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Customs - Case Laws
Showing 121 to 140 of 246 Records
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2015 (12) TMI 793 - CESTAT NEW DELHI
Penalty u/s 112(a) - misdeclaration of goods - hazardous waste oil - Held that:- There is no evidence brought out by the department in their process of investigation to establish that the appellant had prior knowledge that Raja Singh was speaking fake or that anything regarding the misdeclaration of goods. Further, the importer had imported consignments of same descriptions in the past through the port of ICD, Tughlakabad, wherein no discrepancy was noted. The appellant, therefore, cannot be found fault for not entertaining any doubt regarding the documents provided by Shri Raja Singh. The goods were found to be prohibited “hazardous waste oil”only after test by a laboratory. I find that the respondents have not been able to adduce any cogent evidence to establish the conscious involvement of appellant in the incident. The penalty imposed upon the appellant is unsustainable. - impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 792 - CESTAT BANGALORE
100% EOU - shortage of goods while shifting goods in the new unit Imposition of penalty - Non production of the documentary evidence for such shifting and the presence of the goods in the new unit - Held that:- Revenue has not been able to rebut the findings given by the adjudicating authority as regards the malafide of the assessee. Their only case is that inasmuch the imported duty free goods were not available, it has to be held that there was malafide on their part, requiring higher imposition of penalty. - adjudicating authority has kept in view various factors and has come to a clear finding on absence of malafide on the part of the assessee. Admittedly the assessee has been able to establish the transfer of the item from one unit to their new premises to the extent of around 94%. The balance 6%, for which they were not able to show any documentary evidence was some minor items and cannot be held to be attributable to any malafide. As such we fully agree with the Commissioner that this act does not call for higher imposition of penalty.
Commissioner has observed that the assessee has not been able to establish proof of having utilized the goods for the intended purpose and therefore the question of allowing depreciation on such bonded goods does not arise. - For the period from 2001 to 2005, the same were being used by the appellant and they would be in a position to prove it. If that be so, the duty required to be paid by the respondent should have been calculated on the depreciated value. Inasmuch as no such proof stands produced before us, we think it fit to remand the matter to Commissioner for entertaining the said plea of the assessee - Matter remanded back - Appeal disposed of.
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2015 (12) TMI 791 - CESTAT NEW DELHI
Import of heavy melting scarp (HMS) claiming exemption in terms of notification No.12/2012-Cus dated 17.3.2012 - Misdeclaration of goods - Confiscation of goods - Imposition of redemption fine and penalty - Held that:- Contention of learned Counsel that the import of the goods contained only negligible copper scrap, brass scrap, stainless steel scrap and aluminum scrap is correct. These scrap were attached/intact with HMS. In such circumstances, redemption fine and penalty imposed, in my view is on the higher side. - Redemption fine and penalty is reduced - Decided partly in favour of assessee.
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2015 (12) TMI 790 - CESTAT CHENNAI
Confiscation of goods - Imposition of redemption fine and penalty - import of MS Re-rollable scrap through high sea sale basis - goods were found to be seconds/defective/billets - Held that:- Issue in this case is not on unauthorized import or any restriction on import but on the question of classification and valuation whether goods are MS re-rollable scrap or defects. The Bills of Entry were ordered by Appraising Group for first check examination and on examination, the goods were found to be seconds and defectives and the value was enhanced. It is also an admitted fact that appellants have not imported their goods directly but purchased on High Sea Sale from High Sea Seller M/s.Modi Impex. Appellants being a manufacturer and imported the goods under actual user for their own consumption for manufacture of final goods. Further, I find that penalty imposed by the adjudicating authority on the High Seas seller, M/s.Modi Impex was set aside by the lower appellate authority in OIA dt. 27.12.2004. Therefore, taking into consideration overall facts and circumstances of the case, I take a lenient view and reduce the redemption fine and penalty - Decided partly in favour of assessee.
