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Customs - Case Laws
Showing 281 to 300 of 38343 Records
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2024 (3) TMI 1145 - CESTAT NEW DELHI
Classification of imported goods - Electronic Control Unit (ECU) - classifiable under CTI 8708 99 00 or under CTI 9032 89 10? - case of the department is that since it is an automotive part, it should be classified as parts of automobile under CTI 8708 89 10, regardless of the fact that it is a printed circuit board - whether or not ECU is an article under Chapter 90? - HELD THAT:- The submissions of the learned authorised representative for the department deserve to be accepted. From the records of the case and the detailed technical submissions made by the learned counsel for the appellant, it is evident that the ECU does not and cannot either measure or regulate anything. It only analyses the data provided to it by other parts of the ABS (sensors) and compares it with standards and issues instructions. Based on these instructions, other parts of the ABS regulate the manner in which the car brakes ensure that the braking is safe - Merely because it is in the form of a PCB does not change it from a part of an automobile into an instrument or an apparatus. Automatic regulators, even according to the HSN Explanatory Notes relied upon by the appellant, essentially consist of a measuring device, a control device and a starting, stopping or operating device and ECU does not have these abilities, except that of the analysis of data.
Evidently, Section Note 7(b) deals with either regulators of electrical quantities or instruments or apparatus for automatically controlling non-electrical quantities which depend on electrical phenomenon. ECU is not a regulator of electrical quantity nor is it an instrument or apparatus for regulating non-electrical quantities which depend on electrical phenomenon. It is not an instrument or apparatus by itself. It is the ABS which regulates the braking to ensure safe braking - Merely because ECU is a chip which analyses the data (and through any chip electricity flows), the function of the ABS or its part ESCS (manufactured by the appellant) or its further sub-part ECU (imported by the appellant) do not, in our considered view, qualify as “automatic regulators of electrical quantities and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on electrical phenomenon”.
It however, needs to be noted that ABS regulates the braking and not the speed. This regulation is based on certain other phenomena like speed, regular rotation, etc. and not based on the extent of braking. In other words, there are three non-electrical quantities viz. speed, sideways movement and angular rotation based on which a fourth quantity viz., braking is regulated. The factor to be controlled is the braking, a non-electrical quantity, and ECU issues instructions in the form of electrical signals which vary not according to the factor to be controlled (braking) but according to three other non-electrical quantities.
Neither the ABS nor the ESCS manufactured nor the ECU imported by the appellant can fit into Section Note 7 (b) by any stretch of imagination. Since Section Note 7 makes it explicit that CTH 9032 applies only to such goods which fall under (a) or (b), ECU gets clearly excluded from CTH 9032.
All the Customs Appeals are dismissed and the impugned orders are upheld.
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2024 (3) TMI 1113 - CESTAT BANGALORE
Adjustment of Penalties from Refund amount - Smuggling - foreign currencies - On appeal by the appellant, absolute confiscation was set aside by the Commissioner (Appeals) on payment of redemption fine and penalty and directed the respondents to release the confiscated foreign currency to the appellant on payment of the above dues. Accordingly, refund claim was filed by the appellant after payment of the redemption fine and the penalty as per the above order which was accepted by the Revenue.
HELD THAT:- Section 142 allows to recover the amounts that is due from the appellant from any money that is payable to him provided he is a defaulter but in the present case, the personal penalties of the co-noticees are being recovered as dues deeming the appellant as a defaulter which is beyond the scope of Section 142 of the customs Act 1962 - the penalties being penalty in personam against the individuals, same cannot be adjusted against the refund sanctioned to the appellant.
The Hon’ble High Court of Kerala in the case E. Abdul Rahiman Versus Union of India [2007 (12) TMI 232 - HIGH COURT OF KERALA AT ERNAKULAM] observed The penalty so levied being personal cannot be recovered from the importer or any other person. Therefore, the petitioner is not personally liable for the penalty levied on Shri Yahoo and the amount also cannot be recovered from the petitioner.
It is undoubtedly clear that personal penalty levied on the co-noticees cannot be recovered from the amount to be refunded to the appellant - the impugned order set aside - appeal allowed.
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2024 (3) TMI 1112 - CESTAT KOLKATA
Refund claim - Payment of duty in terms of Notification No. 84/2017-Cus instead of availing full exemption under Notification No. 93/2017-Cus. - order of assessment in appeal not challenged - HELD THAT:- We find that on identical facts, this Tribunal has taken a matter for consideration in the case of M/s. Uma Export Ltd.[2023 (10) TMI 1176 - CESTAT KOLKATA]. As the issue has already been dealt by the Tribunal, we hold that when two beneficial Notifications are applicable to an assessee, it is the choice of the assessee to take the benefit of the Notification which is more beneficial to the assessee.
