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Showing 141 to 160 of 182 Records

2015 (9) TMI 344 - SC ORDER

Classification of Ghana Teak rough Square Logs - Tribunal vide impugned order [2005 (7) TMI 137 - CESTAT, NEW DELHI] set aside order of commissioner and upheld classification of goods only under Heading 44.03 of CETA - Supreme Court after going through the orders passed by Appellate Tribunal, court found that all nuisances have been taken into consideration and discussed while holding that goods in question, viz., 'Ghana Teak rough Square Logs' would be classified under Heading 44.03 - Therefore, court of opinion that no question of law arises - Appeal dismissed.
2015 (9) TMI 343 - BOMBAY HIGH COURT

Conspiracy to make fictitious exports – Retraction of statement – Cross-examination of Witness – Tribunal in second round allowed Revenue appeals and imposed penalty under section 14(1) of Customs Act, 1962 upon appellant by concluding that both appellant and one other were involved in transactions which led to inflated and bogus claims of refund / rebate / drawback – Held that:- Adjudicating Authority observes that allegations against appellant are that he entered into conspiracy to make fictitious export to Russia against repayment of state credits granted to erstwhile Soviet Union Republic (USSR) and colluded with others – Appellant retracted his statements at first available opportunity – He filed additional interim reply specifically stating therein that DRI and his officials coerced him to write statement inculpating him – This affidavit, though received by DRI, has not been rebutted – Tribunal has not concluded that Commissioner's reasoning is either perverse or vitiated by any error of law apparent on face of record – Instead, Tribunal makes reference to general principle that retraction of statement and cross-examination of certain persons would not make any dent in plethora of evidence produced by Department and confessions of various persons – Therefore, further finding that case cannot be demolished merely by cross-examination of witnesses by ignoring circumstances and corroborative evidence is equally vitiated because crossexamination may contain admissions – Thus, Tribunal's conclusions cannot be sustained and are vitiated by errors of law apparent on face of record – Tribunal's order deserves to be quashed and set aside – Decided in favour of appellant.
2015 (9) TMI 342 - DELHI HIGH COURT

Possession of Contrabands – Appeal against Conviction – Appellant stood convicted under Section 20(b)(ii)(c) of NDPS Act for being in possession of 61.49 kg ganja and has been sentenced to undergo Rigorous Imprisonment and to pay fine – Held that:- PW.4 along with PWs. 1, 3 and 6 have denied suggestions that nothing was recovered from possession of appellant and that all proceedings was conducted in police station – PW.9 clearly demonstrates that only four sealed sample were send to FSL, and not FSL form along with same – FSL form, is an important safe guard to avoid any suspicion and same not having been sent to laboratory along with sealed samples raises serious doubts about samples being tampered with – There is no DD entry regarding such secret information having been received by PW.4. – Total non-compliance with requirement of Section 42 has been held to be impermissible – Though there has been delay of one and half months in sending sample to FSL, there is nothing on record to suggest or to come to opinion that said sealed samples were tampered with – Based on findings, it is difficult to uphold conviction –Appeal allowed and appellant directed to be released from custody – Decided in favour of Appellant.
2015 (9) TMI 341 - PUNJAB & HARYANA HIGH COURT

Evasion of duty – Appeal against conviction – BSF apprehended accused while traveling on motorcycle and 213 gold biscuits of foreign origin were recovered – Trial Court ordered conviction and sentence accused 3 and 5 under Section 135 while accused-4 was declared proclaimed offender – In appeal accused-5 was acquitted while conviction of accused-3 was upheld – Held that:- Evident from statements of accused-3 parents as well as her confessional statement that she had been forced to accompany her parents on day of recovery – Accused-3 was unmarried girl at relevant time and had no option but to succumb to pressure of her parents – In these circumstances, it would be just and expedient to reduce sentence qua imprisonment of accused-3 to period already undergone by her – Accordingly, conviction of accused-3 under Section 135 of Act is upheld – However, sentence qua imprisonment is reduced – Revision hereby disposed of.
2015 (9) TMI 340 - MADRAS HIGH COURT

