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Customs - Case Laws
Showing 181 to 200 of 246 Records
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2015 (12) TMI 477 - BOMBAY HIGH COURT
Constitutional validity of Circular - Prohibition on import of Alloy Steel of Deformed Bars/ Deformed Bars - whether ultra vires Articles 14, 19(1)(g) and 300A of the Constitution of India - Circular No.450/176/2014CustIV dated 7th November, 2014 - goods falling under Chapter Heading 72.28 of CTA - Held that:- The statement of objects and reasons to the BIS Act reveals as to how a national strategy for according appropriate recognition and importance of standards is to be evolved and integrated with the growth and development of production and export in various sectors of the national economy. That is why all the sectors have to intensify efforts to produce more and more standard and quality goods so as to help in inducing faster growth, increasing exports and making available goods to the satisfaction of the consumers. Towards this end, the Act has been enacted and the terms have been defined.
Ministry of Steel has urged that imports circumventing the said Steel Products Quality Control Order, 2012 should stopped in view of their damage to the interest of the Indian Steel industry as well as from the angle of safety of infrastructure and housing projects in the country.
They have to necessarily meet with the specifications set out in the standards and have to bear the standard mark of the BIS. This is apparent from reading of Foreign Trade Policy, 2009-2014, ITC (HS), 2012. The Import Policy and General Notes regarding import policy, whereunder it is stipulated that all goods imported into India are subject to mandatory Indian Standards as notified.
Standard devised for high strength deformed steel bars and wires for concrete reinforcement specification will have to be complied with. Mr. Nankani could not dispute that the schedule and which is styled as the Steel and Steel Products (Quality Control) Second (Amendment) Order, 2014 made by the Central Government under section 14 of the BIS Act, 1986 sets out the Indian standard number, the title of the goods and date of coming into force of the product standard to the extent set out therein. The ITC (HS) Code is for reference purposes. It also indicates as to how the title listing the steel products has to be construed and with reference to the ITC (HS)Code. The standards have to be complied with and from the dates mentioned therein.
Circular in no way prohibits the Petitioners from importing the goods. The same does not hold up unnecessarily the consignments. We are also not in agreement with the Petitioners that the Circular is based on irrelevant, extraneous and nongermane considerations. The circular is also not discriminatory or malafide. It is not ignoring any of the provisions of law. The Circular does not violate the mandate of Article 19(1)(g) of the Constitution of India or 300A of the Constitution of India - Decided against assessee.
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2015 (12) TMI 476 - ANDHRA PRADESH HIGH COURT
Import of Gold jewellery under the bilateral agreement (FTA) at concessional rate of duty - doubt has been entertained with regard to the origin of the goods as emanating from Indonesia - Provisional assessment of goods - Held that:- There is a specific procedure notified under FTA and in every aspect, the method and manner of issuance of certificate of origin, the method and manner of authentication and verification of the same and the terms framed within which is required to be made, have all been specified in detail. The respondent Authorities, without following the procedure as prescribed in the Regulations, merely on suspicion, had issued the impugned communication, thereby putting the onerous condition on the petitioners, which is otherwise unwarranted. The action of the respondents is totally contrary to the notified procedure and thus is in contravention of the Regulations affects the right to carry on the trade, apart from being arbitrary, is liable to be interfered with as offending Article 14 of the Constitution of India.
Bill of entry was filed on 23.06.2015 and time within which the Customs Authorities could have refused the certificate and commenced the request for retroactive check would be 22.08.2015. - there is no requirement of rejection (in fact there is no rejection of the Certificate of Origin in the present case), but there being a doubt that is required to be verified into, the same ought to have been commenced as soon as the bill of entry was presented or within a reasonable time of presentation of the bill of entry. Whereas in the present case to a specified query that was put by the Court to the learned Additional Solicitor General submitted, on instructions, that as on date the only action which has been taken by the authorities are the letters written by the 3rd respondent to the Commissioner and who in turn addressed a letter to the Director, International Customs Division, seeking an enquiry to be conducted. In other words even as on today, there are no steps which have been taken in terms of Rule 16(a) for the purpose of retroactive enquiry.
