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Customs - Case Laws
Showing 21 to 40 of 132 Records
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2013 (8) TMI 795
Mis-declaration of value - Undervaluation of Goods Duty Short paid - Whether undervaluation was proved was to be decided on the basis of the facts of each case - The commodity involved and the parties involved also were relevant - In the case the commodity involved was sophisticated mechanical equipment and measuring instruments which were not sold in bulk - Extensive price negotiation was on record - Detailed justification why the manufacturer cannot give further discount was on record - So suddenly the prices cannot come down to 1/4th - In the facts and circumstances of the case the finding of the Commissioner was upheld that the transaction Value declared were liable to be rejected - Collector of Customs, Bombay v. Shibani Engineering Systems, Bombay [1996 (8) TMI 106 - SUPREME COURT OF INDIA ] - abnormally discounted prices cannot be accepted - the prices declared in the Bill of Entry merits were rejected and goods should be assessed on the basis of prices at which goods were offered in the records seized.
Whether demand can be issued without challenging the assessment was also settled in UOI v. Jain Shudh Vanaspati Ltd.[1996 (8) TMI 108 - SUPREME COURT OF INDIA ] - the allegation was regarding mis-declaration of value as was evidenced from correspondence sized from the assesse - Where there was such mis-declaration or suppression the extended period of five years specified in Section 28 of the Customs Act was applicable - amount worked out for short levy of duty could not be accepted - the matter was remitted back to the adjudicating authority for re-quantification of short-levy - The penalties also need to be decided afresh in view of the likely reduction in duty liability
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2013 (8) TMI 781
Misdeclaration - Recalling of export consignment - The manufacturer Suomotu informed the customs authority about the discrepancy in the exported consignment due some technical problem which otherwise results in mis-declaration of quantity - Revenue viewed that the action of both the appellants viz., manufacturer and exporter was contrary to law Held that:- No ill design was behind the consignments nor there was wilful suppression to cause prejudice to Revenue - assessee had voluntarily approached the customs authority to call back the consignment for bonafide mistake detected by it before discovery thereof by Customs - to prevent abuse of process of law court ordered that redemption fine to be upheld - Penalty of the appellants were reduced decided in favour of assessee.
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2013 (8) TMI 780
Mis-declaration of the value as well as quantity - revenue pleaded that undue relief was granted by Commissioner (Appeals) to the assessee basing on a FAX Message of the exporter stating that due to typing error the weight of citrine exported was typed wrongly Held that:- The discrepancy in quantity and inadvertent error been brought to notice of Customs at the time of clearance were not bonafide - fabricated document was used in defence subsequent to adjudication - Innocence before Commissioner (Appeals) was pleaded falsely - plea of respondent accepted was totally baseless and detrimental to interest of justice - FAX message on record cannot be considered as credible to appreciate innocence of respondent decided in favour of revenue.
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2013 (8) TMI 779
Mis declaration of Goods confiscation of goods u/s 111(m) custom duty penalty u/s 112(a) - Department was of the view that the the silver jewellery which was imported was having Americcan standard high priced stone and not low cost stones they issued notice for Confiscation of goods u/s 111(m) and custom duty was imposed penalty u/s 112(a) were imposed Held that:- following the judgment of Commissioner of Customs vs. M. Vasi (2002 (11) TMI 135 - CEGAT, MUMBAI) held that, goods arrived by post parcel will not liable for confiscation u/s 111(l) and 111(m) - the penalty imposed u/s 112(a) on the assessee was also unwarranted order set aside decided partly against revenue
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2013 (8) TMI 778
Confiscation of imported goods redemption fine and penalty were imposed - It was an admitted fact that assesses had obtained NOC from Assistant Drug Controller Held that:- Revenues stand of contravention of Customs law cannot be upheld - confiscation of the goods would not be justified in terms of Circular No. 16/6-DC - Cumulative reading of Boards instructions and the instructions issued by Drugs Controller General of India makes it very clear that if importer obtains NOC for import of the drugs through Ports other than specified ports, the importation cannot be held to be illegal - It was also an undisputed fact that representative sample of Vitamin C (ascorbic acid) were sent to Assistant Drug Controller and were found to be as per declaration - It was thereafter that Assistant Drug Controller issued NOC for release of the goods order was set aside decided in favor of assesse.
