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Showing 281 to 300 of 40545 Records
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2025 (5) TMI 1632
Condonation of delay - provisions made in Section 45 (3) of the Customs Act, 1962 - Imposition of duty - confiscation - “smuggled goods” - definition of "imported goods" - HELD THAT:- Delay condoned.
Having heard the learned counsel for the appellant and having gone through the materials on record, we find no good reason to interfere with the impugned order dated 28.08.2024 passed by the High Court of Delhi at New Delhi.
The appeal is dismissed accordingly.
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2025 (5) TMI 1631
Maintainability of Writ Petitions - efficacious remedy - Entitlement to licence for a private bonded warehouse - application filed under Section 58 r/w Section 65 of the Customs Act, 1962 - online application under the MOOWR Scheme to do the manufacturing in the private lowdown, i.e. mining area - challenging the rejection orders and cancellation notices - HELD THAT:- A recent decision of the Apex Court in the case of The State of Maharashtra and Others v. Greatship (India) [2022 (9) TMI 896 - SUPREME COURT] is required to be referred to. The Apex Court in the case of United Bank of India v. Satyawati Tondon and others, [2010 (7) TMI 829 - SUPREME COURT], observed and held that in a tax matter when a statutory remedy of appeal is available, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India against the Assessment Order by passing the statutory remedy of appeal. The Customs Act, 1962 is an Act where adequate, efficacious remedy is provided. Therefore, we do not find any ground to interfere with the impugned order under Article 226 of the Constitution of India.
Thus, the present petition, i.e. W.P. No.14776/2025, fails and is hereby dismissed and consequently W.Ps. No.14792/2025, 14777/2025, 14789/2025, 14790/2025 and 14779/2025 are also hereby dismissed.
So far as W.Ps. No.16067/2025 and 16204/2025 are concerned, as on today, only the notice for cancellation has been issued to the petitioner. The petitioner may submit a reply to the impugned show cause notice, and if any adverse order is passed, then the petitioner shall have a remedy of appeal.
Accordingly, W.Ps. No.16067/2025 and 16204/2025 are also hereby dismissed.
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2025 (5) TMI 1630
Maintainability of Show cause notices - 'Proper Officers' under the Customs Act, 1962, for the purpose of issuing show cause notices under Section 28 of the Act - Duty Free Import Authorization under the Foreign Trade Policy - HELD THAT:- Upon perusal of the records, the Court is of the opinion that the Petitioner has not been heard on merits by CESTAT either while passing the order dated 9th January, 2020 or on 22nd April, 2022. This matter relates to Duty Free Import Authorization under the Foreign Trade Policy. Thus, the Court is inclined to relegate the matter in order to provide the Appellant an opportunity to present its case before CESTAT on merits.
Accordingly, the appeal is allowed. The Customs Appeal No. 53658/2018 is restored to its original position.
The appeal is disposed of.
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2025 (5) TMI 1629
Condonation of delay - limitation period prescribed under Section 129A - period of COVID-19 pandemic - sufficient cause - Fraudulent duty drawback - HELD THAT:- This Court is of the opinion that there is sufficient cause shown by the Appellant to justify the delay in filing the appeal.
However, the said delay is being condoned, subject to stringent terms and conditions.
It is further directed that no unnecessary adjournments shall be taken before CESTAT. The impugned order is set aside on the above terms and the appeal is restored to its original position before CESTAT and shall now be adjudicated on merits. The said amount of Rs. 5 lakhs shall be deposited by 10th July, 2025.
The appeal is disposed of in these terms.
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2025 (5) TMI 1628
Smuggling - Appropriateness of penalties under Section 112 (a) and 112 (b) and 117 - Seizure of gold bars - sales proceeds - firm is licenced for sale and purchase of currency - Order of confiscation of gold and Indian currency - HELD THAT:- The two prime accused Rahul Khanna and Luv Kush, alongwith other co-accused, could not produce any document in support of valid acquisition of foreign marked gold. They also were not able to satisfy the licit procurement of Indian currency, seized under the belief of being the sale proceeds of smuggled gold.
As emanates from the findings, Rahul Khanna, Luv Kush Pandey and Mohan Lal Agarwal hatched a conspiracy to smuggle gold from Nepal to India. As per plan Mohan Lal Agarwal would deliver smuggled gold through his personnel to Shyam Sunder Mishra and others deputed by Rahul Khanna at Panitanki, Siliguri or other nearby area on the border. This gold was then required to be brought to Delhi by Shyam Sundar Mishra by train and delivered to Luv Kush Pandey. Rahul Khanna would then arrange sale of the smuggled gold through one Vinod Bhagat in and around Delhi. It was as per the directions of Rahul Khanna that Luv Kush Pandey would deliver the smuggled gold to Vinod Bhagat who would hand over the sale proceeds to Rahul Khanna, Luv Kush Pandey, as per the directions of Rahul Khanna. It is Rahul Khanna who through his representatives would transmit the sale proceeds of smuggled gold to Mohan Lal Agarwal or his representative. Thus a complex web of acquisition, possession and sale of smuggled gold is evident in the whole scheme of things, involving several people including the appellants herein.
Looking into the role play as brought out in the Show Cause Notice and as noted in the adjudication order, the fact of challenge to confiscated gold and Indian currency having been given up, we feel that the ends of justice will be met by reducing the aforesaid penalties imposed.
The appeals stand disposed off in the aforesaid terms.
