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Customs - Case Laws
Showing 21 to 40 of 182 Records
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2015 (9) TMI 1364 - CESTAT CHENNAI
Waiver of pre-deposit - 100% EOU - Additional Duty of Customs (SAD) on the goods cleared on stock transfer to their own unit - Notification No.23/2003-CE, dated 31.03.2003 - Held that:- In view of the Tribunal’s decision [2014 (11) TMI 154 - CESTAT MUMBAI], the appellant has a prima facie case for waiver of pre-deposit. We, therefore, waive the pre-deposit of adjudged dues and stay recovery thereof till disposal of the appeal. - Stay granted.
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2015 (9) TMI 1363 - CESTAT MUMBAI
Rectification of mistake - Held that:- There is no provision for filing ROM application against the order of the Tribunal deciding a ROM application. On this ground, the application filed by the applicant is not maintainable. - ROM order was passed on 29/09/2014 and the order was dictated in the court in the presence of the advocate for the applicant. As per the provisions of Section 129B(2) ROM application can be filed within six months from the date of the order. We find in the present case, the said order was passed on 29/09/2014 and the ROM application has been filed on 01/06/2015. Thus, the application has been filed beyond the period of six months stipulated under Section 129B(2). On this ground also the ROM application needs to be dismissed. - Decided against assessee.
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2015 (9) TMI 1316 - CESTAT AHMEDABAD
Duty Entitlement Pass Book - Use of forged DEPB – Extended period of limitation – it was contended that, they are bonafide purchaser of the DEPB scrips from the open market, as per the provisions of the Policy and payment was made by cheques. There is no material available of fraud, collusion etc against the Importer and therefore, the extended period of limitation cannot be invoked. - Held that:- No dispute that, appellant availed credit on basis of said DEPB scrip, which was issued by Customs authorities – Thus, at time of import of goods, DEPB scrips were not found forged – Importer imported goods on basis of documents, which were valid at time of importation and therefore, such document was valid, till it was not set-aside – Thus, extended period cannot be invoked – Demand of duty along with interest was not sustainable as barred by limitation – No material available that appellant abetted exporter for their gain and therefore, it would not come within ambit of imposition of penalty – Therefore, demand of duty along with interest and penalty being barred by limitation, hereby set aside – Decided in favour of Assesse.
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2015 (9) TMI 1315 - CESTAT NEW DELHI
Levy of CVD on the basis of MRP - Evasion of duty by mis-declaring RSP - On enquiry it was found that appellants sold imported goods to NCCF/KB at price higher than RSP declared at time of import – Demand of differential duty – Imposition of penalty – Held that:- sale of goods at price higher than RSP declared can only lead to conclusion that appellants mis-declared RSP of such goods at time of import – Appellants are therefore liable to pay differential duty.
RSP is only upper limit of sale price which importer can charge from consumer – Appellant is free to sell goods at any price lower than RSP declared – Merely because importer effected sale of some goods at price higher than RSP declared, Revenue cannot demand differential duty on entire import done as per various B/E – Adjudicating authority adopted price quoted to NCCF/KB as basis of calculation of differential duty and applied same to entire sale of imported goods for disputed period – Demand so raised is not acceptable – Allegation of collection of higher price is confined to sales effected to NCCF/KB therefore, demand of differential duty, has also to be confined to sales effected to NCCF/KB only.
Admittedly appellant sold imported goods not only to NCCF/KB but to other customers also – Goods sold to other customers were sold at RSP or prices lower than RSP declared – In such circumstances imposition of penalty of ₹ 25 lakhs is slightly on higher side – Therefore penalty reduced – Appeal partly allowed – Decided partly in favour of Assesse.
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2015 (9) TMI 1314 - CESTAT AHMEDABAD
Ownership of Seized goods – Legitimate transaction – appellant argued that seized goods were properly accounted for in the registers and Appellant has discharged the burden of proof under Section 123 of the Customs Act, 1962 - Appellant alongwith on other was intercepted and 115 foreign marked Gold biscuits were recovered from eight packets carried by the said two persons – Whether seized goods were purchased and/or owned by appellant.
