|
Advanced Search Options
Customs - Case Laws
Showing 41 to 60 of 182 Records
-
2015 (9) TMI 1198 - JHARKHAND HIGH COURT
Seizure of goods - Imposition of redemption fine - Held that:- Order in Original was passed on 1st April, 2005 after recording the statement under Section 108 of the Customs Act, 1962 and thereafter notice was issued and adequate opportunity of being heard was also given to this appellant. At length there is a discussion about the goods seized from the premises of this appellant in the Order in Original dated 1st April, 2005 and ultimately redemption fine was imposed of ₹ 3.00 Lacs and a penalty upon this appellant was imposed of ₹ 50000 - order passed by the Joint Commissioner of Customs dated 1st April, 2005 has also been taken in review under Section 129(d) of the Customs Act, 1962 by Commissioner of Customs, Patna and the direction has been given to the Joint Commissioner of Customs that if the seized goods are found to be in possession of this appellant in violation of Section 111 of the Customs Act, then custom duty ought to have been levied from this appellant and without demanding the custom duty, an order was passed by the Joint Commissioner of Custom and the Commissioner of Customs, Patna has further directed to prefer appeal against the Order in Original passed by the Joint Commissioner of Customs dated 1st April, 2005. - matter remanded back - Decided in favour of assessee.
-
2015 (9) TMI 1197 - CESTAT MUMBAI
Confiscation of seized diamonds under Section 111(d), (f), (i) and (m) - imposition of penalties - Smuggling - It is seen that in the context of section 111(d) or 113(d), in several precedents, the definition of 'prohibited goods' as contained in section 2(33) of the Customs Act, 1962 has been applied liberally, including in Om Prakash Bhatia vs. Union of India, [2003 (7) TMI 74 - SUPREME COURT OF INDIA] and Sheikh Mohd. Omer vs. Collector, [1970 (9) TMI 36 - SUPREME COURT OF INDIA]. - Under section 125 of the Customs Act, unless the importation or exportation of goods is expressly 'prohibited', the Adjudication Authority is obliged to offer to the Owner the goods an option to pay fine in lieu of confiscation. Since the import of 'cut and polished diamonds' is not expressly prohibited under Section11 of the Customs Act, 1962 or by any other statutory notification, we find merit in the ground that an option to redeem them on payment of fine in lieu of confiscation was mandatory. However, after conclusion of the hearing, on instructions, advocate for Ms. Kanchna informed that now she will not avail the option of redemption even if granted. Therefore, we are not interfering with the order of absolute confiscation.
Since the courier parcel was in the name of his sister, considering the gravity and penal consequences and due to natural love and affection he initially accepted under pressure the ownership and importation of the seized courier parcel. He categorically stated that he was not concerned with the seized goods and as such he was not opposing the confiscation of the seized goods. However, he strongly opposed imposition of any penalty whatsoever on him under the provisions of the Customs Act, 1962. However, adjudication qua him was not completed with five weeks and thereafter he filed application for settlement as co-applicant, which was dismissed. No admission was made by these brothers even before the Settlement Commission. It is seen that his subsequent statements, which were also recorded under section 108, do not incriminate him or Nilesh Patel. These statements cannot be ignored. His explanation therefore seems plausible.
The adjudicating authority has recorded that Ms. Kanchana appears to have been pressurized to file an affidavit giving untenable grounds such as non dutiability of the seized diamonds and conflicting reasons for sending concealed diamonds for collection by Jimmy who was not even known to Shri Bhargav Patel or his parents in India. We find that on the contrary she admitted her duty liability not only before Settlement Commission but also during the adjudication proceedings. There is no cogent evidence to show that she was so pressurized and this finding is based only on suspicion. There is no document or material or circumstantial evidence showing that Bhargava Patel had placed any order either verbal or written, or made compensatory payment, for the seized diamonds. In view of the above, we find that role of Mr. Bhargav Patel and Nilesh Patel in the smuggling of the diamonds under seizure is not established even on preponderance of probability and penalties imposed on them are set aside. - Decided partly in favour of appellants.
