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Case Laws
Showing 461 to 480 of 19685 Records
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2015 (12) TMI 1448
Demand of service tax - renting of cab without transferring control - whether levy of service tax under new category would mean that it was not taxable earlier - whether the appellant-asessee who was entered into a contract of hiring of vehicles falls under the category of "Rent-a-Cab scheme operator" is liable for service tax under the category of "Rent-a-Cab Service" or otherwise - Held that:- Judgement of the Hon'ble High Court of Uttrakhand in the case of Sachin Malhotra (2014 (10) TMI 816 - UTTARAKHAND HIGH COURT) is specifically on the issue. We note that Hon'ble High Court was called on to decide the question of law on the issue whether hiring of vehicles would fall under the category of Rent-a-cab scheme operator" or otherwise - Tribunal did take a view against the assessee but the Tribunal's judgement [2013 (7) TMI 816 - CESTAT NEW DELHI] was delivered on 02.05.2013 while the judgement of the Hon'ble High Court of Uttrakhand was delivered on 06.08.2014.
Further, we notice that the Hon'ble High Court of Uttarakhand in the said judgement has distinguished the judgement of the Hon'ble Madras High Court in the case of Secy. Federn of Bus-operators Assn. of Tamil Nadu [2001 (4) TMI 7 - MADRAS HIGH COURT]as well as the judgement of the Hon'ble High Court of Delhi in the case of Kuldip Singh Gill [2005 (5) TMI 353 - CESTAT, NEW DELHI]. This judgement of the High Court of Uttarakhand being a recent one we follow the same and hold that the impugned order is unsustainable and liable to be set aside on merits itself.
When the lawgiver introduced this new source of taxation, it must be treated as having been aware of the distinct concept of renting a cab for which there is provision in the Central Legislation, namely, Section 75 of the Motor Vehicles Act and also a scheme stood framed as early as in 1989. We are, therefore, of the view that, unless there is control, which is passed to the hirer under the rent-a-cab scheme, there cannot be a taxable transaction under Section 65(105)(o), read with Section 65(91) of the Service Tax Act - Decided against Revenue.
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2015 (12) TMI 1447
MODVAT Credit - Whether the assessee can be granted modvat credit without fulfilling the conditions of Rule 57R of the erstwhile Central Excise Rules 1944 viz. production of a certificate from M/s KSFC to the effect that the assessee have paid the amount of CVD to them and that M/s KSFC have not claimed depreciation amount under the Income Tax Act - Held that:- Due to some disputes between the KSFC and the respondent, the respondent was not in a position to make available of the required documents to be placed before the authorities as per Rule 57(6) of the Rules, which would not be fatal to the case. The non-compliance of the said Rule would not disentitle the respondent from availing the Modvat credit having deposited the countervailing duty as prescribed under the Rules. The Tribunal having accepted this contention and following the law laid down by the Apex Court in the case of Commissioner of Customs (imports) -vs- Tullow India Operations Ltd. [2005 (10) TMI 502 - SUPREME COURT OF INDIA] has given a finding that the denial of Modvat credit to the appellant on the ground that KSFC has not furnished the required certificate would result in gross miscarriage of justice - cost of the capital goods shall be reduced by the amount of duty to excise in respect of which a claim of credit has been made and allowed under the Rules, KSFC cannot claim depreciation on the portion of the capital goods representing countervailing duty taken as Modvat credit. - order passed by the Tribunal is just and proper and does not call for any interference by this Court - Decided in favour of assessee.
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2015 (12) TMI 1446
Rectifion of order of larger bench [2013 (4) TMI 532 - GUJARAT HIGH COURT] - Reversal of CENVAT Credit where duty has been remitted on destroyed goods - Whether in view of the provisions contained in Rule 3 of the Cenvat Credit Rules, 2004 and Rule 21 of the Central Excise Rules, 2002, the decisions of this Court in case of COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, AHMEDABAD-I v. GDN GARMENTS, reported in [2010 (7) TMI 431 - GUJARAT HIGH COURT ] and COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS V. BIOPAC INDIA CORPORATION LTD., reported in [2010 (7) TMI 433 - GUJARAT HIGH COURT ] lay down correct law in holding that even after remission of duty upon destruction of final product, the manufacturer is not required to reverse the Cenvat Credit on the inputs used in manufacturing such final product.
