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Customs - Case Laws
Showing 61 to 80 of 38194 Records
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2024 (4) TMI 384
Levy of Customs Duty - bunkers lying inside the tanks of the vessel including the consumption between Bedi Port to Alang or not - transshipment of cargo - foreign –going vessel - Scope of SCN - HELD THAT:- Section 86(2) inter alia provides that any stores imported in a vessel or aircraft may with proper permission of the proper officer be transferred to any vessel as stores for consumption therein as provided in Section 87, which inter alia provides that imported stores may, without payment of duty be consumed on the vessel as stores during the period such vessel is a foreign going vessel. In order to appreciate the contention raised in the disputed matter, it is necessary to notice a basic premise that under Customs Act goods entering into India becomes imported goods and chargeable to duty under Section 12, unless they are exempt from payment of duty by virtue of specific provisions. It is significant to note that ship stores or spares thereof are not exempted from the operation of Section 12, but by virtue of Section 53 of the Act are allowed to be transited without payment of duty - Similar provision is found in Section 54 in respect of the goods imported into a customs port or customs airport but is intended for transhipment of goods.
In the present matter, it is found that the tug had originally arrived at Bedi ports from overseas port laden on mother vessel. Mother vessel was unable to complete the delivery of the said tug at Alang owing to requirement of deeper draught which was not available at the ship breaking yard at Alang. The said tug had arrived from foreign port, it was treated as a foreign –going vessel. There is no dispute over the fact that the said tug had not performed any costal voyage or undertaken any coastal operation. Therefore the fuel consumed during their transshipment from Bedi port to Alang cannot be considered as dutiable.
The impugned orders are not sustainable, hence the same are set aside - Appeal allowed.
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2024 (4) TMI 383
IGST exemption at the time of import of input materials by the appellant - Advance Authorization Scheme - HELD THAT:- It is not disputed that, had the appellant paid the IGST at the time of import they would have been eligible for input tax credit. Further, admittedly the goods have been used as inputs for manufacture of other goods which have undisputedly been exported to Hindalco. Admittedly, DGFT have issue ‘Export Obligation Discharge Certificate’ to the appellant. It is further noticed that it is not the policy of the Government to export taxes. It is further found that it is a case of contributory negligence on the part of Revenue also, as inspite of having registrated the Advance Authorisation and the entitlement of the appellant to exemption under Notification No. 21/2015–CUS, have allowed the exemption of IGST also as applicable under Notification No. 18/2015– CUS.
The situation being revenue neutral undisputedly, no case of malafide is made out against the appellant. In this view of the matter, following the ruling of the Apex Court in the NIRLON LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [2015 (5) TMI 101 - SUPREME COURT], the demand is not invokable by invokation to extended period of limitation.
The impugned order set aside - appeal allowed.
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2024 (4) TMI 382
Smuggling - Absolute confiscation of three gold bars and one small piece of remelted gold - Penalty u/s 112(a) and (b)(i) of Customs Act - failure to examine witnesses during adjudication proceedings - retraction of statements - HELD THAT:- Admittedly, there were no foreign markings on the gold seized and subsequently confiscated, being 1129 gms of gold. Further, admittedly the gold is comprised of bar/rods and bits and is not of standard shape, size and weight, as in the case of gold of foreign origin. It is further found that Revenue has not laid any evidence as to the smuggled nature of gold save and except assumption and presumption based on the statements of Mr. NPK & Mr. VVRK recorded at the time of seizure. As such statements have been subsequently retracted, the initial statements have lost their evidentiary value. It is further found that Revenue has failed to examine their witnesses during adjudication proceedings, as required under section 138B of the Act.
Further, the appellant – Mr. R. Rajasekhar who has claimed the ownership of the gold has led cogent evidence in the form of his business records and account statements in support of the gold in question. It is further found that such cogent explanation has not been found to be untrue but have been arbitrarily rejected by Revenue. It is also found that the explanation given by these appellants has been corroborated by the statement of smelters/melters both at Jaggayyapet and at Chennai. Accordingly, it is found that appellants have discharged the onus under section 123 of the Act.
The impugned orders set aside - appeal allowed.