-
2015 (9) TMI 1196 - CESTAT MUMBAI
Determination of CVD - valuation u/s 4 or 4A - whether Set Top Boxes (STBs) which are part of the Customer Premises Equipment (CPE) and imported by the appellants should be subjected to countervailing duty under Section 3(2) of the Customs Tariff Act by assessment in terms of Section 4 or in terms of Section4A of the Central Excise Act. - Held that:- The retail sale price is defined as the maximum price at which retail package may be sold. And retail package means packages which are intended for retail sale to the ultimate consumer. In other words the retail price will be required to be declared on the package only if it is intended for retail sale. The Ld. Counsels have contended that there is no sale at all. They have referred to the definition of 'sale' under the Legal Metrology Act, and emphasized that unless there is transfer of property it cannot be said that sale has taken place. It is seen from the definition that there should be a transfer of property for any consideration or there should be a transfer on the hire-purchase system or by any system of payment by any installments. We find in the present case that there is no transfer of property or hire-purchase system involved nor there is a system of payment by installments. Thus there appears to be no sale in the use of the Set Top Box by the ultimate consumer.
During the course of arguments it emerged that Dish TV had recovered damages from the subscribers in case a Set Top Box is damaged. In such cases the replacement box is sold to the subscriber at a cost. Therefore in such cases, as an element of sale is involved, CVD would be payable under Section 4A of the Act. Accordingly, it is ordered that assessment be done and duty be paid on MRP basis in such cases.
Set Top Boxes imported by the appellants are not leviable to CVD on RSP/MRP basis in terms of Section 4(A) of the Central Excise Act except for the Set Top Boxes actually sold - Decided partly in favour of assessee.
-
2015 (9) TMI 1195 - CESTAT AHMEDABAD
Denial of exemption claim - import of C.S. Seamless Line Pipesagainst Warehouse Bills of Entry. - M/s Jindal carried out certain processes such as Coating etc on this imported pipes in the warehouse and thereafter, filed ex-bond Bills of Entry and Coastal shipping bills. - The goods were removed from Mundra to Mumbai High and claimed exemption - Adjudicating authority, observed that the Appellant diverted the goods unathorisedly - Whether the Appellant is eligible to avail the benefit of exemption Notification No.21/2002-Cus, dt.01.03.2002 (Sr.No.215) in respect of surplus quantity of 410 Coated Pipes, seized by the Customs authorities.
Held that:- In the case of Ramsons Garments Finishing Equipments Pvt.Ltd [2007 (1) TMI 16 - CESTAT, BANGALORE], the Appellant imported machinery and equipments and claimed the benefit of Notification No.29/1999-Cus, dt.28.02.1999, subject to the condition that the imported machinery and equipments were for use of textile industry. The Appellant, out of the total imported machineries, a few of them sold to hospital/dry cleaners. The Adjudicating authority denied the benefit of the exemption notification on the ground that the imported machineries had not been used in the textile industry. The Tribunal after dealing with various decisions and conditions, held that in absence of condition of actual use in the notification, the benefit of notification cannot be denied merely the goods in dispute were used in hospital and not in the textile industry.
Similarly, in the instant case, the Appellant complied with all conditions mentioned in the notification at the time of clearance of the goods for ONGC Project. There is condition for requirement of end use certificate in the notification. There is no dispute that the excess goods were intended for use in the project and therefore, the benefit of the said notification cannot be denied. - impugned order is set aside - Decided in favour of assessee.
-
2015 (9) TMI 1162 - SUPREME COURT
Levy of anti dumping duty - Provisional assessment - Whether anti-dumping duty imposed with respect to imports made during the period between the expiry of the provisional anti-dumping duty and the imposition of the final anti-dumping duty is legal and valid - Held that:- On a correct reading of the said sub-rule, therefore, the final anti-dumping duty only incorporates the provisional anti-dumping duty within itself, but in the manner provided by Rule 13. Thus, it is clear that such incorporation can only be the period upto which the provisional duty can be levied and not beyond. Thus understood, it is clear that both literally, and in keeping with the object sought to be achieved – that is the making of laws in conformity with the WTO Agreement, there can be no levy of anti-dumping duty in the “gap” or interregnum period between the lapse of the provisional duty and the imposition of the final duty. Such interpretation makes it clear that clause 10.2 of the WTO Agreement is reproduced in the same sense though not in the same form in sub-rule (2)(a). The same result therefore as is envisaged in clause 10.2 is achieved by the said construction – that is anti-dumping duty may be levied retroactively for the period for which provisional measures have been applied. The said construction is in consonance with the principles already laid down earlier in this judgment in that the WTO Agreement is intended to be applied by the various signatory nations in a uniform manner. This can only be done by construing the language of Section 9A read with the Rules in the same sense as that of the WTO Agreement.
