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Customs - Case Laws
Showing 41 to 60 of 121 Records
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2011 (3) TMI 1297 - CESTAT, CHENNAI
Re-export - Notification No. 93/2004-Cus. dated 10-9-2004 - It is claimed that due to slow down in economic activities the supplier did not want further job work to be done by the appellant and asked for return of the balance of imported parts as such - Held that:- In the present case, the goods have been imported duty-free i.e. subject to nil assessment. The appellants are only asking for re-export of the goods in the circumstances mentioned above. The reasoning adopted by the Commissioner for rejecting re-export cannot be appreciated. It is not the case that the condition of the notification has been violated and therefore the Commissioner has held the goods to be liable for confiscation or has demanded any duty. Therefore, the order of the Commissioner rejecting the request for re-export cannot be sustained. The same is set aside. The Commissioner shall allow re-export subject to the appellants proving that the goods sought to be exported are the same as the goods which were imported.
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2011 (3) TMI 1291 - MADRAS HIGH COURT
Confiscation of 5 gold biscuits with foreign markings totally weighing 582.8 grams - Refund claim on sale of gold - Held that:- Since, the Assistant Commissioner of Customs, sold out the 5 gold biscuits overlooking the order passed by the Commissioner of Appeal, dated 28-8-1997, allowing the petitioner to redeem the gold on payment of fine and penalty the action of the Assistant Commissioner in selling the gold biscuits is contrary to the earlier order passed by the Commissioner of Appeal dated 28-8-1997 - assessee is entitle to get refund - Decided in favor of the assessee.
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2011 (3) TMI 1286 - MADRAS HIGH COURT
Special Additional duty of Customs - Deciding the date of filing of Bill of Entry - Held that:- The corrections made in the Bill of Entry like number of packages etc., would rate back to 1-6-98, and consequentially, the Bill of Entry correction in all particulars, would be deemed to have been filed on 1-6-98 itself. Having regard to the said aspect, the question of levy of Special Additional Customs, which came into force on the midnight of 1-6-98 did not arise. See ACC for Appraisement, Group-II v. Associated Forest Products Pvt. Ltd. [1999 (11) TMI 72 - SUPREME COURT OF INDIA] wherein held that any amendment to Bill of Entry subsequent to the date of original filing thereof would relate back to the original filing date. When the Bill of Entry was numbered in accordance with the departmental procedure and in the case on hand, on the date of filing of Bill of Entry i.e. on 1-6-98 itself, the Bill of entry was represented with corrections carried out, the Tribunal rightly came to the Conclusion that exigibility on the Special Additional duty of Customs did not arise.
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2011 (3) TMI 1285 - KERALA HIGH COURT
Search and seizure - Cash found source from the smuggled goods - the allegation of the prosecution is that the currencies which were seized from the possession of A3 and A4 are the sale proceeds of smuggled gold bars which were brought through fraudulent evasion and mis-declaration of value and also by evasion of duty chargeable thereon - Revision petion - Held that:- As the learned Magistrate has already come to the conclusion that the perusal of evidence adduced by the prosecution would show that the prosecution has succeeded in establishing a prima facie case as alleged by the prosecution in the complaint and by adopting the very correct and legal tests, the learned Magistrate has concluded that there is no doubt, that if the accused are not able to rebut the above case made out from the preliminary evidence, it would warrant their conviction for the offences under Sections 132 and 135 of the Customs Act. Of course, the contention raised by the counsel for accused Nos. 5 to 7 that no offence under Section 135 of the Customs Act is attracted is a contention to be considered at the time of appreciation of evidence and it is for the trial Magistrate to come to a conclusion, on the basis of such contention, after appreciating the evidence.
Thus the learned Magistrate is perfectly legal, correct and proper in rejecting the prayer of the revision petitioners for a discharge under Section 245 of Cr.P.C. and as such, no merit in the Crl.R.Ps. and accordingly, the same are dismissed.
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2011 (3) TMI 1277 - CESTAT, KOLKATA
Notification No. 26/2000 read with Notification No. 19/2000-Cus. (N.T.) benefit denied - Confiscation - Penalty - Classification - Held that:- It is only visual examination by the visiting officer to say that the slabs were not completely polished and no technical or trade opinion obtained by the Revenue regarding the conditions of the slabs hence denial of benefit of Notification is not sustainable - goods in question are polished marble slabs and Appellants are entitled for the benefit of Notification - In favour of assessee.
