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Showing 281 to 300 of 1687 Records
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2023 (9) TMI 1407
Non allocation of the Plough symbol to the writ petitioner for its candidates to contest the then-upcoming General Elections of the Ladakh Autonomous Hill Development Council, Kargil - HELD THAT:- Elections to any office/body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold/conduct such elections is to be completely independent of any extraneous influence/consideration. It is surprising that the Union Territory of Ladakh not only denied R1 the Plough symbol, but even upon timely intervention by the learned Single Judge, has left no stone unturned not only to resist but also frustrate a cause simply by efflux of time.
The request for allotment of the Plough symbol by R1 was bonafide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it, in the factual background. What is also clear is that the Appellants are attempting to approbate and reprobate, which this Court will not countenance.
In the present case, there is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols. Thus, there was and is no impediment in such symbol being granted to R1. This is also fortified in the factual setting of the Plough symbol being the reserved symbol for R1 in the erstwhile State of Jammu and Kashmir and even for the Union Territory of Jammu and Kashmir, as it now exists, where the same symbol stands allotted to it.
The entire election process, initiated pursuant to Notification dated 02.08.2023 issued by the Administration of Union Territory of Ladakh, Election Department, UT Secretariat, Ladakh, under S.O.53 published vide No.Secy/Election/2023/290-301 dated 05.08.2023 stands set aside. A fresh Notification shall be issued within seven days from today for elections to constitute the 5 th Ladakh Autonomous Hill Development Council, Kargil. R1 is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it.
This appeal stands dismissed with costs of Rs.1,00,000/- to be deposited in the Supreme Court Advocates on Record Welfare Fund.
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2023 (9) TMI 1406
Maintainability of present appeal filed by Resolution Professional - HELD THAT:- The Resolution Professional should not have filed the present appeals. The Resolution Professional should have maintained a neutral stand. It is for the aggrieved parties, including the Committee of Creditors of Regen Powertech Private Limited (RPPL) and Regen Infrastructure and Services Private Limited (RISPL), to take appropriate proceedings or file an appeal before this Court.
The present appeals preferred by the Resolution Professional are dismissed as not entertained.
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2023 (9) TMI 1405
Illegal export of prohibited goods - red sanders - Suspension of approval which was granted to the appellants for operation as Customs Cargo Service Provider (CCSP) for a period of 15 days - Penalty u/s 117 ibid and Regulation 12(8) of HCCAR on appellant-custodian - recovery of the value of pilfered goods under Regulation 5(6) of HCCAR - removal of seized red sanders kept in safe custody in the appellants CFS, by substituting the container having seized goods with another empty container pasted with same unique container number, similar to the seized goods container, by certain unscrupulous elements - violations of clauses (a), (b), (f), (i) and (q) of sub-regulation (1) of Regulation 6 of Handling of Cargo in Customs Areas Regulations, 2009 (HCCAR) and Sections 45(2), 141 of the Customs Act, 1962.
HELD THAT:- It is a clear case of prohibited goods attempted for illegal export which were thwarted by SIIB wing of JNCH Customs by taking timely action and thus such export goods attempted for illegal export was rightly seized as the same were liable to confiscation under Section 113 of the Customs Act, 1962.
The argument advanced by learned Advocate for the appellants that the seized container was not an export cargo, but was kept in safe custody as a courtesy to customs department and the copy of Panchanama was not available with them, is factually incorrect.
The memorandum attached to the Finance Bill, 2008 provides full information and, purport and effect of the delegation of power to subordinate authorities, the points which may be covered in the area of delegation, the particulars of subordinate authorities who are to exercise the delegated powers, and the manner in which such power is to be exercised, in respect of the above amendment. Thus the sub-section (2)n of Section 141 became part of the Customs Act, 1962, upon passing of Finance Act, 2008 w.e.f. 10.09.2008. Therefore, the Handling of Cargo in Customs Areas Regulations, 2008 (HCCAR) which had been framed by CBEC in exercise of the powers thereof, as provided under Section 141(2) ibid, has proper force of law. Thus, an order passed by the learned Commissioner in exercise of the powers vested with him under Regulation 12(7) of HCCAR for suspension, imposition of penalty is legally sustainable.