If Rule 20(2)(a) were to be construed in the fashion suggested by the High Court, it would be ultra vires Section 9A for the reasons already given by us. Further, the object and purpose of Section 9A is to impose an anti-dumping duty in consonance with the WTO Agreement, which Section 9A gives full effect to. These basic points have been missed by the High Court in arriving at the aforesaid finding. Further, the High Court fails to give due importance in its judgment to Rules 13 and 21. We have already seen how Rule 21(1) envisages precisely the situation spoken of by the High Court, and yet states that, in the circumstances mentioned therein, despite dumping and material injury to the domestic industry, differential duty cannot be collected from the importer. In fact, the High Court goes on to say that the expression “imposed and collected” in Rule 21, not being there in Rule 20(2)(a), cannot therefore be imported into the said sub-rule, so that “levied” cannot mean “imposed and collected”. - Decided in favour of assessee.
-
2015 (9) TMI 1140 - BOMBAY HIGH COURT
Valuation of goods - Undervaluation of goods - Seizure of goods - Held that:- Revenue was keen on supporting the allegation and based on which the show cause notice came to be issued. Whereas the applicant ¬petitioner before us was not ready and willing to accept the same. If there was no settlement possible, then, the Commission should have relegated the petitioner to adjudication. The petitioner made the choice and if it does not want any settlement by application of mind by an independent commission to all the facets of the matter, then, there is no obligation on the Commission to assist him. We are of the opinion that there is some substance in the contention of Mr. Jetly. However, if the matter cannot be resolved eventually with the assistance of the record available with the Petitioner and the Department and based on which the show cause notice was issued, then, the best course was to relegate the matter to the Adjudicating Authority so as to adjudicate the show cause notice in accordance with law. - petitioner is also agreeable to the Revenue retaining a sum of ₹ 17,61,172/¬ towards duty but without prejudice to the rights and contentions of both sides. - Decided in favour of appellants.
-
2015 (9) TMI 1139 - BOMBAY HIGH COURT
Delay in issuance of CHA License - Held that:- Sufficient time has passed from the date the Petitioner's representative or partner has cleared the examination. He may have applied in the requisite form and initially as a Proprietor, but later on we do not find, even if the status is sought to be altered, that this much time and delay was justified. The very purpose of inserting a requirement of passing a written as well as oral examination is defeated, if, within a reasonable time from the candidate being successful thereat, a licence is not issued to him or he is not informed the reasons for not issuing the same. Eventually, these are matters of somebody's livelihood and we expect the authorities to be careful and sensitive. - mandate of Article 14 of the Constitution of India requires the authorities even in such matters to act fairly, reasonable and in a non-discriminatory manner. The Petitioner in the Writ Petition has also indicated as to how the authorities issue licences and after the examinations to several applicants expeditiously. - time of three months as sought by the Respondents cannot be granted - Petition diposed of.
-
2015 (9) TMI 1138 - MADRAS HIGH COURT
Maintainability of petition - Contractual obligations between parties - Alternate remedy - Held that:- Petition is liable to be dismissed on the simple ground that the petitioner has already approached the Principal District Munsif (Vacation) Court, Tuticorin District, seeking for the relief of permanent injunction against the private respondents herein, where, he could not obtain any order. The trial Court has ordered notice on 13.05.2015, which is still pending. Immediately, on 20.06.2015, he approached this Court and got an order of interim stay. It is pertinent to note that either in the Writ Petition or in his subsequent counter affidavit dated 01.06.2015, there is not even a whisper about the suit pending on the very same issue. The petitioner cannot pursue his remedy simultaneously. Therefore, Prima facie, he has not filed this Writ Petition with clean hands - As rightly averred in the counter affidavit of the Customs, if any of the parties prove their claim by producing the original Bill of Lading and other materials to claim the cargo, the authorities are duty bound to release the same, since the goods are perishable in nature. If the owners of the goods is stalled to claim the goods before the Customs authorities, unnecessarily, demurrage charges will be levied by the Customs authorities for no fault of the real owner. - Decided against assessee.
