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Customs - Case Laws
Showing 41 to 60 of 154 Records
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2014 (12) TMI 985 - CESTAT NEW DELHI
Imposition of penalty u/s 112 - Intention to defraud Revenue - Held that:- When the appellant had no access to know about the contents in the container, it cannot be said that he has violated the law to attract Section 112 of Customs Act, 1962. Sub-clause (a) of Rule 112 of Customs Act requires a conscious knowledge of the offender in relation to the commission or omission of an act rendering the goods liable to confiscation or if he abets the doing or omitting such an act, or acquires possession of offending goods, he cannot go out of purview of Section 112 of the Act and penalty is imposable. Similarly, sub-clause (b) of Section 112 of the Act also require conscious knowledge of an offender who is concerned in carrying or removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any offending goods which he knows or has reason to believe that the same is liable to confiscation under Section 111 to be liable to penalty. There is nothing conscious knowledge of the appellant came to record demonstrating his intention to cause fraud against Customs as apparent from para-27 of the adjudication order. Appellant had also no deliberate intention to misdeclare the content in the container. Therefore, there shall be no penalty against this appellant - Decided in favour of assessee.
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2014 (12) TMI 984 - CESTAT MUMBAI
Revocation of suspended CHA License - illegal import and misdeclaration of the value of the goods without obtaining necessary authorization from the importer - violation of Regulation 13(a), (d) and (n) of CHALR, 2004 - Held that:- On perusal of the impugned order, we find that the learned Commissioner has held that the importer has filed blank papers and give ICE to some other person to import and he was not having any knowledge of the importation of the goods. On the contrary, the learned Commissioner has not given any findings on the production of the original authorization issued by the real importer and he has not doubted the signatures on the documents. In these circumstances, we hold that the appellant was having proper authorization for clearance of the impugned consignments. As the charge under Regulation 13(a) is not proved consequently, the charges under Regulation 13(d) and 13(n) are also not proved. Therefore, we set aside the impugned order and allow the appeal by restoring the operation of CHA licence No. 11/617. - Decided in favour of appellant.
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2014 (12) TMI 983 - CESTAT MUMBAI
Refund claim of SAD - Notification No. 102/2007-Cus., dated 14-9-2007 - failure to show that burden of duty has not been passed on – Held that:- appellant produced necessary C.A. certificate along with cost sheet as required under Circular No. 16/2008-Cus., dated 13-10-2008. The appellant has also specifically written on the invoices under which the goods were sold, that the credit of additional duty of customs is not available. The C.A. certificate specifically shows that the amount of refund is shown in the account books as amount due as a refund of additional customs duty – Decided in favour of assesse.
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2014 (12) TMI 942 - DELHI HIGH COURT
Detention order passed under Section 3(1) (i) & 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Attempt to smuggle red sanders - Commission of an offence under Section 132, 135(a), 135(b) and 135(c) of the Customs Act, 1962 - Held that:- There was unexplained delay in passing of the detention order. After the alleged seizure of red sanders from the possession and custody of the detenue on 28/29.09.2013 and conduct of investigation, the complaint was filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus, the investigation was complete by the said date. - detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014
After the detenue was granted bail on 25.02.2014. Although the Central Screening Committee had considered the proposal for preventive detention, and approved it on 12.02.2014, the Detaining Authority filed for cancellation of bail rather than passing the detention order to prevent the detenue from carrying out such prejudicial activities. Further, there are no valid reasons disclosed by the respondents as to why the detention order was passed only on 25.07.2014, i.e. after about 5 months of grant of bail when the proposal was approved by the Central Screening Committee on 12.02.2014.
The Detaining Authority even delayed the execution of the detention order passed on 25.07.2014. The detenue was served with the same only on 13.08.2014 i.e. after about 19 days. It is evident from the facts of the case that the detenue had been available all along; rather he even attended the hearing in the prosecution case on 04.08.2014, when he could have been served with the detention order. The respondents have not disclosed that any attempt was made to serve the detention order soon after it had been made. It is not the respondents case that the detenue was avoiding service of the detention order. In fact, the same was served upon him at his residence. - The purpose of a detention order is preventive in nature and not punitive. Therefore, there must be strict compliance of the procedural safeguards in every case of preventive detention.