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2024 (4) TMI 381
Refusal of grant of interest on the amount deposited during investigation, which was subsequently found to be refundable - applicability of principles of unjust enrichment on the principle amount of refund granted, which was deposited during the course of investigation - HELD THAT:- The issue in this appeal is squarely covered by the precedent order of this Tribunal (Allahabad Bench) in the case of M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], wherein also, the amount paid during investigation, subsequently found to be refundable pursuant to adjudication/ appellate order, was held to be amount deposited by way of Revenue deposit. It was further held relying on the ruling of Hon’ble Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT], wherein the Hon’ble Court examined the scope of Sec 243 of the Income Tax Act, which provides for interest on delayed refund and also examined Sec 35FF of Central Excise Act, which also provides for interest on delayed refund of amount deposited under Sec 35F (Pre-deposit) and observed that the provisions for grant of interest on delayed refund are pari materia under both the Acts.
The Apex Court, taking notice that the assessee/Sandvik Asia Ltd have suffered as their money was lying locked in litigation, withheld by the department for about 17 years without rhyme or reason, and further taking notice that the Revenue charges much higher rate of interest on the amount payable by the assessee, and whereas, pays interest at much lower rate on the amount refundable to the assessee, further observing that interest is compensatory in nature, was pleased to grant simple interest @9% per annum and failing which, to pay further interest @15% per annum.
Following the said ruling of Hon’ble Supreme Court, the Division Bench of this Tribunal in Parle Agro Ltd have allowed the interest @12% per annum from the date of deposit (amount paid during investigation) till the date of refund - Similarly, interest @12% was also granted by the Chandigarh Bench of this Tribunal in RIBA TEXTILES LTD VERSUS COMMISSIONER OF CE & ST, PANCHKULA [2020 (2) TMI 602 - CESTAT CHANDIGARH]. On appeal by Revenue, the said order was confirmed by Hon’ble Punjab & Haryana High Court, dismissing the appeal of Revenue following the ruling of the Apex Court in Sandvik Asia Ltd.
The amounts paid during investigation are to be treated as deposits as held by the Hon’ble Delhi High Court in TEAM HR SERVICES PRIVATE LTD. VERSUS UNION OF INDIA & ANR. [2020 (6) TMI 342 - DELHI HIGH COURT], wherein it has been categorically held that the amount deposited in the course of investigation is not in pursuance of any assessment and therefore, cannot be unjustly retained by the department. It was also held that the amounts deposited under protest at the time of investigation are not collected by the authorities with the sanction of law and therefore, the Government does not acquire any right to retain the said deposit, till the Government is held entitled in law by an authority or Court of law. Further, it was held that the assessee is entitled to interest @6% from the date of deposit till the date of interim order and further @7.5% till such amount is actually refunded to the assessee - Accordingly, learned Counsel for assessee has prayed for grant of interest @12% per annum from the date of deposit till the date of refund, in the interest of justice.
Principles of unjust enrichment - HELD THAT:- Hon’ble Madras High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, COIMBATORE VERSUS M/S. PRICOL LTD., THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL [2015 (3) TMI 735 - MADRAS HIGH COURT], wherein, under similar circumstances, amount was deposited under protest at the time of investigation, it was held that any amount that is deposited during pendency of adjudication proceedings or investigation is in the nature of deposit under protest and therefore, the principle of unjust enrichment does not apply - In the present case also, there is absence of fact on record that the appellant/assessee has received any amount from the foreign buyer, in addition to the amount of final invoice, pursuant to export of iron ore. Further, admittedly, the final invoice for export is dated 25.08.2008 and remittance was received before 13.03.2009 as per BERC. The deposit(s) were made in December 2009 - the doctrine of unjust enrichment is not attracted in the facts and circumstances of the instant case, as the appellant- exporter have discharged the onus under Sec 28D of the Act.
The impugned order modified directing to grant interest @6% per annum from the date of deposit till the date of refund - appeal of assessee allowed in part.
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2024 (4) TMI 380
Recovery of differential duty u/s 28(1) of CA for the imports made in all the Bills of Entry along with interest and penalties on Umesh Kumar and Rajat Arora - Goods in excess of the declaration in the Bill of Entry - goods not declared at all in the Bill of Entry - rejection of declared assessable value - main contention of Umesh Kumar is that he had only lent his IEC to Rajat Arora and was in no way concerned with the imports at all and therefore, the impugned order needs to be set aside.
Penalty on Umesh Kumar - HELD THAT:- There are no evidence to support the submission of Umesh Kumar that he is telling the truth and nobody else is telling the truth from the Oath Commissioner who certified his affidavit, the lawyers who filed the Writ Petition in the High Court on behalf of his firm and made submissions before the High Court, the CHA who filed the Bills of Entry and the bank which opened an account in the name of his firm and remitted large sums abroad on account of his firm. No evidence has been put forth to support such wild claims by Umesh Kumar. These arguments which form the grounds of Customs Appeal no. 51578 of 2018 filed by Umesh Kumar cannot be sustained and accordingly, the appeal deserves to be dismissed.