Held that:- Full Bench has held that prior to introduction of sub-rule (5C) of rule 3 of the Cenvat Credit Rules, there was no provision, which provided for reversal of the credit by the excise authorities where it has been lawfully taken by a manufacturer and that by way of the amendment, a new right was created in favour of the revenue, it is evident that there is clear contradiction in the second part of the operative portion of the judgement, to the extent it is held that there is no scope of reversal unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed. In the opinion of this court, when the Full Bench has clearly held that prior to September 7, 2007, there was no statutory provision permitting the revenue authorities to direct reversal of credit already taken, the question of imposing any condition for reversal while granting remission of duty in terms of rule 21 of the Central Excise Rules would certainly not arise. Thus, it appears that the aforesaid part has crept in on account of inadvertent error and the same being in direct conflict with the main part of the judgment, requires to be deleted in the interest of justice.
Powers of review can be exercised in rectifying an error in the earlier judgment. In the light of the above discussion, the applicant has clearly made out a case warranting exercise of review jurisdiction by this court. - The judgement and order dated 29.08.2012 passed by the Full Bench in Tax Appeals No.2520 of 2010, 896 of 2011 and 1586 of 2010, is hereby modified by deleting the following sentence from paragraph 20 of the said judgement:
"Unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed"
Decided in favor of Assessee.
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2015 (12) TMI 1445
Reversal of cenvat credit - some iron ore fine or smaller pieces of iron ore emerge which are not usable for further manufacture of sponge iron. Therefore, same were cleared without payment of duty - duty on 10% of the value of exempted goods cleared by the respondents - Held that:- As the facts of the cases in hand are identical to the facts of the case in Maa Mangla Ispat Pvt.Ltd. (2013 (5) TMI 268 - CESTAT NEW DELHI), and after examining the impugned order, in the light of the decision in the case of Maa Mangla Ispat Pvt.Ltd. (supra), I do not find any infirmity in the impugned order, the same is upheld. - Decided against Revenue.
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2015 (12) TMI 1444
Duty demand - Determination of annual capacity of production - Demand of differential duty - penalty under Rule 96ZP (3) - Held that:- No case of deliberate default is made out against the appellant. I also hold that the differential duty became payable only on pronouncement of the order of the Hon'ble Supreme Court dated 06.07.2011. It is admitted fact that the appellant paid the differential duty (50% was paid during pendency of appeal and the balance was paid soon after passing of the OIO). Thus, there is no deliberate delay on the part of the appellant. In this view of the matter, I hold that the appellant would be liable to interest w.e.f. 30th day of service of OIO on the amount of duty paid belatedly, if any. Such interest, shall be calculated by the adjudicating authority and intimated to the appellant. The appellant is also at liberty to calculate the interest payable, if any, in terms of this order and filed the same for approval of the' adjudicating authority - Decided partly in favour of assessee.
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2015 (12) TMI 1443
Classification of “Primosa” and “Simrose” - Medicaments or fixed vegetable oils - Classification under Sub-heading No. 15159091 or under Sub-heading No. 30049069 - enhancement of penalty - Held that:- tribunal in appellant’s own case held that the “Primosa” and “Simrose” which are encapsulated fixed vegetable oil,classifiable under Heading No. 15.03 of CETA as fixed vegetable oil. In that case, the Revenue contended that it would be classifiable under Sub-heading No. 2108.99 of CETA as “Dietary Food Supplement”. - It is evident from record that EPO is a fixed oil obtained from the seeds of plant containing Linolenic Acid with some Gamolenic Acid. It is encapsulated i.e. packed in small capsules in the appellants premises. It is not chemically modified. The Fatty acids contained in EPO is natural ingredient. There is no addition of fatty acid under Section VI of CETA. As per Chapter Note I (e) of Chapter 15 of CETA, fatty acid of Section VI of CETA would not cover in Chapter 15. Section VI of CETA covers “Products of Chemical or allied industries.”
