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Customs - Case Laws
Showing 161 to 180 of 246 Records
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2015 (12) TMI 582 - CESTAT MUMBAI
Confiscation of goods - Imposition of redemption fine - clearance have been allowed on execution of bond and bank guarantee in terms of the DEEC scheme, the adjudicating authority should have confiscated the goods and given an option to the importer to redeem the goods on payment of fine - Held that:- The goods are not available nor the person who own the goods now are known to the department. Section 125(1) of the Customs Act stipulates that whenever confiscation of any goods is authorised by this Act, the adjudicating authority should give an option to the owner of the goods or, where such owner is not known, the person from whose possession/custody, such goods have been seized, an option to pay in lieu of confiscation such fine as the officer thinks fit. In other words, the option to redeem has to be given to the owner or to the person from whose possession the goods have been seized. In the case before us, the details of both these persons are not known nor the goods are available for confiscation. In these circumstances, we do not find any infirmity in the order wherein the adjudicating authority has correctly refrained from imposing any fine. - Decided against Revenue.
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2015 (12) TMI 581 - CESTAT NEW DELHI
Imposition of penalty - Misdeclaration of goods - whether CHA has knowingly participating in the misdeclaration and was involved helping exporter for exporting non basmati rice in the guise of basmati rice - Held that:- From the facts it clearly comes out that container was stuffed in the factory of exporter and CHA was not present there. Neither circumstantial evidence which could show that CHA contributed to the misdeclaration nor any mens rea has been imputed to him. Even on examination of containers, the sample was drawn and sent to the laboratory and laboratory has rightly pointed out that rice contained in the container were non basmati rice and not basmati rice. I do not find any support or instance which could lead to CHA being made liable for imposition of penalty although I am aware that CHA has great responsibility in following export and import procedure requirement. Considering totality of facts and circumstances, I am not able to find active participation of CHA in misdeclaration. - penalty imposed on CHA is not justified and the same is set aside - Decided in favour of appellant.
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2015 (12) TMI 580 - CESTAT NEW DELHI
Appeal before the commissioner (Appeals) - date of receipt of order by the appellant - Bar of limitation - Denial of refund claim - Held that:- order was sent by speed post and not under registered A/D, we also note that the appellant addressed a letter as early as on 13-10-2008 to the department seeking to know the result of their refund claim. By that time, the order was already passed by the Asstt. Commissioner and if the said letter would have been responded by the Revenue, the delay would not have been so huge and would have been within the powers of Commissioner (Appeals) to condone the same. We also note that the dispute is as regards the refund claim of the appellant and there is no duty demand so as to attribute any mala fide to the appellant for delayed filing of the appeal. As regards the assessee’s contention it is only subsequently when the Order-in-Original was again sent under the cover of letter dated 16-7-2009, the same was received by them on 25-7-2009. As such, we are of the view that the appeal having been filed within the period of limitation, starting from the date of receipt of the order has to be held as having been filed well within the time. - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 579 - CESTAT BANGALORE
Provisional assessment - Refund of excess export duty - Held that:- Purchase contract entered between the parties has prescribed that payment shall be made on the basis of DMT quantity of the goods. It is an admitted fact that the duty has been paid by the appellant on WMT basis, without deducting the moisture content. Thus, I am of the opinion that the goods actually not exported, should not suffer the duty liability, and accordingly, the excess paid duty will be eligible for refund. Further, I find that the contract entered into between the parties clearly stipulates that duty or tax levied in the country of origin shall be to the account of the seller, which evidently demonstrates the fact that the incidence of duty has not been transferred to the overseas buyer and the same has been borne by the appellant. Upon verification of the Chartered Accountant also certified that the incidence of Customs Duty has not been inbuilt in the selling price and has not been passed on to any other person. Therefore, considering the above, I am of the prima facie view that the operation of the impugned order can be stayed in the interest of justice.
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2015 (12) TMI 578 - CESTAT AHMEDABAD
Refund of SAD - whether sanctioning of 4% of SAD refunds by way of re-credit in the respective licenses after 30-6-2013 was proper or not - Held that:- utilisation of re-credited amounts was permitted/revalidated by C.B.E. & C. Circulars till 30-6-2013 which was further extended up to 30-9-2013. In Para 7.6 of the orders dated 20-1-2014 passed by the first appellate authority it is factually stated that the re-credits were given well before 30-9-2013. It has not been brought on record by the Revenue that re-credit was allowed by the adjudicating authorities after 30-9-2013. It is also seen that there is no condition under Notification No. 102/2007-Cus. that SAD duty should be initially paid through cash. It has been correctly agitated by the respondents in the cross objections that a right given under an exemption notification cannot be taken away by the issue of Departmental Circulars. In view of the above observations orders passed by the first appellate authority are legally correct and are not required to be interfered with. - Decided in favour of assessee.