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2011 (3) TMI 1271 - GUJARAT HIGH COURT
Confiscation - Misdeclaration - it was submitted that Supplementary Vegetable Tanning Agents, are allowed to be imported on actual user condition and that the petitioner not being an actual user, is even otherwise not entitled to import the said goods under the DFIA Schenne - Held that:- A perusal of the Bill of Entry annexed along with the affidavit-in-reply indicates that the petitioner has described the subject goods as Beetle Nut Industrial Grade and has also indicated the Tariff Heading under which the same are classifiable - all that the petitioner has done is that it has made a claim that it is entitled to exemption of duty in respect of the goods imported by it under the DFIA Scheme on the ground that Areca Nut would stand covered under Item No. 12(c)(i) of the group G-7 of the SION - prima facie, the provisions of Section 111 of the Act would not be attracted in the facts and circumstances of the present case. Consequently, it cannot be said that there is any material on the basis of which the proper officer could form the requisite belief that the subject goods are liable to seizure under Section 110 of the Act - Decided in favor of the assessee by way of direction to deposit 50% in cash and balance by way of bank guarantee
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2011 (3) TMI 1268 - CESTAT, NEW DELHI
Application for stay - Demand - Differential duty - Undervaluation of imported goods - Rule 9 of the Customs Valuations (Determination Value of Imported Goods) Rules, 2007 - Held that:- There are evidences to show undervaluation of the impugned goods as seen from the fact that the prices declared remained more or less static, irrespective of increase in value of zinc in international market and the fact that in the case of few Bills of Entries undervaluation is proved by acceptable collateral evidence and is accepted by the Appellant. Waste materials by its very nature cannot be of uniform standard and it is difficult to assess its value unless more information about the usable material and the form in which such usable material is present, in the waste are available.
While LME prices can be good indicator to detect undervaluation it cannot be a measure for undervaluation of commodities like zinc ash/skimming and zinc dross without taking into account other relevant factors. The department is not having test reports to show the zinc contents in each of the consignments and the content of metallic zinc in each of the consignment which are crucially required for assessing the value of the goods.
The suggestion to fix the value of zinc skimming equal to 65% of the value of zinc of prime quality quoted on LME is nearly absurd. Thus having noticed the above factors it can be concluded that there is a case for giving stay on all the demands made by the impugned order. There is also a need to remit this matter to the original authority for reconsideration of the matter on more acceptable principles.
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2011 (3) TMI 1233 - DELHI HIGH COURT
Refund - assessee imported Hooks, Loops and Adhesive Tapes from Taiwan - confiscation of the above goods giving option to redeem the goods on payment of re-demption fine - Held that:- CEGAT disposed of the application vide order dated 2nd June, 1994, inter alia observing that their earlier order dated 13th March, 1992 had been complied with and, therefore, no further directions were required to be issued as the claim of the petitioner was rejected on the ground of unjust enrichment - The petitioner could not produce relevant documents to show that they had not passed the incidence of duty to the customers/consumer. The order dated 2nd June, 1994 passed by the Assistant Collector of Customs, records that repeated opportunities were granted to the petitioner to furnish proof to the effect that the burden/element of duty was not been passed to the customers/consumers, but no documents were produced to substantiate the case. On several dates the petitioner had not appeared inspite of opportunity granted. As noted above, the petitioner wanted to donate the amount to a Charitable/Welfare Trust. Accordingly, the claim of refund of Rs. 1,54,230 and Rs. 42,783 was rejected - Decided against the assessee
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2011 (3) TMI 1222 - CESTAT, MUMBAI
Waiver of pre-deposit - Condonation of delay - Held that:- Nothing else was averred or requested by the assessee in the stay application before the Commissioner (Appeals). Nevertheless, the Commissioner (Appeals) examined the various aspects of the matter including undue hardships though there was no plea of hardships in the stay application. The appellate authority referred to relevant decisions of the Hon'ble Supreme Court and this Tribunal on the factors to be considered under Section 129E of the Customs Act and Section 35F of the Central Excise Act for waiver of pre-deposit. After careful examination of all the relevant aspects, the Commissioner (Appeals) directed the above pre-deposit to be made by the assessee. Accordingly, an amount of Rs.40 lakhs was required to be deposited before 17.4.2009 & also made clear therein that, in the absence of evidence of pre-deposit, the appeal would be dismissed ex-parte. Thus enough material found in support of the prima facie view taken by the Commissioner (Appeals) - allow these appeals by way of remand with a direction to the appellant to pre-deposit Rs.40 lakhs within four weeks from today.
