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Customs - Case Laws
Showing 21 to 40 of 154 Records
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2014 (12) TMI 1119 - CESTAT NEW DELHI
Imposition of redemption fine and penalty - contravention of Section 75 of the Customs Act, 1962 - Drawback claim - Misdeclaration of goods - Commissioner reduced redemption fine - Held that:- Two antiques valued at ₹ 883 were concealed under 673 old and used furniture attempted to be exported claiming drawback. Customs found that such antiques were prohibited goods and liable to confiscation. Ld. Commissioner (Appeals) held that such a low value goods were not conceivable to be concealed for which conclusion of ld. adjudicating authority was wrong. Accordingly, he held that confiscation of 673 items of furniture was unwarranted. His finding is totally contradictory when he holds that under Section 103(f) of the Customs Act, 1962 old and used furniture were not eligible to draw back claim for which those were liable to confiscation. It is strange that how the ld. Commissioner (Appeals) came to a conclusion that the small value goods does not cause prejudice to the interests of justice when those prohibited goods were attempted to be exported. Once there was mis-declaration of description of goods, that calls for confiscation. Therefore, ld. Commissioner’s finding is erroneous in so far as non-concealment of the antique is concerned. The materials on record suggest that the antiques were two pillars with engraved architecture therein and the 673 furnitures were old and used. It is surprising how ld. Commissioner reduced the redemption fine from ₹ 12 lakhs to ₹ 5 lakhs when there was a deliberate mis-declaration of the goods in the shipping bills - Redemption fine and penalty upheld - Decided against assessee.
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2014 (12) TMI 1118 - CESTAT NEW DELHI
Allegation on both sides - Held that:- Departmental Representatives are made helpless without instructions from the field and Revenue is unable to defend its cases for the lapses of the field staff. We request ld. Chief Departmental Representative to take up the matter before the higher authorities so that the Departmental Representatives shall be prepared with full information and instruction to assist the Bench. - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 1117 - CESTAT NEW DELHI
Violation of principle of natural justice - order did not take into consideration various grievances raised in the reply to show cause notice. So also cross-examination of two officers were not allowed. Even the appellant was not allowed to file respective documents prior to filing of reply to show cause notice - Held that:- Reasonable opportunity of hearing was not allowed and cross-examination not granted, we have directed appellant to file a note justifying the reason why cross-examination is required and also the chronology of the dates on which the appellant was required to appear and outcome thereof - The fact of existence of video recording in respect of search to the premises of appellant came to be noticed from record. If the appellant chooses to produce the same that should be produced on the next date of hearing. Appellant further says that certain other relevant documents shall also be filed. In view of the prayer of the appellant to allow opportunity to produce certain documents, matter is posted to further date - appeal disposed of.
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2014 (12) TMI 1079 - GUJARAT HIGH COURT
Waiver of pre deposit - Tribunal has directed the assessee to deposit an amount of ₹ 20,00,000 /- by way of pre-deposit - benefit of notification No.12 /2012 as amended under SI. No.123 - Reclassification of goods - Held that:- Having regard to the overall facts of this case, it is not possible to state that the impugned order does not conform to the principles enunciated - As regards the decision of the Kerala High Court in Binani Zinc Ltd. v. Asst. Collector of Central Excise (1994 (10) TMI 74 - HIGH COURT OF KERALA AT ERNAKULAM) on which reliance has been placed on behalf of the appellant, the same turns upon the facts of the said case wherein though there was an arguable case, the Tribunal has directed pre-deposit of a huge amount as a condition precedent for the hearing of the appeal. In the present case, as noted hereinabove, the Tribunal had directed the appellant to pre-deposit a small fraction of the entire liability under the order-in-original and hence, the said decision would not be applicable to the facts of the present case. The decision of the Delhi High Court in the case of Sri Krishna v. Union of India (1998 (7) TMI 97 - HIGH COURT OF DELHI) also does not carry the case of the appellant any further inasmuch as in the facts of the said case, the petitioners therein were poor persons and were not in a position to deposit the amount as directed by the Tribunal and consequently would have been denied of the valuable right of their appeal being heard and decided on merits, whereas in the facts of the present case, it is not the case of the appellant that is not in a position to deposit the amount as directed by the Tribunal. Tribunal, while considering the appellant's application under section 129E of the Act, has exercised its discretion judicially. Under the circumstances, it is not possible to state that there is any legal infirmity in the impugned order so as to give rise to any question of law, much less a substantial question of law, so as to warrant interference - Decided against assesse.