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2025 (5) TMI 1627
Smuggling - confiscation of the gold, Silver Ingots and seizure of cash - sale proceeds - imposition of penalties - business of cash - No document to show licit import and possession of the gold - knowledge or reason to believe - burden of proof - HELD THAT:- As far as the confiscation of the gold is concerned, there is no contest at all by any of the appellants. Rahul is contesting only confiscation of the cash seized from M/s Kiran Forex Pvt. Ltd. and the confiscation of the silver and the penalty imposed on him.
As far as the silver is concerned, even before us, the submission of learned counsel for Rahul is that it does not belong to M/s Kiran Forex Pvt. Ltd. and it also does not belong to Rahul. It is the submission that it belongs to wife of Rahul. The case of the department is that this silver was found along with the cash at M/s Kiran Forex Pvt. Ltd. and is suspected to be the sale proceeds of the smuggled gold and, hence, was liable for confiscation. There is no claim whatsoever by the wife of Rahul. We, therefore, find that neither Rahul nor M/s Kiran Forex Pvt. Ltd. have any locus standi to claim the seized silver.
As far as the seized currency is concerned, the submission of the learned counsel is that it belonged to M/s Kiran Forex Pvt. Ltd. and it was a part of its business proceeds. The case of the department is that it was sale proceeds of smuggled gold.
In this case, the only smuggled gold in question is the one which was seized from Aman and Shyam. Confiscation of this gold is not contested. This gold was not sold by Rahul because it was seized before Rahul could lay his hands on it. It is true that Rahul had, in his statement, mentioned that he had earlier obtained about 90 kg. gold and had sold it in the market. The question which arises is whether this cash would be the sale proceeds of some gold, which was smuggled earlier and sold in the market.
While section 123 of the Act shifts the burden of proof in respect of gold, such reversal is not applicable to the sale proceeds of smuggled goods under section 121 of the Act. In other words, the cash is not covered by section 123 of the Act. It can be confiscated, if there is evidence that it was the sale proceeds of smuggled gold. In this case, we do not find any evidence to establish that some smuggled goods was sold by the Rahul and the cash which was seized was the sale proceeds of the smuggled goods so sold.
Therefore, we find that the cash which was seized from M/s Kiran Forex Pvt. Ltd. deserves to be released to it. It also needs to be noted that M/s Kiran Forex is in the business of money changing, i.e., exchanging Indian Rupees for foreign currency and vice-versa. It is not unusual for it to have cash.
As far as the penalty on Shri Rahul is concerned, it is relatable to the gold, which has been confiscated under section 111 of the Act. The total gold which was confiscated was 12.1 kg. valued at Rs. 3,71,07,550/-. Section 112 of the Act provides for imposition of a penalty not exceeding the value of the goods or Rs. 5,000/- whichever is greater in respect of those goods on which any prohibition is in force. We, therefore, find that the penalty of Rs. 95,00,000/- imposed on Rahul is fair and proper and calls for no interference.
Penalty of Rs. 45,00,000/- was imposed on Shyam under section 112 of the Act which is relatable to the confiscation of 6.1 kg. of gold bars valued at Rs. 1,86,87,350/- seized from him and confiscated. The penalty of Rs. 45,00,000/- is less than a third of the value of the confiscated goods and it calls for no interference.
Penalty of Rs. 45,00,000/- imposed on Shri Aman under section 112 of the Act for bringing 6 kg. valued at Rs. 1,84,20,200/-. Considering the value of goods and the role played by Aman, we find that the penalty imposed on him is fair and proper and does not call for any interference.
Thus, the impugned order is modified to the extent that the seized cash of Rs. 10,79,300/- shall be released to M/s Kiran Forex Pvt. Ltd. Rest of the impugned order is upheld. Appeal No. C/50728 of 2019 filed by Shri Rahul is partly allowed by releasing the cash to M/s Kiran Forex Pvt. Ltd. Appeal No. C/50729 of 2019 filed by Shri Aman and Appeal No. C/50730 of 2019 filed by Shri Shyam are rejected.
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2025 (5) TMI 1626
Undervaluation - violating conditions of Notification No.25/1999 – CUS as amended by Notification No.09/2004 - evasion of Customs duty -admissibility of evidence as printouts taken from CPU and the printouts of E-mail - Compliance of procedure laid down under Section 138C - Non-fulfilment of statutory requirements of Section 138B of the Customs Act - evidence of contemporaneous import on higher price - allegation of payment of amount through hawala over and above the value declared before customs - Reliability of evidences - Printouts taken from CPU and the printouts of E-mails - HELD THAT:-Admittedly, in this case, the Appellant No.(1) was registered with the Central Excise department and followed the procedure as laid down in Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 and made an application with the Assistant Commissioner or Deputy Commissioner of Central Excise and the Assistant Commissioner or Deputy Commissioner of Central Excise has forwarded the said application to the Assistant Commissioner or Deputy Commissioner of Customs, who allowed duty free and intimated the same to the Assistant Commissioner or Deputy Commissioner of Central Excise to endorse the receipt of the goods in the factory premises of the Appellant No.(1) and the Appellant No.(1) used these goods in manufacture of their final product, which has been cleared by them and they were filing the Excise returns regularly. The same has been admitted by the concern Assistant Commissioner or Deputy Commissioner of Central Excise. In 2005/2006, all the appellants have dis-continued the manufacturing process and surrendered their registration to the Assistant Commissioner or Deputy Commissioner of Central Excise, who accepted the surrender of the registration of the appellant and issued Discharge Certificate to the appellant. The investigations in this case have been started by the DRI in August, 2007. At that time, the appellants were not having manufacturing facility, as they have surrendered the registration in 2005 or 2006 and discontinued manufacturing.
