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Showing 321 to 340 of 1051 Records
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2013 (1) TMI 742
Impounding of passport - non speaking order - Held that:- The subject order is apparently a non-speaking order. The contentions of the petitioner have not been recorded and from the order it is not clear whether the submissions made by the petitioner have at all been considered. The communication dated 29th October, 2012 being non-speaking the impugned decision to impound the passport of the petitioner cannot be sustained. The impugned decision is set aside and quashed. - it is not in dispute that the petitioner had been found bringing in goods, which had not been declared. In the circumstances, this Court is not inclined to direct return of the passport to the petitioner. - Matter remanded back - Decided partly in favour of appellant.
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2013 (1) TMI 741
Denial to release the consignment - Consignment to be shipped to Nepal - Held that: - The consignment has not yet been released possibly since the Officer-in-Charge of the concerned police station has not yet given no objection to release of the consignment in question. There are apparently no materials to show that the petitioner had removed the cartons in question. The cartons were stolen from the port area. The theft took place on or about 25th August, 2012. Over four and a half months have elapsed. The police authorities have had sufficient time for investigation. In the absence of any finding of any complicity of the petitioner in the theft, there could be no question of detaining the rest of the cartons. Nor could the petitioner have been called upon to get no objection from the police. - Customs authorities are directed, to release the goods in question for onward journey to Nepal - Decided in favour of appellant.
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2013 (1) TMI 740
Clearing and Forwarding Agent Service - Held that:- Impugned demand of service tax is on these expenses, which were incurred by the appellant, while rendering CFA service. The learned consultant for the appellant has referred to Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 and has submitted that this provision has been struck down by the Hon'ble High Court vide Intercontinental Consultants and Technocrats Pvt. Ltd. Vs Union of India and Another reported in [2012 (12) TMI 150 - DELHI HIGH COURT] - we grant waiver of pre-deposit and stay of recovery in the wake of the relevant rule having been struck down by the Hon'ble Delhi High Court. Prima facie, therefore, the reimbursable expenses were not liable to be included in the taxable value for payment of service tax on CFA service. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the adjudged dues - Stay granted.
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2013 (1) TMI 739
Acts of piracy on the high seas - exclusive economic zone - jurisdiction of the State of Kerala and the Circle Inspector of Police, Kollam District, Kerala, to register the F.I.R. and to conduct investigation on the basis thereof or to arrest the petitioner Nos.2 and 3 and to produce them before the Magistrate. - Held that:- while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty upto 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of UNCLOS 1982. I agree with Mr. Salve that the “Declaration on Principles of International Law Concerning Family Relations and Cooperation between States in accordance with the Charter of the United Nations” has to be conducted only at the level of the Federal or Central Government and cannot be the subject matter of a proceeding initiated by a Provincial/State Government.
Issue of sovereignty - Held that:- sovereignty is not “given”, but it is only asserted. No doubt, under the Maritime Zones Act, the Parliament expressly asserted sovereignty of this country over the territorial waters but, simultaneously, asserted its authority to determine / alter the limit of the territorial waters.
At any rate, the issue is not whether India can and, in fact, has asserted its sovereignty over areas beyond the territorial waters. The issue in the instant case is the authority of the Parliament to extend the laws beyond its territorial waters and the jurisdiction of this Court to examine the legality of such exercise. Even on the facts of Aban Loyd case, it can be noticed that the operation of the Customs Act was extended beyond the territorial waters of India and this Court found it clearly permissible although on the authority conferred by the Maritime Zones Act. The implications of Article 245(2) did not fall for consideration of this Court in that Judgment.
The expression “incident of navigation” occurring under Article 97 of the UNCLOS is not a defined expression. Therefore, necessarily the meaning of the expression must be ascertained from the context and scheme of the relevant provisions of the UNCLOS. Article 97 occurs in Part-VII of the UNCLOS, which deals with “HIGH SEAS”.
From the language of Article 86 it is made very clear that Part-VII applies only to that part of the sea which is not included in the exclusive economic zone, territorial waters, etc. - Therefore, Article 97 of UNCLOS has no application to the exclusive economic zone, of which the contiguous zone is a part and that is the area relevant, in the context of the incident in question. For that reason, the second submission of Shri Salve should also fail.
