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Showing 241 to 260 of 40545 Records
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2025 (5) TMI 2026
Seeking release of gold jewellery - SCN issued beyond the permissible period of limitation under Section 110 (2) - Reconsideration Instruction No. 27/2021-Customs - HELD THAT:- A show cause notice under Section 110 of the Customs Act, 1962, can be issued within six months of seizure of goods. Thus, from a combined reading of Instruction No. 27/2021-Customs and Section 110 of the Customs Act, 1962, it can be inferred that the disposal of the gold can happen even before issuance of the show cause notice. This seems quite anomalous and incongruous. Accordingly, let the CBIC also consider whether the Instruction No. 27/2021-Customs requires reconsideration.
The show cause notice proceedings shall be concluded in accordance with law and an order shall be passed within a period of three months.
The present petition is disposed of in said terms. Pending applications, if any, are also disposed of.
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2025 (5) TMI 2025
Seizure of gold bangles of a foreign national - Baggage Rules - absolute confiscation - payment of redemption fine - customs duties and penalty - waiver of customs duty - HELD THAT:- Ld. Counsel for the Petitioner submits that the Petitioner is willing to undertake to re-export of the goods as the Petitioner is a Canadian national.
Accordingly, the custom duty is waived in the present case. The Petitioner shall pay the redemption fine and the penalty of Rs. 3,80,000/- and Rs. 3,50,000/- respectively. Subject to the said payment, the gold items shall be released to the Petitioner.
In the facts of this case, since re-export is being agreed to by the Petitioner, no storage charges shall be collected.
The petition is disposed of in these terms.
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2025 (5) TMI 2024
Seeking release of goods - Procedure for detention of goods under the Customs Act, 1962 - Baggage Rules - waiver of storage or warehousing charges - HELD THAT:- At this stage, the Court has been informed that despite the orders of this Court directing waiver of storage charges, the Central Warehousing Corporation (“CWC”), continues to insist on payment of the said charges whenever the respective Petitioners approach for release of their goods.
The concerned official has been sensitized about the complete compliance of the orders being passed by this Court, failing which stringent action shall be liable to be taken against the concerned personnel/ management of CWC. Ms. Ralhan has assured the Court that the orders passed would be fully complied with.
The Petitioner may collect the detained goods through an Authorised Representative, in which case, the detained goods 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.
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2025 (5) TMI 2023
Seeking release of goods - appropriate direction to the authorities for compliance of the directives given by the Tribunal - redemption of fine and penalty - period of limitation - monetary limit in preferring the appeal - HELD THAT:- The learned Senior Counsel appearing for the petitioners, however, contends that since the redemption fine and the penalty amount both added together as awarded by the Tribunal is only around Rs.18.45 lakhs which is much below the monetary limit prescribed by the department for preferring an appeal. There is no likelihood of any challenge to be made in the light of the circulars of the CBIC in this regard. Even otherwise, the learned Senior Counsel submits that even the original order of the adjudicating authority also if the redemption fine and the penalty amount is added together, it comes to less than Rs.1 crore. Even then, it is below monetary limit in preferring the appeal. Even on that ground also, there is hardly any charge for the department to contest the case.
To this, the learned Standing Counsel contends that the aspect of monetary limit in the instant case may not be applicable in accordance with the said circular of the CBIC, as the amount of penalty and the redemption fine which the petitioners are liable to pay exceeds Rs.1 crore, though the adjudicating authority or the CESTAT may have awarded lesser redemption fine and penalty. Therefore, that would not be covered by the said circular. At this juncture, it would be relevant to take note of a decision of this very High Court under similar circumstances in the case of NASEER CHITTETHUKUDY MAJEED vs. UNION OF INDIA [2023 (2) TMI 403 - TELANGANA HIGH COURT]
Given the aforesaid facts and circumstances, more particularly taking into consideration the fact that it is now more than about 40 days time having already elapsed from the order of CESTAT and also more than a month from the impugned order served upon the department and till date, there does not seem to be any appeal having preferred by the department. Hence, we are left with no other option but to dispose of the writ petition at this juncture directing respondent No. 1 to take appropriate steps in ensuring compliance of clause vi of the paragraph 39 of the order of the Tribunal, at the earliest, preferably within a period of four weeks from today.
The writ petition, accordingly, stands disposed of. There shall be no order as to costs.
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2025 (5) TMI 2022
Non-fulfilment of export obligation under the Advance Licensing Scheme - contravention of the conditions of Customs Notification No. 43/2002 - inputs duty-free - liability to pay customs duty along with interest - HELD THAT:- It is the case of the appellant that they have fulfilled the Export Obligation in full even before the passing of the Adjudicating Order, which was not considered, but however, we do not find any material to the effect that such a pleading was ever urged before the Authority. It is not only just the pleadings, but what was relevant are the documents in support, especially the EODC obtained from the concerned DGFT. The advance license scheme read in juxtaposition with the FTP as applicable at the relevant point, mandates the fulfilling of the export obligation within a certain period of time; the concerned exporter may request for additional time in case the export obligation could not be made within the timeframe. It is for the Authority, namely DGFT to permit such extension of time.
