|
Advanced Search Options
Customs - Case Laws
Showing 321 to 340 of 40545 Records
-
2025 (5) TMI 1154
Classification of Imported waste, parings and scrap of Polyurethane - goods appear to fall under category restricted import - Challenged the seizure memorandum issued under Section 11 - HELD THAT:- On going through the record, it is clear that though material is Polyurethanes, but not in its Primary Form. Waste, scrap and parings of polyurethanes under heading CTI 39159063 falls under restricted import. Goods in question are waste, parings and scrap of polyurethanes. Goods are top skin, bottom skin, side skin, shredding and trimmings of polyurethanes foam, therefore, it comes within the definition of scraps, waste and parings. No error has been committed by respondents in seizing the import material which comes within the category of restricted import.
Thus, writ petition is dismissed.
-
2025 (5) TMI 1153
Liability of importer to pay customs duty - imports cleared using forged or tampered Duty Free Scrips issued by the Directorate General of Foreign Trade (DGFT), which were manipulated in the Customs Electronic Data Interchange (EDI) system - extended period of limitation - levy of penalty - HELD THAT:- It clearly transpires that the Duty Free Scrips issued by the DGFT were tampered with by accessing the EDI system of Customs and enhancing and manipulating the data/information of the Duty Free Scrips and these Scrips were utilised for payment of duty for the goods imported by the importer.
It is also not in dispute that the clearances of the goods where such Scrips were used to pay duty had taken place through one common Customs Broker namely M/s Kirti Cargo through ‘G’ card holder Sharafat Hussain. It clearly, therefore, transpires that the original Scrips/Licence issued by DGFT were different from what were actually registered in the system. All has been contended on behalf of the Mukta Enterprises and Rajinder Jain is that they were not involved in this act of forgery/manipulation of Scrips. The Scrips through which duty was debited were clearly forged as the original Scrips had been tampered with.
In M/s Mercedes Benz India Private limited, M/s O.A. Associates, Pashupati Acrylon Limtied versus Commissioner of Customs, Delhi, Additional Director General (Adjudication), New Delhi, Directorate of Revenue (Intelligence) & Others [2020 (2) TMI 437 - CESTAT NEW DELHI], the Tribunal examined almost a similar situation and held that the importers cannot be permitted to take the plea that they were not involved in fraud or forgery, even though the Scrips/Licences were forged.
The aforesaid decisions have examined both the aspects namely, as to whether the importer can contend that he was not responsible for the manipulation/forgery committed in the Scrips and whether in such circumstances the extended period of limitation can be invoked. These decisions do not support the contentions advanced by learned counsel for the appellants that the appellant was not responsible for the forgery. The aforesaid decisions hold that when the Scrips are forged they are void ab initio since fraud vitiates everything and the importers cannot be permitted to take plea that they were not involved in the fraud or forgery, even though the Scrips were forged.
It is also not possible to accept 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 the present case.
Conclusion - i) The "fraud vitiates everything" and instruments such as Duty Free Scrips that are forged or manipulated are "void ab initio." Consequently, any customs duty purportedly paid through such forged scrips is "non-est" and amounts to short payment of duty, justifying demand under section 28(4) of the Customs Act. ii) The demand for customs duty with applicable interest and penalties upheld, the plea of innocence by the importer and its partner rejected.
There is no infirmity in the order passed by the Commissioner. The two appeals, therefore, deserve to be dismissed and are dismissed.
-
2025 (5) TMI 1152
Levy of penalty - possession of the seized gold bars without valid licit documents - onus u/s 123 of the Customs Act upon the appellant to prove legality of the goods - HELD THAT:- The appellant has not mentioned anything about the recording of the statement under duress before the Magistrate or in the bail applications filed by him. He was released on bail w.e.f 12.12.2018, however, he has not retracted his statement till 26.06.2019. Thus, we observe that the retraction was only an afterthought, which need not be taken cognizance. Accordingly, the statements given by the appellant can be relied upon against him to establish his role in the offence.
Section 112(b)(i) of the Customs Act of 1962 states that someone who acquires possession of goods that they know or believe are liable to confiscation is liable to a penalty. In view of the above findings, the Appellant had knowingly or consciously involved himself in the alleged act of carrying gold without any valid documents. As the role of the appellant in the offence committed has been established based on his own admission, the appellant is liable for penalty as per section 112 (b)(i) of the Customs Act, 1962. Accordingly, the ld. adjudicating authority has rightly imposed penalty on the Appellant under Section 112(b)(i) of the Customs Act, 1962.
