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Customs - Case Laws
Showing 21 to 40 of 100 Records
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2011 (4) TMI 1131
CHA - whether CHA is responsible for all acts & omissions of their employee in the transaction of business as an agent - only allegation is that he produced a false 12th pass certificate on the basis of which the appellant took him in his employment and H-Card was issued to him by the customs – Held that:- just for production of false 12th pass certificate by his employee, the order of forfeiture of the security to the extent of Rs. 55,000/- does not prima facie appear to be correct. The impugned order is, therefore, stayed. Stay application is allowed
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2011 (4) TMI 1085
Conversion of their free shipping bills to DEPB shipping bills - conversion disallowed in view of the supersession of Circular NO.6/2003-cus dated 28.1.2003 by Circular No.04/2004-Cus dated 16.1.2004 – Held that:- order has been passed without affording any opportunity of hearing to the petitioners, without going into the merits of the petitioners' claim for conversion of their free shipping bills to DEPB shipping bills, the petition is allowed
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2011 (4) TMI 1072
Confiscation - three of the 22 items in the consignment imported by the appellant have been absolutely confiscated by the learned Commissioner without disclosing to them the relevant information under the Intellectual Property Rights - confiscation of the goods was proposed under Section 111(m) of the Customs Act - Held that:- appellant has apparently been kept in the dark about the action taken by IPR holder even though such information is extremely relevant to the appellant’s claim for release of the branded goods. The IPR Rules referred to by the learned counsel were issued under Section 156 of the Customs Act, Customs authorities, on the facts and circumstances of this case, should have acted in accordance with the procedure laid down under these Rules, goods imported by the appellant are still under absolute confiscation, application is, therefore, allowed
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2011 (4) TMI 1038
Acquittal - offences punishable under Section 135(1)(a)and 135(1)(b) of the Customs Act. - held that:- the conclusion of the trial Court was perverse inasmuch as the trial Court was wrong in holding that the recovered gold bars were not produced before the Court during trial. If once it is so concluded that the accused was found in possession of gold bars (M.O.1 series) and silver bars (M.O.2 series), then under Section 138(A) of the Customs Act, there bars to be a legal presumption of culpable mental state raised against the accused.
Evidence - admission made by accused - section 21 and 31 of Evidence Act - held that:- admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions. From the above provision, it is made clear that the admission can be made use of only against the maker of the statement and the same cannot be used in his favour.
Discharge of burden to prove - Section 106 of the Evidence Act - held that:- The said burden could have been discharged by the accused by examining himself as a witness before the Court. But, in view of Section 315, Cr.P.C., no adverse inference could be drawn against the accused for failure to examine himself as defence evidence. At the same time, the said burden could have been discharged by examining the other persons - When they have not been examined and there is no explanation offered before this Court for the same, I have to hold that the burden has not been discharged at all by the accused to prove that the gold bars and the silver bars were handed over to him by those persons after paying necessary customs duty.
Simply because there is some delay in the sanction order, which is formal in nature, it cannot be held that the entire prosecution is vitiated.
The judgment of the trial Court acquitting the respondent under Section 135(1)(b) of the Customs Act, is set aside and the respondent is convicted for offence under Section 135(1)(b) of the Customs Act and he is sentenced to imprisonment for the period already undergone and to pay a fine of ₹ 75,000/- (Rupees seventy-five thousand only) and in default to undergo rigorous imprisonment for six months. To this extent, the appeal stands allowed.
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2011 (4) TMI 1035
Penalty and fine for Mis-declaration of the description of the goods - short payment of duty - held that:- The part played by Shri Balbir Singh Sethi clearly amounts of abetment of illicit import and also being concerned in transportation and storage of the illicitly imported goods which he knew were liable for confiscation. - penalty under Section 112 of Customs Act, 1962 had been rightly imposed on Shri Balbir Singh Sethi. However, looking to the part played by him the penalty of Rs. 1,00,00,000/- appears to be harsh and the same is reduced to Rs. 10,00,000/-.
Reduction of penalty where duty has been paid before SCN - held that:- The ratio of Hon’ble Supreme Court in the case of CCE, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd. (2001 -TMI - 1709 - SUPREME COURT OF INDIA) is squarely applicable to the facts of this case and just because the appellant had paid part of the duty demand prior to the issue of show cause notice, the penalty on them under Section 114A cannot be reduced to that extent.