-
2015 (9) TMI 1137 - CALCUTTA HIGH COURT
Identification of Goods – Matter remanded back for re-examination – Deputy Commissioner in his impugned order held that It has been clearly stated in examination report dated 14.9.2012, that ‘identity of goods could not be established in authentic manner’ however said report states otherwise – Petitioner seeking re-examination of matter by Deputy Commissioner – Held that:- Deputy commissioner directed to re-examine matter – Impugned order hereby set aside with direction upon same Deputy Commissioner to hear petitioner – Also to pass reasoned order in accordance with law – Decided in favour of Assesse.
-
2015 (9) TMI 1136 - CESTAT MUMBAI
Scope of the remand in earlier round of the litigation - Whether the imported goods could be called ship stores as per the definition under Section 2 (38) of the Customs Act - Import through courier - Import of goods in hand baggage by its employees without declaring the same or by mis-declaring the value - Whether in case of imports made by sea could duty have been demanded from the Appellant - Levy of duty in case of where good were transshipped/re-exported - Evasion of duty - appellant is a service provider to ONGC and was engaged for rendering services such as wireline testing, measurements while drilling, etc. for their offshore oil well drilling operations.
Regarding scope of remand - Held that:- the order passed by CESTAT, remanding the matter back to the adjudicating authority cannot be so read so as to limit its scope only to the determination of the effective rate of duty. It is nobody's case that the appellant had before the CESTAT given up on all its other contentions and had confined its case to a dispute only on the quantum of duty demanded and the consequent penalty. In my view unless there is an express conceding of the issue and the legal contentions, which the Tribunal records in its order, it cannot be construed that when the matter has been remanded by finding merit in one of the contentions urged, that, the other contentions stand given up or foregone. - the contention that contention that they were not the importer is required to be examined.
Whether the imported goods could be called ship stores as per the definition under Section 2 (38) of the Customs Act - Held that:- The goods imported in the instant case have been taken to offshore locations where the provisions of the Customs Act had not been extended and that the goods after being used there, were brought back to India for being re-exported out of the country. The situation in the present case is squarely covered by provision of Section 54(2) of the Customs Act, wherein it is provided that any goods imported into a Custom Station for transshipment to any place outside India, may be allowed to be transshipped without payment of duty. - consequently no customs duty could have been demanded.
Import through courier - duty evasion - Held that:- there is no evidence relied upon which would even suggest let alone establish that Appellant was the consignee of the courier parcels. It is not in dispute that during investigation the investigating officials were able to identify the courier docket number, etc in a few cases yet they chose not to investigate as to who the consignee was as also whether there was any authorization from the appellant in favour of the courier to file the bill of entry. In the absence of these details having been brought on record the demand of customs duty against the Appellant cannot be sustained.
Import of goods in hand baggage by its employees without declaring the same or by mis-declaring the value? - Held that:- the demand for customs duty can only be raised against the passenger who was the importer and not against the Appellant. It has been pointed out that here again the demand has been confirmed by the Respondent on the erroneous premise that the Appellant was the owner of the goods. - Appellant is admittedly not the owner of the goods imported and consequently the ratio laid down in the case of Associated Cement Companies Ltd vs CC [2001 (1) TMI 248 - Supreme court of India] does not apply to the facts of the present case.
Whether in case of imports made by sea could duty have been demanded from the Appellant? - Held that:- the onus was on the revenue to establish as to who had actually filed the Bill of entry and had taken upon it the mantle of an importer. The Revenue having failed to discharge this burden, it was not open for the Revenue to draw an adverse inference against the Appellant and call upon it to prove the negative.
Levy of duty in case of where good were transshipped/re-exported - Held that:- Appellant not being the importer, as also the goods having been transshipped/re-exported, the duty liability could not be fastened upon the Appellant.
However I hasten to point out her that the Appellant having time and again, before different authorities accepting that it did not wish to claim refund of the duty paid and that it was contesting the matter only in view of the penalty imposed on it. Given the undertaking made by the Appellant they would not be eligible for refund of the duty deposited by the Appellant even though the same was not recoverable from them, confirmation of duty is erroneous.