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2015 (12) TMI 538 - BOMBAY HIGH COURT
Revocation of CHA License - violation of Regulations 12, 18(1) and 13(n) of the Customs House Agents Licensing Regulation,2004 - Held that:- If the respondent agent admits the violation and breach of the regulations based on which the licence is issued, then, being out of business and from 15.10.2009 till date instead of inquiry being held denovo or further from such stage it was held to be vitiated, the permanent revocation can be set aside, but by maintaining the same for specific period or restricting it to the period already undergone namely from 15.10.2009 till today. Mr.Shetty has no clear instructions in that regard. Hence, we do not adopt this course, else the Court would be accused of extending misplaced sympathy and which is likely to be misused in future cases by others.
Tribunal was justified in finding fault with the inquiry but it could not have allowed the appeal of the original appellant in its entirety. The Tribunal's conclusion that the final order of revocation cannot have any existence in the eyes of law because the inquiry was held in breach of principles of natural justice without any proof of prejudice being caused to the respondent, cannot be sustained. The nonobservance of the principles of natural justice in this case would not mean the whole inquiry is wiped out or the inquiry cannot be held from the stage at which the breach is committed and after rectifying it. That wrong is capable of being remedied. After all the adverse material are disclosed to the Agent and the persons whose version is proposed to be relied upon are made available for questioning by the Appellant, the inquiry can proceed and be concluded. That would be a fair course to adopt so as to protect both sides. - till the Inquiry is concluded and which must be concluded within the time stipulated above, the order of suspension of licence stands, but without prejudice to the rights and contentions of both sides - Petition disposed of.
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2015 (12) TMI 537 - DELHI HIGH COURT
Power of Settlement Commission to entertain the matter pertaining to Gold - Seizure of goods - Illicit import of goods - Imposition of interest and penalty - Held that:- Respondent sought to place reliance on the decision of this Court in Commissioner of Customs v. Ashok Kumar Jain: [2013 (8) TMI 317 - DELHI HIGH COURT]. But, the decision in Ashok Kumar Jain (supra) was distinguished inasmuch as the issue of Section 123 had not been considered at all. It was finally observed, upon a plain reading of the provisions, that an application under Section 127B cannot be made in respect of, inter alia, ‘gold’ which is specifically an item to which Section 123 applies. That being the position, the application filed by the respondent under Section 127B could not have been proceeded with at all. The learned counsel for the respondent No.1 submitted that the petitioner/revenue never objected before the Settlement Commission and even accepted the penalty and fine which were imposed by the Settlement Commission. It was also contended that the petitioner had gone to the extent of issuing a release letter dated 08.06.2015 subsequent to the order of the Settlement Commission. But, we cannot agree with this submission of the learned counsel for the respondent No.1 inasmuch as there cannot be any estoppel against the statute. Once the statute is clear that where the subject matter is ‘gold’, the Settlement Commission would not have any jurisdiction to entertain the application under Section 127B, any order passed in contravention of the statute cannot be sustained on the ground of estoppel. - Impugned order is set aside - Decided in favour of Revenue.
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2015 (12) TMI 536 - MADRAS HIGH COURT
Seizure of currency - confiscation under Section 121 of the Customs Act, 1962 - Smuggling - Held that:- Even before the appellate authority, no evidence was produced to prove that the said sum was relating to the sale proceeds of the smuggled goods, which were sold by the petitioner herein, who was having the knowledge or reason to believe that the goods are smuggled goods. - Before this Court also, such kind of evidence has not been produced. In the absence of such kind of evidence, the third respondent has rightly passed the order to release the said sum to the petitioner. On the contrary, there is absolutely nothing in the order of the appellate authority, either for upholding the confiscation of the said amount from the office of the petitioner or for setting aside the order of the third respondent or for rejecting the appeal filed by the petitioner herein. - Court is of firm view that merely on the contradictory statements of somebody, the confiscation of anything from anybody is against law. - Decided in favour of appellant.
