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Customs - Case Laws
Showing 61 to 80 of 121 Records
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2011 (3) TMI 950 - CESTAT, AHEMDABAD
Principal of natural justices - the original adjudicating authority in reference was issued on 29.06.99 but the said appeal along with the stay application was filed on 29.10.09 which was after a lapse of more than ten years - The appellant claimed that they came to know about the said adjudication order only on receipt of the letter dated 11.06.09 of the Assistant Commissioner of Customs, Porbandar for recovery of the due arising out of the OIO - Appellant thereafter contended that the said demand has already been dropped by Hon ble CESTAT, New Delhi vide order No.213/05-NBA dated 31.01.05 - Thereafter Assistant Commissioner vide letter dated 08.09.09 stated that the CESTAT, New Delhi s order mentioned by the appellant pertains to another OIO and not for the OIO No.34/AC/1999 dated 29.06.99 - the appellant submitted that they have never received OIO in question and requested for the same, a copy of which was forwarded to them vide letter dated 24.09.09 - the said letter report of the Assistant Commissioner was never supplied to the appellant - No opportunity was given to the appellant to contest the said report. Further, as pleaded by the learned advocate the said report nowhere shows the date of receipt of the impugned order - It also does not disclose as to whether the acknowledgement due, under which the impugned order was sent, stands received back by the Revenue or not - set aside the impugned order and remand the matter to Commissioner (Appeals) for fresh decision.
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2011 (3) TMI 937 - CESTAT, AHEMDABAD
Refund claim - unjust enrichment - Amount of duty excess paid at the time of assessment of bills of entry - period involved in the appeal is of 1998 - According to the Hon ble High Court came to a conclusion that when provisional assessment is finalized the assessee is entitled to refund and the provisions of Section 27 are not attracted prior to the amendment of Section 18 - As such it has to be held that unjust enrichment was not applicable in respect of the refund arising out of the finalization of provisional assessment prior to 13.07.06 - Accordingly set aside the impugned orders and allow the appeal with consequential relief to the appellant.
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2011 (3) TMI 891 - CESTAT, CHENNAI
Imported goods - Royalty payable - The assesses contention is that the refund amounts represents SVB deposit and not duty, that as per the Circular No.1/98-Cus., dated 01.01.1998, amount of extra deposit presently kept at 5% of the value of the goods and henceforth be reduced to 1% of the value, which clearly shows that the amount paid, which has been claimed by way of refund is only a deposit and that after setting aside of the loading, the provisional assessment of the goods has not been finalised and on finalisation if the amount paid is in excess of the duty finally assessed, the assessees were automatically entitled to a refund, have not been considered by the authorities below - Interests of justice therefore require that the impugned order be set aside and the goods be remitted to the adjudicating authority for fresh decision in the light of the pleas raised by the assessees.
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2011 (3) TMI 845 - GUJARAT HIGH COURT
Discretionary power - find that though power under Sections 111 and 112 of confiscation and penalty are available, under Section 125 of the Customs Act, Authority also enjoys discretionary power to impose fine in lieu of confiscation. Tribunal in exercise of such discretionary powers ordered reduction in fine and also reduced penalty - Such being exercise of discretionary power, no question of law arising - Appeal is therefore, dismissed.
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2011 (3) TMI 833 - CESTAT, AHMEDABAD
Import - 100% EOU - whether the respondents are liable to pay the National Calamity Contingent Duty, SHE and Education Cess on the various consignments of imported crude petroleum oil - 100% EOU clear warehoused goods for home consumption - After payment of duty at the time of filing bill of entry for warehouse “Under Protest” - Held that:- following the law declared by the Larger Bench decision in the case of of CCE, Jaipur v. Paras Fab International - (2010 -TMI - 77759 - CESTAT, NEW DELHI), the fact of payment of duty at the time of filing bill of entry for warehouse “Under Protest” will also not change the legal position that 100% EOU is required to pay duty only at the time of clearances of warehoused goods for home consumption. - By following the law declared by the Larger Bench decision in the case of Paras Fab International that 100% EOU is not required to discharge any duty liability in respect of the imported goods warehoused in their premises and used for the purpose of manufacturing in-bond, we hold that respondents were not required to pay any NCCD, Education Cess and SHE Cess.
