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Customs - Case Laws
Showing 61 to 80 of 38170 Records
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2024 (4) TMI 187
Classification of imported goods - Quicklime - Tribunal held that the imported goods ‘quicklime’ would be appropriately classifiable under Customs Tariff Item 2522 10 00 and not as ‘other’ under the Customs Tariff Item 2825 90 90, as claimed by Revenue - HELD THAT:- We are not inclined to interfere with the judgment and order passed by the Custom Excise Service Tax Appellate Tribunal, West Zonal Bench at Mumbai on 20-10-2023 in Custom Appeal Nos. 85377/2020 and 86172/2021 in Final Order No.A/87057-87058/2023.
The Civil Appeals are dismissed accordingly.
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2024 (4) TMI 186
Application for discharge u/s 245(2) of CrPC - learned Magistrate dismissed the application for discharge - High Court held that in the absence of any material the cognizance taken by the learned Magistrate is impermissible - HELD THAT:- We are not inclined to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (4) TMI 185
Petition against dismissal order of Learned Single Judge - Appeal filed belatedly after the period of condonation in terms of Section 128 of the Customs Act - HELD THAT:- While the approach of the appellant before this Court itself was more than seven years after the order of appellate authority, the appellant did not even approach the First Appellate Authority within the time permitted under the Customs Act. It is trite that when the statute prescribes a period of limitation for approaching the appellate authority and the assessee does not approach the appellate authority within the time granted under the statute, the scheme of finality accorded to the statutory orders cannot be ignored by the High Court when exercising the jurisdiction under Article 226 of the Constitution of India. That apart this Court cannot also ignore the long delay in approaching this Court under Article 226 of the Constitution of India. Thus in any view of the matter, we see no reason to interfere with the judgment of the Learned Single Judge. The writ appeal fails and is therefore dismissed.
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2024 (4) TMI 184
Classification of goods - Levy of penalty - Bill of Entry for clearance of ‘Sweet Pearl P200’ classified under 29054900 - Revenue reclassified the goods under 21069060 - Burden Of proof - HELD THAT:- We find that it was Revenue which disputed the classification declared by the appellant and hence, the initial burden is on the Revenue to disprove the case of the appellant. The burden is also on the Revenue to justify the reclassification made under 21069060. From the impugned order, we find that the Revenue sought opinions of two experts i.e. EIA and Central Food Laboratory, Mysore but they appear to have been not considered. It is the further case of the appellant that it has been classifying Maltitol crystals / sweet pearl under the very same CTH 2905 4900 since 2004 and hence, as ruled by the Hon'ble Supreme Court in a catena of decisions including the following cases, when the Revenue challenges the classification declared by the importer, the onus is always on the Revenue to establish that the item in question falls under the taxing category as claimed by them
A perusal of the impugned order reveals that it is the case of the Revenue that the goods in question being artificial sweetener and a food ingredient used in the manufacture of chewing gum merits classification as a food flavouring material under CTH 2106. Sweet pearl is a flavour enhancer but the impugned order does not discuss the properties of a flavour enhancer and how the goods in question fit into the said description.
Thus, we are of the clear view that the classification declared by the appellant deserves to be upheld since Revenue has not justified reclassification of the impugned goods under CTH 2106 and therefore, we set aside the impugned order and allow the appeal with consequential benefits, if any, as per law.
Revenue has also preferred an appeal against the impugned order on the ground that the adjudicating authority has erred in not imposing equal penalty u/s 114A of the Customs Act, 1962, since the adjudicating authority has confirmed the duty demand u/s 28 of the Customs Act, 1962. However, as we have set aside the duty demand as confirmed by the original authority vide impugned order, we do not see any merit in the Revenue’s appeal for imposing equal penalty in terms of sec. 114A. Therefore, the department’s appeal is dismissed.