Admittedly, in the case on hand, the Export Obligation claimed to have been fulfilled is much beyond the permitted period. If the said claim is accepted, then the schemes of advanced licensing for duty-free import and Foreign Trade Policy for meeting Export Obligation becomes redundant, which is not the legislative intention. The objective behind these schemes would fail and anybody could make such exports at any time and there will be no end to such claims; consequently, the authorities would never be able to pass any adjudication order, which is again not the scheme of the Customs Act.
Thus, we are of the view that there is no infirmity in the impugned order in so far as the duty demand is concerned. Hence, we do not find any merit in the appeal filed by the firm. The said appeal No. C/41407/2015 therefore stands dismissed.
Insofar as the other appellants are concerned, one by Managing Director of the firm of Appellant No.1, and the other by Sr. Manager (Commercial) of the Appellant No.1, we do not find any justification in the levy of penalty under Section 112 (a) of the Act. Admittedly, the issue relates to meeting of fulfilment of the export obligations in terms of the Advance Licenses obtained by the firm and from the impugned order, we do not find any material piece of evidence against these appellants as the reasons behind the non-fulfilment of export obligation or the non-obtaining of EODC.
Hence, the penalties on these appellants stand set aside and the Appeals C/41408/2015 & C/41410/2015 of the respective appellants are allowed with consequential benefits, if any, as per law.
The appeals are disposed of accordingly.
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2025 (5) TMI 2021
Determination of the correct assessable value for customs duty - imports of solar power equipment and accessories - transactions between the Indian importer and the foreign suppliers - HELD THAT:- There is no other material based on which the Adjudicating Authority could change his observation. The finding below Table-D in fact goes to the very root of the issue, to the effect that though parties are related, yet there was no transaction between them except the fact that only the invoices were raised by the Hong Kong entity. That by itself would not make the Hong Kong entity the supplier. No Agreement is referred to in this regard by the Adjudicating Authority in support, to hold that imports were made from their related suppliers. In that view of the matter, the borrowings and reimbursements to their Group Company at Belgium is of no consequence.
The Customs Act, 1962 by itself is a complete code, the disallowances and/or additions could be made only if the respective conditions as prescribed under the Act are not satisfied and certainly not because an officer/Adjudicating Authority feels so.
When there is no international transaction between the 2 Group Companies, there remains nothing to analyse the transaction value just in the context of Borrowings and Reimbursements which have nothing to do with any trade as such. Hence, what was relevant was to verify if the amount paid to the actual supplier was at Arm’s length provided they are related in terms of the statute.
We do not find any findings to the effect that the invoice raised by the Hong Kong entity was not in order and that the said Hong Kong entity had in turn raised invoice on the Indian Company by adding its mark-up. Therefore, the Transfer Pricing analysis made by the Adjudicating Authority like an IT assessment is redundant and the consequential loading suffers from serious legal infirmity. Revenue has hence not discharged the burden of proof so as to load the value. The First Appellate Authority was thus correct in setting aside the same.
In the result, there is no merit in the Department’s Appeal and hence, we dismiss the same.
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2025 (5) TMI 2020
Claim of duty drawback - Misdeclaration - discrepancy between the fabric composition declared on the labels and the actual fabric composition - demand along with applicable interest and penalty - HELD THAT:- From the SCN and reply thereto, we find that the dispute was only with regard to the declaration in the label /tag regarding the fabric composition and not the composition per se. Hence, the scope of the appeal does not involve or require getting into the merit as regards the fabric composition is concerned. The appellant has explained that the internal miscommunication and misunderstanding resulted in errors in labelling, but in so far as seven Shipping Bills were concerned, there was no mismatch either with regard to the fabric composition or even the declaration of the same is concerned.
Further, the conduct of the appellant that upon re-import of the fabric in question which has been recorded in SCN at paragraph 11 that the appellant had vide their letter dated 19.05.2010 sought for provisional release of the goods after surrendering the duty drawback, which was availed at the time of export. This, according to us, is an action in good faith since it was at least after three years thereafter that the SCN came to be issued; the reimport of the consignments was in July 2009.
Hence, we do not find any willful misdeclaration to claim the drawback, as alleged by the Revenue and hence, the consequential demand raised in the impugned order cannot sustain since it is an admitted fact that the appellant voluntarily remitted back the duty drawback sanctioned to them, along with interest. Sustaining the consequential demand would therefore result in demanding the duty twice. For the above reasons, no penalty could be levied and the impugned order requires to be set aside, which we hereby do. Resultantly, the appeal is allowed with consequential benefits, if any, as per law.
