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Customs - Case Laws
Showing 61 to 80 of 154 Records
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2014 (12) TMI 811 - CESTAT NEW DELHI
Advance Authorisation - import raw sugar under actual user condition - ton-to-ton or grain-to-grain basis - Export of sugar without release order from appropriate authority - According to Revenue such failure resulted in violation of law - plea of appellant was that it was an actual user of imported goods and the export being done on “grain-to-grain” basis, there was no violation of law - Held that:- When the advance authorisation was issued that was subject to the condition as has been quoted herein before. There was no indication therein that the authorisation was subject to the condition of “grain-to-grain” basis. But the Appellant misconceived such proposition while it was allowed to operate under actual user scheme and under “ton-to-ton” basis only. The JDGFT in terms of a Policy Circular No. 1 (RE-2010)/2009-14, dated 7-9-2010 addressed to all regional authorities informed that export of sugar on ton-to-ton basis should not be allowed without release order from Directorate of Sugar against authorisation issued from 17-2-2009 to 30th September, 2009 for import of sugar. The appellant misconceived the intent of this circular to submit that it has operated under “grain-to-grain” basis and not under “ton to ton” basis. Further the appellant misconceived that its advance authorisation being issued in 2005, there is no embargo on the appellant to export sugar without release order.
No licence was given to it to operate under grain-to-grain basis as is clear from the letter of DGFT. Appellant also misconceived that signing of the bond, etc. exonerated it from operating under “ton-to-ton” basis. There was further misconception by it that the bond executed by the appellant required recovery of the duty element in terms of Notification No. 93/2004-Cus., dated 10-9-2004 in case of non-fulfilment of export obligation. It was also pleaded that the appellant operated under actual user scheme. All such pleas are irrelevant and appellant was not an innocent but deliberately violated condition of advance authorisation. It may be stated that when the appellant was categorically found to have violated the export norm as has been stated by the Directorate of Sugar in its letter dated 23rd June, 2011, the inescapable conclusion that may be drawn is that 2,496 MT of sugar exported by the appellant was without release order and in contravention of the law. - Penalty u/s 114 and 114 AA imposed on assessee - However, penalty upon General Manager is reduced - Decided against the assessee.
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2014 (12) TMI 810 - CESTAT MUMBAI
Waiver of pre deposit - Import of measuring tapes imported - levy of anti-dumping duty - misdeclaring the country of origin and undervaluation of goods - Held that:- There is no direct evidence available in the record showing that the goods under import are of Chinese origin. No enquiry has been made by the Customs authorities through the Consulate at Hong Kong to ascertain whether ZOOM brand measuring tapes are manufactured in China. Though the appellant’s claim of Malaysian origin of M/s. Adikem Petangor SDN BHD stands disproved, it is to be noted that there are imports of the same brand by the appellant himself from M/s. Honwills Holdings (M) SDN BHD and the Malaysian Chamber of Commerce has certified that measuring tapes of ZOOM brands is a product of Malaysian origin.
Further, the container track record also shows that the container which was detained, in which the appellant imported the goods, were loaded at a Port in Malaysia and not elsewhere. The traders who stated before the Customs authorities that the goods were of Chinese origin have admitted that the transactions were only paper transactions and they were not the actual purchasers of any goods from the appellant. Further they have also, during the cross-examination, gone back on their statements and have confirmed that the statements were recorded as per the dictations of the investigating agencies. Appellant has also made a pre-deposit of ₹ 2.09 crore as against the demand of ₹ 4.8 crore. - Prima facie case is in favor of assessee - Stay granted.
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2014 (12) TMI 809 - CESTAT MUMBAI
Valuation of goods - Enhancement of value of goods - Inclusion of royalty amount - Held that:- As no royalty or value of any amount over and above the invoice price has been paid by the appellant for finished goods and capital goods to the related supplier, and there is no finding of the Adjudicating Authority that the price of the said goods have been influenced being a related person. Therefore, we hold that the loading of 12% on capital goods and finished goods is incorrect. - As per the agreement, the appellant are required to pay the licence fee @ 12% on the net invoice amount of all products manufactured and sold with the trade-mark which clearly means that the licence fee is being paid by the appellant for use of the trade-mark for manufactured goods. There was no condition of sale that the appellant is required to pay this royalty on the imported goods.
