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Customs - Case Laws
Showing 41 to 60 of 122 Records
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2009 (3) TMI 778
Stay/Dispensation of pre-deposit - Confiscation of conveyance ... ... ... ... ..... penalty is under Section 117 of the Act, which is a residuary provision. It was imposed on the ground that the appellant provided the trailers without caring to ascertain as to how they were going to be used. According to the Commissioner, the above action of the appellant is ldquo detrimental to the functioning in the port area which is a very sensitive area rdquo and has made them liable for penal action under Section 117 of the Customs Act. There is no mention as to which provision of law was contravened by the appellants. For a penalty under Section 117, there must be finding of contravention of some legal provision and, further, a finding to the effect that such contravention was not covered by any other penal provisions of the Act. These pre-requisites are missing in the impugned order. Prima facie, the appellants have made out a good case against the penalty and therefore, there will be waiver of pre-deposit and stay of recovery in respect thereof. (Dictated in Court)
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2009 (3) TMI 777
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... lars. 3. emsp We find that the value of the goods has not been enhanced and we also find that the purchase order dated 12-9-2007 with the description ldquo design, manufacture, testing and supply of parts of ldquo fluidized bed dryer ldquo , rdquo Fluidised bed electric heater and parts of fluid bed coolers rdquo raised on M/s. Mesto Minerals (India) Private Limited and letter dated 14-9-2007 to the foreign supplier giving the break-up of the price, was submitted to the department. In the circumstances, it cannot be held that the importers were prima facie guilty of misdeclaration of value with intent to evade payment of duty. Therefore, prima facie, the penal provisions of Section 112(a) of the Customs Act for rendering goods liable for confiscation under Section 111(m) of the Customs Act are not attracted against the applicants. We, therefore, waive the pre-deposit of penalty and stay the recovery thereof pending the appeal. (Order pronounced and dictated in the open Court)
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2009 (3) TMI 772
Penalty on marker - Abetment in smuggling ... ... ... ... ..... of the Assistant Shed Superintendent with the omission of the appellant. In other words, no nexus has been established between the appellant rsquo s omission to mark the wooden crates and the smuggling of any goods by anybody. Under Section 112(a) of the Act, a penalty may be imposed on a person who, in relation to any goods, omits to do any act, which omission would render such goods liable to confiscation under Section 111 of the Customs Act, or abets the omission of such act. In the present case, the Commissioner held that the appellant rsquo s omission to mark the wooden crates amounted to abetment of smuggling, which rendered the goods liable to confiscation under Section 111 of the Act. Nevertheless, the learned Commissioner would not specify the principal offender. For this reason also, the finding recorded against the appellant is not sustainable. 3. emsp In the result, the penalty imposed on the appellant is set aside and the appeal is allowed. (Pronounced in Court)
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2009 (3) TMI 769
Rectification of mistake (ROM) - Misdeclaration of exports - Export - Attempt to illegal export, proof
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2009 (3) TMI 762
Valuation - Misdeclaration - Enhancement of value ... ... ... ... ..... wide spec/off spec grade. Department has not brought any other evidence to show that LDPE/HDPE imported was of prime variety and therefore the claim by the appellants that it was wide spec/off spec is not correct. We also note that no penalty has been imposed on the appellants but only value has been enhanced. This again shows that there is no allegation of mis-declaration against the appellants. In view of the above, we have to hold that no case has been made out by the Revenue against the appellants that they had deliberately declared lower value. There is also no clear indication as to whether the comparison has been made with the price of LDPE/HDPE which is wide spec/off spec. There is also no evidence to show that LDPE/HDPE was not wide spec/off spec. In view of the above, we find that the order of the Commissioner (Appeals) cannot be sustained and accordingly we set aside the order and allow the appeals with consequential relief to the appellants. (Pronounced in Court)
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2009 (3) TMI 758
Test - Re-test ... ... ... ... ..... is request of the Appellants has not been dealt with by the Authorities below. Hence, I am of the opinion that the matter requires to be remanded to the Original Authority for getting the impugned gold tested by the Government of India Mint, for which the Appellants are agreeing to bear the cost. The Original Authority shall decide the matter afresh after obtaining the Assay Report from the Government of India Mint and after giving an adequate opportunity of hearing to the Appellants. It has been pleaded on behalf of the Appellants that they have already paid the redemption fine as determined by the lower Appellate Authority and hence, they have requested for early re-adjudication of the matter. I consider the request to be reasonable and accordingly, the Original Authority is directed to re-decide the matter within a period of two months from the date of receipt of this Order. 3. emsp Both the Appeals are allowed by way of remand. (Pronounced and dictated in the open court.)
