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Customs - Case Laws
Showing 41 to 60 of 77 Records
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2013 (4) TMI 509 - CESTAT BANGALORE
Condonation of delay - The deponent states due to medical conditions the appeal could not be filed within the statutory period of limitation – Held that - No satisfactory explanation of the heavy delay involved in the filing of the appeal. No medical certificate on record to show any such illness of the father for the said period. The available records are a miscellany which has not been interpreted or explained to us. The COD application is dismissed as devoid of merits.
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2013 (4) TMI 477 - BOMBAY HIGH COURT
Maintainability of appeal to CESTAT against an order passed by the Commissioner of Customs under Regulation 21 of the Customs House Agents Licensing Regulations, 2004, prohibiting a Customs House Agent from working in one or more sections of the Customs Station - Held that:- Section 146 operates in a field different from Section 129A. Section 146 governs the licencing of CHAs and contemplates the making of regulations governing all aspects of the licensing of CHAs including disciplinary control. Remedies against orders passed in the disciplinary jurisdiction are to be provided in the regulations. The Regulations constitute a self contained code relating to the licensing of CHAs. The Regulations provide for disciplinary control over CHAs and have provided an appellate remedy against orders of revocation or suspension.
An order of prohibition under Regulation 21, preventing a CHA from operating within one or more sections of a customs station is not subject to an appeal under the Regulations. The subordinate legislation has considered that such an order does not possess the consequence of either a revocation of a licence or for that matter, the suspension of a licence pending enquiry since such an order prohibits a CHA from operating in one or more sections of a customs station. The wisdom of the delegate of the legislature in not providing an appeal in such a case does not fall for re-evaluation by the Court. It is trite law that there is no inherent right of appeal. An appeal is a creation of a statute or, as in the present case, the creation of a statutory provision (Section 146) read together with the regulations. A CHA is, however, not without remedy against an order of prohibition which is amenable to the jurisdiction of the High Court under Article 226 of the Constitution.
For these reasons it is concluded that the Tribunal is justified in holding that an appeal is not maintainable against an order of prohibition under Regulation 21 of the Regulations of 2004.
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2013 (4) TMI 443 - CESTAT NEW DELHI
Conversion of shipping bill - Advance Licence Scheme to DEPB scheme - Board’s Circular No. 04/2004-Cus allow shipping bill to be treated as a bill under DEPB scheme when thare is a denial of export promotion scheme by DGFT/Ministry of Commerce or by Customs authority give rise to disputed export - Held that - It appears that the instructions of the Board through circular No. 04/2004 contingent events are permitted to be considered by the authority for conversion of the shipping bill. One of such contingency being denial of export promotion scheme by DGFT/Ministry of Commerce or by Customs authority give rise to disputed export. However, conversion is permitted on case to case basis subject to fulfilment of five cumulative conditions prescribed by circular. Thus, matter is remanded to the Adjudicating Authority.
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2013 (4) TMI 442 - CESTAT NEW DELHI
Smuggling of goods from Nepal through Rail - DR submits that since the goods were of Chinese origin these goods qualified as third country origin goods and it is not necessary for revenue to produce the export documents from China to Nepal - seizure of goods - The appellant submits that these goods were legally imported at Nhava Sheva Port vide Bill of entry and after the import these goods were transferred to their unit in Assam & later on it was decided that goods should be shifted to their another unit at Haridwar through a Courier - Held that:- Available records do not establish any identifiable co-relation between the seized goods and goods imported vide Bill of entry dated 30.12.2009. Commissioner (appeal) has also observed that since the addresses given for the consigne and consignee were found fake, the import of goods through documents submited by appellant becomes doubtful. More over consignor and consignee were genuine persons, there should not have been any problem in serving the letters on them either on given address or through M/s Bom Gim Couriers & Logistic Ltd. M/s Bom Gim Courier & Logistic Ltd. in their letter dated. 01.07.2010 certified that both consinore & consignee were their agents in Tinsukia and Delhi but later vide their letter dated 2802.2011, they informed that Shri Ram Babu Sharma & Md. Allauddin were not on their employment. In such circumstances contention to treat the consignment legally imported is not acceptable. No infirmity in finding of Commissioner (Appeal) that seized goods are different from good mentioned in B/E submitted at Nhava Sheva Port.
