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Customs - Case Laws
Showing 41 to 60 of 246 Records
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2015 (12) TMI 1387
Revocation of CHA License - Misdeclaration of goods - goods were grossly mis-declared in respect of quantity, quality, value and weight etc. and the intention was obviously to defraud the Government by availing of inadmissible drawback amount - Held that:- Apart from goods being mis-declared in description and value, even the weight was much less than the weight declared. In respect of one Shipping Bill, the actual weight was only about 3800 kgs. while the declare weight was more than 10000 kgs. CHAs are required to follow the provisions of CHALR, 2004, in terms of which (Regulation No. 13) the Custom House Agent is inter alia required to obtain authorisation from each of the companies/firms by whom he was being employed, ensure that all documents, such as bills of entry and shipping bills delivered in the Customs Station by him show the name of the importer or exporter, as the case may be, and also ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay. In the present case, it is evident that the appellant had not obtained any authorisation from M/s H.M. Impex, a firm which was non-existent at the address given in the IE Code and whose proprietor (as mentioned in the IE Code) never contacted the appellant. The appellant filed documents in the name of a nonexistent firm without any verification whatsoever. The documents filed by CHA are treated with a certain degree of trust by the Customs and such trust was completely violated in the present case.
The documents filed by CHA are treated with a certain degree of trust by the Customs and such trust was completely violated in the present case. Nothing can possibly be a graver mis-conduct on the part of a CHA than to file Shipping Bills of such high value in the name of a non-existent firm without making even preliminary enquiries about the genuineness of firm/company in the name of which the documents were filed. Such dereliction of duty on the part of a CHA, can potentially have even graver financial/security consequences. Thus the appellant totally failed to discharge its duties as CHA with utmost speed and efficiency and thereby grossly violated Rule 13 of CHALR, 2004. Such serious violation on the part of the CHA can hardly deserve any condonation or leniency. CESTAT judgement in the case of Pranil Shipping cited by the appellant is hardly applicable to the present case because in that case the importer was not non-existent. - Impugned order is upheld - Decided against Appellant.
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2015 (12) TMI 1380
Maintainability of appeals - Held that:- applicant had not complied with the said order and the order sent by the Registry on 22.5.2015 was not returned as undelivered by the postal authorities. Since the applicant had not complied with the direction of pre-deposit their appeals are liable for dismissal under section 129E of the Customs Act, 1962. - Decided against assessee.
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2015 (12) TMI 1379
Refund claim for the Special Additional Duty (SAD) - Bar of limitation - Held that:- Notification No.102/2007-Customs did not have any provision relating to time limit within which the refund claim has to be filed. The Notification was amended on 01/08/2008 and the time limit of one year was prescribed for filing the refund claim. Since the SAD refund claim was filed by the appellant in April 2008, the refund claim was to be considered in accordance with the Notification as it existed at the time of payment of SAD - decision in the case of Audioplus Vs. CC(Imports), Raigad 2010 (11) TMI 361 - CESTAT, MUMBAI] followed wherein while considering the refund claims filed on 01/12/2008, 20/10/2008, it was held that limitation of one year would not be applicable - Decided in favour of assessee.
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2015 (12) TMI 1345
Valuation - Loading of transaction value of spares ordered by the DC (SVB) and whether the commission received from the foreign supplier is to be loaded to the transaction value or otherwise - Held that:- DC (SVB) while determining the relationship and while finalizing the transaction value held that 17% commission received from the foreign supplier be added to the transaction value of the imported goods, on the ground that this is on account of the goods imported by the third parties, which is indirectly flowed back to the Indian firm. The adjudicating authority in his findings also admitted that the agency commission received by the appellant is on account of the service rendered by the Indian firm, on behalf of the suppliers and the discounts they enjoyed. This admittedly confirms that the commission amount received from their foreign supplier is towards the service rendered by the appellant in India on third party imports. We also find that the appellate authority has not brought out any clear findings on the relationship between the appellant and the foreign supplier. In fact, the Commissioner (Appeals) has admitted that there is no detail available on the relationship between the supplier and the Indian firm but assumed that the parties are related on the presumption that M/s. Instron Holding Limited, UK controls the appellant firm and the supplier firm without any evidence. In this regard, we find that the Tribunal in the case of Mittal International Vs. CC, New Delhi (2002 (3) TMI 132 - CEGAT, COURT NO. I, NEW DELHI) has clearly held that 15% commission received by the importer is not related to the imports made by the appellant but in respect of imports made by third party.
Where the appellants have received 17% commission from the supplier which is not related to the imported goods but for the goods supplied to the third party and the services rendered by the appellant in India on such goods, the application of the provisions contained under Rule 9(1)(a) is totally misplaced.
