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Customs - Case Laws
Showing 81 to 100 of 154 Records
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2014 (12) TMI 688 - BOMBAY HIGH COURT
Provisional assessment - Adjustment of excess tax - excess payment of duty found in one set of Bills of Entry - High Court admitted appeal against the decision of Tribunal in 2011 (6) TMI 518 - CESTAT, MUMBAI] on following substantial question of law:-
Whether the Customs, Excise and Service Tax Appellate Tribunal is right in law in directing the adjudicating authority to ascertain whether the respondents are required to pay any duty after adjusting the excess duty paid and thereafter decide the issue of unjust enrichment?
Whether the Customs, Excise and Service Tax Appellate Tribunal is right in law in directing the assessing officer at the stage of final assessment to adjust excess payment in one Bill of Entry (i.e. one Provisional assessment) to short payment in another Bill of Entry (another Provisional Assessment)
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2014 (12) TMI 687 - BOMBAY HIGH COURT
Revocation of the CHA Licence and forfeiture of the security deposit - Whether on the facts and in the circumstances of the case, the findings of the CESTAT that proceedings under CHALR, 2004 cannot be initiated in respect of High Seas Sales Agreement executed prior to imports, and charge of diversion of goods is not sustainable is based on no evidence or partly relevant or partly irrelevant evidence and is otherwise perverse and arbitrary? - At this stage the petitioner cannot be denied the benefit of the impugned order [2012 (12) TMI 589 - CESTAT MUMBAI] passed by CESTAT. Therefore, we do not grant the interim stay as prayed for. However, since our attention is invited to the fact that against the order of adjudication dated 14 December, 2007 passed under the Customs Act an appeal is pending before CESTAT, we make it clear that CESTAT will be at liberty to hear and decide the appeal against the said order dated 14 December, 2007 without in any manner being influenced by the findings and observations made in the impugned order dated 9 October, 2012 - Matter remanded back - Decided in favour of Revenue for remand purposes.
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2014 (12) TMI 649 - CESTAT MUMBAI
Valuation of goods - Inclusion of royalty amount - Technical knowhow service - import of parts and components for various compressed air and gas equipments, construction and mining equipments, generators, industrial tools and assembly systems etc. - Rule 10(1)(c) of Custom Valuation Rules, 2007 - Held that:- Royalty is required to be paid only on the sale of the manufactured goods and royalty is not relevant to the import of the components. For arriving the value for calculation of royalty, amongst other elements, cost of standard bought out components and the landed cost of imported components are deducted. The above clause also makes it clear that this method of deduction is adopted even if the procurement of components are made from any source other than the related foreign suppliers. Therefore from the clause referred above, it is amply clear that the royalty is not paid “as a condition of the sale of the goods being valued”. Thus the royalty has nothing to do with the value of the imported raw-materials procured from the related foreign supplier or value of the imported components procured irrespective of origin. In these set of facts, Rule 10(1)(c) of Customs Valuation Rules, 2007 is not applicable.
If the royalty is computed excluding the cost of imported material and is based on the indigenous value addition which clearly shows that the payments made by the appellant for the collaboration and consultancy services has nothing to do with the imports undertaken by the appellants and therefore, the same could not be included in the assessable value of the goods imported under Rule 9 (1) (c) & 10 (1) (e) of the Customs Valuation Rules. - Decided in favour of assessee.
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2014 (12) TMI 648 - CESTAT NEW DELHI
Extension of time for re-export of goods - Duty free import of the goods for repair and re-export - Consignment of alloy steel spanners had been exported out of India - Denial of exemption - Notification No.158/95-CUS dated 14/11/95 - Held that:- the goods which should have been cleared for repair and re-export by the end of January 2012 were cleared in first week of April, 2012. Though the appellant on 04/10/12 had applied for extension of the period by another six months, it is seen that absolutely no decision was taken by the Customs.
