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Customs - Case Laws
Showing 221 to 240 of 40545 Records
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2025 (6) TMI 33
Levy of penalty u/s 112 of the Customs Act, 1962 - use of forged advance licences to evade customs duty - HELD THAT:- It is this part of the order imposing a penalty of Rs. 15,00,000/- upon the appellant that has been assailed in this appeal under section 112 of the Customs Act. It is clear from the order that forged licence was used for evasion of customs duty and the appellant abetted in obtaining the forged advance licence. The appellant in his letter dated February 07, 2000 also confessed his active role/involvement in the racket.
The Supreme Court in Munjal Showa Ltd. versus Commissioner of Customs and Central Excise (Delhi-IV) and M/s Friends Trading Co. Versus Union of India and Ors.[2022 (9) TMI 1076 - SUPREME COURT], while dealing with a case where a forged scrip was utilized, held that exemption benefit cannot accrue on the basis of such a forged licence.
There is, therefore, no infirmity in the impugned order. The appeal is, accordingly, dismissed.
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2025 (5) TMI 2145
Admissibility of Statement recorded under Section 108 of the Customs Act, 1962 - smuggling - Recovery and seizure of gold biscuits - benefit of doubt - Offence Punishable under Section 135(1)(a) - Maintainability of Appeal filled under Section 378(2) Cr.P.C. - HELD THAT:- The entire case of the Prosecution was that while the Respondent was making an endeavour to take the packet from the toilet for handicap persons, he was apprehended.
It is pertinent to observe that PW43/Smt. Sudesh who is the most important witness, had denied that Respondent had earlier visited the Handicap Toilet or that on his second trip, he was able to put the packet in his belt which he was wearing under his pants, but the packet fell and was seized by the Custom Officers. She has denied the presence of the Respondent near the Toilet or that he had made an endeavour to take away the brown packet. Though she has been consistent in deposing that a brown packet was recovered by the Custom Officers from under the wash-basin which was seized and in respect of which Panchnama was prepared, but her testimony totally exculpates the Respondent about having entered the Toilet or having picked up the Packet or that it fell which was recovered by the Customs Officers.
The testimony of PW3, therefore, establishes the recovery of the packet from under the wash basin, but does not implicate the Respondent in any manner. Rather, her testimony establishes that the respondent was making an endeavour to enter the Toilet but was prevented by her.
The truthfulness of the Statement under Section 108 Customs Act made by the Respondent could have been fully tested either by recovery of the vehicle, the number of which was disclosed by the Respondent or by tracing Bhagirath, who was allegedly the master mind behind the smuggling of gold. Clearly, no investigations on this aspect were conducted.
The testimony of PW6 creates a serious doubt of the appropriate procedure having been followed to assess that the recovered item was in fact, gold as is claimed by the Appellant. It need not be over emphasized that no Qualification Certificate has been produced to show that he was a qualified Goldsmith, competent to certify the purity of the gold.
The learned ACMM had rightly referred to the observations made by the Adjudicating Authority in its Order dated 13.06.2001, while assessing the entire evidence as led herein, to conclude that there was no evidence whatsoever to prove the recovery of the from any of the three persons including the Respondent.
The learned ACMM has, therefore, rightly extended the benefit of doubt to the Respondent while acquitting him for the offence under Section 135 (1) (a) of the Customs Act, 1962.
There is no infirmity in the impugned Judgement and the Appeal is hereby, dismissed.
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2025 (5) TMI 2144
Seeking release of gold jewellery worn or carried by passengers - "personal effects" under the Baggage Rules, 2016 - Non- issuance of show cause notice - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would also be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
Thus, it is clear that the detained jewellery are the personal effects of the Petitioner.
The goods are directed to be released through the Petitioner or an authorised representative, within a period of four weeks. In the facts of this case, no warehouse charges shall be liable to be paid by the Petitioner.
The petition is disposed of in these terms.
