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Customs - Case Laws
Showing 21 to 40 of 121 Records
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2011 (3) TMI 1446 - CESTAT, AHMEDABAD
Export from SEZ area - Over invoicing - claim of drawback or DEPB - The goods were seized by the customs officers on the ground that the same were of very poor quality, cartons used were also of very inferior quality and did not bear any packing details and numbers were written by some semi illiterate person and value when compared with quality appeared to be disproportionately higher. - held that:- at the time of initiation of transaction itself, appellants had planned to claim DEPB or drawback whichever is more beneficial to them and with that object only, the whole operation was planned. The fact that FOB value was realized does not take away or does not help the appellants to rebut the contention of the department that value was inflated by ST while supplying the garments to SCPL resulting in inflation of value by SCPL. - value was wrongly declared is correct and accordingly goods were liable to confiscation.
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2011 (3) TMI 1445 - GUJARAT HIGH COURT
Import of regrind polycarbonate - payment of demurrage charges- requirement of licence - held that:- since the petitioners have succeeded before the Tribunal and the confiscation as ordered by the Commissioner of Customs has been set aside, the Department must take on the liability of meeting the demurrage charges of the custodian. The petitioner company would, therefore, be entitled to reimbursement of the warehousing charges paid by it on account of wrongful confiscation by the customs authorities. As observed in the aforesaid decisions, to hold otherwise would be unjust to the petitioners who have met with success in their litigations with the Department.
The Department shall be liable to bear the warehousing charges amounting to Rs. 93,622/- which has been paid by the petitioners and as such, the petitioners would be entitled to reimbursement of the same.
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2011 (3) TMI 1436 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Revision Application - drawback claim of goods re-exported under DEPB Shipping Bill was rejected by the lower authorities Held that:- goods were re-exported under DEPB Shipping Bill and drawback is claimed, of duty paid on their importation through DEPB Scrip, C.B.E. & C. Circular 75/2000-Cus., dated 11-9-2000 stipulates that in such cases the DEPB credit will be admissible to the export subject, to fulfilment of laid down conditions. As such there is no case for grant of duty drawback as no cash duty was paid and for debit of DEPB, on importation of goods, he will get credit in DEPB scrip only, order passed by Commissioner (Appeals) is perfectly legal and proper and same is therefore upheld, revision application is rejected being devoid of merit
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2011 (3) TMI 1421 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Revision Application - goods re-exported under claim of duty Drawback under Section 74 of Customs Act, 1962 on the reason that these were found defective after clearance Held that:- Once, it is proved that, the market price of any goods is less than the amount of Drawback dues, the Drawback may be rejected in terms of Section 76. Applicant had declared the value of goods as no commercial value, market price of goods found to be less than Drawback claimed, and hence the Appeal was rightly rejected by the Appellate Authority, Revision Application is rejected being devoid of any merit
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2011 (3) TMI 1417 - PUNJAB & HARYANA HIGH COURT
Seizure of goods - Provisional release - petitioner imported scrap under the Open General Licence Scheme in February, 2011 Held that:- respondents submits that Show Cause Notice is proposed to be issued under Section 24 and pending consideration, though there is no objection to order of provisional release being passed under Section 110A of the Act, such an order could be passed only after an application was moved and not otherwise, respondents directed to pass an order of provisional release, petition is disposed of
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2011 (3) TMI 1395 - MADRAS HIGH COURT
Actual user condition - Concessional rate of duty as per the Notification No. 33 of 2010, dated 12-3-2010 - investigation - petitioner is using the benefit of the notification by importing maize at concessional rate against the terms of licence and mainly on the ground that the petitioner is not having a manufacturing unit of its own at Chennai and therefore, it amounts to deliberate deception by the petitioner - while applying for a licence, the appellants set out the components they would use and heir value - Held that:- value which had been indicated in the application was very large whereas what was actually spent was a paltry amount, licensing Authority having taken no steps to cancel the licence. The licensing authority have not claimed that there was any misrepresentation. Once an advance licence was issued and not questioned by the licensing authority, the customs authorities cannot refuse exemption on an allegation hat there was misrepresentation. If there was any misrepresentation, it was for the licensing authority to take steps in that behalf, licensing authority has not taken any appropriate action as per the recommendations of the second respondent, it is not possible to accept the contention of the learned counsel for the second respondent as if the petitioner must be disentitled from effecting import or the petitioner should be imposed with certain burden for the purpose of effecting import, viz., requiring it to pay 50% of the customs duty. At this point of time, it is relevant to state that till date the customs duty has yet been assessed by the competent authority, writ petition succeed
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2011 (3) TMI 1394 - CESTAT, NEW DELHI