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2014 (12) TMI 1078 - ALLAHABAD HIGH COURT
Imposition of fine and penalty - Valuation of goods - Whether the Hon'ble Tribunal is justified in holding that the misdeclared value of the goods cannot be reduced to the actual market value of the goods attempted to be exported specially when the Act and the rules do not whisper so. - Imposition of redemption fine and penalty - Held that:- On a plain reading of the language of the substantive part of sub-section (1) of Section 125, it is clear that the legislature has not imposed a restriction of the kind which has been sought to be implied on behalf of the appellant. What the proviso to sub-section (1), however, stipulates is a ceiling on the fine in lieu of confiscation, insofar as it stipulates that such fine shall not exceed the market price of the goods confiscated. Now, it is in the background of the provisions of Section 125 that the legality of the order would have to be assessed.
Quantum of fine is concerned) so long as the quantum of redemption fine was not in excess of the stipulation contained in the proviso to sub-section (1) to Section 125. In fact, before the Tribunal, it was sought to be urged, as recorded in the impugned order, that the value declared in respect of the mis-declared goods must be reduced to the extent of the value of the actual goods in the consignment. The Tribunal was justified in holding that no such exercise could be carried out and the Court has no jurisdiction to do so, so as to legalize a patent illegality. The case of the appellant was that the goods were mis-declared as a result of a mistake of its labourers. That is besides the point, because the fact does remain that, in his declaration of the goods which were meant for export, the appellant had mis-declared the goods. A case for confiscation of the goods was, therefore, clearly made out. The order of the Tribunal, on a considered view of the matter, reducing the redemption fine and the penalty to the extent indicated in the order, is fair and does not call for interference in the appeal by the exporter. - No substantial question of law arises - Decided against assesse.
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2014 (12) TMI 1077 - MADRAS HIGH COURT
Extended period of limitation - suppression of facts - import of raw material, viz., spring steel wires - The allegation of the DRI is that the raw material imported under the advance licenses as replenishment, were different from the raw material used in the manufacture of exported goods in terms of character, thickness, etc. - Notification Nos.149/1995-Customs dated 19.9.95, 30/1997-Customs dated 1.4.97, 31/1997-Customs dated 1.4.97 and 51/2000-Customs dated 27.4.00 - Held that:- Tribunal, on a perusal of the records, has held that the licences and documents were furnished at the time of export and also at the time of import of the raw materials for replenishment and such details were furnished to the licencing authority, which includes, DEEC passbook and other export documents. The said documents have been scrutinized by the DGFT and customs authorities and, thereafter, the goods were allowed clearance by an order passed by the appropriate officer. If that be the case, this issue ought to have been agitated by the Department within the period prescribed. The question of suppression does not arise in the light of the finding of the Commissioner himself, which clearly shows that goods imported and exported tally as per licence.
In the light of the above finding of the Commissioner, as extracted by the Tribunal, this Court is of the considered view that the Tribunal was justified in coming to the conclusion that there was no case of suppression. As a result, the entire cause of action for issuance of show cause notice does not survive. This Court is in entire agreement with the findings recorded by the Tribunal and is of the considered view that it warrants no interference. Accordingly, the first question of law answered against the Revenue and in favour of the respondent - Decided against Revenue.
