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Customs - Case Laws
Showing 101 to 120 of 204 Records
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2017 (11) TMI 973 - CESTAT CHENNAI
Classification of goods - Computer Parts Input-Output Unit EOV DIGITIZER - Revenue claims classification under CTH 9022 19 00 whereas appellant claims it to be under CTH 8471 41 90? - Held that: - specific entry relied upon by Revenue demonstrates the nature and character of the goods to attract it to the category it serve purposes of that entry - Although end-user is not the criteria for classification, but the very character and nature of goods when subscribe to a specific entry, that prevails over a general entry for classification. Therefore the classification sought by Revenue under CTH 9022 is appropriate - appeal dismissed - decided against appellant.
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2017 (11) TMI 972 - CESTAT KOLKATA
Penalty - smuggling - Red Sanders Wood - Held that: - In the present case, the findings of the Adjudicating Authority that the appellant had not informed the police, which would not come within the purview of attempt to export goods improperly by the appellant. The word “attempt would indicate an intent combined with an act to export goods improperly.” So, the imposition of penalty under Section 114(i) on the appellant is not justified - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 970 - CESTAT CHENNAI
N/N. 53/97-Cus., dated 3-6-1997 - Waste - Clandestine removal - Held that: - it does not appeal to common sense as to how without SION fixed by the EXIM Policy which governed the appellant for the purpose of import and export and also the notification governing the appellant, as aforesaid, having no mention about any SION or percentage of wastage, appellant shall be arbitrarily dealt - Making further examination, it is noticed that the waste generated was not deliberate and the appellant has paid excise duty thereon when cleared. Department has not made any case to show that there was deliberate pilferage of the raw material by the appellant or diverted the same. In absence of any mala fide being brought on to record, appellant cannot be suspected to have made any undue gain at the cost of the State - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 955 - ALLAHABAD HIGH COURT
Entitlement of interest - Section 28 of CA, 1962 - Proviso to Section 28AA - Held that: - Proviso to Section 28AA gives an opportunity to those where demand u/s 28 has already been raised, but the duty has not been paid, to pay the same within three months from the date of enforcement of Section 28AA, which comes to 26.08.1995 - In the present case, we find no error on the part of respondents in demanding interest under Section 28AA, if otherwise other conditions provided under Section 28AA are satisfied - Learned counsel for the petitioner could not show any other error in impugned demand, warranting interference.
Petition dismissed - decided against petitioner.
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2017 (11) TMI 954 - MADRAS HIGH COURT
Maintainability of petition - alternative remedy of appeal - filing of a writ jurisdiction - whether the Writ Petition is maintainable under Article 226 of the Constitution of India, without exhausting the alternative remedy, under Section 35G of the CEA, 1944?
Held that: - Lack of jurisdiction would be ground, for invoking the extraordinary remedy, under Article 226 of the Constitution of India, which is not the one pleaded in this case.
In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement [2010 (4) TMI 432 - SUPREME COURT], the exceptions carved out are, where there is a lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal has acted under a provision of law, which is declared ultra vires and in such cases, notwithstanding the existence of such a Tribunal, the High Court can exercise its jurisdiction to grant relief - None of the exception is applicable to the case on hand.
The present Writ Petition filed under Article 226 of the Constitution of India, is wholly misconceived and that the same is not maintainable - petition dismissed being not maintainable.
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2017 (11) TMI 953 - CESTAT AHMEDABAD
Violation of actual user condition - clandestine diversion of imported goods - N/N. 43/2002-Cus dated 19.4.2002 and N/N. 50/2000-Cus dated 27.4.2000 - it was alleged that the said imported goods were not brought to the factory nor was used in the manufacture of finished goods - Held that: - Para 4.30 of the Handbook of Procedure stipulates that the advance licence holder shall maintain and preserve true and proper account of same and utilization of the duty free importd/domestically procured goods against advance licence as prescribed in the relevant Appendix underthe said provision - the ld. Commissioner (Appeals) has recorded that a feeble attempt was made by the Appellant in contending that the goods were received in the factory and utilized in the manufacture of exported goods but records were not traceable.