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2013 (8) TMI 777
Valuation inclusion of inspection charges - inclusion of cost of erection, commissioning and installation of the three cranes - Held that:- he words that ICAN shall provide, shows that inspection was a condition of the sale and not optional to ICAN. Even though payment has been made separately, the fact remains that it was an obligation of the seller to provide the certificate. - inspection charges have to be included in the assessable value since it was ICANs responsibility and expense was incurred on behalf of the ICAN by GPPL since it was obligatory for ICAN to provide the certificate. Any expense incurred on behalf of the seller by the buyer and obligatory as per the contract and incurred prior to import is includable in the assessable value. Decided in favor of revenue.
Inclusion of cost of erection, commissioning and installation of the three cranes Cost incurred after import - Held that:- It cannot be said that the purchase contract had a condition for erection to be undertaken and this was a condition of sale - Commissioner had wrongly interpreted the provisions of Rule 4 to reject the transaction value on the ground that importation of cranes in the dis-assembled form means restriction in terms of clause (e) of said Rule 4 (2) of the Customs Valuation Rules assesse shall be entitled to refund of all payments made including an annual interest payable on the same.
The purchase contract also included a warranty and provides that warranty shall survive the expiration and / or sooner determination of the contract - It also provides that the warranty shall be the sole remedy for the goods - the case was decided on the basis of Valuation Rules and the terms of the contract, which invariably were not comparable according to clause -1 assesse was required to do necessary drawing, design engineering and modification work and thereafter only send the cranes in disassembled form - By the time the disassembled cranes were received in India, full drawing, design and engineering details and documentation required was available Decided in favor of assesse.
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2013 (8) TMI 776
Duty under protest - Refund claim unjust enrichment Held that:- Assesse had not been able to show that there was no unjust enrichment - the finding was a finding of fact based on evidence which does not call for any interference would show that they did not really went to analyze the evidences and the statutory requirements - it was not clear as to how the CA concerned or the proprietor did not think of showing this amount either as a disputed amount or as a receivable relying on CC, Chennai Vs. BPL Ltd. [2010 (7) TMI 66 - MADRAS HIGH COURT] - Much more was missing in this case as it was seen from the analysis of the CA certificate made above and the decisions cited by the AR Decided against assesse.
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2013 (8) TMI 775
Undervaluation of Duty Demand Interest and Penalty - Revenue was of the view that both Di-Octyl Phthalate (DOP) and Di-2-Ethyl Hexyle Phthalate (DEHP) were the same compounds and they started importing the goods adopting a new name with the purpose of undervaluing the goods with an intention to evade Customs duty Held that:- veracity of the contentions of the revenue was not verified by investigations there was no merit in the argument that the Commissioner, while adjudicating the SCN, erred in studying the literature on DnOP and then concluding that DOP and DEHP were different products.
The evidences produced by Revenue can at best create a doubt but cannot prove a case of undervaluation because of three main reasons - Firstly, the case was made about quality of goods which were already cleared and there were no samples of goods available to prove or disprove the rival submissions about quality - Secondly, no investigations were carried out about the claim that the goods in question were in fact sold at low prices, corresponding to the Import prices, to end users - Thirdly, there was no proof of remittance of any additional amount by the importer to the supplier abroad - no reason to interfere with the order passed by the adjudicating authority and the same was upheld Decided against Revenue.
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2013 (8) TMI 730
Reduction of redemption fine and penalty - held that:- It is an established fact on record that the machine imported enjoying customs benefit was utilized for job work which has hampered interest of Revenue - such a use is not possible without human intervention and object or motive is imputed to that. Therefore, the mild fine of Rs.2.00 Lakhs imposed in adjudication does not call for interference. - decided against the assessee.