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2025 (5) TMI 2143
Challenging the detention of the Petitioners’ goods - "personal effects" under the Baggage Rules, 2016 - Non- issuance of Show Cause Notice - procedural requirements for timeline prescribed under Section 110 - HELD THAT:- The Supreme Court in 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 (“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’.
Further, in the present case, the fact that no Show Cause Notice has been issued upon the Petitioner is also not in dispute. This Court, while deciding upon the issue of non-issuance of Show Cause Notice in various cases has held that once the goods are detained, it is mandatory to issue a Show Cause Notice and afford a hearing to the Petitioner. The time prescribed under Section 110 of The Customs Act, 1962, is a period of six months and subject to complying with the formalities, a further extension for a period of six months can be taken by the Department for issuing the show cause notice. In this case, since no show cause notice has been issued till date, the detention is therefore impermissible.
Thus, the detention of the Petitioner’s detained articles is set aside and the same shall be released to the Petitioner /authorised signatory within four weeks, subject to verification.
The Petitioner may appear before the concerned official for appraisement of the detained article and shall thereafter collect it either in person or through an Authorised Representative, in which case, the detained article shall be released after receiving a proper email from the Petitioner or some form of communication that the Petitioner has no objection to the same being released to the concerned Authorised Representative.
With the undertaking of re-export, 50 % of the storage charges shall be paid. The Petitioner shall appear for appraisement before the Customs authorities on 05th June, 2025.
The present writ petition is disposed of in above terms.
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2025 (5) TMI 2142
Imposition of penalty under sec.114(i) and sec.117 - Custom House Agent (CHA) - export of red sanders, a prohibited item - confiscation - violation of the CA 1962 - non-verification of the credentials of the exporter - HELD THAT:- There is no allegation in the impugned order of the appellant willfully colluding with the exporter or illegally benefiting from the export of the impugned prohibited goods. However, the order alleges that the deficiencies in the actions of the appellant “could be due to sheer negligence and dereliction of duty or with ulterior motives.” A charge cannot be sustained on assumptions and presumptions without there being any proof to sustain the allegations. The payments received by the appellant for previous exports alone is also not a proof of any wrongdoing, howsoever strong the suspicion may be. The discussion extracted from the OIO above, does not indicate which provision of section 113 of CA 1962 gets triggered by the non-verification of the credentials of the exporter thereby meriting penalty under section 114 ibid. Invoking section 117 of the said Act, (which pertains to penalties for contravention, etc., not expressly mentioned), for an alleged violation of the provisions of the CHALR 2004, is not permissible, when the Regulation itself has penal provisions for its violation.
In the circumstances when the actions of the appellant do not disclose a blameworthy conduct under the CA 1962, which render the goods liable to confiscation, then any blame worthy action by the person as an employee of a CHA firm should be taken under the CHALR 2004, as it then stood, which is a self-contained Regulation, with penal provisions etc. In this case the main charge against the appellant is that he neither verified the credentials of the exporter nor got the authorization from them to act on their behalf, which is a violation of the CHALR 2004. This being so action against the appellant under the Customs Act 1962 on the said grounds must fail.
Based on the discussions above, the impugned order is set aside and the appeal is allowed. The appeal stands disposed of accordingly, with consequential relief to the appellant, if any, as per law.
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2025 (5) TMI 2141
Non-fulfilment of export obligation - zero duty EPCG Authorization - issuance of two Show cause notices - confiscation of the capital goods/machinery under sections 111(o) and 111(j) - payment of redemption fine - Demand of customs duty with interest and penalty - invocation of extended period under section 28 of the Customs Act - suppression of material facts - intention to evade payment of duty - violation of the condition of the Exemption Notification and the Foreign Trade Policy - HELD THAT:- It provides that the export obligation shall be over and above the average level of exports achieved by the importer in the preceding three licensing years for the same and similar products within the overall export obligation. The first proviso stipulates that upto 50% of the export obligation may also be fulfilled by export of other goods manufactured or services provided by the importer or his group company or managed hotels, which has the EPCG Authorization subject to the condition that in such cases, additional export obligation imposed shall be over and above the average exports achieved by the importer in preceding three years. The second proviso further stipulates that in case of exports of goods relating to Sericulture, the importer shall not be required to maintain the average level of exports. This definition of ‘Export Promotion’ contained in the Explanation has no connection with the requirement of fulfilling the requirements contained in clause (7) of the Exemption Notification. The submission advanced by the learned counsel for the appellant is, therefore, misconceived.
