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Customs - Case Laws
Showing 41 to 60 of 118 Records
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2009 (7) TMI 1041
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... ... ..... t. CDR rsquo s reliance on the Apex Court judgment in the case of Sheshank Sea Foods Pvt. Ltd. (supra) and Interglobe Enterprises Ltd. (supra) has force. We are also of the view that the DGFT and the Customs Authorities are different organs of the Union of India. Both operate on their own Jurisdiction under the statute. It cannot be said that finding of one authority shall bind to the other. Our view is also fortified from the Sheshank Sea Foods Pvt. Ltd. (supra) judgment of the Apex Court (in Para 10). Therefore Revenue was at liberty to investigate against the appellant. 8. However, at this juncture any direction for predeposit is unwarranted. Accordingly, we dispense predeposit of the demand raised by the impugned order during pendency of appeal in respect of all the appellants. By the aforesaid order, we make it clear that we do not say that the amount already appropriated by order of adjudication shall be refunded to the appellant. (Dictated and pronounced in open Court)
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2009 (7) TMI 1040
Refund claim - unjust enrichment - rejection on the ground that machine was not covered under EPCG Scheme - Held that: - there is no dispute that imported machine was cleared under EPCG Scheme. The affidavit indicates that the imported machine was used for the exported goods. It is also declared that the goods manufactured were exported in global market at international competitive prices. This fact was not disputed by the Commissioner (Appeals). It is noted that Government is providing export incentives so as to make the manufacturer to compete in international market. So, there is no scope to pass incidence of duty to foreign buyers. Hence, the appellant established that the amount of duty in relation to which refund was claimed was not collected from any other person - appeal allowed - decided in favor of appellant.
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2009 (7) TMI 1037
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... ... ..... the Government of India, Ministry of Agriculture, to issue a NOC for import, stock, purchase and sale of Thiourea 99 for industrial use and for non-agricultural use and further to Ex. lsquo O rsquo dated 7-12-1998, wherein in reply to Exhibit lsquo N rsquo , the Administrative Officer of Central Insecticides Board and Registration Committee intimated to the applicant that the said NOC is not required. 4. He placed reliance on the case law in the case of Commissioner of Customs, Nhava Sheva v. Devanshi Impex P. Ltd. reported in 2007 (208) E.L.T. 99 (Tri.-Mumbai), wherein this Tribunal prima facie held that the Thiourea 99 is specifically covered by Customs Tariff Heading 2903 90 10 and the stay petition of the Department was rejected. 5. Heard. 6. On perusal of the records, we find that prima facie the applicant has made out a strong case in his favour. Accordingly, the complete waiver of pre-deposit of redemption fine and penalty is granted till final disposal of this appeal.
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2009 (7) TMI 1036
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... ... ..... gorically noticed that the Mineral Oil is not used in the leather industry as per averment of the appellant before him for which there was desirability of another testing by an authentic laboratory. 3. Heard both sides and perused the records. 3.1 We have gone through the speaking order passed by the learned Commissioner (Appeals). That appears to be reasoned. His decision to remand the matter was found to be justified on the facts of the case to follow the principles of natural justice and to test the material by an authentic laboratory to resolve the controversy. In all fairness, it would be proper to the respondent granting reasonable opportunity of defence when a report from authentic laboratory as suggested by the learned Commissioner (Appeals) reaches. Finding no irrationality in the operative part of the order passed by learned Commissioner (Appeals), it requires to dismiss the appeal of Revenue so as to give effect to his order. (Dictated and pronounced in open Court)
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2009 (7) TMI 1026
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... ... ..... the ownership of the goods and also made request to the Authorities for return of the goods immediately after the seizure. Therefore the impugned order confiscating the goods in question and imposing penalty of Rs. 500/- (Rupees Five Hundred only) each is not sustainable. 5. Contention of Revenue is that as the goods were seized from a place near the Indo-Bangladesh border and there is a tendency for illicit export to Bangladesh. Therefore the goods were rightly confiscated. 6. In this case the goods i.e. Sarees and sugar were confiscated only on the ground that in the border area unauthorized exportation of the sugar and Sarees is common. 7. I find there is no evidence on record to show that the goods in question are for unauthorized exportation to Bangladesh. In these circumstances the impugned order confiscating the goods in question and imposing penalty on the Appellants is not sustainable, hence set aside. Appeals are allowed. (Pronounced and dictated in the open Court)