Detenue appeared in the Court of CMM, Jaipur on 04.08.2014. There is absolutely no explanation offered as to why the detention order was not served upon him on the next date. The respondents have themselves tendered in Court a time chart showing the chronological sequence of events in respect of the detenue. In this chronological chart at sl. No.108, it is disclosed that on 01.08.2014, a letter was written by SA to DGP Rajasthan with a copy to the Ministry, informing that if the detention order has not been executed till then, the same could be executed against the detenue on 04.08.2014 when he had to appear before the CMM, Jaipur. In this background, the failure of the respondents to serve the detenue with the detention order on 04.08.2014 is, in our view, fatal.
The service of GoD and the RuD is a constitutional right and communication of the same has to be made within the prescribed period to enable the detenue to make a representation. Only in cases where there are exceptional circumstances does the law permit extension from the prescribed period of 5 days upto 15 days. In the present case, the so called exceptional circumstances furnished by the respondent have been set out herein above. In our view, the same cannot, under any circumstance, be classified as "exceptional circumstances". Admittedly, the detaining authority was informed of the execution of the detention order on 14.08.2014. Merely because the ADJ (COFEPOSA) was then on Kolkata for attending a hearing before the Advisory Board in another matter cannot be an excuse for the detaining authority in not taking steps for service of the GoD and the RuD upon the detenue at the earliest and positively within the period of 5 days. It is not the respondents case that apart from the ADJ (COFEPOSA), there are no other officers working in the office of the detaining authority. The failure of the executing authority to intimate the sponsoring authority of the detention of the detenue on 13.08.2014 cannot be cited as an excuse to defeat the fundamental rights of the detenue.
With regard to delay in furnishing of the Hindi translation of the RuD is concerned, we may observe that the respondents have pointed out that on earlier occasions, the detenue had addressed letters in English and even stated that he can read, write and understand English language. Thus, it appears that there is a real controversy as to, whether or not the detenue bonafidely required translations of the GoD and the RuD to be able to make an effective representation. We do not propose to get into this aspect in the light of the aforesaid discussion, since the detention cannot be sustained on account of serious infirmities - firstly, on account of passing of the detention order; secondly, on account of delay in execution of the detention order, and; thirdly, on account of delay in service of the GoD and the RuD upon the detenue post the detention. - Decided in favour of assesse.
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2014 (12) TMI 941 - CESTAT KOLKATA
Waiver of pre-deposit - Penalty u/s 112 - Discharge of duty liability on quantity of fuel remained in the air craft as unused - Held that:- Fuel that was procured in India and present in the aircraft at the time of its departure from Kolkata Airport for foreign trip, ought to be deducted from the total quantity of fuel found at the time of its return, from the foreign trip. In principle, there is no dispute, as the Commissioner has recorded it in the impugned order. The grievance of the appellant is that even though all the records were produced before the Ld. Commissioner alongwith the C.A. certificate, no finding has been recorded on the same, before confirming the demand. The Commissioner has confirmed the demand only on the ground that they could not produce invoices of fuel procured in India and also the fact that they could not show that they have not claimed rebate/ draw back against the exports. The work sheets and C.A. Certificate produced by the Appellant need to be considered/examined and from the finding of the Commissioner, we do not see any such discussion. Accordingly, in our opinion, the appeal need to be remitted to the adjudicating authority for deciding the issue afresh. Also, we find that the Revenue has also filed Appeal against the same order of the Ld. Commissioner. This Tribunal has consistently, in similar situation, remanded the case, where both the Revenue and the assesse are in appeal against the same order. In the result, the impugned order is set aside and the Appeals are remitted, with the consent of both sides, to the adjudicating authority, for deciding the issue afresh, after taking into consideration all evidences that have been produced by the appellant company before us as well as placed earlier during the course of adjudication proceedings; and also the grounds raised by the Revenue in their Appeal. - Decided in favour of assessee.
