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Showing 101 to 120 of 182 Records

2015 (9) TMI 715 - CESTAT DELHI

Computation of actual cost of 4 ADPA – Imposition of ADD – Authority found that exports from Korea were being made below their normal value and domestic industry had suffered material injury and thereby imposed anti-dumping duty – Authority constructed cost of production for 6PPD by considering international price of major raw material, 4 ADPA, instead of actual procurement cost of said raw material from China –Whether Authority was right in constructing cost of production of 6PPD, disregarding cost of 4ADPA – Held that:- cost of production of both 4ADPA and 6PPD was affected by non-market considerations – In such scenario, Authority rightly rejected export price for 4ADPA as not reliable – Act and Rules, envisage determination of normal value, which reflects true cost of production.
In determining normal value, sales of like product in domestic market of exporting country at prices below per unit (fixed and variable) costs of production plus SGA costs will be treated as not being in ordinary course of trade by reason of price – when major input imported from non-market economy country, sale price reflected in record will have to be scrutinized to detect and correct distortion resulting from non-market economy price of input used, cost of which is required to be worked out in order to correct distorted cost of production of article – Authority is justified in rejecting domestic sales price shown as record when input in question was produced within non-market economy country, because price for such input would be distorted, as they do not reflect normal market economy purchase price – Apex Court in case of Reliance Industries [2006 (9) TMI 180 - SUPREME COURT OF INDIA], held that normal value is country specific not exporter specific, and hence accounts of exporter are to be considered only, where they reflect normal or ordinary cost of inputs.
Authority rightly rejected price of 4ADPA and opted for construction of normal value, based on international price of 4ADPA – Domestic industry had brought on record evidence of import prices of 4ADPA from Germany to India, but Authority before recording Final Findings, did not give opportunity to comment on acceptability / appropriateness of such evidence – Authority has not observed due process and violated principles of natural justice – Designated Authority therefore directed to make disclosure of international price of 4ADPA adopted by Authority as well as methodology used for fixation of normal value, export price and dumping margin – Domestic industry and other interested parties, shall also be allowed to participate in such post-decisional hearing – Application allowed.
2015 (9) TMI 714 - CESTAT MUMBAI

Import of designs and drawings - import in printed form as well as in CD - Benefit of exemption under serial number 271 of notification number 12/2012-CUS - Held that:- Appellants had in fact ordered for designs and drawings in hardcopy. Purchase orders placed clearly indicate for the supply of designs and drawings in hardcopy. When the goods were examined it was noticed that in addition to hardcopy, CD was found in the package. The said CD was opened on a laptop before the Customs authorities and it contained the designs and drawing in machine readable format - data on the CD imported is capable of manipulation as was demonstrated before us. We find that the design and drawings of the vessel on the CD can be manipulated in the computer to change the length and the breadth, repositioning of the machineries like engine, cabin, tank and a conclusion can be reached as to the correct design that needs to be presented to the clients and also for arriving at the conclusion as to how the ship or vessel will appear to a purchaser.
The facts and circumstances of that case clearly indicate that what was brought in by the appellant therein was "CD ROM", is an indicator that the CD containing the designs and drawings of engineering goods was on a "read only memory"; in computer language ROM, that is to say the information on the CD Can only be read and is non-manipulatable. The judgment and the ratio of the Apex Court in the case of LML Ltd. [2010 (9) TMI 12 - Supreme Court of India] was considering the peculiar facts of that case; while in the case in hand before us, it is undisputed that the information contained on the CD is manipulatable and interactive with the user.
Designs and drawings contained in the CD were correctly classifiable under Heading 85238020 and attracts 'nil' rate of duty as per Customs Tariff. The requirements of supplementary note to Chapter 8523 are therefore satisfied. Since designs and drawings in paper form as well as in the CD form attract nil rate of duty, the finding of the Commissioner about the applicability of section 19 of the Customs Act, 1962 becomes irrelevant since the rate of duty applicable to both goods even assuming them to be constituting a set, is 'nil' in view of the classification determined by us. The question whether a separate value could be attributed to the CD also becomes irrelevant in view of the classification under Heading 85238020 of the Tariff. - mpugned order is unsustainable and is liable to be set aside - Decided in favour of assessee.
2015 (9) TMI 713 - CESTAT MUMBAI

