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Customs - Case Laws
Showing 221 to 240 of 246 Records
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2015 (12) TMI 174 - CESTAT NEW DELHI
Exemption from Special Additional Duty under Notification No. 20 /2006-Cus in respect of the impugned goods in terms of entry No. 50 in the table appended to Notification No.20/2006-Cus - Held that:- Once the impugned goods were removed from the said 1st Schedule vide Finance Act, 2011, the benefit of exemption Notification No.20/2006-Cus no longer remained available to the appellant in respect of the impugned goods. The appellant has not disputed fact that the impugned goods were not specified in the said 1st Schedule during the relevant period. While the said subsection allows Central Government to levy SAD not only to countervail sales tax/VAT but also other taxes/charges, we must hasten to add that once the Central Government has taken a view in this regard and imposed SAD on the impugned goods, it is not open to CESTAT to challenge the validity of such levy. - CESTAT in this order has prima facie disregarded the fact that the appellant was not entitled to the benefit of Notification No. 102/2007-Cus and in effect held that the Central government could not collect the impugned SAD in that case. As CESTAT is not competent to challenge the legality of a Notification issued by Central Govt, prima facie, the order is issued without jurisdiction and an order issued without jurisdiction is a nullity. More importantly, the said CESTAT order (in the case of Katyal Metal Agencies [2015 (1) TMI 323 - CESTAT KOLKATA]) is only an interim order dismissing stay petition of Revenue and therefore has no value as a precedent for deciding the issue. - appellant was not eligible for the benefit of notification No. 20/2006-Cus and therefore the impugned demands were correctly upheld by the first appellate authority. Consequently, the appeals are dismissed - Decided against assessee.
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2015 (12) TMI 173 - CESTAT CHENNAI
Waiver of pre deposit - Misuse of Target Plus Scheme Licences - Customs Exemption Notification No. 32/2005-Cus. dated 08.04.2005 - Held that:- Adjudicating authority in his order has clearly brought out the issues in detail on the misuse of license and the role played by each individual. The issues raised by the appellants on the role of High Seas Seller, receiving the finished products again, denying the cross objection by the adjudicating authority, to be examined at the time of final hearing. Therefore, we find that all the appellants have prima facie not made a case for waiver of pre-deposit. Upon compliance the pre-deposit of balance dues shall be waived and its recovery stayed during the pendency of the appeals. - Partial stay granted.
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2015 (12) TMI 172 - CESTAT MUMBAI
Target Plus Scheme - Discharge of Education Cess @ 2% on the goods imported - revenue submitted that under the Target Plus Scheme, basic customs duty and additional customs duty are exempted but Education Cess is not exempted. - Held that:- first appellate authority was correct to come to such a conclusion. This view of the first appellate authority and the view of this Tribunal is affirmed by the Hon'ble High Court in the case of Pasupati Acrylon Ltd. (2014 (1) TMI 169 - GUJARAT HIGH COURT ). - As regards the reliance placed on Circular No. 5/2005 we find that the learned Counsel is correct in bringing to our notice that the said Circular has been struck down in the case of Gujarat Ambuja Exports Ltd. (2012 (7) TMI 679 - GUJARAT HIGH COURT ). - the first appellate authority has not erred in passing such an order. - Impugned order is upheld as correct, legal and does not suffer from any infirmity - Decided against Revenue.
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2015 (12) TMI 171 - CESTAT CHENNAI
Waiver of pre deposit - Denial of the benefit of customs Notification No. 48/1999-cus dated 29.04.99 - diversion of imported ‘Mulbery Raw Silk and Dupion Yarn' under advance Licences - Imposition of penalty - Held that:- Adjudicating authority has clearly brought out in his findings the diversion of imported goods with connivance of other co-noticees. We also find that Shri Mahesh Khemka already deposited ₹ 5,50,000/- and customs encashed the bank guarantee and appropriated for an amount of ₹ 29,61,884/- as clearly indicated at page-11 in para-10(p) of OIO. However, the adjudicating authority has not appropriated the said amount in the adjudication order. - As regards imposition of penalty, prima facie, we find all the four of the applicants have made out a case for waiver of penalty - Stay granted.
