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Showing 121 to 140 of 40536 Records
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2025 (6) TMI 1022
Levy of penalty on Custums Broker - Mis-declaration and mis-classification of imported goods - Appellant knowingly or intentionally abetted the evasion of ADD by classifying the goods under an incorrect tariff heading or not - HELD THAT:- There are nothing in the statement recorded, or the order in original by which it can be said that the Appellant was in any way involved by the act of omission or commission leading to the confiscation of the imported goods or evasion of anti dumping duty. On the contrary it is an admitted fact that the Appellant had rightly advised about the correct classification of goods under the tariff heading on which the anti dumping duty was leviable. It is also not in dispute that the check list printed by him carried the correct classification of the imported goods.
Appellant has not filed or caused to file any manipulated document which was found false in material aspects knowingly and intentionally. It is also not the case that the finding recorded in the order in original in respect of tweaking the invoice and country of origin certificate, is based on any material investigation, but is only a presumption on the basis of the sale confirmation document. In any case the Appellant was in no responsible for any such tweaking if any.
The only failure for which the Appellant can be held responsible is that he failed to verify the antecedents of the importer physically. However even if it is admitted that such failure had occurred, I do not find any reason why penalty for these failure penalties could have been imposed upon him under Section 114AA or Section 112 (a) of the Customs Act, 1962. These failures are the failures as per the provisions of Custom Broker Licensing Regulations, 2018, for which penalties and action has been provided under the said regulations.
In case of VAZ Forwarding Ltd. [2010 (12) TMI 503 - GUJARAT HIGH COURT] Hon’ble Gujarat High Court held that 'it is apparent that the Tribunal after appreciating the evidence on record has found that there was no direct evidence on record to indicate that the respondent was aware of the fact that the advance licences were bogus and forged. The Tribunal has also found as a matter of fact that though there was some contravention on the part of the assessee in following the procedure envisaged under the Customs House Licensing Rules, there was no evidence on record to show any knowledge on the part of the respondent that the advance licences in question were forged. It is in the light of the aforesaid findings recorded by the Tribunal that the Tribunal has held that there was no justifiable reason to impose the penalties on the respondent.'
Conclusion - In the absence of direct evidence showing knowledge or intention on the part of the Customs Broker to evade duty, penalties under Sections 112 and 114AA are not justified.
There are no merits in the impugned order - appeal allowed.
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2025 (6) TMI 1021
Condonation of delay in filing appeal - appeals preferred beyond the prescribed time period of 60 days - Enhancement of value in the Bills of Entry (B/Es) - HELD THAT:- In view of the fact that the appellants had specifically prayed for condoning the delay in late filing of appeal within the condonable period of 90 days from the date of finalization of the B/Es, the same should have been considered by the learned Commissioner (Appeals). However, it is found that he has not assigned any reason in support of either condoning the delay or non-consideration of the condonation of delay application filed by the appellants. It is also an admitted fact on record that the office of the Commissioner (Appeals) has not issued any defect memo to the appellants in pointing out the mistake that there is a delay in filing the appeal and they should have filed the delay condonation application for condoning the same. Therefore, the rejection of appeal by the learned Commissioner (Appeals) on the ground of time bar aspect cannot be sustained for judicial scrutiny and therefore, the impugned order rejecting 31 numbers of appeals is liable to be set aside.
The appellants had self-assessed the B/Es in terms of Section 17(1) ibid. The self-assessment done by the appellants was not accepted by the Department and accordingly, they had proceeded against the appellants for re-determination of value by way of re-assessment as provided under sub-section (4) of Section 17 ibid. Re-assessment of the B/Es is a choice of the proper officer - Since in the present case, the proper officer has felt that the self assessment done by the appellants-importer is not correct, then under sub-section (5) of Section 17 ibid, he has to mandatorily pass a speaking order in explaining the reason for changing the stand in the assessment done in the B/Es. However, the proper officer has not complied with the requirement of sub-section (5) of Section 17 ibid. Therefore, under such circumstances, the learned Commissioner (Appeals) has remanded the matter back to the proper officer for passing of the speaking order - there are no infirmity in the impugned order, insofar as it has remanded the matter back to the proper officer of customs for passing of the speaking order under sub-section (5) of Section 17 ibid.
Conclusion - Considering the fact that sub-section (5) of Section 17 ibid has provided the time limit of 15 days for passing of the speaking order, the proper officer of customs is directed to comply with the process of passing of the speaking order within a period of 15 days from the date of receipt of this order.
Appeal disposed off.
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2025 (6) TMI 1020
Denial of the benefit of N/N. 25/2005-Cus. dated 01.03.2005 - Uninterrupted Power Supply (UPS) - denial of benefit of such notification on the basis of the CTH 8504 40, holding that the product in question shall not be eligible for the benefit of exemption on the ground that the usage of the said goods are not specific to any particular Automatic Data Processing (ADP) machine - HELD THAT:- On perusal of the case records, more specifically the adjudication order dated 30.04.2024, it is found that the original authority had referred to the Co-ordinate Bench decision rendered in the case of Cyber Power System India Vs. Commissioner of Customs [2024 (2) TMI 875 - CESTAT KOLKATA] relied upon by the appellants. However, he had not recorded any findings on such decided case on the ground that the outcome of the decision passed by the Coordinate Bench is not known to the department. It is evident from such observation made by the original authority and upheld by the learned Commissioner (Appeals) that the issue arising out of the present dispute has already been dealt with in favour of the importer in the case of Cyber Power System India. Thus, different interpretation cannot be placed to decide the present appeals differently.
Conclusion - UPS devices are entitled to the customs duty exemption under the relevant notification. The interpretation requiring exclusive use for data processing equipment was rejected as unsupported by the notification's language and established legal principles.