Specific aspect that Indonesia has the production capacity of only 65 tons of gold is being disputed by the petitioners by making a reference to the information available in public domain, particularly by placing on record a document titled GFMS Gold Survey 2014, update 2 prepared by Thomson Reuters, wherein Indonesia was stated to have produced 109 tons of gold. However, even a well intended action is to be taken to prevent unwarranted and excessive gold in to the country on a preferential treatment basis the same would have to be done in accordance with law and by adhering to the prescribed procedure. Mere entertaining of suspicion cannot be basis to put a citizens right to do business in jeopardy, which is a guaranteed freedom under Article 19(1)(g) of the Constitution of India. In the present set of facts, we are satisfied that the Authorities though acted in good faith, unfortunately the same is not being in conformity with the procedure prescribed, the demanding of 100% security cannot be justified.
Authorities have failed to adhere to the procedure with respect to entertaining of the doubt within the timeframe which is allowed under the Regulations. In the result, impugned communication is set aside - Decided in favour of assessee.
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2015 (12) TMI 475 - CESTAT KOLKATA
Waiver of pre deposit - Penalty u/s 114 and 114AA - Held that:- entire allegation rests on appreciation of evidence adduced by both the sides which would be analyzed at the time of disposal of Appeal. At this stage, the offer to deposit ₹ 30,000/-(Rupees Thirty Thousand only), considering the financial condition of the Applicant, seems to be reasonable. - Partial stay granted.
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2015 (12) TMI 474 - CESTAT NEW DELHI
Imposition of redemption fine - Goods not available for confiscation - Held that:- Neither the goods are available nor has been released on execution of bond, in that circumstances, we hold that decision of Weston Components Ltd. is not applicable to the facts of this case and the Larger Bench decision of this Tribunal in the case of Shiv Kripa Ispat Pvt. Ltd. [2009 (1) TMI 124 - CESTAT MUMBAI] wherein it has been held that in case neither the goods are available nor released under any bond, in that case, redemption fine is not imposable although the goods are liable for confiscation. Therefore, we hold that the learned Commissioner has rightly held that the goods are liable for confiscation but refrained from imposing redemption fine. Therefore, we do not find any infirmity in the impugned order, same is upheld. - Decided against Revenue.
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2015 (12) TMI 473 - CESTAT KOLKATA
Waiver of pre deposit - whether the IEC Code No. of M/s. Vinayak Impex was forged and used without their knowledge by some other persons or not - Held that:- there are statements of the co-notices recorded by the DRI for M/s. Arup Nag and Shri Robin Saha, partners of M/s. Vinayak Impex were key players acting on behalf of Sri Supriya Chowdhury and Sri Soni Bhadra. Details of the role played by M/s. Vinayak Impex can only be gone into at the time of final hearing of the case. Prima facie, the appellant M/s. Vinayak Impex has not made out a prima facie case for complete waiver of the penalty imposed by the adjudicating authority. - Partial stay granted.
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2015 (12) TMI 472 - CESTAT MUMBAI
Denial of the benefit of duty exemption - Whether the modvat credit was availed or not by the holder of the license - condition Notification No. 203/92-Cus dt. 19.05.1992 - Held that:- Main ground of appeal, that is reliance on the case of Hico Enterprises does not sustain as the matter was settled in favour of the transferees in that case. The judgments cited in the case of Special Steels Ltd., Friends Trading Co. and Tata Iron and Steel Co. Ltd. were considered by us in the case of Nidhi Textile. This judgment was passed after considering all the judicials pronouncements. In the present case before us we also find that the facts of Tata Iron & Steel Co. Ltd. case are at variance from the facts of the present case. In the Tata Iron & Steel Co. Ltd. case it is clear from the judgment that there was deliberate suppression of the fact that modvat credit had been availed and, therefore, the Honble Apex Court held that the extended period of demand would be applicable even to the transferee of the license. However in the present case as already noted above, no evidences are forthcoming from the records that there was availment of modvat credit. In the circumstances there is no merit in the grounds of appeal. - Decided against Revenue.
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2015 (12) TMI 471 - CESTAT NEW DELHI
Imposition of penalty under Regulation 20/22 of CHALR, 2004 - Seizure of goods - Misdeclaration - Held that:- facts narrated itself would show that the suspension of license was revoked on both occasions on the finding that the appellant has complied with the KYC norms. Though the authority has stated this, the penalty is seen imposed by a self contradicting ground that however, the documents being fake, there was no due diligence on the part of the appellant. It is stated in the impugned order that there is no evidence to conclude that the CHA had prior knowledge that the importer was bogus. When the license has been revoked with a clear cut finding that the appellant has complied with the KYC norms then I do not find any justifiable ground to impose penalty. - Decided in favour of appellant.