As would be seen from the calculation chart relating to duty foregone, an amount of Rs. 5,68,072/- towards duty forgone has been deducted as the said machine was not installed in the factory premises. The duty foregone thus, came to Rs. 66,73,239/-. 50% of this amount has been confirmed for the first four years and the remaining 50% for the next two years with interest at the rate of 15% as per the provisions of the Exemption Notification read with section 143 of the Customs Act and the conditions enumerated in the surety bond executed by the appellant at the time of importation of the said machine. The Commissioner was, therefore, justified in confirming the demand of customs duty proposed in the two show cause notices with interest.
The impugned order also confirms customs duty of Rs. 5,68,072/- in respect of the machinery which is said to have been diverted/sold without putting it to use in the manufacturing process. According to the appellant, the machinery was never cleared and was still lying at Nava Sheva Port. No document has placed by the department to show that the said machine was cleared by the appellant. Thus, the said machine was not diverted or sold by the appellant in contravention of the Exemption Notification. In such circumstances customs duty of Rs. 5,68,072/- could not have been confirmed under section 28(4) of the Customs Act. The impugned order also confiscates the said machinery under sections 111(j) and 111(o) of the Customs Act for the reason that the appellant had contravened the provisions of Customs Act. As the duty could not have been confirmed, the confiscation of goods under sections 111(j) and 111(o) of the Customs Act is not justified.
The impugned order also confirms the duty demand of Rs. 18,69,140/- with interest under section 28(4) of the Customs Act as two machines were cleared at zero duty in excess of the bond amount. It would, therefore, have to be seen whether the Commissioner was justified in invoking the extended period of limitation. For this, it would have to be seen whether the appellant had suppressed material facts with an intention to evade payment of duty. The appellant may have exceeded the duty foregone limit prescribed in the EPCG Authorization by an amount of Rs. 18,69,140/-, but this fact could have been checked by the customs authority as they had the relevant documents, but the goods were cleared.
In the absence of any suppression on the part of the appellant with an intention to evade payment of duty, the extended period of limitation could not have been invoked. In such circumstances neither penalty under section 114A of the Customs Act could have been imposed nor the goods could have been confiscated under section 111(o) of the Customs Act.
Thus, the appeals are partly allowed.
The confirmation of the demand of customs duty proposed in the show cause notices for not fulfilling the requirements of the Exemption Notification with interest is upheld. However, the penalty imposed under section 117 of the Customs Act is set aside.
The confirmation of customs duty of Rs. 5,68,072/- is set aside and the confiscation of the goods under sections 111(j) and 111(o) of the Customs Act is set aside.
The confirmation of duty demand of Rs. 18,69,140/- with interest under section 28(4) of the Customs Act is set aside.
The imposition of penalty under section 114A and confiscation of goods under section 111(o) of the Customs Act is set aside.
The confiscation of machinery valued at Rs. 2,67,89,292/- under section 111(o) of the Customs Act is set aside. Penalty of Rs. 3,33,662/- imposed upon the appellant and D.S. Kasare under section 112(a)(ii) of the Customs Act is set aside.
The impugned order dated 22.01.2019 passed by the Commissioner is set aside only to the extent indicated above.
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2025 (5) TMI 2112
Condonation of delay - Import of Baggage - Personal Effects - Detention and confiscation of gold ornaments by Customs authorities - HELD THAT:- Delay condoned.
