|
Advanced Search Options
Customs - Case Laws
Showing 401 to 420 of 40545 Records
-
2025 (5) TMI 175
Seeking modification/deletion in bail condition requiring the Applicant to deposit/surrender her passport with the Trial Court and seek permission before traveling abroad - HELD THAT:- It is seen from the affidavit that prosecution is in the process of issuing Show-Cause-Notice to Applicant for which her presence is required in India and therefore her Application is opposed by prosecution. Applicant can always co-operate with the investigation after she returns back in July 2025 as stated by her. In the bail order, it is noted by the Court that when she was in custody since 21.02.2025 she was not at all interrogated. Applicant can always co-operate with the investigation after she returns back in July 2025 as stated by her.
What is argued across the Bar is that Applicant is required to submit her bank statements and LIC policies in her name to the prosecution. Though the prosecution has objection to the present Application, it is opined that the case of Applicant in respect of prayer clauses (a) & (c) seeking modification / deletion of condition No. 6 is covered by the decisions of this Court in the cases of Mohammad Hanif Nurani [2025 (2) TMI 220 - BOMBAY HIGH COURT] and Manish Gulabchand Birawant [2025 (3) TMI 420 - BOMBAY HIGH COURT]. Needless to state that Applicant will have to furnish all such necessary details to the prosecution before she embarks upon her travel to USA at this time and at all times in future.
Insofar as Applicant's medical condition is concerned, prima facie adequate documentation has been appended to the Application and all such necessary details have already been given to the prosecution by her. If any further details are required to be informed, it is directed that Applicant shall inform the same and all such necessary details pertaining to her itinerary, date of travel, date of return, details of the place where and with whom she will be residing during her visit, details of the places which she intends to visit during her visit to USA etc. It is seen that Applicant is having deep roots in Mumbai and prima facie she is having the medical ailment for which she desires to take treatment from her home country i.e. USA, details of which have already been given to the prosecution and appended to the Application. It is also seen that she has been taking medical treatment for her ailment in the USA even earlier. Prima facie there are no reason to disbelieve the same.
The condition Nos. 6 and 7 both in the bail order dated 20.03.2025 stands deleted by issuing clarification that as and when Applicant desires to travel abroad, it shall be mandatory for Applicant to inform in writing all such necessary details in writing on affidavit about her itinerary, date of travel, date of return, details of the place where and with whom she will be residing during her visit, details of the places which she intends to visit during her visit to abroad, her phone number, email ID etc. to the prosecution officer before she undertakes to travel abroad on affidavit and that she will undertake to respond to them in an emergency and shall fully co-operate with the investigation in the present case. This order shall be read along with order dated 20.03.2025. It is clarified that, if there is any breach of this order by Applicant, liberty is given to the prosecution to apply for revocation of this order by applying to this Court.
Conclusion - The Applicant is accordingly permitted to travel abroad to USA as delineated in the bail order as corrected / modified by the present order subject to she abiding by the directives contained in the present order.
Application allowed.
-
2025 (5) TMI 174
100% EOU - Prayer for a direction upon the respondents to forthwith allow the petitioner to export the goods immediately - requirement to furnish bank guarantee - HELD THAT:- The conditions set forth for provisional release of the goods are noted - the Circulars dated 4th January, 2011, being Circular No. 01/2011-Customs and the Circular No. 35/2017-Cus dated 16th August, 2017 also noted.
A conjoint perusal of the aforesaid Circulars would demonstrate that in case of mis-declaration and pending confirmation of such mis-declaration by test, ordinarily, the export goods detained for the purpose of test must be dealt with on priority basis and the export should be allowed expeditiously unless the same is found to be prohibitory items under the Customs Act 1962. In this context, the respondents have not been able to confirm that the export goods are of prohibitory items, as such, has permitted export.
Whether the conditions imposed by the respondents are onerous? - HELD THAT:- The petitioner, apart from execution of bond of an amount equal to the value of the goods has been directed to furnish an amount of Rs. 3 crore as bank guarantee which is far beyond the value of the goods.
Nothing has also been placed before this Court to demonstrate that the respondents are contemplating confiscation of the goods - Be that as it may, since the aforesaid provisional release does not identify the reasons for determining the amount of security by way of furnishing bank guarantee, the concerned authorities are directed to take a decision only on the aspect of determining the amount of bank guarantee in the light of the Circulars dated 4th January, 2011 and 16th August, 2017. Having regard to the fact that no confiscation at this stage is contemplated, the security may be appropriately reduced in accordance with law. The above decision must be taken within seven days from the date of communication of this order.
The judgment referred to in the case of M/s J.S. Jewels Pvt. Ltd. [2025 (2) TMI 887 - CALCUTTA HIGH COURT] does not squarely cover this case as the case involved detention and provisional release of imported goods.