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2015 (12) TMI 432 - CESTAT MUMBAI
Waiver of pre deposit - 'bituminous coal' - denial of the benefit of Notification No. 12/2012-Cus. Dated 17/03/2012 - Classification of coal - Held that:- As per the explanatory Note 2 to Chapter 27, 'bituminous coal' means coal having a volatile matter limit (on a dry, mineral-matter-free basis) exceeding 14% and a calorific value limit (on a moist, mineral-matter-free basis) equal to or greater than 5833 kcal/kg. Any coal satisfying the above definition would merit classification as ‘bituminous coal’ under CTH 2701 12 notwithstanding the fact that the goods may be known otherwise in the commercial/trade parlance. As held by the hon’ble apex Court in the case of Indo International Industries vs. Commissioner Of Sales Tax, Uttar Pradesh [1981 (3) TMI 77 - SUPREME COURT OF INDIA] if any term or expression has been defined in the enactment, then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In the present case, since the Customs Tariff defines bituminous coal by means of certain specifications and if those specifications are satisfied, the goods will have to be classified as bituminous coal only and not otherwise. - Partial stay granted.
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2015 (12) TMI 431 - CESTAT NEW DELHI
Import of new radial tyres on a date after 24.11.2008 when imports of such tyres were restricted by DGFT in terms of Notification No. 64(RE)/20082004-2009 dated 24.11.2008 - Confiscation of goods - Imposition of redemption fine and penalty - Held that:- There was a proforma invoice of 13-10-2008 in response to which part payment of US $.14,300/- was sent on 18.11.2008 which was prior to the imposition of restriction on 24.11.2008. Thus there is certainly substantial force in the contention of the ld. Consultant that all this amounts to concrete steps taken prior to 24.11.2008 for the import of the impugned goods because the appellant would not have been in a position to back out without the risk of losing money. In these set of circumstances, we agree with the appellant that making part payment against a proforma invoice would constitute concrete steps for import of impugned goods and as these steps were taken prior to 24.11.2008, the ratio of CESTAT judgement in the case of P.T. Impex Pvt. Ltd. (2015 (4) TMI 642 - PUNJAB & HARYANA HIGH COURT) would be applicable. - Redemption fine and penalty is set aside - Decided in favour of assessee.
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2015 (12) TMI 430 - CESTAT AHMEDABAD
Penalty under Regulations 22 of Customs Brokers Licensing Regulations, 2013 - Held that:- cause for which the appellant is sought to be penalised, took place on 16.11.2011 and at that point of time, CHALR 2004 were in force. A perusal of the same reveals that the said Regulations provide for suspension of license, prohibition etc. under Regulations 20/ 21 etc. It is noticed that there is no provision for imposing a penalty under CHALR 2004. The same was superseded by CBLR 2013 under which a specific provision for imposing penalty has been brought into effect vide Regulation 22, with effect from 21.6.2013. We find that the CBLR 2013 was issued in suppression of CHALR 2004 and it is specifically stated that it is made, except as respect things done or omitted to be done before such supersession. Therefore, what did not exist before promulgation of CLBR 2013, cannot be brought into existence on a date prior to such promulgation by virtue of having such a provision in the new CBLR 2013. Such provisions of CBLR 2013 can be effective only from the effective date of the notification which brought the CBLR 2013 into existence. - provisions for imposing penalty were not in existence under the provisions of CHA LR 2004. Therefore, the same cannot be brought into effect before 21.06.2013 on which date CBLR 2013 having the provisions for imposing penalty came in to effect. We find force in our findings from the decision of the Hon’ble Bombay High Court in the case of Greatship (India) Limited vs. Commissioner of Service Tax, Mumbai (2015 (4) TMI 1006 - BOMBAY HIGH COURT) - impugned order cannot be sustained - Decide din favour of assessee.
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2015 (12) TMI 429 - CESTAT CHENNAI
Levy of anti dumping duty - Notification No.138/2002 dated 10.12.2002 read with customs Notification No. 128/2010 dated 21.12.2001 - Held that:- as per the test report of Electronics Regional Test Laboratory (ERTL), Kolkata, it is confirmed that the imported goods are CFL and originated from China and are chargeable to ADD. We also find that the Commissioner (Appeals) has in the impugned order already given a relief and waived both the fine and penalty. Accordingly, we find that there is no irregularity in the impugned order and the same is upheld - Decided against Assessee.
