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Customs - Case Laws
Showing 181 to 200 of 40545 Records
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2025 (6) TMI 433
Locus standi of appellant to file an appeal - appellant is not a party to the proceedings and he cannot be considered as an aggrieved person to file an appeal before the Tribunal - alleged forgery of shipping bills - HELD THAT:- Admittedly, the petitioner herein is not a party to the original proceedings and he is not even a co-noticee. Admittedly, no adverse order has been passed against the petitioner in the original proceedings, namely, the order in original dated 28.08.2009 passed by the Commissioner of Customs (Sea Port - Import). The Appellate Tribunal in the impugned order has rightly held that merely because investigation was initiated on the basis of the petitioner's complaint, it cannot be considered that the petitioner is aggrieved by such an order and has come to the right conclusion that the petitioner has no locus standi to file the appeal. There is no infirmity in the findings of the Appellate Tribunal.
The petitioner is also unable to point out to this Court as to what provisions under the Customs Act, the complaint was lodged against the second respondent. When the Commissioner of Customs (Sea Port - Import) in his order in original dated 28.08.2009, after giving due consideration to the findings of the investigation, passed an order letting off the second respondent (Customs House Agent) with severe warning and the petitioner, who is not a party to the said proceedings, the question of interfering with the order of the Appellate Tribunal by this Court under Article 226 of the Constitution of India does not arise.
There are no infirmity in the order passed by the Appellate Tribunal. Accordingly, this writ petition is dismissed.
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2025 (6) TMI 432
Confiscation of foreign origin Cigarette under Section 111(d) of Customs Act, 1962 - levy of penalty u/s 112(b) (i) of the Customs Act, 1962 - sufficiency of the Panchnama (seizure memo) drawn during the investigation - admissibility of the statements recorded under Section 108 of the Customs Act, 1962 - burden of proof - Valuation of the seized goods.
Validity of panchnama - HELD THAT:- From the perusal of the Panchama, it is found that all the basic and relevant information required at that stage were duly incorporated. The time and place of calling the panch witnesses, the identity of the officer has been clearly mentioned, the purpose of the whole proceedings was duly intimated. The further details of accompanying the officers at the site in question at the time and place and specific details of the nature of the truck and its registration number which was intercepted have been mentioned in the Panchama. The next important step was the identification of the three persons, who were found supervising the unloading of the main truck, the driver, the helper and agent of the supplier. Further, the production of the E- way bill with serial number 491041939631 dated 20.12 .2018 describing the goods as metal planter and on being checked randomly, cartons of cigarettes of foreign origin with brand name of Indonesia was found. Similarly the search of the godown resulted in the recovery of foreign origin cigarettes, however, none was able to produce valid documents for carriage or possession of the said cigarettes.
In the case of Mukesh Industries [2008 (8) TMI 667 - CESTAT, AHMEDABAD], it was noticed that the adjudicating authority himself has held that Panchama so recorded cannot be relied upon as the same was found to be recorded by unfair means, which is not the case here. In that case, it was held that if the drawal of the Panchama was itself doubtful, the entire case booked by the Preventive Branch cannot be allowed to stand on its own legs. Such is not the case here and moreover, it is not apparent from the order as to the nature of defects or deficiencies found in the Panchnama. In the case of Anand Kumar, it is the Department who filed the appeal against the order of the Commissioner (Appeals) who had found the panchnama to be doubtful. The present case is entirely different, and hence no reliance can be placed on the said decision.
In view of the settled principle that illegal search and seizure, would not be rejected but requires to be examined carefully, it is opined that the so-called deficiencies made out by the appellant are not required to be part of the Panchnama and, therefore, does not affect the reliability of the Panchama.
Statements recorded under section 108 of the Act being without any corroboration - HELD THAT:- The law on the admissibility of the confessional statement made to the customs officers has been settled in large number of decisions that if found to be voluntary, can form the sole basis for conviction. The self-implicatory statement given by the appellant clearly establishes his involvement in smuggling of the seized cigarettes of foreign origin in the absence of any valid documents. The statement has not been retracted by the appellant at any point of time.
The goods seized in the present case are cigarettes of foreign origin. From the legal provisions cigarettes can be freely imported subject to the provisions of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and the Rules framed thereunder which envisages that on the box, carton, and pouch type of package, the specified health warning shall appear on both sides of the packages and shall cover 85% of each side or face of the principal display and 60% shall cover pictorial health warning and 25% shall cover textual health warning. No such compliance was found on the seized foreign origin cigarette packets. Also under the Legal Metrology Packaged Commodities Rules 2011, framed under Legal Metrology Act, 2009 it is mandatory to provide the name and address of the manufacturer or importer or packer, quantity of the product, month and year of manufacturing or pre-packing or importation, the retail sale price etc. on the packages of tobacco products, which were not found on examination of the goods seized.
Burden of proof - HELD THAT:- The cartons of cigarettes of foreign origin were seized in the presence of the appellant from the mini truck, godown and the residential premises of the appellant. As noted above, the appellant failed to produce any document to prove that the cigarettes seized were validly imported. In the absence thereof, the authorities below have rightly concluded that the goods in question were smuggled goods and was therefore rightly confiscated.
Valuation of the seized goods - HELD THAT:- The e-way bill provided at the time of search, described the goods as metal planters whereas on search, cartons containing cigarettes of foreign origin were recovered which were found to be smuggled goods. It is not a case of rejection of the declared value as there was no declared value and hence the applicability of the Valuation Rules does not arise. The appellant neither produced the documents in support of the import made or the value declared and since the smuggled goods being cigarettes, the price thereof was verified on the basis of discrete market enquiry. In the facts and circumstances of the case, no interference is called for in the market price arrived at by the department.
