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Customs - Case Laws
Showing 21 to 40 of 246 Records
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2015 (12) TMI 1485
100% EOU - procurement of goods without payment of duty - The goods were received in the appellants factory and at the time of weigment while re-warehousing found to be short - penalty under Section 114A - Held that:- there is no allegation either in the show cause notice or in the order of the first appellate authority that there was any diversion of the goods after their import duty free. The number of bales received in the factory were the same as shown in the Bill of Entry and they were found to be intact and unopened at the time of re-warehousing in the factory which was done in the presence of the custom officer. Cotton is a kind of raw material which can vary in weight marginally depending upon its moisture content. Possibly for that reason only CBEC vide the circular dated 15.4.1983 stated that loss in weight up to 1% was condonable, although it gave no scientific basis as to how the figure of 1% was arrived at. Further, there is nothing sacrosanct about the figure of 1% mentioned in the said letter CBEC.
The entire quantity of bales of cotton imported was received in the factory intact and there is neither any allegation of diversion nor any evidence to that effect. Even the supplier reimbursed the amount towards shortage noticed in weight which also supports the view that there was no diversion of the duty free goods. Thus none of the conditions of the exemption Notification No. 53/1977-Cus. are violated. In these circumstances the impugned demand is totally unsustainable and is therefore set aside - Decided in favour of assessee.
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2015 (12) TMI 1484
Import of Pashmina and wool shawls - restricted items - Confiscation of goods under Section113(d), (e) and (l) of the Customs Act, 1962 - Imposition of penalty - Held that:- no one on behalf of the appellant appeared for personal hearing. We also find that in the reply to the Show Cause Notice the appellant did not seek any cross-examination of the Wildlife authorities. In its appeal it has stated that proper chemical analysis of the shawls was not conducted by wildlife authorities. The appellant has no basis to assert that when it did not seek any cross-examination of the wildlife authorities who tested the samples. There can be various ways to test a sample depending upon the purpose of test. In these circumstances, the order of confiscation of 41 shawls for containing material prohibited for export is sustainable. As regards the contention that other shawls (other than 41) found in packet 4 should not have been confiscated, we find that the primary adjudicating authority has ordered confiscation of only 41 shawls and has categorically stated “I order for unconditional release of remaining shawls out of 1290 shawls seized along with their respective packet.”
Thus, it is obvious that the confiscation ordered by the primary adjudicating authority and upheld by the first appellate authority was only with regard to the 41 shawls. As 41 shawls were liable to confiscation on account of being attempted to be exported in spite of being prohibited for export, the appellant is clearly liable to penalty. The penalty of ₹ 50,000/- imposed is neither unreasonable nor arbitrary. - Decided against assessee.
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2015 (12) TMI 1483
Confiscation of goods - Import of restricted goods - Importer does not license to import impugned goods - Held that:- impugned goods are not freely importable. Even the ITC (HS) classification for worn clothing and other worn articles against classification CTH 6309 declared these goods and to be restricted subject to import licence. Appellant was well aware that the impugned goods required licence to import as in its own case CESTAT Final Order No.151/2006, dated 07.04.2006 had upheld confiscation of worn clothing for the same reason. Therefore, the confiscation as ordered by the primary adjudicating authority is legally sustainable as the appellant did not have any import licence. We also find that the redemption fine and penalty are in the vicinity of 15% and 20% respectively of the assessable value which for these kind of goods and for a repeat offender are in no way excessive, arbitrary or unreasonable. - No infirmity in impugned order - Decided against assessee.
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2015 (12) TMI 1482
Benefit of Notification No.45/2002-Cus, dt.22.04.2002 under DEPB scheme - Fraudulent DEPB Licence - over invoicing - Held that:- Tribunal allowed the appeal of M/s Kanak Metal Industries in the said proceeding as reported in [2011 (8) TMI 924 - CESTAT, DELHI]. Revenue filed the appeal against the order of Tribunal, which was dismissed as reported in [2012 (7) TMI 927 - SUPREME COURT] (Commissioner Vs Kanak Metal Industries). - we do not find any reason to interfere the order of Commissioner (Appeals) - Decided against Revenue.