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2014 (12) TMI 1076 - CESTAT MUMBAI
Penalty u/s 114(i) - Aiding and abetting for smuggling of foreign currency - Held that:- In the case of M/s. Wall Street Finance Ltd. the guidelines of RBI were not issued during the relevant time therefore, in that case the contention of the learned AR that for travellers cheques were issued without the issue of application and passport is not sustainable as there is no guidelines during the impugned period. Further, I find that as the statement shows that this travellers cheques were issued to the broker/agent to whom he has handed over his passport. When the appellant had issued currency after verifying the particulars of the passport. Therefore, it cannot be denied that this traveller cheques has not been issued in the name of the persons who is denying the statement and I also find that in this case the currency have been detected after 2½ years of issuance of travellers cheques which has passed various hands before the interception. In these circumstances, I hold merely on the ground that the appellant was not due diligence at the time of issuance of the travellers cheques which may be used in smuggling of foreign currency, the allegation is not sustainable. Therefore, following the decision of the Trade Wings Ltd. (2008 (10) TMI 524 - CESTAT, MUMBAI), I set aside the penalty imposed on the appellants.
With regard to the penalty imposed on M/s. Rose Travels, I find that the appellant has produced the application form and passport of the persons to whom the travellers cheques were issued. In fact the address of a person is to be verified by the concerned police station. In these circumstances, the allegation of aiding and abetting smuggling of travellers cheques is not sustainable merely saying that the persons are not available on the given address in the absence of any cogent evidence that these passports are fake. Further, in one of the case it is no doubt the travellers cheque has been issued in the name of the passport holder, in the show cause notice there is no allegation that the signature of the said person is not the same as in the application and the in the passport. Further, no statement of such person has been placed on record. In these circumstances, merely saying that he is not the same person cannot be the ground for the allegation in show cause notice. In these circumstances, I hold that the penalty on M/s. Rose Travels is not imposable. - Decided in favour of assessee.
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2014 (12) TMI 1075 - CESTAT BANGALORE
Import of Crude Palm Oil (CPO) - Availment of concessional rate of Customs duty - CPO converted to Refined Oil with the help of job worker - Held that:- Words ‘take action to recover’ have been interpreted differently by the Tribunal in two different orders. Even though, the decision of the Tribunal in the case of PCS Industries Ltd. (2013 (7) TMI 344 - CESTAT MUMBAI) was rendered on 12-6-2013 and the decision in the case of Molex (I) Ltd. (2010 (12) TMI 1046 - CESTAT, BANGALORE) was rendered on 1-12-2010, the decision in the case of Molex (I) Ltd. was not brought to the notice of the Tribunal in the case of PCS Industries Ltd. Nevertheless, the fact remains that there are contrary decisions on the same issue. It has to be noted that the decision in the case of Molex (I) Ltd. considered the relevant provisions in greater details and provided an explanation for coming to the conclusion. In view of the above, in our opinion, the appellants have made out a case for complete waiver of pre-deposit and stay against recovery during pendency of the appeals. - Stay granted.
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2014 (12) TMI 1074 - CESTAT CHENNAI
Valuation of goods - Discount received by assessee - Finalization of provisional assessment - whether the appellant is eligible for 40% discount as shown in the invoices - Held that:- Rule 4(3)(a) of Valuation Rules, 1988 provides that where seller and buyer are related, the transaction value shall be accepted provided the examination of the circumstances of the sale of the imported goods indicate that relationship did not influence the price. In the present case, on perusal of the adjudication order, it is seen that on verification of import invoices and bills of entry and local invoices that the importer gets 34% profit and this profit margin is abnormal for aluminium industry. We find that sub-clause (b) of sub-rule (3) of Rule 4 of Valuation Rules provide that in a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to values ascertained at or about the same time. We find that the appellant had not placed any material to establish that the relationship had not influenced the price. Such as, international price list to show that discount is to all the buyers. They have only produced a price list generated in their own system.
Discount is a general practice in the trade. On a perusal of the impugned order, it is seen that Commissioner (Appeals) observed that it is very clear that the importer is getting additional discount of 25% which is not available to anybody. In our considered view, the appellant is not eligible for additional discount as referred by the Commissioner (Appeals). After considering the facts and circumstances of the case, we direct that the invoice value would be loaded to 25% instead of 40% for the purpose of amendment of Bill of Entry. - Decided partly in favour of assessee.