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2009 (3) TMI 756
Valuation - Technical know how ... ... ... ... ..... ated persons and ordered that the imports from M/s. Gliderol International Pvt. Ltd., shall be loaded by 20 for the assessment of Customs duty. The adjudication order was set aside by the Commissioner (A), who held that the supplier and the appellant cannot be deemed to be related persons however, he ordered that the technical know how fee should be added to the value of the capital goods and machinery imported by the appellant. Hence, this appeal before the Tribunal. 3. emsp We find that the only issue before the adjudicating authority was as to whether the appellant and its supplier were related and therefore the value of the goods should be loaded. There was no proposal to add the technical know how fee - importers were also not put on notice against such addition. The order of the Commissioner (A) therefore, cannot be sustained. We accordingly, set aside the same and allow the appeal. (Order dictated and pronounced in the open Court on hellip hellip hellip hellip hellip )
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2009 (3) TMI 755
... ...
... ... ..... nsit loss, I find that the impugned goods are steel melting scrap which is not in the nature of volatile goods and the claim for 1 transit loss for carrying steel melting scrap from Paradeep port to the factory in Howrah seems unreasonable. Shri K.K. Banerjee, learned Advocate has argued that though the goods were steel melting scrap, still transit loss cannot be ruled out on account of some loss taking place at the time of loading, transport and unloading of the scrap. He also pleads that there can be always a difference on account of variation in the weighing scales. Considering the submissions in this regard I am of the view that this is not a fit case for allowing maximum permissible loss of 1 , but a smaller quantity of 0.25 would appear to be reasonable. Accordingly the Appeal is partly allowed with the direction to the original Authority to re-work out the demand after allowing 0.25 transit loss on the bill of entry quantity. (Pronounced and dictated in the open Court)
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2009 (3) TMI 745
Settlement of case - Fine and penalty ... ... ... ... ..... arge the Bank Guarantee to the extent necessary after dues under this Order stand realized and would also cancel the Bond accordingly. Prosecution Subject to payment of all dues/amounts ordered to be paid under the Order, immunity from prosecution is granted to the applicant under the Act as far as this case is concerned. 11. emsp The above immunities are granted under sub-section (1) of Section 127H of the Act. Attention of the applicant is also drawn to the provisions of sub Sections (2) and (3) of Section 127H ibid. 12. emsp This order of settlement shall be void in terms of Section (9) of Section 127C of the Act if the Settlement Commission subsequently finds that it has been obtained by fraud or misrepresentation of facts. 13. emsp It is clarified that this Order applies only to the applicant before the Commission, and the Revenue is at liberty to take appropriate action as per law against other noticees in the SCN (supra). 14. emsp All concerned be informed accordingly.