Penalty on Rajat Arora - Appeal was dismissed for non-prosecution - HELD THAT:- This appeal which was initially dismissed for non-prosecution was restored on an application by the appellant. Thereafter, it was listed on 36 occasions over a period of five years and five months. While some adjournments were on account of other exigencies, the main reason for the adjournments were the requests of the appellant either in writing or in person or through proxy counsel. On 24 August 2023, on the request of the counsel, the matter was adjourned to 12 October 2023 as a last opportunity. Even on this 36th listing of the appeal, none appeared for the appellant. Needless to say that 36 adjournments is more than a reasonable opportunity of being heard given to the appellant.
It is found from the records, when the goods were examined by the Customs and discrepancies were found, they were seized under a panchnama under section 110 in the presence of Deepak, G card holder of CHA M/s. Venstar Shipping Services and two independent witnesses. Quite logically, summons were issued to the proprietor of M/s. Aromatech and to the CHA for appearance on 29.9.2014 - the submission in this appeal that Rajat Arora has nothing to do with the import of goods or sales by M/s. Aromatech and that he was merely a freight forwarder holds no water. Having obtained an authorization from the proprietor of M/s. Aromatech and having appeared on his behalf in view of the summons issued to M/s. Aromatech, Rajat Arora cannot now turn around and say that he had nothing to with Aromatech. It is not the officers, but it is Rajat Arora who introduced himself into this case. Otherwise, a pure freight forwarder would have neither anything to do with the goods which are imported nor anything to do with the Customs clearance (which is the responsibility of the CHA).
The conclusion in impugned OIO is that M/s. Aromatech had mis-declared the imported goods which were liable to confiscation under section 111(m) and (o) of the Act. Consequently, penalty was imposed on Rajat Arora under section 112(a) - Rajat Arora introduced himself as the sales incharge of M/s. Aromatech in his statement made representing Umesh Kumar, proprietor of M/s. Aromatech with an authorization from him. He provided to the department such details of the business as the IEC, VAT registration with different states and the bank account details of M/s. Aromatech which are most unlikely to be available with anyone not intricately connected with the business of the importer. Therefore, there are no reason whatsoever to interfere with the penalty.
Appeal dismissed.
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2024 (4) TMI 379
Smuggling - Absolute confiscation of foreign currency seized from the Appellant u/s 113(d),(e) & (h) of the Customs Act - levy of penalty u/s 114 and equal amount under Section 13(1) of the Foreign Exchange Management Act (FEMA) 1999 - HELD THAT:- Admittedly Appellant was intercepted by the CISF officials outside the customs area. The Appellant had admittedly not approached the Airlines counter. This fact is supported by the no-show status of the ticket of the Appellant on the website of the airline. In the circumstances, the Appellant had not entered the customs area, nor there is any failure on the part of the Appellant to make appropriate declaration as required under Section 77 of the Customs Act. Under these circumstances, it is found that the provisions of Section 113(e) and (h) are not attracted. At best, there is only a case of intention or attempt to export, as the Appellant was approaching the airport with intention to travel outside India, he was also having a valid ticket.
The conclusion of the Adjudicating Authority agreed upon, that foreign exchange or currency is prohibited goods and therefore liable for confiscation. However, it is not agreed that it is correct to deny redemption of the same under Section 125 of Customs Act as the discretion is to be exercised having regards to all relevant facts and cannot be arbitrary. Considering the whole factual nature of seizure and mitigatory facts, this confiscation should not have been absolute. An intention to smuggle prohibited goods cannot be equated with attempt to export prohibited goods.
There is only venial breach of the provisions of Section 113(d) of the Act. In this view of the matter, the Order of absolute confiscation under Section 113(e) and (h) of the Act is set aside. However, it is held that the foreign currency in question is liable for confiscation under Section 113(d) of the Act, though the Order of absolute confiscation is set aside - it was further held that the seized foreign currency can be redeemed by the Appellant from whose possession it was recovered, on payment of redemption fine of Rs. 10 lakhs. Further, the penalty imposed under Section 114 of the Act is also reduced to Rs. 1 lakh, and penalty under Section 13(1) of FEM Act is set aside.
The appeal is allowed in part.