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2015 (12) TMI 170 - CESTAT MUMBAI
Waiver of pre deposit - Demand of differential duty - Eligibility to avail the benefit of Notification No. 12/2012-Cus dated 17.03.2012 (Sl.No. 123) - Held that:- issue of eligibility of the said Notification to the coal imported by various coal importers is referred to the Larger Bench of this Tribunal in the case of Tamil Nadu Generation and Distribution Corporation Ltd. [2015 (1) TMI 366 - CESTAT CHENNAI], Co-ordinate Bench of this Tribunal presided by the Hon'ble President, at Hyderabad, has granted unconditional waiver to the appellants therein on identical issue holding that since the conflict has been referred to the Larger Bench, waiver has been granted till the disposal of the appeal and stay has been granted by the Larger Bench of this Tribunal - Stay granted.
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2015 (12) TMI 169 - CESTAT NEW DELHI
Refund claim - appellants had not challenged the assessment order by way of filing an appeal - Held that:- Ratio of the aforesaid judgement of Delhi High Court (which had duly taken note of and distinguished the Supreme Court judgements in the case of Flock (India) Pvt. Ltd. (2000 (8) TMI 88 - SUPREME COURT OF INDIA) and Priya Blue Industries (2004 (9) TMI 105 - SUPREME COURT OF INDIA) on the basis of which the appellants refund claims were rejected by lower authorities) is squarely applicable to the facts and circumstances of these appeals. - matter remanded back - decided in favour of assessee.
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2015 (12) TMI 168 - CESTAT NEW DELHI
Confiscation of goods - misdeclaration of the quantity and value of goods meant for export - neither such quantities were available in the exporting consignments nor the values declared were correct - Held that:- there was violation of provision of section 113(i) and 113(ii) of Customs Act, 1962 since there was a misdeclaration of the quantity and value of the goods with material departure to the particulars relating to quantity and value of the goods being attempted to be exported under drawback claim not corresponding in material particular with the information furnished in the export documents. Revenue’s contention that appellant acted deliberately cannot be ruled out for the reason that an exporter who has not remitted higher amount of foreign exchange to this country does not expect higher quantity of goods with higher value. Accordingly, confiscation of the goods was justified. Since the goods were under drawback claim, imposition of redemption fine is also warranted under law. But learned Commissioner did not record his finding on redemption fine. Therefore it is desirable to work out the same in the interest of justice. - Matter remnanded back - Decided in favour of Revenue.
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2015 (12) TMI 167 - CESTAT CHENNAI
Imposition of penalty under Section 114 - Seizure of currency - Held that:- On perusal of findings of the impugned order, the adjudicating has clearly brought out in detail the attempt of smuggling of Indian currency of ₹ 41,60,000/- by way of concealment. The original statement of both the appellant and the statement of other witnesses are clearly brought out in the said order. Attempt to smuggling of foreign currency has been clearly established. But for the timely detection the currency would have been smuggled out. Only after the seizure and arrest, the appellant were trying to disown the currency whereas subsequent statement has clearly proved otherwise. As per the statement recorded before the Customs it was a valid evidence and also based on the circumstantial evidences it is clearly brought out that attempt of smuggling of Indian currency belonged to Kirankumar and Anwar Aneesur Rahman carried the same as per the instruction of the first appellant.
As per the statement recorded before the Customs it was a valid evidence and also based on the circumstantial evidences it is clearly brought out that attempt of smuggling of Indian currency belonged to Kirankumar and Anwar Aneesur Rahman carried the same as per the instruction of the first appellant. - present case relates to attempt to export of Indian currency in violation of Customs Act and FEMA. Therefore, appellants are liable for penalty under Section 114. However, taking into overall facts and circumstances of the case and also considering the acquittal of appellant in prosecution, I reduce the penalty - Decided partly in favour of assessee.