There are no merits in the impugned order passed by the learned Commissioner (Appeals). Accordingly, the impugned order is set aside and the appeals are allowed in favour of the appellants.
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2025 (6) TMI 935
Rejection of application for refund of Cash Compensatory Scheme (CCS) - rejection primarily on the ground that 'Castor Oil First Special Grade' cannot be equated as 'Castor Oil Medicinal' for grant of benefit of CCS - whether the goods 'Castor Oil Medicinal' is different than the 'Castor Oil First Special' post of the introduction of the new test i.e. TLC? - HELD THAT:- This issue arose before the Co-ordinate Bench of this Court in the case of this very Petitioner in Writ Petition No. 871 of 1994 [2009 (9) TMI 133 - BOMBAY HIGH COURT]. Though Writ Petition No. 871 of 1994 was in regard to duty drawback rules, the controversy which was posed for consideration of the Co-ordinate Bench was identical to the question raised in the present Writ Petition.
There is also no dispute that the contracts under which the exports were made by the Petitioner for the period under consideration were executed prior to June 1989. The Petitioner is justified in relying upon the various decisions - reliance can be placed in Union of India vs Cosmique International [1994 (2) TMI 180 - DELHI HIGH COURT] and Vibgyor Textile International vs Union of India [1984 (1) TMI 212 - HIGH COURT BOMBAY] wherein the Co-ordinate Bench of this Court and other high courts have taken the view that contracts executed prior to the cutoff day would not be governed by the subsequent change in the scheme granting the benefit. In our view, the ratio of this decision squarely applies to the facts of the present case, since in the present case also, there is no dispute that the exports made for the period under consideration were in respect of contracts executed prior to 23 June 1989 Therefore, even on this count, the rejection of the benefit of cash compensatory support scheme by the respondents is not justified. This view is also supported by the Circular dated 8 May 1991 which lays emphasis on the date of execution of the contracts and not the date of exports.
The Circular dated 31 March 1989 by which rate of 5% of FOB as CCS was granted applied for the period 1 April 1989 to March 1992 and as per the said Circular, the benefit of CCS was granted to the Petitioner on export of goods on the premise that the same constitutes of ‘Castor Oil Medicinal’. Since the said Circular applied for the period 1989 to 1992, the Respondents were not justified in denying the benefit of CCS for the period 22 June 1989 to 8 May 1991 merely on the basis of change of test to be conducted.
Conclusion - The respondents are not justified in rejecting the application of the Petitioner denying the benefit of Cash Compensatory Support Scheme merely on the ground that 'Castor Oil First Special' is not the same as 'Castor Oil Medicinal' after the introduction of the new test i.e. the TLC test.
The Respondents are directed to pay to the Petitioner the Cash assistance of Rs. 4,33,75,866/- within the period of 8 weeks from the date of uploading of the present order. If this is not done, then this amount shall carry interest at 6 per cent per annum, commencing from 1.9.2025 until effective payment - petition allowed.
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2025 (6) TMI 934
Classification of imported goods - Rubber Process Oil (RPO) - classifiable under Customs Tariff Item (CTI) 2707 9900 or under CTI 2713 9000? - applicability of Sr. No. 130 of N/N.12/2012-Customs dated 17.03.2012 and Sr. No. 147 of N/N. 50/2017-Customs dated 30.06.2017 - demand of differential duty u/s 28(4) of the Customs Act, 1962 - confiscation - redemption fine - penalty - disputed period involved in this case is from 19.01.2017 to 09.08.2019.
HELD THAT:- On the issue of classification of the impugned goods, other than those covered in the above B/Es, the learned adjudicating authority had come to the conclusion that the goods are classifiable under CTI 2713 9000 on the basis of the following findings as recorded in the impugned order.
It is found that the procedure prescribed in Circular No.30/2017Customs dated 18.07.2017 for re-testing as a measure of trade facilitation, either on production of in-house test reports submitted by the appellants in support of the classification claimed by them or for denying their claim have not been followed by the departmental authorities. Further, there is no justification shown by the adjudicating authority for out right rejection of the in-house test reports submitted by the appellants where the aromatic constituents were more than 50%, by simply stating that it is an afterthought. In an illustrative case of B/E No. 3456252 dated 30.05.2019 covering import of RPO at JNCH, Nhava Sheva port, the appellants had submitted the chemical analysis report showing aromatic constituents as % of mass of 72.58%, the extract of which is placed below. However, such factual detail which is crucial in determination of the classification of impugned goods has not been examined in the impugned order.
There are no merits in such findings recorded by the adjudicating authority for classification of the imported goods under CTI 27139000 in the rest of the B/Es.
Extended period of limitation - whether the appellants have made misleading declarations, misclassified the imported goods and claimed ineligible exemption benefits? - HELD THAT:- From the facts on record, it clearly transpires that in respect of all the imported goods, the appellants have filed the B/E providing the description of the goods along with supporting documents such as suppliers invoice etc., and have claimed the customs tariff classification of the goods as per their understanding and also claimed concessional rate of custom duty by availing the notification benefits. The knowledge of the classification of imported goods in the earlier cases of imports under the business entity M/s Sah Petroleums Limited and the Tribunal’s order dated 26.04.2017 in that case has also been shown as the ground for deliberate act of misdeclaration.
It is also a fact on record, that the adjudicating authority on re-assessment of finally assessed B/Es had confirmed the differential duty by invoking the extended period of limitation under Section 18(4) ibid. In view of the above factual position and as there is no specific grounds or evidences placed on record by the investigation in the SCN dated 23.02.2021 and that there is no specific findings recorded in the impugned order proving the ingredients of mis-declaration or suppression of facts with an intention to evade duty, the invocation of extended period in the present case does not stand the scrutiny of law.