The appellant is an intermediary and he was not the ultimate beneficiary of the smuggled gold. Thus, the penalty imposed on him is very high and it can be reduced to commensurate with the role played by him in the offence. Accordingly, the penalty imposed on the appellant in the impugned order reduced from Rs.52,55,000/- to Rs.10,00,000/-.
Conclusion - The confiscation of the gold bars and the imposition of penalty on the appellant under the Customs Act affirmed, holding that the seizure was lawful, the onus was rightly cast on the appellant who failed to discharge it, the statement recorded under Section 108 was admissible, and the penalty was justified though reduced in amount to reflect the appellant's intermediary role.
Appeal disposed off.
-
2025 (5) TMI 1058
Petition under section 482 of the Code of Criminal Procedure - FIR registered under sections 406 and 420 of the Indian Penal Code ("IPC") - essential ingredients of criminal breach of trust and cheating - goods exported out of India without export-import license - misrepresentation and induced the second respondent to deliver the goods - non-payment of the sale price - HELD THAT:- As per the FIR, the goods were to be exported out of India. The respondent no. 2, since did not possess an import/export license, the appellant had asked respondent no. 2 to export the goods through M/s. Oswal Overseas. Accordingly, from 16.10.2013 to 05.03.2014, respondent no. 2 has in all exported sarees worth Rs. 34,71,344/- through Vikrambhai, owner of M/s. Oswal Overseas to the appellant.
The respondent no. 2 complains that the appellant, after appropriating the goods exported, has not paid the sale price of Rs. 34,71,344/-. M/s. Oswal Overseas is the exporter, and the primary liability for the goods entrusted lies with the appellant. The respondent no. 2 has treated the Director/Partner of M/s. Oswal Overseas as a witness to bring home the accusation of breach of trust and cheating. We do not want to hold a mini trial and observe whether such an effort, either in the course of the investigation by the police or finally in the prosecution, will bring home the aforesaid charges. In the documents filed as Annexure P2, which is a true copy of the invoices and the payment receipt made by the appellant, the appellant is shown as the consignee and M/s. Oswal Overseas is the exporter.
Therefore, the entrustment was made to M/s. Oswal Overseas by respondent no. 2 and not to the appellant.
The sale price was agreed to be debited to the account of M/s. Oswal Overseas accepted the same as part payment against the subject export of goods from the appellant. It might be true that the appellant is yet to discharge the sale price of the subject export. The respondent no. 2, by referring to an oral arrangement of inducement, tries to plead a case contrary to the documents through which the final “entrustment” of the exported goods happened in Sri Lanka.
Thus, we are of the view that the continuation of the FIR against the appellant is an abuse of the process of law, and at best, the non-payment of the sale price could be a civil dispute between the appellant and M/s. Oswal Overseas. The appeal is accordingly allowed, the impugned order is set aside and FIR No. I-06 of 2017 is quashed.
-
2025 (5) TMI 1057
Condonation of delay of 402 days in filing the Appeal - seeking grant of exemption from CVD to platinum in its primary forms under Sl. No. 25 of Notification No. 05/06-C.E. and Sr. No. 193 of Notification No. 12/2012-C.E. - HELD THAT:- Exemption Application is allowed.
There is a gross delay of 402 days in filing the Appeal which has not been satisfactorily explained by the appellant.
Thus, the appeal is dismissed on the ground of delay.
-
2025 (5) TMI 1056
Condonation for delay of 471 days in filing all the appeals - fulfilment of the condition of filing Appeals against the self-assessed Bills of Entry as a pre-requisite to entertain the refund claim -HELD THAT:- There is gross delay of 471 days in filing all the appeals which have not been satisfactorily explained.
We find no good reason to interfere with the impugned order dated 12-10-2023 passed by the Customs Excise and Service Tax Appellate Tribunal, Kolkata.
The appeals are, therefore, dismissed on the ground of delay as well as on merits.
-
2025 (5) TMI 1055
Condonation of delay - Release of seized gold ornaments - desires to re-export the item in question and to carry the same back - HELD THAT:- Delay condoned.
The present special leave petition is misconceived and is dismissed.