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2014 (12) TMI 1054 - MADRAS HIGH COURT
Refund claim of Terminal Excise Duty (TED) - Supply of manufactured goods to 100% EOU - Deemed export - Denial in terms of the provisions of the Foreign Trade Policy 2009-14 framed under the Foreign Trade (Development and Regulation) Act, 1992 - Held that:- petitioner did not make any supplies against the ICB. Therefore, it would be covered by latter part of para 8.3(c), i.e. cases where refund of TED will be given. This intention is given effect by the second entry in column (a) of para 8.4 read with corresponding benefits spelt-out in column (c) which states that entitlement in terms of para 8.3 to refund is permissible. The eligibility for refund, therefore, would be in terms of these provisions and the unit has to apply for such refund - authorities in this case appear to have proceeded to make an order adverse to the petitioner and proceeded to hold that the petitioner was disentitled to the benefit of refund in view of some clarification given by the Policy Interpretation Committee, in its meeting of 04.12.2012 to the effect that “refund of CENVAT credit provisions are available under Excise rules and CENVAT rules which should be availed of rather than claiming refund”. This reasoning appears to have prevailed with the Policy Relaxation Committee as well in this case.
Court also is unable to see the reason why the respondents were of the view that refund claim or benefit under the CENVAT regime under the Central Excise Act or the other statutory schemes framed under it is available. In this Court’s opinion, that regime operates in its own terms and is independent of the rights and liabilities of the petitioner and the respondents under the import-export policies framed under the 1992 Act - The respondents are hereby directed to process and pass appropriate orders in accordance with the 2009 policy in respect of the petitioner’s refund claims made through its applications dated 29.08.2012 and 16.11.2012 within three months - Following decision of Kandoi Metal Powders Mfg. Co. Pvt. Ltd. Versus Union of India And Others [2014 (2) TMI 773 - DELHI HIGH COURT] - Decided in favour of assessee.
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2014 (12) TMI 1053 - MADRAS HIGH COURT
Confiscation of seized goods - Seizure of gold and silver bars - Gold bars bear the foreign origin marking but silver bars does not have the same - Appellant claims only silver bars - appellant acquitted by the Judicial Magistrate in the criminal proceedings initiated by the Customs Authorities under Section 135(1)(b)(i) - Whether the plea of the appellant that in view of the acquittal of the appellant in the criminal proceedings, there could not be any imposition of penalty in the adjudicating proceedings is correct - Whether the contention of the respondent that the criminal court has not gone into the question of mensrea and in such circumstances, the judgment of acquittal would not affect the finding of the Tribunal is correct.
Held that:- Act contemplates two separate proceedings for the same act or omission and therefore, there is no question of double jeopardy involved, as rightly pointed out by the learned counsel appearing for the first respondent. - mere acquittal in the criminal proceedings before Magistrate court in every case cannot result in setting aside, ipso facto, the orders of the confiscation passed by the competent authority under the Act. Therefore, the contention of the appellant that the judgment of the Judicial Magistrate acquitting the appellant was binding on the Departmental Authorities, adjudicating the question of confiscation is not correct. As rightly pointed out by the learned counsel appearing for the first respondent, the fact of seizure of gold and silver bars recovered from the appellant's residence is not in dispute. In the criminal proceedings, it is the duty of the prosecution to prove the case beyond any reasonable doubt and also to prove the mensrea for the above said criminal act by adducing reliable evidence. In the instant case, the respondents have discussed in detail about the seizure of gold and silver bars from the residence of the appellant and the above said fact was not disputed by the appellant. Therefore, the appellant cannot be exonerated from adjudication proceedings. - only on the ground of acquittal in the criminal proceedings, the respondents need not exonerate the appellant from the adjudication proceedings regarding imposition of penalty and therefore, the final order passed by the Customs, Excise and Service Tax Appellate Tribunal is valid in law - Decided against assesse.