Reasons assigned by the Respondents for imposing penalty are not sustainable.- no penalty under Section 112 was imposable on the Appellant - Decided in favour of assessee.
-
2015 (9) TMI 1135 - CESTAT CHENNAI
Imposition of penalty u/s 114A - MEPZ/SEZ unit - DTA clearance - appellant did not carry out sustained exports instead transferred about ₹ 1.62 crores worth of service to DTA without proper intimation to customs authorities and without payment of required duty - appellants cleared printed materials and chromatogram which are research papers are specifically covered under 49011010 of the CTA.
Held that:- Appellant having been registered as MEPZ/SEZ unit are covered under rules and regulations of the MEPZ / Customs Rules and Regulations. Even if the goods are exempted the appellants should have followed the procedure for clearing the goods to DTA which apparently they have not done. The appellants have not filed any shipping bill and no intimation was given to the Department and no procedure prescribed for SEZ and customs notifications are followed. They have not only violated FTP regulations for which the Development Commissioner has imposed a penalty of ₹ 5 lakhs but they have also violated the procedure and rules prescribed under the Customs Act.
There is enough evidence for imposing penalty under Section 112(a) of the Customs Act, 1962 - appellants are liable for penalty for contravening the procedures prescribed for clearance to DTA. Accordingly, we impose penalty of ₹ 1,00,000 each on the appellants in respect of their appeals. - Decided partly in favour of assessee.
-
2015 (9) TMI 1134 - CESTAT CHENNAI
Waiver of pre deposit - levy of anti-dumping duty (ADD) - Held that:- As directed by the Tribunal, the Revenue has enhanced the bank guarantee of ₹ 11,84,000/- and the appellant produced copy of T.R. 6 challan. We also take into account the B/E No.5809203 dt. 23.1.2003 has not yet been cleared and is still under the Customs custody and the ADE involved is ₹ 23,91,562/-. Taking into account the live consignment which is still pending with the Customs the balance demand comes to approx. ₹ 80 lakhs against which by way of encashment of bank guarantee and also by payment of ₹ 20 lakhs appellants paid ₹ 31,84,000/. Taking into consideration the payments made, we direct the appellant No.1 to pre-deposit further amount of ₹ 40,00,000/- (Rupees Forty lakhs only) within 6 weeks. The payment of ₹ 31,84,000/- amount already paid by the appellants to be adjusted towards predeposit. Upon deposit of the said amount, predeposit of balance duty and penalty in respect of the appellant No.1 and predeposit of penalty amount on the appellants No.2 & 3 shall stand waived and recovery thereof stayed during pendency of the appeal. - partial Stay granted.
-
2015 (9) TMI 1133 - CESTAT CHENNAI
Restoration of appeal - non-compliance of stay Order - Held that:- On perusal of records and considering the medical certificate, technical difficulties of making the payment of predeposit after mobilising the funds and also considering the fact since the appellant has complied with predeposit on 19.2.2015, the compliance is noted. The dismissal order of appeal is recalled and the appeal is restored to its original number - Appeal restored.
-
2015 (9) TMI 1132 - CESTAT AHMEDABAD
Imposition of redemption fine - import of Limestone Blocks -imported goods were not covered by the license - Held that:- Adjudicating Authority had given a detail finding to impose penalty and fine. We find from the impugned order that the appellant vide a letter Dated 09.10.2007 interalia submitted that they are regularly importing Limestone Blocks against a specific licence. However, now their licence has been expired and so they were not able to utilize the same. They have submitted documents in support of the contention. It is seen that the said letter was not considered by the adjudicating authority. In our considered view, the appellant should be given an opportunity to represent their case before the Adjudicating Authority in the interest of Justice. - Matter remanded back - Decided in favour of assessee.
-
2015 (9) TMI 1075 - PUNJAB & HARYANA HIGH COURT
Valuation of goods - Reassessment of bill of entry - Held that:- The order passed by the Commissioner (Appeals) nowhere gives any justification for accepting the declared value by giving the reasons for the same. In the absence of any cogent reasons, direction for accepting the declared value by the Commissioner (Appeals) was unjustified. Accordingly, the Tribunal was right in staying the operation of the impugned order in appeal with regard to direction for reassessment of the bill of entry on the declared value. - Decided against assessee.