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2024 (4) TMI 183
Misdeclaration of value of goods - Confiscation of goods - Redemption fine - Imposition of penalty - Whether, the Assessable Value for the third machines can be revised on account of the compensation paid by the foreign supplier - HELD THAT:- The appellant had ordered two pieces each of two different machines and the foreign supplier by mistake and sent three pieces of one machines and one piece of the other machine. We find that the it is undisputed fact that the importer had no knowledge about the mistake committed by the foreign supplier. Thus, it can be seen that the importer had in fact declared Assessable Value in excess of the value of goods actually received by US $ 20,000/- as a result of a mistake committed by the foreign supplier. In this background, we do not think that there was any malafides on the part of the importer.
Following the decision in BANSAL INDUSTRIES [2004 (1) TMI 250 - CESTAT, CHENNAI], we do not find that there is any merit in invoking Section 111 and 112 in the instant case. Consequently, the confiscation of goods, imposition of redemption find and imposition of penalty u/s 112 cannot be sustained and the same is set aside.
As regard, revision of Assessable Value for one machine from US $ 39,000/- to US $ 38,000/-, the said aspect has not been challenged by appellant in their appeal memorandum nor are there any assertions in their written submission. Therefore, the said issue has not been disputed by appellant.
Appeal is allowed in above terms.
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2024 (4) TMI 182
Seeking Permission to abandon the goods and remission of duty - Bills of Entry declaring the goods as ‘Aluminium Alloy Ingots’ but shipment contained Stone Chips - Claim for re-credit duty, debited from Advance Authorisation Scrips - Abandoned the goods - confiscation - redemption fine - Penalty - HELD THAT:- In the present case, the goods having been abandoned there is no situation of redeeming the goods. The Adjudicating Authority has ordered for confiscation of the goods only because the goods have been abandoned. In such situation, the goods are taken into possession by the Central Government and disposed of in accordance with law. The goods can be taken into possession only if confiscated. The Adjudicating Authority has ordered for confiscation only to facilitate the custody of goods to the Central Government. The Commissioner (Appeals) has misconceived the provisions under Customs Act, 1962, that as there is confiscation of goods, redemption fine has to be imposed. When the appellant has abandoned the goods, there is no requirement to give option to redeem the goods. When the goods are not being redeemed and abandoned, the goods have to taken custody by the Central Government. In such situation of confiscation, imposition of redemption fine does not arise. Again, even though Adjudicating Authority has imposed penalty of Rs.30,000/-, there is no finding rendered as to the offence committed by the importer. Instead, it has been categorically stated that no offence is committed by the importer. The appellant has paid the penalty and does not contest the same. So, the observation made by the Commissioner (Appeals) that since goods have been confiscated and penalty imposed, redemption fine has to be imposed is erroneous. Further, there is no appeal filed by the Department against the order of the Adjudicating Authority who refrained from imposing redemption fine. The Commissioner (Appeals) ought not to have imposed redemption fine in an appeal filed by the importer.
Thus, the redemption fine of Rs.19 Lakhs imposed by the Commissioner (Appeals) is not justified and requires to be set aside, which I hereby do.
Appellant has requested for re-credit of the duty - The appellant having not imported Aluminium Alloy Ingots is not liable to pay such duty. The appellant had placed order for Aluminium Alloy Ingots and they have not received the goods. However, the duty was debited in the Scrips. The appellant is therefore eligible for re-credit of duty that in the Advance Authorisation Scrips.
The impugned order is modified to the extent of setting aside the redemption fine and also setting aside the order directing re-credit of duty applicable to Stone Chips. The appellant is eligible for re-credit of duty that has been debited and applicable to Aluminium Alloy Ingots. It is made clear that as the appellant has not contested the penalty, the same is not disturbed.
The appeal is allowed in above terms with consequential reliefs, if any, as per law.
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2024 (4) TMI 181
Smuggling - Absolute Confiscation - levy of penalties - 2060 numbers of green coloured refrigerant gas cylinders believed to be containing HCFC Gas - 5280 packets of Mosquito Repellents - 4800 pieces of Ladies garments - old and used TATA Trucks, which were allegedly used for transportation of the said goods - burden to prove - HELD THAT:- It is found that the mosquito repellents and ladies garments in question are of foreign origin or smuggled one has to be proved by the Revenue. However, the Revenue has failed to prove that the same are smuggled in nature. From the investigation conducted, it is not forthcoming as to how the Revenue has alleged that the impugned mosquito repellents and ladies garments are smuggled ones. Further, the above said items are not notified items under Section 123 of the Customs Act, 1962 - As the Revenue has failed to establish the ‘smuggled’ nature of the goods in question, the impugned mosquito repellents and ladies garments cannot be confiscated.