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2011 (3) TMI 832 - COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI-I
Classification - penalty - goods under import were declared as “non-alloy steel Slabs secondary/defective - Adjudicating Authority rejected the transaction value imported goods were held to be secondary/defective alloy and non alloy Steel Plates as against declared description of non-alloy Steel Slabs secondary/defective - Held that:- The allegation that the impugned goods imported are “Plates”, instead of “Slabs” as declared, has not been proved conclusively so as to warrant confiscation of the goods on the ground of misdeclaration of description of the goods. The order of confiscation of the impugned goods on this ground is therefore set aside. 489.67 MT of the imported goods is held to be “alloy” steel, instead of “non alloy” steel as declared, on the basis of the chemical analysis test report of National Metallurgical Laboratory, Chennai, and therefore they are technically liable for confiscation for misdeclaration of description of the goods under Section 111(m) of the Customs Act, 1962. However, since 75% goods were released on PD bond, and only 25% i.e. 122.42 MT of “alloy steel” are available for confiscation, the said 122.42 MT of alloy steel is confiscated under Section 111(m) of the Customs Act, 1962 with the option to redeem the same on payment of a fine of Rs. 20 Lakhs (Rupees Twenty Lakhs only).
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2011 (3) TMI 824 - CESTAT, NEW DELHI
Suspension of CHA licence - Circular 9/2010 dated 8-4-2010 - The reason for suspension of the license as seen from the order is that M/s. Gorala Arya Impex Pvt. Ltd. Delhi attempted to export non-basmati rice, (a prohibited item for export) as basmati rice (not prohibited for export from Mundra Port). Tine Appellant had acted as CHA for the impugned export consignments and filed the relevant Shipping Bills - There is also a charge that during the investigations the CHA did not disclose information about other Shipping Bills which were filed, but against which goods had been not been exported - it is also clarified that the Commissioner of Customs at a customs station who had authorised a CHA to operate on ‘C’ form intimation, should inform the details of violations to the Commissioner of Customs at the customs station from where the CHA licence was issued for such CHA, so that necessary action for suspension or revocation of CHA licence, could be initiated by him - Held that: there has been considerable delay in issue of the suspension order when adjudged against the time frames prescribed by the Board - stay on suspension order has the same effect as revocation of suspension - Appeal is disposed of
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2011 (3) TMI 823 - CESTAT, NEW DELHI
High Seizure Value - Confiscation - Application of stay - This type of problem is caused quite often by the seizing officers who show very high seizure values to boost up their performance figures and thereafter the department also is not able to sell the goods at the price assessed by them - Where the Appellant are desirous of redeeming the goods and where the Appellant produces documents showing contemporaneous imports of identical/similar goods, the department shall open the sealed packages and verify the description of goods with the documents produced and prepare a report to state whether such values can be adopted for assessing the goods and if not why not - It may be kept in mind that the limited question at this stage is whether the values declared in the documents can be used for assessing the values of the confiscated goods and the question is not whether the confiscated goods were imported under the documents produced by the Appellant.
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2011 (3) TMI 817 - CESTAT, DELHI
Waive of pre-deposit - The contention of the applicant is that they received the notice of hearing on 13.8.09 which is in respect of appeal filed by the Revenue against OIO No.R-12/RC/AC/09 dt.04.02.09 and the applicant appeared in pursuance of this notice before the Commissioner (Appeals) - find that the Revenue is admitting the fact that the notice had been issued in respect of appeal relating to adjudication order dt.4.2.09 whereas the impugned is passed in respect of adjudication order dt.13.1.09 -Thus, the matter requires to be reconsidered by the Commissioner (Appeals) in respect of appeal filed against the OIO No. R-576/RC/AC/09 dt.13.01.09 - The impugned order in respect of this adjudication order is set aside after waiving pre-deposit amount and the matter is remanded to the Commissioner (Appeals) to decide the appeal afresh.
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2011 (3) TMI 816 - ANDHRA PRADESH HIGH COURT
Penalty - Mere suspension of license, in the facts of the present case, would be wholly unjustified. Ordinarily, matters of discipline lie in the realm of the competent authority i.e., the Commissioner of Customs who is best placed to understand the importance of the CHA in a customs area, and the trust and confidence reposed on him by the customs department. - he punishment imposed on the respondent, by the Commissioner of Customs, of revocation of their license, when viewed in the light of the grave and serious acts of misconduct held established, is justified. The punishment imposed is not one which can be said to shock the conscience of courts/Tribunals. The order passed by the CESTAT on mere surmises and conjectures and their interference, with the punishment imposed by the Commissioner, on grounds of misplaced sympathy is in excess of their jurisdiction, and gives rise to a substantial question of law necessitating interference by this Court under Section 130 of the Customs Act. The order of CESTAT is, therefore, set aside, and the order of the Commissioner, revoking the license of the respondent CHA, is affirmed. The appeal is, accordingly, allowed. However, in the circumstances, without costs.