Further, in this case, the respondent had initially filed an application u/s 149 of the Customs Act, 1962 for amendment in the Bill-of-Entry which was pending before the ld. adjudicating authority. Thereafter, the respondent filed their refund claim. In these circumstances, it cannot be said that the decision in the case of M/s. ITC Ltd.[2019 (9) TMI 802 - SUPREME COURT] is applicable to the facts of this case as before filing the refund claim, the respondent had sought amendment in the Bill-of-Entry.
Thus, we do not find any infirmity in the impugned order. Accordingly, the same is upheld - In the result, the appeal filed by the Revenue is dismissed.
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2024 (3) TMI 1111 - CESTAT KOLKATA
Demand of duty - Classification of Goods - Imported one consignment of ‘Bed sheet’, declared as Polyester Bed sheet - willfully mis-declaration of the goods - classifiable under CTH 5407 Or under CTH 6304 - confiscation - penalty - HELD THAT:- We find that a similar issue has been examined by this Tribunal in the case Commissioner of Customs (Port) vs. M/s. Silpha Finvest P. Limited [2024 (3) TMI 246 - CESTAT KOLKATA] and it was held that merit classification of impugned goods is under CTH 6304 whereas the Revenue wants to classify the same under CTH 5407. As the classification adopted by the adjudicating authority is not sustainable, therefore, we do not find any merits in the impugned order. Consequently, no penalty u/s 114A of the Customs Act, 1962 is warranted against the respondent.
Therefore, we dismiss the appeal filed by the Revenue.
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2024 (3) TMI 1110 - CESTAT AHMEDABAD
Seeking to recover the refund already sanctioned - imported timber log and paid SAD - Sold timber after cutting and sawing - non-endorsement of the declaration - violations of Notification 102/2007-Cus - non-mention of Bills of Entry number on the invoice and mismatch of description - HELD THAT:- We find that the primary objection raised in the instant case is that the appellant have sold timber after cutting and sawing. This issue is specifically covered by the decision of Hon’ble Apex Court in the case of Variety Lumbers[2018 (6) TMI 1499 - SUPREME COURT], it has been held that the refund cannot be denied even if the imported logs were cut and sawn before sale.
Non-endorsement of the declaration in terms of para 2(b) of Notification 102/2007-Cus. The said para 2(b) requires the importer to mention on the invoices that no credit of additional duty of customs levied under sub section (5) of Section 3 of the Customs Tariff Act 1975 shall be admissible. We find that since the appellant is not a registered dealer, therefore the question of taking credit on the invoices issued by them does not arise.
Non-mention of Bills of Entry number on the invoice and mismatch of description and number of pieces on the invoices and bills of entry. In grounds of appeal it has been clearly indicated that stock requests duty certified by Chartered Accountant was produced at the time of filing refund. Following the case Overseas Polymers [2021 (1) TMI 1212 - CESTAT CHENNAI]. It is clear that minor discrepancies cannot be the reason for recovery of refund when the appellant had submitted Chartered Accountant certified stock report.
Thus, we do not filed any merit in the order, the same is set aside and appeals are allowed. The appeal of the Naresh Aggarwal, Director is also consequently allowed.
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2024 (3) TMI 1059 - SC ORDER
Direction to respondent to decide the stay application which was moved along with Appeal preferred under Section 137 of Maharashtra Prohibition Act, 1949 - cancellation of FL-III licence in exercise of powers under Section 54(1)(e) of the Act - it was held by CESTAT that The licence, if obtained by fraud or misrepresentation and that too by use of a doctored document, frustrates the very claim for grant of equitable relief as the fraud vitiates the proceedings.
HELD THAT:- There are no reason to interfere with the impugned order passed by the High Court - SLP dismissed.
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2024 (3) TMI 1058 - ALLAHABAD HIGH COURT
Maintainability of appeal - monetary limit involved in the appeal - Smuggling - Gold Bars - HELD THAT:- While the confiscated gold was valued at more than Rs. 1 crore at the same time that was apportioned amongst three assessees namely Ms. Disha Tulsiani, Sri Nirmal Tulsiani and Sri Ashok Kumar Talhani.