Since, the bill of entry has been filed on 14/12/11 and the goods had been presented to the customs for re-export on 27/11/12, in our view the goods should be treated as having been exported within a period of one year and the benefit of notification should be extended as the notification stipulates the re-export within a period of six months period which can be further extended by the Commissioner by another six months and just because the Commissioner in this case has chosen just to sit over the appellant's request for extension and not take any decision, the benefit of the exemption cannot be denied to the appellant on the ground that they failed to re-export within the extended period in terms of the notification. The another plea of the Department is that it is the date of IGM -dated 24/11/11 which has to be treated as the date of import. In our view this plea is not acceptable, as the IGMs can be filed under prior entry system even before the arrival of the vessel and, therefore, the date of IGM cannot be treated as the date of import. It is the date on which the entry inward is granted which has to be treated as date of import, which in this case is not known. - impugned order denying the exemption is not sustainable. The same is set aside - Decided in favour of assessee.
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2014 (12) TMI 647 - BOMBAY HIGH COURT
Penalty on Customs House Agent - Fraud - penalties under Section 112(a) and/or 112(b) - Held that:- Tribunal as also the Adjudicating Authority concluded that it is the appellant who had filed the Bills of Entry in respect of the importers. The importers were transferees of the license. The Customs House Agent has to advise the client and particularly assist in complying with the provisions of the Customs Act and other import regulations/prohibitions. When there was no valid license in the name of the importers, then the Customs House Agent should have cautioned him. Further, the term of license was to expire on 21st November, 1999, yet the Bills of Entry were filed in December, 1999 claiming the benefit of duty exemption under advance licensing scheme. Thus, when no valid license existed in the name of the importers, the benefit could not have been derived and which has been derived with the assistance of the Customs House Agent. Thus the role of the Customs House Agent in this case has been dealt with extensively by both the adjudicating authority and the Tribunal. They have rendered concurrent finding of fact that the Customs House Agent in this case cannot be said to be innocent.
If the importers had misused the facility by obtaining a duplicate license by misrepresentation and fraud, so also, manipulation of documents and with a view to avoid customs duty, then, it cannot be said that the Customs House Agent and its Director were totally innocent or unaware of these acts. - Decided against appellants.
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2014 (12) TMI 646 - BOMBAY HIGH COURT
Interest under Section 18(4) - Delay in sanction of refund - Held that:- In this case the show cause notice dated 7th April, 1995 proposing recovery of duty, imposition of fine and penalty under the provisions of the Customs Act, 1962 as also another show cause notices dated 9th May, 1995 on the same allegations, were adjudicated and withdrawn on 14th November, 1996. It is the department's stand throughout that this does not constitute a final assessment within the meaning of sub-section (2) of Section 18 because it was challenged and the challenge raised by the department was rejected by the final order of the Tribunal on 27th September, 2001. Therefore, we do not see any reason as to how any assistance can be derived from the proceedings and which are in any event of 1995-1997 and before the Directorate General of Foreign Trade. Since the payment of interest was withheld till 8th October, 2003 and released only on 11th November, 2003, we find that even otherwise the direction to pay interest cannot be faulted and the Tribunal was in no error of modifying the order of the Customs (Appeals) in the given facts and circumstances. This additional submission also therefore does not raise any substantial question of law. - Decided against Revenue.
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2014 (12) TMI 645 - DELHI HIGH COURT
Restoration of appeal - Dismissal of appeal by Tribunal - Non compliance of pre deposit order - Did the Tribunal fall into error in declining to restore the appeal dismissed on 1-11-2006 for non-compliance of the previous conditional stay of pre-deposit order - Held that:- Post facto approval to the appellant to receive the amount, was concededly given much later, in 2013. Immediately on becoming aware of the same, an application was moved before the Tribunal to have the appeal restored. It is evident that the receipt of remittances and more importantly the extension of time were factors entirely beyond the appellant’s control. Undoubtedly, the order dated 2-1-2007 passed by the Tribunal achieved finality; at the same time we are of the opinion that in the facts of the case the Tribunal did not cease to have any discretion in the matter and having taken into account these facts could have restored the appeal given that the post facto approval in respect of almost 90% of the amount in question was received in 2013. We are also of the opinion that Lindt Export (2011 (9) TMI 609 - DELHI HIGH COURT) is not an authority for the blanket order that in every case where the order achieved finality the Tribunal is bereft of jurisdiction. We also note that in that case the assessee/appellant had approached this Court feeling aggrieved by the CESTAT order after its appeal met with no success. The assessee carried the matter to Supreme Court, which had rejected its claim. Further more, the order was premised upon entirely different set of circumstances - the adjudicating authority in that case had held that the claim itself was bogus. In view of the above discussion, we are of the opinion that the substantial question of law has to be answered in favour of the appellant and against the Revenue. - Appeal restored.
