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Showing 61 to 80 of 182 Records

• 2015 (9) TMI 1018 - MADRAS HIGH COURT
  

  Challenge to Notification bearing No.110(RE-2013)/2009-2014 dated 06.02.2015 - prohibition on the export of Shark fins of all species of Shark - Held that:- Convention by itself does not prohibit the adoption of more stricter standards by any Member country, depending upon the local conditions and the Municipal laws. Apart from the fact that the Convention itself gives a leverage to the Member countries, it is settled law in this country that an International Convention ratified by India is enforceable, only to the extent that it is not in conflict with the Municipal law of the country. In other words, the obligations of the State under an International Convention can be enforced subject only to the provisions of the Municipal law, even if the Municipal law contains lesser standards than those prescribed in the International Convention. If this is so, even with regard to a Municipal law which contains a lesser standard, it is needless to point out that a Municipal law which prescribes a higher standard, will prevail over the prescription contained in the Convention

  Domestic market and the foreign market does not deserve equal treatment. The parameters for including a species of animal or plant in the Wild Life (Protection) Act, are different from including the same in the Foreign Trade Policy. The scope, object and purpose of the Wild Life (Protection) Act and the Foreign Trade (Development and Regulation) Act, 1992 are completely different. As a matter of fact, if a species of animal or plant is prohibited of being hunted under the Wild Life (Protection) Act, it cannot also be exported and hence, any Foreign Trade Policy issued under the Foreign Trade (Development and Regulation) Act, 1992 cannot go contrary to the Wild Life (Protection) Act, 1972. But, the corollary is not true. If the hunting of something is not prohibited under the Wild Life (Protection) Act, it does not mean that even the export of the same cannot be prohibited.

  There is no conflict between the legal framework under the Wild Life (Protection) Act, 1972 and the Foreign Trade (Development and Regulation) Act, 1992. In fact, the legal framework has been developed in such a manner that the Ministry of Environment and Forests works in close coordination with the Ministry of Commerce. What is prohibited under the Wild Life (Protection) Act, 1972, cannot even be hunted and hence, there is no question of any export of such an item. But, what is not prohibited under the Wild Life (Protection) Act, 1972, can be exported, subject only to a total prohibition or a restriction under the Foreign Trade Policy issued in terms of the Foreign Trade (Development and Regulation) Act, 1992.

  Minutes of a Meeting of this nature need not necessarily be a transcript of whatever happens in the meeting hall. In any case, in the world of internet in which we live today, it is not difficult for anyone to find out whether the facts and figures relied upon by someone to propagate his view point is correct or not. The Food and Agriculture Organisation (FAO) of the United Nations has pointed out in their official website that an estimated 73 million Sharks are killed each year, at the rate of 10,000 sharks per hour. According to their statistics, 90% of the large Sharks have been wiped out regionally. - mere fact that the quantity of depletion is not mentioned is no ground to hold that the decision was arbitrary. The decision to prohibit the export of Shark fins, in the background of facts discussed at the meeting, should actually be traced to the Precautionary Principle.

  It is common knowledge that at times and in cycles, even normal fishing activities are prohibited, so as to enable the aqua life to get nurtured. Therefore, the re-introduction of the total prohibition, after a gap of 13 years cannot be taken exception to. In any case, the notification is amenable to amendment at any point of time.

  Very negligible percentage of population captures Shark for domestic consumption. The fact that there is no prohibition for the capture of Sharks for domestic consumption, is no ground to hold the ban on export of Shark fins as arbitrary. If there is no prohibition for export, the total quantity of Shark captured, may increase manifold. Therefore, the distinction that the respondents have made between domestic consumption and export, is actually a reasonable classification, which does not offend Article 14. - no merits in the writ petition - Decided against appellants.