HCFC gas confiscated from the godown of the appellant - it is the allegation of the Revenue that the same is a restricted item and was manufactured only in China - HELD THAT:- It is found that the goods in question are ‘restricted’ items, but not ‘prohibited’ items. In these circumstances, the onus lies on the Revenue to prove that the said goods were smuggled in nature, which the Revenue has failed to prove. Merely saying that the goods in question can only be manufactured in China cannot form the basis for absolute confiscation of the said goods recovered during the course of investigation. Therefore, we hold that the said HCFC gas cannot be confiscated.
The order of confiscation of the goods in question is set aside - As the goods in question are not liable for confiscation, therefore, no penalty can be imposed on the appellants.
The impugned order set aside - appeal allowed.
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2024 (4) TMI 180
Levy of penalty on Customs Broker - Accepting documents without proper authorization - The Department argued that this constituted abetment of the export of prohibited goods. - Smuggling - Pseudoephedrine and Ketamine Hydrocholoride - concealment of prohibited drugs in cartons containing Pomegranate fruits - violation of the provisions under CHALR / CBLR Regulations - violation of provisions of Customs Brokers Licensing Regulations - HELD THAT:- On perusal of the impugned order, the original authority has recorded findings for imposing penalty on appellant viz. G. Seenivasan who is the CHA. It has been categorically stated by the adjudicating authority that there is no evidence to show that the appellant G. Seenivasan had knowledge that the cartons contained prohibited items. Thus, it can be seen that the investigation has not brought out that appellant Sri G. Seenivasan had any knowledge about the attempt to export the contraband items. In such circumstances, the penalty imposed u/s 114 (i) of the Customs Act, 1962 is not justified.
Violation of provisions of Customs Brokers Licensing Regulations - The proceedings having been initiated under CBLR Regulations for revoking the license and the license having already been revoked, I am of the view that the penalty imposed u/s 114 (i) of the Customs Act, 1962 is not legal and proper, and harsh on the appellant.
Penalty imposed on the appellant - The penalty of Rs.50,000/- has been imposed by the Department on Shri S. Murugaram. Since it is clearly brought out that Sri S. Murugaram had no knowledge that contraband items were concealed in the cartons, I find that the penalty of Rs.50,000/- imposed on him is liable to be set aside.
Thus, the impugned order to the extent of imposing penalty on the appellant viz. G.Seenivasan and Rs.50,000/- on the appellant viz. S. Murugaram u/s 114 (i) of the Customs Act, 1962 is to be set aside.
The appeals are allowed with consequential relief, if any.
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2024 (4) TMI 179
Classification - Rate of duty - Goods claimed to be ‘automatic data processing machine’ in heading 8471 - Bureau of Indian Standards (BIS) - shipping marks, viz., Emotix Miko’ - re-classified to take advantage of lower rate of duty - differential duty - confiscation - interest - Import goods as ‘plastic toys with motor’ corresponding to tariff item 9503 0030 - HELD THAT:- It is on record that the imported goods consists of components that do not, by a long stretch, find fitment within products of chapter 95 of First Schedule to Customs Tariff Act, 1975. There is no finding in the impugned order that the composition of the impugned goods is not a combination of a central processing unit and units for input and output. We are informed, without rebuttal, the there is some hardware within that processes oral query for response as sound, motion or image and, therefore, not exactly beyond the scope of coverage within the claimed heading. In the absence of such controverting within rule 1 and rule 3 of General Rules for Interpretation of the Import Tariff in Customs Tariff Act, 1975, a finding of conformity of description corresponding to the proposed tariff item that is not followed by resort to rule 3 of General Rules for Interpretation of the Import Tariff in Customs Tariff Act, 1975 places the exercise by the adjudicating authority in serious jeopardy and motivated by intent to deny duty benefits any which way.