Thus individual dispute in each of the appeals is far below the monetary limit of 1 crore. On the earlier dates, we allowed learned counsel for the revenue to file supplementary affidavit to bring on record the revenue effect involved in each of the appeals. While an affidavit has been filed by the revenue on 18.11.2023, it does not bring on record the revenue effect involved in each of the appeals.
Clearly despite time granted, no disclosure has been made by the revenue to establish that the revenue implication in each or any of the appeals exceeds the monetary limit of 1 crore - Since the order passed by the Tribunal is clearly in favour of the assessee and there is no cross appeal filed by revenue, no justification or occasion survives for this Court to allow the revenue the luxury of maintaining the present litigation against its own stated litigation policy.
The present appeal and the connected appeals are dismissed being below monetary limit.
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2024 (3) TMI 1057 - CESTAT NEW DELHI
Revocation of courier registration of appellant - forfeiture of security deposit - imposition of penalty under Regulation 14 of Courier Import Export Regulation (CIER), 2010 - mis-declaration of goods by the appellants as courier agents - violation of Regulation 12 (1) (i) (iii) (iv) (vii) and (x) and CIER, 2010 - HELD THAT:- There is sufficient evidence on record to prove the under valuation as being committed by the appellant with respect to the impugned import consignments.
The Courier company not only processes the clearance of the goods through the customs but actually receives the goods from the overseas exporter, transports them to India, clears them through the customs and further delivers them to the consignee in India at his address. The Regulations regulating this process provide for licensing of couriers who only can handle this work. In such imports, after the goods are brought into the country the courier has to obtain Know Your Customer (KYC) documents from the consignees and their authorization and thereafter has to file courier bills of entry (CBEs) in respect of each of the consignments. After the goods are assessed by customs, the courier pays the customs duty and clears the goods and takes them to the premises of the importer and delivers them and collects the customs duty which was paid by the courier while clearing the goods.
The appellant’s main contention is the inquiry report dated 13.01.2021 is in favour of appellant. It has been held that the appellant has abided by all the provisions of the act and CIER Regulations. Alleged violation of Regulation 12 CIER has been ruled out. However the said report and the said order-in-original has been ignored by the order under challenge. It is observed that order dated 05.02.2021 has been discussed in the order under challenge. It has been observed therein that despite an investigation was under process with SIIB and status thereof was demand but was not produced till the time of said inquiry report dated 13.01.2021 and the said order-in-original dated 05.02.2021.
Thus moot question of authenticity of authorizations and invoices especially the manipulation of dates was not before the adjudicating authority at the time of order dated 05.02.2021. the order of setting aside alleged violation of CIER by appellant was thus passed due to lack of evidence at that time. Hence, in the light of subsequent evidence against appellant, there are no reason to different from the findings in the impugned order under challenge (order-in-original dated 18.08.2023).
Thus, the appellant has violated Regulation 12 and the respective sub-regulations of CIER 2010 - the findings arrived at in the order under challenge w.r.t. each sub-clause of Regulation 12 of CIER affirmed - appeal dismissed.
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2024 (3) TMI 1056 - CESTAT AHMADABAD
Conversion of shipping bills - conversion from Draw Back Scheme to Advance License Scheme - limitation period of three months for seeking conversion of shipping bills from one scheme to another - HELD THAT:- It is seen from the findings of the learned Commissioner that he has given detailed findings while refusing conversion from Draw Back Scheme to Advance License Scheme at such belated stage even after same was availed by the appellants sometime after the exports was done. The order clearly discusses the scheme and legal provisions related thereto and how freely done conversion from one scheme to another after availing benefit can jeopardize revenue interest as both have their own procedural encompass and how conversion from less rigorous to more rigorous examination scheme was not permitted by the Circular No. 36/2010. This court also finds that Hon’ble High Court in THE PRINCIPAL COMMISSIONER OF CUSTOMS, MUNDRA VERSUS M/S LYKIS LIMITED [2021 (2) TMI 261 - GUJARAT HIGH COURT] after having a look at Circular No. 36/2010 dated 23.09.2010 struck down only the para 3(a) which had prescribed of three months limitation from the date of export order.
This court finds validity of condition 3(e) of Circular No. 36/2010 dated 23.09.2010 survives and therefore holds that once a benefit under which shipping bill was filed has been availed, the conversion to any other scheme cannot be allowed. It is thus clear that the same has a bigger objective of atleast giving finality to some extent to decisions earlier taken while exporting, as is the case of the appellants in this matter. This court therefore, finds that once draw back benefit was availed then there was no scope for seeking conversion to any other scheme “And” in relation to mis-declaration clause in 3(e) above being disjunctive as in case later proposition of mis-declaration, manipulation etc., coming into play, the exporter even if has been precluded from availment can still be denied conversion.