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2024 (4) TMI 378
Classification of imported goods - Narrow Woven Fabric Webbing - to be classified under Customs Tariff Item (CTI) or under CTI 58063200? - suppression of facts or not - extended period of limitation - Levy of penalty u/s 112 (a)(i) and u/s 114AA of CA.
Extended period of Limitation - first grievance of the Revenue is that the Commissioner had confirmed the demand invoking the extended period of limitation along with interest but had not imposed the mandatory penalty under section 114A - HELD THAT:- It needs to be pointed out at this stage that section 28 of the Customs Act is not the charging section. The charge of customs duty comes from section 12 according to which duties of customs shall be paid on the goods imported into or exported from India. However, if the duty which should have been paid was either not paid or was short paid, the remedy to recover such duties is available to the Revenue under section 28. This section also has an inbuilt limitation. Beyond the period of limitation although the charge would continue, Revenue will no longer have the remedy to recover the duties short paid. In the normal course, the limitation is of one year - In this case, although the Commissioner found that there was no collusion or willful mis-statement or suppression of facts, the respondent had fairly conceded the charge of duty and agreed to pay the same along with interest. It is for this reason, that the demand was confirmed for the extended period and not because any evidence that these factors were present. Insofar as section114A is concerned, it pertains to penalty and not a charge. Therefore, penalty cannot be imposed when it has been explicitly recorded that there was no collusion or willful mis-statement or suppression of facts which are essential to impose penalty under section 114A.
Confiscation of the goods under section 111(m) - HELD THAT:- The respondent did not contest the imposition of penalty and has already been paid the same. There are no ground to order confiscation of the goods which were not available. Holding that the goods were liable for confiscation under section 111(m) at this stage will be nothing more than a academic exercise as the penalty which would flow from such statement has already been imposed and has not been contested by the respondent.
Penalty under section 114AA - HELD THAT:- The background in which section 114AA was introduced. Nothing in the section indicates that it does not apply to import. It will apply to both imports and exports and the recommendation of the Committee was that it should be applied with due diligence and care so as to avoid any undue harassment to trade. The Commissioner did not impose any penalty under section 114AA because it can be imposed only if there is evidence that the person has not knowingly or intentionally made, signed or used or causes to be used, any declaration, statement or document which is false or incorrect. The Commissioner has also recorded that the goods which were imported by the respondent were examined and assessed by the department before allowing clearance - there are no reason to disagree with this finding of the Commissioner. Therefore, there is no case to impose penalty under section 114AA.
The impugned order is upheld and the appeal filed by the Revenue is dismissed.
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2024 (4) TMI 377
Confiscation - imported four Mercedes Benz cars - Failure to comply with provisions of Para 2 of Import Licensing Note of Chapter 87 - restricted goods or not - HELD THAT:- It is an admitted fact that the imported vehicles have been registered and have got certified by the Transport Department of Government of NCT of Delhi as complying with all the provisions of CMVR. Not only this, All India Tourist Permit & Certificates of Fitness have been issued by Delhi Government stating that the vehicle complies with all provision of CMV Act and Rules including Rule 126A of CMVR. These certificates by Government authorities of importer’s country amounts to substantive compliance of the impugned Import Licensing Note 2. The Note is therefore held to have been wrongly invoked and so is wrongly invoked the provisions of Foreign Trade Policy for ordering confiscation of imported cars.
It is also observed that it has been acknowledged in the Order-in- Original itself that there is no mis-declaration neither of description nor of classification nor even of quantity and value except the violation of procedural condition of policy. Confiscation of imported vehicle is ordered only because said violation is admitted. But it is opined that substantial benefit of duty exemption shall not be denied on account of mere procedural lapse. As already discussed, the intent of the policy condition as is held to have been violated stands fulfilled in view of the certificate issued by Transport Authority.
The order under challenge is not sustainable - Appeal allowed.
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2024 (4) TMI 340
Seeking release/return of gold bangle to the petitioner under the provisions of Section 110(2) read with Section 124 of the Customs Act, 1962 - SCN issued after mandatory period - HELD THAT:- In the instant case, it is not disputed that the seizure was made on 04.04.2023, which meant that the notice should have been issued prior to 03.10.2023, which however, was not the case, as the show cause notice was sent by speed post on 05.10.2023, after the mandatory period as per Section 110(2) had lapsed. The proviso allowing for extension of time was also not resorted to by the respondents. Section 124 as can be seen from above, prohibits the confiscation of any goods or imposing any penalty unless the owner of the goods or such person is given a notice and an opportunity of making a representation and also of being heard. The issuance of a show cause on time therefore, being fundamental in such matters, and the same having not been complied with by the respondents, is thus hit by Section 110(2) of the Act.
