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Customs - Case Laws
Showing 21 to 40 of 77 Records
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2013 (4) TMI 713 - CESTAT MUMBAI
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... ... ..... ) of the Standards of Weights and Measures (Packaged Commodity) Rules, 1977. Though the commodity is notified under Section 4A, there is no statutory requirement in the law for declaring the MRP on the packages cleared by the manufacturer.” 5.6 The facts obtaining in the present case before us are identical/similar to the facts obtaining in the various decisions rendered by this Tribunal in the above cited cases. The glues are pre-packaged and are sold by weight which is clearly indicated on the packages. Since the net weight is less than 10 g, the appellant is exempted from declaring the RSP on the packages under Rule 26 of the Legal Metrology Rules, 2011. Since the appellant is statutorily exempted from declaring the RSP on the packages, the assessment of CVD has to be done on the basis of transaction price and not on the basis of RSP. 6. Accordingly, we allow these appeals with consequential relief, if any. (Operative part of the order pronounced in Court)
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2013 (4) TMI 712 - CESTAT MUMBAI
Valuation - includibility - royalty - Held that: - in the absence of any evidence adduced by the Revenue to prove that the technical know-how supply and the payment of royalty is a condition of sale for the goods imported by the appellant from the foreign principal - matter restored to the adjudicating authority.
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2013 (4) TMI 711 - CESTAT MUMBAI
Confiscation u/s 111(d) - violation of Exim policy - misdeclaration of value and other material particulars - whether the Toyota Landcruiser vehicle imported vide B/E No. 986965, dated 1-9-2008 is liable to confiscation and if so, under what provisions - Held that:- As regards the undervaluation of the car, the same is clearly established. The admission by both Mr. Rehman Shaikh and Mr. Shaikh Safder in their statements clearly show the value to be US $ 108000 and the invoice for US $ 64000 dated 31-7-2008 submitted to the Customs to be a fabricated one. It is also a settled position in law that admitted facts need not be proved as held by the Hon’ble High Court of Madras in the case of Govindasamy Raghupathy [1997 (6) TMI 356 - MADRAS HIGH COURT]. - Thus misdeclaration and liability to confiscation under Section 111(m) of the Customs Act, 1962 is clearly established. In the light of these evidences, the determination of value at US $ 108000 as the purchase price by the adjudicating authority cannot be faulted.
Liability to confiscation under Section 111(d), an IE code was required for the importer and the de facto importer Mr. Rehman Shaikh did not have any such code. Therefore, violation of Section 7 of FTDR Act, 1992 and Rules 2(c), 11 and 14 of Foreign Trade (Regulations) Rules, 1993 is also established. Consequently, provisions of Section 111(d) are attracted. Thus liability to confiscation stand clearly established in this case. Consequently both the appellants Mr. Rehman Shaikh and Mr. Shaikh Safder are liable to penalty under the provisions of Section 112(a) and Section 114AA for the commissions and omissions in rendering the car liable to confiscation
Even if the goods have been disposed of during the pendency of adjudication proceedings, the Revenue could not have appropriated the entire sale proceeds. This Tribunal in the case of Yakub Ibrahim Yusuf (supra) had held that in a case where goods have been sold without giving option of payment of redemption fine to importer, importer was entitled to return of sale proceeds with deduction for redemption fine and penalty and duty was not required to be deducted as there was no actual redemption of goods. Therefore, in the present case, where the goods were seized before clearance from the customs, the option to pay fine in lieu of confiscation should have been given to the person who in the view of the Revenue was the real owner/importer. Since no such option has been given, the matter has to go back to the original adjudicating authority.
Liability to confiscation of the impugned car under the provisions of Section 111(d) and 111(m) of the Customs Act, 1962 and the liability to penalty of both the appellants under Sections 112(a) and 114AA of the said Act is upheld - However, we remand the matter to the original adjudicating authority to give a finding as to whether the goods are prohibited or not after taking into account the type approval certificate issued by DGFT, New Delhi, vide letter dated 18-1-2010 (if necessary, after verifying the veracity of the same) and if the goods are found not prohibited, to consider grant of option to redeem the goods on payment of fine and penalty to the owner/importer of the car - Decided partly in favour of assessee.