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2015 (12) TMI 1481
Demand of interest on delayed refund claim - Refund under Notfn. No 102/2007 and CBEC Circular No 6/2008-CUS dated 28.4.2008 - Held that:- Adjudicating Authority while deciding the refund claim of the appellant under OIO dated 13.9.2013 and 9.10.2013 has not passed any order with respect to claim of interest on the delayed payment of refund. Under such circumstances order, with respect to interest on the payment of refund, passed by the First Appellate Authority is set aside and the matter is remanded to the Adjudicating Authority to decide the claim of the appellant with respect to interest on delayed payment in the light of judgements relied upon by the appellant and the Revenue, during the course of hearing. The appeals filed by the appellant are allowed by way of demand to the Adjudicating Authority. - Matter reanded back - Decided in favour of assessee.
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2015 (12) TMI 1480
Import of materials for the manufacture of Heart Valve Prosthesis - claim of exemption - Suppression of facts - Imposition of equivalent penalty - Held that:- Dept. issued show cause notices on the same items in earlier period within the normal period. So, the Department was aware of the import of these items. It is noticed that the appellant claimed exemption benefit in respect of the entire consignment and out of that about ₹ 68 lacs, the Adjudicating Authority dropped the demand. Hence, the findings of the Adjudicating authority on suppression of the fact in respect of the balance amount cannot be sustained. It is a case of claim of exemption notification. - demand of duty alongwith interest is set aside, as barred by limitation. The penalties imposed on both the appellants are also set aside - Decided in favour of assessee.
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2015 (12) TMI 1479
Import of two Vessels for breaking purpose Demand of differential duty - bunker and stores - Burden to prove - Wrong classification of goods - Held that:- The Adjudicating Authority held that the fuel oil, engine oil and ship stores, as spare parts, food stuffs and others, as per sub para (C) of CBEC Circular No. 37/96-Cus., dated 03.07.1996, should be classified separately under heading no. 89.08 and the importer should pay the differential amount of duty of ₹ 3,81,865.00. By the impugned order, Commissioner (Appeals) upheld the adjudication order.
Appellant contended before the Commissioner (Appeals) that the burden was on the Department to prove that the subject goods bunkers and stores were imported and cleared by the importer through the Customs barrier. The Commissioner (Appeals) proceeded on the basis that the subject bunker and stores were declared by the master of the vessel in the manifest, which was statutory document. Hence, the contention of the appellant is not sustainable. - Decided against Assessee.
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2015 (12) TMI 1478
Export of goods - exporter did not produce the Shipping bills before the proper officer of Customs for grant of LEO and hence the goods were not cleared for exportation - Confiscation of goods - Imposition of penalty - Held that:- exporter has no control over the goods, once the goods enter into the port of export. I also find that the matter is squarely covered by the decision of the Hon'ble Bombay High Court in the case of Commissioner of Customs (Export) Vs. Kusters Calico Machinery Ltd. [2010 (3) TMI 474 - BOMBAY HIGH COURT] Accordingly, following the ratio of Kusters Calico Machinery Ltd. (supra), I set aside the penalty imposed on the appellant-exporter - Decided in favour of assessee.
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2015 (12) TMI 1437
Confiscation of goods - Non declaration of goods - Held that:- There is no rational, sound reason and any redeeming factor giving scope to reduce the penalties imposed on these appellants. The matter is quite serious when the restricted items like 49 air pistols and 37 air rifles have been imported and the said imports were not declared; they were found concealed in 12 cartons containing light fittings and furniture. It has also come on record that invoices were fabricated by making use of the appellants office; though invoices were submitted by the other person but the office owned by Shri K. Nithyananda Pai, the appellant was allowed to be used. Consequently both these appeals are dismissed and disposed of as having no substance and reason to interfere with the impugned order-in-appeal passed by the Commissioner of Customs (Appeals) Cochin. - Decided against assessee.