The relevance of the judgment PURUSHOTTAM JAJODIA, AMIT KUMAR, KM. UDYOG VERSUS DIRECTORATE OF REVENUE INTELLIGENCE AND ANOTHER [2014 (8) TMI 771 - DELHI HIGH COURT], cited by the petitioner is noted, as it essentially covers the case with regard to the sanctity of the 6(six) month period of show cause, and as such, no further discussion is required on the same.
The respondents are directed to release the gold bangle seized from the petitioner forthwith - Petition allowed.
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2024 (4) TMI 339
Validity of criminal complaint and related summons issued by the ACMM, New Delhi - Liability to pay differential customs duty with penalty - Violation of principles of natural justice - grievance of the petitioners is that without taking the cognizance or passing any specific orders for issuance of the summons and without taking into consideration the order passed by Principal Commissioner of Customs (Import), ICD, the petitioners have been wrongly summoned - HELD THAT:- Prima facie, the contentions raised by the learned counsel for the petitioners, on the basis of orders placed on record, appear to be of considerable merit. Considering the facts and circumstances of the case, it shall be appropriate that the aforesaid factual position is brought to the notice of the learned ACMM by the petitioners for consideration as the summons could not have been issued without any specific orders/directions for summoning the petitioners. However, in case the learned ACMM is of the opinion that the summons have been issued in accordance with law, petitioners shall be at liberty to file the proceedings afresh, challenging the summoning order in view of order dated 15.09.2023 passed by Principal Commissioner of Customs (Import), ICD. Learned ACMM shall also be at liberty to consider the order dated 15.09.2023 passed by Principal Commissioner of Customs (Import), ICD, which has been brought to the notice of this Court.
Also, the presence of the petitioners be exempted before the learned ACMM for 08.04.2024 on an application being preferred in this regard through counsel.
Petition disposed off.
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2024 (4) TMI 338
Denial of relinquishment of title of part (balance) goods lying in the warehouse - HELD THAT:- The Commissioner (Appeals) have erred by not taking notice of the subsequent amendments made in section 68 wherein proviso was inserted by Finance Act 2003 w.e.f. 14.05.2003 - The words of “rent, interest, other charges and penalties” appearing in the aforementioned proviso, before ‘penalties’ were omitted by Finance Act 2016 dt.14.05.2016.
Upon careful reading of section 68, as amended by the provision for relinquishment of title to warehoused goods inserted w.e.f. 14.05.2003 and the subsequent amendment made in the year 2016 to remove other charges and fees from its provisions, it is clear that the said proviso has extended the time available to the owner/importer of warehoused goods for relinquishment of title till or before an order for clearance of such goods for home consumption, as mentioned in clause (c) of section 68, has been made by the proper officer.
In the facts of the present case, the relinquishment of title was made by the appellant well in time, as permitted by the Statute as no order for clearance of goods for home consumption was made till that date - the issuance of SCN under section 72(1)(b) for warehoused goods cannot stop the time running and available to the owner to relinquish the title before the order for clearance of such goods for home consumption, as stipulated in section 77 read with section 68, is made.
The appellant has rightly relinquished the title to the goods during the pendency of the proceedings under section 72(1)(b) of the Act. It is further found that on the date of such relinquishment, no case of any offence committed by the appellant under this Act or any other Act for the time being in force is made out in the facts and circumstances - the appellant is entitled to the benefit of relinquishment of title as provided under section 68 of the Customs Act read with proviso. It is further found that appellant has already been imposed penalty of Rs.20,000/- under section 117 of the Act and the same has already been deposited vide CM No.109 dt.06.09.2019.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 337
Seeking clearance of imported goods - (second hand/used) viz., Puritan Bennett 7200 series ventilator, Drager Medical Babylag 2000 Neonatal Ventilator, Fresenius Medical 5008 Cordiax Dialysis Machines and Taema Alys Ventilator - prohibited goods or not - e-waste/hazardous waste - HELD THAT:- Admittedly, the goods, used medical devices, were found to be in good working condition having minimum residual life of 5 years or more as certified by the Chartered Engineer. Accordingly, in view of such admitted facts, the goods under import do not qualify in the definition of ‘waste’ as defined under Rule 3(38) of Hazardous and Other Waste Management Rules, 2016. It is further found that the impugned order is vitiated for lack of jurisdiction, which is a primary requirement and it is held that the Adjudicating Authority lacks jurisdiction to pass the order, as admittedly no SCN was served in accordance with section 124 of the Customs Act.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 309
Writ Petition - Invoking and encashing a bank guarantee - Demerger of business - bank guarantee for fulfillment of the duty amount - whether there is any obligation/liability of the petitioner to extend the Bank Guarantee which was furnished by the petitioner in regard to the imports - HELD THAT:- In our opinion, the jurisdiction of this Court under Article 226 of the Constitution is limited. We cannot delve on any issue in regard to the terms and conditions of the demerger and the inter se liability between the petitioner and respondent no. 2-KLL on the demerged business, including on the issues of the inter se liability on the imports in question, for which the bank guarantee was furnished. Equally there cannot be an exercise of jurisdiction to injunct the invocation of the bank guarantee, as it is a settled principle of law that the bank guarantee constitutes an independent contract between the bank and the party in whose favour the bank guarantee is furnished.