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2015 (12) TMI 428 - CESTAT MUMBAI
Denial the benefit of exemption Notification No. 22/99-Cus - SAD - appellant has availed Modvat Credit under Rule 57A of Central Excise Rules, 1944 - Held that:- There is no dispute that the goods imported by the appellant have been sold under various sales invoices to various customers. - Certificate issued by the Superintendent dated 15.01.2002 certifies that the appellant is engaged in the trading activity. They have neither availed the Modvat Credit under Rule 57A nor have they passed on the Modvat Credit under Rule 57G of Central Excise Rules, 1944. - reason for denial of exemption Notification No. 22/99 - Decided against assessee.
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2015 (12) TMI 427 - CESTAT NEW DELHI
Denial of refund of SAD - appellants did not pay any sales tax/ VAT on the goods - Held that:- Notification No. 102/2007 dated 14.09.2007 as amended allowed refund of SAD subject to the condition that "the importer shall pay appropriate sales tax or VAT, as the case may be". In the present case, the appropriate sales tax or VAT being NIL the appellants cannot be said to have violated the said conditions of the said notification inasmuch as it cannot be said that they have not paid appropriate sales tax/VAT. - It is evident from the clarification of CBEC that even if VAT / Sales tax was less than 4%, the appellant was entitled to refund of SAD which was 4% so long as VAT/sales tax was paid. In other words, so long as appropriate VAT/ Sales tax was paid, SAD refund was admissible even if the appropriate sales tax/ VAT was less than SAD; if the sales tax / VAT was NIL, so be it. In other words what is required in terms of the said notification is payment of appropriate sales tax/ VAT regardless of the rate thereof. It logically follows that if the appropriate rate of sales tax/ VAT was NIL then the appropriate sales tax/ VAT paid will also be NIL - impugned order is not sustainable - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 409 - CESTAT AHMEDABAD
Waiver of pre deposit - Mandatory pre deposit - Held that:- present appeals filed by the appellants, in their individual capacity, and they have to submit proof of mandatory deposit separately. So we do not find any force in the submission of Learned Advocate to the extent the deposit made by the main appellant is sufficient to entertain the appeal of the present appellant. - Decided against assessee.
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2015 (12) TMI 408 - CESTAT KOLKATA
Confiscation of goods - smuggling of goods - whether mobile phones are rightly confiscated as smuggled goods and whether appellant is the rightful owner of the goods - Held that:- No investigations at all were conducted by the department to check the authenticity of the documents produced by the appellant. There was also no other claimant of present seized mobile phones of foreign origin and mobile phones are not notified under Sec 123 of the Customs Act 1962 where onus shifts to the owner / importer of the goods. Appellant has never claimed to be the original importer of the mobile phones. The requirement to meet with the prohibitions imposed by the DGFT notification No. 14/2009-14 dt 14/10/2009 can be only be questioned from the importer. No investigation was done from the seller of the mobile phones in Delhi to establish that mobile phones were of smuggled nature. Once appellant has produced the purchase bills with respect to the seized goods then it cannot be said that the seized goods were of smuggled nature when no investigation was done at sellers end. In the absence of any other claimant of goods the present appellant has to be considered as the rightful owner. Appellant cannot be questioned with respect to the restrictions imposed by DGFT when the same were also not the subject matter of the show cause notice. - Decided in favour of assessee.
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2015 (12) TMI 407 - CESTAT MUMBAI
Import of restricted item - Redemption fine - Penalty - Held that:- It is an admitted fact that the appellant imported the goods under one of a mistake. The violation of port restriction is only a venial breach. It is also not a fact that the appellant is a repeated offender. In view of the technical breach, and for that taking notice of the fact that the appellant have suffered heavy demurrage of ₹ 8 lakhs, I uphold the order of confiscation but reduced the redemption fine under Section 125 to ₹ 1 lakh and further set aside the penalty imposed under Section 112(a) of the Act - Decided partly in favour of assessee.