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2011 (3) TMI 1210 - CESTAT, MUMBAI
Declared value - importer did not produce the original documents & expressed willingness to clear the goods on payment of duty under protest - the goods were assessed to duty on the basis of contemporaneous import price of Rs. 32/-per kg. taken by the original authority from 2 of the 5 Bills of Entry in the first set - Held that:- The enhancement of value made by the original authority is clearly unsustainable in law for breach of natural justice. The appellate authority recorded certain factual findings after apparently examining particulars of the contemporaneous imports made by the respondent from M/s. Novalis (Taiwan) that these imports were made from some other suppliers and that the goods were of different grades. These results were compared with the subject-imports and it was held that the imports from M/s. Novalis could not be said to be contemporaneous for purposes of assessment of the subject-goods. The other set of contemporaneous imports of PVC tiles by other importers was given a go-by - thus remand the case to the original authority for fresh decision in accordance with law and the principles of natural justice - Decided in favor of the assessee by way of remand
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2011 (3) TMI 1205 - CESTAT, MUMBAI
EPCG licence - misdeclaration of value of the capital goods - lower value than what was shown in the proper invoice of the supplier was entered by the importer in the Bill of Entry, which resulted in payment of duty at concessional rate on the declared value - Held that:- Wrong declaration of value of the imported goods would mean misdeclaration and the same would attract confiscation of the goods under Section 111(m) of the Act, importer, by misdeclaring the value of the goods in the Bill of Entry, rendered themselves liable to be penalized under Section 112 of the Customs Act. Whether they had any intention to evade payment of duty or not is immaterial as it is settled law that no mens rea is required for penalty under Section 112, quanta of fine reduced and penalty - reduce the quanta of fine and penalty to Rs.5 lakhs and Rs.1 lakh respectively. The importer shall pay these amounts at the earliest, whereupon the relevant Bank Guarantee shall be returned to them.
CHA - CHA did not obtain authorization from the importer - CHA abetted the offence committed by the importer - Held that:- As regards the first charge, it was, at best, a ground for action against the CHA under the Customs House Agents Licensing Regulations, 2004 rather than under Section 112 of the Customs Act. With regard to the second charge, no question of holding the CHA liable to be penalized inasmuch as they cannot be held to have been abetted any offence of the importer, penalty on the CHA stands vacated
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2011 (3) TMI 1192 - CESTAT, MUMBAI
Breach of Notification No. 80/95-Cus dated 31.3.95 - Demand of custom duty, interest and penalties - invoking extended period - as per dept. assessee willfully suppressed the factum of non-utilization of the duty-free goods with mala fide intention to evade duty of Customs - Held that:- Where the taxable event is 'import', the tax has to be paid by the importer. Therefore, the importer is the person chargeable with the duty on the goods imported and presented under the Bill of Entry. Accordingly, to hold that the liability to pay duty, in the present case, is on the appellant.
It is not in dispute that the bank guarantee was encashed by the department way back in 1997. There is nothing on record to show that it was encashed at the instance of the appellant. As rightly submitted by the learned SDR, the encashment of bank guarantee cannot be deemed to be a voluntary payment of duty by the appellant. Therefore, the appellant cannot claim immunity from penalty or fine on the alleged ground of payment of duty prior to issuance of show-cause notices.
As rightly pointed out by the learned SDR, breach of condition (v) of Notification No. 80/95-Cus by the appellant attracted Section 111 (o) of the Customs Act and, consequently, the goods imported by him were liable to confiscation. The goods were, no doubt, not physically available for confiscation as they had been cleared duty-free and diverted long back. However, it is not in dispute that the clearance of the goods at Customs was allowed against bond and bank guarantee. That being so, the non-availability of the goods would not stand in the way of the adjudicating authority imposing redemption fine under Section 125 of the Act.