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2013 (4) TMI 710 - MADRAS HIGH COURT
Waive of pre deposit - Held that:- The total duty payable by the petitioner/appellant Bank and M/s. ORJ Electronic Oxides Limited is said to have been quantified at ₹ 30,61,064 - duty is payable jointly and severally by ICICI Bank and the said ORJ Electronic Oxides Limited. - there shall be an order of interim stay on condition that the petitioner/appellant shall deposit a sum of ₹ 15,00,000 with the second respondent, within a period of four weeks - partial stay granted.
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2013 (4) TMI 705 - GOVERNMENT OF INDIA
Rejection of application for fixation of Special Brand Rate of Drawback under Rule 7 of the Drawback Rules - failure to indicate their intention to avail Brand Rate of Drawback Rules under Rule 7 at the time of export in the relevant Shipping Bills - failure to mention Serial No. of drawback schedule in the Shipping Bills - Held that:- applicant exported the goods and claimed All Industry Rate of drawback. Subsequently, the applicant by terming the same as an inadvertent error wanted to change the same into a claim of fixation of Brand Rate - Clarification by C.B.E. & C. unambiguously states that opting of AIR drawback under Rule 3 in the Shipping Bills disentitles exporter from claiming brand rate of drawback. The said clarification has neither been withdrawn nor set aside by any court of law. As such, the said clarification is very much in existence. Moreover, exporter has to carefully choose a scheme which is beneficial to him at the time of filing Shipping Bill. After choosing a scheme he cannot be allowed to change it subsequently. In C.B.E. & C. Circular No. 10/2003-Cus., dated 17-2-2003, it was clarified that henceforth in all those cases where the exporters have applied for brand rate of drawback, they may be permitted the duty drawback at All Industry Rate as admissible under the relevant Sr. No. of duty drawback table and subsequently when exporters are issued brand rate of drawback, the differential amount may be sanctioned to them.
Applicant had exported chillers in CKD/SKD condition and claimed fixation of drawback under Rule 6(1) of Customs, Central Excise and Service Tax Drawback Rules, 1995. The fixation of brand rate of DBK under Rule 6(1) was not allowed since there was a AIR brand rate of @1.1% fixed for the said item. The goods were exported in different consignments under 8 Shipping Bills. As per C.B.E. & C. Circular No. 26/2005-Cus., dated 8-6-2005, for goods exported in SKD/CKD, unassembled condition, brand rate drawback shall also be admissible. Department had not allowed AIR drawback in earlier cases and therefore special brand rate was claimed by the exporter in the impugned export - violations pointed out in these cases cannot be merely treated as procedural minor lapses - Decided against assessee.
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2013 (4) TMI 704 - CESTAT MUMBAI
Fraudulent claim of DEPB script - overvaluation of export goods - Held that:- By resorting to some methods, overvaluation of export transactions have been done and on the basis of such overvaluation, DEPB scrips have been obtained for much higher values than actually eligible. All these manipulations have been corroborated by documentary evidences as also by statements recorded under Section 108 of the Customs Act from the exporters or their authorized signatories, the transporters of the goods, raw material suppliers, cheque discounters, CHAs who dealt with the transactions and so on. On the strength of such evidences, the licensing authority has cancelled all the DEPB scrips ab initio.
There are strong and convincing evidences against M/s. Nidhi Textiles by way of evidences collected both locally and at Dubai through diplomatic sources which shows that the value declared by the Dubai based importers of the goods exported by Nidhi Textiles, i.e. M/s. AGS General Trading, Dubai, M/s. Ditty Trading (LLC), Dubai and others, is just a fraction (average 6.4 %) of the export values declared by M/s. Nidhi Textiles (in the Shipping Bill and related export documents) before the Indian Customs. While the value declared before the Indian Customs in respect of 39 consignments/shipping bills during the period October, 2006 to April, 2008, amounted to US $ 3009931.41, for the same consignments, the value declared by the importers in Dubai amounted to only US $ 147446, that is, 6.35% of the export value declared in India. Thus the magnitude of overvaluation has been clearly established.