Having regard to the fact that goods covered under the Shipping Bill is meant for export and has been detained, it is only expected that the respondents shall make over a copy of the test result to the petitioner within seven days from the date of receipt of the test result. It is made clear that the petitioner shall cooperate in the investigation.
The detention charges for the time being subject to the investigation to be made by the concerned respondents be not saddled on the petitioner, though appropriate bond/security may be obtained in this regard.
Conclusion - i) The petitioner is entitled to provisional export of goods pending enquiry, subject to cooperation and reasonable security. ii) The customs authorities must reconsider and fix the bank guarantee amount in accordance with applicable circulars and the absence of confiscation proceedings. iii) Demurrage/detention charges are stayed during the investigation period. iv) The petitioner must be provided with test results promptly and cooperate with the enquiry.
Petition disposed off.
-
2025 (5) TMI 173
Detention of consignment of perishable goods Mistake in filing of Import General Manifest (IGM) by the Shipping Company - Restraint on movement of goods from Sea Port of Mundra to ICD Ludhiana - seeking permission for filling of Manual Bill of Entry at the port of ICD Ludhiana for clearance of goods, which are highly perishable in nature - HELD THAT:- From the perusal of the facts which have come on record and the orders passed by this Court from time to time, we are satisfied that the respondent-Custom Department had wrongfully and illegally withheld the perishable food item i.e. Kiwi which has limited shelf life. It is noticed that in import cases of perishable goods there is an inherent urgency which needs to be noticed and considered by the concerned stakeholders. In the facts of the present case, there has been huge delay in compliance of the procedure. While initially the respondents did not issue the necessary orders, it is only with the direction of this Court that the respondents permitted the amendment of Import General Manifest (IGM) from Mundra port to GRFL ICD, Sahnewal, Ludhiana.
It is only when the Court found that its orders were not being complied with and action amounted to committing contempt of Court that the goods were transhipped to Ludhiana. The respondents did not release the goods even thereafter and again raised a doubt with regard to the place of origin of import of Kiwi fruit inspite of there being documents issued by the UAE Custom evidencing the origin of the goods as Chile. Upon joint inspection conducted in terms of orders passed by this Court on 24.07.2023, 25% of the goods were only examined which reflected 25% of the said goods have been completely damaged.
The interpretation of Section 26A (3) of the Act, cannot be held to mean the denial of a refund claim even where the goods have perished and the shelf life has ended after the goods have already touched the store - The same reflects the attitude adopted by the Custom Authorities that they were not ready to release the goods. The shipping company also did not cooperate in spite of directions by this Court, and an attitude of insensitivity to the goods being perishable was adopted.
Hon’ble Supreme Court recently in Zulfiquar Haider vs The State of Uttar Pradesh [2025 (4) TMI 1527 - SUPREME COURT] has awarded compensation to the victims whose houses were wrongfully demolished. The Courts in cases where there is deliberate and willful action of the State or its functionaries in depriving any person ought not shy away from granting compensation. Keeping in view that in spite of several orders passed by this Court for release of perishable fruit ‘Kiwi’, the respondents did not act promptly and the entire consignment of imported goods got perished.
Conclusion - i) The Import General Manifest filed by the shipping company was incorrect in declaring Mundra as the final place of delivery; the Customs authorities were empowered and obligated to amend the IGM to reflect ICD GRFL Ludhiana as per Section 30(3) of the Customs Act. ii) The petitionerias entitled to refund of the import duty paid, with interest, despite Section 26A(3) excluding refund for perishable goods, as the loss was caused by official delay and non-compliance with Court orders. iii) The petitioner is entitled to compensation for the loss suffered due to negligence and wrongful detention by the respondents, fixed at Rs. 50 lakhs recoverable from responsible officers.
The respondents are directed to release the amount paid as custom duty on the Kiwi for import into India along with interest @ 6% per annum - petition allowed.
-
2025 (5) TMI 172
Classification of imported goods - Nutracor 88( Calcium Salts made from Palm Oil Fatty Acids), Animal Feed Supplement Not For Medical/Human Use - to be classified under the tariff item 23091000 or under the CTH 23099090? - concessional rate of duty vide N/N. 46/2011 dated 01.06.2011 - mis-declaration of the goods - Extended period of limitation - Imposition of redemption fine in lieu of confiscation - Penalty u/s 114A of the Customs Act - HELD THAT:- Customs Revenue Audit conducted scrutiny of the records of the appellant and observed that the goods imported by the appellant are rightly classifiable under the CTH 23099090 and the appellant are not eligible for the exemption as provided under the Notification No. 46/2011 dated 01.06.2011. When Audit observed that the goods imported by them are rightly classifiable under the CTH 23099090 and they are not eligible for the exemption as provided under the Notification No. 46/2011 dated 01.06.2011, the appellant has accepted the revised classification and paid the differential duty demanded for the normal period of limitation.