Inclusion of royalty paid on import of raw material - Held that:- As per the agreement, the appellant are required to pay the licence fee @ 12% on the net invoice amount of all products manufactured and sold with the trade-mark which clearly means that the licence fee is being paid by the appellant for use of the trade-mark for manufactured goods. There was no condition of sale that the appellant is required to pay this royalty on the imported goods.
Royalty paid by the appellant @ 12% on the sale value of the manufactured goods is not required to be loaded on the invoice price of the raw material.- Decided in favour of assessee.
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2014 (12) TMI 772 - CESTAT MUMBAI
Import of Anchor-Handling Tug/Supply Vessel (AHTS) - Classification - Rate of duty - Inclusion of freight value @20% and insurance amount @1.125% to the goods - Held that:- In view of the classification of the vessel by the Indian Register of Shipping as a ‘supply vessel', which is the competent authority for issue of certificate of class of vessels in India, and also in view of the Chartered Engineer's certificate issued at the time of importation, there is merit in the appellant's contention that the vessel would merit classification under CTH 8901. We also find that the American Bureau of Shipping has also classified the vessel as a ‘supply vessel'.
Even if the vessel has a capacity to do anchor handling, even then it would remain as a supply vessel as anchor handling feature is only as an additional facility and would not take away the vessel from the scope of a cargo vessel or a vessel which can transport persons.
Valuation - Held that:- As regards the re-determination of value, we find that the Commissioner has adopted a rate of 21.125% of the cost towards freight and insurance. The appellant had given details of the expenditure incurred by them for the transport of the vessel from Dubai to India. In such a situation, the Commissioner could not have added freight and insurance @21.125%. Since the vessel had come on its own motion, only the actual cost of transportation incurred should have been added for determination of assessable value.
As regards the confiscation and imposition of penalty, we do not find any reason for the same. The vessel was examined by the Customs Officers along with a Chartered Engineer before its clearance was allowed. When the appellant claims a classification under CTH 8901, it is based on its understanding of the subject matter and the same cannot be treated as a mis-declaration as held by the hon'ble apex Court in the case of Northern Plastic Ltd. vs. Collector of Customs & Central Excise [1998 (7) TMI 91 - SUPREME COURT OF INDIA]. In the present case, the vessel was boarded by the Customs officers and was examined. Thereafter, the goods have been cleared accepting the declaration of the appellant. In such circumstances, the question of mis-declaration would not arise at all. Therefore, the wrong classification claimed by the appellant as held by the adjudicating authority, with which we do not agree, cannot be a reason for invoking the provisions of Section 111(m) for confiscating the goods and imposition of fine and penalty on the appellants. Such a unilateral action on the part of the department without any rhyme or reason cannot be sustained in law. - Decided in favour of appellant.
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2014 (12) TMI 771 - CESTAT MUMBAI
Revocation of CHA License - Forfeiture of security - Section 108 of the Customs Act, 1962 - Violation of Regulation 13 of CHLAR - Attempt to smuggle red sanders - Held that:- From the records of the case and also the inquiry officer's report, it is seen that the authority letter issued by M/s. Leed Impex in favour of the appellant is a fabricated one. The proprietor of M/s. Leed Impex Shri Bhujwala Arif Yakub has confirmed to the Investigating authority that his firm has never issued any such letter in favour of M/s. Dhakane & Co. Therefore, the charge against the CHA of acting without an authorisation from the exporter is clearly established. In order to cover up the transaction, a fabricated letter has been produced by the CHA which has been found to be bogus as confirmed by the proprietor of M/s. Leed Impex. Thus the charge of contravention of Regulation 13(a) is established beyond any doubt.