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2014 (12) TMI 644 - MADRAS HIGH COURT
Imported of computer controlled HTHP yarn dyeing machines along with dye kitchen tank and accessories - Exemption under Notification No. 97/2004-Customs, dated 17-9-2004 - respondent has not claimed benefit of Notification No. 6/2002-C.E. when the respondent has filed Bill of Entry No. 901018, dated 14-10-2005 - Tribunal allowed assessee's claim - Held that:- Authorities have passed the orders in question on the basis of remand order made in [2007 (2) TMI 44 - CESTAT, CHENNAI]. It is the bounden duty of the Department to challenge the same either by way of seeking amendment or by way of preferring an Appeal. But the Department has not done it. Under the said circumstances, the Department is totally precluded from challenging the present Final Order. Therefore, from cumulative reading of the Section 129B to earlier as well as Chapter 15 of the Customs Manual, it is needless to say that the contention put forth on the side of the appellant is not factually and legally sustainable and altogether, the present Civil Miscellaneous Appeal deserves to be dismissed and the substantial questions of law settled in the present Civil Miscellaneous Appeal are not having substance - Decided against Revenue.
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2014 (12) TMI 643 - MADRAS HIGH COURT
Interest on duty drawback claim - Jurisdiction of Tribunal to hear appeal from Commissioner's order on drawback claim - Section 129A(1) of Customs Act - Held that:- Department has paid drawback amount only as per orders passed by the Tribunal and Department has not preferred any appeal. Simply because an appeal has not been preferred by the Department with regard to payment of drawback amount, the Court cannot come to a conclusion that the Department is precluded from raising a point with regard to the orders passed by the Tribunal in respect of payment of interest on drawback amount as per provision of Section 129A of the said Act. Therefore, viewing from any angle, the contention putforth on the side of the appellant is really having attractive force and the common substantial questions of law raised on the side of the appellant are legally sustainable - Decided in favour of Revenue.
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2014 (12) TMI 617 - CESTAT MUMBAI
Confiscation of vessel - Redemtion fine u/s 125 - Fine and penalty - Held that:- It is evident that the charge against the appellant is that they did not file IGM or Bill of Entry when the vessel first arrived at Sikka Port on 14/11/2010. Sikka port is situated in Gujarat and, therefore, offence, if any, has taken place in Gujarat. The Customs Commissioner at Bombay does not have jurisdiction over the Sikka port and, therefore, he could not have issued any show cause notice proposing confiscation and imposition of penalty in respect of an act which was committed beyond his jurisdiction. On this ground alone, the impugned order is liable to be set aside.
Vessel, even if treated as 'goods' were not liable to any Customs duty as the same was exempt from payment of duty under Notification No. 21/2002-Cus. Thus, the total duty implication was nil. Therefore, the vessel could not be considered as 'dutiable goods', in the light of the apex Court's decision in the case of Associated Cement Companies, cited [2001 (1) TMI 248 - Supreme court of India], and the Tribunal's decision in the case of Jay AR Enterprises (2006 (12) TMI 292 - CESTAT, CHENNAI). If the goods are not dutiable, and there is no prohibition in importing oil tankers to India, the provisions of Section 111(f) are not at all attracted. Consequently, the appellant is not liable to any penalty under Section 112(a)(b) of the Customs Act, 1962 either. - Decided in favour of assessee.
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2014 (12) TMI 616 - CESTAT MUMBAI
Refund of excess amount after reduction of penalty from ₹ 5,00,000/- to ₹ 1,00,000/- - 3 years passed but balance amount not refunded - Held that:- It is indeed most unfortunate that the department has not even cared to reply to any letter of the appellant seeking refund consequent to the order of this Tribunal. Therefore, I am constrained to order that the refund be sanctioned within 45 days of the receipt of this order failing which the Tribunal may have to consider contempt proceedings against the sanctioning authority. - Decided in favour of assessee.