The Appellant had not maintained any record to establish the fulfillment of the condition of Exim Policy under N/N. 43/2002-Cus. and to establish that the goods were utilized in the manufacture finished goods - there is no reason to interfere with the reasoning and conclusion recorded by the ld. Commissioner in confirming duty, interest and confiscation of the goods in absence of contrary evidence in this regard - appeal dismissed - decided against Revenue.
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2017 (11) TMI 952 - CESTAT CHENNAI
Classification of imported goods - Parts of International Private Leased Circuit (IPLC) Lawful Interception Monitoring (LIM ) Networking System - whether classified under CTH 85176990 or under CTH 85437099? - Held that: - when connected to the network of voice or data transmission, these equipments are capable of receiving, recording and storing all kinds of communications, voice, image, data between the subscribers. We note the equipments enable the network operator to virtually receive all such communication by such interception and record the same for future analysis. Without reception of these signals no useful purpose can be served by these equipments.
The Commissioner (Appeals) erred in factual finding. He recorded that the machines imported have no mechanism for reception of information. This is not factually correct.
The equipments now under consideration are more in the nature of telecommunications, auxiliary equipments which are part and parcel of network for voice or data transmission and distribution. Accordingly, the classification as claimed i.e. under CTH 85176990 by the appellant is more appropriate than what is held by the lower authorities - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 951 - CESTAT CHANDIGARH
CVD - 30/2004-CE dated 09.07.2004 - polyester knitted fabrics - Whether the appellants are entitled for benefit of exemption from payment of CVD in terms of Notification No.30/2004-CE dated 09.07.2004 or not? - Held that: - the issue has been settled in their favor in the case of M/s. Artex Textile Pvt. Limited Versus Commissioner of Central Excise & Customs, Delhi (Faridabad) [2017 (9) TMI 1011 - CESTAT CHANDIGARH], where reliance was placed in the case of Share Medical Care vs. UOI [2007 (2) TMI 2 - SUPREME COURT OF INDIA], where it was held that even if the claim of benefit under a particular notification is not made at the initial stage, the assessee cannot be estopped from claiming such benefit at a later stage - the appellant is entitled for the benefit of payment of CVD in terms of Notification No.30/2004-CE dated 09.07.2004 on polyester knitted fabrics - decided in favor of appellant.
Valuation of imported goods - On the basis of DRI alert whether the value of imported goods can be enhanced or not? - Held that: - the said issue came in the appellant’s own case for the earlier period Artex Textile Pvt. Ltd. Versus C.C., Delhi-IV [2017 (9) TMI 1166 - CESTAT CHANDIGARH], where it was held that The value of imported goods in question cannot be enhanced on the basis of DRI alert and the basis of assessed bill of entry - decided in favor of appellant.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 950 - CESTAT CHANDIGARH
Principles of Natural Justice - whether the Department had acted fairly and properly in considering the request for re-export of goods made by the appellants? - Held that: - even if it was not expressly said so by Hon’ble High Court to grant personal hearing, the fact that the order was to be passed in accordance with law means that principles of natural justice were required to be followed by the adjudicating authority while deciding the request of re-export of goods. Even if the appellants did not ask the adjudicating authority to grant personal hearing for request for re-export, it was incumbent on the adjudicating authority to provide them an opportunity of personal hearing before deciding the matter - matter is remanded back to the adjudicating authority to decide afresh - appeal allowed by way of remand.
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2017 (11) TMI 949 - CESTAT MUMBAI
Valuation - includibility - conversion cost - redemption fine - penalty - Held that: - There is no cogent and credible reason and evidence brought out to show that there was no incurring of conversion cost of the vehicle to make that right hand drive from left hand drive. The vehicle was originated in USA and to came Thailand for export. Also the import was found to have been made in violation of import licensing conditions as well as undervalued - redemption fine and penalty upheld - appeal dismissed - decided against appellant.