From the detailed analysis of the background of the legislation for incorporating Section 141(2) in the Customs Act, 1962, and the formulation of HCCAR, it is clear that custodians appointed under Section 45(2) ibid, subsequent to the implementation of HCCAR, were also required to be approved as CCSP for handling of import/export goods in a customs area under Section 141(2) ibid and HCCAR. Considering the factual position that the appellants were notified by the jurisdictional Commissioner of Customs for handling both the export and import containers as well as for processing of related documents, right from the beginning vide various notifications dated 18.07.1999, and subsequent renewals vide notifications dated 11.11.2003, 21.03.2006, 04.01.2011 and thereafter periodically till the last renewal on 14.10.2020, the appellants cannot escape from the responsibilities and obligations cast upon them as CFS operator and CCSP under HCCAR for proper handling of import/export goods as mandated under Section 141(1) and (2) ibid.
The nature of the goods have clearly proved as ‘export goods’ and precisely for the illegal act of export, the customs authorities have initiated action on various persons concerned separately the provisions of Customs Act, 1962. Therefore, the argument advanced by the learned Advocate for the appellants that the goods under seizure, which were pilfered, are not ‘export goods’ do not find any support of law.
It is clearly proved by the factual reports arising out of the investigation conducted by Customs and Police authorities, and hence there are no hesitation in arriving at the conclusion that the appellants did not fulfil the conditions of Regulation 5(1)(i)(n) and 6(1)(i), by their failure to restrict unauthorized access into the premises and allowing the pilferage of goods and by their failure to provide safe and secure storage facility of customs seized goods kept in the containers within CONCOR-DRT CFS premises and allowed certain unauthorized persons to remove the customs seized goods.
The responsibility of the custodian under Section 45(2) is to keep the imported goods in safe custody, maintaining of records and not to permit its removal without any authorization from Customs. The absence of proper system of security, control and maintenance of records in the present case of seized export goods mutatis mutandis apply to the imported goods also. Hence the appellant cannot escape from the responsibilities and obligations cast upon them as CFS operator under HCCAR for proper handling of import/export goods. In view of this, the appellants have failed to fulfil the responsibilities entrusted on them under Regulation 6(1)(a) and 6(1)(b) of HCCAR.
Section 117 of Customs Act, 1962 provide for imposition of penalty on any person who contravenes any provision of the said Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, to be liable to a penalty not exceeding four lakhs rupees. The maximum amount of penalty prescribed under Section 117 initially at Rs. One lakh was revised upwards to Rs. Four lakhs, with effect from 01.08.2019 - The detailed discussions clearly prove that the appellants not only failed to fulfil the conditions and to abide by the responsibilities reposed on them as CCSP, but also failed to rectify the situation as one another attempt was made again for illegal removal of seized red sanders, which was identified by SIIB Customs on 14.08.2014. Hence, there are clear violations of the HCCAR and Section 141(2) of the Customs Act, 1962 by the appellant and thus we do not find any infirmity in the impugned order imposing penalty under Section 117 ibid on the appellants.
The appeal filed by the appellants is dismissed.
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2023 (9) TMI 1404
Inaction on the part of the Authority - order was passed by this Court on 14.08.2023 whereas warrant of arrest was issued by the Executive Magistrate on 19.08.2023 - HELD THAT:- Upon examination of the order passed by this Court, it appears that though the order was passed on 14.08.2023, it was placed before the Special Magistrate only on 22.08.2023, when the warrant of arrest had already been issued on 19.08.2023. Therefore, it is opined that the respondent cannot be prima facie found guilty of having acted in contempt of order dated 14.08.2023, as the warrant of arrest was issued even before the said order was placed before the Authority. However, learned counsel for the petitioner also submits that an application for recall of the NBW has been filed by the petitioner before the Authority on 24.08.2023.
