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Customs - Case Laws
Showing 81 to 99 of 99 Records
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2009 (9) TMI 424
Refund claim- shortage contended as detected during examination before clearance and assessment order not required to be challenged. Assessment on second check basis in all three bills of entry and duty paid based on declared quantity. Shortage detected only during examination of goods prior to clearance while duty paid based on declared quantity. Held that- High Court in appellant’s own case held in similar situation that assessment not required to be challenged. Impugned order rejecting refund not sustainable.
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2009 (9) TMI 412
Confiscation and penalty- 5 boxes containing 2514.750 gms of 16 to 18 carats purity smuggled gold valued at Rs.7,97,731/- were recovered by the Police Sub-Inspector Shri M.J. Parmar at Panchkoshi B-Division, Jamnagar from the goldsmiths of Jamnagar and Bhuj under Section 102 of the Criminal Procedure Code. The said action was taken on the basis of information received by the DSP, Jamnagar that two persons viz. Shri Abbas Jaku Bhaya and Shri Talab Siddik Sanghar, both of Sikka, Jamnagar had smuggled the gold ornaments from Dubai (Malgoi) and brought to Salaya (India) in a vessel of Salaya during the month of December, 1993 and the same were disposed of to goldsmiths of Jamnagar and Bhuj. The seven gold bars of 16 to 18 carats purity contained in 5 boxes totally weighing 2514.750gms having value of Rs.7,97,731/- were handed over by Shri M.J. Parmar, PSI to the Customs Department on 11-4-94 for taking action under the provisions of Customs Act, 1962. Held that- In view of the above, I do not find any valid reason to interfere with the order confiscating gold bars absolutely to the Government by the Commissioner in view of the fact that the same were smuggled into India in contravention of the provisions of Customs Act, 1962 and therefore are liable to confiscation under Section 111(d), 111(e) and 111(i) read with Section 120(1) of Customs Act, 1962.Accordingly, penalties imposed upon the appellants under Section 112(b) of Customs Act, 1962 are reduced to the amounts.
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2009 (9) TMI 385
Exemption- Notification No. 11/Cus./78 dated 7-1-78- The brief facts of the case are that the respondent filed Bill of Entry for clearance of two types of goods viz., (a) Rough Tumbled Turqurenite (b) Rough Tumbled Tiger Eye. The respondent claimed the clearance of the goods under CTSH 7103.10 read with exemption Notification No. 11/Cus./78 dated 7-1-78. The short point involved in this matter is that the respondents are claiming classification under Heading 7103.10 read with Notification No. 11/78-Cus. which exempts rough semi-precious stones falling under Heading 71.03 of Customs Tariff. However, the department is of the view that the goods are classifiable under Heading 6810.99, which covers articles of other artificial stones and as such the exemption of Notification No. 11/78-Cus. is not available to the impugned goods. The commissioner (Appeal) allow the appeal of respondent. Held that- as rightly submitted by the Revenue, even the chemical composition of the stone deffers when compared with the certificate produced by the respondent and the report of the DYCC. The respondents have not chosen to explain the differences in chemical composition also.Under these circumstances, we allow the appeal filed by the Revenue and hold that the product in question is not a natural rough semi-precious stone and uphold the order of the Joint Commissioner.
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2009 (9) TMI 372
Export quota- The petitioners have impugned the orders passed by the Apparel Export Promotion Council, the Textile Commissioner and the second Appellate Committee directing the petitioners that they were not entitled to waiver of forfeiture amount for failure to comply with the terms of the quota obligation. Held that- the aforesaid clause did not give any power to the second appellate committee to enhance the quantum of forfeiture and increase the same. Thus the second appellate committee to enhance the forfeiture amount is liable to be set-aside. Thus the appeal is partly allowed.
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2009 (9) TMI 359
Draw back- This appeal has been filed by the assessee against the order of adjudication dated 28-11-2005 passed by the learned Commissioner giving rise to the following consequences:-
(i) Drawback was ordered to be recovered from the appellant under Section 75A(2) of the Customs Act, 1962 read with Rule 16 of the Customs and Central excise Duties Drawback Rules, 1995.
(ii) Interest on the amount recoverable under (i) above is payable under Section 28AA of the Customs Act, 1962 read with Rule 16 of the Customs and Central Excise duty DBK Rules.
(iii) DEPB amount of Rs.62,585/- claimed is inadmissible.
(iv) Liable to penalty of Rs.50,000/- under Section 114 of the Customs Act, 1962. Held that- the appellant failed to prove its good conduct of issuing parallel invoices to Delhi Chamber of Commerce. Intention of the appellant appears to enrich itself at the cost of Revenue in case of unnoticed transactions. When there was admission by the appellant that its past practice has resulted with 20 to 30% of reduction of value of export on examination of export by customs, levy of penalty of Rs.50,000/- is justified to prevent recurrence of such practice thus, appeal is partly allowed to the extent indicated above and Drawback/DEPB claim is to be recomputed in the light of aforesaid directions. Excess of Drawback/DEPB claim availed shall be recoverable with interest.