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2009 (3) TMI 736
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... iling the appeal before the Tribunal in time, as his office got shifted. It is settled law that due to inaction of the Counsel/Advocate, the applicants/appellants should not be put to disadvantageous situation. It is also seen from the records that the appeal is filed against the Order-in-Original passed by the Commissioner as an Adjudicating Authority, i.e., this is the first appeal, which has been filed before us. Accordingly, we find that the applications for condonation of delay in both these cases need to be allowed and we allow them. Stay applications in all these appeals should come up for hearing on 21st April, 2009. (Pronounced and dictated in open Court
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2009 (3) TMI 735
Customs House Agents License - Suspension of ... ... ... ... ..... ed on 1-12-08 after 1 frac12 years from the incriminating statement given by the CHA rsquo s employee. What was stated by the employee was corroborated by the CHA in a statement given in July 2008. As rightly pointed out, the licence could have been suspended in June 2007 or immediately thereafter on the basis of the statement of the CHA rsquo s employee. The belatedly suspension order of the Commissioner lsquo contemplating enquiry rsquo against the CHA does not inspire confidence. We also note that, though three months have elapsed since the suspension of the licence, a show-cause notice is yet to be issued to the party under Regulation 22. Enquiry should start with issuance of such show-cause notice. In any case, enquiry cannot be lsquo contemplated rsquo indefinitely. It has become necessary for us to make things certain and definite. This scenario calls for early disposal of the appeal. The application is allowed and the appeal is posted to 30-3-2009. (Dictated in Court)
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2009 (3) TMI 733
... ...
... ... ..... pto 9-2-99, only additional customs duty (CVD) was paid and therefore the differential duty, if any, in this period is definitely payable. In the absence of data tanker-wise, matter has to be remanded to the original adjudicating authority to get the tanker-wise details and recalculate the differential duty. Further, the statement submitted by the learned advocate also needs to be verified by the Revenue. As regards the duty demand for the subsequent period where Basic Customs Duty was also payable, original adjudicating authority needs to reconsider the issue in the light of the several decisions cited before us and also additional submissions/citations which the appellants may make before him when opportunities are extended during de novo proceedings. 8. emsp Matter is remanded to the original adjudicating authority to decide the case afresh in the light of our observations and appellants shall be given an opportunity to present their case. (Pronounced in Court on 2-3-2009)
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2009 (3) TMI 732
Photocopier - Used photocopier - Restricted goods - Held that: - The declared value has been rejected on a reasonable doubt that the value was very low compared to the value given by the local Chartered Engineer. The contemporaneous price made available by the Directorate of Valuation has been adopted. There is no evidence that the importers paid any money in excess to the supplier or to the effect that they had purposely misdeclared the value of the goods in order to evade payment of duty. The Revenue has not established any of the circumstances contemplated in Rule 4(2) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 so as to reject the transaction value - we set aside the enhancement of the value of the goods imported as not sustainable - appeal allowed - decided in favor of appellant.
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2009 (3) TMI 731
Appeal - Limitation - Condonation of delay - Stay/Dispensation of pre-deposit ... ... ... ... ..... hat the length of delay to consider an application for condonation of delay is immaterial. Considering that the appellant shall not stand to gain if the appeal is dismissed, upholding majesty of law as held by Apex Court in the case of N. Balakrishnan v. M. Krishnamurthy reported in 2008 (228) E.L.T. 162 (S.C.) with the aforesaid observation, the appeal is admitted condoning delay, allowing MA (COD) Application. 7. emsp Learned Counsel proceeded to argue on the stay for realization or penalty of Rs. 3 lakhs imposed. He is not able to address on the reasons for lenient consideration. Learned DR supports the order below. 8. emsp Considering that the appellant has also suffered confiscation, prima facie, it would be proper to direct the appellant to make a pre-deposit of Rs. 2 lakhs within four weeks and report compliance on 12th May, 2009. If the aforesaid direction is carried out, realization of balance demand shall be stayed. (Order dictated and pronounced in the open Court).
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2009 (3) TMI 730
Stay/Dispensation of pre-deposit - Undervaluation ... ... ... ... ..... llant. 10. emsp The application for stay and reduction in the amount of duty to be deposited are dismissed. Learned Advocate for the appellant also requested to exempt the appellant from the requirement of deposit of penalty amount in the facts and circumstances of the case. We find that it will be in the fitness of the case to grant reduction in the penalty amount to the extent of 70 and direct to deposit 30 towards penalty alongwith remaining duty amount. Hence the applications for stay are partly allowed to the extent of reduction of 70 of penalty. Apart from the requirement to deposit the entire amount of duty demanded under the impugned order, the appellant need to deposit penalty upto 30 only within eight weeks. The appeals to be listed for regular hearing in due course. Needless to say that whatever amount has already deposited by the appellant should be adjusted. Matter to come up for reporting compliance on 1st June 2009. 11. emsp Stay applications stand disposed of.