In the present case, EPO is edible grade oils and sold as EPO in capsules with the name of “Primosa” and “Simrose.” We find that the similar issue was raised before the Tribunal in the case of M/s. Supreme Enterprises (2015 (2) TMI 954 - CESTAT MUMBAI).
This product is of Amazon origin and inca inchi oil is a natural oil extracted from the seeds of the Inca Inchi tree. The oil contains natural vitamins and antioxidants (Omega 3) and has not been chemically modified at all. Revenue contended that the product is claimed to have properties of preventing blood clotting triglycerol blood sugar and so on. The Tribunal held that impugned product merits classification in under Sub-heading No. 1515.90 of CTA. In the present case, it should be kept in mind that the Customs Authorities classified EPO under Sub-heading No. 1515 of CTA and the dispute was raised by Central Excise Authorities - products “Primosa” and “Simrose” would be classifiable under Heading No. 15159091 of CETA and not under sub-heading No. 30049069 of CETA and the demand of duty alongwith interest and penalty cannot be sustained. The impugned orders are set-aside - Decided in favour of assessee.
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2015 (12) TMI 1442
Denial of CENVAT Credit - nexus with the appellant's manufacturing activities - Imposition of equivalent penalty - Held that:- Services involved in the said show-cause notice are training services received by the appellant from M/s Pegassus HRD Centre Pvt Ltd for training of their employees in managerial and management skills; photography services received to cover the company functions organized inside the factory; travel expenses for employees' family visits to the factory plant of the assessee and travel agent services for reobtaining of the residential permit of the Japanese Director, who lost the same. Out of the said services, I find that training of the employees is an integral part of the running of the business. Similarly photography services to cover the company functions has been held to be cenvatable input service by the Hon'ble Karnataka High Court in the case of Toyota Kirloskar Motor Pvt Ltd Vs CCE [2011 (3) TMI 1373 - KARNATAKA HIGH COURT ] . The services obtained from the travel agent for reissuance of the residential permit of the Japanese Directors are also services availed in connection with the business. However, the travel expenses for employees' family visit to the factory plant of the assessee cannot be held to be having any connection with the appellants' manufacturing activities or business activities. As such, except for CENVAT credit of ₹ 895/-, I hold that the other credits are available to the appellant. - Decided partly in favour of assessee.
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2015 (12) TMI 1441
Claim of refund of excess interest (@24% instead of @13%) paid on differential duty - Bar of limitation - Held that:- Admittedly the refund application filed by the appellant on 08.04.2009 is beyond the period of limitation. The appellant's contention is that they had challenged the earlier order of finalization and the Commissioner (Appeals) had directed them to file a refund claim instead of challenging the rate of interest. Inasmuch as they have filed refund application within a period of one year from the date of the order of Commissioner (Appeals), the same has to be treated as having been filed within the limitation period - appellate authority has observed that if the payment of interest is erroneous on the part of the assessee they can file refund claim within the normal period of one year. There is nothing in the said observation or finding of Commissioner (Appeals) to suggest that the period of one year would start running from the date of passing of the order. There is also no provision of law to that effect. If the appellant was aggrieved with the said order of Commissioner (Appeals) in deciding on the correct rate of interest, they could have challenged the same. In fact, the appeal was filed before the Tribunal, but the same was subsequently withdrawn, thus allowing the said order of Commissioner (Appeals) to attain finality. - refund application having been filed beyond the period of one year from the relevant day, has to rejected as barred by limitation - Decided against Assessee.