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2009 (9) TMI 351
100% EOU, De-bonding- The appellants a 100% EOU engaged in business process outsourcing operation and had procured duty free capital goods and indigenous goods without payment of applicable customs duty and central excise duty. On the foreign buyer of their services defaulting payment for the exports, the EOU opted to exit the scheme. The capital goods procured under the EOU scheme were de-bonded under Bill of Entry dated 27-11-2007 and assessed to applicable customs duty. The impugned goods were assessed to duty on their value and at the rate at the time of procurement without allowing applicable depreciation in value and applying the correct rate of duty. After clearance of the impugned goods, they claimed refund of the excess duty of Rs. 15,01,762/- paid by them on account of denial of depreciation and adoption of wrong rate of duty by the authorities. The original authority rejected their claim. The Commissioner (Appeals) sustained the order of the original authority. Held that- we find that the lower authorities wrongly assessed the impugned capital goods on their de-bonding at the value and rate of duty in force at the time of their procurement instead of assessing duty with reference to the depreciated value and the rate of duty in force at the time of filing of bill of entry for ex-bond clearance of the capital goods. The appellants are entitled to refund of the excess duty paid when the liability is computed in terms of the EOU Notifications in force at the time of filing of bill of entry for ex-bond clearance of impugned capital goods. In the light of the decision of CC&CE, Vadodara v. Solitaire Machine Tools P. Ltd. he matter is remanded for recomputation of the duty liability on the capital goods in the light of our above observations. The appellants shall be entitled to consequential relief, if any, on such recomputation of liability.
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2009 (9) TMI 335
Notification No. 39/90-Cus.- Classification- The petitioner imported the said goods specifically against four REP Licences. According to the petitioner, the entry at sr. no. 243 of Appendix 3A allows import of “Glycolethers”. Ethyl/Butyl Glycol are classified for assessment under Customs Tariff Heading 2909.43. The respondents, however, after allowing earlier clearance under Tariff Heading 2909.43 sought to classify the goods under Tariff Hearing 29.05. According to the petitioner, though Ethyl/Butyl Glycol is specifically classifiable under Tariff Heading 2909.43 and this fact is accepted by the respondents, nevertheless the respondents first suggested classification under Tariff Heading 29.05 and later accepted classification under Tariff Heading 2909.43. Notification no. 39/90 under which the exemption is granted, Butyl Glycol is wrongly classified under Tariff Heading 29.05. According to the petitioner, the respondents have accepted the typographical error and therefore have been granting duty concession under the notification to several importers under sr. no.8 of the said Notification no. 39/90 dated 20th March 1990 as amended by Notification no. 60/91 dated 25th July 1991. In spite of the same, the petitioner has been denied the concessional rate of duty under sr. no. 8 of the said notification by wrongly classifying it under Tariff Heading 29.05. According to the petitioner, the respondents are refusing the concessional duty at sr. no.8 and are seeking to clear additional duty at sr. no. 8 of the same notification. Held that- We have perused the relevant notification. Though the goods at column 3 of the table have been referred to as Ethyl Glycol and Butyl Glycol, insofar as column 2 are concerned they are shown under Tariff Heading 29.05. In the first part of the notification, it is mentioned that the Central Government in public interest exempts the goods specified under column 3 of the table. It is therefore clear that what is exempted was Ethyl Glycol and Butyl Glycol. The affidavits of the expert of the respondents would themselves show that they fall under Tariff Heading 2909.43. Clearly therefore the entry under column no. 2 of Tariff Heading 29.05 is a typographical error and the petitioner cannot be denied the benefit solely on that ground. In the light of the above, the petition is made absolute in terms of the interim order already passed in this petition.
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2009 (9) TMI 318
Revocation of licence- The petitioner is carrying on business and acting as licenced Customs House Agent (CHA), there are no allegations of any irregularities committed by the petitioner. by this petition the petitioner challenges the order dated 20th May 2009 passed by the Commissioner of Customs (General) cancelling the Custom House Agent (CHA) licence and further directing that since the licence was pending renewal when the order was passed, the revocation would be applicable as and when the licence became operational on account of the renewal. The petitioner also challenges the order dated 6th July 2009 passed by the Commissioner of Customs (General) rejecting the application of the petitioner for renewal of the CHA licence. Tribunal held that- for first ground-In our view, giving of the visiting card to respondent no. 2 was even assuming if amounted to misconduct was too insignificant a thing warranting cancellation of the licence or its refusal of its renewal. For second ground- the order imposing the fine of Rs.15 lakhs on Mr. Unnikrishnan by the adjudicating authority on which reliance has been placed in the impugned orders was set aside by the CESTAT by its decision rendered in Commissioner of Customs v. R.K. Tommer and other connected matters reported in Special leave petition filed has been filed against the order of the CESTAT. By the SLP the order of CESTAT has been set aside. High Court held that- in the event the order of the CESTAT is set aside, modified or stayed by the Supreme Court it would be open to the respondents to take appropriate action in accordance with law after giving opportunity of hearing to the petitioner.