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2009 (7) TMI 1025
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... ... ..... and rightly invoked by adjudicating authority. 3. We agree with the appellant that the demand having been raised in the show cause notice dated 19-9-07 in respect of Bill of Entry filed on 2-6-03 is clearly barred by limitation. The said Bill of Entry filed by the appellant was also assessed by the proper officer, who also never pointed out that CVD or special Additional Duty is also required to be paid by the appellant. No objection having been raised at the time of assessment of Bill of Entry, appellant cannot be saddled with any mala fide intention or suppression so as to justifiably invoke longer period of limitation. It seems to be a case of mistake and lack of knowledge on the part of the assessee as also on the part of the Customs officer assessing Bill of Entry, in which case, the extended period is not available to the Revenue. 4. We, accordingly, set aside the impugned order and allow the appeal on the ground of limitation itself. (Dictated and Pronounced in Court)
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2009 (7) TMI 1019
Misdeclaration of imported goods - consignment of Crockery and Toiletries - It was alleged by the SIIB that only 20% of the goods were in conformity with the declarations made in the invoice and Bill of Entry and the remainder of the goods had not been declared in the Bill of Entry - Held that: - the goods were bought by the overseas shipper in an auction and sold to the appellants on stock lot basis. Hence, the auction price cannot be compared with the price of the impugned goods in the Indian market, as was done by the Department.
Since the appellants’ contention that the goods were bought in stock lot basis has not been considered by the Commissioner and no findings have been recorded in this regard, we deem it fit to remand the matter to the Commissioner for de novo decision - appeal allowed by way of remand.
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2009 (7) TMI 1016
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... ... ..... this count when tribunal decided the appeal in the case reported as aforesaid. Revenue rsquo s contention does not get support of law when there is already penalty of Rs. 1,40,000/- has been imposed against the duty demand of similar amount. Any further imposition on the proprietor shall be disproportionate and that is not the sanction of law. 5. There is nothing in the order of Adjudication about imposition of penalty on M/s. Friends Trading. These is no penalty specifically imposed on M/s. Friends Trading in the order of Adjudication by the action of ld. Adjudicating Authority refraining himself to do so. He has not at all intended to impose penalty for good reasons considered by him. When there is no dispute by Revenue showing any cogent evidence for their proposition to levy penalty on this Respondent, that cannot be done to adversely deal a Respondent. That was not pleaded in past. Accordingly, Revenue rsquo s appeal is dismissed. (Dictated and pronounced in open Court)
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2009 (7) TMI 1015
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... ... ..... licence. That authority found that the import having been completed regularization of the advance licence was called for. There is no dispute that BOPP films were used by the appellant in the cartons manufactured and exported. There is also no dispute that polyester films were intended to be imported in the advance licence. It is also a fact that the advance licence procured by the appellant was transferred to R.T. Packaging and M/s. Super Cassettes Ltd. who became beneficiary of the advance licence upon transfer by the appellant. It is also on record that advance licence which was basis of dispute no more continued to be so by the regularization of breach made by the DGFT on 9-4-03. This decision of DGFT when exonerates the appellant, there is nothing further on record to dilate the matter further. Accordingly allegation in show cause notice became mere academic issue for which the appellant should succeed and both the appeals are allowed. (Order dictated in the open Court)
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2009 (7) TMI 1001
Appeal to Appellate Tribunal ... ... ... ... ..... , 1982, a Memorandum of Appeal to the Tribunal shall be in the relevant form and every Memorandum of Appeal shall set forth concisely and under distinct heads, the grounds of appeal and that shall also be signed and verified by the Applicant or the Principal Officer duly authorized to sign the Memorandum of Appeal. The present Appeals are filed without signing or verifying the Memorandum of Appeals. Hence, all the Appeals are dismissed. (Pronounced and dictated in the open Court)
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2009 (7) TMI 994