Import of Crude Palm Oil - Benefit of Exemption notification-21/2002-Cus – Drawing and testing of sample – Appellant, to claim benefit of exemption notification no. 21/2002-Cus, produced test-report of load port issued by internationally acclaimed independent test laboratory – Revenue also drew samples in presence of representative from appellant company and found that as per report of private test agency, carotenoid content was above 500 mg/kg, whereas Dy. Chief Chemist found carotenoid content to be lower than 500mg/kg – Hence, exemption was denied – Held that:- Chemical Examiners admitted that they were not aware with method of drawing of samples –Samples were stored in plastic bottles although Indian Standards required samples to be stored in steel containers – Neither samples were drawn not stored as per required standard and in absence of prescribed apparatus for testing, Commissioner erred in relying upon test report of Dy. Chief Chemist – Test reports are also vitiated due to delay in testing, ranging from 25 days to 82 days, placing reliance on technical literature referred to hereinabove, which provides that carotene is unstable characteristic, which changes with exposure to light, air and atmosphere – Therefore, appellants have fulfilled condition of Notification No. 21/2002 (as amended) and they are accordingly entitled to exemption – Appeals allowed in favour of importer-assessee – Decided in favour of Assesse.
2015 (9) TMI 671 - PUNJAB & HARYANA HIGH COURT

Conviction under Section 15 of the NDPS Act, 1985 - Held that:- mere nonjoining of the independent witness itself is not a ground to discard the prosecution case. The testimonies of the official witnesses also carries the same evidentiary value as that of any other witness - defence plea of the appellant that he has been falsely implicated at the instance of Leela Singh due to party faction has no substance, so there was no motive for the false implication of the accused-appellant by SI Budh Singh, the Investigating Officer of the case. - The recovery in this case has been effected from a bag which the appellant was carrying on his head. So, it is not the case where the recovery has been effected from the personal search of the accused. Hence, the provisions of Section 50 of the Act were not applicable in this case. - No doubt, the Investigating Officer of the case has not produced the case property before the Magistrate to comply with the provisions of Section 52-A of the Act but that lapse on the part of the Investigating Officer will also not vitiate the conviction or trial as the provisions of Section 52-A of the Act are directory and not mandatory in nature.
There is no material on record to establish that the accused had any criminal background or was involved in any other case under the provisions of the Act. There is also no material on record to show that he was a previous convict. The recovery effected from the appellant is non commercial quantity. He has already faced the agony of the proceedings/prosecution for the last more than 12 years. Thus, in these circumstances the appellant certainly deserves the reduction in sentence. He has been sentenced to undergo rigorous imprisonment for a period of four years and has been ordered to pay a fine of ₹ 40,000/- in default of payment of fine, he has been directed to to further undergo rigorous imprisonment for a period of one year. In my opinion, the rigorous imprisonment for two years and a fine of ₹ 20,000/- in default of payment of fine, to further undergo rigorous imprisonment for a period of four months will suffice the ends of justice - Decided partly in favour of appellant.
2015 (9) TMI 670 - DELHI HIGH COURT