The appellant, as importer, cannot claim immunity from penalty after having cleared the goods duty-free under the exemption notification and diverted the same in gross breach of a condition thereof. The appellant, by his conduct, rendered the goods liable to confiscation and rendered himself liable to penalty. Hence the penalty imposed on 'M/s Global Art' under Section 112 of the Act in the Chennai case is, therefore, liable to be sustained in principle. Given the assessable value of the goods to be approximately at Rs 30 lakhs, we reduce the penalty to Rs 1,00,000/- . The penalty imposed on Mr. Bimal Kumar Mehra in the Chennai case is set aside. In the Mumbai case the penalty on Mr. Bimal Kumar Mehra is not liable to be vacated though it calls for reduction, in the circumstances of the case, to Rs 10,000/-.
Breach of conditions of the notification made the appellant liable to pay the duty with interest in terms of the bond. Therefore, the demand of interest on duty confirmed against the appellant, in the Chennai case, has to be upheld and it is ordered accordingly.
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2011 (3) TMI 1189 - CESTAT, MUMBAI
Transfer of appeal - application filed by the assessee with the South Zonal Bench for transfer of the department's appeal to the West Zonal Bench on the ground that their registered office is situated at Mumbai, the South Zonal Bench ordered transfer of that appeal, later on, bench took note of Public Notice and ordered transfer of both the appeals to South Zonal Bench (Chennai) - Assistant Registrar of the Chennai Bench sent a letter requesting for obtaining the approval of the Hon'ble President and forwarding the same - Held that:- Had the present appeals been filed on or after 5.8.2005 with the Zonal bench concerned (Chennai), the appeals would have been heard by that bench. Prior to 5.8.2005, it was open to a party to file appeal with the Principal Bench or with a Zonal bench and then seek transfer to the jurisdictional bench. This is what was done by the party in the present case, who filed their appeal with this bench and sought transfer of the department's appeal from Chennai bench to this bench on the ground that their registered office is situated in Mumbai. The transfer application was not opposed. This view of ours is at variance with the view taken by the bench on 29.9.2010. Therefore, in the interest of judicial discipline, we would like to have the Hon'ble President's decision in the matter before proceeding to hear the appeals. Accordingly, the Assistant Registrar is directed to place the records along with a certified copy of this order before the Hon'ble President without delay.
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2011 (3) TMI 1177 - CESTAT, MUMBAI
DTA clearances - whether the appropriate amount of duty was paid by the EOU on the DTA clearances - said clearances of carpets to the DTA were made to EPCG licence-holders - benefit of concessional rate of duty denied - appropriate duty was not paid on the final product manufactured out of such raw materials and cleared to DTA - Held that:- A few orders of adjudication were passed by the Commissioner and the rest by the Additional Commissioner. In the nature of this case, it is desirable that all the show-cause notices be adjudicated by the Commissioner - set aside the orders of the lower authorities and allow these appeals by way of remand.
Commissioner is requested to undertake de novo adjudication of all the show-cause notices and pass a common speaking order on all the issues involved in the case. Needless to say that the documents submitted by assessee should be carefully examined and the assessee should be given an apportunity to adduce further documentary evidence also if they want to. The adjudicating authority shall also give them a reasonable opportunity of being heard.
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2011 (3) TMI 1112 - CESTAT, CHENNAI
Classification - Import of goods - assessee had described the goods imported by them as “Fractions of Crude Palm Oil” and sought amendment of the description as “Crude Palm Oil”. They also sought permission to transfer the imported goods to a licencee having manufacturing facility/refinery - The Assistant Commissioner of Customs rejected the claim for amendment - Held that:- The request for amendment was valid in the eye of law. Further, the request for transfer of the goods to a licencee having manufacturing facility/refinery for the manufacture of refined oil is also permissible as per the warehousing provisions. Therefore, permit the amendment of the Bill of Entry and allow the request of the appellants to transfer of Crude Palm Oil to a licencee possessing manufacturing facility/refinery. Also provisional transfer of the goods was also permitted by the Customs authorities. Hence, the impugned order is set aside and the appeal allowed in the above terms.