Contravention of notification 9/96 - Held that:- When the goods of Chinese origin come from Nepal, there is no need to prove that goods were exported from China to Nepal. Regarding the point proving the goods imported from Nepal, goods were dispatched from Tinsukia Railway station Assam and that place is bordering Nepal and when the goods are clandestinely bought into the country, there will not be any legal document showing import from the Nepal. Thus the goods are of the Chinese origin and being dispatched from Tinsukia Railway station Assam, Department is able to prove that goods come to India in violation of the Notification 9/96. Against assessee.
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2013 (4) TMI 416 - CESTAT NEW DELHI
Refund rejected as time barred under 27(1)(b) of the customs Act 1962 - the ground for refund as Appellant have already completed the export obligations against its aforesaid advance licenses and all relevant documents inclusive EODC submitted with Assistant Commissioner of Customs, Refund - Held that:- After going through the impugned order of Commissioner (Appeals) as also the appeal filed by the revenue the appellant authority has relied upon Tribunal decisions Grasim Industries Ltd [2005 (6) TMI 131 - CESTAT, MUMBAI] & Aristo Spinners Pvt. Ltd [2007 (3) TMI 18 - CESTAT, CHENNAI] laying down that such an Encashemnet of bank guarantee, which was not against any confirmed demand was not justified. Further such Enchashem by the Revenue was on account of non-fulfillment of export obligation. The export obligation having been subsequently fulfilled, the refund of amount so encashed is available to the assessee and the same is not subject to the provisions of limitation under section 27 of the Customs Act. The Revenue has not shown any decision to the contrary. As such in terms of the declaration of law by the Tribunal, Revenue’s contention is not justified. Their appeal is accordingly rejected.
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2013 (4) TMI 390 - BOMBAY HIGH COURT
Revalidation, renewal and extension of the period of the Duty Free Import Authorization (`DFIA') License denied - Petitioner seeks to challenge the orders declining to revalidate on the ground that the request could not be considered in terms of paragraph 2.13.1 of the Hand Book of Procedures - Held that :- There is no dispute before this Court, during the course of hearing, that the orders of the Foreign Development Officer were subject to the remedy of an appeal under Section 9(5) read with Section 15, since the effect of those orders is to deny the request for renewal or revalidation. The Petitioner failed to avail of the statutory remedy within the period of forty five days or even within the further period of thirty days prescribed by the proviso to Section 15(1). The petition before this Court was filed only on 11 May 2012.
Ordinarily the exercise of jurisdiction under Article 226, in the face of an alternate remedy, can only be by way of an exception where an order has been passed without jurisdiction or in violation of fundamental rights or in breach of the principles of natural justice. In the present case, the Petitioner failed to espouse the alternate remedy which is available and has approached this Court much after the period prescribed by the statute has expired. Thus such a petition cannot be entertained. Article 226 cannot be taken recourse to where within the limitation provided by law, the statutory remedy was not availed of.
In terms of paragraph 2.13.1, revalidation of such freely transferable authorization was not permissible unless the validity had expired while in custody of the Customs authority/R.A. In the affidavit-in-reply filed by the Respondents it has been stated that the Petitioner while applying for revalidation did not state that the licenses expired under the custody of the Customs authority/R.A. nor was any certificate produced from the Customs authorities to this effect. The averment in the affidavit-inreply has not been controverted. In these circumstances, plainly even on merits, the Petitioner was not entitled to the grant of revalidation.
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2013 (4) TMI 389 - BOMBAY HIGH COURT
Application for waiver of pre-deposit rejected - Held that:- The order of the Commissioner (Appeals) does not reflect any application of mind whatsoever to the twin requirements of whether a prima facie case had been made out by the appellant as well as on the issue of financial hardship. The consequence of non-compliance with an order of pre-deposit is serious. The appeal would be liable to be dismissed for failure of deposit. Hence, it is incumbent upon the authority which adjudicates upon an application for waiver of pre-deposit to objectively consider whether the grounds on which a waiver is sought constitute undue hardship to the assessee. The authority is entitled to impose conditions to secure the interests of the revenue.
In the circumstances, the petition ought to be allowed by setting aside the impugned order of the Commissioner of Customs (Appeals) dated 12 February 2013 and by remitting the proceedings back to the authority for a fresh decision on the application for waiver of pre-deposit.