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2015 (12) TMI 535 - MADRAS HIGH COURT
Confiscation under Section 111(d) and (l) - attempt to smuggle the goods (gold jewellery) in India in the baggages - Provisional release of seized goods - Held that:- DRI, Chennai Zonal Unit, on specific intelligence, had intercepted the petitioner at Anna International Airport, chennai, and on enquiry, it was revealed that the petitioner was coming from Sharjah via Trivandrum. On scrutiny of the Customs Declaration form by DRI, it was found that against the column, 'total value of dutiable goods carried' by him, it was mentioned as 'Nil'. On enquiry by DRI as to whether he is in possession of any dutiable goods or foreign origin gold, he replied in the negative. - Senior Standing Counsel appearing for the respondent that since the passenger had attempted to smuggle the goods into India by concealing the same in his person as well as in his hand baggage and checked-in-baggage, without declaring the same to the Customs, in order to evade the payment of Customs duty, the afore stated goods are liable for confiscation under the provisions of Section 111(d) and 111 (l) of the Customs Act, 1962 and hence, it cannot be released provisionally under Section 110 of the Customs Act, 1962 as contended by the learned counsel for the petitioner.
Petitioner had attempted to smuggle the goods into India only with an intention to evade payment of Customs duty and in the absence of any contention refuting the same from the learned counsel for the petitioner, this Court is of the view that the goods confiscated under Section 111(d) and 111(l) of the Customs Act, 1962, cannot be released provisionally as sought for by the petitioner. - when the goods were confiscated under Section 111(d) and 111(l) of the Customs Act, 1962, the question of provisional release under Section 110 of the Customs Act, 1962 does not arise. Therefore, this Court is of view that only after the completion of adjudication process, the adjudicating authority would decide whether the goods confiscated under Section 111(d) and 111(l) of the Customs Act, 1962, could be released or not. - Decided against the petitioner.
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2015 (12) TMI 534 - CESTAT MUMBAI
Restoration of appeal - Appeal dismissed for non compliance with pre deposit order - Held that:- Predeposit direction made on 8.6.2012 not being carried out in accordance with law by appellant nor the appellant appeared on 30.7.2012 to explain the position of default of compliance to the Bench, appeal was dismissed. After one year, the restoration application came to record of Tribunal. Even on the date of filing of restoration application, the appellant had not at all paid the directed amount of predeposit in accordance with law - default as handicaps the Tribunal to consider restoration application which was more than one year old from the stay order and also one year old from the date of dismissal order. Restoration of appeal in spite of defiant attitude of appellant shall cause prejudice to the interest of Revenue. - Decided against assessee.
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2015 (12) TMI 533 - CESTAT BANGALORE
Restoration of appeal - Appeal dismissed for non compliance of pre deposit order - Held that:- Allegation against the appellants is that they have not fulfilled the export obligation and EODC has not been produced by them. It is the appellant’s contention that they have now obtained EODC / Redemption against EPCG Authorisation from the Ministry of Commerce and Industry, which stands produced before us today. The said certificate is required to be examined by the lower adjudicating authority for which purpose we set aside the impugned order and remand the matter to the original adjudicating authority for undertaking the verification and decide the matter accordingly - Appeal disposed of.
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2015 (12) TMI 532 - CESTAT CHENNAI
Denial of exemption claim - imported parts for manufacture of hydraulic systems which are used in the windmills - Notification No. 12/12-CE dated 17/03/12 - Held that:- It is noticed that respondent being a manufacturer of hydraulic systems used in windmill, parts of the hydraulic systems used in wind mill was to generate non-conventional energy devices or systems. The goods characterized as 'non-conventional energy devices or systems' specified under list 8 appended to the notification is exempt from ACD on import. Therefore moot question that comes up is whether the parts used in the hydraulic systems meant for manufacture of non-conventional energy device or system shall enjoy or eligible to exemption of ACD. When the entry under sl.no. 13 under list 8 of the notification is read minutely that throws light that non-conventional energy devices itself is exempt from ACD. So also systems specified under list 8 appended to that notification is exempt from levy of ACD. What is called systems is elaborated in sl.no.13 under list 8 to the notification. The systems are wind operated electricity generator with its components and parts thereof including rotor and wind turbine controller. This clearly throws light that not only a complete system is exempt but also the components and parts thereof are equally entitled to exempt from ACD. - Decided against Revenue.
