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Customs - Case Laws
Showing 21 to 40 of 70 Records
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2010 (7) TMI 847
Conversion of shipping bills - DEEC to drawback scheme - Board’s Circular No. 4/2004-Cus. - Held that: - The Board’s circular contains some clarification with regard to conversion of free Shipping Bill to drawback Shipping Bill. Though the circular, at the outset, states that any such conversion cannot be allowed, it takes note of Rule 12(i)(a) of the Customs and Central Excise Duty Drawback Rules, 1995 and holds the view that it is open to the Commissioner to examine and consider individual request on merits in terms of the above rule.
An exporter, who files a shipping bill under a DEEC Scheme, is required to furnish such particulars and make such declaration as may be necessary for the proper officer of Customs to consider grant of export benefit. Similarly an exporter who files a DEPB shipping bill also has to undergo the ordeal of furnishing extra materials and making declarations to the satisfaction of the proper officer of Customs so as to enable that officer to consider grant of the export benefit. These ordeals are not there in the case of an exporter who files a free shipping bill. Considering the matter from this angle, we think that conversion of a shipping bill from any export promotion scheme to another like the drawback scheme should be easier than one from free to drawback scheme. Therefore, it must be possible for the Commissioner of Customs to decide afresh, in the light of the principles laid down in the Board’s circular, the question of conversion asked for by the appellant.
Appeal allowed by way of remand.
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2010 (7) TMI 846
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... ... ..... sion of Tribunal in the case of IOC Ltd. v. CC, Ahmedabad - 2008 (232) E.L.T. 506 (Tri. - Ahmd.). The submission of the assessees that under Rule 41 of the CEGAT Procedural Rules, 1982, power to grant interest even in the case of delayed refund of fine and penalty is ill founded for the reason that Rule 41 which is the procedural rule cannot go beyond the scope of the statute namely provisions of the Customs Act. (Order pronounced and dictated in the open Court)
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2010 (7) TMI 805
Drawback claim - supplementary Drawback Claims under Rule 15 of Drawback Rules - claims rejected as time-barred – Held that:- During such time-periods nobody stops his business activities and one has to make alternative arrangements for smooth functioning of their official work. Govt. does not find this plea of personal/ busy schedule of the respondent as a valid reason so as to bind the Customs Authorities to act as per the convenience of individual exporter - revision application of revenue thus succeeds
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2010 (7) TMI 768
Whether the DTA unit is liable to pay export duty on goods supplied to a unit within the Special Economic Zone either under the SEZ Act, 2005 or the Customs Act, 1962? - SEZ units submit that, even if the DTA supplier is liable to pay export duty, it should be recovered from them and not from an SEZ unit – Held that:- A conjoint reading of Section 12(1) with Sections 2(18), 2(23) and 2(27) of the Customs Act, 1962 makes it clear that customs duty can be levied only on goods imported into or exported beyond the territorial waters of India. Since both the SEZ unit and the DTA unit are located within the territorial waters of India, Section 12(1) of the Customs Act 1962 (which is the charging section for levy of customs duty) is not attracted for supplies made by a DTA unit to a unit located within the Special Economic Zone.
It is no doubt true that Section 2(m)(ii) of the SEZ Act defines ‘export’ to mean supplying goods from the domestic area to a unit or developer. The SEZ Act, however, does not contain any provision for the levy of customs duty on goods supplied by a DTA unit to a unit located within a Special Economic Zone. The word ‘export’, as defined in Section 2(m)(ii) of the SEZ Act, cannot be interpolated into Section 12(1) of the Customs Act. The Customs Act is a taxing statute and if the said Act does not, by the plain language used therein, carry out the object the Court will not be justified in supplying deficiencies in the Act.
The Drawback, under Rule 3 of the Drawback Rules, is subject to the provisions of the Customs Act and the Rules made thereunder. These Rules also specify certain goods which are not entitled for drawback. The Drawback Rules do not relate to levy and collection of customs duty, and it is only for the limited purpose of claiming drawback would taking out of goods from a place in a Domestic Tariff Area to a Special Economic Zone fall within the definition of “export” under Rule 2(c) of the Drawback Rules, absence of any provision for the levy or collection of customs duty on goods supplied from a Domestic Tariff Area to a Special Economic Zone for its authorized operations, either on the D.T.A. supplier or the SEZ unit, the impugned proceedings whereby the SEZ units were called upon to furnish bank guarantees, and the D.T.A. units were called upon to pay customs duty, are quashed, Writ Petitions are allowed
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2010 (7) TMI 753
Revision Application - Penalty - Hon’ble Supreme Court in case of Surgeet Singh Chhabra has observed that statement made before the Customs Officer though re-tracted within six-days is an admission and binding since Customs Officers are not police officers under section 108 of the Customs Act and FEMA. Further it is a settled law that statutory obligations as provided by the statute and classified by the concerned department are not mere formalities but these are to be strictly adhered to, Government therefore is of the conclusive opinion herein that the Applicant as having been filed, processed and got the impugned Shipping bills (goods) cleared, through its employees is very much responsible and concerned with these established fraud cases involving contraventions of Customs Act, 1962 and as such has rightly been held liable to penalty under Section 114(iii) of the Act ibid, Government, therefore, is in conformity with the views of Commissioner (Appeals) and the impugned order-in-appeal is thus upheld for being legal and proper, Government do not find any merits in these Revision Applications and the same are here by rejected.