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2015 (12) TMI 1436
Valuation of goods - enhancement in value of goods - Held that:- Though in the adjudication order the authority has relied upon the price of contemporaneous goods, but no any evidence in support of contemporaneous import was adduced. The goods imported by the appellant is rags which admittedly a residual product. The residual product cannot be of standard quality. As regards its characteristics, quality, size, shape, colour etc. it various from consignment to consignment. - Since no evidence was produced by the Revenue, enhancement of the price of the impugned goods appears to be without any basis. It is a trite law that for applying the price of contemporaneous goods, it is necessary to ascertain that the goods is of same character, quality, quantity, country of origin etc. and without ascertaining the same, the adoption of price of contemporaneous goods cannot be treated as price of contemporaneous goods. Due to the said deficiency in the whole proceeding, we are of the considered view that there is no sufficient basis for revenue to enhance the value of imported goods - Decided in favour of assessee.
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2015 (12) TMI 1435
Release of bank guarantee - Petitioner already surrendered its warehousing licence and is currently not holding any of the license - Held that:- The record of the case reveals that in connection with the warehousing activities, three cases came to be instituted against the petitioner which culminated into orders against the petitioner whereby the demand and/or the penalty came to be confirmed. The petitioner challenged the orders either before the first appellate authority or the Tribunal, as the case may be, and against the order passed by the first appellate authority, before the Tribunal. In all the three cases, the Tribunal has granted stay subject to pre-deposit of the amount stipulated in such orders, which the petitioner has already deposited. Therefore, in relation to all the three orders which have been passed against the petitioner, proceedings are pending before the Tribunal and such orders had been stayed. - If the respondents are permitted to retain the bank guarantees, it would amount to negating the stay orders granted by the Tribunal because the amount under the bank guarantee would be in addition to the amount directed by the Tribunal to be deposited by way of predeposit. Moreover, once the licence has been surrendered and no amount is outstanding and payable by the petitioner towards the warehousing licence and the bonds executed by the petitioner have been cancelled, the respondents are not justified in retaining the bank guarantees.
Petitioner has also placed on record a copy of the undertaking given by the petitioner to the respondents assuring the Customs Department that they would discharge any liability that may be finalised or arise against the petitioner and have also sought release of the bank guarantees aggregating to ₹ 10,00,000/-. Thus, the warehousing licence stands surrendered, the warehousing bonds stand cancelled, the demands raised by the orders passed against the petitioner in the three proceedings stand stayed by the Tribunal. Moreover, the petitioner has also given an undertaking to the respondents that it will discharge all liabilities that may be finalised or arise against the petitioner. In these circumstances, in the opinion of this court, the respondents are not justified in withholding the bank guarantees. - Decided in favour of appellant.
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2015 (12) TMI 1434
Writ petition against the order of Tribunal refusing to rectify the error which was apparent on record - Tribunal, which, by an order dated 6.2.2014 partly allowed the appeal by holding that the petitioner is eligible for the benefit of CVD as per Serial No.202A of Notification No.21/2002-Cus dated 1.3.2002. The Tribunal further held that since separate value of 16mm, 20mm, 25mm and 32mm TMT bars was not made available, separate duty cannot be assessed for 16mm TMT bars
Held that:- As can be seen from the impugned order dated 23.6.2014 passed on the rectification of mistake application made by the petitioner, the Tribunal has rejected the application on the ground that in the absence of separate value of 16 mm TMT bars, separate duty cannot be assessed for 16 mm TMT bars. As noticed hereinabove, the learned counsel for the petitioner has clearly demonstrated before the court that the relevant material to establish the value of 16 mm TMT bars was already there on the record in the form of the bill of lading indicating the quantity of goods as well as the commercial invoices indicating the price of the 16 mm TMT bars.