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2013 (1) TMI 738
Infringement of trade mark - Whether Section 134 of the Trade Marks Act, 1999 oust Section 20 of the Code of Civil Procedure, 1908? - Amendment of pleadings - Held that:- Whether Section 134 of the Trade Marks Act, 1999 oust Section 20 of the Code of Civil Procedure, 1908 - The answer to the aforesaid question is no longer res integra. In the decision reported as (DB) Intas Pharmaceuticals Ltd. v Allergan Inc [2006 (7) TMI 651 - Delhi High Court ] it was held by a Division Bench of this Court that Section 134 of the Trade Marks Act does not whittle down the provisions of Section 20 of the Code of Civil Procedure but provides an additional forum and a place for filing a suit in case of an infringement of a trademark.
Amendment of pleadings - It was felt that the provision for amendment of pleadings was one of the significant sources of delay in the judicial process. In the year 1999, as per the recommendations of Law Commission, the provision for amendment of pleadings was altogether deleted by Amendment Act No.46 of 1999. The deletion of the provision led to widespread protests by lawyers and different legal bodies and as a result in the year 2002 the provision was once again introduced, albeit with a rider, by Amendment Act No.22 of 2002. By virtue of said amendment, a proviso was appended to Rule 17, which reads as under:-"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
As held by the Supreme Court in Vidyabai & Ors v. Padmalatha & Anr. [2008 (12) TMI 723 - SUPREME COURT OF INDIA], a "trial‟ is deemed to commence when the issues are settled and the case is set down for recording of evidence. In the instant case, the learned Single Judge settled issues in the present suit on March 04, 2010 and set out the suit for final hearing for the parties had agreed between the parties that they would not lead any evidence in the suit and the learned Single Judge shall decide the suit on the basis of the pleadings of the parties and examine the original documents filed by the parties, if necessary, at the time of hearing. Thus, the trial commenced in the present suit on March 04, 2010.
The respondents could have easily incorporated amendments (a) and (f) in the plaint filed by them but they failed to do so due to oversight and bona fide error. It is not the case of the respondents that in spite of exercise of due diligence they could not incorporate amendments (a) to (f) in the plaint filed by them. Such being the factual position, the application for amendment of plaint filed by the respondents in respect of amendments (a) to (f) could not have been allowed.
We note the dictum of law laid down by the Supreme Court in State of A.P. & Ors v Pioneer Builders & Ors [2006 (9) TMI 534 - SUPREME COURT OF INDIA] that one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. Applying the same analogy, it can safely be concluded that it is impermissible for a plaintiff to change the ground for invocation of jurisdiction of a Court by means of an amendment.
We are also of opinion that the conduct of the respondents of deleting paragraph 14 of the (original) plaint which was demonstrative of paltry circulation of magazine VOGUE in India between the years 2000 to 2007 and thus militated against the case set up by the respondents that said magazine was widely circulated in India since last two decades is a very strong pointer to the fact that the respondents sought to remove the defects occurring in their plaint by means of amendment of the plaint. In view of above discussion, the impugned order dated November 18, 2011 passed by the learned Single Judge allowing the amendment of plaint and impleading Priority Marketing Pvt. Ltd. as defendant No.2 in the present suit is set aside. - Decided in favour of appellant.
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2013 (1) TMI 737
Addition on account of illegal transportation of stones resulting into undisclosed sales - Held that:- Issue of expenses under the head of transportation and labour charges for obtaining illegal stock was remitted to the file of AO for a fresh consideration in accordance with the appellate orders of the District Magistrate, Nainital on this issue. Thus remit the issue to the file of AO to consider the same afresh after examining and considering the appellate orders of the higher authorities on this issue. The matter for adjudication is pending before the Divisional Commissioner, Nainital. Both the authorities have totally relied upon the order of the DM, Nainital. Since the same is pending before the DM, Nainital, the same cannot be said to be final and conclusive. Accordingly, respectfully following the above precedent, we remit the issue to the file of the Assessing Officer to consider the same afresh, after examining the appellate orders of DM, Nainital on this issue - Decided in favour of assessee for statistical purposes.