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2013 (4) TMI 388 - BOMBAY HIGH COURT
Quashing of Show cause notice as barred by limitation -assessee appeal - a notice to show cause was issued to Beacon Maritime Carriers Pvt. Ltd. for a failure to export and to account for 59 cargo containers - Held that:- The present case is not one where no action whatsoever was taken by the Customs authorities. On the other hand, as the record would indicate, a personal hearing was held from time to time during the course of which, the Adjudicating Officer was informed of subsequent changes in the agents appointed by the principal shipping agency in Saudi Arabia. The Department was apprised of that fact that adjudication proceedings in relation to the cargo were pending and a conscious decision was taken to take the adjudication in the present case out of the call book.
Ultimately, whether the Court under Article 226 of the Constitution should quash a notice to show cause, purely on the ground of delay, is a matter which has to be decided in each individual case. Thus non satisfying that the interest of justice will require the quashing of the proceedings in the present case. The Petitioners have the full range of defences open in regard to the notice to show cause in the course of adjudication proceedings.
No merit in the Petition. The Petition is dismissed.
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2013 (4) TMI 363 - MADRAS HIGH COURT
Non release of the imported goods - Bill of Entry filed by the petitioner for Home Consumption and sought for clearance of the good – Neglected by the department as the goods in question were undervalued and seized under the Customs Act
Held that - The reason for non-release of goods is that the petitioner has under-valued the goods in question. The respondents, on investigation, found that the differential duty has to be paid even for the provisional release of goods. The investigation has to be completed and thereafter, adjudication has to be done for assessment of the value of the goods in question. In the light of the above the goods in question are not prohibitory items under the provisions of the Customs Act, considering the facts and circumstances of the case and having regard to the foregoing reasons and discussions, provisional release of the goods in question, is ordered subject to the following conditions. The petitioner shall deposit with the customs authorities the duty payable on the value declared by them. The petitioner shall deposit with the customs authorities, 50% of the differential duty i.e., the difference between the value declared by them and the value provisionally assessed by the Department. The investigation is yet to be completed and adjudication is also to be done. Therefore, it is needless to state that this order shall not stand in the way of the respondents to proceed with the investigation and also the adjudication process. With the above observations and directions, the Writ Petition is disposed of.
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2013 (4) TMI 362 - CESTAT AHMEDABAD
Classification dispute - Eligibility for availing the benefit of Notification No. 4/2006-CE Relying on the expert opinion the goods which were imported i.e. Zircon sand are nothing but the Zircon Ore, and the said expert opinion having been not rebutted by any other opinion from any other expert, and specifications of imported goods seems to match with specification of the ISI standard for Zirconium Ore, we have to hold that the goods imported by the appellant are eligible for the benefit of Notification. Appeal allowed.
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2013 (4) TMI 337 - CESTAT MUMBAI
Appellant claimed the benefit of Notification No. 40/2006-Cus dated 1.5.2006 for imported goods ‘Sodium Saccharin' – Denied, as the goods under import does not satisfy the description given in the licence and the goods for which the licence has been issued is different in quantity compared to the item indicated in the licence- lower appellate authority, allowed their appeal based on the DGFT's Circular No.50/2008 and the Board's Circular No.46/2007 – Aggrieved revenue filed this appeal
Held that - The appellant has imported Sodium Saccharin and ‘Sodium Saccharin' is a ‘Corrosion Inhibitor' as clarified by the Norms Committee of the Ministry of Commerce in consultation with the Department of CECRI-CSIR, Govt. of India. Therefore, any product which is ‘Corrosion Inhibitor' imported under DFIA licence, is eligible for benefit of Notification No.40/2006. From the records, it is also seen that the respondent herein has not exceeded the quantity and value limit specified in the licence. we dismiss the appeal filed by the Revenue as devoid of merits.
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2013 (4) TMI 336 - CESTAT MUMBAI
Pendency of the appeal for final hearing - revenue is not finalising their subsequent assessments - Held that - we direct the respondent to finalize the assessment provisionally assessed pending as per law, without waiting for the decision of the appeal no. C/491/09.