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2009 (3) TMI 725
Confiscation - Smuggled goods ... ... ... ... ..... respect of some watches shows that the watches contain HMT movement, therefore I find merit in the contention of the appellant that the goods are not liable for confiscation. 7. emsp In respect of confiscation of currency, there is no evidence on record to show that the same is sale proceeds of smuggled goods. In the case of Ramchandra v. CCE (Supra) the Tribunal held that (i) there must be a sale (ii) the sale must be of smuggled goods (iii) the sale must be by a person having knowledge or reason to believe that the goods were of smuggled origin. (iv) the seller and purchaser and the quantity of such goods must be established by the Customs authorities. 8. emsp In the present case, requirement of Section 121 of Customs Act not fulfilled. No sale has been established, identity of the buyer and seller has not been established and confiscation of currency also not sustainable. The impugned order is set aside and the appeal is allowed. (Dictated and pronounced in the open Court)
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2009 (3) TMI 720
Scrap - Import of - Misdeclaration of description and value ... ... ... ... ..... that when there is a request for mutilation from the assessee, the same should be allowed. In this case, the assessee came to know about the real nature of the imported goods only after examination. They had ordered only for the import of scrap. 3. emsp On a very careful consideration of the issue, we are of the view that the Adjudicating Authority ought to have considered the request of the appellant for mutilation in terms of Section 24 of the Customs Act. As he had failed to give any finding on this, the impugned order is bad in law. Therefore, we set aside the impugned order and remand the matter to the Adjudicating Authority to give a finding on the request of the appellant for mutilation of the goods before clearance in terms of Section 24 of the Customs Act. The de novo decision should be taken within a period of one month. 4. emsp The miscellaneous application, stay application and the appeal are disposed of in the above manner. (Pronounced and dictated in open Court)
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2009 (3) TMI 719
Confiscation and penalty - Section 119 of the Customs Act - import of used war material - prohibited goods
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2009 (3) TMI 715
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ision of the Tribunal, the applicant has prima facie made out a case in their favour as regards the non-compliance with the conditions as specified in notes 2(II)(i) of the import licensing notes to CTH 87 is concerned. 6. emsp Keeping in view the facts and circumstances of the case, we direct the applicant to pay the duty on the loaded value of the car as ordered by the Commissioner and furnish Bank guarantee of rupees two lakhs within one week of the receipt of the Order. The Bank guarantee will be kept alive till the disposal of the appeal. The applicant is further directed not to create third party interest till the disposal of the appeal. On payment of duty on the loaded value of the car and the furnishing of the Bank guarantee, the Commissioner is directed to provisionally release the car within three days. The stay application filed by the applicant is disposed of accordingly. Early hearing application on stay petition is dismissed as infructuous. (Pronounced in court)
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2009 (3) TMI 707
Confiscation and redemption fine ... ... ... ... ..... t there is no allegation that the purchase invoice produced by the appellant is bogus or fabricated, and the value shown therein is required to be accepted, in the light of the ratio of the Tribunal rsquo s decision in Segu Mohammed Hanas v. CC, Cochin, 2006 (196) E.L.T. 218 (Tri.-Bang.). We, therefore, accept the value declared by the appellant. However, confiscation is upheld for contravention of the provisions of Section 111(d) of the Customs Act, 1962 as the appellant was not in possession of the car for a minimum period of one year as required as per Para-3A of the Import Licensing Notes to Chapter 87 of ITC (HS). In view of our finding that the appellant has not violated the provisions of Section 111(m) by misdeclaring the value, we reduce the fine to Rs. 2,00,000/- (Rupees Two Lakhs only) and the penalty to Rs. 1,00,000/- (Rupees One Lakh only). The appeal is thus partly allowed in the above terms. (Operative part of the order was pronounced in open court on 31-3-2009)
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