-
2025 (5) TMI 1054
Validity of directions for revaluation of seized foreign liquor goods - smuggling - DRI’s valuation grossly inflated the real value of the goods and lacked any defensible basis in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - arbitrary and mechanical nature of the DRI’s valuation exercise - HELD THAT:- It is also pertinent to note that the directions for revaluation were issued in the criminal proceedings at a stage when no complaint had yet been filed by the DRI and the investigation was still underway. In the absence of any specific power conferred either under the Customs Act or the Code of Criminal Procedure to order revaluation during investigation, and particularly after the conclusion of quasi-judicial adjudication on the same subject, the Magistrate, in the opinion of this Court, exceeded the permissible limits of jurisdiction.
It may be added that Section 110 (1B) of the Customs Act empowers a Magistrate to certify the inventory and the description of the goods seized, thereby facilitating evidentiary purposes at trial. However, this provision cannot be stretched to confer upon the Magistrate the authority to order a fresh revaluation of goods at the preliminary stage.
Thus, the Court is of the view that the impugned direction for revaluation of the goods is unsustainable in law.
Accordingly, the present petition is allowed. The direction for revaluation of the goods, as contained in the impugned order dated 27th September, 2012, is hereby set aside.
-
2025 (5) TMI 1053
Condonation of delay of over 1610 days in filing the appeal - medical condition of the Appellant’s Director, coupled with the period of COVID-19 pandemic - Goods exported highly over-valued - intention to earn duty drawbacks - limitation period for filing an appeal under Section 129A - HELD THAT:- From perusal of the record, 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:
Thus, the impugned order is set aside and the appeal is restored to its original position before the CESTAT and shall now be adjudicated on merits. The said amount of Rs. 5 lakhs shall be deposited with the Department by 10th July, 2025. The proof of costs shall be furnished before CESTAT. A copy of this order shall be communicated to CESTAT.
The appeal is disposed of in these terms. Pending applications, if any, are also disposed of.
-
2025 (5) TMI 1052
Classification of imported “Roasted betel nuts” - non-human consumption - seeking to set aside of the seizure memo and consequent release of the consignment - whether the goods would be used for human consumption or for industrial purposes - Petition filed under Article 226 of the Constitution - HELD THAT:- The Court has heard the matter. The initial reports given by either the CRCL or the FSSAI do not say that the goods are not fit for human consumption. In fact, in terms of the report dated 1st October, 2024, the sample is found to be ‘Roasted Areca Nuts’ by the primary laboratory.
Thereafter, the CRCL’s report dated 17th October, 2024 states that the sample is not fit for human consumption. Again, on 25th October, 2024, the parameters were held to not match with Roasted Areca Nut. These reports are in contrast with the report submitted in June/July, 2024 where the CRCL itself had stated that the issue would be of moisture content and the damaged nuts exceeds the limit prescribed by FSSAI.
Overall, the reports are not consistent with each other. When the initial import was made, clearly, the FSSAI was of the opinion that the goods are Roasted Areca Nuts. It appears that there has been a deterioration of the product while the consignment has remained with the Customs or with the warehouse. The final report of the NFL which is the most recent report records clearly that there is some damage in the nuts caused by mould and insects and there could also be a musty odour.
Thus, this Court is of the opinion that the Roasted Areca Nuts have deteriorated during the entire process of repeated testing.
Therefore, no useful purpose would be served by continuing to leave the consignment with the Customs Department as the Petitioner is willing to give an undertaking that the same would not be used for human consumption.
Accordingly, the consignment is provisionally released subject to payment of a sum of Rs.5 lakhs as security with the Customs Department. The Customs Department, after provisionally releasing the goods, shall issue a Show cause notice to the Petitioner in accordance with law and adjudicate the matter.
The Petitioner shall ensure that the said consignment of nuts is used for industrial purposes as has been represented to the Court.
The Petition is disposed of in these terms.
-
2025 (5) TMI 1051
Classification of the imported 'Arecanuts' goods - under Chapter 21 or under Chapter 8 of the CTH - seeking release of the goods on payment of appropriate duty - samples taken from the consignments for testing at Doctor's Analytical Laboratories Pvt. Ltd. - HELD THAT:- This Court perused the recent judgment, dated 04.03.2025 passed by the Hon'ble The Chief Justice in W.A.Nos.3647 and 3648 of 2024 in an identical case as that of the respondent/Importer, whereby the appeals filed by the review petitioners in reclassifying the 'arecanuts' under Chapter 8 came to be dismissed, thereby upholding the parameters fixed by the Authority for Advance Rulings by stating that a Co-ordinate Bench of this Court, declined to interfere with the Ruling of the Authority of Advance Ruling, thereby it attained finality.