Held that:-It was observed from case records that Appellant claimed ownership of seized goods –Retraction made by Appellant was not acceptable – Supreme Court’s judgment in case of Vinod Solanki Vs UOI [2008 (12) TMI 31 - SUPREME COURT], specifically ruled that evidence brought out by confession if retracted must be corroborated by other independent and cogent evidences – In view of circumstances there was corroboration and justification for retraction on part of Appellant –Employee of Appellant confirmed to have prepared paper found alongwith seized packet –All others who were investigated denied ownership of seized gold bars – Thus, Appellant was rightful owner/claimant of seized goods.
Adjudicating authority held that no payments were made by Appellant for seized gold bars – Appellant brought on record letter under which order was placed for 3000 gold bars before branch manager of Allahabad bank – As per cross-examination Bank has sold gold bars to M/s Amrapali Industries Ltd – Source of seized gold biscuits were traced out to genuine purchase from authorised Bank –Under existing matrix, it cannot be said that Appellant failed to explain licit acquisition of seized gold bars, when he was regularly buying such gold bars in past – Appeal allowed – Decided in favour of appellant.
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2015 (9) TMI 1313 - CESTAT MUMBAI
Restoration of Appeal – Non-fulfilment of Pre-deposit condition within time specified – Tribunals jurisdiction to restore appeal – Difference of opinion – Question as to Whether Tribunal has jurisdiction to restore appeal of appellant despite violation of High Court's order to make pre-deposit as held by Hon'ble Member (Judicial), referred to Third Member to resolve difference of opinion.
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2015 (9) TMI 1312 - CESTAT KOLKATA
Waive of pre deposit - Penalty u/s 112(a) and 112(b) - mis-declaration of the imported goods - mis-declaration of the importd goods declared as suit cases, which were later found to comprise of different types of goods, namely, mens wear, spectacle frame, mobile battery, T-Shirt etc. - Held that:- Commissioner analyzing the evidences brought on record against the applicant recorded a detailed finding at para 34.1 to 34.3 in Appeal No.70452 and at para 44.1 to 44.3 in Appeal No.70453 in imposing penalty. - At this stage, we do not find that the applicant could able to make out a prima facie case for total waiver. Considering the financial hardship expressed on behalf of the applicant by the ld.Adv., it is appropriate at this stage, to direct the applicant to deposit ₹ 1.50 Lakhs in both the appeals - Partial stay granted.
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2015 (9) TMI 1311 - CESTAT CHENNAI
Denial of DEPB credit - appellants have willfully obtained the DEPB by mis-declaration - Held that:- Appellant had imported raw materials duty-free under Notification No. 32/97-Cus. which allowed such import for jobbing purpose. The job worker was required to export the final product to the overseas supplier of raw materials. In this process, it was open to the job worker to make a value addition to the extent of not less than 10% CIF value of the imported raw material. The Tribunal has held that if at all benefit of drawback/DEPB could not be denied to the importers if they are jobbing and exports made using such imports but the benefit of the notification is admissible subject to their having fulfilled the condition of achievement of value addition. - No reason to interfere with the order of the adjudicating authority. - Decided against assessee.
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2015 (9) TMI 1310 - CESTAT MUMBAI
Rejection of application for customs broker licence - Violation of principles of natural justice - Held that:- As per the Regulation 21 of CBLR, 2013 only Customs broker can file the appeal under Section 129A of the Customs Act, 1944 (sic) before the CESTAT. We find that in the present case the applicants are not customs brokers and under section 146(2)(f) of the Regulations appeal can be made only against the order of suspension of revocation of licence - Present applicants are firstly neither custom broker nor order impugned is order for revocation or suspension. appeal against rejection of application for custom broker licence does not lie before this Tribunal - Therefore, the issue is to be decided on its maintainability first.
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2015 (9) TMI 1309 - CESTAT CHENNAI
Waiver of pre deposit - Imposition of penalty - Held that:- Predeposit of penalty was called for after considering the arguments made by the appellant. Appellant neither appeared nor made any deposit to comply with the order. Only after issuance of notice on 18.5.2015, appellant has come with a prayer for modification of stay order. In spite of sufficient opportunity granted, appellant has not complied with stay order. We do not find any merit in the submissions of appellant and the citations referred to in the written submissions are not applicable to the case. - Decided against assessee.