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2014 (12) TMI 1052 - MADRAS HIGH COURT
Imposition of penalty - Benefit of Customs Notification No.80/95 dated 31.3.1995 under DEEC Scheme - Whether the importer is liable for penalty under Section 112 of Customs Act, 1962 or not on failure to fulfil the conditions of Duty Exemption Entitlement Certificate Notification 80/95 read with under Section 111(o) of CA'62 - Whether the Hon'ble Customs, Excise and Service Tax Appellate Tribunal is right in holding that the importer is not liable to fulfil the conditions of Duty Exemption Entitlement Certificate Notification 80/95 read with under Section 111(o) of CA'62 - Held that:- Export Import policy itself enables the Customs Authorities to exercise its power for confiscation or for imposing fine and penalty. In this case, the goods are not available for confiscation under Section 111(o) of the Customs Act and hence, no fine was imposed, however penalty was imposed. The findings of the Adjudicating Authority is that there is no material to prove that there is a bona fide default, which fact is now being corrected by the respondent by producing statutory documents issued by the Office of the JDGFT. This aspect of the case requires to be re-considered by the Adjudicating Authority. Tribunal is not justified in holding that no penalty can be imposed after payment of duty and interest as required by the Notification. The Tribunal did not look into the position of law as found in para 7.29 of the Export and Import Policy 1997-2002 and therefore fell into error. In view the documents now produced by the assessee showing that the assessee had discharged the export obligation for the purpose of regularising the bonafide default, the matter requires to be re-considered by the Adjudicating Authority on the issue of confiscation and penalty. Accordingly, we remand the matter back to the Adjudicating Authority. - Matter remanded back - Decided in favour of Revenue.
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2014 (12) TMI 1051 - MADRAS HIGH COURT
Penalty u/s 114(i) - Confiscation of goods - Misdeclaration of goods - export of fertilizer grade Potassium Chloride (Muriate of Potash - MOP) by declaring it as industrial salt, chemical grade (sodium chloride) - Whether the Tribunal was right in coming to the conclusion that the appellant is liable for penalty in terms of Section 114 (i) of the Customs Act in the absence of any tangible evidence against the appellant - Held that:- the fact that the appellant was responsible for sourcing the bogus bill for the mis-declared goods from R.B. Trades as 'Industrial Salt' to support the unlawful attempt to export Muriate of Potash is evident from the materials available on record. The further fact that payments were made by the consignee, who is none other than the sister of the appellant, is also confirmed by the statement of Rajagopal, the father of the appellant and the consignee, Ms.Aruna Murugesh the sister of the appellant. The above fact clearly shows the active involvement of the appellant in the transaction. That the appellant is responsible for the attempt to illegally export by way of mis-declaration, contrary to prohibition in law is further evident from the statement of L.Subash Proprietor of Sharmi Exim Co., whose statement is to the effect that he consented to the said improper export only for the purpose of individual gain of ₹ 5,000/- per container. The complicity of the appellant further gets confirmed by the statement of the Custom House Agent, who stated that the false/bogus invoice of R.B. Trades were handed over to him by the appellant and that he proceeded to file the shipping bills on the instructions of the appellant. - In view of the clear and categorical evidence available on record, there appears to be no error in the order passed by the Tribunal confirming the findings of the original authority as well as the Commissioner (Appeals) on levy of penalty under Section 114 (i) of the Customs Act.
Involvement of the appellant in the attempted export by way of mis-declaration contrary to prohibition imposed by law - Held that:- all the authorities have considered the material evidences available on record, including the statements and have given a clear finding that the appellant was actively involved in the improper and illegal attempt to export goods by way of mis-declaration contrary to prohibition imposed by law and, therefore, this Court sees no reason to differ with the findings of the authorities below. The finding on guilt of the appellant on the basis of the materials available on record is uniform in all proceedings below. The appellate court is not inclined to reappreciate the evidence unless it is shown that the impugned order is perverse, arbitrary and against the well established legal principles. There is no sound legal principle that appellant relies upon to interfere with the impugned order. The issues raised by the appellant in the present appeal are purely questions of fact and this Court finds no question of law, much less substantial questions of law, arising for consideration in this appeal. - Decided against assesse.