It is deemed appropriate to dispose of this contempt petition with a request to the learned Authority to pass an order on the application for recalling of warrant within a period of one week from the date on which the certified copy of this order is placed before the learned Authority.
This contempt petition stands disposed of.
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2023 (9) TMI 1403
CENVAT Credit - input service distribution - assessee availed cenvat credit of service tax paid on invoices issued by ABMCPL - It was observed that ABMCPL was merely distributing credit despite not being an input service distributor and hence cenvat credit is not available to the assessee since it was a violation of provisions of Rule 2 (l),Rule 7 and Rule 9 of the Cenvat Credit Rules, 2004.
HELD THAT:- It is found that the assessee’s own case for the earlier period, this issue came up before this Tribunal in M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2023 (6) TMI 457 - CESTAT KOLKATA] and this Tribunal has observed the services rendered by the ABMCPL is rightly classifiable under the category of ‘Business Support Service’ and ABMCPL has rightly paid Service Tax under the said category. The service tax paid by ABMCPL has been rightly distributed to their group companies, including Appellant.”
As the issue has already been decided in favour of the assessee, therefore, the service rendered by ABMCPL is rightly classifiable under the category of BSS and ABMCPL has rightly paid the service tax under the said category and the service tax paid by ABMCPL has rightly been distributed to their group companies including the assessee - the assessee is entitled to take the cenvat credit on the services distributed by ABMCPL.
The appeals filed by the assessee are allowed and the appeal filed by the Revenue is dismissed.
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2023 (9) TMI 1402
Valuation of imported goods - various kinds of scrap of aluminium like zorba, tally and twitch - enhancement of assessable value on the basis of contemporaneous imports data - rejection of appeals primarily for the reason that the appellant had accepted the re-determined enhanced value of the imported aluminium scrap in writing and thereafter cleared the imported goods after paying duty on the enhanced value - HELD THAT:- It would be seen that section 14 of the Customs Act provides that the transaction value of goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer and the seller of the goods are not related and the price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules made in this behalf - It would be seen that though in a case where re-assessment has to be done under sub-section (4) of section 17 of the Customs Act, the proper officer is required to pass a speaking order on the re-assessment, but if the importer or exporter confirms his acceptance of the re-assessment, a speaking order is not required to be passed.
It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Subsection (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper officer shall pass a speaking order on the re-assessment, except in a case where the importer confirms his acceptance of the said re-assessment in writing - In the present case, the proper officer doubted the truth or accuracy of the value declared by the appellant for the reason that contemporaneous data had a significantly higher value. It was open to the appellant to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared and seek a reasonable opportunity of being heard, but the appellant did not do so.
It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance in writing.
The very fact that the appellant had agreed for enhancement of the declared value in the letters submitted to the assessing authority, itself implies that the appellant had not accepted the value declared by it in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the appellant had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules - There was no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially.
Once the appellant had accepted the enhanced value it was not necessary for the revenue to determine the valuation as the consented value, in effect, became the declared transaction value. Further, once the appellant accepted the enhanced value it would not be open to the appellant to now contend that the procedure as contemplated under rule 12 of the Valuation Rules should have been complied with.
In M/s Sunland Alloys vs C.C.,- Ahmedabad [2020 (6) TMI 71 - CESTAT AHMEDABAD] the Tribunal found that the assessing authority had reassessed the Bills of Entries by enhancing the value not on the basis of the any material evidence but on the basis of Director General of Valuation guideline letter dated 15.11.2018. The Tribunal held that the assessing officer should have followed the provisions of the Valuation Rules and should not have made the reassessment only on the basis of the Director General of Valuation guideline. The reason would, therefore, not help the appellant.