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2014 (12) TMI 615 - MADRAS HIGH COURT
Competent adjudicating authority - Power of Tribunal - Remanding back matter - Section 129B of the Customs Act - cenvat credit utilised for payment of duty on removal of goods from 100% EOU to DTA - Held that:- The power of the Tribunal to remand the case back to the Authority would mean the Authority prescribed under Section 2(1), ie., the competent authority. In this case, it is not disputed by either side that the competent Authority is Commissioner of Central Excise. The primary objection before the Tribunal by the appellant on jurisdiction issue is that the competent authority is not the Commissioner of Customs, but Commissioner of Central Excise. - A conjoint reading of Section 129B with Section 2(1) of the Customs Act makes it clear that the order should be passed only by a competent authority who has jurisdiction to pass an order and therefore, the Tribunal, if it found an error in the order passed by an authority, is justified to remand the case back to the competent authority. Section 129B does not restrict the power of the Tribunal to remand the matter back to the competent authority having given a ruling thereon. We find no error in the order of the Tribunal.
Yet another factor which we find in favour of the Department is that the show cause notice was issued by the Superintendent of Central Excise, which Department had jurisdiction to initiate proceedings and the order of adjudication on being set aside by the Tribunal for lack of jurisdiction, the original show cause notice survives and therefore, that has to be adjudicated only by a competent authority in terms of Section 2(1) of the Customs Act. When such being the case, the competent adjudicating authority alone has jurisdiction to adjudicate the issue on the subsisting show cause notice. We find no error in the order of the Tribunal. - Decided against assessee.
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2014 (12) TMI 611 - BOMBAY HIGH COURT
Denial of refund claim - Exemption under Customs Notification No. 21/2002 - Re-export of left over items of goods had to be done before 30 April, 2004 in terms of the Essentiality Certificate issued by Director General of Hydrocarbons - Held that:- The refusal to grant refund in the absence of duty being paid under protest is wholly irrelevant. This is for the reason that the refund claim has been filed within the period of six months from the date of payment of duty. Therefore, the refund claim is in time and protest is irrelevant for grant of refund. Further, the export having taken place almost 10 years also, it is almost impossible to find the original documents. It appears that after filing of the petition, the petitioner had been able to obtain from the C.H.A. a photocopies of the customs attested invoice and the customs attested packing list accompanied by Annexure-II, of the export of the left over spares and consumables exported. Annexure-II sets out the balance quantity of goods not consumed and re-exported in December, 2004. The petitioner submits that the Deputy Commissioner of Customs (Import) passed an order after following the principle of natural justice and in view of the long delay of almost 12 years from the date of import and 10 years from the date of export, the petitioner be allowed to produce the photocopies of the documents under which the left over spares and consumables were exported in December, 2004. - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 610 - MADRAS HIGH COURT
Quantum of penalty & redemption fine - Tribunal reduced both penalty & fine - whether there is discretion vested with the Tribunal to reduce the penalty imposed by the Original Authority under Section 114A of the Customs Act - Import licence issued by the Directorate General of Foreign Trade dated 20-6-1994 was re-validated up to 31-5-1998. During the course of investigation by the Department, clarification was sought for from the Additional Inspector General (Wild Life) in the Ministry of Environment and Forest. In pursuance to such request, the said Authority, by communication dated 21-7-1998, clarified that the respondent/importer was a “Zoo” and the certificate issued by the Deputy Director Wild Life (Protection) was valid. Once again the Department addressed the Member Secretary, Central Zoo Authority on 24-8-1998 to re-examine and clarify whether the importers have been accorded recognition as “zoo” in terms of provisions of Wild Life (Protection) Act, 1972 and the Recognition of Zoo Rules, 1992. It is only thereafter, the Ministry of Environment and Forest, during October, 1998, informed the appellant - Department that after examining the matter in detail, it was decided that the importer was not officially accorded “Zoo Operation Status” and directed that the .import may be treated as “Other Live Animals”. In order to attract penalty equal to the duty determined, there should be a clear finding that the importer had colluded or made a wilful mis-statement or suppressed the facts. Thus, in the absence of any such specific finding rendered by the Original Authority nor any such proposal in the show cause notice, we are inclined to confirm the order passed by the Tribunal reducing the penalty of ₹ 10.00 lakhs - Decided against Revenue.
