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Showing 1 to 20 of 132 Records

• 2013 (8) TMI 1061
  
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  ... ... ..... decision has been taken by respondent No.2. We have considered the request made by counsel for the petitioner and though the revenue relies upon judgments to contend that the petitioner is dis-entitled to re-export the consignment without payment of excise duty etc., dispose of the present writ petition by directing the Commissioner of Customs, Delhi-IV to decide the petitioner's representation/letter dated 18.09.2012 (Annexure P-9) in accordance with law within one month of the receipt of copy of this order.

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• 2013 (8) TMI 1030
  
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  ... ... ..... properly classifiable under CTH 3802. Therefore, for these matters, we hold that the imported goods are classifiable under CTH 3802 and the appellants are required to pay duty accordingly. 6.1 For Appeal No. C/425/10 we find that the imports for the period from 11-10-2004 to 20-12-2006, the show cause notice was issued only on 19-5-2009 by invoking the extended period of limitation and in the matter of Komal Trading Company and Others (supra) this Tribunal has held that the demand confirmed by invoking extended period are not sustainable. Therefore, we hold that in this appeal demands are time barred as well as are not sustainable on merits as per the decision of the Tribunal in the case of Komal Trading Company and Others, (supra). 6.2 As the issue involved in classification of the impugned goods therefore, no fine and penalties are warranted. Accordingly, fine and penalties are dropped. 7. In these terms, the appeals are disposed of. (Dictated in open Court)

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• 2013 (8) TMI 955
  
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  ... ... ..... means part of the report is acceptable and part of the report is not acceptable. This does not seem to be correct approach. Since PHO is responsible to test only whether the product is edible or not, the test by Chemical Examiner becomes an absolute necessity and when there is a contradiction between the two, it is for the assessee/importer to challenge the report or question the correctness by legal means to ensure that his interests are safeguarded. Appellants have not lifted a finger for two years. 9. Under these circumstances and in view of the precedent decisions of the Tribunal that Chemical Examiner’s report can be relied upon and in view of the facts and circumstances of this case, we find that the appeal filed by the Revenue has merit and since the acid value is more than 10 in the imported consignments, the appellant is not eligible for the benefit of concessional rate. In the result, the appeal filed by the Revenue is allowed. (Pronounced on 29-8-2013)

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• 2013 (8) TMI 953
  
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  ... ... ..... it amounts (less ₹ 1 lakh already deposited) as confirmed in the adjudication order. Applicant has not complied with the condition of the stay order, therefore the appeal is dismissed for non-compliance of Section 129 of Customs Act, 1962. (Order Pronounced and Dictated in Open Court)

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• 2013 (8) TMI 920
  
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  ... ... ..... y reduce the penalty imposed by the respondent No.2 from ₹ 3 lakhs to ₹ 50,000/instead of setting aside the entire penalty imposed on the Appellants, as they did not have any knowledge as regards the loading of the Containers on the vessel. (ii) Whether in the facts & circumstances of the case and in law CESTAT was correct in upholding penalty on the appellant CHA under section 114(iii) of the Customs Act, 1962 when the facts of the case do not attract any penalty on the CHA under section 114 (iii) of the Customs Act, 1962? 3. Hearing is expedited.

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• 2013 (8) TMI 918
  
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  ... ... ..... of complainant and counsel for complainant. The Trial Court was not in a position to secure accused Nos. 3 and 8. Therefore, case against accused Nos. 3 and 8 was separated. In the circumstances, the Trial Court should have called upon the complainant to adduce evidence. Instead, the Trial Court closed the case and cancelled bail bonds of accused Nos.1, 2, 4, 5, 6, 7 and 9. The procedure adopted by the Trial Court is contrary to the provisions for trial of warrant cases instituted otherwise than upon a police report under Criminal Procedure Code. 4. In the circumstances, the impugned order cannot be sustained. The petition is accepted 5. The Trial Court is directed to restore the complaint against the respondents. The Trial Court shall proceed with the case in respect of available accused. The learned counsel submits that respondent No.6 herein namely, S.D.Kini is dead. If that is so, learned counsel for accused can report the same to the Trial Court for appropriate orders.