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2025 (5) TMI 2019
Demand duty along with interest and penalty - Invocation of extended period of limitation under Section 28(4) of the Customs Act, 1962 - availing benefit of Notification No.46/2011- CUS - suppression, willful misstatement or collusion in obtaining concessional customs duty benefits - evasion of customs duty - HELD THAT:- It is clear from record, that the demand made in the impugned show cause notice, would not survive as there is nothing in the notice/order to impute knowledge and willful intent on the part of the appellant to deliberately submit an incorrect improper Country of Origin Certificate with intent for evasion of duty.
The impugned order passed by the Principal Commissioner of Customs, NOIDA, is therefore set aside.
The Revenue has also filed appeal in the matter seeking to impose penalty on the appellant under Section 114A of the Customs Act 1962, as proposed vide Para 13(iii) of the Show Cause Notice impugned in the matter. However, we find that the ld. Principal Commissioner has in pursuance of her order imposed on the appellant, equal amount of penalty, as the duty confirmed.
That being so in the first place there being no demand made to impose & recover the penalty, equal to the amount of duty + interest confirmed, the Revenue cannot stake such a claim by way of their cross objections/appeal. Moreover, the said question was already answered by the Hon'ble Karnataka High Court in the case of Commissioner of Customs & Sales Tax,Bangalore v Sony Sales Corporation [2021 (3) TMI 174 - KARNATAKA HIGH COURT] that the two expressions were to be read distinctively and “the word” or “in law cannot be read as “and.” The Revenue’s appeal thus lacks merit and cannot be sustained.
In view of our discussions above the appeal filed by the appellant importer succeeds, while the appeal of the department stands dismissed.
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2025 (5) TMI 2018
Revocation of the Custom House Agent (CHA/CB) license - forfeiture of security - non-existing firm - failure to comply with the provision of Regulations 10 (d), 10 (e) and 10 (n) of CBLR 2018 - failure to exercise due diligence - HELD THAT:- All the admitted facts as observed above, sufficiently proves the lack of due diligence on part of the appellant while verifying of the credentials of the importer. No doubt vide Circular No. 502/2008 dated 8.4.2010 only two out of six documents as mentioned in the said circular should be available with the CHA for its satisfaction about the credentials of the importer/exporter. But we observe that the said circular in para 5.2 (iv) describes the Know Your Customers (KYC norms) to be followed by the Custom House Agents. It provides that to identify its client and the functioning of its client in the declared address, the CHA is required to use the reliable, independent, authentic documents, data or information. It has also been clarified that it should be obligatory for the client/customer to furnish to CHA, a photograph of himself/herself in case of an individual and those of authorized signatory in respect of other firms of organizations such as companies/trust etc. However, we observe appellant/CHA in his statement recorded under Section 108 of Customs Act, 1962 has admitted that he had not met the importer ever. The documents for processing the clearance of impugned consignments were hand over to him by the freight forwarders M/s Transglobe. The CHA was acting at the instance of said freight forwarder only.
It is the settled law of evidence that admissions need no further proof till those are retracted or otherwise proved in voluntary. In the present case, the appellant has not denied the said statement at any stage of the present proceedings. Resultantly, it stands proved that the most important obligation under CBLR, 2018, as fastened on the CHA, has not been fulfilled by the appellant. The appellant was the first time CHA for M/s Digen Traders, the importer still he has not opted to meet the importer in person.
Thus, we have no reason to differ from the findings arrived at by the adjudicating authority holding that the appellant has failed to exercise due diligence.
In view of the entire above discussion with respect to the regulations as are alleged to have been violated by the appellant: with respect to the conduct of appellant itself proving the said violations and also the conclusion of the enquiry report against the appellant and the various decisions as discussed above, we find no reason to differ from the findings arrived at by the adjudicating authority. Hence we hold that the appellant has violated the Regulations (CBLR), 2018.
Finding no infirmity in the order under challenge, same is hereby upheld. Consequently, the appeal is dismissed.
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2025 (5) TMI 2017
Classification and valuation of the imported goods in a Bill of Entry or export goods in a Shipping Bill - Entitlement to MEIS scrips - proper officer - confiscation under section 113(i) - imposition of penalties under section 114 and 114AA - HELD THAT:- There is no dispute about any material particulars in the Shipping Bills and only difference of opinion is regarding the classification of exported goods. The declaration in the Shipping Bill was as per the understanding of the exporter and consistent with the views of the Development Commissioner, the Assistant Commissioner who issued the Sanction Order for the EOU and the Central Excise Officers who signed/retained the ARE 1& ER-2 Form. DRI took a different view in the SCN. The declaration in the Shipping Bills does not become false or incorrect simply because DRI takes a different view of the classification. No exporter has an obligation to conform to any future views of any officer of DRI, Audit, Preventive, etc. Penalty under section 114AA, therefore, cannot be imposed anyway in the matter regardless of the merits of the classification.