As regards the contravention of Regulation 13 (b) i.e. the CHA transacted the business through a person who was not its employee and who was not authorised to represent the CHA. This is clearly established from the statement of Shri Deepak Sejpal who in his statement recorded under Section 108 of the Customs Act has admitted that he was not authorised to attend the Customs clearing/documentation work and he used the CHA licence of M/s. Dhakane & Co. and it was done with the knowledge of Director Shri Ashok Pandurang Dhakane of the CHA firm. This is also corroborated by the statement of Shri Bala Baburao Jadhav and Shri Vinod Shinde, employees of the appellant CHA firm and therefore, the charge of contravention of Regulation 13 (b) of having transacted the business through unauthorized persons also stands proved.
As regards the third charge of contravention of Regulation 13 (d), it is clear that the CHA never dealt with the exporter or the persons authorised by the exporter but dealt with another person, viz., Shri Deepak Dariyalal Sejpal. Therefore, the question of advising the client to comply with the provisions of the Act would not arise at all. In the light of these evidences available on record it is clear that the relevant provisions of the CHALR 2004 have been violated by the appellant. It is in view of these violations and trying to cover up the violations by the CHA, the licence issued to M/s. Dhakane & Co. has been revoked by the Commissioner. - Following decision of H. B. Cargo Services [2011 (3) TMI 816 - ANDHRA PRADESH HIGH COURT] - Decided against appellant.
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2014 (12) TMI 770 - GOVERNMENT OF INDIA
Duty drawback claim - Failure to produce Cenvat credit non-availment certificate - Since the applicant failed to reply the query within 15 days, claim was made zero and the applicants were asked to file supplementary claims with relevant documents - Supplementary claims rejected by the original authority as ‘time-barred’ - Held that:- The applicant as an exporter was duty bound to rectify deficiencies and reply to query as pointed out by the department and non-compliance of the same rendered their claim liable for rejection. The applicant themselves stated that claims filed in EDI system were zeroed vide the scroll number dated 1812/23-6-2009 and 1813/1-7-2009. So he cannot argue that the said claims are still pending. Applicant was aware of the rejection of claims and the supplementary claim was required to be filed under Rule 15 in time. Further, they admitted that they were advised by the department to file supplementary claim, which they filed only on 25-1-2011 i.e. after lapse of more than 18 months. As such, the supplementary claims filed after lapse of stipulated time limit of 3 months were rightly rejected as time-barred. It has been also pointed out by the department that the applicant by suppressing the fact that their earlier supplementary claims were already rejected, filed fresh supplementary claim on 7-5-2012. This action on the part of the applicant is an attempt of getting illegitimate export benefit which was already rejected. Keeping the whole facts in mind, Government finds that the applicant were rightly held ineligible for drawback claim by treating the supplementary claim as time-barred - Decided against assessee.
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2014 (12) TMI 769 - CESTAT MUMBAI
Commercial propane cleared as liquefied petroleum gases - concessional rate of duty - Classification of goods - commercial parlance test - LPG classifiable under CTH 2711 19 00 or under CTH 2611 12 00 - Notification 4/2006-C.E., dated 1-3-2006 - Entry at serial No. 27 - Held that:- These goods are nothing but gases at the ambient temperature and pressure and are of petroleum origin. However, these gases get liquefied even at the normal temperature but at certain pressure. Such goods are termed as liquefied petroleum gases. Even the Tariff entry further sub-classifies into two categories, viz. liquefied and in gaseous state. Thus, if natural gas is imported or cleared in gaseous form, then it gets classified under 2711 21, but the same goods if imported or cleared in liquefied form, then these get classified under 2711 11.
The term petroleum gases is a generic term and covers a vide range of gases or mixture of such gases within its fold. For example, ethylene, propylene, butylene, butadiene, butane, propane are some of the petroleum gases. Each individual component such as ethylene and other gases mentioned earlier can be separated from the mixture and used for a specific purpose. - liquefied petroleum gases (LPG) is a term which is generic in nature and covers a wide range of petroleum gases which are in the liquefied form. Propane is one of such gas.