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2017 (11) TMI 948 - BOMBAY HIGH COURT
Penalty - undervaluation - Whether the Tribunal erred in confirming penalty on the Appellant for undervaluation who acted as an agent for foreign supplier M/s. IJIMASIA having no role in price negotiation? - Held that: - the present Appellant was a mastermind of entire act of undervaluation done by M/s. Sachha Soudha Pedhi - he was a key person as intending agent to plan out the entire modus operandi of undervaluation in respect of goods imported from M/s. IJIMASIA Pte. Limited - The Appellant being a abettor of evasion of duty and a key person and mastermind behind undervaluation, the penalty cannot be set aside - appeal dismissed - decided against appellant.
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2017 (11) TMI 947 - CALCUTTA HIGH COURT
Compliance with pre-deposit - rectification of mistake - Held that: - in view of the fact that, the final adjudication is yet to happen, it would be appropriate to set aside such portion of the direction contained in the impugned order dated January 5, 2016 passed by CESTAT which requires the petitioner to make a pre-deposit of ₹ 50 lakhs for the adjudication proceedings to be finalized - petition disposed off.
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2017 (11) TMI 896 - GUJARAT HIGH COURT
Maintainability of petition - alternative remedy of appeal - valuation of imported goods - similar goods - stand of the Department is that in the present case, the adjudicating authority has referred to and relied upon the additional material, instances of imports of similar goods, for arriving at the transaction value - Held that: - reliance placed in the case of Messrs Sedna Impex India Pvt. Ltd. & 1 Versus Union of India & 2 [2017 (11) TMI 846 - GUJARAT HIGH COURT], where similar issue was decided and it was held that It is well settled that the High Court would not ordinarily entertain a writ petition directly aimed against an order-in-original in taxing statute where statutory appeals are available, more so when ultimately the issue is one which would travel to the Supreme Court by way of appeal instead of the High Court - the petition is disposed of, leaving it open to the petitioner to file appeal.
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2017 (11) TMI 895 - CESTAT KOLKATA
Absolute confiscation - penalty - Smuggling - US Dollar - seizure on the reasonable belief that the same was clandestinely attempted to be exported in illicit manner in contravention of the provisions of Section 11 of the CA read with Section 3(2) of (Foreign Trade Development and Regulation) Act, 1992 (FTDR) Sections 3 & 4 of Foreign Exchange Management Act, 1999 (FEMA) - Held that: - the findings arrived at by the Commr. (Appeals) are not being rebutted by the Revenue and no evidence to the contrary stands placed on record - The appellate authority has observed that there is no admission of guilt by either of the assesses and there are no investigations by the Revenue from various angles, thus requiring the impugned orders to be set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 894 - CESTAT ALLAHABAD
Refund of unutilized CENVAT credit - Proper and original documents relating to details of input used in the export goods, credit availed thereon, stock position of impugned inputs as on 31.03.2006 and Shipping Bills have not submitted by the appellant alongwith the claim in the absence of which claim could not be finalized - Whether refund is sanctionable in case where proper and original document have not been submitted by the appellants at the time of filing but filed subsequently? - Held that: - The argument putforth by the appellant is very clear and leaves no doubt as to the fact that credit lying in balance relates to inputs used in the manufacture of export goods. It is a settled law that certificates issued by the qualified professionals like Chartered Accountant cannot be rejected unless proved wrong by definite evidence - refund allowed.
Whether benefits of CBEC Circular No. 828/5/2006-CX dt. 20.04.2006 are admissible to the appellant under the facts and circumstances of the case? - Held that: - Para-4 of the Circular provides that the 80% amount can be refunded within 15 days from the date of filing refund claim, if no demand of short levy is pending recovery. In this regard, since the refund was rejected by the adjudicating authority at the adjudication stage in view of pending demand, the issue whether CBEC Circular was applicable at that material time need not be taken up at this stage. The pendency of demand is an ongoing process which keeps changing from time to time. Hence benefit of circular can be given on merits at the material time only.