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2011 (3) TMI 815 - KERALA HIGH COURT
Speaking order - Section 17(5) was introduced with effect from 13-7-2006, the date on which Act 29 of 2006 came into force - The decision relied on by the learned standing counsel appearing for the respondents was delivered on 31-3-2006, prior to the introduction of Section 17(5) of the Act - In view of the amendment brought about by Act 29 of 2006 the decision relied on by the learned standing counsel can have no application - In such circumstances as the dispute is regarding the value of the goods and the importer has not accepted in writing the assessment of the 3rd respondent - Therefore,the 3rd respondent was bound to pass a speaking order within 15 days from the date of assessment of the bill of entry, namely within 15 days from 10-5-2010 - In the instant case, the said period of 15 days has expired -Held that:- it will be open to the petitioner to challenge the assessment made by the 3rd respondent by filing an appeal within the period of 60 days computed from the date on which a speaking order is passed under Section 17(5) of the Act.
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2011 (3) TMI 802 - MADRAS HIGH COURT
Penalty under section 128 - illegal import of gold jewellery - under Section 111(d) and 111(m) of the Customs Act, 1962, read with 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 -Respondents had submitted that the provisions under Notification No. 31/2003-Customs, dated 1-3-2003, would be available only if the goods in question belong to the petitioner - Therefore, the gold jewellery would not be available for re-export, as the petitioner is not the owner of the goods - Further, they were only carriers of the goods, in favour of an unknown dealer - It had also been submitted that an enhanced penalty had been paid by nearly 13 out of the 15 persons, who were liable to pay the same - It had also been submitted that an efficacious alternative appellate remedy is available to the petitioner, under the 128 of the Customs Act, 1962. However, it had been admitted that the owner of the goods is not known - finds it appropriate to set aside the impugned order of the third respondent, dated 24-12-2010, in so far as it relates to the deposit of Rs. 3,00,000/-, being the enhanced penalty imposed on one Rahamathullah, for the release of the gold chains and to direct the second and the third respondents to release the goods in question for the purpose of re-exporting the same, without imposing any conditions, as per the provisions of the Customs Act, 1962. The respondents have not been in a position to show as to how the petitioners would be liable to pay the enhanced penalty imposed on Rahamathullah. Further, there is no finding that the goods in question belongs to Rahamathullah. It is also noted that the order of the Commissioner of Customs (Appeals), Chennai, dated 5-2-2010, had become final. In such circumstances, the petitioner need not be compelled to avail the appellate remedy, available under the provisions of the Customs Act, 1962.
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2011 (3) TMI 801 - GUJARAT HIGH COURT
Doctrine of proportionality - Respondent No. 3-the CEGAT has upheld the order of respondent No. 2, revoking the licence of the petitioner as CHA on the ground of petitioner having committed breach of statutory regulations and the misconduct by misusing its licence - In the opinion of this Court, once the decision of the respondent Authorities that the petitioner committed violation of statutory regulations and the misconduct is found to be within the legal parameters, all the legal consequences as a result of such violation and the breach have to follow - The case of the petitioner being the case of contravention of said regulations and misuse of licence as CHA, the respondent Authorities have rightly revoked the licence of the petitioner - The said decision having been arrived at by the respondents, after taking into consideration all relevant material and the said Regulations, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational - Therefore,it could not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality - The petitioner having failed to point out any perversity or unreasonableness on the part of respondent Authorities warranting judicial intervention, this Court does not find any merits in the present petition.
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2011 (3) TMI 791 - CESTAT, DELHI
Seized currency - The appellants are submitting that the currency seized does not belong to them - It appears that nobody has come forward to claim the currency - The ownership of the currency and source of currency were matters for investigation - Both sides agree that the investigation has since been completed and show cause notice issued inter alia proposing confiscation of impugned currency, has since been issued - do not find any reason to interfere with the order of the commissioner which merely extended the period for issue of show cause notice in respect of seized currency for a further period of six months beyond 15.1.09 - Thus, merely to consider the limited issue as to whether there was justification for extending the period prescribed for issue of show cause notice. We uphold the decision to extend the time limit.
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2011 (3) TMI 790 - MADRAS HIGH COURT
Power of settlement commission to impose penalty - Clandestine removal - MPTEL is an 100% EOU engaged in the manufacture of ACSR conductors etc.- The duty free raw materials were used for manufacture of conductors, which were cleared to Domestic Tariff Area (DTA in short) - settlement commission imposed penalties imposed on the company and the persons responsible for the affairs of the company - Held that:- That power is available with the Settlement Commission in terms of Section 32F(9) of the Central Excise Act, 1944. In terms of Section 32K of the Central Excise Act, 1944, power to grant immunity from prosecution and penalty is available to the Settlement Commission. Section 32M of the Central Excise Act, 1944 makes the order of settlement conclusive. Petitioners are not able to establish a case to show that the order under challenge is contrary to law or is in any way perverse, arbitrary or without jurisdiction. The Court under Article 226 of the Constitution is not inclined to go into the issue relating to the quantum of penalty imposed by the Settlement Commission and the rational behind imposition of such penalty. The power given to the Settlement Commission, unless exercised in violation of the provision of the Act, cannot be challenged and the petitioners’ plea on the above issue fails.