Cancellation of LEO grant – Furnishing of bank guarantee – Second respondent cancelled LEO granted to petitioner, thereby, petitioner was prevented from exporting river sand to Maldives – Single Judge passed order of interim direction by which, petitioner was directed to furnish Bank Guarantee for value of entire sand, which has been loaded in vessel and direction was issued to 1st and 2nd respondents to issue necessary sail order to Vessel subject to furnishing Bank Guarantee – Held that:- Admittedly petitioner complied with order and has furnished Bank Guarantee – Export of quantity of 3,750 MT of river sand has already been completed – Therefore there is no necessity to pass any orders since export has already been completed subject to certain conditions, which was not questioned by Customs Department – No further order is required to be passed – Petition closed.
Selling of unshipped quantity of goods – Petitioner challenges order passed by 2nd respondent to sell unshipped quantity of 250 MT of River sand – If second respondent is of opinion that sand, which was sought to be exported and presently lying in Karaikal Port premises has been quarried elsewhere other than Karaikal, that should have been ascertained after proper adjudication into matter for which purpose, petitioner should have been afforded opportunity – Since this procedure having not been followed, prima facie conclusion arrived at by 2nd respondent have to be faulted – However, in order to safeguard interest of Revenue, Court inclined to issue directions without setting aside impugned proceedings – Petition disposed of.
2015 (9) TMI 339 - MADHYA PRADESH HIGH COURT

Evasion of Duty – Smuggling foreign origin silver – Appellants were intercepted with silver slabs and they did not had any valid document for possessing recovered silver – They were convicted and sentenced under section 135 of Customs Act, 1962 – Held that:- there were ample evidence on record that applicants were smuggling foreign origin silver slabs and thus have contravented provisions of import (control) order No. 17/55 – Thus conviction of applicants was based on proper appreciation of evidence, therefore, conviction recorded by Courts hereby maintained – Section 135(3) provides reasons which shall not be considered as special and adequate reasons for awarding sentence of imprisonment for term of less than one year – Applicant No. 2 has undergone surgery and had filed medical papers before Court – Considering his ill-health and sentence already suffered, appellant-2 has made out case for imprisonment of sentence less than one year – Appellants have already suffered jail sentence of about 20 months, in such circumstances their jail sentence reduced up to 20 months – Decided partially in favour of Appellants.
2015 (9) TMI 317 - CESTAT NEW DELHI