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2015 (12) TMI 166 - CESTAT MUMBAI
Modification of stay order - Waiver of pre deposit - Classification of goods - Classification under CTH 27011200 or under CTH 27011920 - Bituminous coal or steam coal - Held that:- as per the investigation conducted by the Customs Department, the gross calorific value was found to be exceeding 5833 Kcl/kg and the volatile matter content exceeded 15% and the goods merited classification as "bituminous coal" as defined in sub heading note 2 to Chapter 27. Further, this Tribunal also took into account the final order of this Tribunal in the case of Coastal Energy Pvt. Ltd., & Others vide order dated 20/06/2014 wherein it was held that the coal imported having volatile matter content exceeding 15% and gross calorific value limit exceeding 5833 cal/kg would merit classification as "bituminous coal". Subsequent orders of the Tribunal either by the Madras Bench or by the Circuit Bench at Hyderabad are only interim orders, whereas the decision relied upon by this Tribunal while passing the stay order is based on a final order passed by the Bangalore Bench on the matter. It is a settled position of law that interim orders passed by the co-ordinate benches do not have any binding value. Further, interim order relied upon is subsequent to the passing of the order by this bench in the appellant's case and therefore, they cannot be said to have any precedential value. - No merit in modification application.
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2015 (12) TMI 165 - CESTAT AHMEDABAD
Modification of stay order - Waiver of pre deposit - Held that:- Tribunal directed the pre-deposit after considering their role played in respect of forging of the documents for export of non-Basmati rice. The applicants submitted that the cross examination of the main person (exporter) was not granted. We find that this issue would be considered at the time of appeal hearing. The applicants also submitted that they have filed salary certificates and bank pass books with their applications. In our view, the case relates to forging of the documents in export of the restricted items and the money would definitely not shown in their bank passbooks or salary certificates. So, the evidence placed by the applicants would not suffice to their financial hardships. - No reason for modification of the stay order.
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2015 (12) TMI 65 - CESTAT MUMBAI
Request for re-import of machines duty free under Notification No. 158/95 dated 14.11.1995 - Held that:- Order of the Dy. Commissioner is very cryptic. It appears that he gave a personal hearing to the appellant but does not record the details of the personal hearing. He brushed aside the details of personal hearing by making a short statement in his order to the effect that ‘party appeared for personal hearing’. He has not given details of the evidence produced by the appellant in support of their case. Further, even the order of Commissioner (Appeals) is equally cryptic and almost non-speaking. Order of Commissioner does not bring upon record, the various evidences available with the appellant to support their case. Being a very old case, we proceed to decide the matter on the basis of evidence on record. - order of the Dy. Commissioner does not indicate how the identity of the machine could not be established when some marks and numbers have been found on plates on the burnt machines as indicated in the examination report above. It is also not on record whether the Dy. Commissioner made an attempt to verify from the Central Excise Authorities in whose jurisdiction the machines were got repaired by the manufacturer - Revenue has not made any contention that other identical machines were exported to the same buyer and therefore there could be some confusion whether same machines were re-imported. - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 64 - CESTAT MUMBAI
Jurisdiction of Commissioner (Appeals) - investigation was conducted by Special Valuation Branch (SVB) - Valuation - Enhancement in value of goods - Inclusion of royalty - CBEC Circular No.1/98-Cus. dt. 1.1.1998 - Held that:- Commissioner (Appeals) has misread the provisions of law as well as Board Circular No. 29/2012. The legal provisions are very clear. Any appeal against assessment order passed by Customs at JNCH will lie to the jurisdictional Commissioner (Appeals) Nhava Sheva. The Board Circular No. 29/2012, in fact, supports this view and states that the work relating to appeal etc. will continue to be handled by the jurisdictional Commissioner of Customs. For the sake of uniformity, the circular also states that Director General Valuation will provide its views on the orders passed by the adjudicating authority, which will be given due consideration when the orders are examined by Commissioner of Customs for review or acceptance of the orders under Section 129D of the Customs Act. Therefore, we hold that Commissioner (Appeals), Nhava Sheva is the appropriate authority to hear the appeals against assessment orders passed by Nhava Sheva, Customs.