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2011 (3) TMI 761 - MADRAS HIGH COURT
Non-resident - Respondents had submitted that the provisions under Notification No. 31/2003-Customs, dated 1-3-2003, would be available only if the goods in question belong to the petitioner - Therefore, the gold jewellery would not be available for re-export, as the petitioner is not the owner of the goods - Further, they were only carriers of the goods, in favour of an unknown dealer - It had also been submitted that an enhanced penalty had been paid by nearly 13 out of the 15 persons, who were liable to pay the same - It had also been submitted that an efficacious alternative appellate remedy is available to the petitioner, under the 128 of the Customs Act, 1962 - However, it had been admitted that the owner of the goods is not known.
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2011 (3) TMI 760 - KERALA HIGH COURT
Whether ‘Dettol’ is a ‘Disinfectant’ and hence exempted from Sec. 18 of the Act as contended by the accused - Hence, going by the definition of the word ‘Disinfectant’ and the use for which Dettol is manufactured I hold that Dettol is a ‘Disinfectant’ used to treat inanimate objects and materials though it may also be applied to agents used to treat the skin and other body membranes and cavities (externally) - Dettol contains some chemicals which are antiseptic but does not loose its character as a Disinfectant for the said reason or that it can be used to treat skin and other body membranes and cavities - ‘Dettol’ thus comes under item 12 of Schedule K of the Rules and hence is exempted from Chapter IV of the Act by virtue of Rule 123 of the Rules. - Hence for stocking, exhibiting and sale of ‘Dettol’ a license under the Act is not required - Prosecution against petitioners/accused have to fail - Decided in favour of assessee.
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2011 (3) TMI 710 - CESTAT, NEW DELHI
Suspension of CHA licence - They have failed to obtain the requisite authorization from the importer prior to filing the impugned bills of entry and had also failed to bring this fact to the notice of the concerned authorities of customs and have thereby violated the provisions of Regulations 13(a) and 13(d) of the CHALR, 2004 - In the absence of the documents the investigation should bring out some other evidence showing awareness or involvement of the CHA in the fraud and to indicate that the concerned Bills of Entries were indeed filed and handled by the Appellant - Board’s Circular No. 9/2010, dated 8-4-2010 - There is no system of electronic signature or making sure at least that filing is done only using the user-id and password of the CHA stated to be filing the Bill of Entry - there are system defects. So there has to be collateral evidence to show that the Bills of Entries have been in fact filed by the concerned CHA - Held that: department has the freedom to unearth reliable evidence showing the involvement and knowledge of the CHA in the matter of the fraud and are free to proceed against the Appellant under Regulation 20(2) of CHLAR based on such evidence - Decided in favour of the assessee
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2011 (3) TMI 670 - CESTAT, CHENNAI
Whether suction couch roll shell with accessories is eligible for the benefit of exemption in terms of Notification No. 156/1986-Cus., dated 1-3-1986 which covers paper making machinery and component parts thereof of Chapter Heading 84.39 - Held that: the benefit of the notification is available to 80% of the value of the goods imported namely the suction couch roll shell only - Appeal is partly allowed
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2011 (3) TMI 661 - CESTAT, NEW DELHI
Refund - Limitation - Provisional assessment - Since, the goods imported vide bills of entry dated 24-8-1998 and 2-2-1999 were cleared provisionally and provisional assessments were subsequently finalized on 216.99 and 15-6-1999 respectively - They filed the refund claim on 14-1-2004 - As per the decision of the Hon’ble High Court of Gujarat in the case of CC v. Hindalco Industries Ltd. [2008 -TMI - 48275 - HIGH COURT OF GUJARAT AT AHMEDABAD]wherein it has been categorically held that prior to 13-7-2006, the Revenue was bound in law to make the refund without any claim being required to be made by an assessee for refund of excess duty paid due to finalization of assessment - There is no justification for reading the provision of Section 27 into Section 18 of Customs Act, 1962 - Hence, the time limit prescribed u/s 27 in respect of refund claim arising out of provisional assessment may not alter the specific provisions of Section 18 - Decided in favour of assessee.
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