Scope of the exemption notification - Held that:- it is clear that the term ‘liquefied petroleum gases’ though not defined in the Notification but is a term used in the Tariff as also other entries in the Notification. Since the Notification does not define the scope of the said term, the scope of the term as envisaged in the Tariff will be applicable. As per our analysis, in the Tariff “liquefied petroleum gases” would cover propane and therefore propane would be chargeable to concessional rate of duty as per the entry in the Notification.
In the ISI Specification, in the beginning it is stated that the term applies to a mixture of certain light hydrocarbons derived from petroleum. Clause 3.1.1 further clarifies that LP gases mainly consist of one or more of the specified hydrocarbons. Propane is one of the specified hydrocarbons. Para 3.1.2 also states that a small quantity of ethane, ethylene, pentane and pentene may also be present in the liquefied petroleum gases. In clause 4, different types of LP gases are mentioned. Commercial propane is specifically mentioned as a type of LP gases. We also note that one of the respondents in the present case is actually using the commercial propane as a fuel in its factory. We do not consider it necessary to go into the various details provided by the respondents from the internet. Suffice to state that these details indicate propane as liquefied petroleum gas. Thus in our view, propane is considered as Liquefied Petroleum Gases (LPG) in trade or commercial understanding.
No basis of stating that LPG is produced by mixing butane and propane in such a way that it meets the specification prescribed for LPG. Even if that is so, the proper course for the Government would have been to include such specification in the Notification. It would have also been appropriate to include the end-use if the intention was to restrict the benefit of concessional rate to LPG used for fuel only. In the absence of such stipulation in the exemption Notification, the benefit of concessional rate of duty cannot be restricted to LPG used as fuel but would be applicable to all types of liquefied petroleum gases falling under Headings 2711 20 00, 2711 13 00 and 2711 19 00. Goods under dispute can be used either as fuel or in the manufacturing process. If used in the manufacturing process, they are entitled to get the credit of duty paid by them. Thus, they do not gain by paying the lower rate of duty. - Decided against Revenue.
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2014 (12) TMI 768 - CESTAT MUMBAI
Imports of high end cars/SUVs - Valuation - Old car or new car - Benefit of Notification No. 21/2002-Cus., dated 1-3-2002 - confiscation under Section 111(d) & Section 111(m) - Held that:- All that the appellant has been arguing that the value should be taken based upon the import price of similar vehicles by the dealers in India. First of all, we find no such invoice has been produced. Even no claim has been made how much will be the value for the vehicles imported by the dealers in India. We also note that dealers would be importing the said car in large quantity and will be storing the cars in their showroom for sale. They will also be spending on advertisement etc. They also provide sale after service. Therefore, these two imports viz. by dealer and individual passengers are not comparable. In any case, since no invoice has been produced for the dealer’s import nor it is stated what should be the correct value, we do not find any merit in the argument of the appellant. impugned order provides details of two Bills of Entry of similar car which were imported around the same time by individuals as in the present case. These details were also given to the appellant vide demand notice and he has not questioned the correctness of the same. We also note that the department has given depreciation for the period 10-11-2007 to 16-7-2008. The department has also decreased the value due to the fact that the impugned car was with 6-speed manual transmission system while in the two invoices it was R-Tronic transmission. - there is no such claim by the appellant that due to some extraordinary reasons they were able to get the car at a cheaper price. - Decided against the assessee.
Old car or New Car - Held that:- DRI approached the local dealers to find out certain details. They informed that the car was manufactured on 10-11-2007 in Neckarsulam, Germany and the car was registered first time on 7-12-2007 in UK. It was also indicated that the said car was repaired on 7-12-2007 on a customer complaint relating to “Q/S/F, window goes up and then drops back down”. At that time it has run 1030 kms. The date of shipment from Felixstowe was on 16-7-2008. We do not see any reason to discard the said details and M/s. Audi Mumbai had provided the said details at the request of investigating officers. - the car was used one. Consequently the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 will not be available to the said vehicle. - Decided against the assessee.