From perusal of record, this Court is of the considered opinion that the grounds of the writ appeal are sought to be re-argued in these review applications. There is no error apparent on the face of the impugned judgment. The scope of review being very limited, we are not inclined to delve into the grounds of review which were already dealt with by us in the impugned judgment. If such practice is adopted, then it will amount to rehearing the appeal itself. Having failed before the Adjudicating Authority and before the First Bench of this Court, the review applicants are still harping on the same argument, which was negatived consistently. Further, considering the fact that the detained goods are perishable in nature, we direct the review applicants to comply with the direction issued in the impugned judgment forthwith.
Accordingly, the Review Applications stand dismissed.
-
2025 (5) TMI 1050
Challenged the impugned Communication - non furnishing of the Order-in-Original and the related Show Cause Notice - failed to file a statutory appeal - period of limitation - HELD THAT:- After giving due consideration to the contentions of the petitioner as well as the respondents, this Court is of the considered view that no prejudice would be caused to any of the parties, if a direction is issued to the respondents to furnish a copy of the Order-in-Original, dated 04.08.2021 and the related Show Cause Notice and Corrigendum, if any, within a time frame to be fixed by this Court to enable the petitioner to file a statutory appeal under Section 128 of the Customs Act, 1962, if aggrieved by the Order-in-Original, dated 04.08.2021, which is the subject matter of the writ petition.
However with regard to the plea of limitation, this Court is not expressing its opinion. It is for the Appellate Authority to decide the same on merits and in accordance with law, after giving due consideration to the documentary evidence produced by the petitioner as according to the petitioner he was not served with the Order-in-Original, dated 04.08.2021 and the related Show Cause Notice.
Thus, the impugned Communication, dated 17.01.2025 issued by the 1st respondent is hereby quashed and the 1st respondent is directed to furnish a copy of the Order-in-Original, dated 04.08.2021 bearing No.85573/2021 and the related show cause and Corrigendum, if any, within a period of one week from the date of receipt of a copy of this order. The petitioner is permitted to file a statutory appeal as against the Order-in-Original bearing No.85573/2021, dated 04.08.2021, within a period of one week thereafter.
Hence, this writ petition stands disposed of.
-
2025 (5) TMI 1049
Seeking grant of application for license for Private Warehouse under section 58 along with permission to carry out the manufacturing activities under section 65 of the Customs Act, 1962 - distinction between the “contravention” and “offence” - what is the offence under the provisions of the Central Excise Act or Customs Act - HELD THAT:- It appears that the respondents have failed to consider the offences under various indirect taxes Act and mixed up with the concept of contravention or breach of any of the provisions of the Act with the offences as enumerated in various Acts. Therefore, merely because the litigation is pending for any contravention of any of the provisions of the Act, same cannot be considered as an offence and there is a distinction between the “contravention” and “offence” of the Act which can be distinguished as under.
Considering the litigations pending against the petitioner in the appellate forum, none of the provisions can be said to be an offence which can be considered falling under clause(c) of para 3(2) of the Regulation.
It is also pertinent to note that the petitioner or any of the officers, director etc. of the petitioner has never been penalised for an offence under the Act as the same is not even disputed by the respondents by invoking the provisions of said para 3 (2) (c) of the Regulation. The respondents in both the occasions i.e. while rejecting the applications dated 06.02.2025 and 12.03.2025 has only referred to the provisions of para 3 (2) (c) of the Regulations referring that there are three cases pending against the petitioner under the Customs Act and 9 cases under other Acts i.e. Central Excise Act and GST Act without considering as none of the cases are pending for penalising the petitioner or any officer of the petitioner company for the offences under the Customs Act 1962 and other Acts.
Thus, the petition succeeds and is accordingly allowed. The impugned orders are hereby quashed and set aside. The respondents are directed to issue the license under the provisions of the Regulation as prayed for by the petitioner if further conditions are fulfilled except para 3 (2) (c) of the Regulation. Such exercise shall be completed within a period of two weeks from the date of receipt of a copy of this order
-
2025 (5) TMI 1048
Substantial questions of law - Refund claim under Notification No. 102/2007-Customs - Payment of Special Additional Customs Duty on the lubricating oil - time limit of one year from the date of payment of duty - HELD THAT:- After taking into consideration, we are of the opinion that this appeal being devoid of any merit, no question of law much less any substantial questions of law arises from the impugned order passed by the CESTAT, this appeal is accordingly dismissed.