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2015 (12) TMI 789 - CESTAT MUMBAI
Confiscation of goods - Re-determination of value under Rule 8 of Customs Valuation Rules, 1988 - Import of yellow poppy seeds - Held that:- If contemporaneous value of imports were available at US $ 900 PMT then re-determination of value should have been done either under Rule 4 or Rule 5 of Customs Valuation Rules, 1988, which has not been done and which clearly shows that department has not done the re-determination on the basis of value of on contemporaneous of imports. The very fact that redetermination has been done under Rule 8 clearly shows that the basis for re-determination is not contemporaneous value of imports. A copy of the market inquiry report is available on record which we have perused. The said market inquiry report is not signed by anyone including the officer of the Customs and the representative of the respondent. Therefore, the same cannot be accepted as a valid piece of evidence. While conducting the market inquiry, a representative of the importer should have been co-opted. Thus the evidentiary value of the so-called “market inquiry” itself is suspect. Further, we note that the lower appellate authority while considering the valuation done by the assessing authority has relied upon the decision of the Apex Court and the Tribunal in similar circumstances and has come to the conclusion that the loading of value done by assessing authority is without any basis. Therefore, we see no reason to interfere with the said order - Decided against Revenue.
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2015 (12) TMI 788 - CESTAT MUMBAI
Suspension of CHA License - CHA committed contravention of Regulations 11(a), 11(d), 11(e), 11(m) and 11(n) of the Customs Brokers Licensing Regulations, 2013 - Held that:- CBLR, 2013 provides for a time-limit of 9 months for completing the enquiry proceedings and taking a final decision from the date on which the licensing authority comes to know of the contraventions by the CHA. From the impugned order, it is seen that the licensing authority came to know of the contravention for the first time on 19-5-2014 and the 9 months’ time period expires on 19-2-2015. Therefore, the present appeal and stay petition are premature and are accordingly dismissed. In any case, suspension is not a punishment. Punishment will come after enquiry is completed and the licence is revoked. On that ground also, the appeal is not sustainable. - Decided against the appellant.
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2015 (12) TMI 787 - CESTAT MUMBAI
Denial of refund claim - Unjust enrichment - Held that:- The Assistant Commissioner, while sanctioning the refund, has not gone into the fact, whether incidence of duty, for which refund is sought for, has been passed on or otherwise. In my view, even if it is a case of refund of revenue deposit, test of unjust enrichment has to be passed on. The appellant during the proceedings before the Commissioner (Appeals) has submitted a Chartered Accountant’s certificate, which was issued on the basis of books of account of the appellant, wherein it has been certified that the amount of refund is shown in the balance sheet as recoverable from the Government. However, despite this submission of the appellant, the Commissioner (Appeals) has rejected the claim of the appellant on the ground that Chartered Accountant’s certificate is not a conclusive evidence to prove that the incidence of duty has not been passed on. It is utter surprise that, if at all, the Commissioner (Appeals) is not satisfied with the Chartered Accountant’s certificate, he should have called for other documents like balance sheet and other books of account to check the authenticity of the CA certificate, which he failed to do so. It is a settled position of law that, if the amount for which refund is sought for, has not been booked as an expenditure in the profit and loss account and shown in the asset side of the balance sheet as receivable, it is sufficient evidence that the incidence of duty has not been passed on. - Matter remanded back - Decided in favour of assessee.
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2015 (12) TMI 786 - CESTAT NEW DELHI
Valuation - Undervaluation of goods - Import of old and used tyres - Held that:- 24 excess pieces of tyres cannot be held to be a mala fide misdeclaration in the quantum of tyres when the total number was more than 2500 pieces. As regards valuation, we find that the appellant having declared the transaction value, it was for the Revenue to rebut the same by production of evidence. The Appellate Authority has already observed that there is virtually no contemporaneous imports as no details are given. Otherwise also, we find that two different imports of ‘old’ and ‘used’ items can never be identical inasmuch as the value of the same would depend upon the number of factors including the usage years as also the condition of the goods. The Appellate Authority has rejected the transaction value by observing that the appellant has not produced any evidence to substantiate the same. We find no merits in the above reasonings of the Commissioner (Appeals). The appellant having produced the invoice, in support of its declared value, has done his part of the duty. If the Revenue is not happy with the said declared transaction value, it is they who have to produce the evidence. There being none in the present case, we find no reasons to enhance the assessable value. - Redemption fine and penalty is reduced - Decided in favour of assessee.