Entire importation has been handled by the Managing Director of the company and all the correspondences between various Authorities were personally handled by the Managing Director and therefore, he was fully aware that the firm had imported the subject goods. Therefore, he cannot plead ignorance of the facts. Further more, the respondent had not questioned the order of confiscation or the imposition of duty. Thus, the order of confiscation has attained finality and there is no discretion vested under Section 112(a) of the Customs Act and there is no requirement to record a finding that there has been any wilful mis-statement or concealment or suppression of facts, as is found under Section 114A of the Customs Act. Tribunal was not right in setting aside the penalty imposed on the Managing Director under Section 112(a) of the Customs Act. Further, it has to be pointed out that under Section 112(a), any person, who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, shall be liable to pay penalty not exceeding the duty sought, to be evaded on such goods or five thousand rupees, whichever is greater. Thus, considering the facts, the Managing Director is liable to pay penalty, which is fixed at ₹ 5,000 - Decded in favour of Revenue.
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2014 (12) TMI 609 - BOMBAY HIGH COURT
Application for settlement - Failure to make full and true disclosure and non-cooperation on the part of the petitioners - Held that:- It cannot be disputed that an applicant before the Settlement Commission is obliged to make a full and true disclosure in its application and also cooperate with the Commission. This is so as the basis of Chapter XIVA of the Act is meant for an assessee suffering from contriteness. Therefore, the proceeding before the Settlement Commission is not adverserial. However, in this case the petitioners proceeded on the basis that in law they were not required to produce the original purchase invoice of the lessor of the barge as the issue to be settled is a dispute between the Customs Department and the petitioners as formulated in the show cause notice. The petitioners having accepted the valuation made in the show cause notice and the report of the Commissioner of Customs made before the Settlement Commission, no interference in respect of valuation of the barge is called for. When the entire duty liability and interest as demanded in the show cause notice has been paid by the assessee, it is not possible for the Settlement Commission to conclude that the petitioners have not cooperated or not disclosed full and true facts in their application for settlement. However, it must be pointed out that in the facts existing in the above case, the Court held that the revenue was unable to point out what cooperation has not been extended. - applicant is required to make a full and true disclosure and also cooperate with the Commission. However, as the petitioners have now provided the purchase invoice dated 16 August 2006, it would be appropriate for the Commission to consider the same and pass an order - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 608 - MADRAS HIGH COURT
Expiry of warehousing period - amount realized through auction could not meet the dues of the Government, demand raised for recovery of balance demand - Held that:- appellant was aware that the permission of the warehousing of the goods was for a period of one year and the same had already been expired, however, neither cleared the cargo nor sought extension of warehousing period in the prescribed manner in spite of the Department sending more than one communication. In such circumstances the order passed by the CESTAT is perfectly justified. Section 28 of the Act will have relevance only when there is no levy or short levied as has been stated in Section 28 of the Customs Act. On the admitted fact position that there was provisional levy already made in respect of the goods and the same were brought under double duty bond, we have no hesitation in holding that the proceedings now initiated under Section 72 read with 142 of the Customs Act as by way of recovery of the amount, payable by the importer is well in accordance with the provisions of the Act. The contention of the assessee that there was no notice issued prior to the sale of the bonded goods has nothing to do with the recovery of the amount due and payable by the importer. - Decided against assessee.
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2014 (12) TMI 577 - CESTAT MUMBAI
Maintainability of appeal - Non compliance with pre deposit order - Held that:- As per the provisions of Section 129E of the Customs Act, as amended by the Finance Act, 2014, the appellant is required to make a pre-deposit of 10% of penalty imposed while filing the appeal. The appellant has not made such a pre-deposit. Therefore, the appeal is dismissed as non-maintainable for non-compliance with the provisions of Section 129E of the Customs Act, 1962 - Decided against assessee.
