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Customs - Case Laws
Showing 61 to 77 of 77 Records
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2013 (4) TMI 208 - PUNJAB & HARYANA HIGH COURT
Application for waiver of pre-deposit of the amount of penalty allowed partly - Held that:- The findings recorded by the adjudicating authority have been taken into consideration by the Tribunal that the allegations against the appellant are of availing the benefit under Advanced Licensing Scheme without actually exporting one lakh pieces of garments.In view of the said fact, the appellant is not entitled to any other benefit than what was granted by the Tribunal.
Appellant's contention that a sum of Rs. 7.00 lacs were deposited during the course of the investigation, therefore the said amount should be excluded from the amount of pre-deposit as ordered by the Tribunal is not acceptable as no such concession can be granted to the appellant for the reason that such amount was mentioned in the application to seek waiver of pre-deposit filed before the Tribunal. Since, such fact was pointed out, no reason to find infer that the order of the Tribunal is not after considering the effect of such deposit.
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2013 (4) TMI 188 - CESTAT BANGALORE
Valuation dispute – refund claim - Equipments imported by appellant for setting up plant in India appellant had also paid to the supplier, system design and engineering charges. This amount was provisionally included in the assessable value of the imported goods and duty paid accordingly. However, subsequently, the assessee claimed refund of excess duty by submitting that the above charges were not includible in the assessable value as these charges were relatable to equipments indigenously procured by them. Refund claim was rejected by the department.
Held that – Tribunal remanded the case to the original authority as gross error of law was committed by both the authorities issue which ought to have been considered by these authorities was whether the design and engineering charges paid by was liable to be included in the assessable value of the imported goods under the Customs Valuation Rules 1963 which were in force during the period of imports.
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2013 (4) TMI 187 - CESTAT, NEW DELHI
Waiver of pre-deposits - The applicants in these stay petitions imported textile machines claiming benefit of Notification No. 103/2009-. After clearance the officers of Revenue received intelligence that there was a manipulation in the description of the machines which was done for availing Technology Up-gradation Fund Scheme (TUF Scheme). Revenue initiated action for confiscating the goods under Customs Act and also denying the concessional rate of duty prescribed in Notification and proposing penalty on the importer and redemption fine in lieu of confiscation has been imposed, since the goods have been already released provisionally to the parties.
Held that – Prima facie the mis-declaration, if any, made by the applicants are not resulting in any short levy of duty or contravention of import policy. At best there may be contravention of declaration given to the DGFT at the time of obtaining the EPCG licenses. So far DGFT has not cancelled the licenses. Only Show Cause Notice has been issued. We have not been able to appreciate how the applicants could have availed TUF Scheme because under para 5.8 of the policy to avail that scheme new machines have to be imported.
The Show Cause Notice or the adjudication order does not bring out the legal provisions contravened or the undue benefit claimed. It only states that there were misdeclarations of model number and year of make, of the machines. - stay granted in full.
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2013 (4) TMI 164 - CESTAT NEW DELHI
Misdeclaration of goods at the time of import – goods seized – provisional release of goods was order on fulfillment of certain conditions – Held that - The terms of the order safeguards both differential duty and fine and penalty to the extent of 25% of the differential duty amount. Therefore tribunal are prima facie of the view that the order passed is fair to both Revenue and the appellant and the modification by another passed order is not warranted.
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2013 (4) TMI 163 - BOMBAY HIGH COURT
Classification of imported goods - Appeal is filed against the order passed by the CESTAT where tribunal set aside the confiscation, redemption fine and penalties imposed on the goods imported by the assessee even though the same were mis - declared and misclassified by the assessee – Held that - There is no allegation that the assessee has colluded with the foreign supplier either in relation to the description of the goods or in relation to the valuation of the goods. It is relevant to note that even after the first test report, the Revenue could not arrive at a conclusion that the goods are classifiable under CTH 5801. It is only after the second test report the Revenue could arrive at a conclusion that the goods are classifiable under CTH 5801. It cannot be said that the assessee had misclassified the goods with an intention to evade payment duty. The decision of the Tribunal that there was no mala fide intention on the part of the assessee, even though the classification of the goods claimed by the assessee is not correct, it was not a case for confiscation/redemption cannot be faulted.