The reason for denial of the Notification is that during the course of investigation, the appellants were found non-existent. Therefore, it cannot be said that the benefit of Notification No.25/1999 – CUS dated 28.02.1999 as amended by Notification No.09/2004 dated 08.01.2004, can be denied to the appellants merely on the basis that the appellants were non-existent. Therefore, the allegation that the appellants were having no manufacturing on the said premises at the time of search, is not sustainable.
The appellants were filing their Excise returns, which shows that the appellants were having manufacturing facilities during the impugned period, therefore, the benefit of the Notification No.25/1999–CUS dated 28.02.1999 as amended by Notification No.09/2004 dated 08.01.2004, cannot be denied.
In that circumstances, the benefit of Notification No.25/1999 – CUS dated 28.02.1999 as amended by Notification No.09/2004 dated 08.01.2004 cannot be denied to the appellants. Consequently, no demand of duty can be raised against the Appellant No.(1) by denying the benefit of Notification No.25/1999 – CUS dated 28.02.1999 as amended by Notification No.09/2004 dated 08.01.2004.
In terms of Section 138B(1)(b) of the Customs Act, 1962, the relevant portion is that when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. In this case, no such procedure has been followed that the statement which has been relied upon by the adjudicating authority were not examined In-Chief and when the witness has not been examined, therefore, the question of making an opinion of the admissibility of the said statement as an evidence, does not arise. Consequently, the statement recorded during the course of investigation cannot be relied upon without following the procedure laid down under Section 138B(1)(b) of the Customs Act, 1962 as held by the judicial pronouncements cited above. In view of this, we hold that the statement recorded during the course of investigation cannot be relied upon to allege under-valuation against the appellants.
Admittedly, the printouts taken from CPU and the printouts of E-mails have not been examined in terms of the procedure laid down under Section 138C of the Customs Act, 1962,therefore, the said documents are not admissible to allege the undervaluation against the appellants.
We further take note of the facts that the charge of undervaluation is based only on the basis of some documents recovered during the course of investigation and the statements made by the appellants. The transaction value can be rejected, if there is an evidence of contemporaneous import on higher price. The said issue has been examined by the Hon’ble Apex Court in the case of Commissioner of Customs, Calcutta Vs. South India Television (P) Limited [2007 (7) TMI 9 - SUPREME COURT].
Admittedly, no NIDB date has been relied upon and no marketing enquiry has been conducted to enhance the value of the imported goods. In the absence of these evidences, the charge of undervaluation is not sustainable.
In the absence of reliance of contemporaneous value declared by the independent buyers, which is much lower than the value declared by the appellants, the charge of undervaluation, is not sustainable.
As the duty has been demanded from the Appellant No.(1) on account of undervaluation and denial of benefit of Notification No.25/1999–CUS dated 28.02.1999 as amended by Notification No.09/2004 dated 08.01.2004, are not sustainable, therefore, whole of the demand of duty confirmed by way of impugned order is set aside.
As the demand of duty is not sustainable, consequently, no penalty can be imposed on the appellants.
We further take note of the facts that during the course of investigation, an amount of Rs.1,21,73,905/- was paid by the Appellant No.(1), the same is to be refunded to the Appellant No.(1) within 60 days from the date of receipt of this order.
In these terms, the appeals are disposed off.
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2025 (5) TMI 1625
Violation of the provisions of Regulations 10(d), 10(e), and 10(n) of the Customs Broker Licensing Regulations (CBLR), 2018 - FOB Value - Non-existent entity - revocation of the appellant's Customs Broker License - forfeiture of security deposit - imposition of penalty under Regulations 14, 17, and 18 of CBLR, 2018 - Guidelines as per Circular No. 02/2018-Customs Dated 12.01.2018 and CBIC Circular No. 09/2010-Customs - HELD THAT:- A violation of Regulation 10(e) of the CBLR, 2018 generally means a failure to exercise due diligence in verifying the correctness of information provided to a client related to customs clearance. This could involve not properly verifying the client's documents, credentials, or the accuracy of information shared about the cargo. In this context, it is an admitted fact that the appellant was in possession of the required KYC documents at the time of customs clearance of the subject goods. It has been submitted that all due diligence as required under the CBLR, 2018 and Circular No. 02/2018-Customs dated 12.01.2018 read with Circular No. 09/2010-Customs dated 8.04.2010. The said Customs authorities did not raise any objection at the time of any clearance of the said goods. No mis-declaration or under valuation of the goods has been reported at the time of its clearance for export.
Further, we note that there is no evidence as to what wrong information was provided by the appellant, in their capacity as customs broker to the Department or the exporter. Consequently, we hold that the violation of said regulations is not established.
We note that a violation of Regulation 10(n) of the CBLR, 2018 typically occurs when a customs broker fails to verify the identity of their client using reliable, independent, and authentic documents, data, or information. This means the broker needs to be certain about who their client is and ensure they are not dealing with a fictitious entity. In this context, we note that the learned counsel has submitted that due verification was carried out by the appellant.
Learned authorized representative has refuted this claim stating that the GSTN of the exporter was issued for Sarita Vihar address whereas the IEC was issued for Narela address. It has also been submitted that the GSTN was cancelled suo-moto by the exporter on 05.07.2021. In this context, the learned authorized representative has relied on the decisions of Supreme Court that 'fraud' vitiates everything.
However, we are unable to appreciate this contention as there is no evidence of any fraud committed by the appellant. We note that as per the Circulars supra, two documents, one for proof of identity and other for proof of address are required for KYC verification, whereas in case of individuals, if any one document listed in the Board Circular No. 9/2010-Cus dated 08.04.2010 containing both proof of identity and proof of addresses, the same would suffice for the purposes of KYC verification. Aadhaar card had also been recognised as one of the documents for individuals.