Whether the AR1 s, Shipping Bills, invoices and other documents submitted with refund application are proper documents for sanctioning refund claim? - Held that: - as proof of export is established and procedural lapses have been rectified by the appellant, it is observed that compliance of the requirements of N/N. 5/2006-CE(NT) dated 14.03.06 has been done - substantial benefit cannot be denied for procedural lapses - refund allowed on this ground.
Whether the calculation of credit accrued on inputs claimed to be used in the manufacture of export goods supported by the certificate of Chartered Accountant is acceptable? - Held that: - In Para-4 of the certificate, amount of total credit, credit relating to input used in export goods, credit used in discharging duty liability and the balance lying unutilized has been clearly given which leaves no scope of ambiguity. On the plea of difference in calculation, it is observed that while making the calculation the adjudicating authority has taken into consideration the certificate of Chartered Accountant dated 09.05.06 which is with reference to one model namely SPEEDY only. I have pursued the Bill of material submitted vide letter dated 10.05.06 alongwith Chartered Accountant Certificate dated 09.05.06 as well as grounds of appeal - The adjudicating authority has calculated the figure of ₹ 7,59,38,323/- by multiplying total vehicles by ₹ 2254.50/- P which was not warranted in view of the details given in Para-4 of the certificate dated 09.05.06 which clearly indicates that credit of ₹ 945/- lakhs is attributable to inputs used in export of 24607 scooters and 9076 motor cycles; the fact that credit per vehicle of scooter and motor cycle may not be the same; the fact that ₹ 2254.50P. relates to speedy model of scooter only and has been accepted by the adjudicating authority as mentioned in para-2 of page 7 of the adjudication order. Under the circumstances, the plea of difference in calculation is not sustainable.
Whether lack of correlation between invoice ARE-1's and non-mentioning of engine number and chasis number on the Shipping Bill are reasonable cause to reject the refund claim? - Held that: - It is observed that since the lapses are procedural in nature and the export of goods has been proved by the bill of lading as well as the certificate given by the Customs officer on the back of ARE-1's submitted by the appellant, the plea is not sustainable.
Whether it is mandatory on the part of the applicants to file the refund claim on quarterly basis? - Held that: - there is no bar under the notification to the file the refund claim on annual basis which is evident from the provisions of para-2 of the notification wherein no such condition has been imposed. It provides that such refund cannot be submitted more than once in a quarter. Under the circumstances the plea is not sustainable and refund is not deniable on this ground.
Whether the view of the adjudicating authority that claim is not sanctionable on the grounds of possibilities of its utilization when the factory goes in the production and effects domestic clearance? - Held that: - the appellants have pleaded that the factory of the appellant remained closed and as a result, the credit lying in balance cannot be utilized as there were no domestic clearances - reliance placed in the case of Bishen Dyeing Printing & Weaving Mills [2007 (1) TMI 8 - CESTAT, MUMBAI], where it was held that the credit lying was on account of non-utilization in a particular month and the same cannot be kept pending for the future. As such, the refund is permissible under Rule 5 read with Rule 3 of the Cenvat Credit Rules, 2002. - the balance of credit lying unutilized is refundable to the appellants.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 846 - GUJARAT HIGH COURT
Valuation of imported goods - mixed lot of 100% polyester knitted fabrics - rejection of transaction value - Held that: - It is well settled that the High Court would not ordinarily entertain a writ petition directly aimed against an order-in-original in taxing statute where statutory appeals are available, more so when ultimately the issue is one which would travel to the Supreme Court by way of appeal instead of the High Court - In the present case, however, the adjudicating authority has referred to imports of identical material and based its conclusion on such imports. These observations are limited to making distinction between the earlier orders of adjudication passed by the authority and the present group of cases. This is not to curtail any of the legal contentions of the petitioners on merits of the orders passed. However, in cases where the adjudicating authority has substituted the declared value of the petitioner without any notice or hearing, such orders would have to be set aside and proceedings be remanded to the said authority for fresh disposal - appeal allowed by way of remand.