Demand of duty redemption of fine - Penalties have been imposed on the ground of mis-declaration and on the ground that imported newsprint paper stands diverted - diversion of goods imported by M/s. Suspense Kahania, M/s. Educator, M/s. Chardi Kalan and M/s. Kissan Mittar, what was imported in the name of these parties were in the premises owned by Director Shri S.K. Gupta or Shri J.S. Dardi who were not specifically authorised for importing newsprint in the names of these parties - submissions of Shri S.K. Gupta and Shri J.S. Dardi and submissions of some of the dealers clearly confirm diversion of part of the imported goods in the name of these parties Held that:- no penalty should be separately imposed on Shri J.S. Dardi insofar as the same relate to imports in the name of M/s. Suspense Kahaniya which is proprietary concern of Shri J.S. Dardi, he has played a crucial role in the diversion in his capacity as Director of M/s. Chardi Kalan and also in imports relating to M/s. Kissan Mittar. Therefore, these activities are not in his capacity as proprietor of M/s. Suspense Kahaniya and therefore, a separate penalty on him is warranted, demand of duty raised against M/s. Suspense Kahania is upheld, confiscation upheld, redemption fine imposed is reduced, penalty on M/s. Suspense Kahaniya is also upheld, demand of duty confirmed against the M/s. Gautam Traders, M/s. Chardi Kalan and M/s. Kissan Mittar are set aside, Penalty imposed on M/s. Gautam Traders is set aside, penalties on M/s. Educator, M/s. Bharat Desh Hamara, M/s. Chardi Kalan, and M/s. Kissan Mittar are reduced, penalties on Shri S.K. Gupta and Shri J.S. Dardi are reduced to Rs. One lakh each
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2011 (3) TMI 1381 - MADRAS HIGH COURT
Smuggling - Order of detention passed under Section 3(1)(i) of the Conservation of Foreign Energy and Prevention of Smuggling Activities, 1974 (COFEPOSA Act) - samples were drawn from the consignments found at M/s. Viking Warehousing Container Freight Station, there is nothing on record to show that the samples were tested in any laboratory and there are communications to the effect that the customs authorities simply relied on the alleged certificate of analysis produced by the Export Manager - there was no other past activity on the part of the detenu to come to a reasonable conclusion that he was regularly indulging in smuggling activities - order of detention passed by the first respondent stands vitiated on the ground of non-application of mind since the subjective satisfaction of the detaining authority regarding the description of the contraband is based on inconclusive test report and on reports obtained from laboratories, which are not notified and also on the ground that the valuation was not made as per Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, Habeas Corpus Petition is allowed and the impugned detention order of the first respondent in Detention Order set aside
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2011 (3) TMI 1375 - SETTLEMENT COMMISSION
Demand of differential duty under Section 28(1) of the Act from the applicant - information was gathered by CIU, JNCH that the applicant was misdeclaring the description of the imported goods. The information further disclosed that the said applicant had attempted to clear Secondary/Defective Cold Rolled Stainless Sheets Grade 201 by declaring the same as Prime in home consumption - applicants have admitted the charge of undervaluation as alleged in the SCN, applicants have admitted additional duty liability and have paid the same in true spirit of settlement, there had been a preplanning in the mis-declaration and undervaluation of the subject goods as alleged in the SCN, which has a bearing on imposition of penalty, differential Customs duty payable, amount stands paid by the applicant and confirmed by the Revenue, Since the duty was paid before the goods were cleared, interest is not applicable, immunities are granted under sub-section (1) of Section 127H of the Act. Attention of the applicants are also invited to the provisions of sub Section (2) and (3) of Section 127H ibid, order of settlement shall be void in terms of sub-section (8) of Section 127C of the Act
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2011 (3) TMI 1367 - MADRAS HIGH COURT
CHA - stay application- undue drawback claim - it was noticed that two companies had filed forty two shipping bills for the export, companies made export with very less quantity of utensils, but falsely declared the weight to nearly 5 to 8 times more than the actual weight exported, only with the fraudulent intention of claiming undue Duty Drawback - Managing Director of the petitioner has given a statement before the investigating officers of the customs that his employee by name S.P. Boopalan connived with the said two exporters and committed violation of the Customs Act, with the sole intention to claim undue Duty Drawback - main thrust of the arguments of the learned counsel for the petitioner is that in view of the action of the Tribunal in not passing any orders in the stay application, the petitioner is prejudiced as there is no effective remedy to protect his interest. Therefore, he moved this court under Article 226 of the Constitution - when there as an effective, efficacious alternative remedy available and having chosen that remedy, it is not proper for any party to come before this court under Article 226 of the Constitution of India, unless it is shown to this court that there is a violation of any fundamental right or the principles of natural justice, writ petition is disposed of with a direction to the 3rd respondent to take up the stay application filed by the petitioner pending before them and dispose of the same in accordance with law
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2011 (3) TMI 1345 - CESTAT, DELHI
Imposition of anti-dumping duty on tyres, tubes and tyre-flaps - appellant states that his share of imports compared to total consumption is insignificant and cannot be a cause of injury to the domestic industry, many of the economic indicators taken into consideration by the DA reveals that the domestic industry not suffered any injury and some of the other negative indicators are due to other factors and not attributable to subject imports - Held that:- No arguments have been advanced before us to demonstrate that the finding of the DA in regard to determination of dumping, injury and causal relationship between the two are either malafide or perverse. The quantum of anti-dumping duty recommended by the DA and imposed by the Government has also not been assailed before us - levy of anti dumping duty sustained.