This court finds that matter falls within the ambit of para 3(e) of the above Circular and the conversion request after having enjoyed the benefit of draw back scheme, and after availing the same, cannot be allowed.
Appeal dismissed.
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2024 (3) TMI 1055 - CESTAT CHENNAI
Rejection of refund claim - amount deposited after pre-notice consultation - interpretation of section 28 of the Customs Act, 1962 - Non issuance of Show Cause Notice - HELD THAT:- A close look at section 28 indicates that a pre-notice consultation is necessary before issuing notice i.e. Show Cause Notice. The purpose of the same as understood, is obviously to indicate the ‘recovery of duties not levied or not-paid or short-levied or short-paid’. Here in the case on hand, a pre-notice consultation dated 9.10.2017 was issued in terms of proviso to section 28(1)(a) ibid to the ‘person chargeable with duty or interest’ and apparently, the appellant responded positively without any demur by paying the duty and interest as indicated. What was indicated / proposed to be demanded was a differential duty and hence nothing more needs to be said about the ‘characteristic’ of the demand since when proposed to be demanded, the payment was made religiously.
Much emphasis has been laid on the non-issuance of letter / communication in writing as specified under sec. 28(2) and it is the case of the appellant that it having not issued any such communication in writing, the payment made by it loses the characteristic of duty - it is found that a positive act followed the pre-notice consultation and hence, nothing can be looked beyond for anything. If the pleas urged is to be considered, then there should have been a communication to the least, indicating as to why payment as proposed / demanded was made, but no such things appear in the file. The appellant having acquiesced, no further action was felt necessary.
It appears that the differential duty arose on account of mis-match with regard to the classification of the product imported. It is the case of the appellant that the correct classification was 8480.60. But there was no request made for rectification / re-assessment, since it is the settled position of law that since acceptance of Bill of Entry is considered as self-assessment per se, the importer if aggrieved by the same, has to seek for modification / rectification / re-assessment as held by the Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata [2019 (9) TMI 802 - SUPREME COURT].
Rather, the appellant chose to seek only the refund which has rightly been rejected by the original authority.
There are no merit in the case of the appellant - appeal dismissed.
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2024 (3) TMI 1054 - CESTAT BANGALORE
Refund of export duty paid in excess consequent to the issuance of duty reduction Notification No.62/2007 dated 03.05.2007 - conclusive evidence to discharge the burden of unjust enrichment - whether the incidence of duty has been passed on to the buyer? - HELD THAT:- Clause 4 of the Contract dated 26.04.2007 between the buyer and the seller clearly stated that all Indian taxes on cargo will be borne by the seller is not under dispute. The Bank Realization Certificate, invoice, the bill amount in foreign exchange and dispatch amount due to the exporter was less than the FOB value shown in the shipping bill, are also facts that are not disputed. The learned Commissioner (Appeals) in the impugned order relies on the financial records to state that it is not shown as ‘receivables’ and relying on the Board Circular dated 28.05.2008, without disputing the above facts rejects the refund claim without any justification for rejection. The fact that all the documents have been placed by the appellant justify that the export duty paid by them has not been passed on to the buyer brushing them aside without any reasoning is not sustainable.
The seller has borne the incidence of duty. The undertaking by the buyer also is on record which states that the incidence of export duty for the impugned shipment was not passed on to them. In view of the above documents, there are no reason to sustain the impugned order.
Appeal allowed.
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2024 (3) TMI 1053 - CESTAT KOLKATA
Undervaluation of imported goods - Patchouli Oil - insured value of the goods was higher than the invoice value declared for clearance of the goods - ascertainment of value of contemporaneous imports of Patchouli Oil of Singapore origin - assessable value declared by the appellant in the said two Bills of Entry were rejected on the ground that the insured value of the product was higher than the value declared in the invoice - period from 2005-06 - HELD THAT:- It is observed that the value declared by the appellant for insurance purpose has no relevance for the purpose of assessment of customs duty. There is no evidence on record produced by the investigating officers to the effect that the appellant had actually paid the insured value for the purpose of importation of the impugned goods. Thus, there was no basis for rejection of the declared value by the Department.