Conclusion - i) The Panchnama as quoted above, clearly sets out the entire procedure of the search and seizure, leading to the recovery of smuggled cigarettes for which the applicant was not able to produce any legal documents. ii) Once an admission has been made by the petitioner, the denial of right to cross examine the witnesses is justified as no prejudice can be pleaded by such a party. iii) The burden is on the appellant to establish that the seized cigarettes were not smuggled.
There is no reason to interfere with the impugned order and hence the same is hereby affirmed. The appeal is, accordingly, dismissed.
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2025 (6) TMI 381
Seeking release of detained gold - detention and confiscation of goods without issuance of a valid show cause notice and personal hearing - violation of principles of natural justice - waiver of SCN - pre-printed waiver obtained by the Customs Department from the Petitioner - HELD THAT:- It is noted that no Show Cause Notice has been issued in this case as the Customs Department is relying on the standard pre-printed waiver that was obtained from the Petitioner. The validity of such pre-printed waiver of show cause notices and personal hearing has been considered by this Court in various matters, including in Amit Kumar v. The Commissioner of Customs [2025 (2) TMI 385 - DELHI HIGH COURT].
The law is well settled, that the Customs Department cannot rely on pre-printed waiver of show cause notice as the same would be contrary to the requirement of Section 124 of the Act. In light of the above discussions, it is clear that the continued detention or seizure of goods by the Customs Department would be untenable in law, where the show cause notice or the personal hearing have been waived via a pre-printed waiver - in the facts of this case, since no show cause notice has been issued to the Petitioner due to a pre-printed waiver, the detained goods would be liable to be released to the Petitioner.
The impugned order-in-original is set aside to the effect that it orders absolute confiscation. However, in the facts of this case, the Petitioner shall pay the penalty of Rs. 1,00,000/- and 50% of the warehousing/storage charges.
Conclusion - i) The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. The SCN in the present case is accordingly deemed to have not been issued and thus the detention itself would be contrary to law.
Petition disposed off.
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2025 (6) TMI 380
Seeking release of deatined goods - detention and confiscation of goods without issuance of a valid show cause notice and personal hearing - violation of principles of natural justice - waiver of SCN - pre-printed waiver obtained by the Customs Department from the Petitioner - HELD THAT:- It is noted that no Show Cause Notice has been issued in this case as the Customs Department is relying on the standard pre-printed waiver that was obtained from the Petitioner. The validity of such pre-printed waiver of show cause notices and personal hearing has been considered by this Court in various matters, including in Amit Kumar v. The Commissioner of Customs [2025 (2) TMI 385 - DELHI HIGH COURT].
The law is well settled, that the Customs Department cannot rely on pre-printed waiver of show cause notice as the same would be contrary to the requirement of Section 124 of the Act. In light of the above discussions, it is clear that the continued detention or seizure of goods by the Customs Department would be untenable in law, where the show cause notice or the personal hearing have been waived via a pre-printed waiver - in the facts of this case, since no show cause notice has been issued to the Petitioner due to a pre-printed waiver, the detained goods would be liable to be released to the Petitioner.
The impugned order-in-original is set aside to the effect that it orders absolute confiscation. However, in the facts of this case, the Petitioner shall pay the penalty of Rs. 1,00,000/- and 50% of the warehousing/storage charges.
Conclusion - i) The absolute confiscation order was set aside due to non-compliance with Section 124. ii) The detained jewellery was ordered to be released upon payment of penalty and storage charges. iii) The petitioner's waiver of SCN and hearing was held invalid and cannot be relied upon to bypass statutory safeguards.
Petition disposed off.
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2025 (6) TMI 379
Seeking release of detained articles - personal effects or not - detention and confiscation of goods without issuance of a valid show cause notice and personal hearing - violation of principles of natural justice - waiver of SCN - pre-printed waiver obtained by the Customs Department from the Petitioner - HELD THAT:- The issue whether gold jewellery worn by a passenger would fall within the ambit of personal effects under the Rules, has now been settled by various decisions of the Supreme Court as also this Court.
The Supreme Court in the Directorate of Revenue Intelligence and Ors. v. Pushpa Lekhumal Tolani, [2017 (8) TMI 684 - SUPREME COURT], while considering the relevant provisions of the Customs Act, 1962 (hereinafter, the ‘Act’) read with the Baggage Rules, 1998, that were in force during the relevant period, held that it is not permissible to completely exclude jewellery from the ambit of ‘personal effects’.
Thus, it is now settled that the used jewellery worn by the passenger would fall within the ambit of personal effects in terms of the Rules, which would be exempt from detention by the Customs Department - In view of the above and considering the facts of the case, it is clear that the detained articles are the personal effects of the Petitioner.
The detained articles being personal effects of the Petitioner, the detention of the same itself would be contrary to law. Accordingly, the detained articles would be liable to be released on this ground itself. The gold items shall be released by the Customs Department to the Petitioner.
Conclusion - i) The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. ii) The impugned Order-in-Original dated 1st August, 2024 is set aside to the extent that it orders absolute confiscation.
The impugned Order-in-Original dated 1st August, 2024 is set aside to the extent that it orders absolute confiscation - petition disposed off.