The issue involved is a classification dispute of the goods imported by the appellant. It is a settled law that claim of wrong classification does not amount to misdeclaration, as there is always scope for the assessing officers to rectify it based on the facts brought on record. It has been categorically held in a catena of judgments that wrong claim of classification or inapplicable claim of exemption Notification cannot be equated with mis-declaration to give rights to the revenue to invoke extended period of limitation for raising duty demand - When the importer filed the classification under a particular Customs Tariff Heading with correct description of the goods, the revenue was within its power and jurisdiction to change the said classification or to raise an objection if they felt that the classification was incorrect. Hence, we hold that extended period of limitation is not invokable in this case.
In the present case, it is found that there is absolutely no suppression of facts on the part of the Appellant so far as the impugned consignments are concerned and hence, the invocation of the extended period of limitation under Section 28(4) of the Customs Act, 1964 is legally not sustainable and accordingly, those demands confirmed by invoking extended period of limitation in the impugned order set aside.
Imposition of redemption fine in lieu of confiscation - HELD THAT:- There is no proposal in the Notice to confiscate the goods. Further, we observe that the goods involved in respect of all the 19 Bills of Entry have already been cleared and they are not physically available for confiscation. Thus, it is found that the imposition of redemption fine without even having the proposal for confiscation in the notice, is not sustainable. Accordingly, no redemption fine imposable in this case and hence the redemption fine imposed in the impugned order set aside.
Penalty u/s 114A of the Customs Act - HELD THAT:- The basic requirement of law for invocation of Section 114A of the Customs Act 1962 is that the short levy or non levy of duty should have happened on account of fraud, collusion, suppression of fact or wilful mis-statement on the part of the appellant. As discussed there is no suppression of facts with intention to evade the duty established in this case. This being a case of erroneous claim of wrong classification and benefit of exemption notification, which continued to be accepted by the Departmental officers over such a long period of time spanning more than three and a half years, in the absence of any mis-statement or suppression of facts, the provisions of neither Section 28(4) nor Section 114A of the Act could be invoked against the Appellant herein. Thus, the penalty imposed on the appellant under section 114A of the Customs Act, 1962 is not sustainable and hence the same is set aside.
Conclusion - i) The goods imported by the appellant are rightly classifiable under the CTH 23099090 and the appellant are not eligible for the exemption as provided under the Notification No. 46/2011 dated 01.06.2011. ii) The demands confirmed by invoking extended period of limitation in the impugned order set aside. iii) No redemption fine imposable and is set aside. iv) The penalty imposed on the appellant under section 114A of the Customs Act, 1962 is not sustainable.
Appeal disposed off.
-
2025 (5) TMI 171
Valuation of export goods - Rejection of declared value under Rule 8 of the Customs Valuation (Determination of the Value of Export Goods) Rules, 2007 - Department has relied on the chemical examiner’s report dt.29.11.2010 given by the Customs House, Kakinada which reported Fe content at 63.2%, in place of report dt.16.01.2010, given by Inspectorate Griffith India Pvt Ltd, Bellary, Karnataka, which reported the Fe content at 61.02% on dry basis - HELD THAT:- The report given by Customs House, Kakinada as sought by the Department did not contain any moisture content and nowhere it is mentioned that it is tested on WMT or DMT basis, which is in contravention of norms as laid down by Hon’ble Supreme Court in UOI Vs Gangadhar Narsingdas Aggarwal [1986 (4) TMI 71 - HIGH COURT OF BOMBAY], as also in the circular issued by CBIC. Whereas, the report given by Inspectorate Griffith India Pvt Ltd, which is authorized agency for inspection under section 7(1) of Export (Quality Control & Inspection) Act, 1963, under Export Inspection Council of India under Ministry of Commerce & Industry (GOI), has specifically mentioned moisture content while testing the sample on DMT (dry basis). Therefore, the reliance placed by Commissioner (Appeals) on the test report given by Customs House, Kakinada is misplaced as it has not tested the sample as required by law. Hence the findings given by Commissioner (Appeals) on basis of report dt.29.01.2010 given by Customs House, Kakinada is not tenable.
The Commissioner (Appeals) has also not referred to any material evidence for substantiating any additional consideration received by the exporter over and above the Invoice Price for rejection of the transaction value. Whereas, the Assistant Commissioner has correctly finalized the assessment in terms of Final Invoice dt.23.12.2009 based on Fe content of 61.02% as per the Test Report at the load port and realization of the price confirmed by the BRC in terms section 14 ibid as per the terms of the sale contract. The Order of the Commissioner (Appeals) is based on the Test Report dt.29.01.2010, which is not according to the CBIC circular and the decision of Hon’ble Supreme Court in the case of Gangadhar Narsingdas Aggarwal.