Having heard the learned counsel appearing for the petitioners and having gone through the materials on record, we see no reason to interfere with the impugned order passed by the High Court.
The Special Leave Petition is, accordingly, dismissed.
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2025 (5) TMI 2111
Seeking release of gold jewellery worn or carried by passengers - "personal effects" under the Baggage Rules, 2016 - liability to pay the warehousing/storage charges - time prescribed under Section 110 - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would also be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
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.
The detained jewellery being personal effects of the Petitioner, the detention of the same itself would be contrary to law. Accordingly, the detained jewellery would be liable to be released on this ground itself. However, there are other issues that are required to be considered in the present matter i.e., limited applicability of Rules qua a foreign national and non-issuance of the SCN within the prescribed period under the Act.
Insofar as the issue of limited applicability of Rules qua a foreign national is concerned, this Court has considered the said issue in several cases including Nathan Narayansamy vs. Commissioner of Customs, [2023 (9) TMI 1549 - DELHI HIGH COURT]. the Co-ordinate Bench of this Court was also dealing with a similar situation wherein certain jewellery was recovered and seized from the baggage items of a tourist holding Malaysian passport.
Further, 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.
Thus, the detention of the Petitioner’s jewellery is accordingly set aside.
In the facts of this case, it is made clear that no storage charges shall be insisted upon by the Central Warehousing Corporation for release of the detained jewellery to the Petitioner.
Accordingly, the writ petition is disposed of in above terms.
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2025 (5) TMI 2110
Seeking release of gold jewellery worn or carried by passengers - "personal effects" under the Baggage Rules, 2016 - limited applicability of Rules qua a foreign national - Non- issuance of show cause notice - time prescribed under Section 110 - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would also be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
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.
It is an undisputed fact that the Petitioner is a Thai passport holder. In view of the law discussed above, on the ground of limited applicability of the Rules to the tourist of foreign origin and as the detained jewellery is part of personal effects, the Court is inclined to allow the present writ petition.
Thus, in view of the above discussion, let the amount which has been realized by the Customs Department be paid to the Petitioner with 6% statutory interest from the date of disposal i.e., 15th May, 2023. The payment be credited by 15th July 2025, failing which the Petitioner is free to move an application for payment of prevalent market rate of gold with interest.
Petition is disposed of in these terms.
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2025 (5) TMI 2109
Smuggling - Seizure of crude gold bars of foreign origin/foreign marked and standard size - confiscation - imposition of penalty - burden of proof - statements recorded under Section 108 of the Customs Act, 1962 - HELD THAT:- As per Section 123 of the Customs Act, 1962, the burden of proof in certain cases, where any goods to which the Section applies are seized in the reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods shall be, in a case where such seizure is made from the possession of any person, the burden of proof would be on the person from whose possession the goods were seized and if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person.
In Kewal Krishan Vs. State of Punjab, [1962 (3) TMI 101 - SUPREME COURT], the Hon'ble Supreme Court, while dealing with Section 123 of the Customs Act, 1962 regarding burden of proof in certain cases, held that when goods are seized under the reasonable belief that they are smuggled goods, then the onus of proving that they are not smuggled goods and is not of foreign origin is on the person from whose possession the goods were seized.
It is evident that the Respondent was merely a puppet in the hands of the smugglers, who are funding and bankrolling the litigation for the Respondent both before the Original Authority, First Appellate Authority before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and before this Court. A person like Respondent with modest means cannot possibly have the resource except in case of pro bono appearance.
The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has given a very superfluous finding in the Impugned Order to uphold the order dated 14.11.2019 of the Appellate Commissioner in Order-in-Appeal Seaport C.Cus.II No.550 of 2019 and therefore warrants an interference. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) as the ultimate fact finding authority, has miserably failed to perform its duty while passing the Impugned Order under the provisions of the Customs Act, 1962. We are therefore left with no other option except to reverse the impugned decision of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
Therefore, the Impugned Order dated 20.04.2023 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) is liable to be set aside. Since the Respondent was only a carrier with no means, we are inclined to partly modify the penalty imposed on him. It is reduced to Rs. 1,00,000/- to allow him to start his life afresh.