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2017 (11) TMI 845 - DELHI HIGH COURT
Overvaluations of the goods - unlawful claim towards duty drawback - Held that: - The petitioners’ representatives shall be present at the respective ports at Mundra and the concerned port at Bombay at 12 Noon on 07th November, 2017 to facilitate the drawing of samples - All rights and contentions with respect to other reliefs such as withholding of the drawbacks etc. are kept open - petition disposed off.
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2017 (11) TMI 844 - CESTAT ALLAHABAD
Confiscation - penalty - sale and purchase of pulses - case of Revenue is that it was bogus sale and all the pulses were supplied in contravention of provision, imposed on export of pulses - Held that: - there is no seizure of the pulses, even in small quantity. It is nowhere on record that either the Dal Mill owner or the broker or the said Sushil Kumar Agarwal, Siliguri have indulged in activity amounting to smuggling - none of these persons have carried the pulses for the purpose of smuggling in any Customs area or near the border proximity thereof. It is admitted fact on record that the pulses have been dispatched to a place in India and the same ultimately reached a place in India. There is no allegation that post delivery of Dal to a dealer located near the Indo Nepal Border, within India, was in violation of the provisions of the Customs Act or the respondents herein were involved in the presumed smuggling. The whole case of the revenue is based on presumptions and assumptions and lacking any corroboration and moreover suspicious how so ever strong cannot take place of legal proof - appeal dismissed - decided against appellant.
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2017 (11) TMI 843 - CESTAT NEW DELHI
Conversion of free shipping bills into duty drawback shipping bills - Grant of Duty Drawback - All Industry Rate - Held that: - A bare reading of Rule 12(1)(a) ibid and the Circular dated 16-1-2004 issued by the C.B.E. & C. demonstrate that the conversion is permissible, only when the exporter is able to satisfy the Commissioner of Customs that “for reasons beyond his control”, the drawback was not claimed - In the present case, documents available in the case file divulge that the appellant had applied to the Licensing Authority, Jaipur on 21-7-2006 for grant of Duty Free Replenishment Certificate (DFRC) under Para 4.2 of the Handbook of Procedures 2004-09.
The correspondence exchanged between the appellant and the DGFT reveals that the appellant was diligently pursuing its matter for issuance of DFRC. Thus, filing of drawback declaration in respect of the shipping bills was beyond the control of the appellant, since revocation of DEL happened much later. Therefore, in terms of the C.B.E. & C. Circular dated 16-1-2004, the ld. Commissioner of Customs should have considered the case of the appellant and allowed the exemption from observing the provisions contained in Rule 12(1)(a) ibid for the purpose allowing drawback.
Matter remitted back to the ld. Commissioner of Customs to examine and consider the request of the appellant on merits in terms of the Circular dated 16-1-2004 - appeal allowed by way of remand.
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2017 (11) TMI 790 - MADRAS HIGH COURT
Recovery of default of the company by ex-Managing Director of the company - case of the petitioner is that he was a Managing Director of a company and that he resigned from the directorship on 18.12.2003 much prior to the issuance of a show cause notice by the Joint Director, Directorate of Revenue Inteligence, Chennai dated 29.3.2004 - petitioner submits that after the interim order was granted by this Court in this writ petition, the first respondent served a copy of the Order-in-Original along with a covering letter dated 18.9.2017. Therefore, the petitioner seeks liberty to work out his remedies before the appropriate forum - Held that: - the impugned demand shall be kept in abeyance for a period of 30 days from the date of receipt of a copy of this order. Within such time, it is open to the petitioner to file an appeal against the Order-in-Original dated 14.2.2008, which was received by the petitioner from the first respondent on 18.9.2017 - petition allowed.
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