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• 2013 (8) TMI 894
  

  Restoration of Appeal – Non-Compliance of Order – Recovery of drawback amount – Appellants seeking restoration of appeal, which were dismissed for non-compliance to Stay order – Held that:- stay order was passed directing appellants to deposit amount within 8 weeks and subject to that deposit, recovery of remaining amount of draw-back and interest was stayed during pendency of appeal – Appellants failed to report compliance to said order, therefore appeals were dismissed since right of appeal was conditional – Appellants did not come forward to ventilate their grievance for more than 6 (six) years – Therefore they shall not be granted any immunity to seek restoration – Restoration applications dismissed – Decided against Assesse.

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• 2013 (8) TMI 892
  
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  ... ... ..... td., it is noticed that the adjudicating authority has come to the conclusion that the CHA licence has not been sub-let. If that be so, we do not understand why in the appellant’s case alone, in similar situation, the same adjudicating authority has come to different conclusion altogether. For the same type of offence, different punishments cannot be accorded to different persons. Therefore, the impugned order is not sustainable in law as far as revocation of CHA licence is concerned. There are other technical violations by the CHA in the present case as is evident from the Inquiry Officers report. For those violations, forfeiture of security would be an adequate punishment. Accordingly, we uphold the forfeiture of security deposit by the appellant in the instant case. 6. To sum up, we set aside the revocation of CHA licence No. 11/359 issued to M/s N.H. Desai & co. and uphold the forfeiture of security deposit. Thus, the appeal is party allowed in the above terms.

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• 2013 (8) TMI 887
  
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  ... ... ..... recommended for testing of the sample by Food Testing Laboratory, Pune. The goods were sent to Pune Laboratory and on examination it was found that the goods were mixtures of vegetable oils in the combination of groundnut oil, soya bean oil, palmolein and soy bean oil and the goods were fried oil and unfit for human consumption. The Hon’ble Supreme Court in the case of Jocil Ltd. (supra) has held that Chapter 15 of CTA, 1975 reads animal or vegetable fats, oils and waxes, etc., and for goods to fall into Chapter 15, there has to be element of ‘edible oil’. Both the examination reports mentioned that the impugned goods are not edible oil and they are not fit for human consumption. Therefore, they are not classifiable under Chapter 15. Hence the impugned order classifying the goods under Chapter 15 is not sustainable. The impugned order is set aside and the appeals are allowed with consequential relief, if any. 7. Appeals are allowed. (Dictated in court)

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• 2013 (8) TMI 886
  
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  ... ... ..... he product under Chapter 28 as Potassium Chloride while the Revenue is of the view that it would get classified under Chapter 31 as fertilizer. We find that when the goods were exported by the appellant, Schedule 2 of Export Policy at Sr. No. 132, talks about the export of ‘Potassium Chloride’ (Muriate of Potash) (All grade) as freely exportable commodities. 4. If that be so, prima facie, we are unable to accept the findings of the lower authorities that the items exported by the appellant would fall under restricted category and are liable for penalty under Section 114 of Customs Act, 1962. 5. In view of the foregoing, we hold that the appellant has made out a strong prima facie case for waiver of amount of penalty imposed by adjudicating authority and upheld by first appellate authority. The application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal. (Dictated & pronounced in Court)

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• 2013 (8) TMI 885
  

  Illegal imports done - Forged license - Held that:- Later circular dated 5-12-1994 was not the subject document available at the time of first adjudication but came into existence later when the case was remanded by the Tribunal - even if the forged/tampered advance licences were not relied upon documents in the show cause notices but the same became relied upon documents in the light of appellate proceedings and the remand directions of this Bench. The argument taken by the Revenue that tampered/forged advance licences were not relied upon documents in the show cause notices and are not available with the Department is not acceptable as providing of such advance licences to the appellants is a must to explain their conduct. Also, it is unacceptable that cross-examination of Customs officers is not necessary in this case. Accordingly, in the present proceedings, the adjudicating authority should not have gone beyond the remand directions in view of the settled law by the judgment of Hon’ble Gujarat High Court in the case of Milcent Appliances Pvt. Ltd. v. UOI (2005 (3) TMI 161 - HIGH COURT OF GUJARAT AT AHMEDABAD) - Decided in favour of assessee.