In the instant case, it is on record that IEC, GSTIN Aadhar card, Rent Agreement and PAN of the exporter were taken by the appellant. There is no allegation that these documents are forged or fake. Verification of these government issued documents did not throw up any anamoly. Consequently, the allegation that the appellant committed fraud does not stand. In this context, we find support in the decision in M/s Perfect Cargo & Logistics Vs. Principal Commissioner of Customs (Airport & General), [2020 (12) TMI 649 - CESTAT NEW DELHI], wherein the Tribunal had decided the issue of KYC verification of the importer/exporter by the Customs broker and the requirements specified in the CBLR, 2018.
Thus, particularly when the appellants CB had handled the export consignments in the year 2021 without any query raised by the Customs authorities, it cannot be said that they had violated Regulation 10(n) ibid.
Merely based on the NCTC, DGARM report, the Customs authorities have found it appropriate to deprive the appellant and its employees of their livelihood. Such a harsh action is to be initiated only when there are serious violations by the CB.
Appreciating the above judicial precedents and having regard to the facts of the appeal, we are of the view that revocation of Customs Brokers License is too harsh a punishment which is bound to affect the livelihood of the Customs Broker and his employees.
Thus, the appeal is allowed and the impugned order is set aside with consequential relief to the appellant.
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2025 (5) TMI 1624
Payment of differential duty - Non- fulfillment of the export obligation (EO) stipulated under the EPCG license issued for import of capital goods at concessional customs duty rates - retrospective effect or not - conditions enshrined in Notification No. 29/1997-Cus. - Imposition of penalty u/s 112 (b) of the Customs Act, 1962 - HELD THAT:- Since the appellant had failed to fulfil their export obligation, they approached the DGFT, Patna seeking extension of export obligation period and also for inclusion of additional items in their said licence for fulfilment of export obligation. The Deputy Director General of Foreign Trade, DGFT, Patna, vide letter dated 06.09.2005 issued to the appellant, certified partial fulfilment of export obligation for the first block year. However, during investigation by the DRI, the Deputy Director General of Foreign Trade, DGFT, Patna, vide letter dated 09.06.2006 admitted that the fulfilment of export obligation certificate was wrongly issued inter alia since strong examination was not possible due to heavy work load.
We observe that the appellants have claimed that they had fulfilled their export obligation by accounting the supplies made by them to M/s. Timken India Ltd., Jamshedpur, which had been accorded the status of a Star Export House, but the Department has not treated these as ‘deemed exports’ for the purpose of fulfilment of their export obligation on the ground that the EPCG Authorization number and date were not endorsed on the shipping bills and supporting documentary evidence were not produced. Accordingly, it was alleged that the appellant- company had failed to fulfil the conditions of the EPCG Licence issued to them as well as the conditions enshrined in Notification No. 29/1997-Cus. dated 01.04.1997.
From the record, it is evident that the DGFT authorities have accepted the compensation fee paid towards the export obligation and concluded that the appellant had fulfilled their export obligation. Thus, when the proper authority has already considered the fulfilment of export obligation, raising of demand of Customs duty on the appellant by the Revenue on the ground that they have not fulfilled the export obligation, is not legally sustainable.
In view of the discussion and by relying on the decision in the case of Skipper Ltd. v. Commissioner of Customs (Port), [2024 (9) TMI 1409 - CESTAT KOLKATA], we hold that the DGFT is the competent authority to determine the policy and to determine as to whether the appellant has achieved fulfilment of the export obligation under the said policy or not.
In the present case, as it is a fact on record that the DGFT has regularized the export obligation and held that the appellant had achieved the export obligation vide their letter/certificate issued on 31.01.2012, we find that the demands confirmed in the impugned order against the appellants herein on the ground that the appellants had not fulfilled their export obligation, are not legally sustainable. Thus, we hold that the demands of customs duty along with interest and penalty confirmed against the appellant in the impugned order are not sustainable and hence we set aside the same.
Accordingly, we set aside the penalties imposed on M/s. Omni Auto Ltd., Jamshedpur (appellant- company/appellant no. 1) (appellant no. 2) Managing Director (appellant no. 3), under Section 112(b) of the Customs Act, 1962.
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2025 (5) TMI 1623
Seizure of gold bars - absolute confiscation and penalties - gold of foreign origin - reasonable belief under Section 110 - Revenue failed to produce any documents - HELD THAT:- We find that it is a case of town-seizure and no foreign marking on the gold and purity of the gold is also below 99.9%. In that circumstances, it is the duty of the Revenue to show the reasonable belief why the gold in question is of foreign origin. The Appellants are not required to discharge their obligation under Section 123 of the Customs Act, 1962. Moreover, the Appellant No.(4) has claimed to be the owner of the gold in question and the said owner has shown the invoices for procurement of the said gold by producing his profit and loss account, balance sheet, income tax return and payment of GST on the said gold in question. In that circumstances, the gold in question is not liable for confiscation.
In view of this, we hold that the confiscation of gold in question is not sustainable. As we hold that the gold in question is not liable for confiscation and the same is to be released to the Appellant No.(4). Further, as the gold in question is not liable for confiscation, no penalties are imposable on the Appellants. Hence, the vehicle in question is also required to be released to the Appellant No.(1)
Thus, we set aside the impugned order and allow the appeals filed by the Appellants with consequential relief, if any.