In the peculiar circumstances of the case where the view of DGOV are considered by all reviewing authorities, we would request DGOV to direct the Adjudicating Authority in Delhi to decide the case expeditiously in the interest of justice as well as in the interest of Revenue. Only after the case is decided by SVB Delhi, will the Commissioner (Appeals) Nhava Sheva be able to take a view.
No additional EDD will be payable by the appellant. Only a PD bond will be required to be submitted by them. This is as per the clear instructions of the Board in Circular No. 11/2001 as well as Mumbai High Court order in the case of E.I. DuPont India Pvt. Ltd. (2014 (8) TMI 290 - BOMBAY HIGH COURT). - Petition disposed of.
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2015 (12) TMI 63 - CESTAT MUMBAI
Modication of order - Waiver of pre deposit - Classification of goods - Bituminous coal or steam coal - Classification under under CTH 27011200 or under CTH 27011920 - Held that:- As per the test report issued at the load port, the gross calorific value was found to be exceeding 5833 kcl/kg and the goods merited classification as "bituminous coal" as defined in sub heading note 2 to Chapter 27. Further this Tribunal also took into account the final order of this Tribunal in the case of Coastal Energy Pvt. Ltd., & Others vide order dated 20/06/2014 wherein it was held that the coal imported having volatile matter content exceeding 15% and gross calorific value limit exceeding 5833 cal/kg would merit classification as "bituminous coal". Subsequent orders of the Tribunal either by the Madras Bench or by the Circuit Bench at Hyderabad are only interim orders, whereas the decision relied upon by this Tribunal while passing the stay order is based on a final order passed by the Bangalore Bench on the matter. It is a settled position of law that interim orders passed by the co-ordinate benches do not have any binding value. Further, interim order relied upon is subsequent to the passing of the order by this bench in the appellants' cases and therefore, they cannot be said to have any precedential value. - No merit in modification application - Decided against assessee.
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2015 (12) TMI 62 - CESTAT MUMBAI
Evasion of Customs duty - Undervaluation of the goods - Held that:- in the case of one of the Appellants, M/s American Almond Corporation, in Para 5.4 of their reply to the show cause notice dated 26.11.2009, read with Annexure 3 thereto, had given evidence of contemporaneous imports of poppy seeds to support the transactional value and had further called upon the Revenue to verify and satisfy itself of these particulars as well as those of other imports (which the Appellants could not furnish evidence of) but which could easily be ascertained by the Revenue by accessing the NIDB-DOV database. The impugned order does not even advert to this aspect of the matter. - appellants have made out a strong case in their favour for grant of stay. Accordingly we grant waiver from pre-deposit of dues adjudged against the appellants and stay recovery thereof during the pendency of the appeals - Stay granted.
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2015 (12) TMI 61 - CESTAT MUMBAI
Denial of refund claim - Power of Commissioner (appeals) to remand - Held that:- Section 128A deals with the power of Commissioner (Appeals), is similar to the adjudicating authority who may refer the case back to the adjudicating authority with such directions as he may deem fit, for fresh adjudicating or decision , which were substantially valid after the 2001 amendment. The issue is now settled by the decision of Hon'ble Supreme Court in the case of Umesh Dhaimode (1997 (2) TMI 140 - SUPREME COURT OF INDIA) order dated 13.2.1997. - we agree with the law laid down by the Hon'ble Supreme Court in the case of Umesh Dhaimode (supra) and also the law appreciated by the Hon'ble Gujarat High Court in the case of Medico Labs. (2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD) and accordingly, we dismiss the Revenue s appeal. - Decided against Revenue.