The commission of fraud has been admitted to by Shri Rajeev Kumar Tulsyan, Proprietor of the said M/s. Nidhi Textiles in his Statements recorded under Section 108 of the Customs Act, 1962, wherein he has explained that while remittances of the full amount for the exports made were received from overseas buyers through banking channels, the differential amount (difference between the actual and the declared value) was paid back to the local representatives of the overseas buyers in cash and the said statement has not been retracted in any legally permissible manner - Though the appellant has pleaded financial difficulties, no reliable evidence has been placed before us in support of this submission. Considering the huge amount of revenue evaded in the matter and the deep involvement of the appellant in such duty evasion, we direct the appellant M/s. Nidhi Textiles to make a pre-deposit of ₹ 1,00,00,000/- (Rs. one crore only) within a period of 8 weeks.
If licence has been obtained by fraud by the original allottee who transferred the same to others and the licences were valid at the time of imports by the transferee who bought it for a valid consideration without being aware of the fraud committed by the transferor, subsequent cancellation of the licence will not have any bearing upon the imports already made by the transferee. - a purchaser of goods cannot acquire a better title than the seller and if the statute provides for transferability by endorsement, then common law will not apply and the specific statute shall prevail. If the statute provides for retrospective cancellation, full effect will have to be given to the said provisions. Whether the DEPB itself was forged or was obtained by submission of forged documents would not make any difference and both are incapable of vesting any credit on the DEPB holder.
Unconditional waiver from pre-deposit of dues adjudged against the transferees of DEPB licences and stay recovery thereof during the pendency of the appeals is granted - M/s. Nidhi Textiles, the exporter, Mr. Sanjay Kumar Agarwal and Mr. Paramanand Joshi, have not made out any case in their favour for waiver of pre-deposit of the dues adjudged against them. - Decided partly in favour of appellant.
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2013 (4) TMI 655 - MADRAS HIGH COURT
Imports of used digital multifunction and copying machine under the Foreign Trade Policy 2009-2014 - Whether the import of these goods is restricted as per Para 2.17 of the Foreign Trade Policy or not? – As per Notification No.35 (RE02012)/ 2009-2014 the Government had amended Para 2.17 of the Foreign Trade Policy.
Held that:– It is no doubt true that in exercise of the powers conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, read with paragraph 2.1 of the Foreign Trade Policy, 2009-2014, under Notification No.35 (RE02012)/ 2009-2014 the Government had amended Para 2.17 of the Foreign Trade Policy that under the Head of "second hand goods", in the category of "second hand capital goods", import of (i) personal computers/ laptops, including their refurbished / reconditioned spares; (ii) photocopier machines/Digital multifunction print and copying machines (iii) Air conditioners and (iv) Diesel generating sets can be imported only as against authorisation. Taking the said amendment further, rightly, the Hand Book of Procedures (Vol.1) omitted Clause 2.33. The amendment to the policy has no relevance to the import under consideration.
A comparative study of Notification No.35 (RE02012)/2009-2014 dated 28.02.2013 amending Para 2.17 of the Foreign Trade Policy and the provision that existed prior to 28.02.2013, show that the amended notification made the import policy regime as subject to an authorisation for import as against the original requirements viz., allowed to be imported only as per provisions of FTP, ITC(HS), HBPv1, Public Notice or an authorisation issued for import of the specified second hand item. In the light of the amendment and the clear provision, we do not find any justifiable ground to accept the case of the appellants to interfere with the order of the learned single Judge. We have already held that there is no conflict between the policy and the procedure laid down.
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2013 (4) TMI 654 - CESTAT MUMBAI
Appellant claimed benefit of Notification 21/2002-Cus on imported goods – Rejection of granting the benefit of exemption as the importer did not have a valid contract at the time of importation and he did not satisfy the condition 40(b) stipulated in the said Notification, which stipulates that only a person who has been awarded a contract for the construction of roads in India by a or on behalf of the Ministry of Surface Transport, by the NHAI, by the PWD of a State Government or by a road construction corporation under the control of the Government of a State or Union Territory is eligible for the exemption. Accordingly, the claim of the appellant was rejected and duty demand was confirmed against the appellant.