There is, therefore, no good reason to interfere with the orders passed by the Commissioner (Appeals) upholding the orders of reassessment - Appeal dismissed.
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2023 (9) TMI 1401
Foreign tax credits u/s 90/90A - non compliance of procedural requirement - claim denied as form 67 was filed after the due date of filing the return of income - HELD THAT:- As decided in SHRI RITESH KUMAR GARG case [2022 (9) TMI 926 - ITAT JAIPUR] neither section 90 nor DTAA provides that FTC shall be disallowed for non compliance with any procedural requirements. Since FTC is assessee’s vested right as per Article 22(2) of the DTAA read with section 90 and thus same cannot be disallowed for non compliance of procedural requirement that is prescribed in the Rules.
The procedural law is always subservient to and is in aid to justice. Even otherwise, since there are no conditions prescribed in DTAA that FTC can be disallowed for non compliance of any procedural provision, therefore, the provisions of DTAA override the provisions of the Act. As the assessee has vested right to claim the FTC under the tax treaty and the same cannot be disallowed for mere delay in compliance of a procedural provision.
Even otherwise, the said Form 67 filed by the assessee before the tax authorities was available before the AO when the intimation under section 143(1) of the Act was passed. Therefore, in such circumstances, in my view, there were no reasons with the tax authorities for making disallowance when the said Form 67 was very much available with the AO at the time of framing the assessment - assessee is entitled for the credit of FTC under section 90 - Decided in favour of assessee.
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2023 (9) TMI 1400
Appointment of Administrator of DHFL to perform all functions of the Resolution Professional (RP) under the Code and to conduct the Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor – Dewan Housing Finance Corporation Limited - HELD THAT:- Notice will be served by all modes, including dasti, to all unrepresented respondents on steps being taken within a period of ten days from today - Notwithstanding pendency of the present appeal, proceedings under Sections 43 to 66 of the Insolvency and Bankruptcy Code, 2016 can continue.
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2023 (9) TMI 1399
Seeking condonation of gross delay of 289 days in filing the appeal - HELD THAT:- The explanation offered by the appellant seeking condonation of delay not satisfied - the application seeking condonation of delay is dismissed.
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2023 (9) TMI 1398
Valuation of imported goods - machinery oil /machinery lubricant oil - rejection of declared value - redetermination of value - Ash content in the samples - it was held by Tribunal that It is settled position of law that unless the transaction value could be established to be improper upon the finding that import invoices were either fabricated or fake or that any relationship exists between the importer and the exporter, the transaction value has to be accepted as correct value for assessment under Rule 3 of the Customs Valuation Rules, 2007.
HELD THAT:- There are no reason to interfere with the order(s) impugned in these appeals - appeal dismissed.
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2023 (9) TMI 1397
Levy of penalty - guar gum was of food grade or not - Revenue’s contention that it is of food grade is based on the test reports of AES to whom the samples were sent by CRCL - valuation should be based on transaction value or not - Rejection of transaction value - Tribunal held that The impugned order is correct in rejecting the transaction value and re-determining the value based on the contemporaneous values of imports available in NIDB.
HELD THAT:- There are no reason to interfere with the order(s) impugned in these appeals - appeal dismissed.
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2023 (9) TMI 1396
Refund of deposit made at the time of provisional clearance of the goods - applicability of principles of unjust enrichment - HELD THAT:- This Court considered an identical question in Commissioner of Customs v. Hindustan Zinc Limited Through its Managing Director [2023 (9) TMI 1302 - SUPREME COURT]. The Court had in that case ruled that the judgment in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [2004 (3) TMI 63 - SUPREME COURT] and the earlier judgment in Commissioner of Customs, New Delhi v. M/s. Oriental Exports, New Delhi [2006 (4) TMI 501 - SUPREME COURT], were applicable and binding.
The revenue’s appeal must therefore be rejected - Appeal dismissed.