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2014 (12) TMI 1050 - CESTAT MUMBAI
Denial of conversion of free shipping bill to drawback shipping bill - there was no compelling reason beyond the control of the appellant for availing free shipping bill into drawback scheme - Maintainability of appeal - Order passed by Commissioner - Held that:- In fact, the argument of the learned AR is self contradictory as on one hand he submits that the Commissioner is not proper officer, the Asst. Commissioner is the proper Commissioner and on the other hand, he submits that the impugned order has been passed by the Asst. Commissioner. The stand of the learned A.R. is not consistent. Further, I find that in this case, in the communication from the Asst. Commissioner forwarded to the appellant stating that the learned Commissioner has taken the decision. Therefore, I hold that the appeal is maintainable before this Tribunal against the order of the Commissioner.
There was an alert circular issued against the appellant therefore, it was the compelling reason for not filing the shipping bills under drawback scheme. In these circumstances, the learned Commissioner has committed an error for not considering the request of the appellant for conversion of free shipping bill to drawback scheme. - matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 1049 - CESTAT NEW DELHI
Determination of FOB value - denial of the exorbitant claim of DEPB scrips - Held that:- To resolve the controversy between the parties, it would be fair to send back the matter to the adjudicating officer to issue notice to the respondent clearly stating why he disbelieves the value declared by the appellant. If such a notice is issued that shall serve the purpose of Rule 8 of the Export Valuation Rules. Upon receipt of the explanation of the respondent, learned authority shall examine the same threadbare and ignoring incredible evidence if any, shall consider only proper and cogent evidence to resort to the appropriate rule of valuation. - Decided in favour of Revenue.
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2014 (12) TMI 1048 - CESTAT MUMBAI
Condonation of delay - Inordinate delay of more than 5 years - Change of address - Delay in receipt of order - Held that:- As per the provisions of Section 153 of the Customs Act, the order is to be served by tendering or sending by Registered Post and in case the order is not served in that manner by processing it on notice board of the Custom House - adjudication order was sent on the address which was given in the bills of entry and the same was received back with the postal remark “Left” and, therefore, the same has been displayed on the notice board as per the provisions of Section 153 of the Customs Act which provides that in case the order was not served by tendering or by post the alternative service is by displaying on the notice board. In view of this, we find no merit in the contention of the applicant is that order is not properly served on the applicant. In view of this the condonation of delay application is dismissed - Condonation denied.
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2014 (12) TMI 1047 - CESTAT NEW DELHI
Date of communication of order - Refund claim - Whether the date of passing of the order completing the provisional assessment shall be considered or the date of communication of order shall be considered to count limitation for filing refund application - Held that:- facts are not in dispute exhibiting that the provisional assessments in the case of the appellant were completed prior to the communication of the final assessment order. The date on which a public order is served on the person to whom that is meant, such date of service is counted for remedial measure if the person on whom the order served is aggrieved. The date of communication is deceive for different purposes of law in respect of the person to whom the order is meant and on whom that is served.
Whether the refund arising out of completion of provisional assessment shall undergo the process of Section 27 when the refunds related to the period prior to 13-7-2006 - Held that:- when refund arises upon completion of provisional assessments, that flows suo motu under law prior to 13-7-2006 to the assessee without an application being made. The refund so arsing does not under go the process of Section 27 of the Customs Act, 1962 but is covered by the Section 18 of the said Act. However Section 18 has undergone amendment with effect from 13-7-2006 with necessary implication that even refund arising on completion of provisional assessment shall be governed by Section 27 of the said Act. By that amendment, bar of limitation as well as unjust enrichment are enacted to the law. Therefore before 31-7-2006, the refund arising upon completion of the provisional assessments is not intended by law to undergo the test of limitation as well as unjust enrichment in terms of law laid down by the Hon’ble High Court of Delhi in the case of the present appellant reported in [2012 (1) TMI 31 - DELHI HIGH COURT]. Following the ratio laid down therein, appeal of the appellant is allowed and the refund is payable to the appellant. - Refund allowed.