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2010 (7) TMI 712
Whether the customs authorities have jurisdiction to issue any notice or to take any penal under Section 111, Section 113 and Section 114 read with Section 124 of the Customs Act, 1962 against any unit situated within the Special Economic Zone - notified that Section 53 being limited to that extent of ‘authorized officer’, who was earlier empowered to perform certain jobs under Chapter XA, the power of the Customs authorities under the Customs Act, including the power to confiscate and impose penalty under Sections 111 to 114, as enumerated in Chapter XIV of the Customs Act, is not taken away - Thus, we hold that the competent authorities under the Customs Act are still empowered to confiscate any goods under Sections 111 and 112 and impose penalty under Sections 113 and 114, in appropriate case, even with regard to the units situated within the Special Economic Zone. Whether the report submitted by the Customs House Laboratory, Kandla will prevail over the report submitted by the Central Institute of Plastic Engineering & Technology (CIPET), Ahmedabad and Chennai - the competent authority of the customs departments cannot take any action against the writ petitioners on the basis of the report submitted by the Customs House Laboratory, Kandla though it has power to take such action, as permissible under the law, if any irregularity is found pursuant to the report submitted by the CIPET, Ahmedabad or the CIPET, Chennai. The learned Single Judge, having failed to notice the aforesaid facts and the provisions of law and having erred in coming to the conclusion that the officials of the customs departments has no jurisdiction to take any steps in view of the Section 53 of the SEZ Act, 2005, we set aside the order passed by the learned Single Judge.
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2010 (7) TMI 708
Valuation - Transaction value, rejection on suspicion that same underdeclared - Held that:- if value declared is rejected, Revenue should establish with details of contemporaneous imports of such or similar goods, that the price declared is not correct transaction value and the value has to be determined under CVR - Commissioner did not reject the transaction value for valid reasons in the absence of contemporaneous imports of comparable CTP machines at higher prices. - In view of the decision of Apex Court in CC, Calcutta v. South India Television (P) Ltd. (2007 -TMI - 1665 - SUPREME COURT OF INDIA), the revision of price, demand of differential duty and interest, confiscation of the impugned machine on the ground that the importer had mis-declared its value and consequent penalties are not sustainable. - Decided in favor of assessee.
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2010 (7) TMI 693
Search and seizure - Department failed to prove that the accused had not declared the foreign currency before the “proper officer” namely, the first uniformed customs officer, who had intercepted the accused at the Customs Counter - the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law - . The accused stated that at that juncture, he had shown his purse to the customs officers, who took him downstairs to let him know if the declaration was required to be made and later on when he came back, he told the accused that the currency was liable to be confiscated - The submission of the counsel for the petitioner that the accused retracted his confessional statement belatedly and he did not discharge the burden of proving that the said statement was obtained from him under threat, duress or promise, is to be seen in the backdrop of the facts of the case in hand - The retracted statement of the accused under Section 108 of the Customs Act had to be examined in conjunction with the other corroborative evidence on the record - Decided against the assessee
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2010 (7) TMI 600
Provisional assessment - Notification No. 48/2000-Cus., dated 25-4-2000 - Demand - whether the benefit of Notification 48/2000-Cus. (Serial No. 10) is admissible to the processed cotton fabrics imported by the respondent in the month of March 2001 - it may be pertinent to note that the DFRC licensee had obtained it from the DGFT after exporting “processed cotton fabric made-ups other than grey”, a fact not in dispute - it should have occurred to the officer of Customs, who dealt with the shipping bills, that a sample of the export goods should be preserved and got tested for its chemical composition and other specifications - The format of DFRC presently in vogue has also been shown to us, from which it appears that the licensing authority has started specifying the composition of textile materials in DFRCs, both for export and for import and, therefore, today, there is no scope for issues of this kind to arise - Decided in the favour of assessee
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2010 (7) TMI 596
Confiscation, redemption fine and penalty - Clandestine removal - The stock taking has been done in the presence of independent witnesses and in the presence of authorised signatory - There has not been any representation alleging that the stock taking was not conducted properly - The respondent that they are manufacturing very many varieties of CTD bars, each one having different dimensions and consequently, the weight of each and every piece is different - Hence, the CTD bars are meant for specific application and each variety has fairly accurate weight and the variation in weight in respect of any variety of bars cannot differ widely - The respondent that they have individually weighed each CTD bars before entering in RG-1 register - These circumstances, the correctness of panchanama drawn on the basis of weighment taken cannot be doubted without adducing any valid reason - The Commissioner (Appeals) has held that it was practically impossible for weighing of each piece of CTD bars within 9 hrs. and 15 minutes - Such a finding is based on presumption that each piece was required to be weighed which is not warranted in the nature of the goods - Have not been shown any retraction of the statement given by the authorised signatory - The irregular maintenance of accounts by not entering correctly the quantum of goods manufactured is clearly established - Finding of the original authority that the said goods were kept for clandestine removal has been rightly found to be erroneous as the same would be only a presumption. Held that: the order of the Commissioner (Appeals) in setting aside the order of confiscation and setting the penalty are not justified - Some leniency in the matter of quantum of redemption fine and penalty is justified.