Disallowance of compounding fees imposed by the govt. on illegal transportation of stones - Held that:- As issue of allowance of compounding fee of ₹ 28,21,615/- was not raised before the authorities below and is being raised first before the tribunal. In our considered opinion, this matter is related to the issue raised in appeal and we deem it appropriate to remit the file to the Assessing Officer, since other issue has been remitted to him. Accordingly, this issue is also remitted to the file of the Assessing Officer.- Decided in favour of assessee for statistical purposes.
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2013 (1) TMI 736
Supplementary Order u/s 27 of the Competition Act, 2002 - In earlier order Commission found that DLF Ltd. had abused its dominant position and violated the provisions of Section 4 of the Competition Act, 2002 - Held that:- The Commission, in its order, observed that while heavy penalties were imposed in the agreement for default of allottee, there were insignificant penalties on DLF for its own defaults. A reference was made to clause 35 of the agreement, which shows abuse of dominance. The company can refuse to condone delay and can cancel the apartment even if the allottee was prepared to pay interest on delayed payment. While in case of company, the company for itself has reserved so many excuses for non delivery of possession and for scrapping the contract altogether or for delaying the project.
It has given itself the powers to extend the period of delivering possession but for the allottee, the sole discretion lies with the company to cancel the flat in case of delayed payment. In case of condoning delay, the Company could be charging interest to the tune of 15% for 1st 90 days and thereafter 18%. However, for the default of the company, the company was liable to pay only 9% interest to the allottee on only such amount which the company deemed refundable to the allottee. That makes the clause abusive, one sided and shows blatant abuse of dominance.
In clause 12, the company has given events of defaults and consequences for the allottee. The company has nowhere given in the entire agreement the events of defaults for itself. The Commission considers that the defaults can be on the part of the company as well on the part of the allottees and the agreement should provide for defaults of both the parties and the agreement must be equitable in dealing with both the sides and levy of interest /penalty should of equal level on both sides. The Commission also considers that Force Majeure in clause 39 should be defined as understood in common parlance of law. The consequent modifications are suggested in the clauses 35 & 39.
In view of the modified clauses/sub clauses as suggested above in the agreement, certain clauses/sub clauses of the agreement have become superfluous. The Commission has suggested deletion of these clauses. Certain clauses of the agreement, in view of the suggested modified clauses, needed small changes so as to bring them in consonance with the modified clauses. These changes are minor in nature and have been suggested wherever needed. Some clauses are closely interlinked with the abusive clauses and had to be modified so that the abuse was not perpetuated. These interlinked clauses wherever existed have been accordingly modified. The clauses which needed fine tuning with the modified clauses have also been accordingly modified and the suggested clauses have been given in the table below.
The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications. The agreement should be signed within a reasonable time from the date of allotment and all additional amounts should be demanded from the allottee only when the agreement has been signed. Any allottee, who was not agreeable to the terms of agreement, should have liberty to withdraw his application and should be given the entire application amount back.
The Commission thus considered all the clauses of the Buyer's Agreement. The reasons for proposed modification are given.The modifications suggested have been given in tabular form at the end opposite the existing clause.
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2013 (1) TMI 735
Undervaluation of goods - Hawala transactions - Penalty u/s 112 - Held that:- Penalties have been imposed on the appellant on the basis of a statement recorded during the course of investigation and as well as on the basis of the statement of co-noticees. In this case, the appellant has specifically asked for cross-examination of some of the witnesses whose statements were relied upon by the adjudicating authority but cross-examination of some was not granted. Therefore, reliance made on the basis of co-noticees statement is incorrect. - Further, the adjudicating authority has not denied the contents of the affidavit/medical certificate filed by the appellant during the course of proceedings. In the absence of denial of the contents of both documents, therefore the statement recorded on 11-11-2009 is not corroborated with concrete evidence for imposing the penalty on the appellant. Moreover, the decision of Special Bench of the Settlement Commission is not binding on the Tribunal and Tribunal is bound by the decision of this Tribunal. - Therefore relying on the decision of Vijay R. Bohra (2010 (10) TMI 218 - CESTAT, AHMEDABAD), in this case also proceedings against the appellant come to an end. Therefore, no penalty is imposable.- Decided in favour of assessee.