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2014 (12) TMI 940 - CESTAT MUMBAI
Denial of refund claim - Unjust enrichment - Availment of the benefit of customs duty under Notification No. 64/88-Cus., dated 1-3-1988 - Confiscation of goods - redemption fine - Held that:- there is no finding recorded by the Revenue that the assessee has passed on the burden of duty to anybody else. In view of the facts admitted in the impugned order, I find that the appellant has used the machinery for their own use. Secondly, on the ground of non-filing of the requisite original document, these are only meant for verification of the refund claim. From the order of the learned Commissioner of July, 2009, it is admitted fact by the Revenue that the appellant had deposited ₹ 5,23,039/- in pursuance to rejection of his claim for exemption under Notification No. 64/88-Cus., which was finally allowed by the said order in July, 2009 and adjustment of duty, etc. was done from the amount of the said deposit. It is also observed in the order in favour of the appellant that “balance amount to be refunded to importer on the basis of application to be made by the importer to the proper officer”. In the facts and circumstances, there is nothing else to verify in law except the doctrine of unjust enrichment, which I hold is not applicable under law and facts and circumstances of the case. - Decided in favour of assessee.
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2014 (12) TMI 939 - CESTAT MUMBAI
Personal penalty u/s 112 - allegation of abetting the importation of contraband goods - contravention of the provisions of Section 111(a), (f) and (j) of the Customs Act, 1962 - Held that:- The role of Shri Kashyap J. Badekha is limited by introducing importer to Shri Arif Patel for clearance of the goods and to help the importer to get IEC. He has nothing to do with the import of contraband goods. We further find that the role of Shri Arif Patel was only for the clearance of the goods and for the clearance of the earlier consignment, nothing has been proved against the appellant, that he was having no knowledge of the modus operandi of the importation of the contraband goods by replacing aluminium scrap. Further, in this case the container was intercepted at Bombay port itself and it was opened and the appellant came to know about the container with contraband goods only after examination. In these circumstances, the appellant was not having any knowledge of importation of contraband goods by the importer. As per Section 112A of the Customs Act, 1962, the penalty can be imposed on the person who act of aiding and abetting the importation of contraband goods. As discussed above, there was no role of the appellant in aiding and abetting the importation of contraband goods. Therefore, penalties under Section 112(a) of the Act are not imposable on the appellants. - Decided in favour of appellant.
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2014 (12) TMI 938 - CESTAT MUMBAI
Rectification of mistake - Revocation of CHA license - Fraudulent export under Buy Back System were affected - Availment of excess ineligible Drawback - Held that:- appellant has not disputed that the clearance of the impugned goods has been conducted by Shri Sumit V. Ghatkamble. It is also an admitted fact that Shri Sumit V. Ghatkamble was not having a customs pass. When a person is not having a customs pass and is a trainee employee as contended by the appellant, in that situation, the clearance were conducted by Shri Sumit V. Ghatkamble was within the knowledge of the appellant. These facts are also admitted by Shri Sumit V. Ghatkamble. It is also an admitted fact that the work has been brought by one Shri Mahesh Pande to Shri Sumit V. Ghatkamble to whom the appellant has allowed to use their CHA licence for some consideration. Therefore, the observation made by the adjudicating authority in the impugned order that “I find that no such permission has been obtained and that Shri Sumit V. Ghatkamble was not holding customs pass in the name of charged CHA while undertaking customs clearance of the subject export goods under the ten shipping bills of M/s. Leevon Overseas. Therefore, the charge under Article 12 has been proved against the appellant is beyond doubt” is not correct.
The appellant has authorization from the exporter for undertaking the transactions. He has also obtained all the documents required for filing of the shipping bills and other export documents. The check-list has been prepared by the appellant’s own employee and preliminary verification of the existence of the exporter has also been undertaken, it does not mean that the CHA licence has been sub-let. The examination of the goods is a function to be undertaken by the Customs Officer. Merely because thee CHA or its employee was absent during the examination, it does not mean that the CHA licence has been sub-let. Following the precedent decision we set aside the impugned order revoking the CHA licence No. 11/499 - Decided in favour of appellant.