The quality of Patchouli Oil depends on different chemical factors including alcohol contents. The imports imported by the appellant has been assessed and customs duty has been demanded at the time of importation of the goods. The assessments have not been challenged and they became final. Subsequent to its clearance, factors such as higher value adopted for insurance cannot be a reason for rejection of the assessable value declared - After rejecting the declared assessable value, the Department has adopted the price of contemporaneous import of similar goods to enhance the value declared, without adducing any evidence to the effect that the goods are comparable. There is no evidence available on record to indicate that the Patchouli Oil imported by the appellant and the contemporaneous imports whose price has been adopted by the Department are similar in all respects.
The demand of differential duty along with interest confirmed in the impugned order is not sustainable and accordingly, we set aside the same. Since, the demand of duty is not sustainable, the question of imposing penalty on the appellant importer does not arise.
Imposition of personal penalty on Shri Subhas K Naik - HELD THAT:- There is no finding in the impugned order regarding the role played by the appellant in the alleged under valuation. It has been alleged that Shri Subhash Khandubhai Naik has visited the supplier and fixed the price over telephone and accordingly, the lower price was fixed due to his personal influence. In view of the discussions, the allegation of under valuation is not substantiated. Accordingly, penalty imposed against the Director of the appellant-importer cannot be sustained and the same is accordingly set aside.
The rejection of assessable value under the above two Bills-of-Entry is legally not sustainable. Accordingly, the differential duty along with interest and penalty confirmed in the impugned order set aside - the penalty imposed on the Director of the appellant-company set aside.
Appeal allowed.
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2024 (3) TMI 1052 - CESTAT HYDERABAD
Smuggling - seizure of three cut pieces foreign origin gold totally weighing 1000 gms - Validity of Show cause notice issued - limitation - burden of prove - Confiscation - Penalty - HELD THAT:- Admittedly, it is the case of town seizure as the appellant was intercepted in the domestic terminal at Hyderabad. The only evidence brought on record by Revenue as to the smuggled nature of goods is firstly, that the three pieces of gold have got markings indicated their foreign origin and secondly, the statement of the appellant that he is aware that he has purchased gold at Hyderabad, which is of smuggled in nature and the same has been purchased without any invoice/bill/receipt.
From the tenor of the statement recorded from the appellant, its voluntary nature is doubtful as no person of ordinary prudence will state that the gold he is possessing is of smuggled in nature. I further find that it has been held by the Hon’ble Supreme Court in Vinod Solanki vs UOI [2008 (12) TMI 31 - SUPREME COURT] that where the accused/noticee disputes the voluntary nature of his statement, the onus is on Revenue to prove the voluntary nature of the statement recorded. Thus, the statement as recorded of the appellant on 01.02.2020 is not voluntary in nature.
The SCN is bad and hit by limitation as the same has been issued after more than six months from the date of seizure as required u/s 110(2) of the Act. In this view of the matter, the appeal is allowed and the impugned order is set aside.
Accordingly, the gold in question shall be released to the appellant forthwith, and if already sold, to return the sale proceeds, with interest as per Rules. The appeal is allowed in the aforementioned terms.
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2024 (3) TMI 1051 - CESTAT AHMEDABAD
Levy of penalty u/s 112(a) and Section 114AA of CA on Chartered Engineer - Issuance of Certificate under EPCG scheme without verification - issuance of Certificate based on documents so submitted for installation and use of such imported embroidery machine under EPCG without first verifying whether the machine in question were installed or not by Chartered Engineer - HELD THAT:- There is no dispute as regards the fact that the Appellant had issued such Certificate for installation and use of machinery which is a mandatory requirement under the EPCG Scheme without verifying the installation of machine in the premises of the factory of the importer. The purpose of such certificate issued by a Chartered Engineer is not only to facilitate installation of machinery as imported under the EPCG Scheme but the installed machine also acts as a precursor for the importer to avail benefit of EPCG exemption therefore to fulfill purpose of installation it is imperative that the presence of machinery on the premises be verified. To issue such Certificate without verification of the fact that machines are installed in the factory, the appellant has facilitated to evade custom duty by the importer which under the application of law is construed to be a serious offence on the part of the Appellant.
The Appellant is liable for penalty under Section 112(a) and Section 114 AA. However, considering the fact that the Appellant under bonafide belief relied on the documents to issue certificate due to which his registration was cancelled and his business suffered for three years, the Appellant deserves leniency as regards the quantum of penalty imposed.
The penalty under section 112(a) from Rs.1,00,000/- reduced to Rs. 50,000/- and that under section 114AA from Rs.10,000/- to Rs. 5,000/- - appeal allowed in part.