-
2025 (5) TMI 1047
Validity of show cause notices - Claim duty Drawback of FOB on the export of de-oiled cake - purchase of Hexane without payment of Central Excise duty - benefit of Rule 19(2) of the Central Excise Rules, 2002 - Export of agricultural products, including De-Oiled Cake, as a merchant exporter - imposition of penalties under Sections 114 and 114AA - invoking the extended period of limitation - seeking permission to cross-examine the co-noticees whose statements had been relied upon in the SCN - HELD THAT:- The drawback at the rate of 1% of FOB was not eligible to the Petitioners because the suppliers had not paid the excise duty for the hexane used for the manufacture of de-oiled cake, which was exported by the Petitioners.
The decision of Dewas Soya [2024 (9) TMI 1183 - GUJARAT HIGH COURT] has been followed in a bunch of other petitions namely in Dhultawala Exim Pvt. Ltd. Vs. Union of India and another [2025 (1) TMI 1532 - GUJARAT HIGH COURT].
Following the aforesaid decisions which are squarely applicable to the facts of the present case, the present petitions succeeds and the Orders-in- Original referred to in the Chart at paragraph No. 3 hereinabove are quashed and set aside.
In view of such decisions on merits, the show cause notices issued to the Petitioners would also not survive and consequent to the quashing of the Orders-in-Original, this Court is of the view that the show cause notices issued to the Petitioners must also be quashed. This Court additionally notes that the show cause notices were issued between 16.11.2010 and 28.03.2011 were eventually adjudicated on 21.09.2022 and 06.10.2022 i.e., after a gap of 11 and a half to 12 years. The aforesaid is a further reason to the decision in merits to hold that the show cause notices would not survive for further adjudication.
Accordingly, the show cause notices referred to in the chart at paragraph No. 3 herein are also quashed and set aside.
The present petitions succeed.
-
2025 (5) TMI 1046
Seeking reassessment of the Bills of Entry - claim for the benefit of concessional rate of duty 1% CVD under Notification No.12/2012-CE - principles of natural justice - refund of excess duty paid on an assessed Bill of Entry - HELD THAT:- The Hon’ble Supreme Court in ITC Ltd.’s case [2019 (9) TMI 802 - SUPREME COURT (LB)] has laid down the principle for claiming refund of excess duty paid on an assessed Bill of Entry. To claim the refund, first the assessee has to get the assessment /self-assessment modified in accordance with law which includes filing of appeal under Section 128 of the Customs Act, 1962. Therefore, the appellant was justified in requesting reassessment of the self-assessed Bills of Entry to the adjudicating authority. On rejection of their request, the appellant filed appeals before the learned Commissioner(Appeals) under the provisions of Section 128 of the Customs Act, 1962. Therefore, the impugned de novo order is incorrect in rejecting the reassessment as requested by the appellant claiming concessional rate of 1% CVD in the light of the SRF Ltd.’s judgment. We also find that this Tribunal in the appellant’s own case has allowed the benefit of the Notification after setting aside the orders of rejection for reassessment of the Bills of Entry. Also, we find that refunds have been sanctioned by various Customs Commissionerates after allowing reassessment of the Bills of Entry filed earlier with.
Thus, the rejection of the reassessment claiming concessional rate of duty is set aside and the matters are remanded to the adjudicating authority to reassess the Bills of Entry allowing the benefit under Sl.No.263A(ii) of Notification No.12/2012-CE dated 17.03.2012 as amended.
In the result, appeals are allowed by way of remand to the adjudicating authority.