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• 2015 (9) TMI 1017 - BOMBAY HIGH COURT
  

  Levy of Anti Dumping Duty - petitioner seeks a declaration that Note 3 of the Notification No.125/2010¬Cus. dated 16.12.2010 is ultra vires to the Customs Act,1962 and the Customs Tariff Act - Held that:- The petitioner is primarily raising the issue of construction and interpretation of the Notes and the Notification as a whole.The petitioner has placed their version and interpretation on the Notification and the Notes below the same. The impugned Note 3 is also sought to be interpreted by them and in the backdrop of a larger picture.The petitioner urges that anti-dumping duty cannot be imposed and recovered unless all pre¬conditions are satisfied. Secondly, the equipment as a whole comprises of several parts and components and has to be viewed accordingly. If the components and parts themselves are imported on standalone basis, then, the same are out of the purview of this duty, is equally its interpretation. This is a matter which involves the acceptance or otherwise version or interpretation of the petitioner and in relation to the duty, its levy, imposition and the cases in which same cannot be levied, imposed and recovered. - it is not necessary to express any opinion on the rival contentions. More so, when Mr. Jetly, on instructions, assures that the Authority adjudicating the show cause notice will pass an order by application of independent mind, uninfluenced by the version placed in the affidavit filed by Dr. Sumit Garg, Assistant Director of B¬Cell, Directorate of Revenue Intelligence, Mumbai Zonal Unit, Mumbai. - petition disposed of.

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• 2015 (9) TMI 1016 - CESTAT CHENNAI
  

  Appeal No. C/176 & 177/2007 Mis-declaration of port of discharge – Smuggling of red sander – Customs alleged that appellants had close intimacy to mis-declaration of port of discharge – Goods although was destined to Malaysia however shipping bill was made to show port of discharge as Colombo – As a result of mis-declaration appellants were penalized under section 117 of Customs Act, 1962 – Held that:- admitted case of mis-declaration of port of discharge as is revealed from documents filed to form part of EGM which connected both appellants – These two appellants did not detach themselves from smuggling of red sander – It cannot be said that they have no knowledge about port of discharge –When goods exported were prohibited goods and not permitted to be exported from India and appellants assigned themselves to such export, they are not immune from penal consequence of law – These two appellants having been intimately connected with red sander export had conscious knowledge of port of discharge – Therefore imposition of penalty on both is justified – Decided against Appellants.

  Appeal No. C/191/2007 Mis-declaration of port of discharge – Smuggling of red sander – Held that:- Appellant was actively involved in mis-declaration of port of discharge – In course of smuggling, whisper about modus operandi comes up – As member of racket this appellant had not isolated him – He was contributory to smuggling concealing material fact till discovery by investigation – Plea that appellant had given his evidence under section 108 under duress failed to lend any credence for reason that after seven months of recording of confessional statement, attempt was made to create fiction of duress – No doubt about knowledge of appellant as to actual port of discharge – Accordingly, adjudication against this appellant does not call for any interference – Imposition of penalty hereby confirmed – Appeal dismissed – Decided against Appellant.

  Appeal No. C/227 & 228/2007 Mis-declaration of port of discharge – Smuggling of red sander – Held that:- Law is very clear as to role of vessel operator when combined reading of section 41 and 42 of Customs Act is made along with contents of EGM in Form 66 – Clear from Form 66 that contents and nature of goods, weight thereof, description of shipping bills as well as details of consignor and consignee appearing in Form No. 66 was well within knowledge of commander of ship who certified description in that form – Shipping bill described port of discharge as Colombo but goods were loaded into vessel bound to Malaysia, which does not rule out breach of trust made by appellants – Appellant were concerned with goods described in shipping bill as bailee, therefore, it cannot be said that vessel operators were innocent and having no knowledge about goods which were shipped in their vessels for delivery in port of discharge of Kelang in Malaysia – When goods were prohibited goods it was primary duty of vessel operator not to allow same to be loaded into vessel – Thus, vessel operator having conscious knowledge of mis-declaration and exporting prohibited goods – Therefore, it is not at all proper to intervene to adjudication for which both appeals are dismissed – Decided against Appellants

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• 2015 (9) TMI 1015 - CESTAT CHENNAI
  