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2015 (9) TMI 1261 - SUPREME COURT
Valuation - Misdeclaration of value - import of Mencozeb Technical 85 % at US$2.10 per kg., CIF - sole distributor - rejection of value - contemporaneous import - Held that:- On perusal of the transaction between M/s. R & H and the assessee, as it is clear from the reading of agreement, was at arms length. By no stretch of imagination it can be said that M/s. R&H had been controlling the assesee either directly or indirectly. In fact, there was no such allegation in the show cause notice nor any finding in this behalf in the Order-in-Original was rendered by the Commissioner. - before rejecting the invoice price the Department has to give cogent reasons for such rejection. There are no such cogent reasons coming forth in the present case. Moreover, it is to be borne in mind, as stated in para 14 of the said judgment, that the onus is on the Department by leading cogent evidence. No evidence of any nature whatsoever is brought on record to show that they were contemporaneous sales/transactions at high price. Reliance upon the agreement between M/s. Indofil and M/s. R&H is of no avail as admittedly the transaction between the aforesaid two parties were for the period prior to 01.11.1995 and they were not contemporaneous. We, thus, do not find any error in the judgment of the Tribunal - Decided against Revenue.
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2015 (9) TMI 1260 - DELHI HIGH COURT
Quashing of detention orders - Non execution of detention order - activities of acquiring, possessing, hoarding, selling and exporting NDPS items - incident took place on 23/24.10.2011 whereas the detention order was passed on 10.9.2013 - Non availability of relevant documents - detention order of the co-accused persons have already been revoked - Held that:- Based on the averments made in the counter affidavit and the supporting documents to show the publication and citation under Section 82 of the Code of Criminal Procedure, we hold that the petitioner is an absconder and he has been intentionally evading the execution of the detention order. - As per the counter affidavit, the officers of respondent no.3 made an attempt to execute the detention order at the Delhi premises of the petitioner on 18.9.2013, however, the landlord informed the officers that the petitioner had left the premises long back. - despite publication of order dated 20.11.2013, the petitioner did not surrender; thereafter the respondents had no option but to file reports dated 8.1.2014 & 28.2.2014 under Section 8 (1) (a) of PIT NDPS Act before the Ld. CMM, New Delhi. On 14.3.2014, the Ld. CMM, New Delhi passed orders for issuing process under Section 82 of the Code of Criminal Procedure qua the petitioner. The process under Section 82 of the Code of Criminal Procedure was published in Indian Express dated 22.5.2014. The said order under Section 82 of the Code of Criminal Procedure qua the petitioner was repeated on 28.5.2014, returnable on 30.8.2014. The process under Section 82 Cr.P.C. was published in Indian Express dated 9.8.2014. The said process under Section 82 of the Code of Criminal Procedure qua the petitioner was again repeated on 2.9.2014.
A careful reading of the judgments of Rajinder Arora [2006 (3) TMI 173 - SUPREME COURT OF INDIA] and Subhash Popatlal Dave (2013 (8) TMI 8 - SUPREME COURT) leads to the conclusion that a writ petition at the pre-existing stage or pre-execution of the detention order stage is maintainable, and the Courts are entitled to examine all grounds except the ground relating to sufficiency of material relied upon by the detaining authorities in passing the order of detention, which has been held to be legally the most important aspect of the matter, but cannot be gone into by the Court at the pre-execution stage when the grounds of detention have not even been served on the detenu.
The counter affidavit is bereft of any explanation with regard to delay in passing the detention order dated 10.9.2013. The matter has been adjourned from time to time, but no additional affidavit has been filed nor any record has been produced to explain the delay in passing the detention order - entertaining a writ petition against a preventive detention order at a pre-execution stage should be an exception and not the general rule. In this case also the petitioner has successfully evaded the service of the detention order. The Apex Court of India in the case of Deepak Bajaj (2008 (11) TMI 655 - SUPREME COURT) has held that the celebrated writ of habeas corpus has been described as “a great constitutional privilege of the citizen” or “the first security of civil liberty”; and has also held that it is a remedy to safeguard the liberty of the citizen which is a precious right and is not to be transgressed by anyone. In this case the liberty of the petitioner cannot be curtailed by sending him to jail when the detention order of co-accused persons, who are identically placed as the petitioner, stands revoked on the recommendation of the Advisory Board. - Revocation allowed.