An injunction restraining the invocation of the bank guarantee can be granted in appropriate proceedings dealing with such contractual issues. Such reliefs can be granted applying the well-settled principles which need to weigh with the Court in injuncting the invocation of a bank guarantee. Certainly in the present facts, it is difficult for a writ court to consider the issues on invocation of bank guarantee and to record a finding of fact in that regard inter se between the petitioner and KLL.
Be that as it may, insofar the present proceedings are concerned, it appears that the adjudication proceedings now stands remanded to the Original Authority/ Assistant Commissioner, who is seized of the matter in pursuance of the order passed by the Appellate Authority, and who is now called upon to decide on the remanded issues including on the issue of the party required to furnish the bank guarantee. In such circumstances, in our opinion, it would be appropriate that in this regard we keep open all contentions of the parties, to be urged before the Assistant Commissioner/Original Authority, before whom the proceedings are pending including on the issue of extension of bank guarantee either by the petitioner or respondent no. 2-KLL. We may also observe that unless the Assistant Commissioner so decides, the bank guarantee needs to be renewed for a reasonable time.
Thus, we dispose of this petition by the following order: Let the bank guarantee in question be extended by the petitioner for a period of one month from today.
Petition stands disposed of in the aforesaid terms.
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2024 (4) TMI 252
Classification of imported goods - goods declared as “Nylon knitted fabric” Or “Net fabrics” - Tribunal found that the goods have been found to be not Knitted fabric but is “Net fabric” - imposition of redemption fine for this consignment u/s 125 of the CA, 1962 is upheld - mis-declaration was not willful with intention to evade customs duty - Penalty imposed on the appellant was also reduced - HELD THAT:- On perusal of the Office Report, it is noted that nobody has entered appearance on behalf of the appellant, despite service of notice on the appellant on discharge of the appellant’s counsel.
Thus, the appeal is dismissed for non-prosecution.
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2024 (4) TMI 251
Seeking clearance of the goods - High Seas Sale agreement stands cancelled - default on the part of respondent No. 6 in making payments - It is contended that the petitioner has now stepped into the shoes of respondent No. 6 and has become entitled to seek amendment of the bill of entry and/ or to file a fresh bill of entry to clear the goods - HELD THAT:- On a query made by us, Mr. Nankani has submitted that there are no transactions of the petitioner with respondent No. 6, except the present High Seas Sale which too stands cancelled. It is submitted that except for this contract, the petitioner has never dealt with respondent No. 6. Respondent No. 6 who is represented by Mr. Gohil, learned counsel states that respondent No. 6 has no objection whatsoever for the goods being cleared by the petitioner.
Thus, in our opinion, considering the request which is made by the petitioner by its letter dated 15 December, 2023 addressed to the Deputy Commissioner of Customs (Imports), JNCH, Nhava Sheva (supra), it is appropriate that the application of the petitioner for clearance of the goods either by permitting amendment of bill of entry or by filing of a fresh bill of entry as the law may permit, needs to be decided by the concerned designated officer.
We accordingly permit the petitioner to place on record of the designated Customs Officer, a proper application raising all contentions as may be permissible in law which the petitioner state would be filed within two days from today.
The petition stands disposed of in the aforesaid terms.