  Benefit of Exemption – S.230 of Notification No.21/2002-Cus. – benefit of notification was rejected both by adjudicating authority as well as by LAA on ground that appellant cannot be considered as person who has been awarded contract by NHAI and they are only contractor or sub-contractor appointed by STPL(SPV/Concessionaire) - Asphalt Mixing Plant – Held that:- At per letter, it is clearly stated that pursuant to Assignment Agreement, STPL has awarded contract to appellant for roadwork – STPL has been created as Special Purpose Vehicle (SPV) as per Concession Agreement between NHAI and Govt of Malaysia by virtue of Assignment Agreement and therefore Concession Agreement of NHAI is deemed to be agreement of SPV – As SPV contract was awarded to importer by entering into EPC agreement which is clearly explained in NHAIs letter – Therefore machines imported by appellants are eligible for exemption under Sl.No.230 of Notification No.21/2003 – Impugned order set aside – Decided in favour of Assesse.

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• 2015 (9) TMI 1014 - CESTAT AHMEDABAD
  

  Refund of SAD / Additional Duty - Validity of Sale transaction – Entitlement of Exemption benefit – Adjudicating authority sanctioned refund claim of 4% additional duty – Commissioner (Appeals) dismissed appeal against Adjudication order on ground that refund sanctioned was not in violation of condition of Notification No.102/2007-Cus as Respondents had made sale transactions only on paper – Held that:- from agreement to supply it was clear that Respondents passed title of goods and certificates to project authority by raising invoices – Sales tax authorities accepted sale of goods on basis of invoices and confirmed payment of CST – Sale was completed as soon as titles were transferred to purchasers – Thus, assessing officer cannot question basis of sales transactions – Exemption Notification stipulates condition for availing exemption and determined prescribed method which were fulfilled by Respondent – Supreme Court in case of M/s Vadilal Chemicals Ltd Vs State of Andhra Pradesh [2005 (8) TMI 121 - SUPREME COURT OF INDIA] held that eligibility to exemption determined by prescribed method should not be denied based on other criteria – No dispute that Respondents paid additional duty of customs and also paid VAT therefore, benefit of exemption notification cannot be denied – Decided against revenue.

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• 2015 (9) TMI 976 - MADRAS HIGH COURT
  

  Denial of Duty drawback claim - Interest u/s 75A - Held that:- where any drawback payable to the claimant is not paid within a period of one month from the date of filing a claim for payment of such drawback interest at the rate fixed under Section 27-A from the date after the expiry of the said period of one month is payable to the petitioner. Therefore, when it is made clear that the petitioner is entitled to claim interest, as per Section 75-A and further notification with regard to quantum of interest and also as per Notification Customs No.18/2011-Customs (N.T), 1st March 2011, 18% interest per annum having already fixed by the Central Government is hereby fixed. - respondent is hereby directed to pay the interest at the rate of 18% on the sanctioned and paid duty drawback claim amount entitled by the petitioner for the period from 18.02.2010 to 24.09.2010, within a period of four weeks - Decided in favour of assessee.

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• 2015 (9) TMI 975 - MADRAS HIGH COURT
  

  Confiscation of goods - Imposition of penalty - Violation of EXIM Policy - Held that:- There is no bar on the adjudicating authority, in a de-novo proceedings, to determine the quantum of fine or penalty. The fine and penalty imposed has been set aside and the matter is live for re- adjudication. Hence earlier order imposing fine or penalty does not have any relevance. The adjudicating authority, at its discretion, may impose appropriate fine or penalty. It does not matter whether the proceedings have been initiated afresh or heard by way of de-novo proceedings on the orders of the Tribunal. Question of challenging enhancement of penalty does not arise in a case of this nature, where the adjudication order itself has been set aside in its entirety and the matter remanded back to the original authority for re-adjudication, namely de-novo enquiry. - Decided against assessee.