Penalty on proprietor as well as on firm - held that:- penalty can be imposed either on him or on M/s. Meerut Exim and there is no justification for separate penalty on M/s. Meerut Exim or its Proprietor Shri Ashwani Kumar Jain as a proprietorship firm and its proprietor are not separate entities but are one entity. In view of this, while the penalty under Section 112 on Shri Ashwani Kumar Jain is upheld, penalty under Section 112 on M/s. Import Exim is set aside. However, looking to the fact that penalty equal to the duty demand has been imposed on the importer firm under Section 114A, penalty on Shri Ashwani Kumar Jain under Section 112(a) is reduced to Rs. 25,00,000/-.
Fine u/s 125 - goods not available for confiscation - held that:- in case of Blue Dart Express v. Commissioner of Customs (1999 -TMI - 90903 - CEGAT, NEW DELHI) it was held that no fine can be imposed under Section 125(1) of the Customs Act, 1962 in respect of the goods held to be liable for confiscation but which are not available for confiscation for the reason that the same at the time of import had been cleared unconditionally without any objection - redemption fine in lieu of confiscation under Section 125(1) is not a fine as understood in criminal jurisprudence, that it is not a penalty in that sense, that it is only an option to the person to pay an amount in lieu of confiscation and that it contains no penal connotation.
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2011 (4) TMI 1014
Import of goods under DEEC scheme - demand of on unutilized items - notification no. 30/97-Cus., dated 1-4-1997 - assessee has fulfilled the export obligation completely - The excess material in fact had not been utilized completely because of efficient utilization of the raw material. The wastage was less. They ceased manufacturing the pagers and the said material became absolete. Therefore the said unused material had been written off in their books of accounts. They had complied with the conditions stipulated in Notification 30/97-Cus., dated 1-4-1997. - tribunal decided the issue in favor of assessee - held that:- assessee is justified in contending that this appeal preferred by the Revenue challenging the order passed by the Appellate Tribunal holding that the assessee is not liable to pay Customs duty, interest and penalty and setting aside the levy of duty and demand notice issued by the Department is not maintainable before this Court.
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2011 (4) TMI 1003
Valuation - contemporaneous import - nature of goods i.e. whether goods are Stock Lot or otherwise - held that:- in the present case impugned goods have not been declared as stock lots and same have not been found so on examination also. - Decided against the assessee.
We are, however, not fully satisfied with the methodology adopted by the department on the quantification of duty demand on the past consignments inasmuch as this method does not appear to be sound. We find that two different methods have been adopted by the Revenue in respect of the goods covered by the past consignments - value of some taken on gross basis and some on kg. basis. We are of the view that the total quantity of glass chatons and total quantity of glass beads imported in the past 15 consignments should be segregated, thereafter the quantity of Swarovski glass chatons and glass beads seized from the premises of the appellants should be deducted from the total quantity of the glass chatons and glass beads. This will give net quantity of Swarovski glass chatons and beads i.e. the goods which are not available with the department.
Based on the ‘base price’ of glass Chatons and glass beads as indicated above, duty should be worked out on gross basis on the past consignments which are not available.
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2011 (4) TMI 1002
Whether the exemption from Special Additional Duty of Customs (SAD in short) leviable under Section 3A of the Customs Act, 1975 provided in Notification No.34/98 dated 13.06.1998 its succssor Notifications would be available, when the goods are sold in an area where no sales tax or purchase tax is chargeable - Appellant are not eligible for duty exemption from Special Additional Duty of Customs on Kerosene imported by them under Notification No.34/98-CUS dt.13.06.1998 or under successor Notifications in respect of Kerosene sold in the State of Orissa without payment of sales tax - exemption has been availed in complete violation of the declaration/undertaking given by them at the time of importation, there is a clear mis-declaration on their part and the duty demand for the extended period of 5 years under the provision of Section 28 of the Customs Act, 1962 is valid in law - duty demand for the period beyond 5 years from the date of Show Cause Notice is incorrect - penalty imposed under Section 114A of the Customs Act, 1962 is not legally sustainable - duty demand needs to be re-quantified - matter remanded to the Commissioner of Customs for the limited purpose of quantification of demand i.e. excluding the demand in respect of period beyond five years and also for computing the duty demand on the correct value, i.e. excluding the Basic Customs Duty and Special Duty of customs since those levies were exempted during the relevant period
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2011 (4) TMI 957
Transaction value - higher value - Commissioner (Appeals) has observed that no evidence of imports at higher value at the material time has been indicated nor any evidence has been produced to contradict the statements of the respondents that no agency agreement existed between them and the foreign supplier - Department has relied on the assessee's letter in which they have stated that they are getting 10% commission on FOB value on the imports made through them - Neither this letter nor other case records are available with the Department, in absence of documentary evidence, Revenue can not find fault in the impugned order, no merits in the appeal filed by Revenue and accordingly dismissed
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2011 (4) TMI 909
100% enhancement over the assessable value - Held that:- Natural justice was denied to the appellant as Joint Commissioner of Customs ordered enhancement of the assessable value to the extent of 100% without any meaningful consideration of the provisions of the relevant agreements and without taking into account any of the submissions of the assessee. Few letters were submitted by the assessee to the original authority clarifying the pricing policy of Bekaert and its impact on the assessable value of the imported goods and also clarifieng certain provisions of the agreements but none of these submissions was considered in the order-in-original.