-
2015 (9) TMI 1074 - MADRAS HIGH COURT
Waiver of pre-deposit - tribunal dismissed the appeal for non compliance with an order imposing a pre-deposit condition. - appellant actually sought was a waiver of penalty, due to the fact that the duty itself was not assessed and also due to the admitted fact that the vehicle was seized from the custody of a third party. - Held that:- The fact remains that the appellant is entitled to the benefit of Section 129E in view of the admitted position that the vehicle was seized from the custody of a third party. - Tribunal rejected the said contention on the short ground that the appellant did not raise this point at the time when the conditional order was passed
Once these things are actually borne out by records, it was not correct on the part of the Tribunal to take a stand that at the time of passing the conditional order, the plea regarding bank guarantee was not raised. Even if the plea regarding the bank guarantee was not raised, this was not a case where a pre-deposit condition, even if it is leviable, cannot be twice the amount of penalty, which was the only item that was assessed even in the order on appeal. Therefore, we are of the considered view that the appellant is entitled to succeed. - Matter restored before the tribunal - Decided in favour of assessee.
-
2015 (9) TMI 1073 - CESTAT MUMBAI
Excess Drawback Rebate – Bona-fide Mistake – Appellant claimed higher drawback amount under provision of notification 36/2005-Cus, as appellant had declared rate under column for no Cenvat credit whereas in other document he declared he used Cenvat credit – Differential amount of said drawback was paid back by appellant – However vide impugned order appellants goods were confiscated, redemption fines and penalties were imposed – Held that:- appellant admittedly paid back Drawback amount before issuance of show cause notice – Appellant have correctly declared that they were availing facility of Cenvat credit – This shows that it was case of bona fide mistake occurred in declaring Drawback under column ‘A’ of Drawback Schedule, for this reason Section 113(ii) was not invokable – Goods on which excess Drawback was sanctioned were exported and not available for confiscation –Settled legal position that goods which were not physically available for confiscation redemption fine cannot be demanded – Confiscation and redemption fines hereby set aside, however demand of differential amount of Drawback and interest thereupon maintained - Decided partially in favour of Assesse.
-
2015 (9) TMI 1072 - CESTAT MUMBAI
Improper importation of old white and coloured, cut wiper industrial rags – Classification of Goods – Appellant filed Bill of Entry for clearance of ‘old white and coloured, cut wiper industrial rags’ classified under CTH 63109010 as woolen rags – On examination, it revealed that out of 480 bales, 180 bales were coloured and remaining 300 bales white and also goods appeared to be new – Adjudicating authority confiscated impugned goods under Section 111(d) of Customs Act, 1962 and redemption fine and penalty was imposed – Held that:- in test report it was found that goods were not rags and it was not found to be completely mutilated rags– It was observed that impugned goods were admittedly small new textile cutting and same was restricted under Foreign Trade Policy – Therefore impugned goods were not classifiable however, it was correctly classifiable as others under CTH 63101090, which was restricted – As appellant has not obtained special import licence for clearance of same, therefore they have made liable themselves for imposition of penalty – However appellant deserve reduction in fine and penalty – Decided partly allowed Assesse.
-
2015 (9) TMI 1071 - DELHI HIGH COURT
Classification of Goods – Re-assessment Order – Petitioner claims that goods imported were classified as ‘quilt covers’ whereas Department had taken position that they were in nature of ‘polyester fabric’ – Held that:- respondents do not disagree that if goods were classifiable as polyester fabric they would have to pass re-assessment order under Section 17(5) of Customs Act, 1962 –Therefore respondent-1 directed to pass re-assessment order in terms of Customs Act, 1962 –Petition disposed of – Decided in favour of Petitioner.
-
2015 (9) TMI 1019 - SUPREME COURT
Valuation - Revenue contends that value mentioned in MoA dated 23.08.2000 should have been the valuation for the purpose of levying the import duty - Held that:- price was genuinely revised and a lesser price was agreed to be received by the owner of the vessel and therefore, there was nothing wrong on the part of the appellant to declare that price in the Bill of Entry. We, thus, are of the opinion that the duty should have been assessed on the basis of value declared by the appellant and the assessment made on 18.03.2002 by the assessing officer did not call for any interference. - Decided in favour of assessee.
........
|