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• 2013 (8) TMI 853
  

  Export of non – standard goods - The issue involved in this case was regarding the export of non-standard goods as received from an EOU by an SEZ – Held that:- The issue involved in the case needs to be gone into detail - It was to be appreciated that as to whether the duty liability on the SEZ would be customs duty or Central Excise duty and also how the poor quality of consignment entered into SEZ.

  Waiver of pre deposit of Penalty u/s 112 and 114 - applications for the waiver of pre-deposit of the balance amounts involved were allowed and recovery stayed – decided in favour of assessee.

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• 2013 (8) TMI 852
  

  Mis – declaration - Whether there was mis declaration on the part of the assessee – department was of the view that there was mis declaration on the appellant and they impose the custom duty – Held that:- Prima facie it was case of mis-declaration in the appeal - upon reading of adjudication order the act of the appellant caused prejudice to the Revenue - But court did not express any opinion on such mis-declaration.

  Stay application - Waiver of Pre deposit – Held that:- pre-deposit has become condition in respect of stay application – 25% of the duty was ordered to be submitted – on such submission rest of the duty to be waived – decided in favour of assessee with conditions.

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• 2013 (8) TMI 851
  

  Classification of goods – Benefit of notification - Assesse classified the product under CTSH 3901 2000 of Customs Tariff Act and claimed the benefit of concessional rate of duty of 5% available for High Density Polyethylene (HDPE) under Sr.No.477 of exemption Notification No.2/2002-Cus - Held that:- In the absence of any support for the conclusion that the product imported by the appellant had been chemically modified or it was not known as HDPE in the market - the benefit of exemption under Sr.No.477 had to be extended to the assesse - Revenue had not applied even the trade parlance test - The Revenue had not got even the test certificate from the Government laboratory which was essential in the case – Whether the product was a chemically modified HDPE or not and whether it was known as HDPE in the market, had not been considered at all – the lower authorities had not been fair – decided in favor of assesse.

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• 2013 (8) TMI 850
  

  Benefit of Notification No. 21/2002 – Opportunity to Cross Examination - Assesse imported Crude Palm Oil at concessional rate of duty in terms of Notification No. 21/2002-Cus - Held that:- - the assesse should be given an opportunity to cross examine - The cross examination and the important witnesses of the Revenue should have been extended by the Adjudicating Authority - reasons adopted by the Adjudicating Authority for denial of cross examination were neither legal nor convincing - After the conclusion of the cross examination the assesse would file the reply to the notice within a period of 15 days therefrom and after affording an opportunity of personal hearing, the Commissioner would pass the order as soon as possible - the entire case of the Revenue was mainly based upon the records of assesse and the statement as regards the non-sale of the Caustic Soda, one of the main raw materials, to be used in the manufacture of laundry soap along with Crude Palm Oil – Decided in favor of assesse.

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• 2013 (8) TMI 849
  

  Origin of Goods – Demand of Anti-Dumping Duty - Confiscation of Goods - The importers explained that origin of goods to be Malaysia but on verification, it showed that the certificate of origin showing Malaysia as country of origin was false. - Appellant contended that he is not importer - The Commissioner vide his Order-in-Original primarily basing on the various statements of Shri Nalin Bakul Zaverilal Mehta has come to the conclusion that the real owner of the imported vitrified tiles was Shri Nalin Bakul Zaverilal Mehta and the names of three companies/firms were used by him to shield himself for future liabilities.

  Held that:- A statute to be construed according “to the intent of them that make it” and “the duty of judicature is to act upon the true, intention of the Legislature - the mens or sententia legis” - The expression, ‘intention of the Legislature was a shorthand reference to the meaning of the words used by the legislature objectively determined with the guidance furnished by the accepted principles of interpretation - State of Himachal Pradesh v. Kailash Chand Mahajan[1992 (2) TMI 322 - SUPREME COURT] - The true or legal meaning of an enactment as derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed - The wording used in Section 129E is infallible as it reads as “the person desirous of appealing against such decision or order shall pending appeal, deposit with the proper officer the [duty and interest] demanded or the penalty levied”.