Since the Respondent has not proved that he had no means to buy gold worth Rs. 91,98,090/-, we hold that it was correctly ordered to be confiscated by the Additional Commissioner of Customs, (Chennai-III) Commissionerate in the Order-in-Original No.65168 of 2018 dated 10.09.2018 from File No.OS.No.08/2017-PAU/DRI/CZU/VIII/48/ENQ- 1/INT-01/2017.
Thus, this Civil Miscellaneous Appeal stands allowed.
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2025 (5) TMI 2108
Classification of imported goods - Import of Superior Kerosene Oil (SKO) in the guise of "Industrial Composite Mixture Plus" ("ICMP") or "Low Aromatic White Spirit" ("LAWS") under CTH 27101990 -Compliance of testing parameters (burning quality, colour, and total sulphur content) - burden of proof - Mandatory Bureau of Indian Standards (BIS) IS 1459:1974 specifications - HELD THAT:- It is clear that the Apex Court in the matter of Gastrade International Vs. Commissioner of Customs, Kandla [2025 (4) TMI 23 - SUPREME COURT] had clearly noted that the first preference has to be given in determining classification, to the headings and relevant section & chapter notes. The principle “most akin” comes into consideration only when the application of headings, Sections or chapter notes, leads to no conclusion.
We find that for the heading sought by the appellants, the supplementary note (c) defines “Superior Kerosene Oil” to mean any hydro carbon oil confirming to the Indian standards specification of Bureau of Indian Standards IS 1459:1974 (as mentioned in the year 1996). We find that the supplementary notes of the tariff including the present one are nation specific in case of HSN and require conformity to the Indian Standards specifications i.e. IS 1459:1974. We shall now examine as to whether the impugned product is in conformity with the IS standards 1459: 1974 or not? This IS standard which is statutorily adopted by the Customs Tariff Act through the supplementary Note to Chapter 27 provides for conformity to be determined through Eight standards. Therefore, by virtue of borrowing of IS 1459:1974, these Eight parameters are now built in the statue without any exception.
We also find that the methods of test have been prescribed which are applicable to petroleum and its products. As against this, the test conducted to derive its conclusion by the Chemical Examiner through Customs Laboratory are done only on Five parameters out of prescribed Eight parameters and it is also not mentioned as to whether the Five parameters tested by them were done as per the prescribed testing procedure or not? We find such report is therefore clearly rejectable as it falls short of the statutory requirements of number of parameters prescribed under the Customs Tariff Act, 1975 through adoption of specified ISI standards.
From the record, we find that a test is statutorily required to be followed as per mentioned BIS standards by the Customs Tariff Act on given number of parameters and as per test methods prescribed. Non-testing of 3 parameters out of 8 parameters, will negate the test report and will not discharge the burden of proof which is on the Revenue to decide the nature of the goods, as well as its classification, as the product is of scientific nature. This will also cast shadow of doubt on the conclusions if any reached or the opinions if any arrived at by the testing officials. Being inconclusive, the benefit of doubt must go to the party. The burden cannot therefore be considered as discharged by the department.
We therefore find no infirmity in the order of the Commissioner (Appeals) and we find the same has been based on well-founded reasons and accept the same as legal and proper. Department has tried to build its edifice on the weak foundation of incomplete testing, without realising that “debile fundamentum fallit opus (a weak foundation makes the work fail)” will apply to the situation created. At this stage, after 6.5 years have lapsed and even remnant sample were used for testing, further, testing is neither feasible, nor can be conducted without causing prejudice to the respondents.
Appeals are rejected. Cross of the respondents disposed of.