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2024 (4) TMI 250
Maintainability of petition - alternative remedy of appeal - Validity Of show-cause notice - No opportunity of personal hearing - violation of principles of natural justice - diverting cut and polished diamonds - without following the procedure prescribed under the Special Economic Zone Act, 2005 (‘the SEZ Act’) - HELD THAT:- We are of the opinion that though the petition is maintainable under Article 226 of the Constitution of India, the petitioner is unable to point out as to whether the notices were served upon him by the respondent-Assessing Officer. In the impugned order, it is categorically mentioned that though the notices were served upon the petitioner, the petitioner neither attended the hearing nor submitted any request letter for adjournments on four occasions whereas, in the memo of the petition, it is stated that no such notices were served upon the petitioner. Thus, it involves disputed questions of facts as to whether the notices were served upon the petitioner or not by the respondent-authority which can be considered by the appellate authority while examining the record. We would therefore not like to entertain this petition on ground of not providing opportunity of hearing to the petitioner.
We therefore do not entertain this petition as there is alternative efficacious remedy available under the provisions of the Customs Act to be availed by the petitioner and accordingly, without entering into the merits of the matter, the petitioner is relegated to avail such alternative efficacious remedy with a liberty to raise all the contentions which are raised in this petition before the appellate authority.
We make is clear that the time spent by the petitioner before this Court in pursuing this petition may be considered as bona fide by the appellate authority in case of any delay which may be considered by the appellate authority to condone the delay, if any, in preferring the appeal by the petitioner within a reasonable time from today. The petition is accordingly dismissed.
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2024 (4) TMI 249
Import of Baggage - opportunity to declare the contents of their baggage to the proper officer - Challenged the Order passed for Confiscation and detention - Period of limitation for presenting statutory appeals - HELD THAT:- On examining the orders impugned herein, I find that the dispute turns on questions of fact. Moreover, it appears that the detentions and confiscation challenged herein relate to action taken against a group of about 148 persons. Therefore, it is appropriate that the respective petitioner files a statutory appeal. Since these writ petitions were filed within the period of limitation, the time taken in prosecuting these petitions is liable to be excluded for purposes of computing the period of limitation for presenting statutory appeals.
Consequently, these writ petitions are disposed of by granting leave to the respective petitioner to present statutory appeals. If such appeals are presented within a maximum period of ten days from the date of receipt of a copy of this order, the appellate authority is directed to receive and dispose of such appeals on merits without going into the question of limitation. This order will not stand in the way of the respondents proceeding with adjudication pursuant to the detention orders.
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2024 (4) TMI 248
Valuation of export goods on which duty has to be paid - iron ores - modification of transaction value between the buyer and seller based on the test report of the chemical examiner of CRCL when the price should be finalised as per the test report of CIQ as per the agreement between the buyer and seller - inclusion of additional consideration for sale.
HELD THAT:- The value for the purpose of determining the duty is the transaction value subject to four conditions (a) that the sale is for delivery at the time and place of exportation; (b) buyer and seller are not related; (c) price is the sole consideration for sale; and (d) subject to other conditions which may be specified by the Rules. The proviso to this section indicates that in case of imported goods, the value of commissions and few other charges have to be included. However, it does not provide for inclusion of commissions in case of exports.
The Customs Export Valuation Rules do not provide for addition of any amount to the negotiated price (Transaction Value) or any reduction from it where the parties are not related and the price is at arm’s length. If the transaction value has to be determined as per the contract based on the test report of CIQ, it has to be determined so. The test report by CRCL is not relevant to determining the transaction value. It is not for the department to substitute the requirement of test report of CIQ in the contract between the importer and its overseas supplier with the test report of CRCL.
The export price is the transaction value subject to adjustment as per the clause in the contract between the parties. It is also found that it is not the case of Revenue that the appellant received anything over and above the transaction value or the amount mentioned in the final invoice on the basis of test report i.e. certification of quantity and quality at the discharge port, on the basis of report of the mutually agreed laboratory.
Reduction of US$16 per MT from the invoice - HELD THAT:- Any compensation paid for any purpose under some other contracts, needless to say, cannot modify the transaction value in this contract. Therefore, the transaction value must be determined without deducting this amount of US$ 16 per MT. Since this compensation has been deducted from the invoice value, it must be added to determine the correct FOB value of the goods.
The impugned order is accordingly modified to the extent that the FOB value shall be the transaction value as finalised between the appellant and its overseas buyer but without deducting the amount of US$ 16 per MT which was the compensation paid by the appellant with respect to some past transactions. Since the invoices have deducted this amount, the same needs to be added so that the correct FOB value is determined - There is no case to impose any penalty on the appellant and accordingly all penalties are set aside.