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2013 (8) TMI 729
Illegal diversion of goods. - Stay application waiver of pre deposit of penalty u/s 112(b) and 114(i) Held that:- Assessee in his statement accepted that there was some illegality in clearing the muriate of potash - assesseee had not cooperated with the lower authorities during the adjudication proceedings - cout relied upon Maruti Seeds & Fertilisers (2013 (8) TMI 570 - CESTAT AHMEDABAD) - assessee had not made out the case and all the defences taken by him need to be gone into detail which can be done only at the time final disposal of the appeal The stay petition was filed for the waiver of pre-deposit of the amount of penalty imposed by the adjudicating authority on the appellant under the provisions of Section 112(b) and Section 114(i) pre-deposit ordered for an amount of Rs.1,25,000 stay granted partly.
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2013 (8) TMI 728
Waiver of pre deposit of penalties u/s 112(a) Stay petition - Held that:- Show cause notice and the earlier round of litigation that the entire case starts on the basis of clearance of consignments based on forged/tampered licence - findings recorded by the adjudicating authority that the forged/tampered licences were not available even at the time of investigations and hence could not be produced before the Bench waiver of pre deposit allowed to the assessee decided in favour of assessee.
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2013 (8) TMI 727
Benefit of Notification No.102/2007 - Refund of SAD - no excise duty was collected in the invoices because BED is nil, hence no declaration was made on the Invoice that no credit of additional duty was taken - Held that:- every restriction, stipulation condition as well as limitation prescribed by the Notification was to be scrupulously followed to avail benefit of notification Court followed the judgements of State of Jharkhand & Ors vs. Ambay Cements & Anr (2004 (11) TMI 319 - SUPREME COURT OF INDIA ) and Mihir Textile Ltd. Vs CCE (1997 (4) TMI 75 - SUPREME COURT OF INDIA) - We do appreciate the difficulty of the appellant. But we are helpless to come to rescue of the appellant granting exemption at the cost of the people of India when there was failure to fulfil condition of notification. - Failure to fulfil condition of notification, disentitles the appellant to the benefit of exemption given by the notification. decided against the assessee.
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2013 (8) TMI 726
Confiscation of Goods u/s 111(d) and 111(m) - Mis-declaration of Goods - Redemption of Goods u/s 125 Penalty u/s 112(a) - Permissibility of Review - The assesses filed Bill of Entry for import of consignments declared as old woolen and synthetic rags/garments, completely fumigated - Revenue was of the view that the Bill of Entry was assessed by enhancing the value of consignment - Whether the review made by the authority concerned was permissible under the law or not - Held that:- The argument of the assesse that the appeal filed was time-barred under provisions of Section 129D failed - Fraud and justice cannot dwell together - The delay was not a matter for which the assesse should get protection for his fraudulent action.
COLLECTOR OF CENTRAL EXCISE Versus M.M. RUBBER CO. [1991 (9) TMI 71 - SUPREME COURT OF INDIA] and COMMISSIONER OF CUSTOMS, KANDLA Versus ESSAR OIL LTD. [2004 (10) TMI 90 - SUPREME COURT OF INDIA] - Assessment of Bill of Entry, without giving any reasons, was an appealable order - But the matter could not have been decided in appeal because the order did not give the reasons for the order - The issue of a reasoned order got delayed because the documents were withdrawn for investigation by DRI - It was the result of the fraudulent action of the appellant in giving fraudulent description of goods on the Bill of Entry.
Whether an attempt of revoke would pass a test of legal propriety as mentioned in Section 129D of the Customs Act, 1962 Held that:- New facts implying fraud were noticed even after order was passed by Commissioner (Appeals) - the new facts should have been taken into account by the Tribunal for condoning the delay in filing appeal - COMMISSIONER OF CUSTOMS Versus CANDID ENTERPRISES [2001 (3) TMI 101 - SUPREME COURT OF INDIA] the Argument of the assesse was not maintainable under Section 129D - The fact that the goods were not examined properly before passing the order cannot be considered as a new fact - only the facts that came out of fresh examination are new facts Decided against Assesses.
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2013 (8) TMI 725
Mis-declaration of Goods - Rejection of drawback claims Held that:- The Rejection of Drawback claims was upheld due to the conduct of the assesses and in view of the investigation which was in progress - The delay was relevant only when the drawbacks were held admissible and the consequence was that the exporters were eligible for interest - The drawback claims on goods exported during the period were held up as export attempted to be made was found to be misdeclared and investigations were commenced - The Customs Act envisages payment of interest in terms of Section 75A of the Customs Act in the event of delay in disbursement of drawback claims.