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2015 (12) TMI 742 - SUPREME COURT
Denial of benefit of advance license -import of Natural rubber which is a major raw material - activity of manufacturing and exporting heat resistant latex rubber threads - Vide circular dated 10.10.2003, the embargo imposed on the import of natural rubber was lifted and it was stated that fresh advance licenses are issued as per normal EXIM policy. The old licenses can be revalidated up to 31.12.2003 - HC quashed the circular
Held that:- View taken by the High Court is without any blemish and the High Court has given cogent reasons while holding that the circulars in question suffer from bias and arbitrariness and were discriminatory in nature. This aspect of classification is without any rational nexus between the differentia and the object which was sought to be achieved and the differentia is discussed by the High Court - No merit in appeal - Decided against Revenue.
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2015 (12) TMI 729 - CESTAT CHENNAI
Whether once the export obligation is discharged the conditions of customs Notification No. 48/99 are no more relevant - Diversion of goods - marking in the goods differed when enquiry was made with overseas exporter - Held that:- There is a condition in the EXIM Policy that the imported goods should be utilized for the purpose of manufacture of goods and the goods so manufactured should be exported to earn foreign exchange. But mere earning of the foreign exchange shall not ipso facto establish a case of compliance to the condition of EXIM Policy when export of the goods manufactured using imported raw material is not established. It may so happen that hawala money may come through questionable exports. Therefore, it is necessity of law that the raw materials which were imported duty free should only result in export of finished goods manufacture out of such raw materials making value addition to the imported goods. This is absent in the present case.
Investigation found the goods were diverted to market. There was no pleading of the respondent to defend such allegation before the appellate authority below. Its bonafide was questioned when the stainless steel coil bearing the mark 304 DDQ 0.7000x1250xcoil was discovered by investigation not agreeing with the specification appeared in Invoice No. 2839@USD 1930 PMT/CIF - discrepancy establishes a case of violation of import condition for which the respondent was not entitled to any relief before learned Commissioner (Appeals). Therefore, the adjudication order is restored and the appellate order is set aside - Decided in favour of Revenue.
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2015 (12) TMI 728 - CESTAT MUMBAI
Valuation - Assessee contended that the grammage of paper imported by them is 18 GSM which is different from the grammage of 14 & 16 GSM in case of contemporary imports of M/s. Gujarat Small Industries Corporation Ltd. imported at prices of J. Yen 530 Kg - Held that:- Commissioner (Appeals) did not give any findings on the letter of the supplier. In the said letter it has been stated that material supplied to the Gujarat Small Industries Corporation is different not only in quality but was produced in a different mill. The Commissioner (Appeals) has failed to take this into account and give any findings on the same. He has observed that in case the prices are ridiculously low and unrealistic compared to contemporary imports, the same need to be enhanced. There are no reasons in the impugned order to reject the claim of the appellants that the products imported by them are different from those of Gujarat Small Industries Corporation. Since comparison is being made to goods which are not established to be of identical or similar, we are unable to uphold the impugned order. - Decided in favour of assessee.