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• 2015 (9) TMI 974 - MADRAS HIGH COURT
  

  Seizure of goods - After order of release of goods instead of refund the goods or paying the value in full revenue refunded only the partial amount - Held that:- In order to give quietus to the issue, without going into the merits of the claim made by the petitioner, the respondents are directed to consider the representation of the petitioner dated 19.03.2004 followed by reminders dated 07.04.2004 and 21.04.2004 issued through his lawyer and pass appropriate orders on the same on merits and in accordance with law within a period four weeks - Appeal disposed of.

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• 2015 (9) TMI 973 - CESTAT AHMEDABAD
  

  Duty free import authorisation - Transferable DFIA - Respondent filed Bill of Entry for clearance of “Phosphoric Acid” 85% technical grade and claimed duty free clearance against DFIA in terms of Notification No 98/2009-cus – By impugned Order, Commissioner (Appeals) allowed claim of Respondent – Held that:- DFIA was originally issued by exporters and after fulfilment of export obligation, same was transferred to Respondent – Notification No 90 provides declaration of actually used quantify of Inputs in export goods – Adjudicating Authority directed exporter to intimate actual quantity of phosphoric acid used in export of goods, who did not provide information to department –As exporter fulfilled export obligation, licence were transferred to respondent/importer as endorsed by Licensing Authority – Exporter cannot be compelled to furnish any information in respect of said DFIA, which was already transferred to respondent – In present case, Phosphoric Acid had specific entry mentioned in DIFA Licence – Once license was endorsed for transferability by licensing authority, nexus between import goods use in export goods, was not required to be established afresh by transferee – Decided against Revenue.

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• 2015 (9) TMI 972 - CESTAT CHENNAI
  

  Improper importation of goods – Confiscation of goods and Imposition of penalties – Appellants made import of second hand printing machinery under fictitious names as actual user and same were sold in violation of EXIM Policy in open market – Imported goods were confiscated and personal penalties were imposed under under Section 112(a) of Customs Act for contravention of FTP Policy and Customs Act – Held that:- Commissioner in first imposed penalty on individual persons – Adjudicating authority has dealt issue in detail and modus operandi of floating fictitious firms and imported second hand machinery violating actual user condition which was investigated by D.R.I. – Therefore court hold that appellants are liable for penalty under Section 112 (a) – Appellants contravened provisions of Customs Act and EXIM Policy by fraud, collusion, abetting thereby imported goods became liable for confiscation under Section 110 of Customs Act which is clearly established in present case – Accordingly, appellants are liable for penalty however penalties imposed on respective importer-appellants are reduced – Impugned order modified – Appeals partly allowed – Decided partly in favour of Appellants.

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• 2015 (9) TMI 971 - CESTAT KOLKATA
  

  Confiscation of improperly imported goods - Chinese mobile phones – Appeal was filed against order of Commissioner(A) upholding order confiscating 3,437 number Chinese mobile phones under Section 111(d) & (i) of Customs Act, 1962 and also imposed penalty upon appellant – Held that:- All persons whose names were found on boxes seized have either disowned seized goods or were not found –Disposal of goods through E-auction by department indicates that restriction imposed was either curable or was not essential and could also have been complied by appellant in case redemption option was allowed – As impugned goods have already been disposed off by department, therefore, sale proceeds with respect to 388 pcs. are ordered to be released to appellant after imposing and adjusting suitable redemption fine to be calculated & imposed by Adjudicating Authority after affording opportunity of personal hearing to appellant – Sale proceeds pertaining to remaining mobile phones is also ordered to be released to appellant – Further Customs duty cannot be demanded from appellant as it is case of town seizure and date/time of inspection is not known to determine rate of duty, exchange rate and value of goods – Appellant being transporter cannot be expected to know all and no such statement exists that he was aware of smuggled nature of seized goods – In view of observations, penalty imposed is set aside – Decided in favour of Assesse.