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2025 (6) TMI 378
Seeking release of one gold chain and iPhones - goods were for personal use or not - detention and confiscation of goods without issuance of a valid show cause notice and personal hearing - violation of principles of natural justice - waiver of SCN - pre-printed waiver obtained by the Customs Department from the Petitioner - HELD THAT:- The detained gold chain weighing 117 grams has been permitted to be released subject to payment of a sum of Rs. 1,10,000/- along with applicable duty - whereas the three iPhones have been ordered for absolute confiscation.
It is noted that no Show Cause Notice has been issued in this case as the Customs Department is relying on the standard pre-printed waiver that was obtained from the Petitioner. The validity of such pre-printed waiver of show cause notices and personal hearing has been considered by this Court in various matters, including in Amit Kumar v. The Commissioner of Customs [2025 (2) TMI 385 - DELHI HIGH COURT].
The law is well settled, that the Customs Department cannot rely on pre-printed waiver of show cause notice as the same would be contrary to the requirement of Section 124 of the Act. In light of the above discussions, it is clear that the continued detention or seizure of goods by the Customs Department would be untenable in law, where the show cause notice or the personal hearing have been waived via a pre-printed waiver - in the facts of this case, since no show cause notice has been issued to the Petitioner due to a pre-printed waiver, the detained goods would be liable to be released to the Petitioner.
Since the Petitioner is already before the Revisional Authority, in so far as the gold chain is concerned, the same is directed to be released upon payment of the redemption fine and storage charges only - Further, in so far as the three iPhones are concerned, let the Revisional Authority decide the same within a period of two months, bearing in mind the order passed by this Court in Chaksu Garg [2025 (6) TMI 277 - DELHI HIGH COURT], where the Adjudicating Authority had given an option to redeem the seized iPhones upon payment of Rs. 32,000/- as redemption fee.
Conclusion - i) The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. ii) The order passed in original without issuance of SCN and without hearing the Petitioner, is not sustainable in law.
Petition disposed off.
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2025 (6) TMI 377
Seeking release of the silver polished gold chain - reliability of a pre-printed waiver signed by the petitioner to dispense with the issuance of a show cause notice (SCN) and personal hearing as required under Section 124 of the Customs Act, 1962 - till date no show cause notice has been issued and no personal hearing has been granted to the Petitioner - Violation of principles of natural justice - HELD THAT:- It is noted that no show cause notice has been issued in this case as the Customs Department is relying on the standard pre-printed waiver that was obtained from the Petitioner. The validity of such pre-printed waiver of SCN and personal hearing has been considered by this Court in various matters, including in Amit Kumar v. The Commissioner of Customs, [2025 (2) TMI 385 - DELHI HIGH COURT] and Mr Makhinder Chopra vs Commissioner of Customs New Delhi, [2025 (3) TMI 19 - DELHI HIGH COURT] where it was held that 'This Court is of the opinion that the printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. The SCN in the present case is accordingly deemed to have not been issued and thus the detention itself would be contrary to law. The order passed in original without issuance of SCN and without hearing the Petitioner, is not sustainable in law.'
Thus, the law is well settled, that the Customs Department cannot rely on pre-printed waiver of show cause notice as the same would be contrary to the requirement of Section 124 of the Act. In light of the above discussions, it is clear that the continued detention or seizure of goods by the Customs Department would be untenable in law, where the show cause notice or the personal hearing have been waived via a pre-printed waiver.
Once the goods are detained, it is mandatory to issue a Show Cause Notice and afford a personal hearing to the Petitioner. The time prescribed under Section 110 of Act, is a period of six months. However, subject to complying with the requirements therein, a further extension for a period of six months can be taken by the Customs Department for issuing the show cause notice. In this case, the one year period itself has elapsed, yet no show cause notice has been issued. Accordingly, the detention is impermissible - the detention of the Petitioner’s jewellery is accordingly set aside.
Considering that the Petitioner is willing to re-export the detained jewellery, it is directed that the Petitioner shall appear for appraisement before the Customs Authority on 9th June, 2025. After accepting the undertaking for re-export and payment of storage charges/warehousing charges, the detained jewellery shall be released to the Petitioner - petition disposed off.
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2025 (6) TMI 376
Entitlement to duty drawback - whether unlocking of mobile phones would result in withdrawal of duty drawback benefits to the Petitioner? - HELD THAT:- This issue is no longer res integra and has been decided in a batch of cases, with the lead petition being, M/s AIMS Retail Services Private Limited v. Union of India & Ors. [2025 (2) TMI 596 - DELHI HIGH COURT] the Court has held that 'Drawbacks are benefits which are given to exporters and in the case of any ambiguity such benefits should go in favour of the exporters and not the other way round. The unlocking/activation of the mobile phone merely makes the mobile phone more usable in the destination country and the same would therefore not constitute “taken into use” under proviso to Rule 3 of Duty Drawback Rules.'
The Court has held that duty drawback may be claimed in respect of unlocked mobile phones being exported, as the mere act of unlocking does not constitute the phones being “taken into use” within the meaning of the applicable provisions. Given that a mobile phone is capable of being utilized in several ways, the mere unlocking thereof cannot be deemed as the Petitioners having “taken it into use.”
Furthermore, this Court has observed that with the expansion of mobile phone manufacturing and assembly in India, the volume of exports is expected to increase. The mere fact that the said products are configured for use in foreign jurisdictions cannot operate as a ground to deprive the Petitioners of their rightful claim to duty drawback under the prevailing legal framework. The present case also pertains to the Respondents’ rejection of the Petitioner’s request for duty drawback on unlocked mobile phones being exported.