Conviction u/s 21(c) of NDPS Act and under Section 14 of Foreigners Act - Non compliance with Section 50 - Held that:- Recovery of heroine was not effected from the person of the appellant but from the handbag carried by him, hence the prosecution was not under an obligation to serve a notice under Section 50 of NDPS Act on the accused. - PW4/A under Section 50 of NDPS Act shows that the accused has been duly informed about his legal right to get his search conducted before a Gazetted Officer or Magistrate and in the reply which is in his own handwriting and duly signed by him, he has refused to get his search conducted in the presence of a Gazetted Officer or Magistrate. - it can be safely held that compliance of Section 50 NDPS Act has been done by the raiding party before conducting the search. So on this score, the appellant cannot avail any benefit.
Link witnesses examined by the prosecution as well as the FSL report duly proved that the samples which were taken were sent to FSL, were examined there and further that at the time of examination, the seals were found intact and tallied with the specimen seal. - Thus, from the evidence adduced by the prosecution, the recovery of heroine weighing 1400 grams with purity of 80.1 percent was proved beyond any reasonable doubt. The arrest of the appellant, who is a Nigerian national, in a case under NDPS Act was duly informed to the concerned Embassy through proper channel. It has also been proved by the prosecution that visa of the appellant had already expired much prior to his arrest in this case. Thus the conclusion arrived at by learned Special Judge (NDPS) convicting the appellant under Section 21(c) of NDPS Act and under Section 14 of Foreigners Act is based on sound reasoning and proper appreciation of the testimony of prosecution witnesses. The impugned order cannot be termed as perverse or suffering from any illegality as all the necessary requirements have been duly complied with by the police in this case and the recovery of contraband i.e. heroine weighing 1400 grams which is the commercial quantity (purity level 80.1 percent) stands duly proved. - Decided against the petitioner.
2015 (9) TMI 669 - DELHI HIGH COURT

Release of bank guarantee - Provisional release of the orders of cars/ vehicles seized under section 110 of the Customs Act - Held that:- appropriate orders for the release of bank guarantee and also consequential orders applying the law declared in Jatin Ahuja v. Union of India and Ors. (2012 (12) TMI 675 - DELHI HIGH COURT) would be issued in tune with section 110 of the Customs Act within a week. The statement of the customs authorities and the Dy. Commissioner is hereby recorded. The respondents are accordingly directed to release the bank guarantee and also issue consequential order as assured within two weeks - Decided in favour of assessee.
2015 (9) TMI 668 - ALLAHABAD HIGH COURT

Validity of impugned order - Dismissal of appeal on technical ground - Held that:- Review committee assigned reasons while directing the Department to prefer an appeal. Learned Judicial Member has not considered the ground mentioned by the Committee while recommending for filing of the appeals. On a technical ground of the appeals were dismissed. We are of the view, that since the report of the Committee was available with the Tribunal, it should have looked into the grounds on the basis of which the Committee had directed filing of appeals and could not have dismissed the appeal on a technical ground that one of the member did not put the date below signature. Such technical defect should have been avoided. - Matter remanded back.
2015 (9) TMI 667 - BOMBAY HIGH COURT

Entitlement of benefit of exports made by its sister concern – Grant of EODC – Encashment of bank guarantee – Present Court held that petitioners were entitled to benefit of exports made by its sister concern – Though petitioners in pursuance to order approached respondent-4 for grant of EODC, same has not yet been issued by respondent No. 4 to the petitioners – Meantime, respondent-1 to 3 have addressed communication to Respondent-6 for encashment of one of bank guarantees submitted by petitioners as petitioners have not submitted Export Obligation Discharge Certificate – Held that:- Respondent-2 and 3 and respondent-4 are all organs of Union of India – If one organ of Union of India does not comply with orders passed by this Court, other organs of Union of India cannot take benefit of same and act prejudicial to interest of party, though party is entitled to benefit as per orders passed by present Court – Respondent-1 has not yet complied with directions issued by present Court and on other hand, respondent-2 and 3 are trying to take benefit of non-compliance by respondent-4 of order – In view of matter, petitioners have made out case for grant of ad-interim relief – Decided in favour of petitioner.
2015 (9) TMI 666 - SC ORDER

Levy of education cess and additional duty when basic customs duty is exempt - duty-free imports were being made under DEPB scheme - Benefit of Exemption Notification No. 32/2005-Cus. - Supreme Court after condoning the delay found no ground to interfere with the appeal file dby the Revenue against the deciison of High Court [2014 (1) TMI 169 - GUJARAT HIGH COURT] wherein High court held that Merely because the conditions provided for adjustment of credit in the DEPB scrips, it cannot be stated that either there was no exemption from payment of customs duty or that the Central Government was levying and collecting customs duty from the importers in form of adjustment of credit in the DEPB scrips. Thus through such adjustments on the DEPB scrips at the time of further imports, customs duty component is sought to be neutralised.
2015 (9) TMI 619 - CALCUTTA HIGH COURT