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2013 (4) TMI 134 - DELHI HIGH COURT
Offence U/s 135 (1) (a) of the Customs Act, 1962 - Confiscation U/s 111 (d) - Section 108 - Upon search of Ashwani's car, pieces of watches, VCRs, etc. were recovered alongwith some documents and bill of entry, and the same were seized - Held that:- A statement of co-accused cannot be excluded from consideration at the threshold of trial as its admissibility or inadmissibility under Section 30 of the Indian Evidence Act, 1872 has to be considered after the evidence is led in relation to it. Apart from this, there is similar statement of independent person-Dinesh Kumar, whose evidentiary value cannot be pre-judged at the initial stage.
This Court is conscious of the fact that aforesaid Dinesh Kumar is not a cited witness by the respondent, but on this technical ground, petitioner cannot get a clean chit as list of additional witnesses can be always filed by the respondent even now before the trial court - Due to whose fault the trial of this case has not begun, is a matter which is not required to be gone into in these revisional proceedings, as mere delay would not be detriment because trial court record has been reconstructed.
Prima facie, it appears that petitioner is the beneficiary of the seized goods and because applicability of Section 30 of the Indian Evidence Act, 1872 cannot be altogether excluded from consideration at this initial stage of trial, therefore, on the strength of decisions relied upon, petitioner is not entitled to discharge - Finding no illegality or infirmity in the impugned order - Dismiss this revision petition while refraining to comment upon the merits of this case lest it may prejudice either side at trial.
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2013 (4) TMI 133 - CESTAT KOLKATA
Valuation - Misdeclaration/undervaluation of goods imported - Confiscation/penalty - Assesse imported 540 bales of old and used garments through his custom house agent. - old and used goods or other than ‘old and used goods’ - classifiable under Chapter 6309 of CTA, 1975 - Held that - So far as valuation is concerned reliance made on the judgement of Hon’ble Supreme Court in the case of Eicher Tractors Limited, reported in [2000 (11) TMI 139 - SUPREME COURT OF INDIA], wherein it has been held that if the transaction value cannot be determined under Rule 4(1) [now Rule 3(1)] and does not fall under any of the exceptions in Rule 4(2) [now rule 3(2)], there is no question of determining the value under the subsequent Rules.
The 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, the classification of the goods have been decided by ld. Commissioner as old and used garments classifiable under 6309 as claimed by the importer by rejecting the claim of the DRI.
Once the goods are held to be old and used, their value cannot be enhanced by treating the goods as other than old and used goods. There is no findings that the invoices issued by the overseas suppliers are fake or fabricated and that the importer had paid any amount more than that mentioned in invoices either in kind or any other manner. - Decided in against the revenue.
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2013 (4) TMI 110 - CESTAT MUMBAI
Despite the order of this Tribunal the revenue is not releasing the bank guarantees - Held that:- We find that this tribunal has passed the order on 30.10.2012 which was pronounced in the Open court and as per the Board's Circular no. 802/35/2004-CX dated 8.12.2004, when an issue is decided by the Tribunal in favour of the assessee, Revenue is bound to release the Bank guarantee within 90 days of the said order.
As per the Board's Circular, the Revenue is bound to release the bank guarantees unless and until it is stayed by the higher forum. No stay is obtained by the Revenue as per the report filed by them - Therefore, in the interest of justice, Revenue is granted 10 days time to comply with the Tribunal's order dated 30.12.2012 (sic), failing which the concerned official shall face the consequences. The matter to come up on 08/04/2012 (sic).
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2013 (4) TMI 109 - CESTAT AHMEDABAD
Waiver of penalties - Principle of Natural justice - Held that:- It can be seen that the show cause notice directs all the applicants/appellants to reply to Commissioner of Customs, Custom House, Navrangpura, Ahmedabad for showing the cause to show cause notice issued to them - In our view, if show cause notice directs assessees/noticees to reply a particular Commissioner/Commissionerate, it is for that Commissioner to hear and adjudicate the case, until and unless there is any change in jurisdiction - On this point itself, we find that the entire order is passed in violation of principles of natural justice.
Accordingly, without expressing any opinion on the merits of the case, keeping all the issues open - we set aside the impugned order and remit the matter back to the adjudicating authority to reconsider the issue afresh - Needless to state that the adjudicating authority should follow the principles of natural justice, before coming to any conclusion - Stay petitions and appeals disposed of by way of remand.