Therefore, the duty of 16mm TMT bars can easily be worked out on the basis of the available record. Under the circumstances, the finding recorded by the Tribunal in the order dated 6.2.2014 as well as in the impugned order dated 23.6.2014 made on the rectification application to the effect that separate value of 16 mm TMT bars was not available, is clearly incorrect and contrary to the record. Under the circumstances, to that extent the finding recorded by the Tribunal is perverse to the record of the case. The impugned order dated 23.6.2014 being contrary to the record of the case, therefore, cannot be sustained. - Decided in favour of assessee.
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2015 (12) TMI 1433
Request for permission to sell an aircraft - Concessional rate of duty - Customs authorities formed a belief that the valuation declared by the petitioner at the time of import was not accurate and further that the petitioner had breached the condition on which the concessional rate of duty was applied - Held that:- Principal duty liability as indicated in the show cause notice is ₹ 8.78 crores. This principal amount of duty may further invite interest and penalties. However, it is not necessary that in every case maximum penalty would be levied. There is also a proposal for confiscation, of course, with the statutory provision of permitting redemption fine in lieu of confiscation. In totality of the facts of the case, we would adopt sum of ₹ 20 crores in all which would safeguard the interest of the revenue. In other words, as long as the petitioner offers full security for such sum, the permission for sale of the aircraft should be granted. - petitioner has already provided the bank guarantee of ₹ 10 crores to the department in addition to bond of ₹ 30 crores. The first condition would therefore be that these guarantees would be kept alive till the disposal of the show cause proceedings. - Petition disposed of.
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2015 (12) TMI 1432
Suspension of the Customs Broker Licence of the Petitioner - Petitioner is under invoicing the imports and thus, is evading payment of customs duty - Forfeiture of security - Bar of limitation - Held that:- Customs Broker Licensing Regulations, 2013 were promulgated in exercise of powers conferred under Sub-Section (2) of Section 146 of the Customs Act,1962. It is only under the regulations, the licence is granted and the regulations also contain various provisions to regulate the affairs of the customs broker including the revocation of the licence. The Regulations contemplates action against the customs broker dehors the provisions under the Customs Act. Therefore, the regulations cannot be treated as sub-ordinate legistlation. Moreover, every implementing authority of any fiscal statute is only performing a public duty. Therefore, it cannot be said that the provision is to be termed as directory just because its adherence is in the nature of performance of a public duty. What is to be considered is the object of the enactment in prescribing a period for the performance of such public duty. - an independent right is issued to the Commissioner to initiate action dehors the enquiry under other Regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited 2000 (11) TMI 144 - HIGH COURT OF JUDICATURE AT MADRAS, but the same has to be in strict compliance with the provisions. The law of limitation is common to both the parties. The provision not only enables the respondent to levy penalty, but also empowers the respondent to revoke the license, which is an extreme step curtailing the right to carry on any trade or profession as guaranteed by the Constitution of India.
Every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word shall in Regulation 11 as mandatory and not directory . Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term shall cannot be termed as directory . It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 08.04.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.01.2014.
Impugned show cause notice dated 13.7.2015 has been issued after 90 days from the date of the suspension order dated 27.3.2015 and the report of the investigating agency dated 17.3.2015 or in other words, from the date of knowledge of the offence. - court is of the view that the impugned show cause notice issued by the respondent is without jurisdiction, as it has been issued beyond the period prescribed in the regulations, which have statutory force and hence, not sustainable. - Decided in favour of Appellant.