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2014 (12) TMI 900 - CESTAT BANGALORE
Appropriate forum to be High Court or Tribunal - Direction to be made for implementation of Final Order by Tribunal or not - The Tribunal had earlier taken a view that the assessee is eligible for the benefit of Notification No. 21/02 – Held that:- If a Statutory Authority does not implement the order of the Tribunal, the remedy does not lie in coming to Tribunal again - the remedy lies in approaching jurisdictional High Court by filing a writ petition – Tribunal cannot order the authority implementing the matters relating to food adulteration and direct that authority to allow the consignment to be imported, when they take a stand that according to the Act, such a consignment cannot be allowed to be imported - once the order is passed by this Tribunal, the Tribunal becomes functus-offficio – assessee have failed to make out a case for interference – Decided against assessee.
Rectification application – Typographical errors – Held that:- Assessee earlier pointed out three typographical errors - however, during the hearing the assessee submits that there is one more error which has not been mentioned in the application – thus, assessee is given more time for going through the order and find out more typographical errors if any and submit one application.
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2014 (12) TMI 899 - CESTAT MUMBAI
Determination of assessable value of goods - inclusion of BU fees and legal and professional fees paid by the appellant - Held that:- The impugned orders do not specify, under which clause of Rule 10 (1), the service charges are includible in the assessable value of the goods imported. It would be relevant at this juncture to peruse the said rule 10 of CVR, which reads as under. Clauses (a) to (d) of Rule 10(1) have no application to the facts before us as they relate to totally different situations and operate in different fields. If at all, only clause (e) would be relevant. The crucial factor for application of the said clause is that the payment should have been made as a condition of sale of the goods imported. There is nothing in the two agreements stipulating such a condition. While the service agreement is for rendering of certain management consultancy services, the secondment agreement is for deputation of staff. These have nothing to do with the import of raw materials. There is also no restriction placed on the appellant that the raw materials should be procured only from the related foreign entity and from nobodyelse. In the absence of any nexus, even remotely, between these two agreements and the import of raw materials, we do not find any justification whatsoever to relate the payments made for the services received to the value of the goods imported. In the case of allegation of under valuation, it is for the Revenue to lead evidence which has not been done in the instant case. - Decided in favour of assessee.
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2014 (12) TMI 898 - CESTAT KOLKATA
Import of goods as cotton polyester fabric, died oven fabric of cotton - Classification of goods - Classification under CTH No. 521131.90 or CTH 521142.00 - Confiscation of goods - Misdeclaration of goods - Held that:- There is no findings of the Commissioner on the issue whether the assessment was provisional. We also find that the grievance of the Appellant of re-testing of the samples has not been acceded to by the adjudicating Commissioner. Commissioner in his order has merely observed that there is no need to refer the sample to any other laboratory for further testing as the test report of the departmental Chemist are to be preferred to opinion of outside agencies while classifying a product. We do not endorse this view of the ld. Commissioner, especially as the Appellant had challenged the test report of the Customs House Laboratory. Appellant has taken the plea that they had requested for assessment under “First Check” and therefore there cannot be intention to evade duty. - as the sample was not re-tested, the remnant sample if any should be sent to the CRCL, New Delhi after following proper procedure and a copy of the said report should be supplied to the Appellant before deciding the case - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 897 - CESTAT MUMBAI
Import of Stainless Steel Coils & Sheets under DEEC Licences - allegation of diversion of diverting the said S.S. Coils & Sheets to various places in Chennai - validity of The physical inspection of the aforesaid detained goods - Held that:- While drawing sample by M/s. Geo-chem Laboratories the appellant had written a letter to the customs to remain present for taking the samples but the departmental officials did not remain present for drawing the samples. Moreover, the manufacturer/supplier of the impugned goods has stated that these goods are considered as scrap from their international classification. Therefore, they were sold to the appellant as third choice material. The said statement of the supplier has not been controverted by the Revenue.