Dismissal of Appeal – Suspension of Identity card – Applicant changes finding recorder in impugned order that as per provisions of Custom House Agents License Regulations, 2004, only appeal lies against order passed under Regulation 20 or Regulation 22 and no appeal is pending before Tribunal against suspension of Identity Card, hence appeal was dismissed – Held that:- Admittedly both punishments, namely imposition of fine and suspension of Identity Card were challenged in appeal – However impugned order recording dismissal of appeal only on ground of non-pendency of appeal before tribunal in regards to suspension of identity card was incorrect – Therefore, dismissal of appeal was product of non-application of mind – Customs authority to pay compensation to applicant – Matter remanded to Tribunal to consider appeal on merit – Application disposed of.
2015 (9) TMI 618 - ALLAHABAD HIGH COURT

Validity of service of Notice – Notices send via speed post – Condonation of Delay – Due to non-existence of All Industry Rate for riding breeches with artificial leather cloths, petitioner had made six applications for fixation of brand rate under Rule 6(1)(a) of Customs and Central Excise Duties and Service Tax Drawback Rules 1995 – Application was rejected on ground of two days delay – Revision was filed however it was informed that it had been filed beyond time, when calculated from order dated 27.04.2011 – Petitioner alleged that he had no knowledge of order dated 27.04.2011 – Held that:- Respondents in affidavit averted that notice of order dated 27.04.2011 was dispatched through speed post – Rule 153 of Customs Act stipulated sending of notices or summons by registered post only –No evidence also to show that it was sent to person to whom it was intended or to his agent – Therefore, department failed to comply with requirements of Section 153 of Act – Even otherwise, delay of two days cannot be said to be fatal – Impugned orders set aside – Delay condoned – Respondent-authorities directed to hear and decide appeal of petitioner on merits – Petition disposed of.
2015 (9) TMI 617 - ANDHRA PRADESH HIGH COURT

Valuation - Suppression of value of goods - Inclusion of separate charge for design, engineering fee - Confiscation of goods - Redemption fine and penalty - Tribunal vide impugned order reported in [2014 (11) TMI 612 - CESTAT BANGALORE] set aside confiscation of goods, redemption fines and penalty - Present court is of opinion that certified copy of impugned order, which is annexed to appeal was underlined with red ink and also some endorsement was made by Officer with words “urgent AO/Legal” - Document, which is supposed to be filed in Court, must not be touched by anyone else and because of this reason, this appeal has to be dismissed.
2015 (9) TMI 616 - ANDHRA PRADESH HIGH COURT

Denial of refund claim - Overvaluation of goods - Voluntary payment of duty - Tribunal vide impugned order reported in 2014 (10) TMI 506 - CESTAT BANGALORE held that refund sanctioned by original authority was in accordance with law and there was no need to interfere with same by filing appeal, thereby dismissed appeal of revenue - High court after hearing counsel for parties found that duty was paid by assessee under protest and ultimately it was found that such duty was not leviable - Therefore, ultimately necessary sanction was accorded for refund - In view of said findings, nothing was left for adjudication in this appeal- Appeal dismissed.
2015 (9) TMI 615 - GOVERNMENT OF INDIA

Drawback Claim under S.no. 48026210 – export of plain paper cut in size - Quality of goods – Respondents claimed drawback under Sl. No. 48026210 @ 5.5% – Lower authority classified export goods under drawback S. No. 4802 0099 and allowed eligible drawback of 1% and not 5.5% as claimed by respondents – Commissioner(A) allowed drawback @ 5.5%, in favour respondent – Held that:- original authority held that goods are not of prime quality and hence, classifiable under drawback S. 48020099 @ 1% only – Benefit of drawback @ 5.5% is available to those sheets cut to sizes only from prime quality paper – CPPRI to whom samples were sent for testing, neither confirmed that goods were prime or otherwise – Nature of finished goods as ‘prime’ or otherwise is decided on basis of physical, chemical and other critical parameters of finished goods and not by nature of raw material used for manufacture of such finished goods – There are no categorical evidences brought on record that impugned goods are not prime – Report of CPPRI is inconclusive – Further, onus was on department and not on respondent, to prove nature of goods – Nothing substantial could be brought on record to prove that goods were other than prime in nature – Therefore, respondents are rightly eligible for drawback @ 5.5% – Decided against revenue.
2015 (9) TMI 614 - CESTAT MUMBAI