Since, the demand of duty under Section 18 ibid on re-assessment of provisionally assessed B/Es did not place on record any specific chemical test report(s) as evidence in support of the fact that non-aromatic constituents exceeds that of aromatic constituents and further had outrightly rejected the in-house test reports produced by the appellants, the basis for its re-assessment under CTI 2713 9000 and consequent demand of differential duty under Section 18 ibid, in our considered opinion does not stand the scrutiny of law.
On the identical issues of classification of Rubber Process Oil, demand of duty by invoking extended period, we find that the Coordinate Bench of the Tribunal in the case of Sah Petroleums Limited Vs. Commissioner of Customs (Import), JNCH, Nhava Sheva [2017 (5) TMI 1281 - CESTAT MUMBAI] have examined the issue of classification of Rubber Process Oil (RPO) in identical set of facts and have held that raw RPO merit classification under Chapter Heading 2713 90.
The impugned order dated 07.12.2024 confirming the adjudged demands by invoking the extended period of limitation under Section 28(4) of the Customs Act, 1962 and consequent confiscation of imported goods, imposition of redemption fine, penalties on the appellants is not legally sustainable. Since, the demand of duty under Section 18 ibid on re-assessment of provisionally assessed B/Es did not place on record any specific chemical test report(s) as evidence in support of the nonaromatic constituents exceeding that of aromatic constituents and further had outrightly rejected the in-house test reports produced by the appellants, the demands confirmed in this regard and the demand of duty which could be computed under Section 28(10B) ibid also does not stand the scrutiny of law.
The impugned order dated 07.12.2024 confirming the adjudged demands by invoking the extended period of limitation under Section 28(4) of the Customs Act, 1962 and consequent confiscation of imported goods, imposition of redemption fine, penalties on the appellants is not legally sustainable. Since, the demand of duty under Section 18 ibid on re-assessment of provisionally assessed B/Es did not place on record any specific chemical test report(s) as evidence in support of the nonaromatic constituents exceeding that of aromatic constituents and further had outrightly rejected the in-house test reports produced by the appellants, the demands confirmed in this regard and the demand of duty which could be computed under Section 28(10B) ibid also does not stand the scrutiny of law.
Conclusion - The impugned order confirming differential duty under extended period, confiscation, redemption fine, and penalties is set aside to the extent it is unsustainable. The classification of imported goods is to be determined based on the relative aromatic content, with differential duty demands upheld where appellants accepted classification under CTI 2713 9000.
Appeal allowed in part.
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2025 (6) TMI 933
Re-determination of the transaction value of imported goods under the Customs Act, 1962 - Steam coal - rejection of declared transaction value - confiscation - penalty - HELD THAT:- The declared value, representing the price in transaction, was proposed to be rejected by recourse to rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and, in its stead, an alternative transaction value of the imported goods, which was nothing but the ascertained price at an earlier stage in the ‘invoice trail’, was proposed as legally tenable following which the injunction in rule 11 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 was proposed as sufficing for confiscation and other detriments. The substituted value was assigned credibility coefficient from the impugned consignments having been ‘exported to India’ directly from Indonesia and, therefore, comparatively more in conformity with section 14 of Customs Act, 1962.
In so doing, it would appear that rule 3 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 was denuded of its true significance without care for its relevance stemming from the totality of section 14 of Customs Act, 1962 affording inclusion of value of services as well as administration of the antidote for transaction between related persons in which the influence of relationship ‘toxified’ contracted price.
The present controversy starts by positing belief that the transactional engagement was no reflection of the qualifiers for acceptability in rule 3(1) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 mandating not only recourse to rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 but also discard of ‘declared value’ which should have had, in terms of rule 3(4) therein, consequence of recourse to one of the ‘surrogate values’ which is absent. Instead, a truncation of the declared price, or ‘actual value’, by reason of non-conformity with description in section 14 of Customs Act, 1962 for ‘transaction value’, was arrived at and by matching the physical movement of impugned goods with invoice representing dispatch from Indonesia by seller in Indonesia as preferable over invoice representing dispatch from Indonesia by seller in Hong Kong. Neither the notice nor the grounds of appeal demonstrate any part of the valuation scheme which accords acceptance of this thesis for ‘substitution’ of invoice.
Clearly, an invoice raised on a buyer, shamed as ‘sham’ inclusion in the notice, outside India, even if concerning the impugned goods which has not been established by provenanced documentation, is not evidence of price between seller and buyer in India and, hence, not conforming either to section 14 of Customs Act, 1962 or to rule 3(1) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007.
The scheme of valuation does not stand in support of the manner in which the value has been sought to be substituted in the notice. The facts evinced are not sufficient to tear down the weave of commercial engagement and for recourse, thereby, to discard of declared value. The mark-up is not of unreasonable magnitude as to suggest that transaction should be penalized. Even without pressing into service the law, as judicially determined, on jurisdictional competence and on evidentiary value of documents for visiting penalties on the respondents under Customs Act, 1962, and as found in the impugned order too, the facts suffice to erase the proposals in the notice.
Conclusion - i) The adjudicating authority was correct in rejecting the proposal to discard the declared transaction value and substitute it with an alternative value derived from earlier stages of the supply chain without following the statutory valuation sequence. ii) The proposals for confiscation and penalties under the Customs Act, 1962, were legally untenable in the absence of duty evasion or misdeclaration affecting assessment. iii) The Committee of Chief Commissioners of Customs exceeded its jurisdiction by attempting to revisit and overturn settled Tribunal precedents and judicial determinations.
There are no merits in the appeal - appeal dismissed.
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2025 (6) TMI 872
Condonation of delay of 319 days in filing the Civil Appeal - Classification of imported IXM MYCRO FP3 (Bio-metric Access Control System) - to be classiifed under the heading of 8471 6090 or under heading 8543 7099? - it was held by CESTAT that 'The imported IXM MYCRO FP3 (Bio-metric Access Control System) merits classification under the heading of 8471 6090.'