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2011 (3) TMI 1339 - KERALA HIGH COURT
Demand - Provisional assessment - The case of the petitioner that, till October, 2010, the duty was being assessed, on the basis of the 'declared value' which substantially got changed, thereafter - Held that:- Taking note of the fact that the final assessment order had already been passed in W.A No.2048//2010 and connected cases, it was observed by the Division Bench that the concerned assessee had to pursue the statutory remedy, if he was aggrieved by the final assessment - respondents are directed to finalise the proceedings and pass final assessment orders, in respect of the pending bills of entries, after considering the entire materials on record forthwith - Decided in favor of the assessee by way of remand.
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2011 (3) TMI 1338 - KERALA HIGH COURT
Provisional assessment - Held that:- What is clear from Section 18(1) read with the above Regulations is that the Officer could make provisional assessment and release goods under Section 18 of the Act pending final adjudication only after ensuring that the actual duty that could be levied later will be recoverable from the party - Regulation 2 makes it clear that besides remittance of the admitted duty in terms of the claim of the importer / exporter the officer can demand payment of duty up to 20% of the duty provisionally determined by him which is over and above the admitted duty payable in accordance with the claim of the party and assessed by the Officer - credentials of the importer / exporter and such other matters should weigh with the Department in relaxing the condition for security, which in the normal course should be Bank Guarantee.
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2011 (3) TMI 1336 - KERALA HIGH COURT
Provisional assessment - writ of mandamus directing the respondents to clear the consignment of 'betel nuts' imported by the petitioner as per Ext.P2 and Ext.P3 Bills of Entry, on the basis of Ext.P6 judgment passed by the CESTAT - petitioner submits that the petitioner has already obtained all the relevant documents to substantiate the case - The prayer of the petitioner is to direct the concerned respondent to finalise the assessment within a time frame - Held that:- Respondents are directed to have the assessment within 'seven days' and a speaking order as contemplated under the relevant provisions of the Customs (Provisional Duty Assessment) Regulation, 1963 shall be passed within 'two weeks' thereafter; also considering Ext.P7, if the same is applicable to the case in hand.
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2011 (3) TMI 1316 - CESTAT, BANGALORE
Refund for cess - principles of unjust enrichment - appellants claimed that as per the contracts with their foreign buyers, they were liable to bear export duties, taxes, etc. The invoice price was a composite price and it could be inferred that the duty burden had not been passed on. - Held that:- As find that from the vrious definition it is not possible to arrive at a definite conclusion that the FOB value includes the cess paid on export of rice especially in cases where the contract with the foreign buyer specifically provided that the export duty/taxes etc. were to the account of the seller. In all the cases except in the case of M/s. Al Gyas Exports Pvt. Ltd., the appellants have furnished copies of the relevant contracts containing the above clause. Unless the Department is satisfied on examination of the documents showing remittance received by the appellants, the finding in the impugned order that the FOB value recovered included the impugned cess cannot be sustained. As it is, there is no reliable finding in the impugned order to conclude that the disputed cess amounts had been recovered as part of the FOB value.
There is no dispute that provisions in the Act pertaining to levy, collection, refund, etc., apply to levy, collection, refund, etc., of cess levied under the APFPEC Act. As provisions relating to levy and collection are borrowed, the provisions relating to short levy, short payment, concomitant disputes and the remedies provided in Sections 128 and 129D(2) of the Act should also be held to have been borrowed for the purpose of APFPEC Act by virtue of the above sub-section. Therefore, we reject the objection raised by M/s. Al Gyas Exports Pvt. Ltd.
As regards the claim that a refund claim for excess duty paid can be validly made without challenging assessment under the Act relying on the judgment of the Apex Court in the case of Karnataka Power Corporation Ltd. v. CC (Appeals) [2002 (4) TMI 79 - SUPREME COURT OF INDIA] it is note that a Larger Bench of the Tribunal had considered the ratio of the above decision and the decisions of Flock India case [2000 (8) TMI 88 - SUPREME COURT OF INDIA] and Priya Blue Industries case [2004 (9) TMI 105 - SUPREME COURT OF INDIA] and held that a refund claim was not maintainable unless the assessment order in pursuance of which duty paid was challenged and modified/set aside. As regards the challenge to the impugned order for the reason that the appeal disposed by it had been filed following review initiated after the period prescribed, it is observed that this ground concerns facts. This ground is taken first in the proceedings. The ground is not substantiated with details of the relevant dates, etc. Moreover, the assessee had participated in the proceedings before the Commissioner (Appeals) without raising this objection. In the circumstances, reject the challenge to the impugned order raised by M/s. Al Gyas Exports Pvt. Ltd. Appeal dismissed.