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2014 (12) TMI 988 - DELHI HIGH COURT
Conviction for offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Variation in test results of first and second set of samples - Failure to examine the panch witness - Held that:- In a large number of cases involving the NCB, there is a failure to produce the panch witness named. There are cases where panch witnesses are not associated at all and it is sought to be explained by the prosecution that despite its request no person from the public came forward to join in the raid. The latter explanation has been accepted by some Courts by taking judicial notice of the fact that the members of the public are generally reluctant to be involved in criminal cases as witnesses. However, in a case where the NCB specifically names a public witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it.
Failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in the first instance in the summons issued by NCB, was false. This casts serious doubts on the trustworthiness of the prosecution version and in that circumstance the benefit of doubt should certainly go to the accused.
There is no independent corroboration of the arrest of the Appellant, the seizure from him of the contraband and the recording of his statement under Section 67 of the NDPS Act. Appellant did not write the statement himself. Although he appears to have written the first paragraph and the last line, in the one paragraph written by him he stated "I am not in a position to write my statement. So, I request Ajay Kumar to write my statement on my dictation." The MLC of the Appellant also showed that he had received an abrasion behind the right ear. He also mentioned his being tortured in the retraction statement at page 349 of the trial Court record.
As regards the purity of the samples taken by the NCB from the seized contraband, it was noticed earlier in the trial Court proceedings itself that a second set of samples had been sent for testing and that there was a considerable difference in the purity percentage. While in the first set of samples the purity of DAM was 51.7% and 61.4%, the purity of DAM in the second testing of the samples was 7.2% and 7.4%. The learned trial Court held that this was due to change in atmospheric conditions "and other conditions."
Witness Mahesh Kumar was presuming that there was no possibility of the second set of samples coming from a different source only because the records in the case available with the laboratory showed that on both the occasions the samples had come 'properly sealed.' It appears to the Court that the above answer was not a scientific one but a practical one which does not explain the considerable variation in the purity percentage of DAM and also the absence of two constituents in the second set of samples. The expert failed to explain how when the first set of samples showed seven constituents, even accounting for hydrolysis, there was a complete absence of two constituents in the second set of samples. The literature produced by both the parties points to the possibility of degradation of DAM to MAM and not the heroin when it is in crystallized form.
Even in the same set of samples from the same source, there is possibility of differences in percentages on account of hydrolysis of DAM into MAM, they do not explain the possibility of total absence of constituents in the second set of samples. In the instant case, this raises a doubt to whether both the set of samples were from the same source. - The Court, on a careful perusal of the evidence of the expert evidence in the present case is not satisfied that the prosecution has been able to explain the considerable variation in the purity percentages of DAM in the two samples sent for testing. Even on this score, the Court is inclined to grant benefit of doubt to the Appellant. - Decided in favour of assesse.
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2014 (12) TMI 987 - BOMBAY HIGH COURT
Validity of Regulation 13(h) of the Courier Regulations 1998 - Requirement of qualified employees - Under Regulation 13(h), Authorized Couriers are required to file declarations for clearance of imported or export goods through a person who has passed the examination referred to in Regulation 8/19 of the CHALR, 2004 (now corresponding to Regulation 6/17 respectively of the CBLR, 2013) and who are duly authorized under section 146 of the Customs Act, 1962 - Held that:- rationale behind the requirement under the Courier Regulations, 1998, as amended, of making/filing declarations by a person who has qualified the examination referred to under Regulations 8/19 of CHALR, 2004 (corresponding to Regulation 6/17 of CBLR, 2013) is that the said persons have adequate knowledge of overall customs clearance process. The syllabus of the examination comprises of a set of subjects required for adequacy of knowledge of Customs clearance process. The clearance through the Courier mode is part of overall clearance process and the provisions of Customs Act, 1962 are applicable in similar manner as is applicable for clearance from other modes. The object underlying the requirement of passing the examination under Regulations 8/19 of CHALR, 2004 (now Regulation 6/17 of CBLR, 2013) is to ensure that such person has the basic level of competency and knowledge.