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2025 (5) TMI 1540
Recall Order for cancellation of Bail - Bail granted on the basis of the young age of the Respondent - gravity of the offence - factors relevant and material to be noted before granting bail - Smuggling of prohibited goods - Offences punishable under Section 132 and 135 of the Act - statement under Section 108 the Act recorded of the four other co-accused persons - HELD THAT:- It is pertinent to consider that the Ld. Trial Court has rightly observed that Respondent-Khushant Nagpal was a young boy of 20 years, engaged as a Cleaner on the Truck, to which he agreed as he was in need of money. It was further observed that he was not the main mastermind of the alleged offence. Confining such youthful offender in Jail is neither psychologically nor mentally conducive for such young boy and there is likelihood of physical abuse if remanded to judicial custody, as he would get criminalised by being in the company of other criminally active persons. The role of the Respondent-Khushant Nagpal was not that of a main conspirator.
Therefore, taking into consideration the gravity of the offence and the allegations against the Respondent-Khushant Nagpal along with his age, bail was granted.
Another factor which is relevant and material to be noted is that because the Complaint was not filed in the Court within the statutory period all four accused had been granted Statutory Bail. Moreover, the Complaint already stands filed.
No grounds were brought forth by the Petitioner/DRI to justify that the Order dated 14.12.2020 suffers from any apparent anomaly or that all relevant factors had not been duly considered while granting bail to the Respondent-Khushant Nagpal.
There is no merit in the present Petition, which is hereby dismissed. The Petition is disposed of.
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2025 (5) TMI 1539
Seeking permission to cross-examine of Statements of importer and CHA - principles of natural justice - Smuggling - mis-declaration of imported goods - Petitioner admittedly was a friend of both the parties - consignment of Areca Nuts, mis-declared as `Ammonium Sulphate’ - absolute confiscation of the goods - requirement of pre-deposit - imposition of penalty under Section 114AA of the Customs Act, 1962 - HELD THAT:- On the conjoint reading of the statements and the reply filed by the Petitioner, it cannot be said that the Petitioner did not have any role at all in the import of the consignment. The statements recorded reveal that the Petitioner did have an active role and as held in the impugned order, could have been the master mind. The document which connects the Petitioner to the import is the reply which has been filed on record apart from the oral statements.
In the present case, the request to cross-examine certain witness statements was rejected, on the grounds that the statements in question were only corroborative of undisputed documentary evidence already on record, and thus, did not warrant cross-examination.
A perusal of the decision of Supreme Court in Telestar Travels [2013 (2) TMI 396 - SUPREME COURT] reveals that while cross-examination would be required in certain cases, it need not be given as a matter of right in all cases. The provision of the opportunity to cross-examine depends on the facts and circumstances of each case and is warranted only when the party seeking such an opportunity is able to demonstrate that prejudice would be caused in the absence thereof.”
The Petitioner is well aware of the CHA and the importer. The impugned order is an appealable order. The question as to what role was played by the Petitioner would have to be adjudicated in an appeal on the basis of facts as the same would not merely be a legal issue.
The penalty appears to be slightly disproportionate considering the penalty imposed of Rs. 2 crores on the importer. In view thereof, the Petitioner is permitted to file an appeal challenging the impugned order before the Customs, Excise and Service Tax Appellate Tribunal along with a pre-deposit of 7.5 % of Rs. 2 Crores. If however, the penalty of Rs. 5 crores is upheld in appeal, then the pre-deposit amount in full would have to be deposited by the Petitioner.
The petition is disposed of in the above terms.
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2025 (5) TMI 1538
Admissibility of secondary electronic evidence, specifically printout of the Excel Sheet in the absence of statutory compliance of producing a certificate under section 138C of the Customs Act - Reliability of statement made by partner of the appellant under section 108 of the Customs Act - Redetermination of the transaction value under rule 3 read with rule 10 of the 2007 Valuation Rules - Suppression of the actual transaction value and resorting to under-valuation - evasion of payment of duty - Demand of differential duty alongwith interest and penalty - extended period of limitation contemplated under section 28(4) of the Customs Act - HELD THAT:- This is for the reason that the printout was taken from a secondary electronic evidence. This issue was examined by a Division Bench of this Tribunal in M/s. Trikoot Iron & Steel Casting Ltd. vs. Addittional Director General (Adjn.) Directorate General of GST Intelligence [2024 (10) TMI 672 - CESTAT NEW DELHI] in which the provisions of section 36B of the Central Excise Act, 1944 came up for consideration. This section is pari material to section 138B of the Customs Act.
The aforesaid decisions of the Tribunal, which are in the context of the provisions of section 36B of the Central Excise Act, hold that a printout generated from a secondary electronic evidence that has been seized, cannot be admitted in evidence unless the statutory conditions laid down in section 36B of the Central Excise Act are complied with. The decisions also hold that if the data is not stored in the computer but officers take out a printout from the hard disk drive by connecting it to the computer, then a certificate under section 36B of the Central Excise Act is mandatory.
Thus, the printout was taken from a secondary evidence namely the pen drive. It could not have been considered as evidence in the absence of a certificate under section 138C of the Customs Act.
The Principal Commissioner has relied upon the data contained in the Excel Sheet and the statement of Rajiv Dhuper made under section 108 of the Customs Act for rejecting the transaction value under rule 12 of the 2007 Valuation Rules and section 14 of the Customs Act. In view of the above discussion, no reliance can be placed on them for rejecting the transaction value under rule 12 of the 2007 Valuation Rules.
The redetermination of the transaction value under rule 3 read with rule 10 of the 2007 Valuation Rules is also based on the data contained in the Excel Sheet. Such a re-determination, therefore, cannot also be sustained.