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2015 (12) TMI 531 - CESTAT MUMBAI
Suspension of Custom Broker license - Held that:- Under Regulation 21, the Commissioner of Customs is required to issue a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of the offence report stating the grounds on which it is proposed to revoke the licence. It is on record that the enquiry was ordered on 18.11.2014 i.e. after a period of exceeding 90 days from the date of receipt of offence report which was received on 26.07.2014 by the Commissioner. In this view of the matter, we find that there is no justification in continuing the suspension. It is not the argument of Revenue that the time limit prescribed in Regulation 21 is only directory and not mandatory. Therefore, the proceedings under CBLR for suspension are vitiated. - joint reading of erstwhile Regulations 20 & 22 (now Regulations 19 & 20) leads to the inference that the order of suspension passed under 20(2) ibid and its continuation under Regulation 20(3) ibid is only an interim measure and the authority has to take further steps i.e. suspend the licence permanently or revoke the licence under Regulation 22 within the time limit prescribed. Otherwise the order of suspension stopping the right of a person to carry on its business cannot continue. - No justification for suspension of CHA License - Decided in favour of Appellant.
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2015 (12) TMI 530 - CESTAT MUMBAI
Rectification of mistake - Import of boric acid against valid DFIA - Application for rectification since previous order dismised as time barred - Held that:- no merit in this application - Decided against Assessee.
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2015 (12) TMI 520 - CESTAT NEW DELHI
Rectification of mistake - Reassessment of bill of entry - re-assessment sought after clearance of goods is not falling under Section 154 nor power is exercisable once the goods were cleared with description in the Bill of Entry - Held that:- What that is envisaged by this section is only to make effort to rectify a clerical errors or arithmetical mistakes in any decision or order passed by Central Government. When the order passed by the authority at the time of clearance remains unchallenged, re-assessment/re-determination making extensive enquiry is not subject of Section 154. Therefore, amendment sought by the appellant taking Shelter of Section 154 neither being clerical error nor arithmetical mistakes, there is no scope for grant any relief under Section 154 - Decided against assessee.
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2015 (12) TMI 482 - AUTHORITY FOR ADVANCE RULINGS
Classification - Rate of duty on Import of components/parts/sub-assemblies of motor vehicles in CKD form - appellant contended that he has imported engine and transmission in a pre-assembled form - Held that:- Applicant proposes localization of six essential components / parts / sub-assemblies, which will be manufactured by local third party vendors on payment of Central Excise duty and supplied to the applicant for manufacture of motor vehicle. These local third party vendors are reputed companies. Revenue has not produced any tangible evidence to indicate that the applicant has entered into any fictitious arrangement to evade Customs duty. It is noticed that the Hon'ble Supreme Court in case of Commissioner of Customs, New Delhi vs. Sony India Ltd [2008 (9) TMI 19 - SUPREME COURT] distinguished the judgment in case of Phoenix International Ltd and observed that all parts were imported in Phoenix case by two units in same container, unlike in Sony India Ltd case. It was also held that Rule 2(a) of Rules of Interpretation of Tariff are applicable only if all components intended to make a final product presented at same time for customs clearance. - In fact they are not even likely to be imported at same time and require further manufacture by different local third party vendors.
Tariff Item 8703 is in respect of "Motor Cars and other Motor Vehicles etc." Note 2 to Section XVII, which also covers 'vehicles' gives a list of 11 articles, where expressions 'parts' and 'parts and accessories' do not apply. Further, Note 3 to Section XVII states that references in Chapter 86 to 88 to 'parts' or 'accessories' do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those chapters. Note further mentions that a part or accessory which answers to a description in two or more of the headings of those chapters is to be classified under that heading which corresponds to the principal use of that part or accessory. Therefore, in order for an article to fall under headings covered by Section XVII, those parts or accessories should comply with all conditions - The import of components / parts/ sub-assemblies by the applicant will not be classified as motor vehicle under Tariff Heading 87.03 or as Completely Knocked Down (CKD) kit under Sr. No. 437 of Notification No. 12/2012-Cus., dated 17.3.2012 - The import of components / parts / sub-assemblies by the applicant will be classified under their respective headings / sub-headings of the Customs Tariff Act, 1975 - Appeal disposed of.