Valuation - Import of Oracle packaged software - condition of sale or condition of use - Whether the licence fee paid by OIPL to its parent company Oracle USA is includible in the assessable value of imported media packs – the licence fee has actually been collected from the customers and a part of it (56%) remitted by OIPL to Oracle USA. Ld. counsel has strenuously argued that the licence fee remitted by OIPL to Oracle USA was not a condition of sale and only a condition of use. - Held that:- licence fee is includible in the assessable value only if it is paid or required to be paid as a condition of sale. As stated earlier, it is a settled legal position with which both sides also agree and therefore we do not need to refer to each of those judgements/opinions. As it is, whether the licensee fee paid or was required to be paid as a condition of sale is essentially more a question of fact than of law.
In every case of commercial imports, Oracle USA and Oracle Ireland were fully aware that the order has been uploaded/scanned into Oracle Order Management System only after the customer agreed to pay the licence fee for the software and this information was available to Oracle USA as well as Oracle Ireland before the shipment was made. OIPL was incorrect when it claimed initially that it was a case of stock and sale and that the software imported from Ireland could be given to any customer, commercial or non-commercial. It comes out clearly that each software which was shipped was in the knowledge of Oracle USA and each shipment came for a particular Indian customer identified by the unique order number generated. - In the wake of the factual matrix of the case, we hold that in respect of commercial imports of media packs, the licence fee remitted by OIPL to Oracle USA was includible in the assessable value. - Decided against the assessee.
However, any subsequent (post importation) increase in the number of users of the software imported in the form of physical media packs was neither known at the time of import nor was it a condition of sale and therefore licence fee remitted on that account cannot be said to be a condition of sale and hence would not be includible in the assessable value and customs levy thereon would also be hit by the absence of collection mechanism - Decided in favor of assessee.
Non commerical use of Media pack - inclusion of notional licence fee - Held that:- Clearly stated in Software Duplication and Distribution Licence Agreement between Oracle and company that Royalty/sub-licence fee shall not accrue on licences put to internal use as trial/ demonstration licences – Thus, no licence fee was payable – Therefore demand cannot be sustained. - Decided in favor of assessee.
Levy of custom duty on softwares downloaded electronically – whether software downloaded electronically will be liable to customs duty on same lines as duty leviable on such software imported as media packs – Held that:- Supreme Court in case of Tata Consultancy Services [2004 (11) TMI 11 - Supreme Court] held that software even in its intangible form are goods and therefore electronic download of software from server located abroad would get captured in scope of import of goods – From provisions of Customs Act, 1962, it is evident that entire Customs Act provides mechanism/procedure for levy and collection of duty only in respect of tangible goods – Software is intangible, can be downloaded anywhere, from anywhere, at any time and none of provisions of Customs Act, 1962 are capable of being applicable/ enforceable in respect of such downloads – Thus, electronically downloaded software is not liable to customs duty – Decided in favour of assessee.
Extended period of limitation - Mis-Statement of facts – Whether there was wilful mis-statement of fact on appellants’ part with intention to evade payment of duty – Held that:- Company had made complete disclosure regarding its commitment to remit 56% of licence fee to Oracle in its FIPB application is certainly indicative of fact that it did not have any intention to hide this fact – Seizure took place when customs could hardly claim that company had not disclosed facts about remittance of licence fee to Oracle – Further fact that appellant had followed same system, procedure and practice of declaring assessable value even during prior periods when there was no duty to be evaded at all – There is evidence on record that company submitted details about their relationship with Oracle to Customs and so allegation that company suppressed fact stands negated – No evidence to sustain charge of wilful mis-statement / suppression of facts, therefore allegation of wilful mis-statement/suppression of facts is not sustainable – Impugned demands, redemption fines and penalties on appellants set aside – Demand set aside on the ground of period of limitation - Decided in favour of assessee.
2015 (9) TMI 292 - MADHYA PRADESH HIGH COURT

Provisional release of goods – Fulfilment of condition for release – Applicant stated that entire duty of consignment have already been deposited based on value approved by Government approved valuer's report and, thus, no Bank Guarantee/Security was required for release of goods –Assistant Commissioner(Customs) directed release of seized goods provisionally on conditions –However later Assistant Commissioner(Customs), requested to retain 25% of value of goods as security in lieu of Bank Guarantee and release remaining goods – Held that:- without expressing any opinion on merits of case, at this stage, court to stay condition of retaining 25% goods and direct respondents to release whole goods on other conditions imposed on letter of provisional release – In view of aforesaid application allowed – Decided in favour of Applicant.
2015 (9) TMI 291 - BOMBAY HIGH COURT

Non-compliance of conditional advance licence – Imposition of Duty – Delay in adjudication – Petitioner-1 was issued conditional advance licence and compliance was to be made with condition that petitioners would export polythene/viscose blended fabric – As there was collusion between 2nd petitioner and third party, incorrect/manipulated/false information regarding quantities/weight/composition of exported goods was provided to show compliance of terms and conditions of licence and demand of duty was confirmed – Held that:- Admittedly petitioners addressed several letters requesting authorities to proceed with matter or to drop proceedings and retain money already deposited in lieu of demanded duty – 18 years have lapsed since notice was issued and revenue cannot merely issue show cause notices and thereafter not take steps to adjudicate matter in accordance with law – Revenue directed to furnish the details of pending cases.
2015 (9) TMI 290 - MADRAS HIGH COURT