Classification of goods - import of optical fibre cables (OFC) – Tariff entry CTH9001 and CTH8544 – Confiscation – Vide impugned order, adjudicating authority classified optical fibre cables imported by appellant under CTH 9001 and denied benefit of notification No. 24/2005-Cus, confirmed differential duty demand and confiscated goods – Whether goods were to be classified under CTH 8544 or under CTH 9001 of Customs Tariff – Whether confiscation of goods and imposition of penalty was justified – Held that:- as observed in case of ALCATEL INDIA LTD [2006 (2) TMI 196 - AUTHORITY FOR ADVANCE RULINGS] Optical fibre cables fall under both Headings 85.44 and 90.01, if optical fibre cable was made up of individually sheathed fibre, it fall under Heading 85.44 and all other optical fibre cables fall under Heading 90.01 – In current case, Optical fibre cables were not “made up of individually sheathed fibres” which was basic criterion to be fulfilled by any optical fibre cable to merit classification under tariff heading 8544 – Since tariff heading 9001 specifically covers “optical fibre cables other than those of heading 8544, products in question would accordingly fall squarely under heading 9001 – Thus, correct classification of OFCs imported by appellant was under CTH 9001 Customs Tariff – Therefore impugned order in respect of classification of goods, upheld.
No evidence to prove that appellant misdeclared description of goods under import with intent to evade payment of duty – Goods were imported by appellant over long period of time and they have been classifying same under CTH 8544 all along – Goods were also examined or ought to have been examined by Customs at time of importation – Therefore, laying claim to some exemption, was matter of belief of assessee and does not amount to misdeclaration warranting confiscation – Also show cause notice for demand of differential duty was hit by time-bar – Thus, entire differential duty demand with interest, confiscation of goods, imposition of fine and penalties were not sustainable and hereby set aside – Decided in favour of Assesse.
2015 (9) TMI 564 - BOMBAY HIGH COURT

Entitlement to the Duty Credit scrip under the Served From India Scheme - Denial on the ground that Petitioner is promoting 'Thyssenkrupp' brand which is not an Indian brand and that Petitioner is not an Indian service provider - Held that:- persons providing a service from India to any other country, from India to service consumer of any other country in India, supply of a service from India through commercial or physical presence in territory of any other country, supply of a service in India relating to exports paid in free foreign exchange or in Indian rupees as having being paid for in free foreign exchange by RBI are all referred to. It is to promote a unique 'Served from India brand instantly recognized and respected world over that the definition has been worded accordingly. If the main object and purpose sought to be achieved, on which emphasis is placed is noted, then, only as a corollary or analogy to the main object and to accelerate growth of exports from India, that nationality of the share holders comprising of the Petitioner company has been referred to. That is not held to be determinative for availing benefits of 'Served from India Scheme.' Rather the definition and reading thereof would indicate how it is worded so as to achieve the object.
'Served from India Scheme' is a policy and that is set out in Chapter 3 of Foreign Trade Policy. The application for grant of Duty Credit Scrip has to be made to whom, with what details and the forms which are required to be filled in for evaluation of duty credit Scrip entitlement. Non-entitling remittances and services for SFIS scheme are set out in paragraph 3.6.1. That is how the criteria is evolved and provided for. We are of the opinion that once the object and purpose of the Foreign Trade Act, the relevant paras of the FTP are placed in the forefront and duly noted, then, a Indian Brand projecting a Unique Indian Identity and commanding respect and recognition world over is sought to be created. If that is what is held and concluded, then, that it is a imminently possible and reasonable view.
It is only when they fulfill the criteria and the provisions of the nature carved out that they would be entitled to the benefits. It is not possible for us to agree with the view recorded in paragraphs 12 to 16 of the judgment. The learned Judge has construed the expression “Indian Service Providers' narrowly. He has not construed it in the backdrop of the policy measures and by interpreting them in a holistic manner. The learned Judge, once again, with great respect reads the paragraphs in the policy in isolation. We are not persuaded to agree with the views of the Delhi High Court and the challenge cannot be construed to be arising in the backdrop of section 5 of the Foreign Trade Act. There is no other view and which has been brought to our notice.
Petitioner apprehends that recoveries would be effected for the past several years from 2005-06 by forfeiting prior incentives. If anything is recoverable in relation to prior policies and earlier to 2009-14 FTP that is surely something which cannot be taken away by making a adjudication order in 2015. We would therefore, hold that it will not be permissible for the authorities adjudicating the claims or issues arising therefrom to recover from the Petitioner in Writ Petition No.1755 of 2014 and all petitioners the SFIS benefits granted till 2007-08. They are clearly falling within earlier policy framework and to that extent all petitions succeed. - Petition dispose of.
2015 (9) TMI 563 - DELHI HIGH COURT