Revenue further points out that Notification 21/2002 was re-issued in the budget 2012 and in the new notification No.12/2012,. "Metropolitan Development Authority" was also specifically included. Therefore, it is clear that the notification distinguishes between a Metropolitan Development Authority and a Road Construction Corporation. Otherwise, there is no need to use these two expressions specifically and separately and, therefore, he contends that prior to Budget 2012, when Notification No.21/2002 was in force, benefit was not be available in case the contracts for road construction were awarded by MMRDA.
Held that - In the light of the notifications issued, we hold that prior to budget 2012, benefit of customs duty exemption on road construction equipment was not available in cases where the contract for such construction was awarded by a Metropolitan Development Authority. Thus the appellant in the present case is not eligible for the benefit of duty exemption under notification No. 21/2002-Cus. Accordingly, we dismiss the appeal as devoid of merits.
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2013 (4) TMI 653 - CESTAT KOLKATA
Mis - declaration & undervaluation proceedings – enhancement on value of goods - entire case is built on the premise that the impugned goods are other than ‘Old and Used garments’ claimed to be classifiable under Chapter 6309 of CTA 1975.
The import of ‘worn clothing’ is restricted in terms of Foreign Trade Policy provisions, the subject consignment was pending adjudication by the Additional/Joint Commissioner of Customs, Custom House, Kolkata. In terms of Board’s Circular No. 36/2000-Cus., dated 8th May, 2000 while importing old and used garments under CTH 63.09, the imposition of fine and penalty for violation of EXIM policy. The DRI working on information came to conclusion that M/s. A.N. Impex ought to have declared the various articles of consignments in the import documents. Giving the declaration of subject goods as old and used worn garments, the conceding by the DRI to be vague and complete.
Held that - In the case before us, it is not alleged that the appellant has mis-declaced the price actually paid nor was there a mis-description of the goods imported. We find that value was sought to be enhanced by treating the impugned goods as other than old and used garments; and by comparing the sale price of earlier imported old and used garments. There is no specific findings as to how many articles are other than old and used articles, therefore, this aspect is required to be determined followed by valuation thereof. In these circumstances the case is remanded to ld. Commissioner for deciding the issue afresh while keeping in view our above observations. It is made clear that all the issues are kept open. Both sides are at liberty to produce documents in their support. Needless to say a reasonable opportunity of hearing may be granted to the appellant. The appeal is allowed by way of Remand.
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2013 (4) TMI 626 - MADRAS HIGH COURT
Provisional assessment of duty U/s 18 - Valuation of goods U/s 14 - Provisional release of goods, documents and things seized pending adjudication U/s 110A - Clearance of goods for exportation U/s 51 of the Customs Act - Held that:- As the case is at the stage of adjudication. The petitioner is now adjudicating the matter by giving necessary documents and the reply to the show cause notice and the only question, which the respondent resisted is the non-production of BRC, which according to the petitioner has already been produced. If such is the case, the below cardinal principle as envisaged by the provisions of the Act would apply to the case then the adjudicating authority would decide finally what would be the outcome of the decision. On such a decision, the petitioner is entitled for the release of the goods and then only, it can be released. Therefore, the claim has to be considered in the light of the following provisions.
U/s 14 of the Act would make it clear that the value of the imported goods and export goods shall be the transaction value of such goods the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for the delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the Rules.
The ordained principle as envisaged by the Act for the provisional release of goods contemplates that any goods, documents or things seized under Section 110 may pending the order of the adjudicating officer to release to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require.
Accordingly, the mandamus sought for by the petitioner, to direct the respondent to grant provisional release of goods on adjudication of the matter, is ordered and the respondent is directed to pass appropriate orders in accordance with law and on merits, on the basis of personal hearing, dated 01.12.2011 and the production of BRC, dated 05.12.2011, which was endorsed, and thereafter release the goods - Miscellaneous petition is closed.