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2009 (9) TMI 179
Confiscation – territorial jurisdiction of officers for adjudication - Tribunal order holding goods imported at Kolkata and adjudication by authority at Bangalore, without jurisdiction – (i) Whether the Tribunal has committed an error in holding that the Department cannot confiscate the smuggled goods without establishing the point where the customs barrier is breached? – Held that authorities are not bound in all cases to unearch the place at which such breach occurred – Proceedings for confiscation being action in rem, proper officer having jurisdiction over situs of goods, had authority to initiate proceedings – First question answered in affirmative - situs of the seizure being Bangalore and goods having been seized from persons viz. respondents who are residents of Bangalore, and duty paid nature not having been proved by respondent, Customs Authorities at Bangalore to adjudicate the matter – Once goods considered as of foreign origin, duty cast on person from whom goods were seized, to prove goods were duty paid – Goods to be presumed as non-duty paid when evidence not produced by person concerned on duty payment - The object with which the Customs Act has come into existence is to levy duty on goods as contemplated under the Act and also to ensure that those goods which are dutiable do not escape from payment of customs duty. - The said Act was brought about not only to check the smuggling but also to ensure that the goods that is imported into the territory of India to which the Customs Tariff Act are applicable suffers the duty in the hands of the importer. - Question Whether the Tribunal has committed an error in holding that the order of confiscation is not an “action-in-rem”?, is answered in affirmative – Question Whether the Tribunal has committed an error in holding that the smuggled goods cannot be confiscated wherever such goods are found?, is not answered as the matter is remanded to the Adjudicating Authority at Bangalore
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2009 (9) TMI 168
Import without licence - Whether CESTAT is right in partly setting aside the; Order-in-Original dated 28-8-2006 and reducing the redemption fine from Rs. 25,00,000/- to Rs. 5,00,000/- and also setting aside the personal penalty imposed upon the importer for various offences committed U/s. 111(d), (f) and (m) and U/s. 112(a) of the Customs Act, 1962?” - Tribunal noted that if the respondent had applied for licnece, the D.G.F.T. would have granted the same. Secondly the yacht was for personal use of Respondent herein and in these circumstances, the tribunal reduced the amount of fine. - In our opinion, it cannot be said that the said finding and consequent reduction of redemption fine by the tribunal is without jurisdiction or discloses non application of mind. In our opinion, therefore, we find no reason to interfere with the order passed by the Tribunal in so far as redemption fine is concerned. – But tribunal could not hve set aside penalty - we find that considering that the vessel was already within the Indian territorial waters when IGM had been granted and only import licence had not been asked for, there is a technical breach, ends of justice will be met if the penalty of Rs. 50,000/- is imposed. - the impugned order of the Tribunal to the extent of setting aside penalty is set aside
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2009 (9) TMI 156
Order of Confiscation of the imported ATM machines and terminal computers – Final disposal of appeal itself not proper at stay stage - misdeclaration of value and fraud – statements accepting misdeclaration not retracted – undervaluation not challenged – prima facie case for demand of duty and penalty – appellant admitted that what was imported was modem only so question of remanding the matter for ascertaining correct classification not arises – Whether this case is fit for remand without pre-deposit at the stay stage Case remanded by Member (Judicial) for denovo adjusidcation while hearg stay application without examinng merits – Member (Technical) noting that order was reserved and during hearing remand aspect not before Departmental Representative and matter argued only for stay petition - held that remand cannot be ordered without putting other side to notice and noting its objections who may be ill prepared for such eventuality – reasoning of Member (Technical) against allowing appeals at stay stage by way of remand without pre-deposit, agreed with by Third Member – Pre-deposit directed – However, bank not being party to mis-declartion, entitled to waiver of pre-deposit of penalty – Indian subsidiary of foreign supplier prima facie liable to penalty as entire conspiracy was hatched to overcome import restrictions – but penalty cannot be imposed on company u/s 112(b) of Customs Act, 1962 – since destruction of documents not contested in writ appeal and hence plea on violation of natural justice not acceptable
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2009 (9) TMI 133