Absolute confiscation of cars - Held that:- the adjudicating authority is required to give option to the owner of the goods or where such owner is not known to the person from whose possession or custody such goods have been seized. The only exception to the said position is in case of prohibited goods under the Customs Act or any other law, for the time being in force. It is true that the cars can be imported. However, these are not freely importable but there are policy conditions for the import of such vehicles. - option will have to be given for redemption as per Section 125 of the Customs Act, 1962 to the owner of the car or where such owner is not known to the person from whose possession or custody such goods are seized.
Disposal and claim for sale proceeds - Held that:- the application of sale proceedings will have to be as per Section 150 of the Customs Act, 1962. The car imported is chargeable to customs duty. The said customs duty has to go to Government Exchequer from the sale proceeds. In view of the said position, the ld. Adjudicating authority may first decide whether the car is available and whether the car is required to be redeemed on payment of redemption fine. Depending upon the factual position, the sale proceeds have to be decided as per Section 150 of the Customs Act along with any case law on the subject.
Levy of penalty - Held that:- it is very clear that the Appellant No. 2 has been importing the car by misdeclaring in the name of different persons and in this case he has imported the said car in the name of Appellant No. 1. We also note that only Appellant No. 2 approached CHA for clearance. In view of this position, penalties imposed under Section 112(a) and 114AA are upheld. The penalties imposed are not excessive. - Decided against the assessee.
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2014 (12) TMI 767 - CESTAT BANGALORE (LB)
Power of adjournment - Choice of three dates for personal hearing in one letter - Adjudication procedure u/s 122A - Violation of principle of natural justice - Held that:- The words “give an opportunity of being heard to a party in a proceeding” in sub-section (1) of Section 122A of the Customs Act, 1962 make it clear that an opportunity of hearing is to be given to a party. The power of adjournment is given in sub-section (2) of Section 122A of the said Act. Proviso to Section 122A(2) has restricted to such adjournment not more than three times. In the present case it is seen from Para 26 of the adjudication order that an opportunity of hearing was given under Section 122(A)(1) of the Act, 1962 and the applicant requested for adjournment by letter dated 13-10-2013. Thereafter as contended by the learned advocate, personal hearing notice was issued by fixing the date at 16-11-2011 or alternatively at 18-11-2011 which would be taken as one opportunity.
The Tribunal in the case of Afloat Textiles (P) Ltd., (2007 (7) TMI 444 - CESTAT, AHMEDABAD) observed that giving a choice of three dates for personal hearing in one letter and seeking of adjournment by the appellant by one month, would not amount to granting of adjournments three times. - Principles of natural justice have been violated by the adjudicating authority, which is in favour of the applicant and therefore, there is no need to look into the other two issues. - Matter remanded back the original adjudicating authority - Decided in favour of assessee.
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2014 (12) TMI 731 - CESTAT MUMBAI
Import of Low Ash Metallurgical Coke/Low Ash Low Phosphorous Coke - Reliability of test reports - Benefit of exemption Notification No. 35/90- Cus - Confirmation of duty demand u/s 28 r.w.s 28AA - Held that:- Goods were imported in July, 1990 and November, 1990. As per the test report furnished by the Chinese supplier and the Testing Agency in Japan, who conducted the test at the behest of the importer, the phosphorous content was found much lower than the 0.035%. The goods were again tested by the Customs laboratory in Goa at the time of importation and as per the Colour Test Comparison method, the phosphorous content was found to be less than 0.035% and the goods were provisionally cleared. After clearances by the customs, the assessee once again got the goods tested by M/s SGS (India) Pvt. Ltd., who also found the samples to be contain phosphorous less than 0.035%.
As against the test reports by various agencies, Revenue wants to rely on the test report of the CRCL, which conducted the test in 1993 almost two years after the samples were drawn. There is nothing on record to show that the samples, which were drawn, were kept in airtight containers or the samples were drawn in accordance with ISI 436 prescribed for drawal and testing of the samples. In other words, there is no evidence adduced by the Revenue to show that the samples were representative and the sample could not have deteriorated with the passage of time. The Chief Chemist who was cross-examined had also accepted that only the samples kept in airtight containers would not deteriorate. However, there is no evidence forthcoming in this regard adduced by the Revenue.