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2013 (4) TMI 625 - CESTAT, NEW DELHI
Suspension of license as a Custom House Agent - charge made is that these exports were of inferior quality of goods and the goods were over priced by the exporters for availing ineligible drawback. - appellant filed the shipping bills without verification of the identity of the exporters
Held that - In this case, we find that no direct involvement of the CHA in fraudulent export of the goods and claim of the drawback is proved except that he filed shipping bills in those cases. If any evidence has been unearthed during further investigation conducted that has not been placed before the Tribunal. Further considering the time that has passed, the time limit indicated in Circular No. 9/2010-Cus., dated 8th April, 2010 for issue of final notice for revocation of license is already over. Such notice has not been issued so far. In such a circumstances, we are of the view that it is proper to revoke the impugned order suspending the licence of the appellant.
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2013 (4) TMI 624 - CESTAT, MUMBAI
Undervaluation - MRP based valuation on imports of goods - repacking, labelling and branding and selling the same in bulk to other entity –
Held that: - the declaration of MRP for the purpose of levy of CVD is required only when there is a statutory requirement under the Legal Metrology (Packaged Commodities) Rules, 2011 to declare on the package thereof the retail sale price of such article. Only when the goods are intended for retail sale and are packed in retail packages, the provisions of Legal Metrology (Packaged Commodities) Rules, 2011 would apply. In the case under consideration, from the records of the case, it is absolutely clear that the appellants are importing the impugned goods not for retail sale but for repacking, labelling and branding and selling the same in bulk to M/s. Bajaj Electricals Ltd. Therefore, they are not required to declare MRP in terms of Rule 3 of the said Legal Metrology (Packaged Commodities) Rules, 2011 as they are industrial consumers. - Demand of differential duty is not justified - Decided in favor of assessee.
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2013 (4) TMI 598 - CESTAT MUMBAI
Exemption under notification No. 21/2002-Customs – import of Electronic Sensor Paver Vogetel model super 1800-2 with AB 600-2 TC screed for laying bituminous pavement upto 9 M width along with accessories - held that:- As the maximum pave width of the equipment is only 6 meters, it does not satisfy the criterion of 7 meters size and above. If the intention was to cover the width of the bolt-on extensions also, the same would have been so specified in the notification. Thus from the product catalogue, it is amply clear that the equipment under import does not satisfy the product specification stipulated in List 18 of the notification and consequently, the equipment under importation does not qualify for the benefit of exemption and we hold accordingly. - Against assessee.
Sub-Contractor - whether the appellant is eligible to claim the duty exemption in terms of sub-clause (iii) of clause (a) of condition 40. - held that:- In law, “Subcontractor” is a person who is awarded a portion of an existing contract by a principle or general contractor. Subcontractor performs work under a contract with a general contractor, rather than the employer who hired the general contractor. - the appellant cannot be considered as a sub-contractor since he has not been named as such in the contract awarded to the consortium. - Against assessee.
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2013 (4) TMI 597 - CALCUTTA HIGH COURT
Anti-dumping duty - request for imposition of anti-dumping duty on imported Melamine. - scope of the term 'importer' - Section 9A of CTA, 1975 - held that:- while ascertaining the meaning or definition of any particular word the subject and context of the Act or Rule has to be understood in rational way avoiding absurdity and keeping in view the real intention and object to be achieved by framing of such Act or Rules. The Superior Court is empowered to do so if for this reason there may be little conflict with the apparent expression of a particular provision.
Nearly 15% of its total production is imported by it and that too casually and to meet customer’s demand during the time when the production was disrupted, and this quantity of import is very insignificant portion of the total import from the same exporting countries. - Realistic and logical meaning should be the person who is carrying on business of import exclusively for trading purpose is the importer under the said Rule.
Appellant does not carry on business principally, of import of Melamine. It is carrying on business amongst other of manufacturing of heavy chemicals of every description, whether required for civil, commercial or military defence purposes. - definition of importer in Customs Act, 1962, can not be applied here.
The definition in this Act is of general application of any import, which includes both for regular trader and exclusive consumer. Moreover Anti-Dumping Rules have not been framed under the Customs Act. This Rule has been framed under Section 9A of CTA, 1975 which is meant as correctly urged by Mr. Bajoria for imposition of rate of various duties under Act of 1962.
In this Act there is no definition of the word import. But the Central Government being subordinate legislature has described importer differently and independently and for specific purpose and it would be absurd to borrow any expression from Act of 1962 by the Court, when by the Rule 2(g) of the said Rules provide no other definition of any unexplained word can be adopted other than in the Tariff Act, 1975, therefore the definition given in the Rule has to be accepted in the context of object of the Rule. - Designated authority directed to proceed with investigations.