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2015 (12) TMI 1440
CENVAT Credit - duty paying documents - whether the respondents can avail CENVAT credit of service tax paid by them on various services received and utilized, on the basis of debit notes - Held that:- original adjudicating authority has made certain observations that such documents do not contain full details but there is neither any reference to such non-mentioning of requisite particulars in the said debit notes nor is there any rebuttal by the original adjudicating authority to the respondent's claim of the said debit notes disclosing full particulars. The Commissioner (A) has noted the said fact and has held that a mere observation by the adjudicating authority, without even disclosing or indicating the particulars not available in the said debit notes cannot be appreciated. Even in their memo of appeal, Revenue has not referred to any such particulars being not available in the debit notes. As such, I find no infirmity in the impugned order of the Commissioner (A) - Decided against Revenue.
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2015 (12) TMI 1439
Denial of CENVAT Credit - Goods neither inputs not capital goods - Held that:- It is no doubt some of the items have been used by the appellant for fabrication of supporting structure embedded to earth for which the Chartered Engineer who is an expert in the field as already given in his report that appellant has used the quantity of 49.85 MT of these items for supporting structures and on the said quantity appellant has not claimed Cenvat Credit. The appellant is able to show by way of Chartered Engineer Certificate that out of the total quantity 150 MT were used by the appellant for fabrication of capital goods. These observations of the chartered engineer which have been relied by the appellant have been discarded by the authorities below without any tangible evidence. Merely saying that all the items were used for supporting structure is not admissible evidence. Therefore, as the appellant has been able to show the usage of the items in question for fabrication of capital goods as directed by this Tribunal in the earlier round of litigation, I have no hesitation to hold that appellant is entitled to take Cenvat Credit on this quantity. For the remaining quantity if revenue feels that appellant has taken the credit they may initiate another proceeding against the appellant. But to the quantity upto 150 MT appellant is entitled to take Cenvat Credit. - Appeal disposed of.
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2015 (12) TMI 1438
Area based exemption - dispute is about another manufacturing unit (unit II) claimed to have been set up by the appellant company in March, 2010 on the first floor of the same building and this unit is also for manufacture of the same products - Denial of duty exemption under notification no. 49/03CE - Clubbing of clearances - Held that:- Goods manufactured from the new machinery, if any installed, in the name of Unit-II on the first floor would be eligible for duty exemption under notification no. 49/0 3CE. However, since both the Units, - Unit-I as well as Unit-II, are upheld to be one entity and not the independent Units, they would be eligible for exemption under notification no. 49/03CE only for ten years from the date on which the Unit-I had commenced commercial production - if the Unit-I had commenced commercial production sometime in 2004 it would be eligible for exemption under this notification till 2014 only. The attempt to set up the Unit-II as a separate Unit on first floor of the Unit-I appears to be an attempt by the appellant company to enjoy the exemption in the name of Unit-II for another period of ten years. Since, we have held that Unit-II has no existence and Unit-I and Unit II have to be treated as one unit, the same would be eligible for exemption only for a period of ten years from the date on which the unit-I had commenced commercial production - Appeal disposed of.
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2015 (12) TMI 1437
Confiscation of goods - Non declaration of goods - Held that:- There is no rational, sound reason and any redeeming factor giving scope to reduce the penalties imposed on these appellants. The matter is quite serious when the restricted items like 49 air pistols and 37 air rifles have been imported and the said imports were not declared; they were found concealed in 12 cartons containing light fittings and furniture. It has also come on record that invoices were fabricated by making use of the appellants office; though invoices were submitted by the other person but the office owned by Shri K. Nithyananda Pai, the appellant was allowed to be used. Consequently both these appeals are dismissed and disposed of as having no substance and reason to interfere with the impugned order-in-appeal passed by the Commissioner of Customs (Appeals) Cochin. - Decided against assessee.