Benefit of doubt has to go to the appellant as the Revenue has failed to discharge the burden cast on it to show that the appellants are not eligible for the benefit of exemption Notification No. 35/90- Cus - demand of customs duty has been confirmed by the adjudicating authority under Section 28 of the Customs Act which is incorrect. If the contention of the department is that the goods were assessed provisionally earlier and they are being finally assessed now, then the duty demand should have been confirmed under Section 18 of the Customs Act and not under Section 28. - impugned order is not sustainable in law - Decided in favour of assessee.
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2014 (12) TMI 730 - CESTAT MUMBAI
Waiver of pre deposit - Rate of duty on export of hot rolled and cold rolled products - Notification No. 66/2008-Cus, dated 10.5.2008 - Exemption from duty as Notification amended by Notification 77/2008-Cus. Dated 13.6.2008 whereby nil rate of duty has been prescribed - Retrospective effect of notification or prospective - Held that:- If the argument of the applicant is accepted, then the increased rate of duty is to be also with retrospective in nature which is not permissible in view of the provisions of Section 16 of the Customs Act. Section 16 of the Customs Act provides the rate of duty and tariff valuation, if any, applicable to the export goods, shall be the rate and valuation in force on the date on which the proper officer makes an order permitting clearance and loading of the goods for export.
Applicant relied upon the decision of the Hon'ble Supreme Court in the case of WPIL Ltd. (2005 (2) TMI 137 - SUPREME COURT OF INDIA), where in view of the policy of the Government to grant exemption to the parts used in the factory, the subsequent Notification was considered as clarificatory in nature. The facts in the present case are not parallel to the facts of the case before the Hon'ble Supreme Court hence the ratio of the above decision is not applicable to the facts of the present case - partial stay granted.
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2014 (12) TMI 729 - KARNATAKA HIGH COURT
Reduction in penalty u/s 114 - Jurisdiction of Tribunal to reduce penalty - Held that:- Imposition of penalty under the Act is not automatic. However, once the conditions which give rise to imposition of penalty exists then the penalty has to be imposed as prescribed under law. At that stage, no discretion is left to the Authorities in the matter of imposing penalty. The law provides that the penalty payable would be not less than equal to the duty payable. Further, the law provides, if the assessee pays the duty with interest within 30 days from the date of the order, then the penalty payable would be 25% of what is imposed. Therefore, the statute provides for the penalty payable and also reduced penalty payable. There is no discretion left either with the authorities or with the Tribunal or with this Court to reduce the penalty. However, the Tribunal, which had no jurisdiction, had proceeded to reduce the penalty from ₹ 59,77,432/- to ₹ 5,00,000/-. Whatever is the reason given by the Tribunal, it is not necessary for us to go into the said question because the question is, whether there is any jurisdiction left with the Tribunal to reduce the penalty. The law on the point is now well settled. Once the authorities decide to impose penalty, no discretion is left in the matter of imposing of penalty except as provided under law. Even the Tribunal also has not been vested with any power to reduce the penalty, which is imposed by the authority as prescribed under law, and therefore, the order passed by the Tribunal reducing the penalty is one without jurisdiction and, accordingly, it is hereby set aside - Decided in favour of Revenue.
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2014 (12) TMI 728 - MADRAS HIGH COURT
Levy of Education cess on Basic Customs Duty which was debited in the DEPB Licence - Exempted goods - Held that:- Ministry of Finance clarified in the proceedings dated 8-7-2004 in D.O.F. No. 334/3/2004-TRU on the specific issue as to whether goods that are fully exempted from excise duty/customs duty or are cleared without payment of excise duty/customs duty (such as clearance under bond of fulfilment of certain conditions) would be subjected to Cess. It was stated therein that since education cess has to be calculated at the percentage on the duty liability, when the goods are fully exempted from excise duty or customs duty, are chargeable to Nil duty or are cleared without payment of duty under specified procedure such as clearance under bond, the question of education cess to be levied does not arise. Having regard to the specific understanding given on the principle of levy of education cess, and the subsequent Circular also issued in Circular No. 5/2005-Cus., dated 31-1-2005 (F. No. 605/54/2004-DBK), we have no hesitation in confirming the order of the Tribunal by dismissing the appeal. - Decided against Revenue.