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2014 (12) TMI 576 - CESTAT CHENNAI
CVD Exemption - import of goods used for manufacture of Rotor Blades - Sl.No.237A of Notification No.6/2002-CE dt.1.3.2002 as amended - Goods not classifiable under Chapter heading specified in the said notification - Held that:- As per the rules of interpretation, first any imported goods are to be correctly classified as per the description provided in the Schedule to the Customs Tariff Act. The classification of goods precedes over the determination of rate of duty or any exemption applicable to the said product. Only after classifying the goods into correct chapter headings, under respective chapter of CTA or CETA, the question of extending of notification benefit or rate of duty to be finalised and not vice versa
Exemption is extended to the excisable goods of the description specified in table read with concerned list appended and falling within chapter, heading number or sub heading number of the First Schedule to the CETA 1985 specified in the corresponding entry in Column No.2 of the said table. Therefore exemption available subject to fulfillment of the criteria given in the notification viz. (1) goods should be conforming to the description given in the Table of the notification (2) the goods must fall under the heading or sub heading of the first Schedule of the CETA. From the plain reading of the said exemption notification, we find that if the goods do not fall under any heading or sub heading or under 8 digit tariff heading but only fall under the description, then they would not be covered by the notification.
Non-submission of the essentiality certificate - The condition in the customs notification and the excise notification are independent and the exemption benefit also are independent of each other. Non-submission of the essentiality certificate is sufficient evidence to hold that appellants have not fulfilled the conditions of notification. Therefore, lower authorities have rightly denied on this ground by relying the Tribunal decision in the case of Airport Authority of India Vs CCE (2004 (11) TMI 378 - CESTAT, NEW DELHI).
Adjudicating authority has rightly classified the imported goods under chapter sub-heading as explained at Table-III above and denied CVD exemption. Commissioner (Appeals) also dealt with the issue in detail in the impugned order. By respectfully following the Supreme Court decision (1994 (9) TMI 67 - SUPREME COURT OF INDIA) and the Tribunal s decision on the issue (2004 (11) TMI 378 - CESTAT, NEW DELHI) therefore we do not find any infirmity in the impugned order - Decided against assessee.
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2014 (12) TMI 575 - BOMBAY HIGH COURT
Suspension of CHA license - Tribunal set aside suspension since there was delay in issuing order - High Court admitted the appeal filed by the Revenue against the decision of Tribunal [2012 (10) TMI 196 - CESTAT, MUMBAI] on the following substantial question of law:-
Whether the CESTAT is right in law in setting aside the suspension order on the ground of delay of 13 days in issuing the order without considering the attendant circumstances and seriousness of the attempted fraud committed by the Customs House Agent i.e. without considering the merit of the case?
Whether in absence of any appeal/challenge to suspension order No. 11/2012, dated 23-5-2012, the CESTAT is right in law in setting aside Post Decisional Suspension Order No. 15/2012, dated 18-6-2012 on the ground of delay of 13 days in passing/issuing Order No. 11/2012, dated 23-5-2012
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2014 (12) TMI 574 - CALCUTTA HIGH COURT
Valuation of goods - Demand of redemption fine and penalty on enhanced value of goods - Detention of goods - Rejection of application of early hearing - Held that:- The petitioner is rightly aggrieved because his goods have still been detained by the Customs Authorities though the duty as assessed has been paid and the petitioner is willing to pay the penalty and the redemption fine that has been imposed - The ‘CESTAT’ in effect and substance held that there being no stay, the Department was bound by the orders of the Assessing Officer as confirmed by the Appellate Commissioner. However, no specific direction was given by the ‘CESTAT’ for release. The department is still withholding the goods on the contention that the appeal in the ‘CESTAT’ is pending - writ application is disposed of by directing the ‘CESTAT’ to dispose of the appeal positively within 30 days from the date of communication of this order having regard to the fact that the goods imported by the petitioner way back in 2008 are still lying detained - Decided in favour of petitioner.
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