The impugned Order-in-Original dated 26th June, 2023 is set aside - Appeal allowed.
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2025 (6) TMI 375
Levy of penalty u/s 112 and 114AA on Customs Broker - Abetment in offence - appellant accepted the IEC of an import firm mentioned by Ashok Kumar Agarwal knowing fully well that he was not a Director of Trips Communications - reasons to believe - violation of regulation 13 (d) and (e) of the Customs House Agents, Licensing Regulations, 2004 - HELD THAT:- As a holder of custom broker license issued under the Licensing Regulations, the appellant merely acts on the basis of the documents provided by the importer. The department has imposed penalty on the appellant under section 114AA of the Customs Act for the reason that the appellant connived with the importer. In the absence of anything on record to show that the appellant connived with the importer, penalty under section 114AA of the Customs Act could not have been imposed upon the appellant.
In the present case, both the Additional Commissioner and the Commissioner (Appeals) have held that the appellant accepted the IEC of a firm mentioned by Ashok Kumar Agarwal fully knowing that Ashok Kumar Agarwal was not the Director of Trip Communications. The Tribunal in Gopal Agarwal observed that since there is no bar under the Customs Act to import goods in the name of IEC holder and there is no offence under the Customs Act for lending IEC code, penalty cannot be imposed.
Section 114AA of the Customs Act provides that if a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of the Customs Act, shall be liable to a penalty not exceeding five times the value of goods.
The only allegation against the appellant is that the he was aware that the IEC was provided by Ashok Kumar Agarwal who was not the Director of Trip Communications. It has already been held that there is no bar in lending of IEC. Penalty under section 114AA of the Customs Act, therefore, could not have been imposed upon the appellant - The statements of Amit Kumar and Tripurari Nath and of the appellant made under section 108 of the Customs Act have been relied upon by the Commissioner (Appeals) for imposing penalty upon the appellant. Such statements could not have been relied upon as the procedure contemplated under section 138B of the Customs Act was not followed.
Conclusion - The penalties imposed under sections 112 and 114AA of the Customs Act, 1962, on the appellant were unsustainable due to lack of independent findings, absence of evidence of knowledge or connivance, failure to specify applicable sub-section, and improper reliance on inadmissible statements.
Appeal allowed.
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2025 (6) TMI 374
Rejection of classification of the imported goods self-assessed by the appellant under different Customs Tariff Item - whether Blower, Filter, Water Valve Assembly, Control Panel, Module JCBHP and Thermostat are classifiable as parts of air conditioner under CTI 8415 90 00 as claimed by the department or are classifiable under CTI 8414 59 30, CTI 8421 39 90, CTI 8481 10 90, CTI 8538 10 90 and CTI 9032 10 10 as claimed by the appellant? - HELD THAT:- The Notes to Section XVI provides certain rules which need to be applied while classifying any goods under Section XVI. Note 2 to Section XVI provides that parts of machines, which, by themselves are goods of Chapter 84 or 85, would be classified in their respective headings. The same is supported by the HSN Explanatory Notes to CTH 8415 which state that parts of air-conditioning machines have to be classified in accordance with Note 2(a) of Section XVI. Thus, even though the goods are parts of air conditioners, they would continue to be classified under their respective headings in terms of Note 2(a) of Section XVI for the reason that the goods are themselves goods of Chapter 84. Resort to Note 2(b) to Section XVI can be taken only when the goods cannot be classified by the application of Note 2(a). This view is supported by the HSN Explanatory Notes to CTH 8415.
The Supreme Court in M/S. SECURE METERS LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (5) TMI 241 - SUPREME COURT] observed that Note 2(b) would apply only when Note 2(a) is not applicable. The Supreme Court also held that Note 2(b) would apply only if the items in question are not specifically classifiable under their respective headings.
Blowers - HELD THAT:- By application of Note 2(a) to Section XVI and HSN Explanatory Note to CTH 8414 that blowers are correctly classifiable under CTI 8414 59 30. The Principal Commissioner has rejected the contention of the appellant for the reason that CTI 8414 59 30 covers only industrial blowers and, therefore, the blower imported by the appellant cannot be covered under this entry. The Principal Commissioner was not justified in this arriving at this conclusion. CTI 8414 59 30 reads as “industrial fans and blowers”. It, therefore, covers two separate categories of productions namely “industrial fans” and “blowers”. Blowers would, therefore, have to be treated as separate category of goods and not as industrial blowers.
Filters - HELD THAT:- CTH 8421 reads as follows: “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases”. It would be seen that CTI 8421 39 90 covers various kinds of machinery or apparatus which are used for filtering or purifying gases. The filters imported by the appellant are used for filtering of gases in automobiles air-conditioners - the appellant was, therefore, justified in classifying 'filters' under CTI 8421 39 90.
Water Well Assembly - HELD THAT:- Water Well Assemblies imported by the appellant control the flow of coolant (liquid) in the cabin heating system of the vehicle. The product functions like a tap. It is, therefore, specifically covered under CTH 8481 and, would fall under CTI 8481 80 90.
Thermostat - HELD THAT:- CTH 9032 covers “automatic regulating or controlling instruments and apparatus.” Note 7(a) to Chapter 90 states that all the instruments or apparatus used for automatically controlling the temperature by constantly or periodically measuring the actual value shall be classified under CTH 9032. In the present case, the product 'thermostat' is an automatic regulating or controlling instrument/apparatus. Thus, by virtue of Note 7(a) to Chapter 90, the correct classification would be CTI 9032 10 10, which covers “thermostat used for refrigeration and air conditioning appliances and machinery.”