It is admitted that MIKO 1 was declared as ‘toy’ but there is no ground to hold fast to the conviction that a subsequent variant, even if conforming to another description, must continue to be classified against an erroneous tariff item. The impugned order has referred to the rejection of application for registration of MIKO 2 under Electronics and Information Technology (Requirements of Compulsory Registration) Order by Bureau of Indian Standards (BIS) owing to expert opinion of Ministry of Electronics and Information Technology (MeitY). It is on record that the registration was subsequently incorporated. It is also contended that MIKO 2 and MIKO 3 are more akin than MIKO 1 is to MIKO 2. None of this alters the onus that devolves on customs authorities in terms of the decisions of the Hon’ble Supreme Court in re HPL Chemicals and in re Hindustan Ferodo. The lack thereof places the findings in the impugned order in serious jeopardy.
The description of the imported goods is not just ‘toys’ made of plastic. That it has capabilities endowed by technological development does set it apart from a toy and, even if does conform to toy, it was necessary to show that the goods do not contain the essentials enumerated in tariff item 8471 4190 of First Schedule to Customs Tariff Act, 1975. Such finding is glaringly deficient in the impugned order. The classification adopted in other countries may not be a guide for assessment in India when the dispute has its genesis in perceived evaporation of duty; it is inevitable that identical duty rates marginalizes declaration relevance. Reliance thereto will not suffice for the purpose.
We fail to perceive the dearth of complexity that may justify shift of classification from within heading 8471 to heading 9503 of First Schedule to Customs Tariff Act, 1975. The findings are conjectures and assumptions that are not backed by authoritative texts, notes or definitions in law or even logical sequencing. These are not tenable in a classification exercise.
The impugned order has not established the primacy of heading 9503 of First Schedule to Customs Tariff Act, 1975 nor the inappropriateness of heading 8472 of First Schedule to Customs Tariff Act, 1975. The rules of engagement enunciated by the Hon’ble Supreme Court for altering classification has not been followed by the adjudicating authority. The facts, indelibly clear, does not controvert conformity with the essential requirements set out in note 5(A) in chapter 84 of First Schedule to Customs Tariff Act, 1975 There is no finding that the impugned goods, by incorporating or working in conjunction with ‘automatic data processing (ADP) machines’, performs the function of ‘toys’ which should be the consummation of resort to note 5(E) in chapter 84 of First Schedule to Customs Tariff Act, 1975 and such finding is well-nigh impossible in the absence of any authoritative guidance on ‘toys’ and its intended functions. A thought process conditioned by one’s own childhood or parenting experience is not a tenable substitute. Even if this note comes into play insofar as the impugned goods are concerned, the impossibility of appending ‘toys’ renders the claimed classification to be the only one remaining in the ring. Consequently, the classification claimed must remain.
The impugned order is set aside to allow the appeal.
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2024 (4) TMI 178
Valuation - Imported 20 MT of Aluminium powder 99.7% - enhancement of value - duty paid under protest - Non speaking order - appellant waived the show cause notice as well as Personal Hearing - HELD THAT:- There is no detailed discussion as to how the enhancement has been arrived at by the assessing authority. For this reason we are of the considered view that the matter has to be remanded to the adjudicating authority for re-considering the assessment of the imported goods. The appellant is at liberty to furnish details of contemporaneous imports before the adjudicating authority who shall look into these evidences also.
In the result, the impugned order is set aside. The appeals are allowed by way of remand.
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2024 (4) TMI 127
Jurisdiction - proper officer to issue SCN - Valuation of imported goods - power tools and its parts and accessories - mis-declaration of value - HELD THAT:- The view taken by the Division Bench of this Court in the case of LAXMI ORGANIC INDUSTRIES LTD VERSUS UNION OF INDIA, THROUGH ITS SECRETARY, DEPARTMENT OF REVENUE & ORS. [2023 (12) TMI 1157 - BOMBAY HIGH COURT], needs to be followed in the present proceedings inasmuch as, in the present proceedings, the Show Cause Notice is dated 31st December 2020, which was issued during the COVID-19 Pandamic. For such reason, the Show Cause Notice could not be taken forward. In the meantime, the Supreme Court pronounced its decision in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. What has been laid down by the Supreme Court in such decision is the law of the land under Article 141 of the Constitution of India. The adjudicating officer is thus bound by the law as laid down by the Supreme Court in the said decision. The Petitioners can certainly raise such plea placing reliance on the said decision of the Supreme Court, and in that case it would be incumbent for the adjudicating officer to consider the applicability of the said decision, and if so applicable, abide by the said decision in adjudicating the said Show Cause Notice dated 31st December 2020.