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2025 (5) TMI 2086
Seeking refund of demurrage charges under the Handling of Cargo in Customs Area Regulations, 2009 ("subject regulations") - failed to issue the requisite ‘Detention Certificates’ - payment of appropriate duty on declared value - Violation of Clause 6 (1) (l) of the subject regulations - goods seized, detained or confiscated by the authority - HELD THAT:- In the present case, the goods of petitioner though detained initially, were found to be in line with Bills of Entry and DRI had ordered the release on 08.04.2010 on payment of appropriate duty on declared value. In order to obtain Detention Certificates, the petitioner approached DRI vide letter dated 13.01.2011. The DRI, in turn, vide its reply dated 21.02.2011, asked the petitioner to approach the Customs authorities for the same. However, the Customs authorities redirected the petitioner to approach DRI vide letter dated 04.03.2011, to which the DRI again requested the Customs authorities to do the needful vide letter dated 25.03.2011. Despite sending reminders on multiple occasions, the Customs authorities failed to issue the requisite ‘Detention Certificates’ for 10 of the aforesaid containers, which form the subject matter of the present proceedings.
Consequently, the petitioner was statedly constrained to filing W.P.(C) No.1007/2015 seeking issuance of the said Detention Certificates and in compliance of order of this Court dated 03.02.2015, eventually the said Detention Certificates were issued by the Customs authorities.
These Detention Certificates were communicated to the respondent vide letter dated 23.02.2015, which was followed up by a reminder letter dated 04.03.2015. Respondent, vide letter dated 08.07.2015, asked the petitioner to explain why after obtaining clearance in 2010 the detention certificates were submitted in 2015. This letter was promptly replied to by the petitioner on 15.07.2015, explaining the circumstances as detailed in the preceding paragraph. However, on account of no response by the respondent, the petitioner was constrained to send multiple reminder letters dated 02.11.2015 and 06.09.2016, 07.03.2017, and 02.07.2018. Thereafter, the present petition was filed in 2018. As is evident from the perusal of the overall factual matrix, there were no delay or laches on account of the petitioner. Rather it was the inaction at the hands of, first the custom authorities and then the respondent that his application for refund has not been processed till date.
Thus, the present petition is allowed and the respondent is directed to process the refund of demurrage charges due to the petitioner within 4 weeks from today.
The present petition is disposed of alongwith pending applications.
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2025 (5) TMI 2085
Seeking release of gold jewellery worn or carried by passengers - "personal effects" under the Baggage Rules, 2016 - applicability of Rules qua a foreign national - Non- issuance of show cause notice - time prescribed under Section 110 - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would also be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
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.
The detained jewellery being personal effects of the Petitioner, the detention of the same itself would be contrary to law. Accordingly, the detained jewellery would be liable to be released on this ground itself.
Insofar as the issue of limited applicability of Rules qua a foreign national is concerned, this Court has considered the said issue in several cases including Nathan Narayansamy vs. Commissioner of Customs, [2023 (9) TMI 1549 - DELHI HIGH COURT]. the Co-ordinate Bench of this Court was also dealing with a similar situation wherein certain jewellery was recovered and seized from the baggage items of a tourist holding Malaysian passport.
It is an undisputed fact that the Petitioner is a Malaysian passport holder. In view of the law discussed above, on the ground of limited applicability of the Rules to the tourist of foreign origin and as the detained jewellery is part of personal effects, the detention would have to be set aside.
Further, 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.
Accordingly, the writ petition is disposed of in above terms. All the pending applications, if any, are also disposed of.
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2025 (5) TMI 2083
Seeking release of gold jewellery worn or carried by passengers - "personal effects" under the Baggage Rules, 2016 - Non- issuance of show cause notice - time prescribed under Section 110 - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would also be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
Thus, it is now settled that the used jewellery worn by a passenger would fall within the ambit of personal effects in terms of the Rules, which would be exempt from detention by the Customs Department.