To sum up :
(a) After the goods are exported, the only options available to the Revenue to modify the assessment of the Shipping Bills are an appeal before Commissioner (Appeals) under section 128 or a Show Cause Notice under Section 28. Show Cause Notice under section 28 can be issued only to recover duties not levied not paid, short levied, short paid or erroneously refunded and not for any other purpose. The appeal under section 128 has no such restriction.
(b) The re-assessment of the Shipping Bills in this case is without any authority of law.
(c) Classification of goods is a part of assessment and it is the opinion of the exporter or the proper officer.
(d) No exporter has any obligation to anticipate any views of DRI, audit or preventive officers regarding the classification of the goods or to conform to them. The exporter fulfils his obligation once he files the Shipping Bills classifying goods as per his understanding.
(e) Section 113 (i) does not render any goods liable to confiscation simply because DRI, audit or preventive officers hold a different opinion about the classification.
(f) Penalties under Sections 114 and 114AA also cannot be imposed simply because DRI, audit or preventive officers have a different view of the classification of goods.
(g) In this case, there is no evidence that the MEIS scrips were obtained by collusion, wilful misstatement or suppression of facts or that they were utilised.
Thus, the impugned order is set aside. The assessee’s appeal is allowed and Revenue’s appeal is dismissed. The Cross Objection filed by the assessee in Revenue’s appeal are also disposed of. The assessee will be entitled to consequential relief, if any.
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2025 (5) TMI 2016
Misdeclaration of the description of the imported goods as “RBD Palmolein Mixture” - entitlement to customs duty exemption under a Free Trade Agreement - availment of the benefit of import at “Nil” rate of Basic Customs Duty BCD under exemption Notification No. 26/2000 - demand of duty - invoking extended period of limitation - imposition of penalties under Sections 114A and 112 (a) - HELD THAT:- Although the goods were imported in 2004 and samples were drawn in 2004, there was evidently no reason for the appellant to ask for a retest until it was made aware that the test reports were received and that they were against the appellant and that they would be used against the appellant to fasten duty liability and impose penalties. All these things were clear when the SCN was issued by the Commissioner in 2009 relying on the test reports and then the appellant sought re-test. Thus, the entire delay of five years from 2004 to 2009 was caused by the Commissioner in issuing the SCN. He relied on the test report received five years before but refused to send the samples for re- testing on the ground that the request for re-test was made after five years. There could have been better clarity on the nature of the goods imported and if they were NOT RBD Palmolein mixture as declared had the samples been re-tested but the Commissioner, by denying re-test, removed that possibility.
Another possibility of finding the truth would have been to cross-examine the persons who tested the samples. This would have thrown more light on the nature of tests conducted and if they had also tested the samples for “RBD Palmolein mixture” or if they had otherwise concluded that the samples were not “RBD Palmolein mixture”. The appellant sought cross examination which was denied by the Commissioner on the ground that the test reports have been rendered between 12.3.2004 and 10.6.2004 under two different Directors of CFL, Ghaziabad and all show that the samples conform to the standards laid down under PFA Rules for RBD Palmolein. Another reason given by the Commissioner was that the test reports were shown to two of the persons whose statements were recorded under section 108 and at that time they had not contested the test reports.
However, we find what the Commissioner does not state is that none of the test reports say that the samples do not conform to RBD Palmolein mixture or that the goods were not RBD Palmolein mixture. At the time of recording the statement, the individuals may or may not have contested the test reports but when the test reports were proposed to be used against the appellant to fasten duty liability and impose penalties in the SCN issued in 2009, the appellant did have a right to contest the test reports.
Thus, the Commissioner removed any possibility of having an expert opinion or test report which can support the case of the department that the imported goods were NOT RBD Palmolein mixture as declared. This conclusion in the impugned order is not borne out of the test reports. Therefore, the allegation that the appellant had mis-declared the nature of goods is not substantiated.
To sum up:
a) The SCN and the impugned order are based on three types of documents- the Bills of Entry, Statements of various persons and test reports.
b) The Bills of Entry filed by the appellant are not in dispute.
c) All statements of various persons recorded under section 108 of the Act have become irrelevant to prove the case because the Commissioner did not admit them following the procedure prescribed under section 138B of the Act.
d) The test reports are one-sided; while they say that the samples meet the criteria for RBD Palmolein nowhere do they say that the samples were NOT RBD Palmolein mixture nor do they suggest that the samples were tested for RBD Palmolein mixture; this was possibly due to reason that the CFL was not asked if the goods were RBD Palmolein mixture as described or not.
e) Another possibility of getting clarity about what the imported goods were and what they were not was to re-test the samples which was denied by the Commissioner on the ground that the request was made five years after the import when, in fact, the delay was solely on account of the Commissioner issuing the SCN five years after the goods were imported and samples were tested. Thus, the Commissioner denied the appellant its right on account of his own wrong viz., the delay of five years in issuing the SCN.
f) Another possibility of finding the true nature of the goods could have been to cross-examine the experts who tested the samples but that was also denied by the Commissioner.