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2013 (1) TMI 734
Entitlement to the benefit of Section 10B - Held that:- CIT(A) and the Tribunal had, in the present case, not gone into the merits of the alternative claim for entitlement under Section 10A. This fact is apparent from a reading of the order of CIT(A) as well as that of the Tribunal in the order impugned. In the circumstances, the Tribunal shall consider the relevant documents on the basis of the claims and ascertain whether the applicant is entitled to the benefit of Section 10A, as claimed. The judgment and order of this Court dated 17.09.2012 is accordingly modified; the Tribunal shall proceed to pass appropriate orders after hearing both parties.
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2013 (1) TMI 733
Revision u/s 263 - CIR(A) directed ao to allow depreciation on windmill at 40 per cent on windmill - Held that:- While completing the assessment under section 143(3) of the Act, the Assessing Officer has not discussed about the issue of depreciation of windmill, may be for the reason that he was satisfied that the assessee is eligible for depreciation and, therefore, since he has not disallowed any part of depreciation, there was no need for any discussion in the assessment order.
Ledger account of the windmill in the books of the assessee we could see that the assessee has made initial payment of ₹ 13.50 lakhs to the supplier and the rest of the payments were made by the Indian Overseas Bank to the supplier directly from October 6, 2006 onwards. The TNEB has issued a letter dated September 30, 2006 stating that generation of power by the windmill has been effected on September 29, 2006. The Department has not disputed the certificate issued by the TNEB that the windmill effected supply on September 29, 2006. In the absence of any material placed before us by the Department to show that the assessee has not filed all these details before the Assessing Officer at the stage of completion of assessment under section 143(3) of the Act, it can be said that the Assessing Officer has examined all these documents and came to the conclusion that the windmill has been erected and commenced generation of power on September 29, 2006 and, therefore, the claim of the assessee is in accordance with the provisions of the Act. In the circumstances, it can be said that the Assessing Officer has taken one of the two views possible in allowing the claim for depreciation on windmill and in such circumstances, it cannot be said that the order passed by the Assessing Officer is erroneous and prejudicial to the interests of the Revenue as held by the hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME Court ] . Thus revision order quashed - Decided in favour of assessee.
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2013 (1) TMI 732
Benefit of Notification No. 108/95, dated 28-8-1995 - project was financed by Japan Bank of International Corporation which is not an International Organization under the United Nations Privileges & Immunities Act, 1947 - Held that:- Notification provides exemption to the goods cleared to the project financed by the International Organization as per Annexure to the Notification. Japan Bank of International Corporation is not a specified organization. In view of this, we find no infirmity in the impugned order whereby the benefit of Notification is denied.
Appellants produced certificate dated 28-2-2001 issued by the empowered officer of MSEB duly endorsed by State Govt. of Maharashtra. We, therefore, find that this is not a case for imposition of penalty under Rule 25 of the Central Excise Rules. Therefore, the penalty of ₹ 10,000/- imposed under Rule 25 is set aside. - Decided partly in favour of assessee.
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2013 (1) TMI 731
Denial of CENVAT Credit - Whether the MS angle and HR sheet used for fabrication of storage tank are entitled for Cenvat credit or not - Held that:- As per explanation to Rule 2(k) of the Cenvat Credit Rules, 2004, storage tanks have been specified as capital goods and, therefore, inputs which are used in the manufacture of capital goods are also eligible for Cenvat credit. It is not in dispute that the steel items such as MS angles, HR sheets have not been used in the construction of storage tank which is a capital goods therefore, Cenvat credit on these MS angle and HR sheet cannot be denied. - Decided in favour of assessee.
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2013 (1) TMI 730
Waiver of pre deposit - Appeal for recall of ex parte order dismissed - Held that:- Tribunal has power to pass any order for the ends of justice. Furthermore, the proviso to Rule 20 even enables the learned Tribunal to recall ex parte dismissal of an appeal. It could not possibly have been the intention of the Rules, that the learned Tribunal would lack power to recall and/or modify an ex parte interim order when it has expressly been conferred the power to recall an ex parte dismissal of the appeal. - Tribunal has apparently not considered the application for recalling of the order dated 10th July, 2012 on merits but has dismissed the application on the misconceived view that the order could not be recalled and/or modified. - Order of tribunal not sustainable - Decided in favour of assessee.