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2015 (12) TMI 1431
Restoration of petitioner's courier license - seizure of goods since the goods were smuggled into India through a false declaration and in violation of Foreign Trade Policy, 2009-14 and the Customs Act, 1962 - unauthorized criminal act of an employee outside the purview of his employment - Held that:- Similar courier parcels were smuggled for 85 times for the past several months in the same modus by the Petitioner and that the Petitioner cannot claim to be unaware of the happenings when their employee was manipulating the system and entries made therein for over a period of several months. It is the specific case of the respondents that the Petitioner has not carried out the courier operations with due diligence and not complied with the Regulations under which the Petitioner was issued with the licence and has violated the provisions of the Act
Contentions of the Petitioner cannot be a basis to circumvent the appeal remedy available for the petitioner as per Section 129(A) of the Customs Act, 1962, since the said Section provides an efficacious alternative remedy before the Appellate Tribunal against the impugned order. There is also no justifiable grounds to bypass this appeal remedy. Further the issues pointed out by the Petitioner as well as the Respondents are questions of fact and the allegations that the Petitioner had earlier involved around 85 times and illegally cleared such goods against the Regulations, which have to be established by the Parties by producing records and could be examined by the appellate authority. That apart, in the impugned order itself, it has been clearly stated that any person aggrieved by the order can prefer an appeal to the CESTAT under Section 129A of the Customs Act.
Since the disputed questions cannot be gone into by this Court, leaving it open to the Petitioner to avail the statutory appeal remedy provided under the Act - Decided against Appellant.
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2015 (12) TMI 1430
Suspension of CHA License - Bill of Entries were filed by the Petitioner on behalf of M/s.Shahi Foods, Chennai and M/s.High Regards International, Chennai, declaring the goods as biscuits, juices, confectionery, cheese, sausages and beverages without obtaining authorization and without verifying the antecedents, correctness and identity of their clients and violated the provision of Regulation 13(a), 13(b), 13(d), 13(e) and 13(k) of CHALR 2004 (Regulation 11(a), 11(b), 11(d), 11(e) and 11(k) read with Regulation 18(b) of CBLR 2013) that the said importers mis-declared the value and retain sale price to evade the custom duty and hence, the Petitioner was suspended from working/performing the customs related activities - Held that:- The suspension of CHA licence was made on 19.11.2014, which was not within 15 days from the date of receipt of the report from DRI. On the representation of the Petitioner, the suspension was revoked by order dated 23.12.2014, accepting the delay of one year. However, by notice dated 23.12.2014 under Regulation 20, it was proposed to impose penalty and to forfeit the security, which is also barred by limitation. Despite the same, it is the case of the Respondents that on intelligence, it was found that the Petitioner misdeclared and undervalued the goods and has violated the provisions of the CBLR. - without going into the merits of the case, since the stay granted by this court in the other Writ Petition filed by the Petitioner is still in force and the subject matter of the said Writ Petition is also to be considered on merits and the application for renewal is also pending, pending consideration of renewal application, the Respondents are directed to permit the Petitioner to continue his business operations - Petition disposed of.
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2015 (12) TMI 1429
Rejection of the renewal application of the Petitioner to renew the Customs Broker Licence - Denial on the ground of partnership dispute - Held that:- When the Petitioner applied for renewal on 8.9.2014, it was not processed by the Respondent Department on the grievance made by one of the erstwhile partners Suresh Kumar Sain. Thereafter, in order to find out the genuineness of the grievance and enquire into the matter, the erstwhile partners, P.Manikandan, Amit Manchanda, Suresh Kumar Sain, Pradeep Kumar Sain and Balachandran and the Manging Partner were summoned and their statements were recorded on 29.12.2014, 30.12.2014 and 9.1.2015. All the erstwhile partners, in their respective statements, have categorically stated that they are not aware of the reconstituted partnership deed dated 2.4.2012 and the signatures contained in the said reconstituted partnership deed and their resignation letters dated 31.3.2012 were forged. Hence, on the suspicion that their signatures were forged, the said partnership deed dated 2.4.2012, the resignation letters dated 31.3.2012 and the statements were sent to the Forensic Department for expert opinion.