HELD THAT:- No case is made out to condone the delay of 319 days in filing the Civil Appeal. The Civil Appeal is accordingly dismissed on the ground of delay.
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2025 (6) TMI 871
Classification of goods namely, “G Type Tempered Glass Lid” - Tariff Heading 7013 OR 7010 - it was held by CESTAT that 'Undisputedly the lids made of glass is specifically provided in heading No. 7010 and the same is not provided in 7013' - HELD THAT:- There are no good reason to interfere with the common impugned order dated 06-11-2024 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad in Customs Appeal Nos.10802/2023 and 10803/2023 respectively.
The Civil Appeals are, accordingly, dismissed.
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2025 (6) TMI 870
Maintainability of petition - availability of alternative remedy - proper officer to issue SCN - HELD THAT:- The Hon’ble Supreme Court in CANON INDIA PVT. LTD. [2024 (11) TMI 391 - SUPREME COURT (LB)], allowing the Review Petition, held that DRI Officer is a proper officer for issuing show cause notice. The Supreme Court also upheld the Validation Act by which amendment, the DRI officers were empowered to issue show cause notice. However, the Hon’ble Supreme Court granted the parties time to file a reply or appeal as the case may be and to dispose of the show cause notice or the appeal against the order within the timelines to be specified.
There is no reason to adopt any different course of action in these Petitions even though Mr Balani, the learned counsel for the Petitioners, now contends that in addition to the submissions based on M/s. Canon Indian Pvt. Ltd. the Petitioners have several other grounds based upon which this Court ought to exercise its extraordinary jurisdiction rather than relegate the Petitioners to the alternate statutory remedy available under the statute.
All these matters can as well be urged before the Appellate Authority. However, merely because the statute provides for a pre-deposit of some portion of the disputed amount, we cannot say that the statutory alternate remedy is not efficacious. This Court does not exercise its discretion to bypass alternative remedies in a manner that unduly undermines the statutory regime.
Conclusion - i) It is not in dispute that the issue involved in the present Petitions would also stand covered by the decision of the Supreme Court in the case of Canon India Pvt. Ltd., which is the subject matter of pending review proceedings in the Supreme Court. ii) DRI Officer is a proper officer for issuing show cause notice.
These Petitions are not entertained because the Petitioners have an alternate and efficacious remedy of appeal to question the orders impugned in these Petitions - petition disposed off.
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2025 (6) TMI 869
Confiscation of Gold - levy of penalty - Smuggling of yellow metal biscuits, believed to be gold of foreign origin - restricted or prohibited item - violation of Section 110(2) of the Customs Act, 1962 inasmuch as the Show Cause Notice was not issued within six months from the date of seizure of the gold - burden to prove u/s 123 of the Customs Act, 1962 - HELD THAT:- It is a fact on record that the gold was recovered by the personnel of the 24th Assam Rifles at Khudengthabi on 21.03.2015 and subsequently handed over to the Customs Officers on 22.03.2015 for further investigation. During the course of such investigation, it was found that Shri Moirangthem Ranjan Meitei, had brought the gold in question by concealing the said twenty six pieces of gold biscuits in the fuel tank of the Tata Indica car and had no documentary evidence for legal purchase of the same. Gold is a notified item under Section 123 of the Customs Act, 1962 and thus, it is the responsibility of such person in whose procession the foreign marked gold was found, to produce documents for licit purchase of the gold. As Shri Moirangthem Ranjan Meitei was not having any documents regarding legal procurement of the gold in question at the time of its seizure, the ld. adjudicating authority has rightly confiscated the gold in question - the impugned order confiscating the said gold under Section 111(b) and (d) of the Customs Act, 1962 upheld.
Regarding the claim of Smt. Hanjabam Memtombi Devi (appellant) on the ownership of the said gold, it is observed that the gold in question was seized by the 24th Assam Rifles, Khudengthabi on 21.03.2015, but Smt. Hanjabam Memtombi Devi had not made any claim regarding ownership of the gold, till 03.08.2015. It is only on 03.08.2015 that she claimed that she had actually ordered the said 26 pieces of gold biscuits from one ‘Ma Win Mar’ of Myanmar. This claim of the appellant is not supported by any documentary evidence. Smt. Hanjabam Memtombi Devi has merely submitted that she had intended to bring the gold and had requested Ma Win Mar of Myanmar to arrange the 26 pieces of gold biscuits for her.
The decision of the Hon’ble Madras High Court in the case of T. Elavarasan v. Commissioner of Customs (Airport), Chennai &ors. [2011 (2) TMI 217 - MADRAS HIGH COURT] examined, which has been relied on by the appellant in support of her claim. On perusal of the said order, it is observed that in the said case before the Hon’ble High Court, the petitioner had been residing at Singapore for more than six months and as such, had claimed eligibility to bring up to 10 kilograms of gold, which is totally different from the facts of the present case. Therefore, being distinguishable on facts, the said decision relied upon by the appellant is not relevant to this case.
Penalty imposed on the appellant under Section 112(b)(i) of the Customs Act, 1962 - HELD THAT:- The investigation has not brought in any evidence to establish her involvement in the alleged offence. It is only after 03.08.2015 that she claimed ownership of the said 26 pieces of gold biscuits, she has been implicated in the Notice. Since there is no documentary evidence available on record to establish her involvement in the alleged smuggling activity and her claim for ownership itself has not been established, it is observed that her role in the alleged smuggling is also not substantiated by the investigation. Accordingly, no penalty is imposable on the appellant viz. Smt. Hanjabam Memtombi Devi and accordingly, we set aside the penalty imposed on her.