-
2025 (5) TMI 1045
Denial of exemption from Basic Customs Duty (BCD) on the import of walnuts-in-shell from Afghanistan - Benefit of Notification No. 99/2011-Cus, read with Notification No.75/2006-Cus. - determination of origin of goods - claim of Pythosanitory Certificate having been manipulated/tampered -evidentiary value of paper tags/stickers found on a few bags indicating "California" origin - HELD THAT:- It is clear that on enquiry Revenue found that the certificate of origin was actually issued by the Afghanistan Chamber of Commerce and Industries based upon documents of Customs and Agricultural Department of Kandhar. However, the DRI officials wrote to Director ICD to obtain the copies of the documents filed by Afghan supplier before Afghanistan Chamber of Commerce and Industries (ACCI). Thus, it is clear that the COO filed by the appellant was duly endorsed by the issuing authority. Therefore, neither the certificate can be taken to be denied by the relevant Government authorities nor can the origin of the goods be taken to be of some other country. The DRI, it appears approached the Quarantine Authority in India, who in turn wrote to the Quarantine Authorities in Afghanistan and got a report in relation to Phytosanitary Certificate which indicated that the same were interpolated or tampered with in relation to columns specially relating to type of treatment given to the consignment. It is clear that origin from Afghanistan is not specifically denied by the authorities there and department’s case that consignment moved from USA to Dubai and from there to Karachi port and then to India lacks credence as there is otherwise overwhelming documentary evidence available including examination reports before Karachi Customs and Afghanistan Customs, transit certificate and COO, which have not been denied or proved to be incorrect by the departmental authorities. Coming to the case law as has developed in relation to exemption benefit vis-à-vis the certificate of origin, various case laws quoted by the party come to their defense and supports their case that verified certificate of origin by the relevant authorities under SAFTA is conclusive evidence for claiming the benefit. We find the verified country of origin certificate is sufficient proof of the origin criteria and department cannot ignore this record, without the underlying authorities denying the same.
We find that in the absence of Afghan Government Authorities or its Chamber of Commerce denying existence of such certificate of origin the requirement of Article 15 of the SAFTA Rules which provide for step to step verification process cannot be taken to be not fulfilled. Authenticity of COO needs to be denied as per the procedure of Article 15.
We also find that three tags/stickers found in three wallnut bags out of total 1650 bags, are also of different names and different in contents. It will be preposterous to hold whole consignment on the basis of these tag/stickers as of any other origin despite so much evidence having been produced which has not been proved to be incorrect by the department. Some claim of Pythosanitory Certificate having been manipulated/tampered cannot be taken as proof of goods not having originated from Afghanistan. Such evidence could have at the most allowed department to allege ITC violation but cannot be used to deny exemption notification benefit. We also find that the earlier consignment was duly cleared by the department and other is stated to be not cleared till date and might have become Junk and expired food item. In any case, the fumigation as per notification is permitted to be done in either the country of export or the country of import. Such allegation has been made without testing the veracity of the third agency and document collected by it without examining the official by the adjudicating authority or of the authority in the Afghanistan can have co-relation with origin of the country, being Afghanistan only. We find that the country of origin in the face of overwhelming documentary evidence confirmed by Ministry of Finance cannot be overlooked on the basis of mere presumption to be of ‘California origin’.
Thus, we find no reason to sustain order passed on legality of the issue as well as on the basis above stated facts and appreciation of evidence has done by us.
Appeal is therefore, liable to be accepted and is ordered accordingly. Appeal is allowed.
-
2025 (5) TMI 1044
Refund claims of Special Additional duty (SAD) - payment on imports - imposition of period of limitation - HELD THAT:- In the case of Collector of Central Excise, Chandigarh vs. Kashmir Conductors [1997 (7) TMI 186 - CEGAT, COURT NO. II, NEW DELHI - LB], it was held that if the jurisdictional High Court has taken a particular view regarding interpretation or proposition of law, that view has to be followed in cases within such jurisdiction. But if the jurisdictional High Court has not expressed any view in regard to the subject matter and there is conflict of views among other High Courts, then the Tribunal will be free to formulate its own view. As there is no direct view of Hon'ble Gujarat High Court regarding the question under consideration before this Tribunal, this Tribunal is free to formulate is own view.
When the limitation provided in the notification dated 01.08.2018 that the refund has to be made within a period of one year from the date of payment of additional duty has to be read-down in as much as the right to claim refund could accrue to an importer only when the subsequent sale is completed and given the vagaries of the market, the importer has limited control over when the sale would complete. It is for this reason that the Delhi High Court held that to allow the limitation period to start from the date of payment of duty as prescribed under the amended notification, would allow commencement of a limitation period for refund even before the right to claim refund actually accrued.
Therefore, in the light of the decision of Hon'ble Delhi High Court in the case of M/s. Sony India Pvt. Limited vs. Commissioner of Customs, New Delhi [2014 (4) TMI 870 - DELHI HIGH COURT] and the decision of this Tribunal in the case of Suzuki Motorcycle India Pvt. Limited vs. CC, ITD (Import) (Tughlakabad) [2023 (3) TMI 1083 - CESTAT NEW DELHI], I am of the view that the order passed by Commissioner of Customs (Appeals) is not sustainable and the appeal deserves to be allowed.