The Joint Commissioner's order recommending provisional assessment for the future and finalization of assessments of past imports on the above basis was of serious consequences for the assessee. The learned Commissioner (Appeals), however, appears to have overlooked this aspect. Thus on the merits of the case, the Commissioner (Appeals), without considering the submissions of the assessee, chose to interpret the provisions of the agreements in his own way and to uphold the order-in-original - it appears that the learned Commissioner (Appeals) proceeded on the premise that the burden was on the importer to establish that the supplier did not impose any such condition - Assessee's appeal is allowed by way of remand
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2011 (4) TMI 903
Suspension of CHA licences - Stay application - Held that:- CHA (appellant) allowed the licence to be used by another firm viz., M/s D.J. International, in breach of Regulation 12 of the CHALR stands established. Equally established is the charge that the appellant allowed the subject consignments to be handled without written authorization of the importer. The conduct of the appellant also led to contravention of Regulations 13 (d), 13 (n) and 19 (8) of the CHALR. Therefore, revocation of the licence and forfeiture of the security deposit cannot be faulted in principle.
Considering the gravity of offence found against the appellant in subletting of the CHA licence & assessee's submission that they have already suffered a lot over the said period on account of suspension/revocation of this licence & their employees have also gone without livelihood over the period the view that the appellant is not entitled to instant restoration of the licence and has to go without it for a further period of one year from the date of receipt of a certified copy of this order. The forfeiture of security deposit shall stand upheld. Thus upon expiry of the said period of one year, the appellant will be entitled to get the CHA licence restored to them against fresh security deposit.
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2011 (4) TMI 902
Stay application - Waiver of pre deposit of the duty of over ₹ 1.26 crores - Held that:- The very foundation of Order-in-Appeal impugned in the present appeal of the assessee has collapsed with the setting aside of Order-in-Appeal No. 67/2005 and hence the impugned order requires to be set aside - Decided in favour of the assessee by way of remand to Commissioner
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2011 (4) TMI 894
Import of PVC tray for packing the handicrafts - disallowance of claim under Notification No.104/94-Cus dt.16.3.1994 - Held that:- If the appellant is in a position to establish export of said goods within six months from the date of importation from other collateral evidence the benefit of notification should be made available to the assessee. However the claim of the appellant does not stand examined by the lower authorities remand the matter to the adjudicating authority for examining claim of exemption of Notification No.104/94-Cus dt.16.3.1994.
The original claim of the appellant under Notification No.21/2002-Cus dated 1.3.2002 stands rejected.
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2011 (4) TMI 828
Refund claim - Provisional assessment - unjust enrichment - Held that:- A plain reading of sub section 1 of Section 27 will make it clear that it is the responsibility of the appellant to submit proper documentary evidence and claim the refund - Section 18(5) of Customs Act inserted by Taxation Laws (Amendment) Act w.e.f. 13.7.06, provides that if any amount is found to be refundable after finalisation of provisional assessment, such refund will be subject to doctrine of unjust enrichment - Bussa Overseas Vs. UOI [2003 (9) TMI 90 - HIGH COURT OF JUDICATURE AT BOMBAY] wherin held that even in case of customs, refund after provisional assessment is subject to provision of unjust enrichment - Decided against the assessee
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2011 (4) TMI 806
Reduction in penalty - as per revenue u/s 40 of the Customs Act person-in-charge of a conveyance shall not permit the loading of export goods without a shipping bill duly passed by the proper officer and this is a serious and deliberate violation of the statute by the master of the vessel thus reduction in penalty by the Commissioner (Appeals) is not proper - Held that:- Reduction in penalty is discretion of the appellate authority, which cannot be challenged by the Department in the appeal. As per the judgment of M/s CSAV Group Agencies (India) Pvt. Ltd. Vs. Union of India [2009 (7) TMI 165 - HIGH COURT OF JUDICATURE AT BOMBAY] in a similar case, that this is only a technical breach and penalty was also reduced in this case from Rs.5 lakhs to Rs.2 lakhs - The Revenue's appeal is dismissed.