The impugned order of the Commissioner (Appeals) is not proper, legal and correct in the facts of the case and therefore, liable to be set aside.
Conclusion - The finalization of assessment based on the authorized agency's test report specifying moisture content and Fe content on DMT basis, corroborated by the final invoice and BRC, is correct and must be upheld.
Appeal allowed.
-
2025 (5) TMI 170
Enhancement of assessable value of the imported goods - rejection of declared value - speaking order not issued - violation of principles of natural justice - HELD THAT:- The Assessing Officer committed a grave error in not issuing the speaking order because there is nothing on record to show that the appellant had accepted the re-assessment in writing. The reliance placed by the Commissioner (Appeals) on the order of this Tribunal in case of Commissioner of Customs vs. Hanuman Prasad & Sons [2020 (12) TMI 1092 - CESTAT NEW DELHI] is highly mis-placed. In that case, the assessee had accepted the re-assessment in writing and, therefore, no speaking order was issued. It was, therefore, held in that case that the assessing Officer was correct in not issuing a speaking order.
Even on merits, the Commissioner (Appeals) recorded in the impugned order that the Assessing Officer had “loaded the value”. Neither section 14 of the Customs Act nor the Customs Valuation Rules provide for any “loading of value” by the Assessing Officer. The transaction value shall be the assessable value unless it is rejected following the procedure prescribed under Rule 12. If it is so rejected, when the value should be re-determined sequentially following rules 4 to rule 9 of the Valuation Rules. None of these Rules or Section 14 empower the Assessing Officer to load the value.
Conclusion - The re-assessment of the Bill of Entry by the Assessing Officer was without any authority of law and he also committed an illegality in not issuing a Speaking Order as mandated under section 17(5) of the Act. The impugned order of the Commissioner (Appeals) wrongly upheld such re-assessment. Therefore, it cannot be sustained.
The impugned order is set aside along with the re-assessment of the Bill of Entry by the assessing Officer - Appeal allowed.
-
2025 (5) TMI 169
Seeking stay of operation of the impugned Order - enhancement of the declared transaction value of imported goods by adopting data from the National Import Database (NIDB) - rejection of declared transaction value without valid reasons - HELD THAT:- An identical issue has already been dealt with by this Tribunal in the case of Commissioner of Customs (Port), Kolkata v. M/s. Prabhu Electrical Industries [2025 (2) TMI 1174 - CESTAT KOLKATA], wherein it was held that the enhancement of value based solely on selective NIDB data without adherence to statutory provisions and without valid reasons is unsustainable.
Conclusion - Considering the fact that the issue has already been settled by this Tribunal in the case of M/s. Prabhu Electrical Industries, the above ratio is squarely applicable to the present case. Therefore, by following the ratio laid down in the above decision, the enhancement of values in the present case is not sustainable in the eyes of law.
There are no merit in the appeal filed by the Revenue and therefore, the same is dismissed.
-
2025 (5) TMI 91
Review of order - Classification of imported goods - Binding Material, Parts for Brake, disc brake pads, tool for mould, etc. - the department’s classification under CTH 6813 8900 was upheld - HELD THAT:- There is no error apparent on the record - Review Petition is dismissed.
-
2025 (5) TMI 90
Seeking review of order - condition of pre-deposit renders the appellate remedy onerous and illusory or not - waiver of pre-deposit under Article 226 of the Constitution of India - HELD THAT:- This is not a case where pre-deposit provisions have been challenged as unconstitutional. In any event, the validity of such provision or similar provisions is already upheld by several decisions holding the field. The right to appeal is never inherent but only statutory. Therefore, if such a right is hedged with some condition, it cannot be said that such a right is rendered illusory.
While the powers of a constitutional Court under Article 226 of the Constitution of India are expansive, the Hon’ble Supreme Court has held that such powers should not ordinarily be exercised to sidestep the statutory requirements.
In Kotak Mahindra Bank Pvt. Ltd. [2021 (2) TMI 1251 - SUPREME COURT], the Hon’ble Supreme Court has held that the discretionary jurisdiction under Article 226 should not be exercised to defeat the mandatory requirement of statutory provisions.
Thus, no case for the exercise of review jurisdiction is made out. The Review Petition is therefore dismissed.