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2015 (12) TMI 1436
Valuation of goods - enhancement in value of goods - Held that:- Though in the adjudication order the authority has relied upon the price of contemporaneous goods, but no any evidence in support of contemporaneous import was adduced. The goods imported by the appellant is rags which admittedly a residual product. The residual product cannot be of standard quality. As regards its characteristics, quality, size, shape, colour etc. it various from consignment to consignment. - Since no evidence was produced by the Revenue, enhancement of the price of the impugned goods appears to be without any basis. It is a trite law that for applying the price of contemporaneous goods, it is necessary to ascertain that the goods is of same character, quality, quantity, country of origin etc. and without ascertaining the same, the adoption of price of contemporaneous goods cannot be treated as price of contemporaneous goods. Due to the said deficiency in the whole proceeding, we are of the considered view that there is no sufficient basis for revenue to enhance the value of imported goods - Decided in favour of assessee.
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2015 (12) TMI 1435
Release of bank guarantee - Petitioner already surrendered its warehousing licence and is currently not holding any of the license - Held that:- The record of the case reveals that in connection with the warehousing activities, three cases came to be instituted against the petitioner which culminated into orders against the petitioner whereby the demand and/or the penalty came to be confirmed. The petitioner challenged the orders either before the first appellate authority or the Tribunal, as the case may be, and against the order passed by the first appellate authority, before the Tribunal. In all the three cases, the Tribunal has granted stay subject to pre-deposit of the amount stipulated in such orders, which the petitioner has already deposited. Therefore, in relation to all the three orders which have been passed against the petitioner, proceedings are pending before the Tribunal and such orders had been stayed. - If the respondents are permitted to retain the bank guarantees, it would amount to negating the stay orders granted by the Tribunal because the amount under the bank guarantee would be in addition to the amount directed by the Tribunal to be deposited by way of predeposit. Moreover, once the licence has been surrendered and no amount is outstanding and payable by the petitioner towards the warehousing licence and the bonds executed by the petitioner have been cancelled, the respondents are not justified in retaining the bank guarantees.
Petitioner has also placed on record a copy of the undertaking given by the petitioner to the respondents assuring the Customs Department that they would discharge any liability that may be finalised or arise against the petitioner and have also sought release of the bank guarantees aggregating to ₹ 10,00,000/-. Thus, the warehousing licence stands surrendered, the warehousing bonds stand cancelled, the demands raised by the orders passed against the petitioner in the three proceedings stand stayed by the Tribunal. Moreover, the petitioner has also given an undertaking to the respondents that it will discharge all liabilities that may be finalised or arise against the petitioner. In these circumstances, in the opinion of this court, the respondents are not justified in withholding the bank guarantees. - Decided in favour of appellant.
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2015 (12) TMI 1434
Writ petition against the order of Tribunal refusing to rectify the error which was apparent on record - Tribunal, which, by an order dated 6.2.2014 partly allowed the appeal by holding that the petitioner is eligible for the benefit of CVD as per Serial No.202A of Notification No.21/2002-Cus dated 1.3.2002. The Tribunal further held that since separate value of 16mm, 20mm, 25mm and 32mm TMT bars was not made available, separate duty cannot be assessed for 16mm TMT bars
Held that:- As can be seen from the impugned order dated 23.6.2014 passed on the rectification of mistake application made by the petitioner, the Tribunal has rejected the application on the ground that in the absence of separate value of 16 mm TMT bars, separate duty cannot be assessed for 16 mm TMT bars. As noticed hereinabove, the learned counsel for the petitioner has clearly demonstrated before the court that the relevant material to establish the value of 16 mm TMT bars was already there on the record in the form of the bill of lading indicating the quantity of goods as well as the commercial invoices indicating the price of the 16 mm TMT bars.
Therefore, the duty of 16mm TMT bars can easily be worked out on the basis of the available record. Under the circumstances, the finding recorded by the Tribunal in the order dated 6.2.2014 as well as in the impugned order dated 23.6.2014 made on the rectification application to the effect that separate value of 16 mm TMT bars was not available, is clearly incorrect and contrary to the record. Under the circumstances, to that extent the finding recorded by the Tribunal is perverse to the record of the case. The impugned order dated 23.6.2014 being contrary to the record of the case, therefore, cannot be sustained. - Decided in favour of assessee.