Consequently, the appeal is dismissed. The impugned order passed by Commissioner (Appeals) dated 01.06.2017 is set-aside. The adjudicating authority is directed to decide the refund application of the appellant in the light of the law laid down by Hon'ble Delhi High Court in the case of M/s. Sony India Pvt. Limited without taking into consideration the limitation period.
-
2025 (5) TMI 1043
Demand for Customs duty under section 28(4) along with interest and penalties under section 114A and 114AA of the Customs Act - forged or manipulated Duty Free Scrips utilised for payment of import duties - illegal access to the Electronic Data Interchange EDI systems of the Indian Customs and tampered with details at the Inland Container Depot - Duty Free Scrips issued by the Directorate General of Foreign Trade DGFT - HELD THAT:- From the record, it clearly transpires that the Duty Free Scrips issued by the DGFT were tampered with by accessing the EDI system of Customs and enhancing and manipulating the data/information of the Duty Free Scrips and these Scrips were utilised for payment of duty for the goods imported by the importer.
What is also important to notice is that Sharafat Hussain, a "G" card holder of M/s Kirti Cargo was looking after the import clearance and bills were raised by him through his own companies and not through M/s Kirti Cargo. This should have drawn the attention of Raja Ram and Company and Jinender Jain but notice was not taken of this fact at all. It also transpires from the record that the importer was not even in possession of the Scrips.
In the present case, Raja Ram and Company had engaged M/s Kirti Cargo, a customs broker for clearance of the exported consignments and Sharafat Hussain, a “G” card holder of this customs broker had cleared the goods. In this view of the matter, the confirmation of customs duty with interest upon Raja Ram and Company and imposition of penalty upon Jinender Jain is justified.
Thus, it is also not possible to accept 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 the present case.
Thus, for all the reasons stated above, there is no infirmity in the order passed by the Principal Commissioner. The two appeals, therefore, deserve to be dismissed and are dismissed.
-
2025 (5) TMI 1042
Claim for refund - Demand of differential customs duty on metal lease charges under section 28 along with interest and penalty - short payment of duty by reason of willful misstatement or suppression of facts - extended period of limitation - whether the insurance premium was liable to be added to the assessable value - HELD THAT:- In the present case, the appellant has claimed refund of Rs. 1,26,85,29,752/-. Even in other cases, as noticed above, the appellant had paid excess customs duty because the content of gold in the final invoice of the supplier was found to be less than mentioned in the finalized Bills of Entry. No motive can be attached to the appellant in suppressing the final invoice because the appellant has paid more customs duty than what was actually required to be paid in cases where the gold content is found to be lower than that mentioned in the finalized Bills of Entry. It cannot, therefore, be urged that the appellant had short paid duty on account of any wilful statement or suppression of facts. The extended period of limitation contemplated under section 28(4) of the Customs Act could not, therefore, have been invoked.
In view of the specific terms of the Agreement and the stand taken by the appellant before the RBI, it is clear that metal lease charges were not in the nature of interest. The Principal Commissioner, therefore, was justified in upholding the demand of differential duty on metal lease charges.
The Principal Commissioner held that payment of insurance premium charges was a “condition of sale” and these charges would, therefore, be liable to be added in terms of rule 10(1)(e) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. In coming to this conclusion, the Principal Commissioner held that from the Agreements it was clear that importer was required to get the goods insured and insurance premium was required to be paid by the importer and the ownership of the goods remained with the respective foreign supplier the till the issuances of the final invoices, during which period the importer was merely a bailee of the goods.
This finding recorded by the Principal Commissioner is based on the Agreement and does not suffer from any illegality as indeed the appellant was required to get the goods insured and pay insurance premium in terms of the Agreement as a bailee of the goods.
Thus, the appeal is allowed in part. The invocation of the extended period of limitation and imposition of penalty under section 114A of the Customs Act is set aside. The inclusion of metal lease charges and premium insurance amount in the assessable value is upheld.
The order dated 31.12.2022 passed by the Principal Commissioner is, accordingly, set aside to the extent indicated above and the appeal is allowed in part with consequential relief(s), if any.
............
|
9911796707