DEPB Scrips Cancelled on Being Time Expired - Held that:- The question of denying TRA without getting DEPB scrips cancelled was not proper and legal - However, as DEPB scrips were time expired even at the time of passing of the order no order was required to be passed - the investigation revealed that the export made were not in accordance with shipping bills, it would have been appropriate that references should have been made for cancellation of that DEPB scrips The assesse-company have asked for telegraphic release advice (TRA) only in respect of two DEPB scrips though they were issued totally five DEPB scsrips - The Commissioner had denied the request for TRA - The action to deny TRA without taking action to get the DEPB scrips cancelled had no meaning - There was no order on other DEPB scrips - it was clear that the validity of DEPB scrips was only one year and the grant of TRA had no significance as of now unless the DEPB scrips were revalidated by the DGFT authorities - In the event of any request for revalidation of DEPB scrips it would be necessary for the customs authorities to take it up for with the DGFT authorities against any such renewal if so advised.
Redemption Fine u/s 125 - Penalty u/s 114 Held that:- Redemption fine imposed on goods which were already exported and not available for confiscation were set aside - Penalty was reduced - this was a case of export of sub-standard items and overvaluation of exports - the charge of mis-declaration and overvaluation, the Commissioner had chosen to impose excessive amounts as redemption fine, obviously in excess of market price - redemption fine imposed were to be set aside.
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2013 (8) TMI 693
Valuation - import of goods - inclusion of value of software in the networking appliance - Application for adducing additional evidence assessee imported networking appliances which had certain embedded software to enable its use Revenue contended that the equipment, software and services as a single bundle sold in the trade but the assessee had sold the components separately to avoid payment Held that:- The department had not given adequate opportunity to the assessee to defend its position on the questions of facts - there had been a denial of natural justice during the adjudication proceedings - Assessee should be allowed to cross-examine the persons whose statements are relied upon for proving the case against them.
Appellant have a contention that some part of the money is towards updation of the software. A typical example is antivirus software. Even after the initial stage the software has to be updated for newer and newer viruses, spams, spywares etc. that is pumped into the network by criminal and anti-social elements in the society. For this purpose, the software need to be updated continuously and this service has to be paid for. It is argued that the cost of such updation of software cannot form part of assessable value of goods when imported. No effort seems to have been made to make distinction between the post-import services and the software that is embedded.
Stay granted - matter remanded back.
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2013 (8) TMI 692
Discrepancy in goods - whether after clearance of goods by customs grievance of discrepancy in quantity of goods delivered entertainable - Held that:- there was no discrepancy in the report as alleged by appellant - for the refund to be admissible in respect of short shipped goods, verification report from Customs is necessary the verification report was not there - no complaint was lodged at the time of clearance decided against the assessee.
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2013 (8) TMI 691
Stay petition waiver of pre deposit of penalty u/s 112(a) department contended that assessee had facilitated in clearing the consignments on the basis of forged/ tampered licenses Held that:- The forged/ tampered licenses were not available even at the time of investigations and hence could not be produced before the bench - forged/ tampered license were not made available by the department assessee had made a prima facie case in its favour application for complete waiver of pre deosit allowed decided in favour of assessee.
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2013 (8) TMI 690
Waiver of pre deposit of penalty u/s 112 appellant in his statement denied allegations made by the authorities as regards diversion of imported textile material - statements of the appellant herein are exculpatory Held that:- Application for the waiver of pre-deposit of the amounts involved is allowed and recovery stayed - the appellant has made out a strong prima facie case for the waiver of the pre-deposit - He had denied that he had any role in diversion of the textile of the goods which were imported and sold - It was also seen from the records that the assessee herein was a high seas seller and had accepted the fact that he had sold the goods on high seas sales basis and had received the payments through cheques court relied upon the judgement of ASHWIN S. MEHTA Versus COMMISSIONER OF CUSTOMS, MUMBAI(2005 (9) TMI 462 - CESTAT, MUMBAI) decided in favour of assessee.