The Petition is accordingly disposed of directing the Respondents to adjudicate the Show Cause Notice dated 31st December 2020 as expeditiously, as possible, and, in any event, within a period of six months from today. As the show cause notice is issued more than three years back, there cannot be any further delay in the adjudication of the same.
Petition disposed off.
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2024 (4) TMI 126
Levy of penalty on the Directors of the Company - Valuation of imported goods - import of luxury vehicles by misusing the Transfer of Residence (TR) Scheme - re-determination of value - HELD THAT:- The Custom House found that the car import violated the EXIM policy and the value declared was also low. They hence cleared the goods only after enhancing the value, denying concessional rate of duty under the TR facility and collecting fine and penalty for the violations noticed. The goods after clearance were purchased by the Appellants. As per post clearance investigation by DRI the car was once again subject to adjudication proceedings based on fresh violations that were allegedly unearthed by DRI.
M/s Mothers Pride is a limited company and is an independent legal entity. The learned Original Authority has not clearly brought out any charge against the appellants other than that they were involved in the purchase of the car. There is no allegation that the Appellants were the importers of the impugned car. The main charge and the action that follows in the Order in Original was mainly against M/s Mothers Pride. Since they are not before me, the issues relating to valuation, duty, interest and penalty pertaining to them are not of concern in this appeal.
The fact that the car was not in the possession of the importer for one year was noticed by the assessing officers at the time of import itself and penal action taken for the same. Hence a subsequent penal action does not survive for the same FTDR Act violation. Moreover, once the penalty was paid and the goods cleared for home consumption, the restrictions of sale etc. which would have been present had the goods been cleared under TR concession no longer holds good. In such a situation the Appellant cannot be said to have infringed any provision of the Customs Act, even if they had due to ignorance, participated in procuring the impugned car for the company and sought to cloak the purchase under a veil of legalese involving a car loan.
The impugned order in as much as it relates to the penalty imposed on the Appellants is set aside - Appeal allowed.
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2024 (4) TMI 125
Levy of penalty u/s 114(iii) and 114AA of the Customs Act, 1962 on Customs House Agent (CHA) - Misuse of signature by an employee of the CHA - attempt to avail fraudulent drawback benefits - HELD THAT:- There is no dispute as regards fact of duty drawback claimed by the exporter and there is also no dispute that all the four shipping bills were filed by the appellant-CHA, though the appellant has claimed that it was one Suresh, his ex-employee who has used / misused his name by filing the shipping bills. But however, there is no evidence placed in this regard.
Here in the case on hand, the appellant is found to have blamed his ex-employee, the another person for misusing his signature / office seal but, however, no supporting document is filed and hence, the initial burden stands undischarged.
Section 114 empowers levy of penalty for attempt to export goods improperly and it is not specific to the exporter alone. In the case on hand, since the exporter had accepted the Order in Original by not challenging the same, the fact of improper export stands proved and the appellant’s role being a CHA who filed shipping bills, thus becomes ‘any person’ u/s 114 - There is also no rebuttal as to the finding of the Revenue authorities that his license had already been suspended on earlier two occasions which should have been taken seriously by the appellant to prevent further misuse and the same should have acted as a deterrent but, however, the appellant appears to have allowed the further misuse of his CHA license which has resulted in filing the shipping bills in question.
There are no infirmity in the order of the first appellate authority - appeal dismissed.
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2024 (4) TMI 124
Levy of redemption fine and penalty - valuation of imported goods - brass scrap - import of brass scrap in the guise of aluminium scrap - enhancement of value - HELD THAT:- On perusal of the impugned order, there is no market survey conducted by the adjudicating authority. However, it has to be noted that the appellant is not contesting the enhancement of value of the goods. Further, there is no evidence put forward by department to conclude that there was any deliberate intention on the part of appellant to import brass scrap. The purchase order and other documents show that the importer had placed the order only for import of Aluminium scrap. Due to the urgent requirement, the appellant sought for release of the goods. This does not indicate that they had placed order for import of brass scrap.