It would, therefore, not be necessary to examine the contention advanced by the learned counsel for the appellant that the extended period of limitation could not have been invoked in the facts and circumstances of case.
The impugned order dated 26.07.2011 passed by the Principal Commissioner that rejects the transaction value and re-determines it, therefore, cannot be sustained. The demand of interest and imposition of penalty upon the appellant cannot also be sustained. Likewise, the imposition of penalty upon Rajiv Dhuper cannot also be sustained.
Thus, the impugned order dated 26.07.2021 passed by the Principal Commissioner is set aside and both the appeals are allowed.
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2025 (5) TMI 1537
Smuggling- Confiscation of the impugned goods consisting of gold coins, silver coins, coins of other metals, and promissory notes - Nature of personal baggage Or nature of commercial goods - misdeclaration of the quantity, description or value of dutiable goods - determine its value from Archaeological Survey of India - imposition of penalty - correctly classifiable under Customs Tariff Item (CTH) 9803, as claimed by him as baggage; or, is it classifiable under Customs Tariff Heading (CTI) 9706 0000 as determined by the learned Commissioner of Customs - HELD THAT:- On plain reading of the Notification No. 97(RE- 2008)/2004-2009 dated 17.03.2009, it transpires that items of description which fulfils the condition that it is an ‘antique, of an age exceeding hundred years, antiquarian books’ and falling under ITC (HS)/ CTI 9706 0000, are allowed for import as “FREE” in terms of the extant Foreign Trade Policy. However, the policy condition attached to import of such items are that the importer must abide by the relevant rules/laws relating to export of such items of the country from where the imports are sought to be made. It also transpires that above policy condition is applicable at the time of export from the relevant country of export for import into India.
From the details, it transpires that the impugned goods are collection of coins of gold/silver/other material which has been collected and systematically preserved in the form of albums, envelopes designed to display items of numismatic value, held by a collector of numismatic materials (numismatist). Therefore, we are of the considered view, that the impugned goods are in the nature of personal baggage, and not of the nature of commercial goods. Further, in the absence of any specific and independent evidence or proof, to state that the impugned goods are ‘antique’, we find that the action of the learned Commissioner of customs in treating the goods as ‘antique’ and applying the import policy condition, does not stand the scrutiny of law. Further, there is neither any material to state that the appellant passenger had violated the legal requirements at the airport of departure, nor proceedings were initiated or objection raised by HRMC/Customs authorities abroad, in respect of their bringing into India such coins of gold/silver/other material.
Hence, we are of the considered view that the action taken by the learned Commissioner in confiscation of the goods, treating the same as ‘prohibited goods’ under Section 111(d) ibid does not stand the scrutiny of law. Further, it is a fact on record that the complete description of the goods have been inventoried by the customs officers at the time of preparing baggage receipt, detention receipt, upon reporting by the appellant passenger on arrival.
Hence, there is no ground to state that there was misdeclaration in respect of quantity, description of the goods. Furthermore, the value of goods were not arrived at by the Department even at the time of issue of SCN on 14.01.2013, and the valuation was done later on 26/31.12.2013, by registered valuer of jewellery/antique shop. Therefore, the conclusion arrived at by the learned Commissioner in confiscation of goods under Section 111(l), 111(m) ibid, as involving misdeclaration, details not corresponding to the baggage declaration made under section 77 ibid, does not stand the scrutiny of law.
In view of the foregoing discussions and analysis, we are of the considered view that the impugned order dated 28.01.2014 treating the impugned goods as ‘antiques’ and confiscating the same under Section 111(d), 111(l) and 111(m) of Customs Act, 1962 does not stand the scrutiny of law and therefore it is liable to be set aside.
Accordingly, we set aside the impugned order dated 28.01.2014, to the extent it had absolutely confiscated the impugned goods, and imposed penalties on the appellant.
Since, the impugned goods are ‘baggage’ and customs clearance of such baggage is subjected to Baggage Rules in force and specified conditions of applicable notifications in force, we are abundantly making it clear to the parties on both sides, that before the impugned goods are allowed for clearance upon release from customs control, appellant shall pay applicable duties of customs, if any, subject to restrictions on the total quantity of gold/silver which are allowed under Notifications issued by the Government from time to time.
Further, we are also making it clear that if the impugned goods are opted by the appellant passenger for its export back to the country from where it was brought in, then the customs authorities at CSMI airport shall duly record the details of export of impugned goods, in the form of Export Certificate which is used for high value items or any other document, for the limited purpose of official record, that the appellant had duly complied with applicable legal requirements, as per law.
In the result, by setting aside the impugned order dated 28.01.2014, we allow the appeal filed by the appellant-importer in their favour with consequential relief, as per law.
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2025 (5) TMI 1468
Double jeopardy - filing of separate complaints under Section 177 IPC and Section 132 of the Customs Act - Misdeclaration and undervaluation of various types of Pesticides - summon issued under Section 108 Customs Act, 1962 - HELD THAT:- Essentially, the contentions of the Petitioner are that during his interrogation by the DRI in a Complaint, he had given a statement which is claimed to be false, for which, the present Complaint has been filed under Section 177 IPC. According to him, a separate Complaint under Section 132 Customs Act, has already been filed for the same offence and the present Complaint is not maintainable, as it tantamounts to subjecting the Petitioner to suffer for the same offence twice, which is prohibited under Section 300 Cr.P.C. as well as it amounts to violation of his Constitutional Right protected under Article 20 (2) of the Constitution of India.