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2024 (3) TMI 1050 - CESTAT KOLKATA
Refund of SAD - time limitation - rejection on the ground that the claim was filed after more than one year from the date of payment of CVD - HELD THAT:- The Delhi High Court judgments in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] and COMMISSIONER OF CUSTOMS (IMPORT) VERSUS GULATI SALES CORPORATION [2017 (11) TMI 1300 - DELHI HIGH COURT] are in respect of refund claims filed prior to the amendment carried out vide Notification No. 93/2008-Cus dated 1.8.2008.
On the other hand, in the case of TRANASIA BIO-MEDICALS LTD. VERSUS COMMISSIONER OF CUS. (SEA) , CHENNAI [2019 (9) TMI 1563 - CESTAT CHENNAI] the period involved is December 2015 to April, 2016. Further, in this case the Tribunal has extensively cited the order of the Hon'ble Bombay High Court in the case of M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT].
The Tribunal has also considered the judgment of Hon'ble Supreme Court in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], wherein it has been held that if the assessee wishes to avail any exemption Notification, all the conditions set therein have to be fully complied with. In the present case, both the Bombay High Court judgment and Supreme Court judgment in the case of Dilip Kumar would be squarely applicable. If the appellant wishes to claim the refund of CVD, he is required to fulfill the condition of filing the refund claim within one year which is a mandatory condition under Notification No. 93/2008.
Therefore, following the ratio of Tranasia Bio-Medicals Ltd. Case law, the appeal filed by the Appellant is dismissed.
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2024 (3) TMI 1049 - CESTAT NEW DELHI
Condonation of delay in filing appeal - time limitation - Power of Commissioner (Appeals) to condone the delay - appeal dismissed for the sole reason that not only was the appeal not filed within 60 days from the date of communication of the order to the appellant but was filed even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals) - HELD THAT:- This issue was examined at length by the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT]. Though the decision is in the context of section 35 of the Central Excise Act, 1944, but the provisions of section 128 of the Customs Act are pari materia with the provisions of section 35 of the Excise Act, as section 35 of the Central Excise Act also provides that an appeal can be filed before the Commissioner (Appeals) within 60 days from the date of communication of the decision or order, but the Commissioner (Appeals) can condone the delay of 30 days after the expiry of the period of 60 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period of 60 days. The Supreme Court held that as the period upto which the prayer for condonation can be accepted is statutorily provided, the contention that section 5 of the Limitation Act, 1963 could be invoked to condone further delay after the expiry of 30 days cannot be accepted. The Supreme Court also observed that the appellate authority had no power to allow the appeal to be presented beyond the period of 30 days as was clear from the provisions of section 35 of the Central Excise Act.
The period of limitation for filing the appeal before the Commissioner (Appeals) has to begin from 30.12.2018, on which date the appellant received the order dated 14.12.2018 passed by the Joint Commissioner. Though the letter dated 21.01.2019 said to have been sent by the Joint Commissioner to the learned counsel for the appellant has not been brought on record by the appellant, but what has been stated by the learned counsel for the appellant is that the said letter informed the learned counsel that any communication from the appellant received after 14.12.2018, on which date the Joint Commissioner passed the order, could not have been considered in the impugned order.
In any view of the matter, it is the order dated 14.12.2018 that was required to be assailed by the appellant before the Commissioner (Appeals) and indeed it was this order that was assailed. Exchange of communications between the learned counsel and the Joint Commissioner after the passing of the order cannot enure to the benefit of the appellant to claim that the period of limitation would commence from 22.02.2019, on which date the learned counsel for the appellant choose to file a reply to the letter dated 21.01.2019 sent by the Joint Commissioner - The appellant was clearly aware of the fact that it was the order dated 14.12.2018 that was required to be assailed before the Commissioner (Appeals) and this fact has also been stated by the appellant in the Memo of Appeal.
Thus, in view of the undisputed position that the appeal was filed by the appellant before the Commissioner (Appeals) on 22.04.2019, beyond the period contemplated under section 128(1) of the Customs Act, the Commissioner (Appeals) committed no illegality in dismissing the appeal as the appeal was filed before the Commissioner (Appeals) not only beyond the period of 60 days from the date the appellant received the order passed by the Joint Commissioner on 30.12.2018, but even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals).
This appeal which has been filed to assail the order dated 09.01.2020 passed by the Commissioner (Appeals) is, therefore, without any merit. It is, accordingly, dismissed.