Suspension of License - Vide impugned order of tribunal reported in [2007 (2) TMI 544 - CESTAT, CHENNAI] application filed for condoning delay of 64 days was dismissed for being time barred - It was submitted by learned counsel for appellant that period of suspension ordered against respondent was for period of 18 months from 23-8-2005, which has come to end on 23-1-2007 - It was observed by high court that since period was already over, it was therefore submitted that nothing further survives for adjudication - It was further submitted that respondent as on date was in possession of valid licence - Since period of suspension was already over and further respondent was having licence, issue does not require further consideration - In view of above, appeal closed.
2015 (9) TMI 289 - MADRAS HIGH COURT

Finalisation of Assessment – Petitioner sought to finalise assessment, within time frame that may be fixed by Court – Respondents submitted that prayer sought for asking authority to take into account decision of Commissioner and then to pass appropriate orders, may not be granted, as each fact will have to be considered based upon facts and circumstances of case – Taking into account facts and circumstances of case, court direct authority to finalise assessments and to re-assess Bill of Entry and to pass appropriate orders in accordance with law, after giving opportunity of personal hearing to petitioner.
2015 (9) TMI 288 - MADRAS HIGH COURT

Classification of Goods - Beech wood - Tribunal vide impugned order reported in 2007 (6) TMI 27 - CESTAT, CHENNAI classified goods under SH 44.03 (wood in rough) - Whereas Appellant contended it should fall within the category of Heading 44.07 - Therefore appeal was filed against said order of classification - As neither appellant nor respondent was not present, showing that parties were not interested in pursuing matter - Thus, appeal dismissed for non-prosecution.
2015 (9) TMI 245 - SUPREME COURT

Levy of duty on goods actually imported – Appellant imported crude oil which was said to have escaped payment of full customs duty –Revenue in its show cause stated that quantity of crude oil mentioned in various bills of lading should be basis for payment of duty, and not quantity actually received into shore tanks in India – According to Commissioner, full payment for goods has to be made on quantity mentioned in bill of lading – Tribunal also accepted Commissioner's reasoning – Held that:- levy of customs duty under Section 12 is only on goods imported into India – If the goods are pilferred after they are unloaded or lost or destroyed at any time before clearance for home consumption or deposit in warehouse, importer is not liable to pay duty leviable on such goods – Reasons given by Tribunal is incorrect in law –Tribunal's reasoning that somehow when customs duty is ad valorem basis for arriving at quantity of goods imported changes, is wholly unsustainable – Therefore Tribunal's judgment set aside and declare that quantity of crude oil actually received into shore tank in port in India should be basis for payment of customs duty – Appeals disposed of – Decided in favour of assesse.
2015 (9) TMI 244 - SUPREME COURT

Classification of goods as "auto analysers" or "photometers" – Appellant filed Bill of Entry for clearance of models of BTS 320 and BTS 310 classified goods as "auto analysers" under Entry 9030.89 of Customs Tariff Act, 1975 – Goods were seized by custom authorities, being total of 8 BTS 320 and 15 BTS 310 models – DRI issued show cause notice stating that goods in question are "photometers" and not "auto analysers" and demanded duty, Confiscation of goods and imposition of penalty – Held that:- Without any analysis of whether imported equipments were, auto analysers or were only photometers, tribunal went on to conclude that one can never come to conclusion that photometer is same as auto analyser – Admitted fact that models BTS 310 and BTS 320 were imported with inbuilt software that contained programmes for analysis and interpretation – From this it does not follow that what has been imported is only photometer – Contention that description of imported goods was changed from photometers to auto analysers to avail benefit of exemption under notification No. 20/1999, would be material in deciding whether Section 111(m) are attracted as to amount to mis-declaration of description of goods resulting in confiscation of said goods, fine, and penalty – Therefore, appeal of assesse allowed and order of tribunal imposing penalty set aside – Decided in favour of Assesse.
2015 (9) TMI 243 - CESTAT CHENNAI