Therefore, in this case as Revenue opted not to remain present while drawing samples by the private lab, M/s. Geo-chem Laboratories and no counter to the supplier’s certificate was adduced in the impugned order. Further, we find that no cross-examination of the examiners of IIT, Mumbai was granted. In these circumstances, benefit of doubt goes in favour of the appellants - inspection report of IIT, Mumbai is not acceptable. Therefore the description given by the appellant is accepted. Accordingly, impugned order is set aside - Following decision of Mehta Steel Corporation [1998 (11) TMI 587 - CEGAT, MUMBAI] - Decided in favour of assessee.
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2014 (12) TMI 896 - CESTAT BANGALORE
Import of goods - Non affixation of RSP - under-declaration of RSP - Revenue is seeking stay since if the order is implemented, the respondent will be eligible to get the TVs released - Held that:- Non-affixing of RSP on some of the TVs would not render the goods liable to confiscation since according to Foreign Trade Development Rules, such RSP can be affixed before clearance. This issue was not contested when this was pointed out by us - declaration of RSP is not mandatory and there cannot be contravention of provisions relating to valuation and liable to confiscation under Section 111(m) for misdeclaration of RSP. The law requires value to be declared for the determination of Basic Customs Duty (BCD) and for calculation of Additional Customs Duty (CVD) the value has to be arrived at based on the value declared for BCD. That being the position having accepted the value declared for the purpose of BCD, value for the purpose of RSP separately could not have been determined. This is a highly complicated legal issue and in the absence of any contrary decision and since we find the decision to be logical at this stage, we are not in a position to grant stay on this ground. Since affixing of RSP before the goods reached the landmark of India is not mandatory, confiscation under Section 111(d) also prima facie is not sustainable.
Rule 28A of the Rules provided for filing an appeal and seeking stay against pre-deposit of duty demanded and penalty. The rule does not cover appeals filed by the Revenue at all. Since the stay application is not covered by the relevant rules at all, on this ground also the stay application has to be rejected - Stay on release of goods denied. - Decided against the revenue.
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2014 (12) TMI 895 - CESTAT MUMBAI
100% EOU - De-bonding - Depreciation on capital goods - whether depreciation can be allowed on the capital goods imported under Notification No. 153/93, though the notification does not provide specifically for the same, prior to 2003, most of the notifications issued under the Customs Act, did not provide for depreciation norms when the capital goods were allowed de-bonding - Held that:- C.B.E. & C. issued Circulars right from 1994 onwards allowing depreciation on capital goods at the time of de-bonding. For instance vide Circular No. 314/19/94-FTF, dated 2-9-1994, the rate of depreciation on capital goods at the time of de-bonding of entities working under 100% EOU scheme was prescribed at the rate of 5% per quarter in the first two years and 4% per quarter for the next two years subject to a maximum of 70%. The said norms were modified vide Circular, dated 11-4-1997, wherein the depreciation norms were changed to 7% per quarter in the first year, 6% per quarter in the second year and 5% per quarter for the third year subject to maximum of 70%. Later on vide Circular No. 49/2000, dated 22-5-2000, the norms were further liberalized and the maximum amount of depreciation was permitted at 90% for a period of 8 years and for computer and computer peripherals, accelerated depreciation was allowed. Later on these depreciation rates were incorporated in the notification itself and Notification No. 52/2003, dated 31-3-2003 provides for depreciation norms in para 4 of the Notification itself for capital goods other than computer and computer peripherals and computer and computer peripherals separately.