-
2025 (5) TMI 89
Seeking grant of regular bail - Conspiracy to smuggle the contraband by concealing the same in their body - quantity of narcotics recovered exceeds the commercial quantity threshold - HELD THAT:- The contraband was being carried by the petitioner surreptitiously by ingesting the contraband, which clearly suggests that he was consciously facilitating the illegal trade of contraband. The same is sufficient to prima facie establish the conscious position under the NDPS Act. With regard to the compliance under the Act, in the case of State of H.P. Vs. Pirthi Chand and Another [1995 (11) TMI 433 - SUPREME COURT], the Hon’ble Supreme Court while following the observations made by the Constitution Bench in Pooran Mal case [1973 (12) TMI 2 - SUPREME COURT], held 'It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.'
The documents placed on record prima facie reveal that notice under Section 50 of NDPS Act and under Section 102 & 103 of the Customs Act were served to the petitioner and he even gave reply to such notices. The record further indicates that the Investigating Officer had taken the petitioner to RML Hospital with the permission of the court for screening/scanning to confirm the presence of contraband in his body. Hence, it is not a case where no such permission was obtained before taking the petitioner to the hospital for Extraction of the drugs - the narrow parameter of bail available under Section 37 of the Act has not been satisfied in the facts of the present case. Petitioner has not been able to overcome the twin hurdle of Section 37. The length of the period of his custody or filing of the charge sheet and commencement of the trial by itself is not a consideration that can be treated as a persuasive ground for granting relief to the petitioner under Section 37 of the NDPS Act.
Conclusion - The allegations, no doubt, are grave and serious in nature. The recovered quantity of contraband is way above the commercial quantity of Cocaine. Hence, keeping in view the entire facts and circumstances and the nature and gravity of allegations and in view of bar under Section 37 NDPS Act, it is not inclined to grant bail to the petitioner.
Petition dismissed.
-
2025 (5) TMI 88
Liability of Directors and the Petitioner for non-fulfilment of its export obligations under the FTDR Act by the company - lifting of corporate veil - no show cause notice was issued to the Petitioner at all - violation of principles of natural justice - HELD THAT:- The Impugned Order does not contain any discussion with regard to the personal liability of the Petitioner. In fact, it is the case of the Petitioner that the show cause notices that are sought to be relied upon by the Respondent are all issued to the Company and have not been specifically addressed to the Petitioner - The Four O-I-O's state that the show cause notice dated 29.06.2004 was issued, thereafter another notice was issued on 05.05.2008 subsequently as well. However, it also states that the summons issued came back undelivered.
In any event, after the Company had been directed to be wound up on 09.01.1998, all notices should have been issued to the Official Liquidator of the Company, which was concededly not done by the Respondent.
The issue that obtains in the present case also obtains in a matter decided by this Court, the Pankaj Mehra case [2024 (12) TMI 1475 - DELHI HIGH COURT]. In the said case, a similar situation had arisen where after order for winding up of the Company was passed, notices under Section 11 of the FTDR Act were issued by the Respondent and Order(s) in Original were passed fastening a personal liability on the Directors of the Company for their role in the non-fulfilment of export obligations of the Company. This Court examined these Orders-in-Original and the final adjudication undertaken by the Respondent and found that no averment fastening personal liability on a Director was made either in the show cause notice or in the Order (s) passed by the Respondent. It was held by the Court that unless specific allegations are made against a Director regarding its role in the Company's export performance, they cannot be held personally liable.
There is another aspect which has to be taken into consideration. The export licences were issued during the time period of 1989-1991. Between 27.06.2002 and 11.09.2008, the Respondent issued multiple notices, summons, and orders concerning various Advance Licenses held by the Company. The Four O-I-O's were then passed on 08.09.2009 and 17.09.2009. No explanation has been provided by the Respondent in these Four O-I-O’s for the delay in taking steps against the Petitioner or the Company. No reason has been urged before this Court either.
In any event, the contention of the Respondent that the Petitioner being a whole-time director is automatically liable and culpable for the defaults of the Company is also misconceived. It is no longer res integra that in order for a Director to be vicariously liable for the offences of the Company unless such Director was in charge and responsible to the Company for the conducts of its business, such Director cannot be held to be liable for offences alleged to have been committed by that Company.
The Respondent has not disputed the fact either in the Impugned Order or in the Four O-I-O's that the Company went into liquidation in 1998, and that all documents and records were taken over by the Official liquidator. Thus, once a company goes into liquidation, all proceedings to be initiated against such company for the failure to submit documents in compliance with export obligations could only be initiated as is mandated in law. There is no evidence of this being done by Respondent either.
Conclusion - In order for a Director to be vicariously liable for the offences of the Company unless such Director was in charge and responsible to the Company for the conducts of its business, such Director cannot be held to be liable for offences alleged to have been committed by that Company.
This Court therefore finds no merit in the contentions of the Respondent - the Impugned Order and the Four Order(s)-In-Original are set aside - Petition disposed off.