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2015 (12) TMI 1433
Request for permission to sell an aircraft - Concessional rate of duty - Customs authorities formed a belief that the valuation declared by the petitioner at the time of import was not accurate and further that the petitioner had breached the condition on which the concessional rate of duty was applied - Held that:- Principal duty liability as indicated in the show cause notice is ₹ 8.78 crores. This principal amount of duty may further invite interest and penalties. However, it is not necessary that in every case maximum penalty would be levied. There is also a proposal for confiscation, of course, with the statutory provision of permitting redemption fine in lieu of confiscation. In totality of the facts of the case, we would adopt sum of ₹ 20 crores in all which would safeguard the interest of the revenue. In other words, as long as the petitioner offers full security for such sum, the permission for sale of the aircraft should be granted. - petitioner has already provided the bank guarantee of ₹ 10 crores to the department in addition to bond of ₹ 30 crores. The first condition would therefore be that these guarantees would be kept alive till the disposal of the show cause proceedings. - Petition disposed of.
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2015 (12) TMI 1432
Suspension of the Customs Broker Licence of the Petitioner - Petitioner is under invoicing the imports and thus, is evading payment of customs duty - Forfeiture of security - Bar of limitation - Held that:- Customs Broker Licensing Regulations, 2013 were promulgated in exercise of powers conferred under Sub-Section (2) of Section 146 of the Customs Act,1962. It is only under the regulations, the licence is granted and the regulations also contain various provisions to regulate the affairs of the customs broker including the revocation of the licence. The Regulations contemplates action against the customs broker dehors the provisions under the Customs Act. Therefore, the regulations cannot be treated as sub-ordinate legistlation. Moreover, every implementing authority of any fiscal statute is only performing a public duty. Therefore, it cannot be said that the provision is to be termed as directory just because its adherence is in the nature of performance of a public duty. What is to be considered is the object of the enactment in prescribing a period for the performance of such public duty. - an independent right is issued to the Commissioner to initiate action dehors the enquiry under other Regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited 2000 (11) TMI 144 - HIGH COURT OF JUDICATURE AT MADRAS, but the same has to be in strict compliance with the provisions. The law of limitation is common to both the parties. The provision not only enables the respondent to levy penalty, but also empowers the respondent to revoke the license, which is an extreme step curtailing the right to carry on any trade or profession as guaranteed by the Constitution of India.
Every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word shall in Regulation 11 as mandatory and not directory . Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term shall cannot be termed as directory . It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 08.04.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.01.2014.
Impugned show cause notice dated 13.7.2015 has been issued after 90 days from the date of the suspension order dated 27.3.2015 and the report of the investigating agency dated 17.3.2015 or in other words, from the date of knowledge of the offence. - court is of the view that the impugned show cause notice issued by the respondent is without jurisdiction, as it has been issued beyond the period prescribed in the regulations, which have statutory force and hence, not sustainable. - Decided in favour of Appellant.
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2015 (12) TMI 1431
Restoration of petitioner's courier license - seizure of goods since the goods were smuggled into India through a false declaration and in violation of Foreign Trade Policy, 2009-14 and the Customs Act, 1962 - unauthorized criminal act of an employee outside the purview of his employment - Held that:- Similar courier parcels were smuggled for 85 times for the past several months in the same modus by the Petitioner and that the Petitioner cannot claim to be unaware of the happenings when their employee was manipulating the system and entries made therein for over a period of several months. It is the specific case of the respondents that the Petitioner has not carried out the courier operations with due diligence and not complied with the Regulations under which the Petitioner was issued with the licence and has violated the provisions of the Act
Contentions of the Petitioner cannot be a basis to circumvent the appeal remedy available for the petitioner as per Section 129(A) of the Customs Act, 1962, since the said Section provides an efficacious alternative remedy before the Appellate Tribunal against the impugned order. There is also no justifiable grounds to bypass this appeal remedy. Further the issues pointed out by the Petitioner as well as the Respondents are questions of fact and the allegations that the Petitioner had earlier involved around 85 times and illegally cleared such goods against the Regulations, which have to be established by the Parties by producing records and could be examined by the appellate authority. That apart, in the impugned order itself, it has been clearly stated that any person aggrieved by the order can prefer an appeal to the CESTAT under Section 129A of the Customs Act.