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2015 (12) TMI 727 - CESTAT MUMBAI
Valuation of goods - Enhancement in value of goods - Assessee paid enhanced value since he wanted goods urgently - Thereafter he filed refund claim since no assessment order was passed - Held that:- decision of the Apex Court in the case of Priya Blue Industries (2004 (9) TMI 105 - SUPREME COURT OF INDIA) as well as Flock (India) Pvt. Ltd. (2000 (8) TMI 88 - SUPREME COURT OF INDIA) settles the issue beyond doubt. The Hon'ble Supreme Court has held that once the order of assessment is passed and unless that order is reviewed under Section 128 or modified in appeal that order stands and officer considering the refund claim cannot stand in appeal over the assessment made by the competent officers - Since in this case the appellant has not challenged the assessment order, consequently refund claim is not maintainable - Decided against Assssee.
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2015 (12) TMI 726 - CESTAT NEW DELHI
Penalty u/s 114 read with Section 4 of the Antiquities and Art Treasure Act, 1972 - Smuggling of antiques - Held that:- Joint operation with the help of CBI was conducted by opening the consignment at IGI Airport Air Cargo wherein it was found that certain items which are antiques and the statement of Shri Nand Ram was recorded. Later on with the help of Shri Nand Ram, the premises at Mahipalpur Extension was interrogated and there also some antiques were found. As per the statement of Shri Nand Ram and Shri Rajeev Gupta it is alleged that the appellant is actively involved in smuggling and the said premises was on rent by the appellant and she is operating from there and Shri Rajeev Gupta are indulged in the activity of smuggling of antiques on the behest of the appellant. - incriminating statement of the appellant. Moreover, the appellant has been penalized only on the basis of statements of recorded by the co-accused. Moreover, the contention of the adjudicating authority that the appellant has taken the premises on rent from Shri Hitender Kumar. Infact, Shri Hitender Kumar was not the owner of the said premises. Therefore, the statement of Shri Hintender Kumar cannot be relied upon and I also find that no other evidence has been produced by the Revenue to implicate the appellant in the alleged activity of smuggling of antiques. As Revenue has failed to produce any positive evidence in corroboration of the statements of the co-noticees to impose penalty on the appellant, therefore, impugned order qua imposing penalty on the appellant is not sustainable. Consequently, the same is set aside. - Decided in favour of assessee.
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2015 (12) TMI 725 - CESTAT AHMEDABAD
Valuation - determination of CVD - Section 4 or 4A - MRP Based method of assessment - Invocation of extended period of limitation - Held that:- Appellants had filed Bills of Entry wherein the goods are described as ‘Part of CFL (Fluorescent Glass Tubes J5) classifiable under 8539.9010. It is also observed that the goods were examined in detail by the Customs officers in second check examination and were assessed at merit rate of duty and cleared out of Customs charge. As the Assessment had become final, the relevant date of issuance of Show Cause Notice would be reckoned by the normal time limit, unless the ingredients for invoking the extended period under Section 28 of Customs Act are attracted. The Department was aware that the goods attracted MPR assessment under Section 4A of the Central Excise Act. Therefore, before final assessment of Bills of Entry, they should have raised the question of proper valuation for assessment of CVD. Since they have not done so, the extended period cannot be invoked. - Order-in-Original cannot be sustained in the said respect. Hence, the impugned Order-in-Original is modified to the extent that the demand beyond the normal period of 6 months is set aside. The penalties are also set aside. - Decided partly in favour of assessee.
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2015 (12) TMI 724 - CESTAT MUMBAI
Denial of refund claim - SAD - Unjust enrichment - Held that:- Appellant has produced copy of the invoices which clearly indicate that credit of 4% SAD is not admissible. I also find that the invoices indicate the basic value and 12.5% VAT. It does not indicate separately SAD or any other component of import duty. In the accounts, the appellant has shown the 4% amount of SAD as receivable under assets. The Chartered Accountant has also certified the same. - appellant is not a registered dealer and has not sold the entire consignment on the bill of entry itself, but the goods have been sold on the invoices and the invoices indicate the price at which the goods are being sold. It also indicates the amount of VAT that is being paid. Further, the Chartered Accountant has given the requisite certificate. The balance sheet shows the amount of 4% SAD as receivable under the asset category. Under the circumstances, it cannot be said that the 4% SAD has been passed on to the consumer. The bar of unjust enrichment will not be applicable - Decided in favour of assessee.