Stay/Dispensation of pre-deposit - ECPG Scheme ... ... ... ... ..... ized by the JDGFT on payment of a penalty of Rs. l lakh, holding that non-obtaining of prior permission for installation of capital goods in RGL was a technical lapse. In view of the fact that RCL has fulfilled its export obligation by installation and use of the imported capital goods in its factory, the shifting of the capital goods to RGL can prima facie be viewed as a procedural lapse mdash although Notification No. 55/03 does not provide for shifting of the capital goods imported at concessional rate of duty to another premises even after fulfilment of export obligation, the Hand book of Procedures 2002-07 provides for the same, on intimation to the RA and jurisdictional Central Excise Authority and RCL did not give the necessary intimation. We, therefore, hold that, prima facie, the duty demand and penalty are not sustainable and hence waive pre-deposit and stay recovery thereof pending the appeals. (Operative part of the order was pronounced in open court on 23-7-2009)
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2009 (7) TMI 993
Appeal to Appellate Tribunal ... ... ... ... ..... 1982, every memo of appeal shall be signed and verified by the appellant or the principal officer duly authorized to sign the memo of appeal. In the present cases, I find that the appeal memorandum and also the grounds of appeal are not signed or verified by the officer of the Revenue. As the appeal memorandum are not even signed or verified by any authorized officer of the Revenue, therefore, all the four appeals are dismissed. (Dictated and pronounced in the open Court)
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2009 (7) TMI 990
Settlement of case - Immunity from penalty ... ... ... ... ..... cant deposited the differential duty amount of Rs. 3,78,67,868/- alongwith the interest thereupon. This stands paid by the Applicant. Penalty Bench in view of the discussions supra grants immunity from penalty in excess of Rs. 30,00,000/- (Rupees Thirty Lakhs Only) to the main Applicant. Bench grants immunity from penalty to the other Co-applicants. Prosecution Subject to the payment of penalty within 30 days, Bench grants immunity from prosecution to the Applicant and Co-applicants in so far this case is concerned. 9. emsp The above immunities are granted under sub-section (1) of Section 127H of the Act. Attention of the applicant is also invited to the provisions of sub sections (2) and (3) of Section 127H ibid. 10. emsp This order of settlement shall be void in terms of sub-section (8) of Section 127C of the Act, if the Settlement Commission subsequently finds that it has been obtained by fraud or misrepresentation of facts. 11. emsp All concerned are informed accordingly.
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2009 (7) TMI 989
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... the matter within a week of hearing. 6. emsp All that we have said above is following the decision of the Tribunal in para 8 of the judgment in the case of CC, Mangalore v. ELF Gas India Ltd. reported in 2006 (206) E.L.T. 1059 (Tri.-Bang.) which is reproduced below for convenience of reading ldquo We have gone through the records of the case carefully. On the preliminary objection of the departmental representative that the Commissioner (Appeals) could not have heard an appeal against provisional assessment, we do not agree in view of the decided case laws. When a provisional assessment order affects the rights of a party and when the party is aggrieved over the order, he can very well employ the appellate channel for seeking remedies. There is no legal provision barring appeal against a provisional assessment. rdquo (emphasis supplied) 7. emsp In the result, the Misc. Application, Stay Application and Appeal are disposed of. (Order dictated and pronounced in the open Court)
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2009 (7) TMI 983
Redemption fine - Penalty - Imposition of ... ... ... ... ..... ) upheld the levy of fine and penalty on the importer but reduced the penalty on Shri Damodaran to Rs. 15,000/-. Hence these appeals. 2. emsp I have heard both sides and find merit in the submission of the importer that option to redeem the secondhand machinery should have been given to the purchasers thereof and not to him, in terms of the provisions of Section 125 of the Customs Act, 1962 and in the light of the Tribunal rsquo s decision in Mudra Offset v. Commissioner of Customs, Bangalore, 2004 (175) E.L.T. 470 (Tri.-Bang.). I, therefore, set aside the fine imposed on M/s. Selvakumaran Offset Printers. However, the importer is still liable to penalty for violation of the actual user condition. The penalty on the partner is also sustainable in view of the finding against him by the authorities below. 3. emsp In the result, Appeal No. C/182/03 is partly allowed by setting aside the redemption fine and Appeal No. C/186/03 is dismissed. (Dictated and pronounced in open Court)
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2009 (7) TMI 974
