered. As stated above, there is also a discrepancy relating to issuance of detention receipt. Since there was no case made out for confiscation of the goods as per Rule 29(5) of the SEZ Rules, earlier show cause notice was dropped. If at all any proceedings to be initiated, that can be initiated only under the provisions of the SEZ Act and Rules. Also, the unit is a SEZ unit, section 51 applicable.
Non consideration of CCTV footage by the Appellate Authority - Held that: - the CCTV footage was concealed by the Appellate Authority for the reasons best known to them. Though the burden lies upon the passenger to establish his defence, the Appellate Authority ought to have considered the said electronic evidence also, before penalising the Petitioner. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the adjudicating authority.
The charges levelled against were dropped, after considering the implication of Section 51 of the SEZ Act and also the electronic evidence of CCTV footage. Further, there is also a statutory compliance provided under Section 128A(3) of the Customs Act, which the Appellate Authority failed to comply with. Hence, the matter deserves reconsideration and re adjudication, as long as the SEZ Act and the Rules and the Acts relied on by the Respondents are inconsistent with each other.
Petition disposed off - matter remanded - opportunity of being heard to be provided to the petitioner.
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2015 (12) TMI 1557 - CESTAT NEW DELHI
Imposition of penalty - Section 112 of the Customs Act, 1962 – courier shipment – ownership not claimed – LED \ LCD – gold biscuit – seizure – confiscation – section 111 of the act – whether the provisions of section 111 (l) and 111(m) can be invoked, justifying imposition of penalty under section 112 of the Act? - Held that: - no Bill of Entry with regard to the goods imported was filed. Since no Bill of Entry in the present case has been filed with regard to the imported goods and the provisions of clause (l) and (m) os section 111 of the act is applicable only in the eventuality where the entry has been made irregularly, the said statutory provisions cannot be invoked, justifying imposition of penalty under Section 112 of the Act – penalty not imposed – appeal allowed – decided in favor of appellant.
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2015 (12) TMI 1516 - GUJARAT HIGH COURT
Seeking grant of bail - Consignment of gold seized - No procedure under Chapter XIV of the Act, has been initiated for confiscating the goods - Held that:- the applicant was arrested on 24.02.2015 and was in judicial custody pursuant to the lodgment of FIR by the police department, the Custom Department has arrested the applicant on 29.08.2015 i.e. after more than six months. There might be some investigation during this period, however it is desirable to comment anything about the reasons for not arresting the applicant for considerable long time. The complaint has also been filed on 60th day from his arrest. This also suggests that customs department has sufficient time to investigate the case i.e. from 24.02.2015 to 27.10.2015 i.e. date of filing the complaint before the learned Magistrate. As far as allegations that in past also, the applicant had indulged in similar activities, which is under investigation, that would not be the ground to reject the application, since the authority had sufficient time to complete the investigation. By relying upon the decision rendered by Apex Court in the case of State of Kerala V/s. Raneef [2011 (1) TMI 1396 - SUPREME COURT] and in the case of Sanjay Chandra[2011 (11) TMI 537 - SUPREME COURT], the applicant is behind bar since more than 10 months which is considered as long period and it is equally true that investigation is almost over. Therefore, this is a fit case to exercise the discretion and enlarge the applicant on regular bail and hence the applicant is ordered to be released on regular bail. - Decided in favour of appellant
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2015 (12) TMI 1514 - CESTAT NEW DELHI
Sustainability of redemption fine and penalty imposed - Export of ‘Leather of beige colour’ along with certificate of Central Leather Research Institute (CLRI) - CLRI certified that sample did not satisfy the norms and conditions - Held that:- In view of the certificate of CLRI and its clarification it is obvious that the impugned goods were attempted to be exported in violation of export restriction as a result of which they were rendered liable to confiscation. Therefore, as per categorical report of CLRI and its clarification, the Order-in-Appeal is not sustainable in setting aside the redemption fine and penalty. - Decided in favour of revenue
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