Similarly, Notification No. 22/2003-C.E., dated 31-3-2003 provides for depreciation on capital goods procured independently. Thus from the circulars issued by C.B.E. & C. from time-to-time, it is clear that depreciation has to be allowed in respect of the capital goods, from the date of installation/use of capital goods till the date of de-bonding. Similar provisions exist in respect of domestically procured capital goods also. Therefore, the finding of the adjudicating authority that the appellant is not eligible for depreciation on capital goods is completely contrary to the express provisions of EXIM Policy as also the provision of Notification Nos. 52/2003-Cus., dated 31-3-2003 and 22/2003-C.E., dated 31-3-2003 and Boards Circulars issued from 1994 onwards. Therefore, the said order cannot be sustained in law. In view of the above, the matter has to go back to the adjudicating authority for fresh consideration for determining the quantum of duty which the appellant is liable to pay at the time of de-bonding by taking into account the appellant’s entitlement to depreciation on the capital goods sought to be de-bonded in terms of the rates prescribed under Notification No. 52/2003-Cus. and 22/2003-C.E. from the date of installation/putting to use of the capital goods till the date of de-bonding. - Decided in favour of assessee.
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2014 (12) TMI 861 - CESTAT MUMBAI
Denial of refund claim - effective date of change in the rate of duty on export goods - Notification No. 77/2008 dated 13/06/2008 - Held that:- In respect of six refund claims on which also the respondent has discharged export duty liability, Revenue hadsuo motu sanctioned refund without taking the ground that the original assessment had not been challenged. The only ground taken in the Assistant Commissioner's order for refusing the refund in respect of two shipping bills was Notification 77/2008 dated 13/06/2008 is effective from the midnight of 13/06/2008. It is a settled position in law that a Notification issued on a particular date takes effect from the said date unless otherwise specified in the said Notification. In the present case, there is no other date specified in the Notification as to the date of its effect. Therefore, Notification 77/2008 dated 13/06/2008 is effective from 00 hours of 13/06/2008. Since 'Let Export Order' has been given on 13/06/2008, the rate of duty relevant for assessment would be the rate prevalent on 13/06/2008. Consequently, the respondent would be eligible for the benefit of the said Notification. In these circumstances, we do not find any infirmity in the order passed by the lower appellate authority.
Revenue cannot at the same time take the view that in respect of six refund claims which they had sanctioned, the assessment order need not be challenged and the party would be entitled for the refund whereas in respect of two shipping bills only, the question of non-challenging of assessment order arise. In any case, this was not the ground on which refund claim had been rejected. Revenue has not challenged the sanction of six refund claims by the original refund sanctioning authority. Therefore, they cannot be found to entertain a different ground for rejection of refund claim in respect of two refund claims alone. - Refund granted.
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2014 (12) TMI 860 - CESTAT NEW DELHI
Penalty u/s 112 - Confiscation of goods - High toxic goods - Commissioner upheld redemption fine and penalty - Held that:- No merit in the observation of the Commissioner (Appeals). Merely because there was a checking clause by quality surveyor, the same does not lead to indicate any malafide on the part of the importer. Further, we have to keep in mind that quality inspection and certification is done at the exporter’s end and the importer in India has no hand in the same. Further, it is also on record that waste paper was also in the nature of road sweeping as also toxic plastic substance. In the absence of any evidence on record to reveal that the appellant was a party to the presence of such plastic contents in the consignment of waste paper, the Revenues finding are based upon assumption and presumptions for which the appellant cannot be penalized. Inasmuch as the appellant is not interested in clearance of the goods, we set aside the penalty imposed upon him by modifying that part of the impugned order only - Decided in favour of assessee.
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2014 (12) TMI 859 - CESTAT MUMBAI
Stay application - Recovery of incineration charges of the waste oil contained in 39 containers - Held that:- Tribunal granted stay in respect of dues adjudged namely, duty, interest and penalty. There is no provision for grant of stay under Rule 41 of the CESTAT (Procedure) Rules, 1982. In the present case, the issue relates to recovery of incineration charges and there is no provision under the Custom Act to stay recovery of such charges. Further, the recovery is sought to be made in terms of the Apex Court order. Therefore, this Tribunal has no jurisdiction, whatsoever, to deal with this matter - Decided against the assessee.