Hence, considering the facts of the case and the documents placed on record including the photographs, it is clear that the detained jewellery are the personal effects of the Petitioners.
The detained jewellery being personal effects of the Petitioner, the detention of the same itself would be contrary to law. Accordingly, the detained jewellery would be liable to be released on this ground itself. However, there are other issues that are required to be considered in the present matter i.e., waiver of show cause notice by pre-printed forms and non-issuance of the same within the prescribed period under the Act.
Further, 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.
In view of the above discussion, the detained jewellery is liable to be released.
The petition is disposed of in the aforesaid terms.
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2025 (5) TMI 2082
Seeking release of gold jewellery worn or carried by passengers - "personal effects" under the Baggage Rules, 2016 - Residence-cum-Work Permit - limited applicability of Rules qua a foreign national - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would also be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
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.
The detained jewellery being personal effects of the Petitioner, the detention of the same itself would be contrary to law. Accordingly, the detained jewellery would be liable to be released on this ground itself.
Insofar as the issue of limited applicability of Rules qua a foreign national is concerned, this Court has considered the said issue in several cases including Nathan Narayansamy vs. Commissioner of Customs, [2023 (9) TMI 1549 - DELHI HIGH COURT]. the Co-ordinate Bench of this Court was also dealing with a similar situation wherein certain jewellery was recovered and seized from the baggage items of a tourist holding Malaysian passport.
It is an undisputed fact that the Petitioners are residents of Singapore. In view of the law discussed above, and considering the weight and the nature of detained jewellery, the same are clearly personal jewellery of the Petitioners which would be exempt under the Rules.
Accordingly, the Order-in-Original is also set aside and the detained jewellery are directed to be released within a period of 4 weeks.
Petition is disposed of in these terms.
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2025 (5) TMI 2081
Seeking release of the gold jewellery - Petitioner wearing the detained goods - "personal effects" under the Baggage Rules, 2016 - time prescribed under Section 110 - HELD THAT:- The Supreme Court in 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 (“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 a passenger would fall within the ambit of personal effects in terms of the Rules, which would be exempt from detention by the Customs Department.
Further, in the present case, the fact that no show cause notice has been issued upon the Petitioner is also not in dispute. This Court, while deciding upon the issue of non-issuance of show cause notice in various cases has held that once the goods are detained, it is mandatory to issue a show cause notice and afford a hearing to the Petitioner. The time prescribed under Section 110 of The Customs Act, 1962, is a period of six months and subject to complying with the formalities, a further extension for a period of six months can be taken by the Department for issuing the show cause notice. In this case, since no show cause notice has been issued till date, the detention is therefore impermissible.
Thus, the detention of the Petitioner’s detained article is set aside and the same shall be released to the Petitioner within four weeks, subject to verification.
In facts of this case, 50 % of the storage or warehousing charges shall be paid by the Petitioner.
The present writ petition is disposed of in above terms.
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2025 (5) TMI 2080
Seeking release of gold jewellery and the iPhone 16 Pro - gold jewellery worn or carried by the passenger - qualify as "used personal effects" - Baggage Rules, 2016 - non-issuance of show cause notice - time prescribed under Section 110 - HELD THAT:- The Supreme Court in 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.
Moreover, the one detained iPhone 6 pro is also permissible for daily necessity and use of the Petitioner.
Further, in the present case, the fact that no show cause notice has been issued upon the Petitioner is also not in dispute. This Court, while deciding upon the issue of non-issuance of show cause notice in various cases has held that once the goods are detained, it is mandatory to issue a show cause notice and afford a hearing to the Petitioner. The time prescribed under Section 110 of The Customs Act, 1962, is a period of six months and subject to complying with the formalities, a further extension for a period of six months can be taken by the Department for issuing the show cause notice. In this case, since no show cause notice has been issued till date, the detention is therefore impermissible.