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2013 (4) TMI 308 - CESTAT MUMBAI
Sec. 45(1) of the Customs Act, 1962 - Regulation 2 of the Handling of Cargo in Customs Areas Regulations, 2009 includes a custodian as referred to in Sec.45 & sub-section (2) of Section 141 of the Act - JNPT is the custodian & the appellants are working as CFS on behalf of JNPT - Held that:- The appellants are not directly involved with the customs. They are working on behalf of JNPT and JNPT has given licence to the appellants to work as CFS on furnishing the bank guarantee of Rs.24 crores.
By mere denying by JNPT that they are not responsible for the activities of the appellants does not seem to be correct - In fact, the dispute is between the JNPT and the Customs - The Commissioner of Customs (Export) Nhava Sheva was not required to pass this order - We, therefore, set aside the impugned order in the light of the above discussions and allow the appeal with consequential relief - Appeal is disposed of in the above terms - Submission of bond are required to be complied by JNPT.
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2013 (4) TMI 307 - MADRAS HIGH COURT
Seizure U/s 110 - Provisionally release of goods U/s 110 A of the Customs Act - Valuation - Held that:- Section 110-A of the Customs Act, 1962 provides for provisional release of goods, documents and things seized pending adjudication - Should be released 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 - The only reason for non-releasing of the goods is that the petitioner has under-valued the goods in question - The respondents, on investigation, found that the differential duty has to be paid even for the provisional release of the goods - The investigation has to be completed and thereafter, the adjudication has to be done for the assessment of the value - Since the goods are perishable in nature, the petitioner claims for provisional release of the goods in question.
As the goods in question are not prohibitory items under the provisions of the Act , provisional release of the goods in question, is ordered with the following conditions:- i) The petitioner shall deposit with the custom authorities the duty payable on the value declared by them - ii) The petitioner shall deposit with the customs authorities 50% of the differential duty - iii) The investigation is yet to be completed and the adjudication has also to be done.
Therefore, it is needless to state that this order shall not stand in the way of the respondents to proceed with the investigation and also the adjudication process - The petitioner shall co-operate with the respondents for conclusion of the investigation as well as the adjudication proceedings - The Writ Petition is disposed of.
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2013 (4) TMI 283 - MADRAS HIGH COURT
Seizure U/s 110 - Valuation - Provisional release of goods U/s 110-A of the Customs Act, 1962 - Held that:- Section 110-A of the Customs Act, 1962 provides for provisional release of goods, documents and things seized pending adjudication. Any goods, documents or things seized under Section 110 of the Act, may, pending the order of the adjudicating officer, be released 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 - The only reason for non-releasing of the goods is that the petitioner has under-valued the goods in question. The respondents, on investigation, found that the differential duty has to be paid even for the provisional release of the goods. The investigation has to be completed and thereafter, the adjudication has to be done for the assessment of the value.
In the light of the legal position and as the goods in question are not prohibitory items under the provisions of the Act and considering the facts and circumstances of the case, provisional release of the goods in question, is ordered with the following conditions: - i) The petitioner shall deposit with the customs authorities the duty payable on the value declared by them - ii) The petitioner shall deposit with the customs authorities 50% of the differential duty - iii) The investigation is yet to be completed and the adjudication has also to be done. Therefore, it is needless to state that this order shall not stand in the way of the respondents to proceed with the investigation and also the adjudication process. In such an event, the petitioner shall co-operate with the respondents for conclusion of the investigation as well as the adjudication proceedings.
The Writ Petition is disposed of - No costs - Consequently, the connected miscellaneous petition is closed.
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2013 (4) TMI 282 - BOMBAY HIGH COURT
Interest on refund excess sale proceeds - Refund of balance after adjustment of expenses and charges U/s 150 of the Customs Act, 1962 - Held that:- It can be no defence to urge that the Customs Act, 1962 provides for the payment of interest only in respect of a refund of duty and interest and hence the Petitioner would not be entitled to interest on the balance of the sale proceeds which were directed to be paid by the Settlement Commission.
The Petitioner has been deprived of a refund of its monies legitimately due to him in pursuance of an order of the Settlement Commission. There is absolutely no reason or justification for the unexplained delay. Hence, in exercise of the jurisdiction of this Court under Article 226 of the Constitution, an order awarding the payment of interest would be necessary.
Interest allowed at the rate of 9%, revenue directed to pay the interest within a period of eight weeks.