  Appellant cannot be absolved of the liabilities and responsibilities only on the basis of certain commissions and omissions - Prima facie the adjudicating authority cannot be faulted at this juncture.

  Waiver of Pre-deposit - No strong prima facie case was made out for complete waiver of the amounts involved – 2 crores were ordered to be submitted as pre-deposit – stay granted partly.

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• 2013 (8) TMI 799
  

  Excessive claim of duty drawback - Suppression of quantity of goods - Whether there was wilful suppression of the quantity/number area and measurement of carpets and goods were overvalued to claim excess drawback for such non-existing or short accounted exports – Held that:- The test reports relating to attempted exports clearly established material discrepancy in composition of the goods attempted to be exported - declaration relating to contents of the carpets attempted to be exported, quality as well as measurement thereof resulted in serious discrepancy found in physical examination - there was no mention of other misc. materials used in the manufacturing process.

  Misdeclaration of goods - Whether the quality of the carpets and the value declared by the exporter in their export documents was correct or the same was liable to be rejected for misdeclaration – Held that:- There was misdeclaration of description, quantity, quality and shortage of goods which were attempted to be exported.

  Stay application – waiver of pre deposit - Duty drawback - Whether the assessee deliberately facilitated fraudulent exports for claim of higher drawback rendering them to penal action – Held that:- Fraudulent past exports were proved to be making fictitious purchases recorded by the appellant without explaining the manufacture and cost data of the exports -Its records were fabricated - So also the cost data relating to attempted exports were not furnished - it was difficult to appreciate assessee’s pleadings to be merited at this stage since fraud nullifies everything – since draw back was availed in excess of admissibility - assessee was ordered to submit some amount as pre deposit – decided against assessee.

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• 2013 (8) TMI 798
  

  Mis declaration of goods – penalty u/s 112 – redemption of fine - importer filed appeal for setting aside the penalty and redemption fine – Held that:- applicants had not made out a prima facie case for waiver of predeposit of the entire amount of penalty - there was no dispute that the goods are mis-declared - the contention that it was not a case of willful mis declaration which could only be determined after hearing the appeal at length.

  Stay application – waiver of pre deposit - court ordered 10% amount of penalty to be submitted with the department – on such submission the stay would be granted – decided in favour of assessee with conditions.

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• 2013 (8) TMI 797
  

  Application for modification of stay order - Assessee contended that the demand of duty was on import of capital goods and the adjudicating authority while quantifying the demand should have allowed permissible depreciation of value in terms of the Board's Circular No. 305/136/92-FTT r.w. Notification No. 52/2003-Cus. - whether on the available records prima facie case was made out by the parties – Held that:- An order was sought to be modified the appellate Tribunal should at the outset look for a prima facie case for modification - In case no prima facie case was found by the Tribunal the modification application would be rejected without the need to hold elaborate hearing - court followed the judgement of Baron International Ltd. Vs. UOI (2003 (9) TMI 97 - HIGH COURT OF JUDICATURE AT BOMBAY) - the parameters of a modification application of this kind - The Hon'ble High Court almost ruled out the permissibility of review of any order for pre-deposit. - the miscellaneous application had rejected for want a prima facie case for modification of the Stay Order – appeal decided against the assessee.

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• 2013 (8) TMI 796
  

  Provisional assessment – Demand of differential duty – Interest u/s 111(m) – Confiscation of goods – Penalty u/s 114A - Assesse had satisfied all the guidelines prescribed – Held that:- The question of re-determination of value under Rules 5 to 8 of the Customs Valuation Rules did not arise at all – relying upon - Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai [2000 (11) TMI 139 - SUPREME COURT OF INDIA ] - Order for re-determining the value of the machinery under importation was not sustainable in law -the confiscation of the goods and imposition of fine and penalty were also not sustainable in law - Only in special circumstances particularized in Rule 4(2) of the Customs Valuation Rules, 1988, valuation needs to be done under the Customs Valuation Rules. If these special circumstances are absent, it is mandatory for the Customs to accept the price actually paid or payable for the goods in the particular transaction; conversely, if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules – Decided in favor of assesse.

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