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2015 (9) TMI 1259 - CESTAT AHMEDABAD
Undervaluation of import of electronic components - department has built up its case on the basis of export declarations filed by the suppliers of the goods - Admissibility of evidence - Penalty u/s 114A r.w. 112 - Held that:- Export Declarations are obtained from the Customs and Excise Department, Hong Kong under the cover of their letter on letter head and signature, through Commission for India (High Commission/Embassy) in Hong Kong. It is also stated by Hong Kong Customs that they have no objection for the said 25 Export declarations to be used as evidence in judicial proceedings in India. It is also seen that the Export Declarations are signed by Thomas Chan, Merchandiser and Fradu Wang, Accountant on behalf of the Batshita International Limited. It also contains a declaration that he is the exporter and the particulars given in the declaration are accurate and complete. In view the facts and circumstances of this particular case, we find that these Export Declarations are admissible as evidence
A perusal of the show cause notice dated 06.5.1998 reveals that appellants have not produced any evidence to substantiate that the invoice value declared by them are correct by way of showing value of contemporaneous imports etc. On the other hand, we find that the Department has brought in evidences such as the export declarations along with the declarations certifying its accuracy, obtained through official channels under the signature and letter head of Customs department, Hong Kong who has also certified that they have no objection of its use as evidence in judicial proceeding in India. Therefore, we find that the Revenue has brought in sufficient evidences to establish huge under valuation. The appellants have failed to bring any evidence on record to substantiate that the value declared by them is correct, even though the Commissioner of Customs in the earlier order-in-original dated 26.09.2000 in the first round of litigation, had categorically held that the department had discharged the burden of proof by way of giving declaration received from the Hong Kong, Customs. No evidence whatsoever in support of the price declared by the suppliers has been brought on record by the appellants at the time of adjudication, or de-novo adjudication or till now. - no reason to interfere with the impugned order-in-original - Decided against assessee.
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2015 (9) TMI 1258 - CESTAT KOLKATA
Determination of market value of the seized goods - applicability of Section 123 - determination of redemption fine - Held that:- There is no direction by the Hon’ble High Court on the issue of applicability of Section 123 of the Customs Act, 1962 and on the aspect that if the documents furnished by the appellant are in order then the goods should be released. It has been observed by Hon’ble High Court that market value of the seized goods has been arbitrarily arrived at by CESTAT. Regarding determination of redemption fine, the same is required to be based on the basis of prevailing market value of the goods. Secondly, redemption fine imposable also has a bearing on the margin of profit (MOP) of the seized goods. Value of seized goods indicated in annexure A dated 17/09/2003 are also basis on the market value prevailing at the time of seizure. However, appellant has furnished certain invoices before the adjudicating authority which also represent the market value of the seized goods. Even if, the documents furnished by the appellant were not considered proper documents to cover the seized goods but the same will also represent the prevailing market price of comparable goods. - Matter remanded back - Decided in favour of assessee.
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2015 (9) TMI 1257 - CESTAT BANGALORE
Illegal export - instead of the declared goods as cargo of coir pith, red sander logs were found to be stuffed. - Seizure of goods - Misdeclaation of goods - Clandestine removal of goods - Imposition of penalty - entire case of the Revenue rests upon the sole retracted statement of Shri Antony Morris. - Held that:- Commissioner for arriving at the findings against the appellant had also referred to the statement of one Shri Anil recorded during the earlier seizures of red sanders in an attempted export case. Apart from the fact that the said statement of Shri Anil in those cases is still at the adjudication stage, we are of the view that the said statement recorded in an altogether different case, cannot be adopted as an evidence in the present case.
It is well settled that the evidences available in a particular case have to be taken into consideration for deciding disputed issue. No reference can be made to the earlier statements or the statements of any other person so as to conclude against the accused in a particular case, which is not at all connected with the cases in which statements of other persons were recorded.
Shipping bill was filed showing the recipient as M/s. C.P. General Trading LLC, Deira, Dubai. There is no attempt by the Revenue to show that the said alleged recipient of the goods has any connection with the appellant. As such when the appellant’s name was not even shown as recipient, the imposition of penalty upon him based upon uncorroborated statement of one of the accused, without there being any independent, admissible and tangible evidence, is neither justified nor warranted. - no reason to uphold that part of the impugned order of Commissioner for which he imposed penalty upon the appellant - impugned order is set aside - Decided in favour of assessee.