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2015 (12) TMI 406 - CESTAT MUMBAI
Denial of exemption claim - Ad-hoc Exemption notification order no. 3 of 2007 - Held that:- The excess duty was paid in exercise of the exemption notification, whereas in the present case the appellant had claimed exemption, but the same was denied and the duty was paid under protest. I find that the facts of the case are also similar to the facts in the case of Commissioner of Customs Vs. Tata Medical centre Trust - [2015 (1) TMI 68 - CESTAT MUMBAI], wherein the Division Bench of this Tribunal after referring and distinguishing the rulings of Hon'ble Supreme Court in Flock (India) Ltd. (2000 (8) TMI 88 - SUPREME COURT OF INDIA) and Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA), in the case where duty was paid inadvertently - Assistant Commissioner has erred while passing the adjudication order as he has failed to take the documents already on recorded into notice while rejecting the claim of refund. Further, the Order-in-Original is also hit by limitation as the exemption granted by the Govt. of India, vide the latest letter dated 2.3.2009, which clearly shows that the exemption order granted earlier vide letter dated 11.1.2007, the validity period of the Ad-hoc exemption order may please be read as 31.12.2009 instead of 31.12.2008. By this letter, the Govt. had extended the exemption period with the retrospective effect, which is binding on officers of the Govt. of India. Accordingly, there is no error in the appellate order and the same is upheld and the appeal of the Revenue is dismissed. - Decided against Revenue.
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2015 (12) TMI 405 - CESTAT BANGALORE
Benefit of Notification No. 2/2002-Cus dated 01.03.2002 by treating the system as “Treatment Planning System” - Re-export of goods declared as “Ci Navigation System” - Held that:- Commissioner has given a categorical finding that there was no mis-declaration of the goods and claiming of the benefit of Notification cannot be called mis-statement. He has also recorded that an identical machine was allowed the benefit of the notification in Mumbai port. As such, it has to be held that the importer held a bonafide belief that they were entitled to the benefit of exemption notification. Accordingly he has accepted the importer’s prayer that if duty has to be paid on the said machine, it would not be economical for them to get the same cleared and hence has allowed re-export of the same. - if an identical machine was allowed the benefit of the Notification at Mumbai port, the same would lead to a bonafide belief on the part of the importer to claim the benefit of exemption notification. It is only for economical reasons that importer did not want the machine to be cleared on payment of duty and requested for re-export of the same. - Decided against Revenue.
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2015 (12) TMI 404 - CESTAT MUMBAI
Rejection of transaction value under Section 14 - Provisional assessment - Held that:- Even if there was a doubt in terms of Rule 12, the Rule requires that the authority must be proceed sequentially through Rule 4 to 9. Rule 4 requires the transaction value to be based on value of identical goods sold for export to India. The adjudicating authority based its decision on identical goods sold by the importer on high sea sale basis at US$ 165 PMT which is equal to the ‘Platt’ price. We find that the contract between the supplier and importer was agreed upon in July 2000 whereas the said high sea sale took place much later. The adjudicating authority did not consider this fact. At the same time, the Commissioner (Appeals) has clearly stated that on further inquiry in the Custom House, the contemporaneous imports in the months of July, August and October 2000 were found to be US$ 140, 125 & 115 PMT respectively. It is not established by the department in the grounds of appeal that such contemporaneous imports did not take place. In these circumstances, it is incorrect on the part of the adjudicating authority to ignore the actual contemporaneous prices in terms of Rule 4 (earlier Rule 5). The department has not been able to either establish existence of any circumstances as in Rule 3(2) [(earlier Rule 4(2)] nor did it consider the correct contemporaneous imports. Reliance on judgments must be made in a proper context and not out of context. The judgments cited by Revenue do not say that when contemporaneous import prices are available, the same should be rejected and journal prices accepted. In this view of the matter, the grounds of appeal have no basis and are accordingly rejected. - Decided against Revenue.
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2015 (12) TMI 403 - CESTAT NEW DELHI
Confiscation of goods - Import of restricted items - ownership of goods - Held that:- In this case the container arrived at ICD TKD New Delhi on 06.06.2011 and remained unclaimed. On enquiry it was found that documents of the said container are in the name of the appellant but appellant has disowned the ownership of the said container. As per section 2(26) of the Customs Act 1962 the importer is a person who cleared the goods for home consumption or claims to be owner of the said goods. Admittedly, in this case the appellant has not cleared the goods for home consumption or not claimed to be the owner of the said goods. Under the said circumstances, the observation of the lower authorities that appellant is the owner of the said goods or the importer of the said goods is not tenable. Revenue has also not brought out on record any corroborative evidence to say that whether appellant is the regular importer from the same supplier of the goods or appellant is importing old and worn clothes. In these circumstances, benefit of doubt goes in favour of the appellant. - Decided in favour of assessee.
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