Import of second hand photocopiers – Imposition of Duty, penalty and fine – Appellant filed Bills of Entry for clearance of used photocopier main frame assemblies and other parts – Adjudicating authority had enhanced declared value and also confiscated goods for contravention of licence and misdeclaration of goods and thereby confirmed demand of duty and imposed fine and penalty – Held that:- In case of Sumit Office Systems and Others v. CC, Trichy & Tuticorin [2009 (3) TMI 858 - CESTAT, CHENNAI] wherein Tribunal observed that import of second hand photocopier prior to 19-10-2005 also do not warrant licence for import – Respectfully following earlier decision of Tribunal, court hold that no licence is required for import of second hand photocopiers prior to 19-10-2005 – Accordingly, imposing fine and penalty set aside and otherwise impugned orders upheld – Decided in favour of Assesse.
2015 (9) TMI 242 - CESTAT MUMBAI (LB)

Revocation of Project Import Contract – Substantial Expansion – Non-fulfilment – Appellant registered contract with Customs Authorities and made imports of machinery –Vide order of Deputy Commissioner of Customs, Project Import Contract were deregistered and goods imported were assessed on merits and differential duty demand was made – Reason for denial of project import benefit was that appellant’s overall production capacity had not increased substantially to make it eligible for concession – Tribunal vide impugned order remanded matter back to authority for afresh consideration – Whether imported goods were for expansion of capacity to produce HTSLR wires – Held that:- If unit per se was not eligible for grant of benefit, it will not make any difference whether benefit was under category of substantial expansion or under category of initial setting up of unit – There was no setting up of new stranded wire unit at all – Only as part of existing plant for manufacture of wires including stranded wires, additional machinery were installed for making different type of stranded wires and overall capacity was maintained at existing level by allowing appellant to dismantle old machinery – Certificate of project benefit recommended by DGTD was for substantial expansion of plant, inasmuch as capacity of plant remained same both before as well as after expansion, condition for availing benefit of project imports was not satisfied – Appellant did not have any capacity to manufacture HTSLR wires prior to 1993 and therefore, import of machinery to manufacture said wires, cannot be said to be substantial expansion for purposes of Project Import Regulations – Appellant has not satisfied condition of substantial expansion of existing installed capacity so as to be eligible for benefit of Project Imports – As per majority view Appellant was not eligible for benefit of Project Imports – Appeal dismissed – Decided against Assesse.
2015 (9) TMI 241 - CESTAT MUMBAI

Denial of benefit of notification – Confiscation of goods and imposition of redemption fine and penalty – Appellant filed bill of entry declaring products as “Hot Rolled Non Alloy Steel Cut Steel Sheets/Plates” under CTH 7208 and claimed benefit of Notification No. 21/2002-Cus – Benefit of notification was denied treating goods as defective/seconds and consequently goods were confiscated and redemption fine was imposed – Held that:- settled legal position that admissions made before Custom Officer is admissible evidence in proceedings undertaken under Customs Act – Having admitted that goods under importation were defective and also having paid duty without any protest, appellant cannot turn around now and say that goods are prime and not defective – Survey report also indicates that goods were heavily rusted and they were not prime quality – Provisions of Section 111(m) are clearly attracted and confiscation of goods upheld – Redemption fine is imposed to wipe out profit margin which appellant would have made in case appellant had been able to clear goods on basis of declaration – Appellant had sold goods at below cost and has not made any profit in transaction – In these circumstances, no justification for imposition of redemption fine.
For imposition of penalty under Section 114A, there should be collusion or any wilful misstatement or suppression of facts on part of importer – Revenue has not led any evidence to show that any of these elements are present – There is no admission of any suppression or wilful misstatement of facts in statement given by Partner of appellant firm – Therefore, charge of collusion, wilful misstatement or suppression of facts is not established – Therefore, provisions of Section 114A are not attracted and accordingly, set aside – Therefore demand of duty confirmed, redemption fine and penalty set aside – Decided partially in favour of Assesse.
2015 (9) TMI 197 - DELHI HIGH COURT