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2023 (9) TMI 1395
Refund of Terminal Excise Duty - deemed exports - HELD THAT:- The issue in the present matter is no longer res integra in view of the authoritative pronouncement of the Apex Court in the case of SANDOZ PRIVATE LIMITED VERSUS UNION OF INDIA & OTHERS [2022 (1) TMI 225 - SUPREME COURT] - the Apex Court has considered Chapter 8 of FTP and also the policy circular dated 15.03.2013 and held that EOU entities who had procured and imported specified goods from DTA supplier are entitled to do so without payment of duty having been ab initio exempted from such liability under para No.6.11(c)(ii) of the FTP, being deemed exports.
Thus, no error has been committed by the learned Single Judge. The writ appeal, as such, is dismissed.
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2023 (9) TMI 1394
Validity of summons issued in the course of investigation - DRI is a proper officer to issue SCN or not - Detention order passed against the father of the petitioner - HELD THAT:- It is well settled that investigation should not be interfered with except in grave and special circumstances and where it would be manifest that no offence had been committed. Bearing in mind the material which stands placed on the record, the relief claimed cannot be sustained - It is by now well settled that High Courts in exercise of either their inherent powers under Section 482 of the Code of Criminal Procedure, 1973 or their constitutional power flowing from Article 226 of the Constitution would interfere with an ongoing investigation or thwart it only in rare and exceptional cases and where it may be established that no offense at all appears to have been committed.
The power to arrest stands conferred upon the respondents to be utilised in aid of the enquiry or investigation which may be ongoing. The respondents upon forming the requisite opinion of the presence of a party being required in the course of investigation or inquiry are duly empowered by the statute to summon persons who may then be asked to participate in the inquiry that is pending.
Detention order passed against the father of the petitioner - HELD THAT:- The learned counsel completely fails to appreciate that the aforesaid detention order has come to be passed by virtue of the provisions made in Section 3 of the COFEPOSA. Section 3 is a preventive measure which is adopted in terms of the provisions contained in COFEPOSA and is designed to ensure that a person against whom requisite belief or opinion has been formed and who is habitually engaged in the commission of offences is restrained from proceeding in violation of the law. This is also evident from the following satisfaction which has come to be recorded by the competent authorities and stands so reflected in the order of detention.
It is observed that while certain questions of law do appear to have been framed for further consideration, there is no restraint in the interregnum for the authorities duly empowered under the Act to proceed in accordance with law.
There are no merit in the instant writ petition. It shall stand dismissed.
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2023 (9) TMI 1393
Seeking release of detained goods - perishable goods - Inshell Walnuts and Almonds - seeking direction to respondent authorities to release the cargo without insisting upon NOC from first consignee as per the notification no.47/2017 dated 11.04.2017 as the said company is desirous of purchasing the cargo - HELD THAT:- It appears that there is a dispute with regard to the ownership of the goods between the petitioners of both the petitions and in absence of bills of entry being filed with the respondent authorities, it would not be possible for the custom authorities to make assessment order for determining the duty payable for release of the goods either for home consumption or for warehousing the same.
Without prejudice to the rights and contentions to be raised by all the parties and to see that the perishable goods in question are released by customs after proper assessment and to keep such goods in warehouse, if required-in a refrigerated warehouse, the respondent no.5 - Zestmarine Services Private Limited is directed to file Bills of Entry in respect of all the seven Bills of Lading before the respondent - Custom Authorities within a period of one week from today - respondent Customs Authorities as well as Assessment-cum-Authorized Officer, Kandla SEZ, are directed to pass assessment order on Bills of Entry to be filed by the respondent no.5 within a period of one week from the date of receipt of the same for warehousing purpose. It is clarified that the Bills of Entry would further be assessed for home consumption as per the further orders which may be passed by this Court.
Stand over to 12.10.2023 for further orders.
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2023 (9) TMI 1392
Classification of imported goods - coloured rubber granules - import policy restrictions - whether the importation of goods are ‘Restricted’ or ‘Free’ depending upon classification of the imported goods under the First Schedule to the Customs Tariff?