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2024 (3) TMI 1001 - SUPREME COURT
Duty demand - Bonded Warehouse - seizure of 264 cases found outside the warehouse - Unauthorisedly clearance of 27 cases from the notified public bonded warehouse - clearance in a clandestine manner - Confiscation - Interest - - Import of second hand steel mill machinery and parts - warehousing period expired - HELD THAT:- Since the imported goods covered by the 264 cases were never warehoused inside the notified public bonded warehouse but were unloaded outside the notified area but within the factory premises of the appellant and kept under a shed on permission granted by the Superintendent which permission was neither cancelled nor revoked, question of warehousing the goods covered by the 264 cases within the notified public bonded warehouse did not arise. As a corollary, the further question of improperly or unauthorisedly removing the 264 cases from the notified warehouse to outside the said area but within the factory premises of the appellant attracting Section 71 and the consequences following the same did not arise. Inference drawn by the respondent that the permission granted by the Superintendent was only temporary and therefore, the rigor of Section 71 would be attracted, in our view, would not be a correct understanding of the situation and the law.
We find that there is no explanation on the part of the appellant qua the missing 27 cases. Therefore, the view taken by the respondent and affirmed by the CESTAT that those 27 cases were improperly or unauthorisedly removed from the notified public bonded warehouse is correct and requires no interference.
Evidently, the circular dated 12.7.1989 would not be applicable to the facts of the present case in as much as it is not the case of the respondent that either the warehousing period had expired or that the warehousing period was extended. As we have seen, the warehousing in the notified public bonded warehouse continued as the Corporation had deposited with the respondent a sum of Rs. 56,10,294.00 in respect of the notified warehouse as custom establishment charges for the period from 1992-1993 to 2007-2008. That apart, we can refer to the fact that respondent had not levied any customs duty on the 304 cases found within the notified area which would mean that the notified warehousing continued. Therefore, this is not a case where Section 15(1)(b) could have been invoked.
Thus, having regard to the discussions, we are of the view that the demand raised by the respondent against the appellant and affirmed by the CESTAT qua the 264 cases including levy of customs duty and interest cannot be sustained. Those are accordingly set aside and quashed.
Demand of customs duty and interest on the 27 cases is concerned, the same is hereby sustained. The decision imposing penalty on the appellant u/s 112 of the Customs Act is also not disturbed in view of the conduct of the appellant in unauthorisedly removing the 27 cases of imported goods not only from the notified public bonded warehouse but also from the industrial/factory premises of the appellant.
Impugned order of CESTAT would stand modified accordingly - Appeal is allowed in part in the above terms.
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2024 (3) TMI 1000 - SC ORDER
Classification of goods - consignment imported under SKD condition - Exemption for the purpose of assessment for countervailing duty - Import of components for manufacturing colour Doppler SSD-4000 Ultra Sound Scanners - it was held by CESTAT that When the goods are presented in SKD condition, Revenue does not have authority of law to separate different parts and components and classify them differently in view of Rule 2(a) of General Rules for Interpretation of the Customs Tariff - HELD THAT:- The impugned judgment passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai need not be interfered - The Civil Appeals are dismissed.
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2024 (3) TMI 999 - BOMBAY HIGH COURT
Confiscation of Goods - Penalty - Clearance of goods described as “Caresmith Wave Body Massager” - Commissioner, categorise the item not as a body massager, but an Adult Sex Toy - prohibited for import as per the Customs Notification No. 01/1964-Customs - HELD THAT:- The only relevant portion of the notification is the underscored portion being Clause (ii), as referred by the Commissioner to label the goods as prohibited. Such clause prohibits import of the goods, namely, any obscene book, pamphlet, paper, drawing, painting, representation, figure or article. Necessarily, in our opinion, the different items as set out in Clause (ii) are required to be read ejusdem generis. These machines like massagers certainly cannot be compared with the companion items in the said entries which are in the nature of book, pamphlet, paper, drawing, painting, representation, figure or article, etc.
This apart, we are in complete agreement with the findings as recorded by the tribunal that it was totally unwarranted and in our opinion, perverse for the Commissioner to take recourse to clause (ii) of the said Notification to regard the goods in question as prohibited goods, for more than one reason. Firstly, it was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited items. This was far from the legal consequence as brought about by the notification that the goods could be so categorized. We may add that such thinking of the Commissioner was beyond anybody’s control. The notification also could not have supported such perception of the Commissioner when he regarded the goods as obscene. As rightly observed by the tribunal, and obviously as body massagers being traded in the domestic market, were not regarded as prohibited items, was certainly a relevant consideration.