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• 2015 (9) TMI 928 - CESTAT MUMBAI
  

  Import of Comoros Cloves - discrepancy in Certificate of Origin - Eligibility to avail benefit of Notification No. 96/2008 - origin was not certified by the exporter from the exporting country - Held that:- Authorities have been given instructions, which when read holistically, would mean that minor discrepancies would not ipso facto invalidate the certificate of origin if the same in fact corresponds to the product imported. It can be seen that the certificate of origin needs to issued by the government authorities designated by the government of exporting beneficiary country.

  In the case in hand, as already held by us the certificate of origin has been insured by "African Commodities House Ltd."seems to us to be an authority approved by the union of Comoros. This our view is fortified from the fact that identical goods imported at other various ICDs were certified by the same issuing authority and was accepted by the revenue authorities and not disputed the issuing authorities credentials. - goods which are imported by the appellants are eligible for benefit of Notification NO. 96/2008 as amended by the said benefit is being denied only for the procedural discrepancies. We find strong force in the contentions raised by the learner consultant that the ratio of the judgment of Hon'ble Supreme Court in the case of Bharat Diagnostic Centre (2014 (10) TMI 440 - SUPREME COURT) will apply in this case. - Decided in favour of assessee.

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• 2015 (9) TMI 924 - MADRAS HIGH COURT
  

  Maintainability of appeal - benefit of Notification No.21 of 2002 - What will be the rate of duty that is payable by the first respondent, but for the notification in question. - Held that:- Court is fortified by a decision of the Gujarat High Court in Commissioner of Central Excise v. JBF Industries Ltd., [2010 (12) TMI 437 - GUJARAT HIGH COURT], - Following this decision; appeal is not maintainable and accordingly, the same is dismissed giving liberty to the appellant to pursue the matter before the appropriate forum - Decided against Revenue.

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• 2015 (9) TMI 923 - GUJARAT HIGH COURT
  

  Waiver of pre deposit - Tribunal restored the appeal of the co-applicants but refused in case of the petitioner - earlier the appeals were dismissed for non-compliance of order of pre deposit - Held that:- On a perusal of the common order dated 07.07.2010 made by the Tribunal on the stay applications made by the petitioner and other co-appellants, including M/s Bhairavi Exim Pvt. Ltd., it is clear that the Tribunal had directed the appellant - M/s Bhairavi Exim Pvt. Ltd. to deposit 50% of the duty within a period of eight weeks. Insofar as the penalties imposed on the other appellants, including the petitioner are concerned, the condition of pre-deposit of penalties had been dispensed with. It appears that the appeals preferred by all the appellants had been dismissed for non-compliance of the stay order in view of the fact that M/s Bhairavi Exim Pvt. Ltd. had not made the pre-deposit of 50% of the duty.

  However, in case of other co-appellants who had earlier approached the Tribunal, the Tribunal by an order dated 14.02.2011, had restored their appeals by observing that the stay petitions of the applicants had been unconditionally allowed. The petitioner herein is similarly situated to the said applicants in the stay applications and therefore, was entitled to similar treatment on the ground of parity. The Tribunal was, therefore, not justified in rejecting the application for restoration made by the petitioner by holding that the stay granted in favour of the petitioner was conditional upon M/s Bhairavi Exim Pvt. Ltd. making the predeposit. - subsequent order of the Tribunal taking a view different from the view adopted in the previous order of the Tribunal, whereby the petitioner is not granted parity of treatment with other appellants, cannot be sustained. - Decided in favour of appellant.

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• 2015 (9) TMI 922 - MADRAS HIGH COURT
  

  Denial of refund claim - Liability to pay Cess on the export of processed marine products - Held that:- neither any adverse order has been passed nor any proceeding is pending against the petitioner and the representation of the petitioner alone is pending for consideration with the 3rd respondent - Court directs the 3rd respondent to consider the representation of the petitioner dated 16.08.2004 with regard to levy of Cess in the light of the judgements of the Division Benches of this court referred [2015 (3) TMI 1036 - MADRAS HIGH COURT] and dispose of the same on merits and in accordance with law after affording due opportunity to the petitioner including personal hearing. The said exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order. The petitioner company is directed to place all their submissions including copies of the orders passed by the Division Benches of this court which shall be taken into consideration by the 3rd respondent while passing the orders on the representation of the petitioner - Petition disposed of.