Pertinently, it is mentioned in the Complaint itself and has also been admitted by the learned Counsel on behalf of the Petitioner that in his Discharge Application which was filed under Section 245 (2) Cr.P.C., same grounds had been taken and the said Application was dismissed by the learned MM vide order dated 06.06.2016. Admittedly, he filed a Revision Petition challenging the order of learned MM wherein the same grounds as agitated in the present Writ Petition in addition to other grounds, were taken by on behalf of the Petitioner.
It is evident that the grounds on which the quashing of Complaint has been sought, have already been agitated before learned MM, who has dismissed the Application for Discharge. The Petitioner most appropriately, has availed the appropriate remedy of assailing the order by way of Revision and in these circumstances, the parallel challenge to Complaint on same grounds cannot be agitated by way of this Writ Petition.
In fact, filing this Writ Petition amounts to bypassing the determination by learned ASJ and the Petitioner should continue with his Revision rather than seeking a direct challenge to the order of learned MM, by way of present proceedings.
There is no merit in the present Petition, which is hereby dismissed.
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2025 (5) TMI 1467
Jurisdiction DRI officers - "proper officers" or not - Validity of Show cause notices issued by DRI officers - Impact of the Supreme Court's subsequent ruling in the Review Petition (Canon-II) - HELD THAT:- As of today, the decision in the Review Petition titled 'Commissioner of Customs v. M/s Canon India Private Limited’, (‘Canon-II’) [2022 (2) TMI 1480 - SC ORDER], has now been rendered by the Supreme Court, wherein the Supreme Court has categorically held that DRI Officers would be ‘proper officers’ for the purposes of the Customs Act, 1962.
Thus, the matter would have to be relegated to CESTAT for re-adjudication on merits. Therefore Customs Appeal Nos. 50948/2020 and 50949/2020 and 51136/2020 are restored to their original positions before CESTAT. Parties to appear before the CESTAT on 16th July, 2025.
The appeals are allowed in the above terms.
The appeals are disposed of.
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2025 (5) TMI 1466
Delay in finalization of Provisional Assessment - Jurisdiction and power of tribunal to grant compensatory interest on excess customs duty retained by the Department for an extended period - Benefit of Notification No. 75/2003- Customs (N.T.) - exercise of power under Section 151A of the Customs Act, 1962 - HELD THAT:- Admittedly, the order of the Appellate Authority was assailed before the Tribunal and it admits of no ambiguity that the moment the Tribunal exercises the jurisdiction, it can take note of the mandates of law and may award the compensatory interest. It is inconceivable that the authority sat over the issue for considerable period of time despite paragraph-3.1 of the CBIC instructions and unreasonably taking advantage of the nuances of the law that the provision mandates the payment within three months from the date of the order despite such order is passed after fourteen years from the date of an approach having made in this regard. The Court cannot remain a mute spectator and may extend the substantial justice after balancing the technical objections. If the substantial justice is pitted against the technical objections or of such nature, the former must prevail.
We do not find any fetter on the imposition of any interest for the delayed payment under Section 27A of the said Act nor we find any fetter on the part of the Tribunal, before whom the order of the appellate authority is assailed, to pass such order. The hierarchical system of the adjudication provided in the statute does not create any brindle into the exercise of the power so conferred and the higher forum is not denuded of power to take a decision, whether the decision of the authority below can withstand on the parameters of the law. We do not find any obstacle in activating the provisions of the statute conferring power upon the authorities to impose interest and the moment the authorities have exercised such power, it does not raise any question of law.
Even a Division Bench of the Jharkhand High Court in the case of M/s. Bihar Foundry & Castings Ltd., vs. Union of India [2024 (3) TMI 371 - JHARKHAND HIGH COURT], has interpreted that the delayed disposal of the matter despite the mandate given in the said manual of instruction having a statutory favour cannot be subverted taking aid of the technical rules, which we find, cannot stand on the way of the Tribunal in deciding the same.
However, we appreciate the contention of the appellant on the Notification dated 12th September, 2003, where for the purpose of Section 27A of the Customs Act, the Central Government has fixed the rate of an interest at the rate of 6% per annum. We, therefore, find force on the submission of the appellant in this regard. The order of the Tribunal is modified to the extent that instead of an interest at the rate of 12% per annum, the same shall be paid at the rate of 6% per annum from the date stated therein.
Thus, the Tax Appeal stands disposed of.
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2025 (5) TMI 1465
Seeking provisional release of the seized goods for re-export - mis-declaration of the goods - bona-fide mistake on the part of the foreign supplier - mandatory registration certificate under Section 9 of the Insecticides Act for import of Novaluron - absolute confiscation - huge demurrage and detention charges - distinguish between "Restricted" and "Prohibited" goods - HELD THAT:- Since the Appellant themselves caused enquiry with the overseas supplier once the imported goods were detained by Revenue and duly communicated the lapse much before the chemical report was communicated to the Appellant, there was no place for any doubt regarding the intention of the Appellant and since the goods were also found to be restricted in nature, post-chemical analysis, for which the Appellant was not entitled to import as having no authorization from the competent Ministry, it was appropriately requested for re-export. By not allowing the re-export, the original authority had erred since his findings are based merely on assumptions and presumptions which could not sustain. The refusal to allow re-export is without any justifiable reason, and if found erroneous, which is not sustainable.
Based on the decision of this Tribunal in the case of Siemens Public Communication Networks Ltd. [2001 (1) TMI 686 - CEGAT, KOLKATA] when the goods are liable to be re-exported, neither redemption fine/penalty nor duty is required to be paid by the Appellant. I, therefore, hold that the order rejecting the re-export was not justified. The delay in allowing the re-export would result in adverse effect on the flora, fauna and the ecosystem of the country.