Thus, the allegation of mis-declaration of the nature of the goods in the Bills of Entry and consequential demand of duty and interest and the penalties cannot be sustained.
The appeal is allowed and the impugned order is set aside with consequential relief to the appellant.
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2025 (5) TMI 2015
Classification of the imported goods - ink and ink related consumables - Under Chapter 32 Or Customs Tariff Item (CTI) 29141200 as Methyl Ethyl Ketone (MEK) - mandatory pre-deposit under section 129E of the Customs Act, 1962 - whether an NOC from the Narcotics Commissioner as per the RCS Order is also required to import goods which, according to the appellant, are ink and ink consumables which are not MEK but which contain MEK to extent of 35% to 99% - confiscation - Recovery of duty, interest and penalty - HELD THAT:- Applying Interpretation Rule 1, we proceed to examine the chapter notes of the two chapters. Chapter note 1(a) states that „Except where the context otherwise requires, the headings of this chapter apply only to “separate chemically defined organic compounds, where or not containing impurities”. Chapter Note 1(a) to Chapter 32 states that „this chapter does not cover “separate chemically defined elements or compounds except those of heading 3203 or 3204, inorganic products of a kind used as luminophores (heading 3206) glass obtained from fused quartz or other fused silica in the forms provided for in heading 3207, and also dyes and other colouring matter put up in forms or packings for retail sale, of heading 3212).
ne ingredient may be overwhelming by quantity quite a different ingredient may give the good it its essential character and if so, the latter is relevant for classification. For example, a tablet of 500 mg of say, Amoxycillin, will actually weigh several grams. The active ingredient, Amoxycillin will be only 500 mg and the rest will be inert materials such as talc, glue, etc. The overwhelming ingredient of such a tablet will be talc but what gives the tablet its essential character is the miniscule quantity of Amoxycillin. It has to be classified as Amoxycillin and not as talc. Similarly, most tonics are just alcohol or some sugar syrup by weight, most injections are just water by weight but they should be classified as per the active ingredient, which, though in a miniscule quantity, give the essential character of the good. An easy way of identifying the essential character of a good is knowing how it is being sold and bought in the market. Is it being sold as a piece of talc or as Amoxycillin? Similarly, in this case, what needs to be seen is if the imported goods were being sold as inks or ink consumables as claimed by the appellant or is there any evidence that they are being sold as MEK? We do not find anything on record to justify the change of classification of the goods to CTI 29141200. This classification of the goods by the Joint Commissioner which was upheld in the impugned order needs to be set aside for this purpose.
The case of the Revenue is that the appellant had imported the disputed goods which are MEK without obtaining the NOC from the Narcotics Commissioner, they were liable to confiscation under section 111(d).
In this case, the limited question before us is the confiscation under section 111(d). As per this section, goods will be liable to confiscation if they are imported contrary to any prohibition imposed under the Customs Act or any other law for the time being in force. There cannot be any dispute that the RCS Order being a sub-ordinate legislation under the NDPS Act, is a law for the time being in force.
Clearly, salts or preparations or goods containing MEK were not included in Schedule C of the RCS Order. The Narcotics Commissioner also clarified in paragraph 13 of his order that salts or preparations containing MEK are not included in Schedule C to the RCS Order.
We, therefore, find that the undisputed legal position is that an NOC from the Narcotics Commissioner was not required to import goods which contain MEK and such an NOC is required only to import MEK. The Joint Commissioner confiscated the goods under section 111(d) referring to not just the RCS Order but to the Order passed by the Narcotics Commissioner.
Thus, the order passed by the Narcotics Commissioner cannot be called „any other law for the time being in force‟ as per section 111(d). Law can only mean a law passed by the legislature or a subordinate legislation (such as the RCS Order). The confiscation of the goods under section 111(d), therefore, cannot be sustained and is liable to be set aside and is set aside.
Section 112 renders one liable to penalty for acts or omissions which rendered some goods liable to confiscation under section 111. Since we have found that the confiscation of the goods under section 111 cannot be sustained, the penalty under section 112 cannot also be sustained and needs to be set aside.