-
2025 (5) TMI 87
Refund of amount paid under protest during investigation - rejection on the ground of time limitation - HELD THAT:- The learned Commissioner has erred in passing the impugned order dated 05.03.2015. In the impugned order, the learned Commissioner has mentioned two issues raised by the appellant that adjudicating authority failed to appreciate that refund claim was made regarding consequential relief granted to the appellant. There was no requirement on the part of the appellant to file refund claim but the claim made by the appellant ought to have been granted by the department on its own. Hence the period of limitation of Section 27 of Customs Act, 1962 was inapplicable. Therefore, the impugned is not sustainable and deserves to be quashed. The learned Commissioner has nowhere given any finding on the above issue and did not make any comment on the said issue in correct perspective.
It is well settled legal position and the impugned order is not sustainable to that extent and deserves to be set-aside. Learned Commissioner did not bother to give his finding regarding the said issue and has nowhere discussed the said issue in correct perspective.
It has been held in various cases by Tribunal that where an assessee succeeds in overturning an adjudication order, any amount paid either during investigation or as pre-deposit is to be refunded without raising the issue of limitation. The refund claim in such cases is not an ordinary claim under the Act but it is consequential relief resulting from the appellate order and therefore, cannot be rejected on the ground of limitation as being time-barred - reliance can be placed in OPEL ALLOYS PVT. LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD [2009 (9) TMI 361 - CESTAT, NEW DELHI] and M/S. MANGALAM CEMENT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2011 (8) TMI 956 - CESTAT, NEW DELHI].
Conclusion - The payment of Rs. 5,00,000/- made by the appellant has been made under protest and there is no doubt about it. This being the case, the amount deposited by the appellant cannot be taken as duty but it was a deposit and therefore, the refund application could not have been rejected on the ground of limitation.
The impugned order passed by the learned Commissioner is not sustainable and is liable to be set-aside and the appeal filed by appellant deserves to be allowed - Appeal allowed.
-
2025 (5) TMI 86
Revocation of Custome Broker License - forefeiture of security deposit in whole - levy of penalty - failure to obtain authorization and to comply with Regulation 10(a) of the Customs Broker Licensing Regulations, 2018 (CBLR, 2018) - failure to advise their client regarding provisions of Customs law - HELD THAT:- In this case the adjudicating authority has held that the violations of Regulations 10(d) and 10(n) CBLR, 2018 have been proved for the reason that the Director of the Custom Broker was not aware of their employee working in Chennai, hence they were in no position to advise their client regarding provisions of Customs law. Further, there was no effort on the part of Customs Broker to verify the antecedents of the importer, hence violated Regulation 10(n) of the CBLR.
In this case the Appellant-Custom Broker has filed the bill of entry, on investigation it was found that the quantity found is much in excess than what was declared. Therefore, we find that there was an attempt to mis-declare the weight to evade customs duty. Investigations also revealed that the consignment belongs to Mr. Gulab and the Import Export Code (IEC) of M/s. Mahi Enterprises has been used for the purpose of clearance of the imported goods. Investigations revealed that the employee of the Appellant-Customs broker had met the actual importer and did not inform the Customs about the actual importer about whom they had knowledge.
In view of the fact that the bill of entry for the imports made at Chennai Customs was filed by their Bangalore office, the Custom Broker ought to have taken additional care to inform the importer about the Customs law and procedures and also ought to have exercised due diligence in such a case. Therefore, in the facts of the case, the Customs Broker has failed to advice the importer about the Customs law and procedures and exercise due diligence in verification of the antecedents of the importer and thereby violated Regulations 10(d) and 10(n) of CBLR, 2018.
The penalty of forfeiture of the security deposit in whole and imposition of penalty of Rs. 50,000/- in the facts and circumstances of the case, can be considered for reduction. Accordingly, the forfeiture of security deposit under Regulation 14 of CBLR, 2018 is reduced to 15% of the security deposit amount and the penalty under Regulation 18 of CBLR, 2018 is reduced to Rs. 10,000/-.
Conclusion - i) The Customs Broker violated Regulation 10(d) of CBLR, 2018 by failing to adequately advise the importer and exercise due diligence in the circumstances where the Bill of Entry was filed from a different office. ii) The Customs Broker did not violate Regulation 10(n) as it complied with KYC requirements by verifying the importer's identity and documents; it was not required to investigate or confront the importer regarding discrepancies in other registrations. iii) The penalty and forfeiture imposed were excessive and were accordingly reduced to 15% of the security deposit and Rs. 10,000 respectively.
The impugned order is set aside, and the appeal is allowed
-
2025 (5) TMI 85
Valuation of imported goods - Undervaluation of imported goods - rejection of transaction value - appellant's request for cross examination during personal hearing was denied - violation of principles of natural justice - HELD THAT:- As regarding valuation, law is well settled that only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules.