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2010 (7) TMI 590
Redemption fine and penalty - Confiscation - Misdeclaration of goods - The Bill of Entry has been filed on the basis of the invoice and packing list which clearly mentioned that there are 19 packets in the box and it is only physical examination it was found 18 packets which was not in the knowledge of the importer or the CHA. Moreover, this fact has been confirmed by the supplier - it is a mistake of the supplier, while packing the goods wherein they did not send the goods as per the quantity and value mentioned in the invoice - confiscation and penalty not warranted - decided in the favour of the assessee
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2010 (7) TMI 589
Confiscation - Penalty - Classification - Review - If the order passed by the Assistant Commissioner stands set aside by Commissioner of Customs (Appeals), the consequence would be that even the enhancement of value done by him and the confiscation with an option to redeem the same and imposition of penalty would get set aside - Appeal is disposed of
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2010 (7) TMI 577
Documents for availing cenvat credit - Denial of credit was that the assessees produced only photocopies of the original invoices on the strength of which credit was taken but did not produce original of the transporters - Find that receipt of the goods in the assessee’s factory and the use thereof stand confirmed by the report of the officer - The assessee’s stand that the non-production of the original was due to its loss does not stand controverted - The photocopy of the original invoice shows that the goods have discharged duty - The cumulative circumstances led to the conclusion that credit is to be extended to the assessees as their claim namely inputs being duty paid, and the use thereof in the factory of the assessees stands established - Failure on the part of the department due to long time gap to verify the transporters copy in original cannot lead to denial of substantive benefit of credit to the assessees - Held that, the impugned order and reject the appeal.
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2010 (7) TMI 568
Demand - the issue involved in this case is whether appellant is eligible for the benefit of the Notification No. 6/2006 more precisely Sl. No. 91 - The Tribunal, in the case of Automatic Electric Ltd. v. CCE, Mumbai - (2004 -TMI - 53346 - CESTAT, MUMBAI), has held that the benefit of exemption under Notification 108/95-C.E. is available to a sub-contractor when M/s. BHEL is the main contractor of an approved project - Accordingly appeal is allowed The next thing to be examined is whether the goods supplied are against International Competitive Bidding - Since the goods are supplied by the appellants to BHEL, who are executing the project by International Competitive Bidding, it is very clear that the goods cleared by the appellants should be considered as “goods supplied against International Competitive Bidding - The Tribunal, in the case of Automatic Electric Ltd. v. CCE, Mumbai - (2004 -TMI - 53346 - CESTAT, MUMBAI), has held that the benefit of exemption under Notification 108/95-C.E. is available to a sub-contractor when M/s. BHEL is the main contractor of an approved project - Appeals are allowed
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2010 (7) TMI 529
Exported clandestinely - Suspension of license - Regulation 20(2) of the Regulations - power under Regulation 20(2) is more drastic compared to power under Regulation 22, but both the Regulations operate in different situations - In the present case, reason given for immediate action is that investigation was pending which could be hampered and further irregularities could take place unless licence was suspended - under Regulation 20(3) of the Regulations, opportunity of hearing is required to be given within 15 days of the order of suspension - No doubt where a party is affected, normal rule of natural justice is that hearing is to be given to the affected party before passing an order, but in emergent situation, order can be permitted to be passed, subject to the hearing being given within reasonable time - The petition is disposed of
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2010 (7) TMI 504
Ban on export of meat sourced from animal slaughtered - Ministry recalled the notification without any application of mind and just by telephonic talk directed to omit the proviso - law as was originally existing having not been challenged, we find no case made out to interfere with the amendment - no merit, the petition and the Civil Application both dismissed
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2010 (7) TMI 467
Remand order of tribunal - Valuation - related person - Import of CAB (Concentrate of Alcoholic Beverages) - Rule 6 of the Customs Valuation (Determination of Prices of Imported Goods) Rules, 1988 - Classification - similar goods - Held that: - As it is evident from the afore-extracted paragraphs of the said order of the Tribunal, that the Tribunal categorically declined to go into the issue about the appropriateness of Rule 6, with the result that the finding of the Commissioner in his order passed pursuant to Tribunal's earlier order dated 29th August 2003, regarding applicability of Rule 6 remained undisturbed and in fact attained finality - the Tribunal erred in re-opening and examining afresh the question as to whether or not the value of CAB could be determined by applying Rule 6 and, therefore, the objection of the revenue in that regard deserves to be accepted.