Exemption - Imports by NHAI or person whom contract awarded by NHAI ... ... ... ... ..... contract means the sub-contract for the purpose of design, engineering, procurement of equipment, materials and construction of the project in accordance with the provisions of this agreement entered into by the concessionaire with M/s. PLL. rdquo The amendment has been signed by the General Manager, NHAI and the Director, both parties to the original concession agreement. Therefore, the Commissioner (Appeals) has rightly held that in terms of Article 19.7 of the concession agreement, the amended agreement dated 14-3-2002 is valid and effective. In other words M/s. PLL is specified in the agreement between NHAI and NKEL as the person named as sub-contractor for implementing the project. In this view of the matter, there is no legal infirmity in the order passed by the Commissioner (Appeals). 3. emsp The appeal is therefore dismissed. 4. emsp Cross objection is in the nature of reply to Revenue rsquo s appeal and is therefore dismissed. (Dictated and pronounced in open court)
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2009 (7) TMI 973
Valuation - Second hand photocopiers - Redemption fine and penalty ... ... ... ... ..... se of re-calculation of the duty liability. 5. emsp Record exhibits that the gap between declared value and assessed value is only Rs. 1.00 lakhs. This does not appear to be significant. The Appellant deserves consideration on the quantum of redemption fine and penalty, while there is no cogent evidence available on record calling for enhancement. It is also noticed that imposition of penalty of Rs. 3.00 lakhs was disproportionate. Therefore it would be proper to reduce the same to Rs. 1.00 lakhs. Since the act of the Appellant is in relation to infringement of law, the benefit enjoyed by the Appellant out of such infringement should also suffer by redemption fine to a proper extent. Imposition of redemption fine in Adjudication is not backed by any basis. This calls for interference to reduce the same to Rs. 2.00 lakhs from Rs. 5.00 lakhs. 6. emsp With the aforesaid observation and findings, we allow the appeal of the Appellant partly. (Dictated and pronounced in open Court)
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2009 (7) TMI 970
Confiscation of scrap - Smuggling, proof of ... ... ... ... ..... llants could not produce any evidence in respect of lawful procurement of the goods, therefore the same were rightly confiscated. 6. emsp The issue involved in these Appeals is whether the scrap is liable to be confiscated on the ground that the same is smuggled into India. The metal scrap is not notified goods under Section 123 of Customs Act, therefore, the onus is on the Revenue to show that the goods are smuggled into India. In the present case, there is no documentary or oral evidence to show that the scrap in question is smuggled into India. The Appellants produced the Trade Certificate to show that the Appellants are trading in the scrap. The veracity of the Certificate is not questioned by the Revenue, though the same was produced during investigation. In these circumstances, the impugned Order is set aside and the Appeals are allowed. The Appellants are entitled for the consequential reliefs, if any, in accordance with law. (Pronounced and dictated in the open Court)
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2009 (7) TMI 967
Valuation (Customs) - Technical licence fee and royalty ... ... ... ... ..... oods. In such cases the principle of attribution of royalty/licence fees to the price of imported goods would apply. This is because every importer/buyer is obliged to pay not only the price for the imported goods but he also incurs the cost of technical know-how which is paid to the foreign supplier. Therefore, such adjustments would certainly attract Rule 9(D)(c). rdquo From the above cited decision of the Hon rsquo ble Supreme Court, it is clear that technical licence fee and royalty are includible in the price of imported goods if such payment constitutes a condition pre shy requisite for supply of imported goods. In view of the clarification by the Ld. JCDR that there is no finding in the impugned order regarding such payments being a condition of the sale, we find no alternative but to set aside the impugned order and allow the appeal. We order accordingly. 4. emsp The appeal is allowed. (Operative part of the Order dictated and pronounced in the open Court on 6-7-2009)
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2009 (7) TMI 961
Oil - Furnace oil ... ... ... ... ..... harged to duty. I find that an exactly similar case has been decided by the Hon rsquo ble Supreme in the cited decision in BPL Display Devices Ltd. (supra) holding that lsquo for use rsquo is to be construed to mean ldquo intended for use rdquo . Applying the ratio of the decision of the Hon rsquo ble Supreme Court as above, I find that in the present case the difference in the quantity imported and the quantity received which is attributable to loss in unloading, to transit and to the method of weighment adopted can be ignored since the entire quantity of furnace oil imported and intended for use have been sent to the factory without any diversion. The impugned notification No. 21/02-Cus., would not apply to any quantity proved to have been diverted for other purposes except the intended purpose, but there is no such instance in this case of any diversion. Accordingly, the impugned orders are set aside and the four appeals are allowed. (Dictated and pronounced in open Court)
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