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2015 (12) TMI 60 - CESTAT KOLKATA
Denial of refund claim - assessment was made provisional and the Appellant had directed to discharge export duty, considering the FOB value as transaction value instead of cum-duty price, and they had discharged duty accordingly, under protest - Withholding of cheques on the ground that review applications against the Assessment Orders were filed before the Ld. Commissioner (Appeals) - Held that:- Board has taken a policy decision on the assessment of export duty till 31.12.2008. It is stated that the existing method of assessment of computation of export duty and cesses would be continued, that is, by adopting the FOB price as the cum-duty price, till 31.12.2008. We do not find force in the observation of the ld. Commissioner (Appeals) that the said practice of assessment relates to those Customs Houses only, where the practice of export-levy was adopted by considering the FOB price as the cum-duty price, and cannot be extended to other places. On the other hand, the very purpose of issuing the said Circular is to bring uniformity to the divergent assessment practice followed in the collection of Customs Export Duty across the country. - Circular is binding on the Department in view of the principle laid down by the Hon’ble Supreme Court in the case of Collector of C.Ex. Vs. Dhiren Chemicals [2001 (12) TMI 3 - SUPREME COURT OF INDIA]. - Decided in favour of assessee.
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2015 (12) TMI 59 - CESTAT NEW DELHI
Denial of interest claim - Delay in sanction of refund claim on SAD paid by them under notification no.102/2007 - Held that:- As the High Court of Madras has held that provisions of claiming interest are applicable for the refunds pertaining to notification no.102/2007 in the case of KSJ Metal Impex (P) Ltd. (2013 (6) TMI 148 - MADRAS HIGH COURT). I hold that appellant is entitled to claim interest for delayed refund after three months from the date of filing of their refund till the realization of the refund claim. - impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 58 - CESTAT MUMBAI
Denial of refund claim - unjust enrichment - Held that:- On the basis of all the records produced by the appellant before us such as balance sheet, ledgers, general vouchers and account for plant and machinery etc., it is very clear that the appellant has accounted for the amount of Revenue deposit under the head of loans and advances , which can also be seen from bifurcation of the total amount shown in the balance sheet. From this it is clear that the amount of Revenue deposit has not been booked by the appellant as expenditure in the profit and loss account. - appellant has not claimed any depreciation on the amount of revenue deposit as same was not capitalized alongwith the value of plant and machinery. As regard inconsistency between two C.A. certificate pointed out by the Ld. Commissioner(Appeals) and made sole ground for rejection of the appellant’s claim, we are of the view that once it is established from the books of account of the appellant that the amount of Revenue deposit has been undisputedly shown as deposit with government authorities under the head of loans and advances in the balance sheet it is sufficient to conclude that the incidence of said revenue deposit has not been passed on to any other person. - appellant, on the basis of record produced before, made us satisfied that incidence of revenue deposit has not been passed on to any other person - matter remanded back - Decided in favour of assessee.
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2015 (12) TMI 57 - CESTAT NEW DELHI
Reassessment of bill of entry - Valuation - Enhancement in value of goods - Held that:- Commissioner (Appeals) has not given any basis to arrive at the conclusion that the declared value is the correct and to that extent his direction to the assessing Officer to reassess the Bill of Entry by accepting the declared value is prima-facie a non-speaking one making it unsustainable. We accordingly order the Revenues stay application and stay operation of the impugned order-in-appeal with regard to its direction for reassessment of the Bill of Entry on the declared value. - Appeal disposed of.
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2015 (12) TMI 56 - CESTAT NEW DELHI
Validity of impugned order - Approval by the Committee of Chief Commissioner not taken - Held that:- Revenue has failed to bring out how the company- respondent which is Sheetal Fibres Ltd. committed any omission and commission under the law to invite huge penalty when civil court did not find fault with it in terms of para 166 of the order. In absence of specific submission as to how the company caused prejudice to the Revenue, there is no scope to interfere to the order of the learned Commissioner - Decided against Revenue.
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