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2011 (3) TMI 1315 - KARNATAKA HIGH COURT
Penalty u/s 28 - Time limitation - notice imposing penalty is issued immediately after 5-6 years - short landing of the cargo since there is a Form/Declaration field by the petitioner himself - Held that:- As there is loss of revenue to the state in not initiating action at the inception - The petitioner has undertaken under clause (7) of the Agreement that for any contravention of the provision of the Customs Act, petitioner is responsible - Petitioner is directed to deposit the balance amount after the reduction of Rs. 5 lakh from the total amount.
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2011 (3) TMI 1311 - GOVERNMENT OF INDIA
Application for revision - Classification - whether mere exceptional or possible use of the bedspreads in place of quilt can not make the product a quilt so as to be covered under the Heading No. 9404 - Held that:- As from Explanatory Notes of 9404, it is clear that the goods more specifically classifiable under 9404. Government further observes that the quilts are not always made of bulky stuffing. There are various types quilts available in market, which have very light stuffing - Decided against the assessee
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2011 (3) TMI 1310 - MADRAS HIGH COURT
Difference in duty between the show cause notice and the admitted amount - Demand raised - Held that:- As the first respondent has failed to consider the report of the Commissioner (Investigation) and pass appropriate orders and simply shirked its duty by throwing the blame on the petitioner as if the petitioner had been making disclosures many a time each at variance with the other. As pointed out earlier there has been only one disclosure at the time of admission. The clarifications given by the petitioner is only at the time of investigation by the Commissioner (Investigation) who was duly authorised by the first respondent in terms of Section 127C(6). Such clarification or statement cannot be equated to disclosure. Therefore, it is for the first respondent to accept the disclosure originally made on the basis of the investigation report and come to the conclusion as to what will be the appropriate amount that should be demanded by way of duty and what will be the penalty and interest which should be levied for the purpose of settlement. In this case, this court finds that the Settlement Commission has grossly mislead by itself by failing to consider the investigation report which it had called for and thereby fell into error by accepting the untenable plea of the Revenue that there are inconsistencies in the disclosures. Such finding is based on no evidence and contrary to the records. Merely because there is a huge difference in duty between the show cause notice and the admitted amount, the case of the petitioner cannot be thrown out.
As the first respondent failed to consider the vital and relevant documents viz., the investigation report which had been called for by the Settlement Commission before deciding the issue finally. The non-application of the mind of the first respondent on this vital relevant document clearly goes to the root of the matter. The order impugned suffers from error apparent on the face of the records - matter remitted back to the first respondent for reconsideration.
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2011 (3) TMI 1305 - CESTAT, NEW DELHI
Misappropriation of goods - show cause notice dated 22-12-98 was issued on the ground that the export obligation has not been fulfilled and gold procured duty free has not been accounted for and accordingly duty was sought to be demanded from M/s. MMTC, the importer and penalties were sought to be imposed on M/s. MMTC - assessee contested that there is no evidence of the appellant director personally removing the gold and taking gold or gold ornament from the strong room of the NOIDA Processing Zone - Held that:- While there is no direct evidence, substantiating the charge of clandestine removal by the appellant company and involvement of the appellant director in such clandestine removal, their failure to account for duty free gold is clearly established - the appellants dealt with 15 Kgs. of gold which are liable for confiscation, in view of non-fulfilment of export obligation - Considering the entire facts & including the facts that appellant company was a job worker and that the Commissioner has upheld the demand of duty against M/s. MMTC, deem it appropriate to reduce the penalty imposed on the appellant company from Rs. 25 lakhs to Rs. 5 lakh and penalty imposed on the appellant director from Rs. 25 lakh to Rs. 3 lakh.Decided against the assessee
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2011 (3) TMI 1298 - CESTAT, AHMEDABAD
Provisional assessment - whether addition of cost for beaching and whether tug charges are includible in the assessment over and above the contract value - beaching of the vessel was the responsibility of the seller and all amounts to be paid on that account were to be borne by the seller - Held that:- The contract price is for delivery at the time and place of importation and inclusive of all costs, charges and expenses to be incurred or actually incurred by the seller for effecting the delivery at the place of importation and nothing further can be added as is clear from the provisions of Section 14 of Customs Act, 1962 - Appeal is allowed
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