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2014 (12) TMI 727 - GOVERNMENT OF INDIA
Free baggage allowance - Confiscation of one LCD TV and two litre whisky - One Laptop valuing ₹ 38,300 allowed as free baggage - Attempt to smuggle goods - Repeat offender - Imposition of redemption fine and penalty - Held that:- free baggage allowance is admissible to the applicants. Applicants are entitled for duty free clearance of 2 litres of whisky as per baggage rules. So, the confiscation of one LCD TV and two litre whisky is set aside and same may be allowed to be cleared in free baggage allowance after charging duty on value of goods which is in excess of free baggage allowance of ₹ 25,000/-. The remaining goods i.e. one TV, one litre whisky and 2 Sony FM/AM clock Radio totally valuing ₹ 32,666/- being non-bona fide baggage are liable to confiscation. As such the confiscation of goods valuing ₹ 32,666/- is upheld. The redemption fine and penalty is therefore modified keeping in view the value of confiscated goods - Decided partly in favour of assessee.
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2014 (12) TMI 726 - GOVERNMENT OF INDIA
Illegal sale of confiscated gold - smuggle gold bars and coins - Refund of sale proceeds - applicant has contended that since the goods have disposed of hence duty cannot be collected; that the interest of 9% per annum for the sale proceeds be paid for delayed payment and warehousing charges may be re-fixed - whether the refund has to be paid without deducting the duty as claimed by the applicant or not.
Held that:- In view of judgment in the case of CC, Trichy v. K. Balaganesan [2011 (5) TMI 393 - CESTAT, CHENNAI], applicant’s refund claim for duty portion is rightly rejected by appellate Commissioner. As regards interest claim, Government notes that Section 27A of Customs Act grants interest on delayed refund of duty. In this case amount of sale proceeds are refunded and therefore provisions of Section 27A of Customs Act, 1962 are not attracted. Government also notes that excess warehouse charges of ₹ 18,880/- are already ordered to be refunded - Government do not find any infirmity in the impugned Order-in-Appeal and therefore upholds the same - Decided against assessee.
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2014 (12) TMI 693 - CESTAT MUMBAI
Waiver of pre deposit - Evasion of duty - import of machinery for setting up of a plant to convert the skimmed milk to fermented milk under exemption notification - applicant have misdeclared the description of two consignments with an intention to avail undue benefit of concessional rate of customs duty under Notification 6/2006-CE and that the said importer had imported machinery which worked on the principles of heat exchange and were used for the purpose of sterilization, pasteurisation, incubation and dilution etc., which are excluded from the heading 8434. - Held that:- Plant has number of tanks and number of other machine some of which are interconnected. The plant also has a machine wherein they manufacture plastic bottles from granules and these plastic bottles are stored in plastic bottle storage tank and thereafter used along with filling and sealing machine and the milk is filled in the such bottles and packed. We have also gone through the printout of the correct SPE sheets as also the manipulated SPE sheets which were presented to the customs during clearance of the two consignments. We find that supplier has indicated certain HS code for each of the items. The manipulated SPE sheets had the same specification details but did not have these codes but the HSN Code was 8434 2000 in respect of all the items under the two bills of entry. We also note that the managing director or the Company has admitted the manipulation in his statement under Section 108 of the Customs Act. Shri Anil Choudhary also admitted the manipulation even though both of them have tried to put the blame on each other. We also note that Shri Anil Choudhary later on in email addressed to the managing director abroad has spoken about the manipulation being done and perhaps later on was removed from the service. Similarly, the invoice was manipulated.
Prima facie we are of the view that the applicants have not made out a case for waiver of duty interest and penalties. During the hearing, advocate for the applicant has indicated that the unit is running into loss, though no documents in support of the same were produced. However, keeping in view the facts and circumstances of the case, we direct the appellant to deposit 50% of the duty demanded in cash within a period of six weeks. Further, the Bank guarantee for the 50% of the duty already executed by the applicant will be kept alive till the final disposal of the appeals. On payment of the said amount, there will be stay for recovery of Redemption fine, penalty and interest. While passing the said order, we keep in mind the Hon'ble Supreme Court decision in the case of Dunlop India. - stay granted partly.