Hence, when the Courier Regulations, 1998 as amended, stipulates that such persons filing declarations for clearance of imported and export goods under the Courier mode must have qualified at the examination as mandated under Regulation 8/19 of CHALR 2004 (now Regulation 6/17 of CBLR 2013), there is nothing arbitrary in imposing such a requirement. The requirement has a reasonable nexus with the object which is sought to be achieved viz. to ensure that the Authorized Couriers/ employees fulfill the requirement of competency, knowledge and skills. Even otherwise, the requirement under the amended Courier Regulations, 1998, that the Authorized Courier shall file declarations for clearance of imported or export goods through a person who has passed the said examination and who is duly authorized under section 146 of the Customs Act, is entirely a matter of policy and it would be impermissible for this Court in the exercise of its limited jurisdiction under Article 226 in interfering with such policy matters. It is required to be noted that the Petitioner has not challenged the amendment to the Courier Regulations, 1998 as being ultra-vires the Customs Act, 1962 or Article 14 and 19(1)(g) of the Constitution of India.
Authorized Courier may utilize services of a person who has qualified the examination under Regulations 8/19 of the CHALR, 2004, in case he or his employee has not qualified the examination for filing declarations under the Courier Regulations, 1998. In the Reply, it has been also averred that there are about 52 Authorized Couriers companies at Courier Terminal Sahar, Mumbai and almost all of the above have hired the services of persons who have passed the examination referred to in Regulation 6/17 of the CBLR, 2013 (erstwhile Regulation 8/19 of the CHALR, 2004) and clearance of courier consignments is being handled smoothly and expeditiously by Courier companies in compliance with the Regulations. This position has not been disputed by the Petitioner in their Affidavit-in-Rejoinder, except to contend that that has been done under duress and under threat of stoppage of work. Thus, the right of the Authorized Courier companies to carry on business has not been abrogated in any manner. - Decided against Petitioner.
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2014 (12) TMI 986 - DELHI HIGH COURT
Application to have an Appraisal Counter for evaluation of declared items of the passengers at the IGI Airport, New Delhi - Non availability of an "Appraisal Counter for issuance of Export Certificate" at the Indira Gandhi International (IGI) Airport, New Delhi forced passengers to travelled to the Custom House, Jhandewalan which is about 30 kms. away from the airport and thereby causing undue hardship to the commuters - Held that:- Judicial powers do not extend to giving a direction as is sought, the same being largely an administrative / policy decision but at the same time, we cannot help but observe that the respondents do not appear to have approached the issue in the correct perspective. The counter affidavit is full of legalese, rather than addressing the important issue of public interest raised in the petition. The reason given, of paucity of space and infrastructure at the airport also does not inspire confidence. IGI Airport has recently undergone re-development by acquisition of land, displacing a large number of villagers. To our knowledge, large portions of such acquired lands have been used for building hotels and which are often found to be serving the need, instead of users of the airports / travelers, of the city residents. We wonder as to why the respondents, at the time when the re-development of the airport was being planned, if facing any paucity of space / infrastructure, could not have demanded additional space.
Similarly, the argument given of having an Appraisal Counter at the airport / close to the airport posing a security hazard to the airport, cannot be accepted. Having used the said airport, it is to our knowledge that large portions of the re-developed airport are outside the secured arena. It is thus possible to have the said counter, in close vicinity of the airport and without posing any security hazard. - The respondents, in the counter affidavit though have said that no airport in the country has such an appraisal facility at the airport itself but the same in our opinion is again no reason. What the respondents have failed to address is the specific plea of the petitioner, of the other developed countries having Appraisal Counters at the airport only. Airports in all countries are situated generally far from the city and if such countries have felt the need for the Appraisal Counter at the airport, we can be reasonably sure that the same must have been done for the convenience of the passengers. Internationalization of the airports in the country has to be not only for looks but also in terms of convenience and amenities, facilities and following the practices in vogue at the airports of other countries.
Respondents directed to within six months herefrom take a reasoned decision on shifting the existing Appraisal Counter to the airport / in the close vicinity of the airport, or having an additional counter at the airport/in the close vicinity of the airport, taking into consideration all possible aspects and may be even after holding surveys and including what we have observed - Decided in favour of appellant.
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