On perusal of the documents relied by the Adjudication Authority and considering the finding given by the respondent in the Order-in-Original No.COC-CUSTM-000-COM-021-16-17 dated 19.07.2016 on the very same issue regarding valuation of very same goods which was imported by M/s. Sarathi Impex Ltd, there is no admissible evidence to compare the goods imported by the appellant with the Proforma Invoice pertaining to the brand "BAIDA" and Long Feng- LF-588 relied by adjudication authority to reject the transaction value.
Conclusion - There is no material on record or comparable imports to reject the transaction value.
Appeal allowed.
-
2025 (5) TMI 84
Valuation of imported goods - re-determination of the customs value of the imported replacement goods - valsidity of rejection of declared value, given the declared value and prior acceptance of the original consignment's value by the department - HELD THAT:- The undisputed facts are that the goods were allowed for re-export by the Commissioner (Appeals). It is also fact that the impugned goods were replacement for the goods imported earlier which were found to be defective. Since originally the goods were allowed to be cleared at the declared value and replaced goods which were received after two months from the date of original import which were provided free of charge, the question of redetermination of value does not arise.
It is also the fact that the similar items was imported by M/s. HCL Ltd. without any certification at USD 50,600, therefore, redetermination of value based on the supplier’s list price without any sufficient reasons cannot be sustained. Moreover, when the appellant had requested for re-export, the question of payment of redemption fine and penalty does not arise since the goods were replacement of the defective goods which is not in dispute.
It is also found that the goods have been auctioned without any intimation to the appellant by the Revenue that too when an appeal is pending before this Tribunal. The three letters that are placed on record to prove that the appellant had been intimated or letters issued by M/s. Menzies Aviation Bobba (Bangalore) Pvt. Ltd., the custodian of the goods and these letters have been issued prior to the Adjudication by the Original Authority vide Order-in-Original No. 79/2011 dated 31.03.2011. This intimation is much prior to the issuance of order of confiscation of the impugned goods. The appellant is right when he claims that the goods have been clandestinely auctioned without their knowledge, the fact that actual auction took place on 07.11.2013 does not justify the action taken by the department, especially when the issue is sub-judice, wherein the appeal is still pending before this Tribunal.
The Hon’ble High Court of Delhi in the case of Shilp Impex vs. Union of India [2002 (1) TMI 62 - SC ORDER] observed 'Admittedly, there was no relinquishment and at least that is not the stand of the Department and there has been no relinquishment. It was faintly suggested that the petitioner did not lift the goods and that amounts to relinquishment. Such a stand is hardly acceptable. Section 150 operates in a different field altogether. It relates to sale of goods not being confiscated goods, and which are to be sold under any provisions of the Act. Even this provision postulates a notice to the owner before action is taken. That has also undisputedly been not done.'
Conclusion - Re-determination of value based on the supplier's list price without any sufficient reasons cannot be sustained.
The Respondent is directed to restore the sale value of the impugned goods - the impugned order is set aside and the Appeal is allowed.
-
2025 (5) TMI 83
Requirement of speaking order under section 17(5) of the Customs Act, 1962 - enhancement of value of imported goods at the rate of 13% “on account of SVB loading” - absence of such provision either in the Customs Act or in the valuation rules - HELD THAT:- The reliance placed by the Commissioner (Appeals) on Hanuman Prasad [2020 (12) TMI 1092 - CESTAT NEW DELHI] is completely mis-placed. In that case the importer had accepted in writing the re-assessment done by the proper officer and, therefore, it was held that the proper officer was not required to issue a speaking order as per section 17(5) of the Act. After accepting the re-assessment in writing, the importer had filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) set aside the re-assessment on the ground that no speaking order was passed. It is in that factual matrix that the order of this Tribunal in Hanuman Prasad held that once the importer gives in writing that he accepts the re-assessment, there was no need for the proper officer to issue a speaking order. Therefore, it was held that the Commissioner (Appeals) had erred in setting aside the re-assessment on the ground that no speaking order was passed.
Coming to the merits of the re-assessment itself, as per Section 14 of the Customs Act, the assessable value shall be the transaction value for import at the time and place of importation i.e, the CIF value of the imported goods. Transaction value is the price paid or payable by the importer for the goods. However, Section 14 itself provides for some exceptions and empowers the Government to frame rules to deal with such situations - If the transaction value is rejected then the value should be determined sequentially through Rules 4 to 9.
In this case no reasons for rejection of transaction value were recorded at all by the Commissioner (Appeals) or by the proper officer. Further, the re-determination of the value was also not done through any of the Valuation Rules indicated, let alone following the Valuation Rules sequentially.