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2013 (1) TMI 729
Denial of rebate claim - certain conditions/procedures of the Notification No. 21/2004-C.E. (N.T.) were not fulfilled - the rebate claims do not fall under jurisdiction of the original authority - Held that:- applicant got the goods processed from a job worker/processor, whose factory falls within jurisdiction of original authority. Further, the applicant vide letter dated 20-5-2009, filed the declaration, including details of input-output norms and disclosing the fact they are getting their goods manufactured on job-work basis from processor M/s. Jyoti Overseas Ltd. Government also observes that if the goods is being processed at job-worker’s place, then any verification of input-output ratio if required to be caused, can be caused by the jurisdictional authority only. In this case, the processor’s factory premise fall within jurisdiction of original authority. Under such circumstances, it is not logical to hold that input stage rebate cannot be filed by the applicant with the authority under whose jurisdiction job work’s unit falls. - In this case the applicant exported the goods directly from their factory and factory of applicant as well as job worker are located in the jurisdiction of same Central Excise Division. Therefore, rebate claim are rightly filed with said Assistant Commissioner of Central Excise.
Applicant had earlier filed declaration on 20-5-2009, decision on which was not taken by the jurisdictional authority. There is no allegation that any other condition of the said Notification was also not complied with. The department neither approved or rejected the said declaration. Further, it has been laid down in the C.B.E. & C. Central Excise Manual, Chapter 8, part V para 3.2 that for the sake of transparency and convenience input-output norms notified under the Export Import Policy may be accepted by the department unless there are specific reasons for variation, w.r.t. declaration dated 20-5-2009 filed by the applicant. The input rebate claim can therefore be considered for sanction as per relevant SION norms notified in the FTP. - Decided in favour of assessee.
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2013 (1) TMI 728
Denial of rebate claim - Applicable rate of duty - Applicable notification Notification No. 2/08-C.E., dated 1-3-2008 or Notification No. 4/06-C.E., dated 1-3-2006 - Held that:- there cannot be any strict statutory relied upon citation which can be taken as guiding precedents because each one of above citation have different background of factual merits pertaining to manufacturers manufacturing goods of different sub-headings following different set of Notifications, choosing different beneficial schemes and changing thereof in between a given financial year thereby leading to arise of different question of law.
Both the Notifications prescribed effective rates of duty. Notification No. 30/2004-C.E. prescribed nil rate of duty provided manufacturer does not avail Cenvat credit on inputs. This clarification does not say that duty can be paid at tariff rate when the exemption notification is existing. Simultaneously availment of these notifications is allowed in the said circular as they pertain to different situation like whether he is availing cenvat credit or not. This circular is of no help to the applicant as in their case there are no two conditional notifications prescribing two effective rates. Moreover, there is no such circular issued in case of pharmaceutical products pertaining to Notification in question allowing their simultaneous availment. The other Circular No. 937/27/2010-CX., dated 26-11-2010 is not applicable as in the instant case there is no applicability of provisions of Section 5A(1A) of Central Excise Act, 1944.
W.e.f. 1-7-2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act and therefore said Circular issued prior to the introduction of transaction value concept, cannot be strictly applied after 1-7-2000. As per Para 3(b)(ii) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, the rebate sanctioning authority has to satisfy himself that rebate claim is in order before sanctioning the same. If the claim is in order he shall sanction the rebate either in whole or in part.
There is no mandate to sanction rebate claim of obviously excess paid duty and then initiate proceeding for recovery of the erroneously paid rebate claim. Therefore, the Circular of 2000 as relied upon by applicant cannot supersede the provisions of Notification No. 19/2004-C.E. (N.T.). Adjudicating authority has rightly passed the order-in-original in accordance with law. The amount paid in excess of duty payable on one’s own volition cannot be retained by Government and it has to be returned to manufacturer/applicant in the manner in which it was paid.
Applicant are not eligible to claim rebate of duty paid @ 10% i.e. General Tariff Rate of Duty ignoring the effective rate of duty @ 4% or 5% in terms of exemption Notification No. 4/2006-C.E., dated 1-3-2006 as amended. As such Government is of considered view that rebate is admissible only to the extent of duty paid at the effective rate of duty i.e. 4% or 5% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended, as applicable on the relevant date on the transaction value of exported goods determined under Section 4 of Central Excise Act, 1944. - rebate claims are admissible of the duty paid at effective rate of duty @ 4% or 5% in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended as applicable on the relevant date on the transaction value of exported goods determined under Section 4 of Central Excise Act, 1944. The amount of duty paid in excess of duty payable at effective rate of 4% or 5% as per Notification No. 4/2006-C.E. is to be treated as voluntary deposit with the Government. - Moreover Government cannot retain the said amount paid without any authority of law. Therefore, Government allows the said amount to be re-credited in the Cenvat credit account of the concerned manufacturer - Decided partly in favour of assessee.