No reasons were given by the Joint Commissioner in his OIO or by the Commissioner (Appeals) in the impugned order for imposing penalty under section 114AA. Nothing in the records shows that the appellant had made any declaration or statement or produced any document which is false or incorrect, let alone, doing so knowingly. The appellant had declared the goods as inks/ink consumables and they were seized as such. The appellant was always open about the fact that they contain MEK and had also declared so to the Narcotics Commissioner in its representations made well before the imports were made. Penalty under section 114AA cannot be sustained and needs to be set aside.
In view of the above, the impugned order cannot be sustained and needs to set aside. The impugned order is set aside and the appeal is allowed. The appellant will be entitled to consequential relief.
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2025 (5) TMI 2014
Revocation of the Customs Brokers license - forfeiture of entire security deposit - overvaluation of export goods - fraudulent availment of excess drawback - Violation of Regulations 10(d), 10(e), 10(f), and 10(m) - procedural safeguards prescribed under Regulation 17 of CBLR - imposition of penalty - HELD THAT:- We are unable to appreciate the manner in which the impugned orders have been passed on the same appellants CB for two times, each time repeating the action of ordering revocation of the CB license, forfeiture of security deposit and imposition of penalty directing the appellants to surrender the license and other identity cards issued to the persons working with the appellants. It is also a fact on record that these two orders dated 02.05.2024 and 24.05.2024, had been passed within a period of 3 weeks interval, successively, offering personal hearing to the same appellants CB. These could only indicate that such orders have been passed in a very mechanical way, by the licensing authority.
Further, the learned Principal Commissioner was aware of the ongoing inquiry proceedings in this case, when he was passing the order on 02.05.2024, as the first action of immediate suspension vide Order No.67/2022-23 dated 11.01.2023, and post-decisional hearing and passing an adjudication order vide Order No.72/2022-23 dated 31.01.2023 was common in both the impugned orders, as it is at that stage of initiating regular proceedings under CBLR, 2018 two different SCNs were issued on 28.02.2023 and 17.03.2023 for two different IECs of the same group of exporter M/s Hasi Gold/Hasi Impex for over valuation of exports. The inquiry report thereon was submitted on 03.10.2023 in respect of regular inquiry vide SCN dated 17.03.2023; and another inquiry report was submitted on 12.07.2023 in respect of regular inquiry vide SCN dated 28.02.2023.
Thus, in terms of Regulation 17 ibid, the learned Principal Commissioner could have waited for the entire inquiry proceedings to be completed involving two separate proceedings and then pass necessary orders as provided in the CBLR. However, it is seen that despite the CB license had been already suspended, and later such suspension was revoked after giving the appellants post decisional hearing, again one another deemed suspension to take effect from a future event and date was prescribed. As we have already observed at paragraphs 7.1 and 7.2 above, there is no legal provision under CBLR for taking such action by the licensing authority. The above casual manner of handling the customs broking license matters by the authorities below does not instill confidence with us to state that CBLR is properly implemented for the purpose for which it has been framed for carrying out the provisions of Section 146 of the Customs Act, 1962. Hence, on this account too, the impugned orders are not legally sustainable.
Thus, we do not find any merits in the impugned order 24.05.2024 passed by the learned Principal Commissioner of Customs (General), Mumbai in deemed revocation of the CB license of the appellants; for forfeiture of security deposit second time and for imposition of penalty, inasmuch as there is no violation of regulations 10(d), 10(e), 10(f) and 10(m) of CBLR, 2018, and the findings in the impugned order is contrary to the facts on record. Further, the impugned order dated 02.05.2024 is not sustainable as it has failed to establish that the appellants CB have violated Regulations 10(d), 10(e), 10(f) and 10(m) ibid with supporting evidence or legal basis.
Therefore, by setting aside the impugned orders, we allow the appeals in favour of the appellants.
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2025 (5) TMI 2013
Imposition of penalty on customs broker - confiscation - redemption - abetment in mis-declaration of transaction value - scope and authority of the Proper Officer - HELD THAT:- The Proper Officer is the only one who will have access to data of contemporaneous imports by others based on which he can reject the transaction value and also re-determine the value through other methods. Neither the importer nor the customs broker has the authority under the Valuation Rules to re-determine the assessable value after rejecting the transaction value. The importer is expected to correctly declare the transaction value as per the documents and the customs broker is required to file the Bill of Entry accordingly. The appellant had done so. Neither the appellant (customs broker) nor the importer is expected to anticipate if “Proper Officer” would reject the transaction value and if he so rejects what value the Proper Officer would fix as the assessable value. They are also not expected to anticipate any show cause notice may be issued in future or the decision in adjudication of the proceedings in pursuance of the show cause notice.
Thus, we find that the appellant did not commit any error whatsoever in filing the Bills of Entry as per the transaction value and in not anticipating what value the Proper Officer may determine at the time of assessment or the adjudicating authority in any future proceedings. The penalty imposed on the appellant under section 112, therefore, cannot be sustained and it is liable to be set aside and is set aside.