In the facts of the present case, the Commissioner (adjudicating officer) has failed to act as a prudent official who would be expected to act reasonably in deciding the issues of clearance of goods in question, which ought to have been strictly in accordance with law. Any perverse application of law would fall foul of the rules of legitimacy and fairness expected from a quasi-judicial authority. Such approach of the Commissioner has been rightly criticized by the tribunal. If what was observed by the Commissioner in the order-in-original is accepted to be the only test, it would amount to accepting personal views of the officer which would be something unknown to law. Such approach is certainly not permissible. We also say this in the context of the opinions which were gathered by the Commissioner. These experts invited by the department clearly opined that the goods in question were body massagers which could be subjected to other uses.
Thus, merely because the goods can be subjected to an alternative use, of the nature, as the Commissioner contemplated, this can never be the test to hold that the goods were prohibited, when they otherwise satisfied the test of goods, which could be imported and sold. Thus, there was no material before the adjudicating officer, to categorize the goods under clause (ii) to be any obscene book, pamphlet, paper, writing, drawing, painting, representation, figure or article, and of objectional description, falling under the notification. Such view of the Commissioner was patently perverse.
Thus, we are of the clear opinion that no substantial question of law would arise for our consideration as raised on behalf of the Revenue. The tribunal is correct in its view when it set aside the orders passed by the Commissioner. The appeal is without merit. It is accordingly rejected. Dismissed. No costs.
In view of our aforesaid judgment confirming the order passed by the tribunal in the revenue’s appeal against the firm, the present appeals are also required to be rejected. They are rejected for the reasons we have set out in deciding the aforesaid appeal against the revenue and in favour of the firm. Dismissed. No costs.
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2024 (3) TMI 998 - DELHI HIGH COURT
Levy of penalties - smuggling of Gold - baggage rules - petitioner could not produce any licit document in support of the possession/acquisition or legal importation of the said gold - Absolute confiscation of gold weighing 3203.900 gram - HELD THAT:- Petitioner has imported the gold within the Indian customs waters contrary to the prohibition imposed for its import. The Gold was concealed in medicine packets, which were concealed under several layers of packing. The goods were also not declared in the Indian Customs Declaration Form. On the other hand false declaration was made in the said Form - Consequently, the gold was liable to be confiscated under section 111 of the Act. Petitioner has also conceded to the said position and has not objected to the confiscation of the said gold items.
Petitioner has clearly done an act that has rendered the gold liable to confiscation under section 111 of the Act and as such is liable under 112(a) of the Act. Further, Petitioner had carried the gold and had concealed the gold knowing or having reason to believe that the article he was carrying was liable to confiscation under section 111 of the Act and as such he is also liable under Section 112(b) of the Act.
There is no merit in the contention of learned counsel for the Petitioner that he was not aware of the gold. Petitioner was carrying the packet containing gold. The gold items were concealed inside two pieces of Medicine Sachets which were kept inside a Multi coloured zipper jute bag further kept in the Black coloured zipper handbag that was carried by the Petitioner. The manner of concealing the gold clearly establishes knowledge of the Petitioner that the goods were liable to be confiscated under section 111 of the Act. The Adjudicating Authority has rightly held that the manner of concealment revealed his knowledge about the prohibited nature of the goods and proved his guilt knowledge/mens-rea - Admittedly, petitioner would always bring back goods for others. Petitioner, who travels internationally so often cannot be permitted to contend that he was not aware of the law and that he was not aware of the contents of the packets that he was carrying. A person carrying any article on his belonging would be presumed to be aware of the contents of the articles being carried by him.
The Supreme Court of India in STATE OF MAHARASHTRA VERSUS NATWARLAL DAMODARDAS SONI [1979 (12) TMI 78 - SUPREME COURT] has held that smuggling particularly of gold, into India affects the public economy and financial stability of the country.
Penalties - HELD THAT:- For the contravention Petitioner was liable to be imposed penalty not exceeding the value of the goods. Petitioner brought in 24 Karat Gold, collectively weighing 3203.900 gm. totally valued at Rs. 88,42,764/-. Thus the penalty that could be imposed was upto Rs. 88,42,764/- but only a penalty of Rs. 10,00,000/- was imposed on the petitioner. It is found that the penalty imposed is not disproportionate in the facts and circumstances of the case.
There are no merit in the Petition. The same is consequently dismissed.
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