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2013 (1) TMI 727
Confiscation of goods - Imposition of redemption fine and penalty - Held that:- The source of procurement given by the appellants were found to be false. Therefore, the Department has discharged the burden cast on it and it is for the appellants to prove the licit nature of procurement of the goods which they have failed to do. The Hon’ble High Court of Karnataka also took a similar stand in the Vikram Jain case cited supra by holding that “the contention of the respondent that the burden of proving that the goods have been smuggled or brought into the territory of India without payment of duty, lies on the authorities would facilitate the mischief since all human affairs require absolute certainty, is a myth and ‘all exactness if a fake’ and absolute proof being unattainable the law would accept as a working substitute in this work-a-day world”.
If the department is able to establish that they have satisfied the principles laid down by the Supreme Court, they are deemed to have discharged the burden of proof cast on them and established their case. Therefore, we do not find any reason to find fault with the findings that the goods in question are smuggled into the country and consequently they are liable to confiscation under Section 111(d) of the Customs Act. It is not necessary that the goods should be prohibited from import under FTDR Act for them to be confiscated under Section 111(d). In this case the allegation is that the goods have been removed without payment of customs duty and therefore, they are liable to confiscation under Section 111(d) of the said Customs Act.
Commissioner has imposed various penalties on the persons from whose possession the goods had been seized under Section 112(b) of the Customs Act. It is now well established that mens rea is an important ingredient for imposing a penalty on the persons enumerated in Section 112(b) of the Customs Act. The goods may be liable to confiscation for contravention of the provisions of the Customs Act but the person who is in possession of the goods need not necessarily have anything to do with either smuggling or dealing with them knowingly. The evidence brought out by the department nowhere suggests that the appellants were aware that the goods in question were smuggled into the country. Their dealing in such goods, whose tainted nature they are unaware of, is not covered under Section 112(b) of the Customs Act. The penalties imposed on these persons, therefore, cannot be sustained while upholding confiscation of the goods. We, therefore, set aside the penalties imposed in each of these appeals. - duty demands is confirmed and the confiscation of the goods and imposition of redemption fine is upheld in lieu thereof. However, we set aside the penalties imposed. - decided partly in favour of assessee.
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2013 (1) TMI 726
Benefit of the concessional rate of duty at 5 per cent under Sl. No. 108 of the Notification No. 12/2012-Cus., dated 17th March, 2012 - Classification of goods - Violation of principle of natural justice - Held that:- Petitioner, in the view of this Court, was legitimately entitled to opportunity of hearing and in any case, the goods ought to have been sent for examination/testing as requested by the petitioner. - only because an appeal has been preferred in respect of the assessment order passed on September 28, 2012, this writ petition should not be entertained. So far as the appeal is concerned the same may be disposed of expeditiously preferably within two months from the date of communication of this order. However, the mere fact that the petitioner has once preferred an appeal does not estop the petitioner from invoking the jurisdiction of this Court under Article 226 of the Constitution of India. It is well settled that the existence of an alternative remedy of appeal does not operate as an absolute bar to entertaining a writ petition. There are certain well recognized exceptions to the rule of alternative remedy, one of them being violation of principles of natural justice. In the instant case, the impugned order of assessment has been passed in flagrant violation of the principle of natural justice.
The proper officer shall cause the samples to be drawn from the consignment in question i.e., the consignment covered by the second Bill of Entry and send the same for testing to an appropriate laboratory. Subject to the condition that the petitioner furnishes a bank guarantee covering the balance duty that is the duty as self assessed by the petitioner and duty payable on the basis that the goods are classifiable under Tariff Head 3816 of the first schedule to the Customs Tariff Act, 1975, to the satisfaction of the Assessing Authority, the consignment covered by the second Bill of Entry shall be provisionally released - Decided conditionally in favour of assessee.