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2014 (12) TMI 692 - CESTAT NEW DELHI
Denial of export benefits - Over Valuation of goods - Seizure of documents - Inflation of the export value to the extent of 12.5% on account of commission and had availed undue export incentives on the inflated value. - Held that:- We really fail to understand the objection of the Revenue. - On one hand, it is being contended that no commission was payable as the entire contract between the respondents and their foreign buyers was a direct contract and no Commission Agent was involved. As per the Respondents, the said commissions are not exactly in the nature of the commission interests, the same are in the nature of the reward to the foreign persons, which have held the appellant in various fields and which stands paid to them through their own pocket. This fact reveal that the appellant have received the entire consideration from the one buyer and the export benefits filed on the entire consideration so received without being effected by any payment made by them to the foreign agent. It is clear from the Circular that any commission up to the limit 12.5% is not required to be deducted from FOB value for grant of export benefits. The circular 64/2003-Cus dated 21.07.2003 is fully applicable to the facts of the present case - No merit in Revenue appeal - Decided against Revenue.
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2014 (12) TMI 691 - MADRAS HIGH COURT
DEPB conversion - conversion of free shipping bill into a DEPB Bill - Whether Free Shipping Bill can be converted into DEPB Shipping Bill after export by virtue of proviso to Section 149 of Customs Act, 1962 - Held that:- Section 149 of the said Act deals with discretion of the officer concerned to make such kind of amendment on the basis of the facts and circumstances mentioned therein. Since the claim of the first respondent is to convert Free Shipping Bill into DEPB Shipping Bill and that too on the basis of public notice, wherein certain benefits have been announced, the claim of the first respondent cannot be considered beyond scope of law. Such kind of conversion is permissible on the basis of submission of relevant documents for verification. Therefore, viewing from any angle, the order passed by the CESTAT cannot be considered as incorrect and the substantial questions of law settled in the present Civil Miscellaneous Appeal are not having substance at all and altogether, this Civil Miscellaneous Appeal deserves to be dismissed. - Decided against Revenue.
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2014 (12) TMI 690 - MADRAS HIGH COURT
Penalty u/s 114 - Demand of differential duty - Mandatory penalty - whether the Appellate Tribunal is having power to reduce penalty from 25% to the tune of ₹ 30,000 - Held that:- As per the dictum given by the Hon’ble Apex Court [2008 (9) TMI 52 - SUPREME COURT], imposition of penalty is mandatory. Since the imposition of penalty is mandatory as prescribed in the Act, question of reduction does not arise. Under the said circumstances the reduction given by the Appellate Tribunal is not legally sustainable and further the Appellate Tribunal has not given any proper reason for reducing the penalty and it has reduced the penalty only on the basis of undertaking alleged to have been given by the respondent and therefore the order passed by the Appellate Tribunal is liable to be set aside and the matter is liable to be remitted to the file of the Appellate Tribunal for considering the legal point involved in the present Civil Miscellaneous Appeal afresh and since the matter is liable to be remitted to the file of the Appellate Tribunal, the substantial questions of law formulated in the present Civil Miscellaneous Appeal need not be decided now. - Decided in favour of Revenue.
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2014 (12) TMI 689 - GUJARAT HIGH COURT
Demand of differential duty on subsequent clearance of goods where the provisional assessment in earlier case is pending for finalization - Classification of goods - Classification of coal - Bituminous coal or Steam coal - wrong declaration filed - Held that:- respondents shall not demand duty without final adjudication if the past consignments have been cleared on provisional clearances and shall not raise demand without adjudication when the clearances have been made, otherwise than provisional basis and shall not detain the future consignments merely on the basis of past demands which have yet not been crystalised in law. It is clarified that it would be open for the Department to impose suitable conditions as may be permissible under the law, if the petitioner requests for provisional release. - Petition disposed of.
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