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2011 (3) TMI 1110 - CESTAT, CHENNAI
Notification No. 25/2005-Cus. dated 01.03.2005 - whether the impugned goods namely “co-axial cables” imported by the respondents are entitled to duty exemption under Sl.No. 28 of the Customs Notification No. 25/2005-Cus. dated 01.03.2005 - original authority in his order has denied the exemption classifying the impugned goods under sub-heading 8544.20 - Held that:- Subheadings 8544.40, 8544.50 and 8544.60 cover “other electric conductor" - These subheadings would cover such conductors which are other than those described previously under the preceding subheadings such as 8544.10, 8544.20 and 8544.30, i.e., conductors other than winding wire, co-axial cable, and ignition wiring sets would be covered under the latter subheadings the coverage being limited to “other electric conductors” - Since the impugned notification specifies subheadings 8544.41 and 8544.49 under Sl. No. 28 and 8544.51 under Sl. No. 29, co-axial cables not being covered by these subheadings stand excluded from the coverage of the said notification - The structure of the notification including specified items classified under specified sub-headings of the tariff, namely 8544.41 and 8544.49 clearly keeps the co-axial cables classified under the heading 8544.20 out of the scope of the exempted notification - Decided in favour of revenue.
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2011 (3) TMI 1080 - CESTAT, AHEMDABAD
Goods cleared without payment of duty against the Advance licences - assessee engaged in the business of import of poly propylene granules and sold the same on High Seas Sale basis to various persons including M/s Chandra Gems - nvestigations conducted by Revenue, who entertained a view that the buyers of the goods were bogus parties and their names were used by assessee to clear imported granules against advance licences without payment of duty - the appellants contended that the impugned order is in violation of principles of natural justice inasmuch as the appellants were not offered any effective opportunity of personal hearing - Held that:- No merits in the contention of the DR as admittedly, the matters were remanded in 2002 and no action was taken on the same by Revenue till 2008. There is no reason for such delayed taking up of the de-novo proceedings. In fact, such un-explained delay on the part of the Revenue is the actual reason for delay in the adjudication proceedings. Further, admittedly no personal hearing was afforded to the appellant after they filed detailed written submissions as per the direction of Assistant Commissioner. No reasons stand advanced as to why the appellants were not heard in person. Thus the impugned orders stand passed in gross violation of principles of natural justice - remand the matters to Commissioner for fresh adjudication.
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2011 (3) TMI 977 - CESTAT, AHEMDABAD
Waiver of pre-deposite - Assessee where 1/4th of the product exported has been returned by the buyers and the ship was already on its way and was half the way of its voyage - Evidence is available to show that samples were drawn from the tanks after the product was loaded on to the ship and since the tests done in the refinery under the supervision of independent agency, had fulfilled the conditions, without waiting for the results of the sample test, the ship sailed and subsequently only when in respect of three tanks the test had failed, the product contained in those tanks has been re-imported - Therefore, prima-facie, it appears that appellant have made out a very strong case for waiver of pre-deposit.
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2011 (3) TMI 955 - CESTAT, BANGALORE
Export obligation - Commissioner observed that there was failure in fulfilling the export obligation in respect of the capital goods involved and the Development Commissioner had punished the EOU - Note that in the Solitaire Machine Tools P. Ltd. 2002 (11) TMI 165 - CEGAT, MUMBAI, found to apply to the instant case by the Commissioner(Appeals), the Tribunal had held that in terms of Notification No.13/81, the assessee was liable to pay duty on the capital goods obtained under the EOU scheme on the depreciated value and depreciation was admissible upto the date of payment of duty. As regards the liability to confiscation of the capital goods involved, find that as per the impugned order, the assessee had discharged the export obligation attached to the impugned goods upto 1996; violation, if any, occurred after 1996 - As the export obligation attached to the impugned goods at the time of import was discharged by 1996, the goods may not be liable for confiscation under Section 111(o) of the Act on a finding that the exemption allowed at the time of import was conditional upon the EOU discharging export obligation and the same had not been fulfilled by the EOU after import - As the confiscation stands penalty under Section 112(a) of the Act is consequential and cannot be waived.
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2011 (3) TMI 953 - CESTAT, AHEMDABAD
Application for condoning - Delay of twenty four days - Limitation - The appellate authority has observed in as much as no evidence of illness was produced, in spite of the opportunity is having been granted to the appellant, delay cannot be condoned - As such the appellants should be given an opportunity to properly explain the delay along with evidences before Commissioner (Appeals) - Accordingly after allowing the COD applications, set aside the impugned order and remand the matter to Commissioner (Appeals) for reconsideration of COD application.
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