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2013 (1) TMI 725
Penalty u/s 116 - Failure in proper accounting and discharge of the cargo manifest - Held that:- The seals of 41 containers as mentioned in their Bills of Lading and that the seals found in these 41 containers at the time of unloading from the vessel at Tuticorin were entirely different. Government notes further in the instant case the applicants had given undertaking to perform or to procure performances of the entire transport from place at which the goods are taken in charge to the place designated for delivery in the bill of lading. They have also undertaken responsibility for the acts and omission of any person of whose services makes use for the performance of the contract evident by the bill of lading. Hence Government finds much force in the contention of the department that the applicant’s responsibility do not merely stop with providing the containers in which the cargo was stuffed. They have issued an MBL and accepted the responsibility of delivering the cargo properly at the port of delivery as a person-in-charge of conveyance.
Person-in-charge of conveyance is responsible for any short landing or non-landing of goods. As per definition in Section 2(31) of Customs Act, 1962, person-in-charge of the conveyance is the master of the vessel. There is no dispute in the matter that all the 41 containers were found empty and total quantity as per Bill of Lading was found short. The steamer agent is an agent of carrier, appointed under Section 148 of Customs Act, 1962 - Section 148 makes it clear that such agent shall be liable for fulfilment in respect of matter in question of all obligations imposed on such person-in-charge by or under this Act or any law for the time being in force and to penalties and confiscation which may be incurred in respect of that matter. As such steamer agent is liable to penal action under Section 116 ibid in this case matter. - Decided against assessee.
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2013 (1) TMI 724
Rejection of CHA License - whether the application of the petitioner No. 1 for license under CHALR 2004 could have been rejected on the ground that the petitioner No. 1 had cleared the examination under Regulation 9 of CHALR 1984 from Mumbai and not from Kolkata - Held that:- CHALR 1984 provided for grant of a temporary licence, and later, upon clearance of an examination, as provided in Regulation 9, regular licence which was to be valid for a period of five years, but renewable. CHALR 2004 has, however, done away with grant of two licences, one temporary and the other regular. Regulation 9 provides for grant of licence to an applicant who has passed the examination referred to in Regulation 8 subject to payment of the requisite fee - Regulation 6 enumerates the conditions required to be fulfilled for grant of licence. Regulation 6 provides that the applicant or the person referred to in Clause (b) of sub-regulation (2) or Clause (b) of sub-regulation (3) of Regulation 5, as the case may be, or a person who has passed the examination referred to in Regulation 8 shall prove to the satisfaction of the Commissioner of Customs that the applicant or his authorized employee is a graduate from a recognized University and possesses the professional degree as specified in the said regulation, has diploma in customs clearance work from any Institute or University recognized by the Government with working knowledge of computers and customs procedures; or is a graduate having at least 3 years experience in transacting Customs House Agent work as a G Card holder; or a person who has passed the examination referred to in Regulation 8; or is a retired Group ‘A’ officer from the Indian Customs and Central Excise Service having a minimum of ten years experience in Group ‘A’
In view of the judgment of the Hon’ble Supreme Court in Sunil Kohli (2012 (10) TMI 638 - SUPREME COURT), the impugned order cannot be sustained and the same is set aside and quashed. - The respondent shall issue requisite customs house agents licence to the petitioner within two months from the date of communication of this order subject to compliance of the requisite formalities but without insisting on clearance of the examination under Regulation 8 of the CHALR, 2004. - Decided in favour of appellant.
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2013 (1) TMI 723
Job Work - Valuation of goods manufactured by job worker - Rule 10(a) of the Central Excise (Valuation) Rules, 2000 - Revenue’s stand that since the person to whom the goods were transferred i.e. M/s. Sai Flipped Coil Pvt. Limited was not selling the goods but was utilizing the same, the assessable value should have been arrived at in the hands of the present appellant at the rate of 110% of the cost of the goods. - Supreme court after condoning the delay dismissed the appeal holding that no substantial question of law arises against the decision of Tribunal wherein it was held that Rule 8 is applicable to the assessee who manufactures the goods and uses the same captively either by himself or on his behalf. The said Rule would have been applicable if M/s. Sai Flipped Coil Pvt. Limited would have manufactured the goods themselves and then used the same captively.
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