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2013 (4) TMI 87 - BOMBAY HIGH COURT
Reason for initiating search proceedings - Department conducted a search proceedings u/s 105 of Customs Act on a legal opinion formed by the department itself pursuant to which confiscation of goods has been initiated. Officer in the proceedings has submitted before the Court that he has invited attention to original records to show the material looked into has been correctly shown there and on the strength of that material honestly, the responsible Officers have reached a particular belief. He contends that name of the person, who gave secret information cannot be disclosed and, therefore, it has not been recorded.
Held that - The law as laid down by Honorable Apex Court in judgement of Income Tax Officer v. Lakhmani Mewal Das [1976 (3) TMI 1 – SUPREME] Court has been used in it. - the authority which had issued warrant which was ultimately executed had not applied its mind to form “reasonable belief” and the material on record does not support any such satisfaction. - The Search carried on, therefore, cannot be said to be in accordance with law. The same is accordingly quashed and set aside. - Decided in favor of assessee
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2013 (4) TMI 86 - CESTAT NEW DELHI
Reimport of goods – Valuation - Claim of benefit Notification No. 158/95-Cus - return of the goods, was beyond the period of one year, as contained in the said notification, the benefit was not extended- Valuation demanded by the department - Held that - Revenue is assessing the re-imported rejected and defective goods in terms of the Valuation Rules meant for first time import of the goods but the present goods are re-import of already exported goods. The same are defective and rejected by the customers and as such we do not agree with the Revenue to apply Valuation Rules for adopting the original transaction value between the buyer and the seller in terms of provisions of Rule 4. - Decided against the revenue.
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2013 (4) TMI 60 - CESTAT NEW DELHI
Smuggling goods – Confiscation – Appellant/Accused is found with carrying two tractors loaded with battery scrap. Department seized the battery scrap with a view that they are smuggled goods. Notice also proposed imposition of penalty. Additional Commissioner vide his order confirmed the confiscation also ordered for confiscation of the truck in terms of Section 115(2) of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine. Said order of Additional Commissioner was challenged by the present appellants before Commissioner (Appeals), who upheld the same, hence the present appeal is filed before Tribunal.
Held that:- Tribunal finds that there is no direct evidence on record showing smuggling of battery scrap from Nepal. The Revenue is solely relying upon the statement of who is a co-accused tribunal also finds that battery scrap is non-notified item in terms of provisions of Section 123 of the Customs Act. As such, the onus to show that the same was smuggled lies very heavily upon the Revenue and is required to be discharged by production of sufficient and tangible evidence. Inasmuch as the confiscation stand set aside, there is no justification for imposition of penalties on both the appellants.
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2013 (4) TMI 59 - DELHI HIGH COURT
Directions of Additional Chief Metropolitan Magistrate (A.C.M.M.) to supply copies of documents consisted of more than 300 pages - the amount of customs duty alleged to be evaded was over ₹ 5 crores - whether the Petitioner instead of supplying the copies of the documents to the Respondents ought to have approached this Court invoking its inherent powers under Section 482 of the Code? - Held that:- As per Section 482 of the Code, the High Court in exercise of its inherent powers may make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice.
As per Janata Dal v. H.S. Chowdhary (1992 (8) TMI 301 - SUPREME COURT) the High Court, as the highest Court exercising criminal jurisdiction in a State, has inherent powers to make any order for the purposes of securing the ends of justice, it being an extraordinary power, will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers.
The Petitioner has not been able to make out a case or to show that the order passed by the ACMM was abuse of the process of the Court or that the order is required to be set aside to secure the ends of justice. Petitioner (DRI) ought to have supplied the Respondents with the copies of the documents promptly so that the trial could have proceeded. The Petitioner (DRI) is unable to make out a case for invoking the powers under Section 482 of the Code. Rather, the filing of the Petition appears to be mala fide the same is accordingly dismissed.
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2013 (4) TMI 51 - CESTAT AHMEDABAD
Refund Claims of SAD levied u/s 3(5) Customs Tariff Act, 1975) - Notification No. 102/2007-CUS - Sale after processing - HR/CR coils - process of cutting and slitting - change in the classification - Held that – It is a settled law that what is required to be seen while considering whether the process amounts to manufacture is whether a new article with distinct name, character and use has emerged or -not and not whether the tariff heading has changed. Therefore, just because after cutting and slitting, the tariff heading changes we cannot say that the -products do not remain the same. No doubt there is an obligation on the importer to show that what he has sold are the goods which were imported by him.