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2013 (4) TMI 257 - CESTAT MUMBAI
Suspension of CHA Licence - The licence has been issued by the Commissioner of Customs (General), New Delhi and the same has been suspended by the Commissioner of Customs (General), Mumbai - Jurisdiction of commissioner - large scale of fraudulent exports of various types of fabrics wherein certain unscrupulous exporters have grossly overvalued their export goods so as to avail higher DEPB/Drawback benefit which otherwise are not admissible. - Held that:- In the case of International Shipping Agency (2011 (8) TMI 933 - CESTAT, MUMBAI ), the issue came up before this Tribunal where the CHA licence was issued by the Commissioner of Customs (General, New Delhi and the same was suspended by the Commissioner of Customs (General), Mumbai - In that case, the Commissioner of Customs (General), Mumbai, has no jurisdiction - Therefore, the impugned order was not sustainable and set aside.
Following the decision in the case of Excel India Pvt. Ltd.(2008 (6) TMI 399 - CESTAT, MUMBAI ) - Held that:- we hold the Articles of Charges framed against the CHA had been proved as held by Commissioner. However, we find that the Commissioner has sought to revoke the licence under Regulation 22 by issuing a show cause notice but has prohibited the appellant from conducting business in Mumbai Custom House which cannot be considered as prohibiting the agent from working in a section or more sections of the Custom House.
The Commissioner of Customs (General), Mumbai, has no jurisdiction to suspend the licence of the appellant, as the same has been issued by the Commissioner of Customs (General), New Delhi - Decided in favor of CHA.
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2013 (4) TMI 256 - CESTAT MUMBAI
Interest on refund - at the time of clearance benefit of exemption notification not extended - appellant was forced to pay the duty involved - Held that:- It is seen that the appellant had filed refund applications - Therefore, the provisions of Section 27A of the Customs Act, 1962 is clearly attracted and the said section provides for grant of interest on the expiry of three months from the date of refund application till the date of grant of refund irrespective of when the order for refund was actually passed. The ratio of the judgment of the Hon’ble Apex Court in the case of Ranbaxy Laboratories cited (2011 (10) TMI 16 - Supreme Court of India ) and of the Hon’ble High Court of Bombay in Voltas (2004 (9) TMI 116 - HIGH COURT OF JUDICATURE AT BOMBAY ) would apply to the facts of the case.
Since Section 27A of the Customs Act itself came into force only in May, 1995 and the appellant has claimed the interest for the period from 1-12-1995 onwards - Interest on refund allowed - Decided in favor of assessee.
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2013 (4) TMI 238 - CESTAT BANGALORE
Valuation - extended period of limitation – 100% EOU - dismantling of machine as scrap and sale of scrap on payment of excise equal to customs duty - Levy of SAD - Held that - The Tribunal held that M/s. Ashima Fabrics (100% EOU) [2002 (6) TMI 144 - CEGAT, MUMBAI] was not liable to pay SAD on the capital goods as there was no levy of that duty at the time of its importation. In the result, the demand of CVD and SAD raised on the assessee in the present case is not sustainable.
As it is not in dispute that the machinery was dismantled under the supervision of the Central Excise Range officers and cleared from the factory as scrap, in our view, it should be considered to be a DTA clearance by the EOU attracting Central Excise duty. It was not clearance of the capital goods as such from the factory. Therefore the payment of Central Excise duty by the assessee at the time of clearance of the scrap to M/s. SJCM cannot be faulted. The Department has no case that there was short-payment of this duty by the assessee. - entire demand is beyond the normal period of limitation - Decided in favor of assessee.
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2013 (4) TMI 237 - GUJARAT HIGH COURT
Liabiltiy of pay demurrage charges - illegal confiscation - reimbursement of payment of Containers’ Detention Charges along with ground rent - Held that - in view of the order of this court declaring the confiscation illegal, and such judgment of this court having attained finality, the customs authorities cannot escape the liability to bear the burden of demurrage charges for such seized and ultimately confiscated goods which would include container charges and ground rent. - the seizure orders pertained to the containers also.
To the extent such demand is found genuine and payment actually made, the customs authorities shall reimburse the petitioner with simple interest at the rate of 9% per annum from the date of payment by the petitioner till its reimbursement by the respondents. - Decided in favor of assessee.
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