The appeal is allowed and the impugned order is set aside with consequential relief to the appellant.
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2025 (5) TMI 2012
Maintainability of Refund claim for extra duty - valuation of the exported Iron ore Fines - export of different quantities of iron ore in bulk at different rates per Dry Metric Ton (DMT) based on specific chemical composition, size, and moisture content - assessment has been undertaken without following the Circular No. 12/2014-Customs - HELD THAT:- We observe that similar view has been taken by the Hon'ble Apex Court in the case of ITC Limited v. Commissioner [2019 (9) TMI 802 - SUPREME COURT (LB)], wherein it has been categorically held that unless the assessment order is challenged, no consequential effect can be given. Accordingly, we hold that the entire proceedings which seeks to deny the refund, without challenging the final assessment Orders are liable to be set aside.
Regarding the observation of the Ld. Commissioner (Appeals) in the impugned order that the assessment has been undertaken without following the Circular No. 12/2014-Customs dated 17.11.2014, we observe that C.B.I.C. has directed vide the above said Circular that the transaction value is to be decided based on the load port test report or discharge port test report, as per terms of contract, where the proper officer shall compare the two reports as per the terms set out in the contract and finalize the provisionally assessed shipping bills, under the provisions of Section 14 of the Customs Act, 1962 and the Customs Valuation (Determination of Value of Export Goods) Rules, 2007 duly, supported by Bank Realisation Certificates for the purposes of comparison with the final invoices.
Thus, in the present case, the valuation of the exported Iron ore Fines has to be derived at based on the terms of contract with Foreign Buyer and as per the Contractual agreement.
Accordingly, the Load Port Test Report in the present case would be the decisive factor for the determination of the value of the Iron Ore fines exported. This stand is further substantiated by the fact that the remittance has also been received in proportion thereof only. The Customs officers cannot change this transaction value or the stipulation of the test report of Mitra S.K. Pvt. Ltd., being the determinant of the transaction value. Thus, the report of Discharge Port report / CRCL Report has no relevance in the present case for deciding the levy of Export Duty.
In view of the above findings, we hold that the refunds eligible to the appellant as per the final assessment orders cannot be rejected without challenging the final assessment orders. As the final assessment orders have not been challenged in this case, the rejection of refund sanctioned to the appellant in the impugned order is legally not sustainable and accordingly, we set aside the same.
Thus, we set aside the impugned order and allow the appeal filed by he appellant, with consequential relief, if any, as per law.
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2025 (5) TMI 2011
Maintainability - refund claims without challenging the provisional assessment - Payment of the export duty under protest - HELD THAT:- Admittedly, in both the matters, the Respondents has paid the export duty under protest at the time of assessment of shipping bills. As duty has been paid under protest therefore, assessment of shipping bills was not final. In these terms the Respondents has rightly filed refund claim without challenging the provisional assessment.
Assessment is not final unless and until protest is removed. In that circumstances the Ld. Commissioner (Appeal) has rightly sanctioned the refund claims to the Respondent. Consequently, we do agree with the observation of the Ld. Commissioner (Appeal) in the impugned order.
Thus, we do not find any infirmity in the impugned orders, the same are upheld.
In result, the appeals filed by the Revenue are dismissed.
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2025 (5) TMI 2010
Classification of the imported goods - described as "Nickel Hydroxide Type M5" under Chapter Heading 2825 4000 Or under the residual heading 3824.90 - imposition of penalty and the invocation of the extended period of limitation - Demand - Mis-declaration, Confiscation, and Penalty - HELD THAT:- We have gone through the ruling of this very Bench in the case of SAFT India Private Limited Vs CC Chennai [2024 (5) TMI 1156 - CESTAT CHENNAI], wherein this Bench has considered an almost similar issue and both the parties have in their respective synopsis filed before us, relied upon/referred to this specific order.
This Bench had very elaborately considered the rival contentions in the context of the rival entries and, after detailed analysis, has held that the product “Nickel Hydroxide” is a separate chemically defined compound containing Cobalt Hydroxide, which is also a separate compound; also graphite an element/metal, which has been admitted that these were added to enhance the conductivity of Nickel Hydroxide Compound, which is meant to be used for manufacture of ‘Nickel Cadmium Batteries’.
Thus, it is clear that the classification of the imported compound viz. Nickel Hydroxide as admitted by the appellant is incorrect and hence, on merits, following the above ruling we dismiss the appeal.
In so far as the imposition of penalty and the invocation of the extended period of limitation is concerned, the said issue involved interpretation of the Customs Tariff Act and General Rules of Interpretation (GRI) as could be seen from the elaborate analysis by this Bench in the order of SAFT India Pvt. Ltd. supra and hence, we are of the view that attributing any mala fide intention or motive in so far as classification or claiming the benefit of Notification supra cannot sustain in the peculiar facts of this case. Therefore, imposition of fine or penalty is not justified. For these very reasons, even invoking of extended period cannot sustain. Demand if any, could be justified only for the normal period.