Conclusion - i) The order of confiscation of the 26 pieces of gold biscuits of foreign origin collectively weighing 4326.40 grams valued at Rs.1,14,51,980/- under Section 111(b) and (d) of the Customs Act, 1962 upheld. ii) The claim made by the appellant regarding ownership of the gold in question rejected. iii) The penalty imposed on the appellant under Section 112(b)(i) of the Customs Act, 1962 is set aside as her role in the alleged offence is not established.
Appeal disposed off.
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2025 (6) TMI 868
Absolute confiscation of the gold - imposition of penalty - allegation of illegal importation of gold bars and contravention of Section 3 of Foreign Trade (Development and Regulation) Act, 1992 read with Section 11 of the Customs Act, 1962 - discharge of burden u/s 123 of the Customs Act, 1962 - non-possession of licit documents - HELD THAT:- On going through the documents produced, it is clear that the appellant no. 1 has procured the gold in question by way of licit means from the appellant no. 4. Admittedly, in this case, no Panchnama was drawn at the time of seizure of the gold, which creates a doubt as to the genuineness of the proceedings initiated against the appellants, as held by the Tribunal in the case of Kuber Tobacco Products Ltd. v. Commissioner of C.Ex., Delhi [2013 (9) TMI 414 - CESTAT NEW DELHI] wherein it has been held that mere recording of “resumption of records” after search, without mentioning anything about seizure of documents and their details/description, is not sufficient; that this is more so in case of seizure in support of serious charges and this information is mandatory to give credibility to Panchnama, particularly when contents of seized documents and entire proceedings are challenged.
In the present case, it is a fact that no Panchanama has been drawn. In these circumstances, it is held that the proceedings against the appellants are not sustainable.
Levy of penalty - HELD THAT:- Admittedly, the supplier, namely, M/s. Edelweiss Commodities and Service Ltd., was not made a party to the Show Cause Notice - Accordingly, no penalty can be imposed on the appellant no. 4 alleging illegal purchase of the gold in question.
Conclusion - The gold in question cannot be confiscated and hence, the order of confiscation of the said gold is set aside. As the confiscation of the gold is set aside, the gold is to be released to the appellant no. 1, who has claimed to be the owner of the gold in question. No penalty is imposable on the appellants.
The impugned order is set aside - appeal allowed.
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2025 (6) TMI 867
Calculation of customs duty - inclusion of royalty payments made by the importer to a related foreign entity for the use of technology and trademark, in the assessable value of imported goods under Rule 10(1)(c) and (e) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - cryptic order - no discussion on the legal arguments advanced by the appellant on merits as well as on limitation - violation of principles of natural justice - applicability of Rule 10(1)(c).
Violation of principles of natural justice - HELD THAT:- Unfortunately, the First Appellate Authority has passed a very cryptic order inasmuch as there is no discussion on the legal arguments advanced by the appellant on merits as well as on limitation; as a quasi-judicial Authority, it is expected from an officer of the rank to pass a reasoned and speaking order. In the impugned order, the Commissioner (Appeal) has extracted the provisions, referred to the findings of the Original Authority, extracted in detail the contentions of the appellant and finally rejected the appeal without giving any finding. Hence, the order is passed without application of mind.
The royalty is payable to M/s. OJSC KAMAZ Inc. towards transfer of right to manufacture KAMAZ trucks using the technology provided by KAMAZ, Inc. and using the trademark “KAMAZ” and certainly not towards the sale of CKD kit by KFTC - The terms of the agreement are also clear to the effect that the royalty payable by the Appellant is independent of sale and purchase of CKD kits, notwithstanding the price mutually agreed upon from time to time on the sale and purchase of CKD and spares. This apart, transfer agreement itself has provided for the payment of royalty at US$450 per CKD kit instead of payment of a lump sum which is also an indicative of the fact that the cost of transfer of right had no bearing on the price negotiated for the import of CKD kit.
Applicability of Rule 10(1)(c) - HELD THAT:- This provision is applicable/invocable only when the twin condition test stands satisfied. The royalty/license fee should not only be related to the goods imported, to be paid to the seller directly or indirectly as a condition of the sale of the goods being valued or imported. That means to say, the payment of royalty becomes includable in the price of the goods imported only if the said payment constitutes a pre-condition/prerequisite for the supply of the goods imported from the foreign supplier - In the present case however, from the perusal of the transfer of technology agreement the foreign service provider namely KAMAZ-Russia has, based on the number of CKD kit imported by the company, calculated the quantum of royalty amount payable to them towards the transfer of technical know-how and use of their trademark/brand “KAMAZ”. Hence, it appears that the royalty paid to KAMAZ Russia has no bearing with the import from KAMAZ, PTC. Thus, the royalty is not to be paid for the import of CKD which is also clear from reading of clause 11.2 of the technology license agreement as per which, the royalty payments are to be paid on the products assembled using the CKD kits and not on the imports.
Conclusion - There was no need to invoke rule 10(1)(c) to add Royalty to the assessable value as the said payment was in no way connected with the condition of sale.
The impugned order is set aside - appeal allowed.
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2025 (6) TMI 866
Challenge to re-assessment u/s 17(5) of the Customs Act, 1962 by changing the declared country of origin and consequent classification - demand of additional duty - imposition of fine and penalties - HELD THAT:- It is found that in case of any type of assessment, besides classification and assessable value of imported goods, the country of origin is also required to be determined in accordance with the provisions of Section 14 of the Customs Act, 1962 and the Customs Tariff Act, 1975.