Application for Settlement – Bar as per section 127B(1) and 123(2) – Revenue contended that application filed by respondent for settlement of its case could not have been entertained by Settlement Commission because there was express bar contained in third proviso to Section 127B(1) of Customs Act, 1962 – Held that:- plain reading of third proviso to Section 127B(1), it is evident that no application for settlement can be made if it relates to goods to which Section 123 applies – Section 123(2) specifically provides that said Section applies to, gold – Therefore, clear that when two provisions are read together, no application under Section 127B(1) can be made in relation to gold – Respondent made application, nevertheless, to Settlement Commission which has entertained same and has also rejected plea raised by Revenue that it did not have jurisdiction to entertain such application – Thus, Settlement Commission did not have jurisdiction to entertain such application as there was complete bar as per Section 127B(1) read with Section 123 – For all said reasons, impugned order passed by Settlement Commission is without jurisdiction and is set aside – Decided in favour of revenue.
2015 (9) TMI 196 - RAJASTHAN HIGH COURT

Bail Application – Smuggling of gold – Statement of each of accused-petitioners revealed that accused-petitioners jointly and in connivance to each other on previous several occasions smuggled gold into India without declaration and payment of customs duty – As value of customs duty evaded or attempted to be evaded was more than Rupees Fifty Lacs, offence committed by each of accused-petitioners was non-bailable within meaning of sub-section (6) of Section 104 of Act – Held that:- Section 104(6) of Customs Act, 1962 provides that notwithstanding anything containing in Code, offences punishable under Section 135 of Act shall be non-bailable.
If any person in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon shall be punishable with imprisonment for term which may extend to seven years and with fine in case of offence relating to any goods market price of which exceeds one crore rupees or evasion or attempted evasion of duty exceeding fifty lakh of rupees – Further offence under Section 135 of Act for evasion or attempted evasion of duty must be treated to be continuous offence until customs duty is paid upon goods which have been imported without payment of customs duty upon them – Expression "Any person" used in Section 135 of Act does not mean only one person but more than one person also if they jointly and knowingly involve themselves for fraudulent evasion or attempted evasion of customs duty chargeable of goods – If more than one person acting in concert with each other has evaded or attempts to evade customs duty, each of them should be treated as "Any Person" within meaning of Section 135.
Looking to gravity of offence, petitioners are not entitled to bail on merit – Also accused-petitioners permanently reside in Muskat and it is unlikely that they will return to India to face trial once bail is granted to them – Consequently, all applications for grant of bail hereby, dismissed – Decided against Accused.
2015 (9) TMI 195 - DELHI HIGH COURT

Amendments to petition – Cancellation of Importer-Exporter Code no. – Certain disputes arose between respondent and STC – STC filed summary suits for recovery against respondent against which petition was filed – Meanwhile Addl. DGFT issued Show Cause Notice to respondent for having prima facie violated provisions of Foreign Trade (Development and Regulation) Act, 1992 and was called upon to show cause why its Importer- Exporter Code No.(IEC) should not be cancelled – Pursuant to which respondent sought amendment in prayer clause of petition for adding Show Cause Notice which was allowed – Held that:- clear by proposed amendment that nature of petition gets substantially and materially altered and changed from original writ petition – Amendments which seek to add entirely new cause of actions which virtually amount to substitution of new plaint or new cause of action in place of what was originally there, would normally be refused by Court – Hence, principles regarding amendment of pleadings as provided in CPC would be guiding factor while adjudicating applications for amendment in writ petition – Amendment now sought by respondent has effect of changing entire writ petition substantially – New facts and issues are being added to petition – Amended petition would virtually tantamount to substitution of altogether new case when compared to original case – It is appropriate that respondent challenges Show Cause Notice in different proceedings and not mix up facts and submissions – Appeal allowed.