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2013 (4) TMI 569 - CESTAT CHENNAI
Classification of goods – claiming of exemption - The respondents had claimed classification of the goods under Customs Tariff Item (CTI) 8901 10 40 and had claimed exemption 21/2002-Cus S. No.352. During the pendency of the investigation, the importer gave up the claim for classification under CTI 8901 10 40 and claimed classification under CTI 8905 9090 along with benefit of Notification No. 21/02-Cus. Sl. No. 353. The importer was provisionally allowed to clear the goods as per the said classification. After provisional release of the goods, the Department made a two-fold case against the respondent on the following issues namely, (i) the respondent mis -declared the description of the goods for claiming exemption available to goods classifiable under CTI 8901 10 40 and (ii) the classification under which the goods were provisionally cleared that is CTI 8905 90 90 is not correct and the goods should be classified under CTI 8905 20 00 which would result in demand of differential duty.
Held that - we give the benefit of doubt to the respondents and hold that there was no attempt on the part of the respondents to mis -declare the goods to evade payment of duty. In the matter of classification, we hold that the goods imported did not have a capability of drilling or productivity anything from seabed and therefore the classification under which the goods cannot be classified under CTI 8905 20 00 and therefore the CTI 8905 90 90 under which the adjudicating authority has classified the goods is most appropriate. Therefore, the appeal filed by the Revenue is rejected accordingly.
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2013 (4) TMI 568 - BOMBAY HIGH COURT
Private Bonded Warehouse for storage of imported goods, namely, Aircraft Parts, Aviation Parts, Oils, Lubes etc. - Licence U/s 58 of the Customs Act, 1962 - The licence was valid initially for a period of one year and was thereafter extended upto 5 June 2011 - Imported without the payment of duty - Sought an extension of the bond period in respect of seven bonds - Held that:- We allow the Petition by setting aside the order of the Chief Commissioner as reflected in the communication dated 20 June 2011 of the Assistant Commissioner of Customs (Exhibit-E) and the consequential order which has been passed on 23 January 2012 (Exhibit-K).
We direct that the Chief Commissioner shall pass a fresh order in accordance with law, after furnishing to the Petitioner an opportunity of being heard. Since the subject matter of the dispute now survives in respect of eight bonds, the competent authority shall pass orders in respect thereof - The Petition is accordingly disposed of.
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2013 (4) TMI 541 - CESTAT, BANGALORE
Non procuring the IEC number - assessee imported a consignment of Canvas Office bags intended to be distributed to the employees of the newly opened branch office - violation of Section 7 of the Foreign Trade (Development & Regulation) Act, 1992 order of the original authority stated to be a case of import not in commercial quantity and not for commercial purpose. - Held that:- Apparently, there is a violation in not taking an IE code before import of the goods. Original authority has imposed a penalty of Rs. 2,000/- under Section 117 of the Customs Act. Even before the Tribunal the relevant details as to the number of bags and the value of import has not been furnished. Bill of entry copy is also not enclosed.
Apparently, the imported goods have been subjected to assessment and duty stands collected. Merely because IE code was not there, to treat the said goods as ‘prohibited’ would be only on a technical ground and could not be treated as a prohibition in the real sense of the term. As the goods are apparently cleared and not available for seizure, the question of confiscating them at this stage also does not arise. There is no valid ground adduced to interfere with the order of the Commissioner (Appeals) which has upheld the order of the original authority penalizing the respondent under Section 117 for violation of importing without IE code.
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2013 (4) TMI 540 - BOMBAY HIGH COURT
Sale proceeds of smuggled goods - Whether pay orders though obtained in respect of genuine transactions but not encashed represented sale proceeds of smuggled goods? - orders for confiscation of pay orders with penalty levied - Held that:- On plain reading of Section 121 of the 1962 Act, it is clear that the confiscation of the sale proceeds under Section 121 would be permissible, provided, firstly, there must be sale of smuggled goods, and secondly, the person selling the said goods must have knowledge or reason to believe that the goods are smuggled goods.