In the present case, the appellants had self-assessed the goods in terms of Section 17(1) ibid, by declaring the value of the imported goods as per invoice price. It is also on record that on the investigation conducted by SIIB, JNCH Customs officers in verification of such self-assessment in terms of Section 17(2) and 17(3) ibid, the appellants had submitted to the department, all the relevant documents for the supply of imported goods from the supplier’s end at United Arab Emirates, such as those specifically issued for proving the country of origin i.e., Certificate of Origin No. 21105532 dated 13.12.2021 issued by the competent authority Dubai Chamber of Commerce & Industry; Certificate of Fumigation Ref. UPTS/FUM/5258/ 2021 dated 14.12.2021 and Phytosanitary Certificate No. DXB-APH-02415-1877589 dated 15.12.2021. These facts bring out clearly that the appellants did not confirm his acceptance for change in country of origin proposed by the proper officer of Customs for re-assessment of goods under Section 17(4) ibid. Thus, the proper officer of customs was required for passing of a speaking order on the re-assessment of imported goods under Section 17(5) ibid.
The findings of the learned Commissioner of Customs (Appeals) that the investigating unit has reasonably established that the goods are of Pakistan origin, is factually incorrect, as only part of the goods contain the blue/green colour tag/labels bags indicating that these were made in Pakistan and in rest of the bags were without any such markings, which learned Commissioner (Appeals) had presumed that “it could have tried to remove all the labels/tags from all the gunny bags, however, in a hurry, some tag/labels were left in mutilated condition. This act of the supplier shows mala fide intention to evade the customs duty.” It is a fact that the packing material or the label of the packing material, that too found in part of the consignment, cannot be a reasonable basis to decide the country of origin for the online imported goods; and the packing of the imported goods is not the foolproof criteria to decide the origin of imported goods.
The evidential documents placed on record which have been issued specifically declaring that the imported goods are of ‘United Arab Emirates’ origin forms sufficient reason to conclude that the imported goods are of ‘United Arab Emirates’. Thus, there are no merits in the impugned order for upholding the order of original authority confirming that the imported goods are of Pakistan origin, without any proper support of documents for confirmation of adjudged demands and for imposition of redemption fine and penalties on the appellants importer. Further, it is not the case of Revenue that the imported goods did not comply with the Food Safety and Standards (Packaging and labelling) Regulations, 2011 and therefore the action for confiscation and penalties were proposed.
The Co-ordinate Bench of the Tribunal in the case of Doves International Vs. Commissioner of Customs, New Delhi [2018 (5) TMI 1372 - CESTAT NEW DELHI] have held that merely because of use of gunny bags showing that these bags are products on one country, cannot by itself enable that the imported goods also should be treated as though of the same country of origin to which the packaging materials belongs to.
In the case of Sukumar Mondal Vs. Collector of Customs (Preventive) [1989 (11) TMI 178 - CEGAT, CALCUTTA], the Co-ordinate Bench of the Tribunal had also held the country of origin of the imported goods cannot be decided on the basis of marks found in some of the imported goods.
Conclusion - Since there are no evidences to prove that the imported goods are of Pakistan origin and on the other hand there is substantial proof to show that the goods are of United Arab Emirates origin, it is considered appropriate to set-aside the impugned order.
The impugned order passed by the learned Commissioner of Customs (Appeals) cannot be sustained - Appeal allowed.
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2025 (6) TMI 865
Refund of excess duty paid - final assessment order passed by the assessing authority, has not been challenged by the Department before the Commissioner (Appeals) and the Revenue filed appeal before the Commissioner (Appeals) against the refund orders - reliance placed on a test report that is not on record, nor supplied to the Appellant.
HELD THAT:- It is settled law and rightly canvassed by the Appellant that the appeal of the Revenue before Commissioner (Appeals) without challenging the final assessment order could not automatically lead to a challenge to the Refund Order. The law on the subject matter is laid out in a slew of cases - reliance can be placed in COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS FLOCK (INDIA) PVT. LTD. [2000 (8) TMI 88 - SUPREME COURT].
Suffice to state, that refund order is merely an order in execution of a direction, as arises out of the final assessment order. It being a downstream action and as held by the Apex Court no challenge would lie in the matter, till the cause giving rise to such action is in itself set aside in appeal. Under the circumstances, the Revenues appeal before the Commissioner (Appeals) challenging refund order and not the assessment order, in the matter was completely misplaced. It is not disputed that the duty has been paid in accordance with the provisions of the law, the transaction is between unrelated parties, there is no evidence to establish the existence of any extraneous consideration in the matter. The value of export goods is arrived and finalized in accordance with the contractual obligations.
In the absence of any convincing reason to set aside the transaction value adopted while finalizing the provisional assessment the same cannot be rejected. No reasons are forthcoming to the contrary, either from the order passed by the adjudicating authority or the Commissioner (Appeal’s) impugned order in the matter - Nonetheless primarily without a challenge to the assessment, the Revenue cannot consider any question of challenge to the refund orders per se issued by the Learned Commissioner (Appeals). It thus suffers from this inherent defect.
The appellant has also obliquely hinted at non-compliance with principles of natural justice, in as much as, a test report said to be issued by the Kolkata Customs House, is neither on record, nor a copy thereof given to the respondent. No conclusion can therefore, be arrived upon to the prejudice of the appellant in the matter without in effect making over to them the said piece of evidence. In this regard the revenue’s case is shrouded in complete arbitrariness and hypothetical.
Conclusion - The Revenue's failure to challenge the assessment orders and reliance on undisclosed evidence rendered its appeal against the refund orders untenable, leading to the setting aside of the impugned orders and confirmation of the refunds due to the appellant.
The order of Commissioner (Appeals) therefore is not maintainable in law and is required to be set aside - appeal allowed.
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2025 (6) TMI 781
Statutory entitlement to duty drawback claims filed by the petitioner - no speaking order was passed informing the reasons for rejecting the drawback claims - violation of principles of natural justice - HELD THAT:- Admittedly, in the impugned order, the respondent has not considered Rule 13(3)(a) of the Customs Central Excise Duty and Service Tax Drawback Rules, 1995 which were applicable on the date when the petitioner had made a duty drawback claim in respect of five shipping bills submitted by them. Rule 13(3)(a) of the Customs Central Excise Duty and Service Tax Drawback Rules, 1995 also makes it clear that while returning the duty drawback claim, the respondent will have to issue a deficiency memo in the form prescribed by the Commissioner of Customs within 10 days.