Control Panel - HELD THAT:- CTH 8538 covers “parts suitable for use solely or principally with the apparatus of headings 8535, 8536 or 8537.” The product in dispute is an injection moulded plastic plate used in the assembly of control panel. Once assembled, it forms the outer cover of the control panel. The control panel is classifiable under CTH 8537. Since the plastic case of the control panel has indications of the control panel and is meant to be used solely or principally with it, it deserves to be classified under CTH 8537. Therefore, the imported goods would fall under CTH 8538 and more particularly under CTI 8538 10 90.
Module JCBHP - HELD THAT:- CTH 9032 covers “automatic regulating or controlling instruments and apparatus.” The product is connected with air conditioner and is a device to control temperature automatically in the vehicle. Thus, this product would be classifiable based on its function, namely to control the temperature automatically in the vehicle. It would, therefore, be classifiable under CTI 9032 10 10.
Conclusion - The classification adopted by the appellant for the goods was correct and the order passed by the Principal Commissioner for reassessment goods under CTI 8415 90 00 as parts of air conditioner cannot be sustained. The differential basic custom duty with interest could not have been levied upon the appellant.
The impugned order dated 17.03.2021 passed by the Principal Commissioner is, accordingly, set aside and the appeal is allowed.
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2025 (6) TMI 373
Smuggling of gold bars of foreign origin brought into India from China via Bhutan - reliance placed upon the statements of the three intercepted persons - levy of penalty u/s 112(b) of the Customs Act, 1962 - HELD THAT:- On going through the statement, it is found that the appellant has never admitted that he was engaged in the activity of smuggling of gold. Moreover, it is the statement on record that the appellant never procured any gold or silver from any bank or wholesaler. From the said statement, it is not forthcoming as to the appellant being involved in the alleged activity of smuggling of the gold in question from Bhutan by the said three apprehended persons. It is also observed that no corroborative evidence has been brought on record by the Revenue to establish the involvement of the appellant in the alleged smuggling of the gold in question.
Conclusion - In these circumstances, merely on the basis of statements of the three apprehended persons who were involved in the activity of smuggling of gold, penalty cannot be imposed on the appellant.
The penalty imposed on the appellant under Section 112(b) of the Customs Act, 1962 is set aside - appeal allowed.
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2025 (6) TMI 372
Invocation of jurisdiction under section 28AAA of the Customs Act, without the Directorate General of Foreign Trade (DGFT) initiating or completing cancellation proceedings of the relevant export license or instrument - adjudication could be done as the DGFT did not cancel the instrument or not - HELD THAT:- This issue was examined by the Delhi High Court in M/s Amit Exports. The Delhi High Court held that it was not possible to recognize a right that may be to said to inhere in the customs authority to doubt the issuance of the instrument. After referring to the FTP 2015-20, the Delhi High Court held that it provides in paragraph 2.57 that it would be the decision of the DGFT on all matters pertaining to interpretation of policy, provisions in the handbook of procedures and so it would be impermissible for the customs authority to deprive a holder of the instrument the benefits that can be claimed, absent any adjudication of declaration of invalidity by the DGFT.
The impugned order is without jurisdiction as the DGFT has neither cancelled the instrument nor even initiated proceedings for cancellation of the instrument.
The responsibility of the exporter does not end with obtaining the Let Export Order. In this case, neither side produced before us the documents which were produced as proof that the goods reached the Focus Market. The Customs authorities investigating the matter should have summoned the relevant documents from the DGFT. Either the goods must have reached the Focus Market or if they were diverted, the exporter may have submitted fake documents as proof of landing or the DGFT may have issued the scrips without obtaining the proof of landing. The impugned order, however, does not address this issue.
Penalties u/s 114AA and section 114(iii) of the Customs Act - HELD THAT:- The title of the goods passed to the buyer as soon as the Let Export Order was issued and the appellant was not responsible for any changes that may have been made in regard to the destination port. Section 114AA provides that if a person knowingly or intentionally makes, signs or uses or causes to be made, any material particular, in the transaction of any business for the purposes of the Customs Act, shall be liable to a penalty not exceeding five times the value of goods. The Principal Commissioner has relied upon the statement made under section 108 of the Customs Act that the changes were made on the instructions given by the appellant. This statement, for the reasons stated above, cannot be relied upon as evidence. Thus, penalty under section 114AA of the Customs Act could not have been imposed upon the appellant.
Penalties u/s 114(iii) of the Customs Act - HELD THAT:- The Principal Commissioner has confiscated the goods under section 113 of the Customs Act for the reason that the appellant and Imran Mirza colluded. This finding is again based on the statement made by Imran Mirza under section 108 of the Customs Act, which statement cannot be relied upon for the reasons stated above. Confiscation of goods would, therefore, have to be set aside and consequently, penalty under section 114(iii) of the Customs Act could not have been levied upon the appellant.
Conclusion - The impugned order dated 09.03.2022 set aside in entirety, holding that the Principal Commissioner lacked jurisdiction to invoke section 28AAA without DGFT cancellation, that the evidence relied upon was inadmissible, and that penalties and confiscation could not be sustained on the record before it.
It is, therefore, not possible to sustain the order dated 09.03.2022 passed by the Principal Commissioner. It is, accordingly, set aside and the appeal is allowed.