HELD THAT:- The description of the heading for 4001 specify that it covers products of ‘natural rubber in primary forms or in plates, sheets or strip’; similarly the description of heading 4002 provides that it covers ‘Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip’. Further, heading 4003 covers ‘reclaimed rubber in primary forms or in plates, sheets or strip’ and heading 4004 covers under its scope ‘waste, parings and scrap of rubber (other than hard rubber) and powders and granules obtained therefrom’.
The imported goods are to be treated as finished goods instead of raw rubber in any primary forms. Thus by the scope of coverage of the chapter heading 4001 and 4002 and its tariff entries, relative Chapter Note 5(A), inasmuch as there is presence of pigments/colouring matter, carbon black and accelerators in the imported goods, it does not merit classification under heading 4001 as well as 4002.
The imported goods is presented in granules of size 2mm to 4mm which is one of the primary form and are being used for outdoor rubber tiles, indoor rubber mats, rubber pavers etc. and thus are covered under chapter heading 4003. The relevant import policy for goods of chapter heading 4003 are ‘Free’ and there are no restrictions on import. Thus, the impugned order proposing absolute confiscation of imported goods classifying the imported goods under tariff item 4004 0000 is not legally sustainable.
From the plain reading of the entry in the restrictions placed under Basel No. B 3080 of Part-B to Schedule III, it is clear that this entry do not cover the granules of rubber derived from truck tyres. The Prior Informed Consent procedure and permission to be obtained by the importer is applicable only to ‘waste, parings and scrap of rubber’. Hence, even otherwise, irrespective of the policy condition not being applicable to imported goods of chapter 4003, there is no restriction from the point of HW Rules, 2016.
The impugned order passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai-II set aside - appeal allowed.
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2023 (9) TMI 1391
Suspension of Customs Broker License in exercise of authority under regulation 16 of Customs Broker Licencing Regulations, 2018 - HELD THAT:- No case has been made out in the impugned order that continued operation of the appellant as ‘customs broker’ would prejudice public interest or jeopardizing the investigations. The decision to suspend the licence was taken on 19th September 2022 which is more than a month after the impugned goods had been seized; moreover, statement of responsible person in the appellant-company was also recorded well before such suspension and there is nothing contained therein that could have prompted such apprehension.
Many months have passed since the impugned order and the timeframe prescribed for initiation of proceedings had also elapsed in the meanwhile. Learned Authorized Representative has not been able to shed any light on such proposal. One of the essential conditions for legitimize suspension is the intent to do so. The impugned order appears to have been issued without deliberating on such intent.
The revocation of suspension of the licence directed with immediate effect - impugned order set aside - appeal allowed.
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2023 (9) TMI 1390
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - Advance Authorisation scheme - recovery of Customs Duty - HELD THAT:- It is on the finding of breach of obligation to advise client to comply with statutory provisions and for reporting any non-compliance thereof and to discharge duties as customs broker with utmost speed and efficiency that the extreme detriment has been visited on the appellant. This has been rendered on the finding that no activity was undertaken at the premises of the importer or their supporting manufacturers, M/s Crocus Enterprises or M/s Maks Technologies, which, ostensibly, would have come to light had the appellant undertaken necessary inquiries before taking on their assignment.
There are no evidence in the records that the appellant had not undertaken a preliminary ascertainment of the existence and identity of the importer; indeed, it is on record that the importer was an undertaking of standing. There is also no allegation about any misdeclaration in the bills of entry filed for clearance of ‘plastic granules’ imported under the scheme.
Doubtlessly, ‘customs broking’ does fall within the logistic sector and it is not inconceivable that such ‘brokers’ do undertake activities that precede as well as follow from such licenced functions which is not legal ground to bring such too within the ambit of Regulations intended for a specific purpose. Therefore, any activity that occurs after clearance of goods is clearly beyond the jurisdiction of Customs Broker Licencing Regulations, 2018.