Since the disputed questions cannot be gone into by this Court, leaving it open to the Petitioner to avail the statutory appeal remedy provided under the Act - Decided against Appellant.
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2015 (12) TMI 1430
Suspension of CHA License - Bill of Entries were filed by the Petitioner on behalf of M/s.Shahi Foods, Chennai and M/s.High Regards International, Chennai, declaring the goods as biscuits, juices, confectionery, cheese, sausages and beverages without obtaining authorization and without verifying the antecedents, correctness and identity of their clients and violated the provision of Regulation 13(a), 13(b), 13(d), 13(e) and 13(k) of CHALR 2004 (Regulation 11(a), 11(b), 11(d), 11(e) and 11(k) read with Regulation 18(b) of CBLR 2013) that the said importers mis-declared the value and retain sale price to evade the custom duty and hence, the Petitioner was suspended from working/performing the customs related activities - Held that:- The suspension of CHA licence was made on 19.11.2014, which was not within 15 days from the date of receipt of the report from DRI. On the representation of the Petitioner, the suspension was revoked by order dated 23.12.2014, accepting the delay of one year. However, by notice dated 23.12.2014 under Regulation 20, it was proposed to impose penalty and to forfeit the security, which is also barred by limitation. Despite the same, it is the case of the Respondents that on intelligence, it was found that the Petitioner misdeclared and undervalued the goods and has violated the provisions of the CBLR. - without going into the merits of the case, since the stay granted by this court in the other Writ Petition filed by the Petitioner is still in force and the subject matter of the said Writ Petition is also to be considered on merits and the application for renewal is also pending, pending consideration of renewal application, the Respondents are directed to permit the Petitioner to continue his business operations - Petition disposed of.
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2015 (12) TMI 1429
Rejection of the renewal application of the Petitioner to renew the Customs Broker Licence - Denial on the ground of partnership dispute - Held that:- When the Petitioner applied for renewal on 8.9.2014, it was not processed by the Respondent Department on the grievance made by one of the erstwhile partners Suresh Kumar Sain. Thereafter, in order to find out the genuineness of the grievance and enquire into the matter, the erstwhile partners, P.Manikandan, Amit Manchanda, Suresh Kumar Sain, Pradeep Kumar Sain and Balachandran and the Manging Partner were summoned and their statements were recorded on 29.12.2014, 30.12.2014 and 9.1.2015. All the erstwhile partners, in their respective statements, have categorically stated that they are not aware of the reconstituted partnership deed dated 2.4.2012 and the signatures contained in the said reconstituted partnership deed and their resignation letters dated 31.3.2012 were forged. Hence, on the suspicion that their signatures were forged, the said partnership deed dated 2.4.2012, the resignation letters dated 31.3.2012 and the statements were sent to the Forensic Department for expert opinion.
After analysis, the Forensic Department submitted a report dated 26.3.2015, opining that the signatures in question have been imitated and differ significantly from the standard in the handwriting characteristics and there was forgery of signatures. On the other hand, the Petitioner failed to disprove the forgery and the misconduct, by producing valid evidence. Therefore, ultimately it was held that there was no consensus among the partners of the Petitioner firm and the performance or act of the Petitioner was rightly held to be not satisfactory in terms of Regulation 9(2), inasmuch as the Petitioner contravened the said regulation, by submitting forged documents, which was proved by the forensic report and that claiming change in the constitution by forgery document would amount to misconduct and accordingly, the renewal application of the Petitioner was rejected and there is no illegality or infirmity in the impugned order. - Decided against Appellant.
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9911796707