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2025 (6) TMI 371
Levy of penalty upon the appellant u/s 114 (iii) of the Customs Act, 1962 - diversion of export consignment covered under the five shipping bills to Jebel Ali to assist the exporter to fraudulently avail the benefit of the Focus Market Scheme without exporting the goods to the notified country.
HELD THAT:- Penalty has been imposed on the appellant holding that the appellant assisted and connived with Imran Mirza, Proprietor of Concorde Shipping Agency and the exporter in diverting the container containing the export goods covered under subject five shipping bills.
Section 114 (iii) of the Customs Act provides that any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113 of the Customs Act shall be liable to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under the Customs Act, which ever is greater. The Commissioner confiscated the goods under section 113 of the Customs Act. As noticed above, the confiscation of goods has been set aside by order of date in Customs Appeal No. 55760 of 2023 filed by Color Cottex. Consequently, penalty under section 114(iii) of the Customs Act cannot be levied upon the appellant.
Thus, the imposition of penalty under section 114(iii) of the Customs upon the appellant is set aside.
The impugned order dated 15.09.2021 passed by the Commissioner in so far as it imposes penalty upon the appellant is set aside - Appeal allowed.
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2025 (6) TMI 370
Levy of penalty u/s 114(iii) and section 114AA of the Customs Act, 1962 - diversion of goods to Jebel Ali in UAE by fraudulently amending TR-1 and TR-2 copies of the shipping bills with the help of the appellant - statements recorded under section 108 of the Customs Act, can be considered as evidence under section 138B of the Customs Act or not - HELD THAT:- A perusal of the order passed by the Commissioner (Appeals) shows that the finding that the appellant helped the exporters in diverting the readymade garments to countries not notified under the Focus Market Scheme for claiming undue benefit of drawback under the Focus Market Scheme is based on the statement made by the appellant under section 108 of the Customs Act as also the statements made by the exporters under section 108 of the Customs Act. The Commissioner (Appeals) also observed that the said statements have not been retracted and so they cannot be ignored.
Reference can be made to the decision of the Tribunal in M/s Surya Wires Pvt. Ltd. vs. Principal Commissioner, CGST, Raipur [2025 (4) TMI 441 - CESTAT NEW DELHI]. The Tribunal examined the provisions of sections 108 and 138B of the Customs Act as also the provisions of sections 14 and 9D of the Central Excise Act, 1944 and observed that 'What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as an evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made. It is only when this procedure is followed that the statements of the persons making them would be of relevance for the purpose of proving the facts which they contain.'
In view of the aforesaid decision of the Tribunal in Surya Wires, the statements made by the appellant and the exporters under section 108 of the Customs Act could not have been considered by the Commissioner of Customs (Appeals). The finding that has been recorded by the Commissioner (Appeals) that the appellant helped the exporters in availing the benefit of drawback cannot, therefore, be sustained.
In this view of the matter, the penalties that have been imposed upon the appellant under sections 114(iii) and 114AA of the Customs Act based on the statements of the appellant and the exporters are set aside.
The impugned order dated April 04, 2022 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside - appeal allowed.
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2025 (6) TMI 369
Invocation of jurisdiction under section 28AAA of the Customs Act, without the Directorate General of Foreign Trade (DGFT) initiating or completing cancellation proceedings of the relevant export license or instrument - adjudication could be done as the DGFT did not cancel the instrument or not - HELD THAT:- This issue was examined by the Delhi High Court in M/s Amit Exports. The Delhi High Court held that it was not possible to recognize a right that may be to said to inhere in the customs authority to doubt the issuance of the instrument. After referring to the FTP 2015-20, the Delhi High Court held that it provides in paragraph 2.57 that it would be the decision of the DGFT on all matters pertaining to interpretation of policy, provisions in the handbook of procedures and so it would be impermissible for the customs authority to deprive a holder of the instrument the benefits that can be claimed, absent any adjudication of declaration of invalidity by the DGFT.
The impugned order is without jurisdiction as the DGFT has neither cancelled the instrument nor even initiated proceedings for cancellation of the instrument.
The responsibility of the exporter does not end with obtaining the Let Export Order. In this case, neither side produced before us the documents which were produced as proof that the goods reached the Focus Market. The Customs authorities investigating the matter should have summoned the relevant documents from the DGFT. Either the goods must have reached the Focus Market or if they were diverted, the exporter may have submitted fake documents as proof of landing or the DGFT may have issued the scrips without obtaining the proof of landing. The impugned order, however, does not address this issue.
Penalties u/s 114AA and section 114(iii) of the Customs Act - HELD THAT:- The title of the goods passed to the buyer as soon as the Let Export Order was issued and the appellant was not responsible for any changes that may have been made in regard to the destination port. Section 114AA provides that if a person knowingly or intentionally makes, signs or uses or causes to be made, any material particular, in the transaction of any business for the purposes of the Customs Act, shall be liable to a penalty not exceeding five times the value of goods. The Principal Commissioner has relied upon the statement made under section 108 of the Customs Act that the changes were made on the instructions given by the appellant. This statement, for the reasons stated above, cannot be relied upon as evidence. Thus, penalty under section 114AA of the Customs Act could not have been imposed upon the appellant.