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2015 (9) TMI 1256 - CESTAT MUMBAI
Valuation of goods - import from the group companies is covered under Sales Promotion Agreements. - price variation between the prices for importer and unrelated buyers - Held that:- order of the adjudicating authority woefully inadequate - difference in prices for the respondent and independent buyers is much less than 55% for most of the products. It is not at all brought forth in the adjudication order as to how the verification is taken as 55% uniformly. In fact, the decision of the adjudicating authority is an apology of an Order and is not a speaking Order. The Commissioner (Appeals) has also noted this fact that the invoices shown by the appellant during the hearing do not indicate that the difference in price is 55% uniformly. In majority of sales, the price to unrelated buyer was higher by 5.5% to 7.5%. - finding of the Commissioner (Appeals) that the difference in commercial levels, quantity levels, cost incurred by the seller (in this case respondent) have to be considered while examining the influence on price by the relationship between the supplier and the importer. Therefore, even if similar goods sold to the unrelated buyer are taken as the basis of value of impugned goods in terms of Valuation Rules 4 & 5, adjustments have to be made on account of such factors as stated in proviso to Rule 3 (3) (b) of the Valuation Rules. In any case, the adjudicating authority simply considered the difference in price, which he states wrongly to be 55%, without examining the reasons for the price difference in proper prospective.
In case of Metal and Alloys Industries [1989 (1) TMI 226 - CEGAT, NEW DELHI] the international prices of the same product imported were considered. However in the present case, the situation is of commission being given which is the difference between the prices to the appellant and the unrelated buyer for taking care of after sales service/promotion etc. We find no reason to reject the impugned order. - Decided against Revenue.
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2015 (9) TMI 1255 - CESTAT CHENNAI
Condonation of delay - Delay of 152 days - Delay in receipt of order - Held that:- postal authorities have despatched the said OIO on 10.7.2013 and the date of service of impugned order is established. The appellant stated in their COD applications that they received the order only on 19.12.2013 and the same is not supported with any evidence. In the absence of any contrary evidence by appellant, there is no justification for condoning the delay of 152 days. We find that on an identical issue of service of order, the Hon'ble Allahabad High Court in the case of Nanumal Glass Works Vs CCE Kanpur (2012 (12) TMI 96 - ALLAHABAD HIGH COURT) has rejected the plea that unless order is received by assessee in person, it cannot be treated to be communicated to him - The ratio of the Hon'ble High Court is squarely applicable to this case and the delay of 152 days not justified and cannot be condoned - Condonation denied.
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2015 (9) TMI 1201 - ALLAHABAD HIGH COURT
Confiscation of goods - recovery of seized foreign origin goods - Held that:- Section 111 of the Customs Act, 1962 provides that any prohibited goods found concealed in any manner in any conveyance shall be liable to confiscation. Section 112 of the Customs Act, 1962 provides that any persons, who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 shall be liable to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater. - seized goods was valued worth ₹ 4,00,000/-. Therefore, the appellate authority imposed the penalty. The penalty imposed upon the appellants is less than the value of the goods, which has been upheld by the learned Tribunal - Decided against assessee.
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2015 (9) TMI 1200 - PUNJAB & HARYANA HIGH COURT
Confiscation of goods - Imposition of redemption fine - Penalty u/s 112(a) - Contravention of licensing terms - Held that:- Tribunal had recorded that as per the provisions of the licensing notes, the secondary/defective HR Coils could be imported only at the ports of Mumbai, Chennai or Kolkatta. The import of goods at ICD, Ludhiana by the assessee was contrary to the licencing note No.4 of Chapter 72 of the ITC (HS) as there was restriction about the port at which the goods could be imported and, therefore, the goods had been rightly confiscated. The Tribunal, however, waived off the penalty on the appellant under Section 112(a) of the Act and reduced the quantum of redemption fine from ₹ 3,00,000/- to ₹ 1,00,000/-. The Tribunal had taken a lenient view and it would not give any substantive right to the appellant to get the redemption fine of ₹ 1,00,000/- set aside on the ground that once penalty has been waived, no redemption fine could be sustained especially when the appellant had violated the provisions of the licencing note. - No question of law arises - Decided against assessee.
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2015 (9) TMI 1199 - MADRAS HIGH COURT
Suspension of CHA license - Held that:- No illegality in the common order of the Tribunal. On the admitted facts, it is clear that no show cause notice was issued. However, the Department proceeded to treat the order of suspension itself as a show cause notice on the ground that the same contains the details of allegations. But, this is clearly not in the light of the provisions of the Regulations. - licence itself is due to expire on 18.11.2015. - Decided against Revenue.
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