Imposition of Pre-deposit Condition for hearing – Onerous and excessive – Appellant contended that Tribunal’s condition for hearing of pre-deposit (to extent of 20% of penalty amount), is onerous and excessive – Held that:- no dispute that merely week after, appeal was filed, notification requiring pre-deposit fixed to tune of 7.5% of determined duty and penalty liability came into force – In light of this fact and further circumstance that director made admissions with respect to forgery, Court of opinion that interest of justice would be served if pre-deposit amount is reduced to half instead of 20% – Pre-deposit condition shall be deemed to be satisfied if appellant deposits 10% of penalty determined as against it within six weeks – Impugned order of CESTAT modified – Decided partially in favour of Assesse.
2015 (9) TMI 562 - ANDHRA PRADESH HIGH COURT

Import of used/Second hand Machinery - Mis-declaration/under-valuation - Aggrieved by the order of tribunal reported in 2003 (6) TMI 140 - CESTAT, KOLKATA, Revenue had filed current C.E.R.C.- While relying upon the observation made, on current case, in Commissioner Versus East India Commercial Co. Ltd.[2015 (1) TMI 753 - ANDHRA PRADESH HIGH COURT] that age of machinery was more than 10 years old – Conclusion arrived at by Commissioner was not fully supported by evidence inasmuch as even as per reports, it was only in respect of 2 machineries and 42 accessories, year of manufacture was found to be more than 10 years old while in respect of 277 machineries and electrical/accessories of 237 machines there was no material or proof to support claim of department that these machines were more than 10 years old – Hence report cannot be made applicable to machines/accessories on which there was no report – Therefore tribunal was justified in setting aside confiscation order - There was no order necessary in current case.
2015 (9) TMI 561 - MADRAS HIGH COURT

improper importation of goods - Confiscation of goods - stay of recoveries - Appeals filed against order confiscating goods and imposing penalty upon appellants were upheld by tribunal, however Demand of duty of ₹ 48,03,968/- and levy of interest were set aside, Penalty imposed under Section 114A were set aside, but penalty of 50% duty demanded was sustainable under Section 112 - Confiscation and imposition of fine was also set aside - Appeal against said order of tribunal was filed by appellant claiming stay of recovery of penalties - High court granted interim stay of recovery of penalty for a period of six months.
2015 (9) TMI 513 - MADRAS HIGH COURT

Monetary limit – Redemption fines and penalty being less than monetary limit – Confiscation of goods and consequent imposition of redemption fine and penalty was imposed by adjudicating authority – Tribunal found that confiscation ordered under Section 111-D of Customs Act is not maintainable and as result, allowed appeal filed by assesse – Held that:- seen from records that assessing officer initially imposed ₹ 3,00,000/- as redemption fine and ₹ 70,000/- as penalty, which, on appeal, was subsequently reduced by Commissioner and on further appeal by assessee, Tribunal set aside order of Commissioner – Therefore, very clear from records that monetary limit having been fixed at ₹ 2 Lakhs, even as per order of Commissioner (Appeals), redemption fine and penalty being less than ₹ 2 Lakhs, appeal is not maintainable – Therefore, Court not inclined to entertain appeal – Appeal dismissed – Decided against revenue.