The redemption fine and penalty imposed are on the higher side. The redemption imposed is reduced to Rs.2,50,000/- and the penalty imposed is reduced to Rs.20,000/-. The impugned order is modified to the extent of reducing the redemption fine and penalty - Appeal allowed in part.
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2024 (4) TMI 123
Denial of benefit of N/N. 46/2011-Cus dtd. 01.06.2011, as amended - concessional rate of Customs duty benefit on the basis of county of Origin Certificate - Malaysian Origin goods - HELD THAT:- In the present disputed matter appellant has claimed the goods to be originating in Malaysia as provided under Rule 5 of the AIFTA Rule i.e. not wholly obtained or produced. In respect of all the subject consignments, the appellants produced certificate of origin in Form A-1 issued by the Ministry of Internal Trade and Industry (MITI) of Government of Malaysia showing the Regional Value content of the subject goods as more than 35% +CTSH . However case of the department is that intelligence gathered by the DRI officers suggested that the said RVC was misstated as the overseas suppliers and goods also not origin of Malaysia.
It is also noticed that in the disputed matter the Revenue without getting confirmation from the Malaysia Government about their doubt of authenticity of the country of origin certificate and activity of respective suppliers of the goods proceeded to deny the benefit in respect of COOs issued by Suppliers to the appellants is not genuine and consequently denied Exemption Notification No. 46/2011, dated 1-6-2011 and consequential demand was confirmed - as per the documents submitted by the appellants it prima facie appears that there is no doubt on the authenticity of the country of origin certificate issued and import of the goods by Appellants on the basis of said COOs.
However, to clear any doubt it is the burden on the department to get the verification from the Malaysia Government regarding authenticity of Certificate of origin which has not been discharged by the department in the present matter. Without checking the authenticity of certificate of origins, the certificate of origins cannot ne discarded and on that basis benefit cannot be denied - in the interest of justice, one chance is given to the department to get the verification from concerned authorities about the genuineness of the certificate of origin issued by supplier of Malaysia to importers, thereafter to pass a fresh order.
The impugned orders are set aside - Appeals are allowed by way of remand to adjudicating authority for passing fresh orders preferably within a period of six months from the date of this order.
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2024 (4) TMI 122
Extended period of limitation - authenticity of the country of origin certificate - concessional rate of duty under N/N. 46/2011-Cus dated 01.06.2011, as amended and N/N. 53/2011-Cus. dated 01.07.2011, read with N/N. 189/2009-Cus (N.T.) dated 31.12.2009 - misrepresentation of the Regional value content (RVC) to be above 35%, whereas the actual RVC was much less than 35% - valuation of CR SS Flat products - HELD THAT:- In the present disputed matter appellant has claimed the goods to be originating in Malaysia as provided under Rule 5 of the AIFTA Rules i.e. not wholly obtained or produced. In respect of all the subject consignments, the appellant produced certificate of origin in Form A-1 issued by the Ministry of Internal Trade and Industry (MITI) of Government of Malaysia showing the Regional Value content of the subject goods as more than 35% +CTSH . However case of the department is that intelligence gathered by the DRI officers suggested that the said RVC was misstated as the overseas supplier M/s. Bahru did not have integrated stainless steel factory and had only facility to manufacture CR SS products with annealing and pickling lines, sendzimir, skin-pass and finishing line during the material time and mainly used hot-rolled coils supplied by other factories belonging to the group from Non-AIFTA countries.
The Revenue without getting confirmation from the Malaysia Government about their doubt of authenticity of the country of origin certificate and activity of M/s Bahru proceed to deny the benefit in respect of COOs issued by M/s Bharu is not genuine and consequently denied Exemption Notification No. 46/2011, dated 1-6-2011 and consequential demand was confirmed. We find that as per the documents submitted by the appellant it appears that there is no doubt on the authenticity of the country of origin certificate issued and import of the goods by Appellant on the basis of said COOs.