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2015 (12) TMI 481 - AUTHORITY FOR ADVANCE RULINGS
Classification of processed betel nut - deemed manufacture - whether or not containing ingredients such as food starch, spices, mulethi, flavors, perfume etc., though not containing lime or katha (catechu) or tobacco, and will the resultant products be classifiable under the Chapter/Heading 21069030 - Held that:- From the preparation process of the four products, it is clearly seen that the original betel nut which is a main ingredient in all these four preparations is mixed with food starch after it undergoes the process of boiling. The addition of food starch is common in first two of products namely API Supari and Chikni Supari. - Insofar as the other two products are concerned, the unflavored Supari undergoes a process like removal of metal item then the product undergoes the process garbling and polishing in the polishing machine then it is further cut and cleaned in a blower machine then it is roasted in fire gas and thus undergoes a change in its character. Fourth product is a flavored supari which undergoes all the processes like unflavored supari but thereafter the products such as spices/or Mulethi are mixed with the cut pieces of supari. There can be no dispute that all these four products would be essentially known as supari. But as the learned counsel points out the original betel nut undergoes changes and is mixed with some other items like food starch, Mulethi, Copra etc. In our opinion, therefore, the products which the applicant intends to import prima facie fits in Chapter 21 Supplementary Note No. 2 which we have quoted.
The Supreme Court in cranes reported in [2007 (3) TMI 6 - SUPREME COURT OF INDIA] held that since the betel nut which has undergone the processes does not lose its original character of supari, it does not amount to the manufacture or a new product and thus found in favour of the manufacturer. We would have ordinarily been persuaded to accept this contention that the preparation of the new product does not change its character of the betel nut but for the fact that immediately thereafter an amendment was brought even to the Central Excise Tariff which is to the following effect :
'6. In relation to product of tariff item 2106 9030, the process of adding or mixing cardamom, copra, menthol, spices, sweetening agents or any such ingredients other than line, katha (catechu) or tobacco to betel nut, in any form, shall amount to “manufacture”.'
The query put by the applicant is answered in affirmative that these products shall be covered in Chapter 21 and not in Chapter 8. - Decided in favour of assessee.
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2015 (12) TMI 480 - SUPREME COURT
Import of “beef leather cut pieces set TFC 235 Set - Cassification under Customs Tariff Heading 4115 20 90 or under Chapter Heading 4205 00 90 - Held that:- During the course of arguments, we were shown two other Chapter headings viz. Chapter 87 and Chapter 94 - Chapter 87 deals with “vehicles other than Railway or Tramway Rolling-stock and includes other parts and accessories of the motor vehicles” - Sub-heading 9401.20.00 thereof deals with “seats of a kind used for motor vehicles and sub-heading 9401 90 00 mentions “parts” thereof.
It would have been more appropriate for the Tribunal to look into the Chapter entries as a whole and then come to a definite conclusion, in the light of the description of the goods involved as to which the most appropriate entry under which they fall. - Impugned order is set aside - Matter remanded back - Decided in favour of Revenue.
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2015 (12) TMI 479 - SUPREME COURT
Import of Barge - Claim of exemption under Notification 20/99-CUS 28.02.1999 classifying under Chapter Heading 8901.90 - no declaration in respect of diving equipments was made - Held that:- It is not even necessary to go into the question raised, viz., whether the aforesaid diving equipments could be treated as part of Stores under Section 2(38) of the Act. The reason for saying so is that in the instant case, the barge was brought with diving equipments welded onto the barge when that arrived at Sikka port in India. The diving equipment remained welded to the barge and was only used insofar as the barge is concerned which was to be used at Sikka port. It was granted exemption and barge was working in Sikka port from 27.12.1998 to 27.08.1999 and thereafter, went back to Abu Dhabi (UAE) with diving equipments which remained welded on to the barge. - issuance of Show Cause Notice was uncalled for - Decided against Revenue.
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2015 (12) TMI 478 - SUPREME COURT
Benefit of an exemption Notification - respondent approached the Settlement Commission under Section 127B of the Customs Act - Settlement Commission rejected the application of the respondent on the ground that it was not maintainable - Held that:- There were many other similarly situated persons who had also filed their writ petitions as in their cases also, the Settlement Commission had rejected the applications. All these writ petitions are decided by the impugned judgment rendered by the High Court of Bombay. The High Court has, after straightening certain aspects of law, remitted the cases back to the Settlement Commission for fresh decision in accordance with the legal position explained by the High Court. - Since the High Court has merely remitted the case back to the Settlement Commission for fresh decision and in all other cases, the decision has been taken by the Settlement Commission, leaving the question of law open, it is not necessary to interfere with the impugned order. - Decided against Revenue.
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