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• 2015 (9) TMI 921 - CESTAT KOLKATA
  

  Waive of pre deposit - penalty for abetment - attempt to export of MOP (Muriate of Potash) - Held that:- It is difficult to ascertain whether the applicants are involved in the offence or otherwise which rests on scrutiny/appreciation of evidences. However, the offer made by each of the applicants i.e. ₹ 25,000/- seems to be reasonable. Consequently, each of the applicants is directed to deposit ₹ 25,000 within eight weeks from today and report compliance. On deposit of the said amount, balance dues adjudged against each of the Applicants would stand waived and its recovery stayed during the pendency of the appeals. - Partial stay granted.

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• 2015 (9) TMI 920 - CESTAT KOLKATA
  

  Waiver of pre deposit - Penalty u/s 114A - exemption from payment of duty in terms of Notification No.48/1999-CUS dated 29.4.1999 - diversion of imported goods to DTA - export obligation - Held that:- Applicant had not fulfilled the export obligation as required therefore, we are of the view that the applicant could not able to make out a prima facie case for total waiver of pre-deposit of dues adjudged in both the cases. - Partial stay granted.

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• 2015 (9) TMI 919 - CESTAT BENGLALORE
  

  Condonation of delay - Non-production of Export Obligation Discharge Certificates rom DGFT for showing the utilization of the materials imported under the DEEC Scheme and used for the export purposes - Held that:- By appreciating above conduct of the appellant and by appreciating the fact that there could be some bona fide belief on the part of the assessee that inasmuch as EODCs stand issued and stand filed with the Revenue and that being the only dispute, no further action is required to be taken by them, we are of the view that the late filing of the appeal is not with any mala fide or does not reflect any intentional lapse on the part of the assessee. We accordingly condone the delay subject to the appellant depositing a cost of ₹ 10,000 - Delay condoned conditionally.

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• 2015 (9) TMI 872 - SUPREME COURT
  

  Exemption under Notification No. 133/87 - Penalty u/s 112(a) - Held that:- during the pendency of proceedings before the Commissioner, the appellant had approached the authorities under Kar Vivad Samadhan Scheme and volunteered to pay the duty at 30% on the premise that the goods were classifiable under Heading 8905.20 and the Customs Notification No. 196/89 shall be applicable and, therefore, the appellant showed readiness for payment of duty at 30%. No doubt, its application under Kar Vivad Samadhan Scheme was rejected. However, this benefit has been extended by the Tribunal. Once this relief is given by the Tribunal, we are of the view, that no further relief is required to be given to the appellant in the facts of the present case. - Decided against assessee.

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• 2015 (9) TMI 871 - DELHI HIGH COURT
  

  Writ jurisdiction where alternate remedy is available - Valuation of goods - Provisional release of goods - Execution of bond for re-determined value of the imported goods - Held that:- On a bare perusal of Section 128 of Customs Act it is manifestly clear that an appeal lies in respect of any “decision or order passed under the Customs Act”. In my view the impugned order falls within the description of “order or decision” with respect to provisional clearance. Further, the impugned order dated 06.04.2015 has been passed by the Assistant Commissioner, Customs Preventive (Alpha Group) which is lower in rank than a Principal Commissioner of Customs or Commissioner of Customs. No exceptional or extraordinary circumstances have also been brought on record before this Court to permit it to invoke its extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore, this Court is of the opinion that in terms of Section 128 of the Customs Act, 1962 the appeal against the impugned order dated 06.04.2015 shall lie to the Commissioner of Appeals within sixty days from the date of its communication to him. - petitioner has approached this Court under the mistaken view that remedy of appeal is not available under the Customs Act, 1962, this Court is of the opinion that the petitioner may prefer an appeal before the concerned appropriate authority within four weeks - Decided against appellant.

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