The matter is remanded to the Adjudicating Authority for the limited purpose of arithmetical calculation of the duty - appeal allowed.
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2024 (4) TMI 247
Refund claim - Special Additional Duty paid at the time of import of goods under Notification No.102/2007 - Original authorities rejected the refund claim observing that the description of the goods in the bill of entry does not match with the description of goods in the sales invoices - HELD THAT:- The appellant has described the goods as ‘MS Plates’ and ‘HR Sheets’ for the reason that they are known as such in the market on the basis of variation in thickness. I am convinced with the explanation put forward for the variation in the description and is satisfactory. Further, the appellant had produced Chartered Accountant certificate as well as the correlation statements along with the refund claim. In such circumstances the original authority ought not to have denied the refund claim. The Tribunal in the case of Ganesha Impex Vs. Commissioner of Customs (Sea-Import),[2019 (3) TMI 1949 - CESTAT CHENNAI] had occasion to consider a similar issue. The Tribunal held that when the documents established that of the goods imported co-related with the invoices, the refund should not be denied on some minor variation in describing the goods.
The Hon’ble jurisdiction of High Court in the case of P.P. Products Ltd., Vs. Commissioner of Customs, [2019 (5) TMI 830 - MADRAS HIGH COURT] held that when the CA certificate is produced the same cannot be brushed aside without proper reason. In the present case the adjudicating authority has not put forward any finding as to disregard the CA certificate. In such circumstances the refund claim ought to be allowed. I hold that the appellant is eligible for refund.
The impugned order is set aside. The appeal is allowed with consequential relief if any.
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2024 (4) TMI 246
Valuation of goods transacted between related persons - Royalty addition - Addition to assessable value to the extent of 5% of ‘net sale price’ of ‘precipitated calcium carbonate’ - remand jurisdiction of appellate authority to issue directions to ‘proper officer’ - No notice issued u/s 28 of Customs Act, 1962 - cross-border trade transaction - HELD THAT:- From the absence of show cause notice, as well as submission on behalf of appellant, it is again clear that such imports that are subject to Special Valuation Branch (SVB) oversight are, invariably, kept provisional for finalization to be undertaken upon completion of ascertainment by Special Valuation Branch (SVB). Therefore, at this stage, the quantification ordered by the first appellate authority pertains to finalization under section 18 of Customs Act, 1962 devolving on ‘proper officer’ that Deputy Commissioner, Special Valuation Branch (SVB) is not. As appeal has not been directed before first appellate authority against order of such ‘proper officer’, it transgresses the remand jurisdiction of such appellate authority to issue directions to ‘proper officer’ who has yet to complete the process of finalization. Direction to the ostensible ‘original authority’ is an exercise in futility and direction to the ‘proper officer’, and the statutorily empowered potential ‘original authority’, is beyond appellate jurisdiction of Commissioner of Customs (Appeals) before whom the order impugned did not challenge a ‘yet to occur’ assessment.
In these circumstances, it behoves us to focus on the competence of the reviewing authority to have gone before the first appellate authority against the opinion of the Deputy Commissioner, Special Valuation Branch (SVB) that there was no need to add the ‘royalty’ to assessable value. Section 128 of Customs Act, 1962 stands on two limbs – decision being that of officer below the rank of Commissioner of Customs and from the decision causing a grievance. The author of the order impugned before the first appellate authority is certainly subordinate to Commissioner of Customs.
However, as pointed out above, that opinion was not even persuasively binding on the ‘proper officer’ who, as assessing authority and obliged to issue speaking order, is required to arrive at assessment uninfluenced, even if not uninformed, by external sources. Therefore, there was no cause for grievance to initiate appellate remedies. Such opportunity would have presented itself after finalization. Implicit in acknowledgement of appellate remedy against ‘advisory’ of Special Valuation Branch (SVB) is another round of appeal through the first appellate authority on the same goods and facts which does not sit well with the principle of comety of courts. The appeal before the first appellate authority was, thus, premature. This aspect of disposal of the appeal within the scheme of Customs Act, 1962 and the role of Deputy Commissioner, Special Valuation Branch (SVB) within it was not evaluated by the Commissioner of Customs (Appeals).
Thus, we set aside the impugned order and restore the appeal to first appellate authority to dispose off the pleas of the appellant- Deputy Commissioner in accordance with the scheme of Customs Act, 1962. Appeal is, thus, allowed by way of remand.
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