After analysis, the Forensic Department submitted a report dated 26.3.2015, opining that the signatures in question have been imitated and differ significantly from the standard in the handwriting characteristics and there was forgery of signatures. On the other hand, the Petitioner failed to disprove the forgery and the misconduct, by producing valid evidence. Therefore, ultimately it was held that there was no consensus among the partners of the Petitioner firm and the performance or act of the Petitioner was rightly held to be not satisfactory in terms of Regulation 9(2), inasmuch as the Petitioner contravened the said regulation, by submitting forged documents, which was proved by the forensic report and that claiming change in the constitution by forgery document would amount to misconduct and accordingly, the renewal application of the Petitioner was rejected and there is no illegality or infirmity in the impugned order. - Decided against Appellant.
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2015 (12) TMI 1390
Goods imported against advance authorization scheme - claim of exemption towards (1) whole of the Customs Duty leviable thereon; (2) whole of the Additional Duty under section 3 of the CTA, 1975; (3) Anti- Dumping Duty under section 9A of the CTA, 1975; and (4) Safeguard Duty under section 8B of the CTA, 1975 subject to the terms and conditions set out in the said Notification. - Notification No.96/2009-Cus. dated 11th September, 2009 - Held that:- in the Foreign Trade Policy 2015-2020, the Government for the first time in its Policy decided to also exempt the Transitional Product Specific Safeguard Duty (imposed under section 8C), in addition to Safeguard Duty (imposed under section 8B). This Transitional Product Specific Safeguard Duty is the duty imposed under section 8C of the CTA, 1975 for imports from the People's Republic of China.
Up until 2015 no exemption was ever granted from payment of Safeguard Duty levied under section 8C of the CTA, 1975. Notification No.96/2009-Cus. dated 11th September, 2009 only granted exemption from payment of Safeguard Duty imposed under section 8B. This being the case, we, in our jurisdiction under Article 226 of the Constitution of India, cannot direct the Government to grant an exemption that was never granted earlier. No person has a vested right in the grant of an exemption. An exemption by its very nature is a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption under a statutory provision in a taxing statute is by its nature a concession granted by the Government so that the beneficiaries of such a concession are not required to pay tax or duty they were otherwise liable to pay under such statute. The recipient of the concession has no legally enforceable right against the Government to grant of such a concession, save and except to enjoy the benefits thereof during the period of its grant.
Even if the Petitioner is called upon to pay the Safeguard Duty levied under section 8C on Carbon Black imported by it from the People s Republic of China, no prejudice would be caused to the Petitioner because the Petitioner could always claim a drawback of the same on establishing that the very same product imported on payment of Safeguard Duty was ultimately used in the manufacture of final products that were exported out of India. In fact, to be fair to the Respondents, this is also the stand taken by them in their affidavit in reply to this Writ Petition. We therefore do not think that in these circumstances, this is a fit case where we ought to exercise our equitable, extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India in favour of the Petitioner.
Provisions of sections 8B and 8C of the CTA, 1975 operate in two different fields. The Safeguard Duty imposed under section 8B is on a specific article that may be imported from any country. On the other hand, the Transitional Product Specific Safeguard Duty under section 8C is not only article specific but also country specific. In other words, the Safeguard Duty imposed under section 8C is on a particular article specifically imported only from the People s Republic of China. There is therefore a clear distinction between the Safeguard Duty imposed under section 8B and under section 8C. The two sections operate in a totally different fields and are a category by themselves. It is not as if by granting exemption from payment of Safeguard Duty imposed under section 8B and denying the exemption from payment of Transitional Product Specific Safeguard Duty imposed under section 8C, the Government has created any sub-classification excluding one sub-category even when both the sub-categories are of same genus. The Safeguard Duty imposed under section 8B and 8C fall in separate categories by themselves and can never be classified as sub-categories of the same genus.