Resultantly, the appeal stands partly allowed on the above terms.
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2025 (5) TMI 1937
Classification of the goods 'Martech DHA' - Non-determination of classification - HELD THAT:- As per the judgment of the Apex Court delivered in the case of Union of India Vs Kamalakshi Finance Corporation [1991 (9) TMI 72 - SUPREME COURT], there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher Appellate Authority. In this case there was no reservations on the correctness of the Tribunals Order as Revenue had communicated the acceptance of the said CESTAT order to the appellant and no appeal has been shown to have been filed against our order, before the Hon’ble Supreme Court by either of the parties.
The issue of classification of ‘Martech DHA’ on identical set of facts has hence become final. The appellant cannot be made to face the same kind of litigation twice over the same set of facts, because such a process would be contrary to considerations of fair play and justice. Principles of constructive res judicata would hence apply.
Once the Ld. Commissioner in his order has gone by the order of the Tribunal which has become final, with no appeal being filed against it a discussion on the relevancy of judgments cited therein becomes redundant.
Thus, we dismiss the appeal filed by the Revenue with consequential relief, if any as per law. The appeal is disposed of accordingly.
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2025 (5) TMI 1936
Classification of the goods - import of Namkeen System/Heat Wave Frying System classified under CTH 84388020 as ‘other machinery’ - Special CVD at 4% under Notification No.19/2006 - HELD THAT:-The Nomenclatures/features of the machine in question as found in the product catalogue has been extracted in the Order-in-Appeal. Further at para 6.3 of the OIO it has been observed by the Original Authority that the imported machine is a machine for industrial preparation/production or manufacture (processing) of various food items and that the literature on “Namkeen snacks description” indicates that the Namkeen System, which is the product under dispute, is the most automated frying system for industrial purposes. From the foregoing, the fact which is clear is that the machine in question is meant for frying only and hence, as observed by the First Appellate Authority, CTH 84198120 refers to ‘other kitchen machines’, whereas there is a specific entry for fryers at CTH 84198110, which has been conveniently ignored by the Original Authority. Admittedly, the machinery in question is meant for production at commercial level, whereas the entry at CTH 84198120 refers to ‘Kitchen machines’ only.
Thus, we do not find any infirmity in the impugned Order-in-Appeal as regards the classification is concerned and hence, we do not find any merit or any reasons in the appeal filed by the Revenue. Resultantly, we dismiss the appeal.
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2025 (5) TMI 1935
Value of software - preloaded or imported separately - mistake or the misdeclaration - clearance on payment of CVD by availing exemption from payment of BCD - HELD THAT:- The Commissioner has observed that upon verification of Bill of Entry No. 4079 dated 03.07.2004, it was found that the software value had already been declared at Sl. No.15 which was referred to DRI, Bangalore for clarification and vide reply letter S/IV/26/04 (Chennai Air/B) dated 10.02.2006, it was stated that an error had occurred by adding the software value component again to the already declared value of ₹1,56,95,868/- that, the actual value was only ₹1,56,95,868/- and that the duty was correctly calculated only on the value of software which was required to be added to the value of hardware and hence, only ₹11,37,404/- was demandable.
The mistake or the misdeclaration alleged by the Revenue, according to us, is on a very thin line; it is the case of the importer that they under good faith believed that the software was liable to rate of duty and its value was not required to be included in the value of the software imported by them but it is not the case that they did not declare the value and remit the duty. On the other hand, it is the case of the Revenue that the software which is embedded/etched on the hardware which is a firmware/embedded software, is different from the add-on or independent software which are traded independently.
The exemption in the notification is not extendable to the subject software, in order to avail the above exemption, the importer had deliberately misdeclared the software component. The Revenue has relied upon the decision of Hon’ble Apex Court in Anjaleem Enterprises Private Limited Vs CCE Ahmedabad [2006 (1) TMI 271 - SUPREME COURT], wherein the decision of Acer India Ltd. Vs CCE [2004 (9) TMI 106 - SUPREME COURT] was distinguished by the Apex Court itself.
From the perusal of the Grounds of Appeal as well as the Review Order, however, we do not see any whisper about reply dated 10.02.2006 by the DRI, admitting the payment of duty by the assessee and that an error had occurred by adding the software value component again. In view of the specific observation which goes to the root of the issue, we are of the view that the question of adding the value of software separately as declared in Acer India Ltd. (supra) or Anjaleem Enterprises Private Limited (supra) does not arise.
Thus, we do not find any merit in the appeal filed by the Revenue and hence, we dismiss the same.
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