In the case on hand, admittedly, no such deficiency memo, as prescribed under the aforesaid rule, was furnished to the petitioner by the respondent while returning the duty drawback claim made by the petitioner. The Public Notice 17/2018 dated 09.03.2018, relied upon by the learned Standing Counsel for the respondent was made by the respondent only in the year 2018, though the duty drawback claim made by the petitioner for the five shipping bills pertains to the year 2015 - The Public Notice issued by the Central Government in the year 2018, relied upon by the learned Standing Counsel for the respondent, has also not been considered by the respondent in the impugned order. Being a non-speaking order with regard to the contentions of the petitioner as raised in this writ petition as well as the the contentions raised by the learned Standing Counsel for the respondent, necessarily, the impugned order has to be quashed and the matter has to be remanded back to the respondent for fresh consideration, on merits and in accordance with law, after giving due consideration to the contentions of the petitioner as well as the respondent as raised in the counter before this Court.
Conclusion - The petitioner's claims are prematurely rejected without adherence to the mandatory procedural safeguards under the Customs Central Excise Duty and Service Tax Drawback Rules, 1995. The reliance on later-issued Public Notice and electronic queries does not cure this defect.
The impugned order dated 06.12.2023 passed by the respondent is hereby quashed and the matter is remanded back to the respondent for fresh consideration, on merits and in accordance with law - Petition disposed off by way of remand.
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2025 (6) TMI 780
Exemption from custom duty for irrigation and drinking water - Project import - legal authority of Government of Andhra Pradesh, through its Memo and subsequent communicationsto direct deduction of the customs duty amount provided in the Internal Bench Mark (IBM) from the contract agreement value payable to the contractor - HELD THAT:- An attempt to make the deductions has started for the first time only on 21.05.2008. It is noticed that neither the Government Memo dated 21.05.2008 was circulated to the Engineering Department nor to the District Collector. The Superintending Engineer, vide Proceeding dated 07.06.2008 has already approved the list of equipment and positively communicated to the District Collector. The District Collector vide Proceeding dated 23.07.2008 has already issued the Recommendatory Certificate which is required to be submitted to the Customs Authority.
Although the Proceeding was issued by the Secretary to Government on 21.05.2008 which is prior to the final recommendation made by the District Collector, this Court is of the opinion that this would have no bearing inasmuch as the date on which the tender was issued and the agreement was executed by the successful bidder, the Letter of Secretary to Government was never in existence - It is a settled law that the Official Respondents even with regard to the execution of commercial targets, are required to follow the provisions of the Constitution, particularly Article 14 etc.
This Court has noticed that even in the Tender conditions, Clause 13.05.5 would stipulate that all duties, Taxes and other levies payable by the Contractor as per the State/Central Government Rules shall be included in the Contract Value quoted by the Bidder - This Court is also in agreement that the statement made by the Learned Senior Counsel in so far as the Internal Bench Mark is concerned, this Court is of the view that the Internal Bench Mark (IBM) is only with regard to qualifying amount of price bids with reference to the criteria for award of work and that such IBM has no further relevance beyond that. Therefore, this Court is also of the view that the attempt made by the Official Respondents that the amount provided in the IBM will be deducted from the agreement value is irrational and arbitrary and is impermissible.
Conclusion - i) The Government Memo dated 21.05.2008 and subsequent orders directing deduction of customs duty amounts from the contract value were illegal and void as they sought to retrospectively alter the terms of an executed contract without any contractual or legal basis. ii) The contractor was entitled to the customs duty exemption under the applicable Central Government regulations and notifications, and the benefit of such exemption accrued solely to the contractor.
This Court is of the opinion that the decision taken by the Official Respondents to adjust the Customs Tariff from the pending bills is not only irrational but illegal. Accordingly, the impugned Memo No. 12918/Maj.Irr.II/A2/2008-1 dated 21.05.2008 is bad in law and has to be set aside - Petition allowed.
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2025 (6) TMI 779
Revocation of authorised carrier registration under Regulation 11 and 12 of the SCMTR, 2018 - imposition of penalty in terms of Regulation 13 of the said Regulations - Violation of Regulation 10(1)(l) and 10(1)(m) of the Sea Cargo Manifest and Transhipment Regulations, 2018 (SCMTR) - HELD THAT:- It is found that prior to issue of show cause notice to the appellant, an inquiry was conducted by the Assistant Commissioner regarding violations of SCMTR, 2018 who found that M/s ASR India Private Ltd has violated Regulation 10(1) of the SCMTR, 2018 by not obliging the waiver letter dated 30.09.2024 issued by SIIB, Mundra and submitted vague replies. It is found that vide this letter addressed to Manager Saurashtra CFS Mundra with a copy each to KA SEZ entity M/s. Varsur Impex Pvt Ltd and M/s ASR India Private ltd direction was issued not to charge any rent or demurrage charges in view of Regulation 10(1) of the SCMTR, 2018 till the date of Customs clearance.
The period of detention on account of SIIB hold was 14 days in respect of 3 containers (Sr. No. 1,2 & 4) and 26 days in respect of the 4th container. It is further observed that there was additional delay ranging from 43 days to 49 days from the date of NOC by SIIB till the date of transfer permission. Therefore, the direction dated 30.09.2024 of SIIB for not charging any rent or demurrage till the date of customs clearance is improper. The findings of the Learned Adjudicating authority in the impugned order are not correct as the appellant seems to have acted as per the SCMTR, 2018 Regulations.
Conclusion - i) The appellant did not violate Regulation 10(1)(l) and 10(1)(m) of SCMTR, 2018. ii) The revocation of authorised carrier registration and penalty imposed are unjustified and are set aside.