Hence, the detention of the Petitioner’s detained articles is set aside and the same shall be released to the Petitioner within four weeks, subject to verification and payment of full storage charges.
The present writ petition is disposed of in above terms.
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2025 (5) TMI 2079
Seeking release and re-export of gold jewellery - Petitioner wearing the detained goods - "personal effects" under the Baggage Rules, 2016 - time prescribed under Section 110 - Whether gold jewellery worn by a passenger would fall within the ambit of personal effects under the Rules - HELD THAT:- The Supreme Court in 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 (“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’.
At this stage it would be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT], wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
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.
The detained goods being personal effects of the Petitioner, the detention of the same itself would be contrary to law, Accordingly, the detained goods would be liable to be released on this ground itself. However, there is another issue which is required to be considered i.e., non issuance of the show cause notice within the prescribed period under the Act.
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 present writ petition is disposed of in above terms.
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2025 (5) TMI 2028
Seeking refund of the differential duty - encashment of the bank guarantee furnished as security for differential customs duty - non-filing of refund application in proper format - non-submission of documents like balance sheet, profit and loss account etc. for the relevant period - Doctrine of unjust enrichment - compliance with the procedure and requirements of Section 27 of the Customs Act - clearance of the imported goods for home consumption - tariff value fixed for the imported goods in terms of Section 14(2) of the Customs Act, 1962 - HELD THAT:- It is thus evident that respondents had recovered the differential duty amount by adopting coercive method i.e. encashment of the bank guarantees which were offered as security for the differential amount of duty on orders of the High Court. Under the scheme of the Customs Act, duty is assessed provisionally or finally whereafter an assessment order or orderin- original is passed. Post assessment order or order-in-original, the concerned importer is required to pay the assessed duty. If the importer does not pay the duty, revenue can enforce recovery under Section 142 of the Customs Act as recovery of sums due to the Government. The key word in Section 27 of the Customs Act is ‘paid’. Refund thereunder is permissible only if any duty is ‘paid’ by the claimant which subsequently becomes refundable either fully or in part.
In the facts of the present case encashment of bank guarantees offered as security cannot be treated as payment of customs duty. Respondents could have either awaited the decision of this Court or could have directed the appellant to renew the bank guarantees. This they did not do. Instead they resorted to arbitrary encashment of the bank guarantees. Such encashment of bank guarantees cannot be treated as payment of duty or duty paid by a claimant.
In such circumstances, the doctrine of unjust enrichment or Section 27 of the Customs Act would not be applicable. It is evidently clear that respondents are holding on to money of the appellant which they are not authorized to do so as per judgment of this Court in Param Industries Limited [2015 (6) TMI 732 - SUPREME COURT] They have no authority in law to hold on to such money and, therefore, the same has become totally untenable.
Thus, we set aside the impugned judgment and order of the High Court dated 28.04.2016 and direct the respondents to immediately refund the amounts covered by the bank guarantees to the appellant. Since retention of such amounts is unjust and unlawful, the same would carry interest at the rate of 6 percent from the dates of encashment till repayment. Let the repayments with applicable interest be released to the appellant within a period of four months from today.
Appeals are allowed. However, there shall be no order as to cost.
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2025 (5) TMI 2027
Seeking release of the gold jewellery - Scope and ambit of personal effects under the Baggage Rules - Confiscation order passed without issuance of SCN - No proper opportunity of personal hearing - compliance of the requirements to issue SCN - prescribed statutory period - HELD THAT:- At this stage it would be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai),[2025 (2) TMI 321 - MADRAS HIGH COURT] wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule.
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.
The detained jewellery being personal effects of the Petitioner, the detention of the same itself would be contrary to law. Accordingly, the detained jewellery would be liable to be released on this ground itself. However, there is another issue that is required to be considered in the present matter i.e., non-issuance of the SCN within the prescribed period under the Act.
It is settled law that 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 petition is disposed of in the aforesaid terms.
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