It is not as if the payment of Transitional Product Specific Safeguard Duty imposed under Section 8C was exempted under the Notification No.96/2009-Cus. dated 11st September, 2009 and the same was thereafter retracted without any justification. As stated earlier, this exemption was never granted by the Government. In fact, it is the case of the Petitioner that by not granting this exemption the Government has committed an error or mistake. A party can never have a vested right in claiming an exemption that was never granted in the first place as held by the Supreme Court in the case of J. K. Udyog. ( 2004 (9) TMI 381 - SUPREME COURT OF INDIA) In this view of the matter, we find that the reliance placed by Mr. Sridharan on the decision of the Supreme Court in the Indian Express Newspaper s case (1984 (12) TMI 65 - SUPREME Court) is of no assistance to the Petitioner. - Supreme Court held that there must be rational basis of discrimination between one commodity and another for the purpose of imposing or not imposing the tax. As stated earlier, in the present case, any Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975 was never exempted under Notification No.96/2009- Cus. dated 11th September, 2009. It is not as if the exemption was initially granted and was thereafter withdrawn without any justification. In the case before us, the Petitioner seeks a mandamus, which in effect, would be to direct the Government to grant an exemption which was never granted earlier. In these facts, we find that the judgment of the Supreme Court in the case of Deepak Fertilizers (2007 (5) TMI 323 - SUPREME COURT OF INDIA) has no application to the facts of the present case and the reliance placed thereon is also wholly misplaced.
It was only in the Foreign Trade Policy 2015-2020 that Transitional Product Specific Safeguard Duty imposed under section 8C of CTA, 1975 was sought to be exempted so long as the goods imported were used in the manufacture of final products that were exported out of India. Keeping in tune with this Foreign Trade Policy, a Notification was issued on 1st April, 2015 whereby apart from the Safeguard Duty imposed under section 8B, Transitional Product Specific Safeguard Duty imposed under section 8C was also exempted. It is in this light that we have come to the conclusion that there was no conflict between the Foreign Trade Policies framed by the Government of India from time to time and the corresponding Notifications issued to implement the said Policies. - There is no doubt that the exercise of power, whether legislative or administrative, would be set aside if there is a manifest error in exercise of such power or the exercise of the power is manifestly arbitrary. We do not find any such case before us. In fact, in the present case, the Petitioner in effect wants us to direct the Government to grant an exemption which was never granted in the first place until it framed the Foreign Trade Policy 2015-2020. - no merit in this Writ Petition - Decided against assessee.
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2015 (12) TMI 1389
Whether the coals imported by M/s. JSW Steel Ltd (JSWSL for short), the appellant, i.e. for use in Corex Furnace and declared as weakly Coking/Soft Coking/Semi Soft Coking/Corex Coal are "Coking Coal" classifiable under tariff item 27011910 of the Customs Tariff Act and eligible for exemption from payment of customs duty under Sl. No. 68 to notification No. 21/2002-Customs dated 1.3.2002 or these were in fact thermal coal/ Steam Coal classifiable under tariff items 27011920 and 27011990 leviable to Customs duty @5% Adv - Held that:- The issue is covered by the judgment of the Tribunal in their own case, reported in [2013 (1) TMI 301 - CESTAT, CHENNAI], wherein it was held that the exemption to coking coal under S. No. 68/68A of Notification NO. 21/2002-Cus would also be available to coal "suitable" for use in admixture with other coal for making coke. It was held that the mere adoption of a new technology enabling the use of coal without first converting the same into coke in admixture with other coal cannot be a ground for denying the benefit of the exemption. It was further held that the criteria regarding 1 CSN and 0.60 MMR, which were introduced in the Notification granting exemption to coking coal with effect from 1.3.2011, cannot be given retrospective effect. - coking coal imported by the appellant for its Corex Plant had weak caking properties with CSN of more than 1 and less than 3 clearly comes out from the statements of Shri AVRP Dasu, General Manager - 4MT (Iron Making) dated 19.9.2011 and of Shri B.M. Reddy, Deputy General Manager - 10MT (Iron Making - Quality Management Centre) dated 29.9.2011. The evidence resumed show that before approving the use of any soft/semi-soft/weakly coking coal from a particular mine, the same was first type-tested for its suitability for use in the Corex process. During the course of investigations, the hard disk of Shri Arvind Rajagopalan (GM Commercial) had been seized and sent to the Central Forensic Science Laboratory, Hyderabad. From the said seized hard disk record, a report dated 29.5.2008 tabulates the CSN of the various coals, being used in the Corex process from the various mines, to be between 1 to 1.5