Penalties u/s 114(iii) of the Customs Act - HELD THAT:- The Principal Commissioner has confiscated the goods under section 113 of the Customs Act for the reason that the appellant and Imran Mirza colluded. This finding is again based on the statement made by Imran Mirza under section 108 of the Customs Act, which statement cannot be relied upon for the reasons stated above. Confiscation of goods would, therefore, have to be set aside and consequently, penalty under section 114(iii) of the Customs Act could not have been levied upon the appellant.
Conclusion - The impugned order dated 29.05.2019 set aside in entirety, holding that the Principal Commissioner lacked jurisdiction to invoke section 28AAA without DGFT cancellation, that the evidence relied upon was inadmissible, and that penalties and confiscation could not be sustained on the record before it.
It is, therefore, not possible to sustain the order dated 29.05.2019 passed by the Principal Commissioner. It is, accordingly, set aside and the appeal is allowed.
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2025 (6) TMI 368
Invocation of jurisdiction under section 28AAA of the Customs Act, without the Directorate General of Foreign Trade (DGFT) initiating or completing cancellation proceedings of the relevant export license or instrument - adjudication could be done as the DGFT did not cancel the instrument or not - HELD THAT:- This issue was examined by the Delhi High Court in M/s Amit Exports. The Delhi High Court held that it was not possible to recognize a right that may be to said to inhere in the customs authority to doubt the issuance of the instrument. After referring to the FTP 2015-20, the Delhi High Court held that it provides in paragraph 2.57 that it would be the decision of the DGFT on all matters pertaining to interpretation of policy, provisions in the handbook of procedures and so it would be impermissible for the customs authority to deprive a holder of the instrument the benefits that can be claimed, absent any adjudication of declaration of invalidity by the DGFT.
The impugned order is without jurisdiction as the DGFT has neither cancelled the instrument nor even initiated proceedings for cancellation of the instrument.
The responsibility of the exporter does not end with obtaining the Let Export Order. In this case, neither side produced before us the documents which were produced as proof that the goods reached the Focus Market. The Customs authorities investigating the matter should have summoned the relevant documents from the DGFT. Either the goods must have reached the Focus Market or if they were diverted, the exporter may have submitted fake documents as proof of landing or the DGFT may have issued the scrips without obtaining the proof of landing. The impugned order, however, does not address this issue.
Penalties u/s 114AA and section 114(iii) of the Customs Act - HELD THAT:- The title of the goods passed to the buyer as soon as the Let Export Order was issued and the appellant was not responsible for any changes that may have been made in regard to the destination port. Section 114AA provides that if a person knowingly or intentionally makes, signs or uses or causes to be made, any material particular, in the transaction of any business for the purposes of the Customs Act, shall be liable to a penalty not exceeding five times the value of goods. The Principal Commissioner has relied upon the statement made under section 108 of the Customs Act that the changes were made on the instructions given by the appellant. This statement, for the reasons stated above, cannot be relied upon as evidence. Thus, penalty under section 114AA of the Customs Act could not have been imposed upon the appellant.
Penalties u/s 114(iii) of the Customs Act - HELD THAT:- The Principal Commissioner has confiscated the goods under section 113 of the Customs Act for the reason that the appellant and Imran Mirza colluded. This finding is again based on the statement made by Imran Mirza under section 108 of the Customs Act, which statement cannot be relied upon for the reasons stated above. Confiscation of goods would, therefore, have to be set aside and consequently, penalty under section 114(iii) of the Customs Act could not have been levied upon the appellant.
Conclusion - The impugned order dated 29.05.2019 set aside in entirety, holding that the Principal Commissioner lacked jurisdiction to invoke section 28AAA without DGFT cancellation, that the evidence relied upon was inadmissible, and that penalties and confiscation could not be sustained on the record before it.
It is, therefore, not possible to sustain the order dated 29.05.2019 passed by the Principal Commissioner. It is, accordingly, set aside and the appeal is allowed.
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2025 (6) TMI 367
Suspension of the appellant’s CB license - forfeiture of security deposit - levy of penalty - contravention of Regulations 10(d), 10(e) and 10(n) of CBLR, 2018 - the appellants CB firm had played the role of facilitating such exports by mis-use of documents with the intention of availing undue IGST refunds and other export incentives in a fraudulent manner.
Violation of regulation 10(d) of CBLR, 2018 - HELD THAT:- In the instant case, the ineligible claim for export incentives was found by the department only on the basis of specific investigation conducted by the ACC customs authorities, and hence the appellants CB cannot be found fault for the reason that they did not advise their client exporter to comply with the provisions of the Act. Further, the impugned order also indicated that out of 7 S/Bs filed by the exporter, 4 S/Bs were filed in the past, and these consignments were also allowed by customs authorities at the port of export. Thus, when the customs authorities were not aware of the non-genuineness of the prices, there is no possibility for the appellants CB to be aware of the same, and to bring it to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) about the mis-declaration of exported goods - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable.
Violation of regulation 10(e) of CBLR, 2018 - HELD THAT:- The charges framed under CBLR, 2018 for which the adjudicating authority is required to give specific findings on the basis of inquiry proceedings conducted as per Regulation 17 and 18 ibid. Further, with respect of the value of export goods, the appellants CB did not impart any specific information to the exporter, rather it is the case that such information was provided by the exporter to the appellants CB. Thus, it is not feasible to sustain a charge on the appellants CB, that they did not exercise due diligence to impart correct information to their clients on the basis of market survey done much later after the exports in the past cases having been allowed for export by the very same Customs authorities at ACC, Mumbai - the conclusion arrived at by the Principal Commissioner of Customs (General) is without any basis of documents or facts, in the impugned order with respect to Regulation 10(e) ibid, and therefore it is not sustainable.