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2015 (12) TMI 723 - CESTAT NEW DELHI
Waiver of pre deposit - appellant has not been able to produce the export obligation discharged certificate by DGFT and as such, the benefit of duty free imports availed in terms of Notification No. 55/2003-Cus., dated 1-4-2003 - Held that:- Appellants have made efforts for procurement of the certificate, the issuance of which is in hands of DGFT officers. If the said certificates are not being issued by DGFT, the assessee cannot be blamed for the same. We would like to observe here that number of such type of orders are repeatedly argued before us whereas inspite of an assessee having done his part of the job, the DGFT authority are not issuing necessary certificates. Such type of inaction on the part of the DGFT officers result in increase of litigation at all the levels thus creating obstacle to discharge of other deserving matters by consuming the time of the Court. Apart from that, unnecessary litigation also involve unnecessary expenses and if the same can be avoided, it should be. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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2015 (12) TMI 722 - CESTAT NEW DELHI
Permission for re-export of goods - Non imposition of redemption fine - Held that:- It is not the Revenue’s case that purchase order was for lead scrap Rail. However, they are simplicitor referring to documents issued by the foreign supplier indicating the goods to be lead scrap rails. As the material sent by the foreign supplier is different than the material ordered for by the respondents, documents are bound to be different. It was in that scenario that the request was made to the Customs for re-export of the good, Commissioner has correctly come to a finding that in terms of the purchase order, recipient had ordered for lead scrap radio and in the absence of any evidence, intention of importer can not be doubted. We also find that no remittance has been made by the recipient to the foreign supplier. - No infirmity in impugned order - Decided against Revenue.
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2015 (12) TMI 721 - CESTAT NEW DELHI
Determination of assessable value of the ball bearings - Enhancement in value based upon the Circular No. S/26-Misc.-2195/2005 VA, dated 24-9-2008 - Held that:- Tribunal in the case of Commissioner of Customs, New Delhi v. Nath International reported in [2013 (12) TMI 1042 - CESTAT NEW DELHI] has considered an identical situation and has held that the instruction issued by the Commissioner of Customs (Import), Mumbai cannot be solely adopted for enhancing the assessable value without first rejecting the transaction value and the invoice value. Further it was held that such enhancement, without examining the quality of the goods and the size of the ball bearings etc. which were of different sizes, cannot be held to be justifiable. - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 720 - CESTAT NEW DELHI
Demand of differential duty - Confiscation of goods - Redemption fine - MRP stickers not affixed - Held that:- Goods stand confiscated and penalty imposed on the technical ground that all the goods imported by the appellant were not having MRP stickers. The Appellate Authority has himself observed that the stickers may get withered away on account of many reasons. In such scenario, we find no justification for imparting any mala fide to the appellant so as not to paste the MRP stickers on the goods. Accordingly, we set aside the confiscation of the imported items as also imposition of penalty - Decide din favour of assessee.
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2015 (12) TMI 719 - CESTAT CHENNAI
Duty demand - violation of principles of natural justice - importers were indulging in misuse of Target Plus Scheme by obtaining licence under the said scheme, which was cancelled by the DGFT - Held that:- M/s. Victoria Marine and Agro Exports Ltd. imported various grades of plastic granules for UV Master Batch and UV Stabilizer availed exemption from customs duty under Notification No. 32/2005-Cus. After investigation, it was found that the importers were indulging in misuse of Target Plus Scheme by obtaining licence under the said scheme, which was cancelled by the DGFT. By the impugned order, the adjudicating authority confirmed the demand of duty as per Annexure-I to the show cause notice and has also imposed penalty on various persons - there is no dispute that the appellants represented by Shri Gururaj, learned counsel, were heard by one Commissioner and the adjudication order was passed by another Commissioner, which is clear violation of principles of natural justice and hence the impugned order cannot be sustained on this ground alone. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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