Petitioners are challenging the denial of duty draw back on Castor Oil exported by them for the period 22/23-6-1989 to 21st December, 1990 - Government by their communication dated 6th December, 1989 in respect of Castor Oil medicinal and/or Castor Oil First Grade had fixed rate of duty drawback for the period 1-6-1989 to 31-5-1990. By a further communication of 6-11-1990 the communication of 6-12-1989 was amended by substituting the description by “Castor Oil medicinal”. Thus Castor Oil First Special Grade was excluded. The question that we are called upon to consider is whether it was open to the respondents by subsequent communication of 6-11-1990 to amend the communication on 6-12-1989 for the period 1-6-1989 to 31-5-1990. In our opinion the petitioners had already exported Castor Oil First Grade under the mark Castor Oil First Special Grade as they were doing earlier. It is only that the same oil then was being described as Castor Oil medicinal, pursuant to the test which was earlier being done in terms of Circular of 3rd October, 1964 - . In our opinion, in these circumstances it will be open to the petitioners within sixty days from today to apply to the respondents to exercise their powers under Rule 15 of the Rules. It is for the respondents to consider the same and act according to law at any rate not later than six months from the petitioners so applying. – petitioner is at liberty to apply for relaxation of rules and respondent to consider the same
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2009 (9) TMI 125
Violation of principle of natural justice - though the appellant had made a request for the documents which were listed in annexure to the memorandum, these documents were made available only after conclusion of hearing - No further hearing took place after the appellant filed the reply and impugned order came to be passed - In our opinion, the impugned order had to be set aside on the sole ground that the appellant herein was not given an effective opportunity of meeting the case against him. - The very fact that the documents were made available to the appellant after the hearing was concluded itself, must vitiate the entire process. In the light of that, impugned order along with the order passed in appeal are set aside. Matter is restored to the file of the Assessing Officer after giving an opportunity to the petitioner to pass appropriate orders
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2009 (9) TMI 122
Port Trust demand of demurrage charge holding remission permissible for maximum of 90 days – liability of department to pay demurrage charges - Detention Certificate issued for the period from 30-6-1997 to 4-8-2004 - In this case, as the fault, as admitted, is on the Department for wrongly detaining the goods from 30-6-1997 to 4-8-2004, in my considered opinion, the Department alone has to pay the demurrage charges for the said period. For the rest of the period i.e., from 5-8-2004 till the date of clearance of the goods, the petitioner is liable. - It is a well settled proposition of law that ‘writ of mandamus’ lies on the principle “request and denial”, which means, there should be a request by an individual and subsequent denial by the statutory authorities. In this case, though a request was made by the petitioner to the Port authorities and the same was rejected, the petitioner had not challenged the said order of rejection. Instead, he filed this writ petition, seeking for a direction to the Customs authorities, which, strictly speaking, is not maintainable. -
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2009 (9) TMI 56
Application for Advance Ruling before AAR – Meaning and scope of term “already pending” – held that - The words “already pending” should, therefore, be interpreted to mean “already pending” as on the date of the application” and not with reference to any future date
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2009 (9) TMI 41
Refund of excess duty paid – held that - the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub section (1) of Section 27 – Decision of CESTAT set aside
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2009 (9) TMI 40
Classification of Ethyl/Butyl Glycol – held that - Though the goods at column 3 of the table have been referred to as Ethyl Glycol and Butyl Glycol, insofar as column 2 are concerned they are shown under Tariff Heading 29.05. In the first part of the notification, it is mentioned that the Central Government in public interest exempts the goods specified under column 3 of the table. It is therefore clear that what is exempted was Ethyl Glycol and Butyl Glycol. The affidavits of the expert of the respondents would themselves show that they fall under Tariff Heading 2909.43. Clearly therefore the entry under column no.2 of Tariff Heading 29.05 is a typographical error and the petitioner cannot be denied the benefit solely on that ground.
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2009 (9) TMI 39
Who is the importer – held that - once the goods were freely importable, it is immaterial as to who first sought to import the goods as long as the goods were cleared according to law - Section 125 of the Act permits the authority to redeem the goods on payment of fine either to the owner or the persons in possession - In the instant case, the very fact that the goods were redeemed by the three persons, who filed the Bills of Entry, would by itself warrant the conclusion that those three persons claimed right in the goods. Even otherwise, those three persons can be said to be the other persons and therefore the Assessing Officer was right in permitting the said three persons to pay the redemption fine and release the goods.
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2009 (9) TMI 38
Release of Hot Mix Paver Machine seized – imported free of customs duty on actual user condition – violation of condition – machines transfereed to insurance companies against claim after accident - Held that - , the notice has not been given to the petitioner within the statutory period of 6 months, the continued seizure of the machine is bad in law and is hereby quashed. Rule is accordingly made absolute in terms of prayer clause (a). We make it clear that this order would not prevent the respondents from taking any other action against the respondent no.3 to whom a notice has been issued within the statutory period and/or qua the machine, if it is otherwise permissible in law.
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