According to the impugned order, the value was loaded at the rate of 13 per cent “on account of SVB loading”. There is no provision either in the Customs Act or in the valuation rules called “SVB loading”.
Conclusion - The re-assessment of the Bill of Entry by the Assessing Officer was without any authority of law and also contrary to the provision of section 17 (5). The Commissioner (Appeals) committed an illegality in upholding such re-assessment.
The impugned order as well as the re-assessment to the Bill of Entry by the Assessing Officer are set aside - Appeal allowed.
-
2025 (5) TMI 2
Classification of imported Multimedia Speakers/Computer Speakers - to be classified under CTH 851822/851829 or under CTH 8519/8527? - HELD THAT:- The subject issue is no more res integra. There are a catena of decisions holding the classification of the impugned goods under heading under CTH –8518.
In the case of Logic India Trading Company vs Commissioner of Customs, Cochin [2016 (3) TMI 5 - CESTAT BANGALORE], as maintained by the Hon’ble Apex Court in [2017 (1) TMI 477 - SC ORDER], while dealing with similar set of facts, the courts have held the classification of the said goods under CTH 8518.
The detailed analysis of the classification of all such Audio-Visual Receivers was also undertaken independently by this Tribunal in the case of ONKYO SIGHT & SOUND INDIA PVT.LTD. vs Commissioner of Customs, Chennai [2019 (4) TMI 37 - CESTAT CHENNAI], wherein too the Southern Regional Bench of the Tribunal did not agree with the department’s stance for classification of the said products under CTH 8527 and had retained the CTH 8518 claiming the goods as Audio Frequency Amplifier along with Home Theatre Systems as multiple loudspeakers mounted in the same enclosure.
Conclusion - The imported multimedia speakers with USB playback and FM radio features are classifiable under CTH 8518 22 00 as multiple loudspeakers mounted in the same enclosure.
Appeal allowed.
-
2025 (4) TMI 1659
Seizure order - condition precedent of "reason to believe" under Section 110(1) of the Customs Act, 1962 - extension of the time limit for issuing a show cause notice under Section 124 of the Customs Act, 1962, without granting an opportunity to be heard - violation of principles of natural justice - HELD THAT:- List all these cases on 05th May, 2025 within top ten cases for consideration.
-
2025 (4) TMI 1608
Interest payable on CVD levied under Section 3 of the CT Act or on SAD levied under Section 3A of the CT Act - Constitutional validity of the Notification No. 18/2015-Cus dated 01.04.2015 - HELD THAT:- It is not inclined to interfere with the impugned judgment; hence, the present special leave petition is dismissed.
-
2025 (4) TMI 1607
Personal liability of petitioner for non-fulfilment of export obligations by the Company - Petitioner was appointed as an independent non-executive director of the Company in the year 1985 and was neither a promoter nor was involved in the day-to-day affairs of the Company - time barred SCN - HELD THAT:- This Court has in Pankaj Mehra case while relying on the judgments passed in Krishan Kumar Bangur case [2006 (4) TMI 256 - HIGH COURT OF DELHI] and Ved Kapoor case [2013 (9) TMI 706 - DELHI HIGH COURT], and on the judgment of the Supreme Court in the Santanu Ray vs. Union of India [1988 (8) TMI 106 - DELHI HIGH COURT], has held that unless specific allegations have been made which discuss the role of a director in the export performance, there is no question of finding the director personally liable for the same. The order impugned or even the Four O-I-O's have failed to fulfil this or show any adjudication on this aspect. In the absence thereof, the Respondent cannot now by, taking additional grounds and pleas, attempt to go beyond the Impugned Order or the Four O-I-O's.
There is another aspect which has to be taken into consideration. The export licences were issued during the time period of 1989-1991. Between 27.06.2002 and 11.09.2008, the Respondent issued multiple notices, summons, and orders concerning various Advance Licenses held by the Company. The Four O-I-O's were then passed on 08.09.2009 and 17.09.2009. No explanation has been provided by the Respondent in these Four O-I-O's for the delay in taking steps against the Petitioner or the Company. No reason has been urged before this Court either.
In any event, the Petitioner has stated that he was appointed as an independent non-executive director and that he had no role to play in the company's day to day affairs or export obligation or licences - The Respondent has also not disputed the fact either in the Impugned Order or in the Four O-I-O's that the Company went into liquidation in 1998, and that all documents and records were taken over by the Official liquidator. Thus, once a company goes into liquidation, all proceedings to be initiated against such company for the failure to submit documents in compliance with export obligations could only be initiated as is mandated in law. There is no evidence of this being done by Respondent either.
This Court therefore finds no merit in the contentions of the Respondent - Petition disposed off.
............
|
9911796707