However, to clear any doubt it is the burden on the department to get the verification from the Malaysia Government regarding authenticity of Certificate of origin which has not been discharged by the department. Therefore, in the interest of justice, one chance is given to the department to get the verification from concerned authorities about the genuineness of the certificate of origin issued by M/s Bahru and their manufacturing activity, thereafter to pass a fresh order.
The impugned order is set aside - Appeals are allowed by way of remand to adjudicating authority for passing a fresh order.
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2024 (4) TMI 85
Classification of imported goods - Menthol Scented Supari - to be classified under Chapter 21 as a product of betel nut known as Supari or under Chapter 8 as just areca nut? - HELD THAT:- Firstly, vide Finance (No.2) Act, 2009 dated 19th August, 2009, there has been an insertion of Note 6 in Chapter 21, which specifically relates to Tariff Item 2106 90 30 relating to ‘supari’ and stating that the process of adding or mixing cardamom, copra, menthol, spices, sweetening agents or any such ingredients other than lime, katha (catechu) or tobacco to betel nut, in any form, shall not amount to “manufacture”. However, this amendment was only under the Central Excise Tariff Act and not the Customs Tariff Act.
Secondly, w.e.f. 1.7.2017, the GST Act was introduced and the concept of taxation itself has undergone a change from ‘manufacture’ to ‘supply’. The Supplementary Note 2 in Chapter 21 of CGST Tariff is also verbatim the same as Supplementary Note 2 under Chapter 21 of the Customs Tariff Act, 1975. This only exemplifies the intention of the legislature to have always treated ‘supari’ as a special entry and not as a betel nut under the general entry of ‘nuts’.
There are force in the submission of the Learned Counsel for the Appellant that the Customs Tariff Act still continues to employ the same phraseology that was available under the unamended Central Excise Tariff Act and that too when the Apex Court had dealt with the same issue, the ratio laid down by the Apex Court in CRANE BETEL NUT POWDER WORKS VERSUS COMMR. OF CUS. & C. EX., TIRUPATHI [2007 (3) TMI 6 - SUPREME COURT] case would still hold the field and apply to the case on hand, it cannot be accepted that the said limb of argument, in view of our categorical finding that there being a specific entry for ‘Supari’ under Chapter 21 and it would take precedence over the general entry under Chapter 8, the question of applying the ratio laid down by the Apex Court would not even arise for the simple reason that the issue on hand is only revolving around classification of ‘Supari’ under Chapter 8 or Chapter 21 and the facts of the case before the Apex Court was entirely different and the issue was whether process involved in manufacture of sweetened betel nut pieces would result in a totally new product or not.
Under the Customs Tariff Act, the question of manufacture loses its relevance since the Act deals only with the tariff applicable to the goods or products imported from outside the country, in an as is where is basis, or rather the product as imported in whatever form is the basis for levy of Customs Tariff. Thus, the judgment of the Hon'ble Supreme Court in Crane Betel Nut Powder Work's case cannot be said to be a bar U/s. 28(i) of the Customs Act.
The findings of the CAAR are just and proper, applying the legal position in a proper perspective. The same does not warrant interference in appeal. There are no irregularity in the Advance Ruling issued by the Authority and the same is not hit by Clause B of sub-section 2 of Section 28-I of the Customs Act, 1962 as not being covered by earlier rulings on the same subject matter, by the Appellate Tribunal or Court.
Appeal dismissed.
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2024 (4) TMI 84
Import of hot rolled steel plates and steel sheets - Fixing of minimum import price - The petitioner argues that they applied for registration within the stipulated timeframe of 15 days, as required by paragraph 1.05(b) of the Foreign Trade Policy, despite a delay in actual registration. - Violation of principles of natural justice - irrevocable commercial letter of credit not registered with the jurisdictional Regional Authority (RA) within 15 days - importer neither appeared for personal hearing nor replied to the show cause notice.
HELD THAT:- The respondent decided to proceed ex-parte on the basis that the importer had neither appeared for personal hearing nor replied to the show cause notice. As indicated earlier, the reply of the petitioner to the show cause notice along with the acknowledgement is on record. Even proceeding on the assumption that such reply was not received by the respondent for any reason, the impugned order becomes unsustainable in the face of such reply and the contents thereof.