In the present case, the finding of fact recorded by the adjudicating authority is that the foreign currencies were sold by the assessee in the normal course of the business. If the foreign currencies were sold by the assessee in the normal course of the business, then obviously it cannot be said that the assessee has sold the smuggled goods, because it was not the business of the assessee to sell smuggled goods. Moreover, in the present case, the adjudicating authority has declined to impose penalty on the assessee on the ground that the assessee had no knowledge that the foreign currencies were going to be smuggled out of India and that there was no breach of the provisions of the 1962 Act committed by the assessee. Therefore, if the assessee has neither sold the smuggled goods (foreign currencies) nor the assessee had any knowledge that the foreign currencies are going to be smuggled out of India, the question of invoking Section 121 of the 1962 Act does not arise at all.
The decision of this Court in the case of LKP Merchant Financing Ltd. (2010 (1) TMI 610 - BOMBAY HIGH COURT) would be squarely applicable to the facts of the present case as so long as the pay orders represent the sale proceeds of the foreign currencies sold by the assessee in the ordinary course of business and the foreign currencies sold by the assessee were not smuggled goods, the amounts under the pay orders cannot be confiscated as sale proceeds of the smuggled goods.
Appeals allowed by quashing the impugned orders and the respondents are directed to refund the amounts under the pay-orders with interest quantified @ 6% per annum from the date of encashment of the pay orders till payment.
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2013 (4) TMI 511 - CESTAT AHMEDABAD
Misdeclaration – confiscation/penalty – As per revenue the goods attempted to be exported were of the prohibited nature and therefore, fine and penalties have been correctly imposed upon all the three appellants. – held that - As per DGFT Notification No. 55/RE-2008-2011 only Basmati Rice of certain specifications are permitted to be exported as per Serial No.55A of the above notification. Non-basmati Rice is specified under serial No. 45A of the above notification has been prohibited. In the present case appellant No. 1 had Agmark certificates in their favour and thus had no knowledge that the rice brought for export was a category of non basmati rice. However, when the DNA testing was brought to appellant’s knowledge he also requested for taking the goods back to the town as the export orders have also been cancelled, which should have been considered by the adjudicating authority. The ratio laid down by the CESTAT in the case of Sachdeva & Sons [1986 (12) TMI 215] is squarely applicable in this case and no confiscation/ penalty is imposable upon the appellant No.1.
So far as the penalties imposed upon appellant No.2 are concerned, he also had no knowledge, so no penalties can be imposed upon him. Imposition of penalty upon appellant No.3 is concerned, the ratio of Tribunal in the case of M/s. Anchor Logistics vs. Commissioner of Customs Kandla [2010 (8) TMI 781] is squarely applicable as till the DNA testing was done, CHA was having no knowledge of prohibited nature of the export cargo. Therefore, penalty cannot be imposed.
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2013 (4) TMI 510 - CESTAT CHENNAI
Condonation of delay - assessee submits that there is a delay in filing the appeal as they had moved the Hon’ble Madras High Court and the Hon’ble Supreme Court against the impugned order, which may be condoned - Held that:- As per Section 129A every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the party preferring the appeal.
In this case, the applicant received the order on 2.8.2010 and filed writ petition in the same month as claimed by the learned Advocate. By judgment dated 25.11.2010, the Hon’ble Division Bench of Madras High Court directed that if the applicant so prefers the appeal, the time spent in the proceeding before the Hon’ble High Court shall be excluded for calculating the period of limitation. Even to calculate the three months from the date of the Hon’ble High Court’s decision then the applicant should have filed the appeal on or before 24.2.2011. But the applicant had not filed the appeal within the limitation as per direction of the Hon’ble High Court and it has filed on 23.6.2011. It is beyond the period of three months as provided under Section 129A of the Customs Act, 1962.
The submission of the learned counsel that the order of the Hon’ble Supreme Court has merged with the order of the Hon’ble High Court is not acceptable for the reason that the Division Bench of the High Court has given a specific direction that if the applicant so prefers, the appeal time spent in these proceedings (i.e. writ petition) shall be excluded for calculating the period of limitation, which was not complied with by the applicant. Accordingly, the COD application is rejected.
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