Therefore, set aside the impugned order and allow the above appeal with the specific direction to the Customs, Noida to forthwith allow unconditional re-export of the consignment with consequential relief.
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2025 (5) TMI 1464
Confiscation of the goods - admissibility of the imported goods to the benefit of duty in terms of Notification No.84/97-CUS - post import condition - transferred the goods to a new project without the request from the appropriate authority - no bond/bank guarantee obtained - contravention of the eligibility to said exemption Notification - Differential duty demand along with interest - HELD THAT:- We find from record that the respondent had before the lower authority also raised the plea and relied upon sub-Section (2A) of section 25 of the Customs Act, 1962, to submit that any explanation inserted in Notification issued under sub-section (1) or sub-section (2) of section 25 of the Customs Act, 1962 after the statutory limit of one year is arbitrary and ultra vires of section 25 of the Customs Act, 1962. As the explanation was inserted with effect from 01.03.2008 by Notification No.24/2008-Cus.; dated 01.03.2008 in the Notification No.84/97-Cus,; dated 11.11.1997 issued under sub-section (1) of the section 25 of the Customs Act, 1962, i.e. after more than one year of the issue of the Notification No.84/97-Cus. They submit that the Explanation inserted in the Notification with effect from 01.03.2008 is therefore not applicable for the goods imported by them during April, 2005 to December 2005. Delving into the genesis, giving rise to the impugned Notification and its subsequent amendments the ld. Commissioner has arrived at a finding that new additional conditions in respect of imports made prior to 01.03.2008 were imposed vide Notification No.22/2014-CUS and, as the respondent had transferred the goods to a new project without the request from the appropriate authority and as that the said goods were no longer required for the stated project. This according to the adjudicating authority was in contravention of the eligibility to said exemption Notification.
It is their case that the goods were cleared to them by the department on the basis of exemption certificates issued by Govt. of India and under bond/guarantees were executed at the time of clearance of the goods. The imported goods were used for the specified projects, which were since completed. As the impugned notification had no post import condition at the time of import, the respondent upon completion of the said project utilized the imported goods for executing some approved projects and other projects.
The fact that no bond/bank guarantee was obtained by the department from the respondent is a very material factual contention. We find that the revenue’s reliance therefore on Mediwell Hospital and Health Care Pvt.Ltd. v. Union of India [1996 (12) TMI 51 - SUPREME COURT] and Commissioner of Customs (Import), Mumbai v. Jagdish Cancer & Research Centre [2001 (8) TMI 113 - SUPREME COURT] would not arise for once. There are a plethora of orders of various judicial bodies to hold that when the goods are not available for confiscation, they cannot be directed to be confiscated.
For the proposition we rely on the case law of Atul Kaushik v. Commissioner of Customs (Export), New Delhi [2015 (9) TMI 317 - CESTAT NEW DELHI] and Chinku Exports v. Commissioner of Customs, Calcutta [1999 (6) TMI 113 - CEGAT, NEW DELHI]. Moreover, we also find sufficient merit in the contention of the ld. Consultant inviting our attention to sub-section 2A of Section 25 wherein the amendment was introduced to the to the parent Notification cannot be sustained in the present matter.
The fact that the goods were not cleared on execution of any bond/bank guarantee cannot bring about a continuous obligation for the violation of which the same can be enforced by way of a continuing obligation as held by the hon’ble apex court referred to supra.
Thus, we find no merit in the appeals filed by the Revenue. The same are therefore dismissed and the Cross Objections filed by the respondents also get disposed of in the aforesaid terms.
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2025 (5) TMI 1463
Undervaluation and redetermination of assessable value of the imported goods - Compliance of the provisions of section 14 - differential duty amount along with penalty and redemption fine - intention to avoid customs duty - lack of evidence to show excess amount over and above the invoice price paid to the suppliers - HELD THAT:- We find that the adjudicating authority has recorded the finding on the basis that Shri Jhunjhunwala had admitted undervaluation and the fact that he deposited the huge amount at the time of recording his statement on 13.03.2009, itself proves the guilt of the appellant. We completely disagree with these findings as acceptance of revised valuation cannot be treated as a voluntary consent by the importer.
From the provisions of section 14 of the Act read with the Valuation Rules, it is clear that in the ordinary course, the transaction value has to be taken as the assessable value.
Repeatedly, the Courts have laid much emphasis on the principle that even where there is admission by the importer, the department is required to satisfy the compliance of the provisions of section 14 and the Valuation Rules while re-determining the value of the goods. Merely because there is admission by the importer does not absolve the department to act in compliance of the mandatory provisions. Recording the basis for such an enhancement is the sine-quo-non of re-determination.
From the perusal of the records of the case, we do not find that the department has made any effort to ascertain quality, quantity, characteristics of the goods of contemporaneous import from which the basis for such reassessment can be made out. In fact, there is no evidence at all to show that the department had carried out any exercise for ascertaining the basis for re-determining the value of the imported goods. It is not even forthcoming that the overseas supplier has been paid consideration higher than the amount declared in the invoices.
In the present case, the revenue has merely re-assessed the value on the basis of the statement of Shri Jhunjhunwala, which is not the prescribed requirement for reassessment of the value of the imported goods. The revenue has not discharged its burden and therefore, we conclude that the transaction value declared by the importer should form the basis of assessment and consequently, the enhanced value reassessed by the revenue is unsustainable.
We do not find any merits in the impugned order and hence the same is set aside. The appeal is, accordingly, allowed.
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