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2013 (8) TMI 689
Import without Payment of Duty for export - failure to export - Confiscation of Goods u/s 111(o) Penalty u/s 114A - Import of capital goods took place without payment of duty in terms of Notifications No. 13/81-Cus., dated 9-2-1981 - Department was of the view that the extension of the period were not in accordance with the provision of Section 61 of Customs Act, 1962 and duty should have been demanded unconditionally - Held that:- The goods had been allowed for export as per the procedure for clearance of the warehoused goods, the goods are not liable for confiscation as per Section 111(o) - Penalty u/s 114A was imposable in case duty had not been levied or had been short-levied, etc., by reason of fraud, collusion or wilful mis-statement or suppression of facts or contravention of Central Excise Act or Rules, 1944 with intent to evade payment of duty - No such ingredients had been brought out by the department - penalty imposed u/s 112 of Customs Act, 1962 and Rule 173Q of Central Excise Rules, 1944 was also not sustainable the order was sustainable barring the penalty imposed u/s 112 of Customs Act, 1962 and penalty imposed under Rule 173Q.
Extension of Warehousing Period - Whether the Extension of the warehousing period was not proper - Held that:- Extension of warehousing period cannot be found fault with - The Unit was not having any control on the circumstances wherein the technology had undergone changes and new Montreal Protocol and they could not cope up with new protocol in this kind of industry - the circumstances in this case were not exceptional in nature - Further Section 69 of Customs Act, 1962, provided for export of warehousing goods without payment of import duty subject to certain conditions - It was not the case of the department that the Unit had not fulfilled the said condition - The export/removal of the goods had been as per the provision of Chapter IX of the Warehousing and the department could not bring out the condition which were not fulfilled or any provision had been contravened - the goods were not liable for confiscation Decided against Revenue.
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2013 (8) TMI 688
Correct Classification of Imported Goods - What should be the correct classification of the imported goods declared as Condensate or Crude Petroleum Oil or CPO imported by the assesses - Department was of the view that the import of refined petroleum products by declaring them as Crude Petroleum Product or Crude Petroleum Oil - Revenue declared the consignment as Condensate/Crude Petroleum Oil that was imported by the assesses - Held that:- In the absence of establishing the source of origin of gas condensate the classification of the goods imported by the assesses had to be under CTH 2710 and duties were required to be discharged accordingly Relying upon M/s. Pushpal Exports Pvt. Ltd. v. CC, Kandla [2011 (1) TMI 877 - CESTAT, AHEMDABAD].
Condensate hydrocarbon (C4 to C20 approx.) should be obtained from wet natural gas - No documentary evidence had been produced by the assesses that the goods imported were obtained during the stabilization of wet natural gas, immediately upon its extraction Decided against assesse.
Mis-declaration of goods Confiscation Of Goods Redemption Fine Penalties u/s 111(a) - Whether there was a mis-declaration on the part of the appellants inviting confiscation, redemption and imposition of penalties upon the assesses under Customs Act, 1962 Held that:- The penalties imposed upon the appellants under Section 111(a) of Customs Act, 1962 shall be restricted to the differential duty sought to be evaded after re-calculating the differential duty liability - The assesses had the knowledge of imported goods being good quality petroleum oil but the same was blindly accepted to be a crude oil condensate on the basis of statements given - all the assesses had knowledge of good quality petroleum oil which they agreed to be classifiable under CTH 2710 19 90 and accordingly confiscation of imported goods and imposition of penalties had been correctly made by the adjudicating authorities When samples of imported goods were shown the same to be good quality petroleum oil and that they agree to pay differential duty - All other assesses who purchased the imported goods on high sea sale basis also admitted the wrong classification done and agreed to pay differential duty Decided against assesses.
Assessable value of Goods - Whether the assessable value of the imported goods was required to be enhanced from USD 240 PMT declared to USA 327.25 PMT - There was no evidence that assesses had repatriated more value in addition to the transaction value paid to the supplier of the goods - The chemical test reports of the relied upon consignments were not made available to the assesses - In the absence of these factors, it cannot be appreciated that the relied upon imports were contemporary imports and will be sufficient to reject the transaction value Decided in favor of assesses.
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