Adjustment in value - It is plain that such "adjustment" may not necessarily lead to a decrease in the value. It may result in an increase as well. - It is manifest that "adjustment" in terms of Rule 5(1)(c) of 1988 Rules, for the purpose of determination of value of an import, can be granted only on production of evidence which establishes the reasonableness and accuracy of adjustment and higher volumes of imports per se, would not be sufficient to justify an adjustment, though it may be one of the relevant considerations.
Though the Tribunal had felt that requisite evidence to establish the range of adjustment was lacking and for that purpose, according to it, the matter was required to be remanded to the Commissioner but being influenced by the fact that there had already been three rounds of appeals to the Tribunal, it undertook the exercise itself. We are convinced that this approach of the Tribunal was not in order and therefore, in the absence of any demonstrated evidence, its direction for ad-hoc adjustment @ 20%, cannot be sustained.
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2010 (7) TMI 463
Confiscation – prohibitions on import - Revenue wants the recommendation for confiscation of the goods made by the competent authority should be enforced - Tribunal held that recommendation not the governing factor to decide whether the particular goods were liable to be confiscated or not - provision of the Import Export Policy Learned Tribunal found that there was no restriction of the import export of the goods, and as per Import Export Policy goods are classified were not restricted or prohibited goods – Commissioner also taken same view - Decided in favor of assessee.
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2010 (7) TMI 456
Advance licence - Invocation of bank guarantee - As long as the export obligation, discharge certificate is not produced before the Customs authority, they are entitled to invoke the provisions of the bond executed by the petitioner. However, in the instant case, the fact appears that there has been violation of conditions of the notification itself as it is stated that the office premises of the petitioner does not exist in the place given in the licence, which would obviously mean that there were no manufacturing factories - if there was no manufacturing unit available or any such manufacturing unit as would have the capacity to manufacture the goods worth crores of rupees, how was the imported stainless steel utilized. The question would not only be misrepresentation while getting the Advance Licence but also about the utilization of the imported material, which would squarely fall under Section 111(o) of the Customs Act. - decision in Titan case, (2002 -TMI - 46461 - SUPREME COURT OF INDIA), also does not help the Appellants. There can be a scope of enquire and the summons issued under Section 108 of the Customs Act for effecting the enquiry such as these cannot be bad for the lack of jurisdiction. The Tribunal fell in error in permitting the clearance of the goods on merit rate. By doing so the Tribunal has virtually set at naught the purpose behind issuance of an exemption notification. If the Respondent is not an actual user he would not be entitled to utilize the license. The license having been secured by adopting fraudulent method would not confer any right on the importer and as such he cannot be allowed to plead any equity. Therefore we find that the order passed by the Tribunal is not sustainable and liable to be set aside.
basis for discharge of the export obligation was existence of a factory, which does not exists, address given was a false address - false declaration and obtained a license, the importer cannot be permitted to say that the imported material is freely importable under OGL - Tribunal fell in error in permitting the clearance of the goods on merit rate - Respondent not an actual user he was not entitled to utilize the license - violation of a notification issued under the Customs Act - no error in the action of the respondent in invoking the Bank Guarantee
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2010 (7) TMI 419
Penalty on captain of ship – smuggling – illegal sale of high speed diesel by chief Engineer of a vessel to a barge – Captain of vessel not admitting having knowledge about it and also denied any share in such earnings - telephonic records do not show any interaction between himself and any of the other notices - no foreign currency or Indian currency was recovered either from the person or the cabin of the Captain - no direct evidence against the Captain for imposing any penal liability
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