It should also be recognized that that the petitioner has placed on record not only Notification No.38 but also the irrevocable letter of credit dated 02.01.2016 and evidence that the petitioner applied for registration on 18.02.2016, which is within the stipulated 15 day period. In these circumstances, it is just and necessary that the petitioner be provided an opportunity.
Therefore, the impugned order is quashed and the matter is remanded to the respondent for reconsideration. The petitioner is permitted to re-submit the reply dated 11.09.2021 along with all supporting documents to the respondent within 15 days from the date of receipt of a copy of this order - Petition disposed off.
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2024 (4) TMI 83
Classification of imported goods - Rice Mill Rubber Roller - classifiable under CTH 4016 or under CTH 8437? - N/N. 12/2012-CE (Sr. No. 155) dated 17.03.2012 - HELD THAT:- The reading of the serial number 9, clearly suggests inclusion of Rice Mill Rubber Rollers under this Heading within its ambit as pertained to machine and appliances of Section XVI. Elaborate reference was made to the Apex Court’s decision in KOHINOOR RUBBER MILLS VERSUS COLLECTOR OF C. EX., CHANDIGARH [1997 (2) TMI 125 - SUPREME COURT]. Relevant portions of the Hon’ble Apex Court’s Order in holding the classification under 4016 of the CTH.
As observed by the Hon’ble Apex Court what supplements the aforesaid classification is the Explanatory Note at serial number 9 under Item 40.16 of the Harmonized Commodity description and Coding System (HSN), as also noted by the Hon’ble Apex Court in its order. While it is not disputed that parts of rice mill machinery are incorporated under CTH 84379020, however, by virtue of the relevant Chapter Notes and Section Notes as referred above and in accordance with Rule 1 of the General Rules for the Interpretation of the Tariff Schedule, of the import tariff schedule, it is undeniable that the imported goods merit classification under Heading 4016 9990.
This Tribunal in the case of COMMISSIONER OF CUSTOMS, CHENNAI VERSUS M/S. NIRMALA AGENCIES [2016 (6) TMI 863 - CESTAT CHENNAI] had also considered the impugned question of classification of Rice Milling Rubber Roller, Paddy De-husking Rubber Roller, wherein the identical question of law is concerned with and following the decision of the Hon’ble Apex Court, the Tribunal in the aforesaid decision held that the said goods were appropriately classifiable under 4016 9990.
There are no infirmity in the order of the learned Commissioner (Appeals) - appeal dismissed.
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2024 (4) TMI 82
Smuggling - Gold - absolute confiscation - redemption fine - penalty - failure to produce any documents regarding the possession of gold - discharge of onus to prove - HELD THAT:- Admittedly, the seizure of the 2 gold bits is a town seizure at Renigunta Railway Station when the employee of the appellant was on-board the train. Further, admittedly the 2 gold bits totally weighing 697 gms are of irregular shape and size, having no foreign markings. Further, the person who was in possession at the relevant time - Mr Kaluva Hari Obulesu had stated that he had purchased the said gold at Chennai and was carrying it to Proddutur for his employer/appellant. Under these facts, there was no basis on which the Customs Officer could have formed an opinion that the gold is of foreign origin and/or smuggled in nature.
Both the appellant and his employee Mr Kaluva Hari Obulesu have stated that the gold have been purchased at Chennai from Mr Hari Gopal against payment made in cash. They also gave the proper address and location of Mr Hari Gopal at Chennai. The appellant also explained the source of money for the purchase of gold - Revenue have rejected this contention on the basis of report received from Chennai Customs, that when their person went to enquire from Mr Hari Gopal, he could not locate him - the report received vide letter dated 17.08.2020 from the office of Commissioner of Customs is not a RUD and hence no reliance can be placed on the same. Accordingly, the appellant have discharged the onus under Section 123 of the Customs Act.
All the allegations made by Revenue are by way of assumptions and presumptions which have no legs to stand.
The impugned order set aside - appeal allowed.
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