The inquiry report, as concurred with by the licencing authority, is bereft of any foundation that could lead to a conclusion that obligations in regulation 10 of Customs Broker Licencing Regulations, 2018 had been breached by the appellant - Appeal allowed.
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2023 (9) TMI 1389
Suspension of license of the Custom Broker (CB) - shipping bills filed during the period of 27.02.2021 to 15.05.2021 on behalf of an exporter whose first GSTIN was Suo-moto cancelled retrospectively, and the second GSTIN although active, was non-functional at the registered premises - HELD THAT:- The Revenue has not brought forward any evidence that the earlier export documents filed by the appellant are fabricated or manipulated. The Revenue has also not been able to lead any evidence that the said exporter was not existent at the time of export, and the CB had connived in any fraud to defraud the Government exchequer. It has also been brought on record that one of the GSTINs was still in existence at the time of suspension of the appellant’s license.
Although there is enough power vested in the Commissioner to suspend the license of Custom Broker, in terms of Customs Brokers Licensing Regulations, 2018, however the said power which impacts the livelihood of the person and his employees needs to be exercised with caution and in accordance with the inbuilt safeguards, to prevent the arbitrary and reckless use of the power - in the present case, Commissioner has not recorded any reason for the cause of immediate suspension. Infact, there is no cogent reason or finding recorded by the Commissioner to suspend the license of the appellant two years after the date of export.
The present impugned order passed under Regulation 16 is without there being any finding as to why immediate action is necessary to suspend the license - Appeal allowed.
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2023 (9) TMI 1388
Mis-declaration of imported goods - Import of new footwear - Non-declaration of imported goods as stock-lot - country of origin of goods - valuation of goods - HELD THAT:- The OIO passed by the Adjudicating Authority who has passed the OIO after granting the Personal Hearing on 02/03/2011 which was attended by two Consultants on behalf of the Noticee.
Non-declaration of imported goods as stock-lot - HELD THAT:- The notice, at the time of submission of B/E and the concerned Invoice, did not declare the imported goods as stock-lot. But later on, they produced a copy of a correspondence with the seller of the goods where it had been mentioned that the goods they wanted to import were stock losts. Now, from the study of the case and reply of the notice, it is observed that the notice imported the goods taking the opportunity of economic recession in European Countries which were making hectic efforts to sell their products at a reduced price with some conditions - the factor that worked behind the import of shoes at a uniform rate in this case irrespective of size and quality was only to get the benefit of stock clearance at a reduced sale price by the exporter who faced certain problems related to market economy. This is not a case of sale of seconds or old goods. The notice also admitted in their written submission that they imported new footwear and also from the correspondence made by the importer with paolo Sanini Spol, the exporter, there are no mention that the footwear so imported as of second-hand quality.
Country of origin of goods - HELD THAT:- The noticee in the B/E declared the country of origin of the product as China. However, during joint examination of the consignment at ICD, it was observed by the departmental officers that there was only a nominal number of footwear that were of Chinese origin. Most of the goods were of Austrian origin - the notices therefore had misdeclared their goods as goods of Chinese origin.
Valuation of goods - HELD THAT:- The notice declared the goods as stock lot and submitted in the B/E the discounted value as transaction value. Since the goods have been, as discussed before, not stock lots but new ones and are liable to be sold in India as new ones, therefore, it is observed that the value shown in the B/E was not the real value of the imported goods but a very much reduced value and had no nexus with actual sale price of the goods. Therefore, transaction value in terms of Section 14 of the Customs Act, 1962 read with Rule 3(1) of CVR’07 was not applicable - residual Rule 9 of CVR’07 is applicable in this case.
The Adjudicating Authority has gone into considerable details of the consignment imported and has passed a very considered Order justifying all his findings - there are no reason to interfere with the same - appeal dismissed.
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9911796707