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2011 (4) TMI 799
Refund of excess duty paid - Unjust enrichment - Duty under protest on the enhanced value - Held that:- Since, the appellants have filed Bills of Entry to the Assistant Commissioner, Customs, for import of Mixed Acid Oil and Mixed Fatty Acid Oil it is seen on its perusal that the declared value was rejected and the transaction value was enhanced by the assessing authority without citing any reason or furnishing any evidence of any contemporaneous import of higher prices of similar goods having same qualities and comparable parameters, on the basis these Bills of Entry were assessed - the orders of the Commissioner (Appeals) and the orders of the assessment enhancing the prices are set aside and the matter remanded to the original authority for issue of speaking orders after disclosing the evidence for proposed enhancement and after hearing the appellants.
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2011 (4) TMI 727
Condonation of the delay - Even the appellants have not made any attempt to plead that they took any action before 9.6.2009 for filing the appeals - The present applications state that one Shri K.N. Pandey , PRO, had left the company on 13.4.2009, but there is no whisper that he left the service of the company without handing over any documents, nor is there any averment to the effect that he took away the documents with him - Held that: the appellants did not even make any attempt to file the appeals before expiry of the period of limitation prescribed by the statute - The delay of an appeal under Section 129A of the Customs Act should be satisfactorily explained on a day-to-day basis, a legal position since settled by the apex court - The provisions of the Limitation Act cannot be borrowed into this context - Appeal is dismissed
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2011 (4) TMI 726
Confiscation - Classification - the value of the goods was enhanced on the basis of contemporaneous import prices of similar goods without notice to the appellant - the charges of changing classification as well as enhancing the value of the consignment based on the contemporaneous prices were explained verbally to the importer , the fact remains that only a proposal to change the classification of the goods was notified to the importer who, only on that aspect, waived the show-cause notice - no copy of the contemporaneous Bill of Entry was available with the adjudicating authority when it passed the impugned order - Appeal is allowed by way of remand to Commissioner
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2011 (4) TMI 719
Refund - recovery of duty twice from the appellant and from the customers of the appellant - the appellants filed a refund claim for refund of Rs.5,21,98,021/- paid by them. The DRI has on a query stated that the impugned amount was deposited voluntarily by the appellants on behalf of their customers, that the show cause notice is yet to be issued and the case to be adjudicated. In view of the present situation, the refund claim was rejected stating that the same is premature. - held that:- It can be seen from the above reproduced portions of the judgments that the amounts which is not due from the assessee needs to be refunded back, but, the interest of revenue is to be kept in mind is the law. In the case in hand before us, we find that the revenue authorities have collected the amount of differential duty along with interest from the importers, which itself secures the revenue s interest in respect of alleged differential duty liable to be paid on alleged undervaluation of the CDs by the importers. The amount paid by the appellant being amount deposited by him towards the very same duty which has been again collected by the revenue authorities from the importers, cannot be retained by the revenue, as there is no show cause notice issued to the appellant holding him as an importer and that he is liable to pay said duty. In the absence of any such show cause notice to the appellant holding him as an importer, holding back of the amount collected from him either under force or paid voluntarily, cannot be considered as an amount which need to be appropriated against the proposed penalties. - Decided in favour of the assessee
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2011 (4) TMI 690
Demand - Appellant imported one consignment of ACN and filed a bill of entry - in terms of the Board’s circular No.6/2006 dated 12.01.06, in all cases where Customs Duty is leviable on ad valorem basis, the assessment of bulk liquid cargo should be based on invoice price, irrespective of the quantity ascertained through shore tank measurement or any other manner. - Commissioner (Appeals) observed that in as much as the appellant had made full payment to the supplier of the goods, without claiming any compensation for the short supply of the goods, the invoice price has to be made the basis for ad valorem confirmation of duty. - decided in favor of revenue.
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