The exemption to coking coal was not linked to any particular end-use and that any coal which fulfilled the criteria of being a coking coal was eligible for the benefit of exemption. It is settled law laid down in the following judgments that where a notification contemplates an end use, the Central Government has to necessarily provide for a mechanism to monitor the said end-use. - it would be useful to refer to some of the technical literature on the characterization and categorization of various kinds of coal. From the IS standards 770-1977, we find that in Table 2 of the standards, the bituminous coal is classified into categories such non-caking, weakly caking, medium to strongly caking, weakly to medium caking, strongly caking. And further in comparison with the IS standards 1353:1993 we note that the weakly caking, medium to strongly caking and weakly to medium caking categories have a CSN number which is greater than 1 whereas non-caking has a CSN less than 1. In the remarks column in table 2, against strongly caking coal, the purpose of utilization is 'metallurgical Coke making'. According to learned Spl counsel only such coal can be considered as coking coal. However we notice that against the weakly/medium caking coal varieties, the purpose of utilization is written as 'blending'. This indicates that such coal can be used for blending with the strongly caking coal for steel making.
An interesting aspect is that the appellant in one case of import at Goa, which is not related to the imports in the present case, requested for retest of samples in which the chemical Examiner at Goa found the CSN to be 1 in respect of four consignments. We are informed that on retesting the CSN of the same samples was found to be 5 to 5.5. The appellant requested for cross examination of the chemical Examiner. From the records of cross-examination, it transpired that the samples were not drawn in the manner prescribed in IS 436 not was the procedure for testing prescribed in IS 1353"1993 completely adhered to in as much as against three readings of CSN, only one reading of CSN was recorded. It has been held by the Hon'ble apex Court in the case of Tata Chemicals Ltd. It versus Commissioner [2015 (5) TMI 557 - SUPREME COURT] that if samples are drawn contrary to the provisions of law, the test reports cannot be relied upon. We realize that the testing does not pertain to the consignments in dispute. But having noted the difference in the results of internal tests by the appellant (not brought on record by revenue) and the testing in Govt Laboratory in the present case, the benefit of doubt must go to the appellants in view of our detailed findings from all angles. The onus was on Revenue in the preceding paras to disprove the appellant's own reports. Noting the totality of evidence in favour of the appellant, we do not agree with the findings of the Commissioner in confirming the demand of duty in respect of 21 bills of entry. - Impugned order is set aside - Decided in favor of assessee.
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2015 (12) TMI 1388
Import of goods without having the IE Code at the time of importation - Penalty u/s 117 - Confiscation of goods - goods are not available and have already been released on payment of duty - Held that:- There is no indication as to what is the value of the goods imported, what is the duty liability involved. No doubt the goods may be liable to confiscation strictly going by the proviso to Section 111(d) read with Foreign Trade Act. However the Revenue never chose the option of imposing penalty under Section 112 at the original stage in both these cases and not resorting to confiscation, in my opinion it is too late or the matter to be reopened. The proper course to be adopted would have been to remand the matter to the original authority so that the importers are given an opportunity to contest proposal for confiscation, imposition of redemption fine (in the absence of goods) and imposition of penalty under Section 112. It is settled law that when goods are not available and have already been released on payment of duty, they cannot be confiscated. Only in the case of provisional assessment where goods are released conditionally, confiscation can be resorted to and fine can be imposed if the goods are not available. - No doubt penalty can be imposed for rendering the goods liable to confiscation. In my opinion, for the only offence of not having the IE Code at the time of importation, imposing penalty under Section 112 and remanding the matter for that purpose may not be necessary - Decided against Revenue.
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