Violation of Regulation 10(n) of CBLR, 2018 - HELD THAT:- The appellants CB had obtained the KYC documents from the exporter M/s Jamilar International Private Limited vide their authorization letter addressed to the Deputy Commissioner of Customs, General Undertaking letter of the exporter to comply with customs authorities for any demand of duty, submission of documents; and verified the existence of the exporter through the Certificate of Importer-Exporter Code issued by the Zonal Director General of Foreign Trade, Ministry of Commerce and Industry, Government of India, New Delhi indicating the name along with address, name of the Director; GST Registration Certificate in GST REG-06 dated 06.10.2018; signature and account verification letter from Kotak Mahindra Bank, Peeragarhi, New Delhi - in the present case, the appellants CB had obtained the KYC documents and submitted the same to the Customs Department. Thus, there are no legal basis for upholding of the alleged violation of Regulation 10(n) ibid by the appellants in the impugned order on the above issue.
Hon’ble High Court of Delhi has held in the case of Kunal Travels (Cargo) Vs. Commissioner of Customs (I&G), IGI Airport, New Delhi [2017 (3) TMI 1494 - DELHI HIGH COURT], the appellants CB is not an officer of Customs who would have an expertise to identify mis- declaration of goods.
Conclusion - There are no merits in the impugned order passed by the learned Principal Commissioner of Customs (General), Mumbai in revocation of the CB license of the appellants; for forfeiture of security deposit and for imposition of penalty on the appellants, inasmuch as there is no violation of regulations 10(d), 10(e) and 10(n) ibid, and the findings in the impugned order 19.07.2024 is contrary to the facts on record.
The impugned order is set aside - appeal allowed.
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2025 (6) TMI 280
Seeking grant of Regular bail - Smuggling - concealing narcotic substance in the body - non-compliance of Section 42 of the NDPS Act - prior information and recording thereof before interception, search, and seizure - HELD THAT:- There can be no doubt that the applicant was under the “custody” of the respondent, since the time of his interception on 21.05.2025. As pointed out hereinabove, “The Handing Over” –“Taking Over” memos prepared by the Customs clearly show the transfer of applicant’s custody from one officer to the other of the respondent. It is further recorded therein, that appropriate procedure was to be followed as per the Customs Act, 1962 or NDPS Act, 1985 meaning thereby, that the concerned Officers were conscious of the fact that the applicant was being detained for suspicion of commission of offence punishable under the NDPS Act. It is the case of the respondent itself, that the applicant had admitted that he was carrying capsules of contraband for which he was taken to Safdarjung Hospital for ejection. Although, the case of the respondent is that there was no prior information with regard to the applicant, however, the two documents as pointed out hereinabove, i.e., panchnama dated 26.05.2023 and seizure memo under Section 43(a) of the NDPS Act dated 26.05.2023, clearly records the fact that there was specific intelligence with regard to arrival of the present applicant with the allegedly recovered contraband.
In the present case, admittedly, the documents of the respondent shows that there was specific intelligence/prior information with regard to the arrival of the present applicant with the contraband. It is, however, the case of the respondent in the complaint filed before the learned Special Court that the applicant was intercepted on the basis of suspicion/profiling. The sequence of events and record would reflect that from the very interception, the respondent had reasons to believe that the applicant was carrying the contraband recovered - The respondent was bound to comply with the aforesaid provisions from the time the applicant was intercepted at the IGI Airport. In any case, when the first set of capsules were seized by panchnama dated 21.05.2023, the respondent was bound to act in accordance with the provisions of the NDPS Act. It is pertinent to note that the report under Section 57 of the NDPS Act was sent only on 26.05.2023.
The respondent without producing the applicant within 24 hours of his detention continued to keep him in Safdarjung Hospital till his final arrest on 26.05.2023. In view of the above, this Court holds that the applicant was kept in illegal custody by the respondent from 21.05.2023 to 25.05.2023. His arrest on 26.05.2023 stands vitiated. The rights of the applicant guaranteed under Articles 21 and 22 of the Constitution of India have been violated, and therefore, he has to be released on bail despite the restrictions provided under Section 37 of the NDPS Act. The applicant has been in judicial custody since the date of his formal arrest, i.e., 26.05.2023, and has undergone incarceration for more than 2 years as of today.
Conclusion - The applicant is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 25,000/- with one surety of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to the fulfillment of conditions imposed.
Bail application allowed.
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2025 (6) TMI 279
Amendment of the In-bond Bills of Entry - re-export of goods stored in an FTWZ/SEZ unit - HELD THAT:- The Order-in-Original permitted re-export but subject to payment of a redemption fine. The Order-in-Original was not challenged by the Customs authorities and therefore the issue of reexport not being challenged by the Customs authorities has attained finality qua them.
The Customs Authorities have filed an Appeal bearing No. CUAPP(L)/14143/2025 challenging the CESTAT Order. However, there is no challenge to, and no embargo against the re-export. This Court need not opine in any manner whatsoever on the merits or the maintainability of the Appeal that is filed by the Customs Authority against the Order of CESTAT in the present matter. The said Appeal will be considered on its own merits.
Petition disposed off.
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2025 (6) TMI 278
Validity of order sanctiong partial refund - HELD THAT:- The impugned order dated 20.03.2024 deserves to be set aside and the proceedings, in the present case, are required to be remanded to Respondent No. 3 for fresh consideration.
Petition allowed.
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