When the importer imports goods, for further manufacture they would get modvat credit or cenvat credit of SAD paid by them. In the case of an importer who imports the goods for selling, the SAD was exempted under Notification No.34/98 and under Notification No. 102/2007 they are eligible for refund. The domestic manufacturers are not affected by the SAD since they can take cenvat credit whereas the importer who sells the goods as such does not get the benefit of credit and therefore either exemption has to be extended or he is to be given refund. On this account also the appellant is eligible for refund.
In view of the above discussions, the impugned order is set aside and appeals are allowed and the matter is remanded to the original adjudicating authority for the limited purpose of verifying as to whether the appellant is able to show that the imported goods only have been sold by them after cutting and slitting and nothing else.
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2013 (4) TMI 33 - CESTAT CHENNAI
Waiver of Pre-deposit - high sea sale - diversion - The applicant imported polyester fabrics and sold the goods to broker of other Company and the bill of entry for the same is filed by the other company, and then goods are diverted to other states.
Held that:- applicant sold the goods on high-sea sale basis and the Bills of Entry had been filed by M/s. Suman Designs. When the Bill of Entry has not been filed in the name of the applicant, therefore, they are not liable to pay duty. - stay granted.
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2013 (4) TMI 32 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Undervaluation - Import of “Whey Protein” - The applicant has further submitted that he has deposited the entire amount prior to issue of demand and prays that the case may be admitted and settled as a whole once and for all, grant of immunity from imposition of any fine, penalty & prosecution under Customs Act, 1962.
Held that :- Considering cooperation extended by the applicant and co-applicant during settlement proceedings and willingness of the applicant to accept duty liability as worked out by Revenue coupled with real possibility of getting lower negotiated price, the Bench finds it a fit case for settlement. However, considering the attitude and conduct of the applicants in totality, the Bench is inclined to consider the request for immunities favorably. Order is passed for paying differential amount of custom duty, interests and penalties. The Applicant and co-applicant are granted immunities from prosecution under the Customs Act, 1962, in so far as this case is concerned. order of settlement shall be void in terms of Section 127C(8) of the Act, if the Settlement Commission subsequently finds that it has been obtained by fraud or mis-representation of facts.
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2013 (4) TMI 7 - CESTAT MUMBAI
Smuggling goods – Demand of duty u/s 28 and penalty u/s 117 of the Customs Act. - Appellant is a goldsmith and in his custody gold and silver ornaments are found he could not produce any documents showing the licit possession and ownership of the goods - Appellant makes the following submissions that Gold is not notified under Section 123 and the said provisions would not apply. It is evident that the goods were seized by the Police under the presumption that they were stolen property and the goods were not seized by the Customs from the appellant. Therefore, the burden to prove the gold in question is not smuggled is not required to be discharged by the appellant and it is for the department to establish that the goods are smuggled and this onus has not been discharged by the department. Mere foreign marking on the gold does not by itself establish the smuggled nature of the goods. It can at best establish the foreign origin of the goods. Merely because the appellant could not produce the documents to establish the licit nature of the goods is not sufficient to establish the smuggled nature of the goods.
Held that :- The argument provided by the appellant is wrong for the reason that subsequent to sub-section (2) of Section 123 clearly provides that the section applies to gold and the manufacturer thereof. Customs authorities did not seize the goods from the appellants; therefore, the provisions of Section 123 which casts the onus on the appellants to prove that the goods are not smuggled is not applicable, inasmuch as no seizure has been made from the appellant by the Customs. Therefore, the burden and onus of proof to establish the fact that the goods are smuggled lies on the Revenue and not on the appellants. In respect of these gold articles, there is no evidence whatsoever in record to show that they are of foreign origin. Tribunal do not find any infringement of the provisions of Customs Act so as to attract confiscation under Section 111(e) and (i) of the said Act and accordingly, and set aside the same.
The next issue for consideration is whether the appellants are liable to pay Customs duty demanded under Section 28 of the Customs Act. Invoking the provisions of Section 28 applies to imported goods. Smuggled goods” are not “imported goods” as held by the Hon’ble Apex Court in the case of Commissioner of Customs v. Ambalal & Co. [2010 (12) TMI 16 - Supreme court of India]. Therefore, the provisions of Section 28 are not attracted in the case of smuggled goods. Thus, the determination of duty and the demand of duty in the instant case is not in accordance with law and, therefore, the same has to be set aside.
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