The impugned order set aside - appeal allowed.
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2025 (6) TMI 778
Levy of penalty u/s 112A of the Customs Act, 1964 on appellant CHA - appellant was put to show-cause on the basis of statement of importer and another CHA director, without summoning the appellant for statement or seizing any documents from the appellant during investigation - bringing someone to trial stage without giving him any opportunity to defend himself at the time of investigation - violation of principle sof natural justice - HELD THAT:- Though Revenue reiterated the findings of the Commissioner (Appeals), it is not agreeable to such findings as noted above for the reason that apart from principle of natural justice being violated in bringing someone to trial stage without giving him any opportunity to defend himself at the time of investigation, section 114 Illustration (b) of the Indian Evidence Act clearly states that statement of accomplice /co-accused is unworthy of credit unless he is corroborated with material particulars.
The impugned order passed by the Commissioner (Appeals) confirming penalty of Rupees Ten Lakhs on the Appellant CHA M/s. S A Dalal And Co is hereby set aside - appeal allowed.
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2025 (6) TMI 777
Refusal by the Deputy Commissioner of Customs to amend the import manifest to substitute the importer under section 30(3) of the Customs Act, 1962 - absence of fraudulent intention and the existence of a no objection certificate from the original consignee - lack of application of mind on the part of the original authority - HELD THAT:- There can be no fraudulent intent when proceedings for re-assessment under section 17 are not underway. There can be no fraudulent intent with obligations devolving on importer, if any, arising only after clearance under section 47 of Customs Act, 1962. There can be no fraudulent intent when proceedings already under way against any person is not stultified by amendment nor does seizure of goods stand in the way of exercise of specific empowerment under section 30 of Customs Act, 1962. Most of all, the original authority appeared to be oblivious of the demonstrated disinclination of M/s Shine Metal Industries to complete the process of clearance and oblivious that being influenced by reported conditional willingness of M/s Shine Metal Industries to complete the process which would only defer the collection of duties by the exchequer that another importer was prepared to discharge with promptitude. The decision of the original authority was not in the interests of the exchequer unless it was intended that the exchequer should acquire possession of the impugned goods.
The original authority had chosen also to ignore a most important obligation on the part of M/s Shine Metal Industries to seek extension for completion of clearance as required by section 48 of Customs Act, 1962 and protection of title of M/s Shine Metal Industries, such as it is, in the light of investigation into their alleged activities and unwillingness to comply with procedural stipulations on retention of goods without clearance, is not a decision that finds favour. The first appellate authority, appreciating the facts and circumstances, permitted the amendment - There is no appeal by the jurisdictional Commissioner of Customs against the order directing the amendment sought by the appellant that may have served to enable defence of such recalcitrance.
The appellant herein had no reason to be aggrieved by the impugned order and, indeed, was not until in receipt of communication of Assistant Commissioner of Customs, and lacking any reference to the direction of Commissioner of Customs (Appeals), that sufficed for them to re-look at their order and the imperative of appealing that order. In the circumstances of new view of the order, the delay in resorting to section 129A of Customs Act, 1962 was found fit to be condoned. In view of the circumstances of the goods lying uncleared, and likely to remain so for the near future with potential of re-litigation, the appeal was pulled in for ‘out of turn’ disposal.
There is no provision of law brought on record to demonstrate that substitution of one importer by another is of consequence to Customs Act, 1962. To turn the provisions of instructions, intended to erase whimsical handling of requests under section 30(3) of Customs Act, 1962, to disable the process for clearance of goods, brought in legally and, as yet, not tainted by illegality, is, if anything, deplorable. The foundation of the objection by customs authorities to the amendment is that M/s Shine Metal Industries, adopted by customs authorities as the rightful owner whose claims must be preserved even in the face of appellate order, is consignee.
Conclusion - There is no scope for perspective of the impugned order as cause of grievance to the appellant. Any action that proceeds on a different assumption is, in the light of no challenge to the impugned order, at peril of consequence of patent breach of judicial discipline. The impugned order, clear as it is, is not ambivalent and does not to be interfered with.
Appeal disposed off.
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2025 (6) TMI 776
Violation of conditions of the Notification dated 01.03.2002 - using the imported aircraft, permitted for Non-Scheduled Operator (Passenger) [NSOP (Passenger)] service, for charter operations instead - confiscation - penalty - HELD THAT:- A perusal of the order dated 21.06.2010 passed by the Commissioner, Preventive indicates that the appellant was granted permission for operating NSOP (services), but the appellant did not use it for passenger service and had used it for chartering out the same to group companies of the appellant and other against lump-sum payment of agreed amount. The reason that has stated is that appellant did not issue tickets, but charged a lump-sum payment.
The issue as to whether NSOP (passenger) can be used for Charter purposes has been decided by a Larger Bench of the Tribunal in M/s VRL Logistics Ltd. versus Commissioner of Customs, Ahmedabad [2022 (8) TMI 720 - CESTAT AHMEDABAD (LB)]. It has been hold that it can be used. This decision has been affirmed by the Gujarat High Court [2023 (1) TMI 1378 - GUJARAT HIGH COURT].
In view of the aforesaid decisions of the Tribunal in VRL Logistics and in Sky Airways [2025 (5) TMI 1036 - CESTAT NEW DELHI], it has to be held that the Commissioner committed an error in holding that the appellant could not have used the aircraft for charter purpose when the permit was granted for NSOP service.
Conclusion - The reason assigned by the Commissioner that tickets were not sold by the appellant for charter services and only a lump-sum was demanded and paid cannot be a good ground to hold that the appellant violated the conditions of the Notification in view of the decision of by the Tribunal in V.R.L. Logistics.
The order dated 21.06.2010 passed by the Commissioner, therefore, cannot be sustained and is set aside - appeal allowed.
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