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2014 (12) TMI 814 - CESTAT MUMBAI
Waiver of pre-deposit - appellant submits that there is no quantification of any duty liability in the impugned order and, therefore, the appellant is not required to make any pre-deposit - Held that:- As per the amended provisions, the appellant is required to deposit 10% of the duty, in case where duty or duty and penalty are in dispute or penalty where such penalty is in dispute, in pursuance of the decision or order appealed against. The meaning of the expression “in pursuance” is “that which follows” or “in consequent upon a thing”, “a consequence”. Therefore, if as a consequence of the order, duty liability arises, pre-deposit of 10% of the duty liability has to be made before an appeal against the order can be considered.
In pursuance of the order of the appellate authority dated 03/06/2014, the value has to be re-determined taking into account the difference in the commercial levels between imports made by the appellant and identical imports made by others. On account of such re-determination, there may be liability to pay additional duty which has not been quantified and discharged. It is not the case of the appellant that in pursuance of the above order there would not be any differential duty liability. From a plain reading of the amended Section 129E of the Customs Act, 1962 to consider an appeal at the second appellate stage against an order of the lower appellate authority, 10% of the duty or penalty arising in pursuance thereof has to be pre-deposited. In other words, the law envisages that the pre-deposit has to be made. This mandate of law cannot be wished away. Therefore, the applicant is directed to approach the adjudicating authority for re-quantification of the duty liability in terms of the lower appellate authority's order and if they are still aggrieved, to come before this Tribunal, after making pre-deposit of the difference of duty so determined. - Decided in favour of assessee.
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2014 (12) TMI 813 - CESTAT KOLKATA
Import of marble slab - claim of exemption from Basic Excise Duty and SAD under Notification 85/98-Cus dated 05.11.98 as amended by Notification No.41/2002-Cus dated 12.04.2002 and Notification No.40/2002-Cus dated 12.04.2002 - Demand of differential duty - Undervaluation of goods - Confiscation of goods - whether the imported goods were ‘polished marbles’, arising out of manufacturing process undertaken in the factory premises of the exporter in Nepal or the ‘ rough marbles’ - Held that:- Commissioner has not given his findings on the various issues raised and discussed and therefore, the same is non-speaking order and accordingly, we are of the opinion that the matter should be remitted back to the ld.Adjudicating Authority for fresh adjudication after giving his categorical findings on each of the issues raised above. It is made clear that an adequate opportunity of hearing should be granted to the Appellants and copy of the test memo/trade opinion, the seizure memo and any other relied upon documents should be furnished to the Appellants before deciding their case. All issues are kept open and both sides are at liberty to produce evidences in their support. - Decided in favour of assessee.
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2014 (12) TMI 812 - CESTAT MUMBAI
Valuation of goods - Export of Porcelain Mugs - Inflated value of goods - claim of higher export incentives - main contention of the appellants is that the goods exported by them are branded and tailor-made as per the requirement of the buyer in U.K. and obviously such goods would fetch higher price - Held that:-If the goods are tailor-made the value may be higher but the question is which value. In our opinion, the ARE-1 value itself will become higher. This reasoning will not increase the FOB value to 400 - 500 per cent of ARE-1 value. This factor is irrelevant to explain increase in FOB value from ARE-1 value. As far as the branded goods are concerned, it may not increase the ARE-1 value. By branding, the retail price of the goods may increase but would not affect the purchase price of the buyer from the manufacturer as the brand is that of buyer and not that of manufacture. We also note that no evidence whatsoever has been produced by the appellants to support their contention that the goods were tailor-made and were made of special designs and no such correspondence was produced to support their contention.
The fact that earlier, based upon the market enquiry, the declared value was accepted is of no consequence. In fact, the appellants should have produced these documents to the customs authorities before finalization of those 14 shipping bills. It is a case of concealment of vital documents from Customs authorities and producing some other documents that the value was accepted, the appellants cannot be allowed to take benefit of their wrong deeds. We, therefore, reject the appellants’ contention.
In view of the overwhelming evidence found during the search of the appellants’ premises, we have no doubt that the FOB value declared was not the actual transaction value/FOB value but were highly inflated for claiming DEPB benefits or for bringing in illegally obtained foreign exchange. - Decided against the assessee.
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