However, we also find that even assuming that the parties are related, in order to invoke Section 14 and also Customs Valuation Rules for rejecting the value and the mutuality of interest between the supplier and the appellant has to be established. Whereas, in the present case, we do not find any justification or any evidence for mutuality of interest between the supplier and the appellant firm. - impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 1344
Valuation - reliance on the quotation price - Rejection and re-fixing of transaction value - Determination of value under Rule 8 - Confiscation of goods - Demand of differential duty - Held that:- Value of the goods shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation, in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale. In the present case the company itself had produced a copy of the quotations received by them from M/s. Shun Hing Technology Ltd., Hongkong in respect of the copiers and other items imported alongwith their application for approval of their phased manufacturing programme. The company itself having produced these quotations, they cannot dispute the correctness of the prices mentioned therein. The company has not only not disputed the correctness of these quotations but has not produced any other material on record to show that the value mentioned in the invoices was the correct market value of the goods imported at the relevant time. The adjudicating authority in these circumstances was perfectly justified in taking the prices mentioned in the quotations as a basis for determining the correct value of the imported goods.
Fact that the trade representative of USSR in his letter dated January 20,1987 has asked the appellant not to divulge the specially quoted price to any other party in India, in itself indicates that the price offered to the appellant was a special price and not the ordinary price of such goods in the course of international trade. The price in the ordinary course of international trade has been indicated in the price list published by the manufacturers in USSR. We, therefore, find no ground to interfere with the order of the Tribunal - Decided against Assessee.
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2015 (12) TMI 1343
Duty demand - Goods imported duty free against the advance license were subjected to duty along with interest - Held that:- Revenue has not referred to any provisions of law under which it seeks stay of the order. We find that w.e.f. 6/8/2014 Section 129E of the Customs Act was amended. Prior to this date Section 129E provided that where in particular case the appellate Tribunal is of opinion that the deposit of duty, penalty, etc. would cause undue hardship to a person, the appellate Tribunal can dispense with such deposit under conditions to be satisfied. However, from 6/8/2014 there is no provision under new Section 129E that provides for stay by the Tribunal against order of the Commissioner or Commissioner (Appeals) - Request for Stay of operation of order denied.
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2015 (12) TMI 1341
Waiver of pre deposit - Central Excise exemption based on the condition of non-availment of Cenvat credit on the input used in the goods is admissible for exemption of CVD on the imported goods - Held that:- As regard the prayer of the appellant that they were granted conditional stay despite the reference made by Chennai Bench to the larger bench, we do not agree with applicant for the reason that this Tribunal has passed stay order after considering this very aspect, in para 5.7 of the stay order dated 23/01/2015, therefore order cannot be modified on that ground. However on perusal of Hon'ble Supreme Court judgment in the case of SRF Ltd [2015 (4) TMI 561 - SUPREME COURT]. we find that eligibility of concessional CVD under notification 12/2012-Cus dated 17/3/2012 has been decided in favour of the assessee. Therefore, we are of the Prima facie view that applicant is entitle for benefit of concessional rate of CVD. After considering the notification as per submission of the Ld. Counsel the total duty demand stand at ₹ 1.19 crore. We therefore direct the applicant to pre-deposit of ₹ 60 lakhs within a period of one week - stay granted partly.
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2015 (12) TMI 1340
Benefit of concessional rate of duty of import under Project Import Regulation, 1986 - Import of machinery for manufacturing pre-recorded audio casettes under Chapter Heading 98.01of the Custom Tariff Act, 1975 - Held that:- Even if benefit of Project Imports is denied, the goods were assessable at the same rate of duty in terms of Notification No. 49/95-Cus dated 16/3/1995, Notification no. 90/95-Cus dated 1/9/1995 and Notification No. 36/96-Cus dated 23/7/1996 in respect of their goods falling under Chapter Heading 84.79. During the course of arguments it became clear that the goods in question would otherwise get classified under chapter heading 84.79 and the machinery for production of commodities falling under this Heading is exempted under above Notifications. This issue has not been addressed by the Commissioner. - same concessional rate of duty would have been available to the appellant if they had imported goods under chapter heading 84.79 and not as Project Imports under Chapter heading 98.01, we condone the lapses in following Project Import Regulations and allow substantial benefit which in any case would have been available - Decided in favour of assessee.
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2015 (12) TMI 1303
Validity of Ex-parte decision of the tribunal to dismiss the appeal - CVD was paid utilizing DEPB Scrips - imported items were capital goods or not - Held that:- In a matter of this nature, where an ex parte decision has been rendered by the Tribunal, the prolongation of a decision on the same is not beneficial to either of the parties. After all, the appellant seeks an opportunity to appear before the Tribunal. It is not recorded in the order of the Tribunal that the appellant herein was habitually absented themselves before the Tribunal. In para 2 of the impugned order, it is just stated that the matter was adjourned on earlier occasions and nobody turned up on behalf of the respondent(assessee). But, it is seen from the tabular column given by the appellant herein that after 3rd September 2013, the date on which the adjournment was sought for by the appellant, the case was taken on two occasions viz., on 24.12.2013 and 25.9.2014 and the Tribunal rendered the decision. Therefore, we are of the considered view that one opportunity can be granted to the appellant, especially, in view of the fact that the benefit granted to the appellant by the Commissioner (Appeals) was confined only to one of the scrips, that was issued prior to the public notice issued by the DGFT. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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2015 (12) TMI 1302
Demand of differential duty - Release of goods - Held that:- Following the precedent of this court, there shall be a direction that the differential duty is to be assessed by the authorities and on such assessment and intimation, the same shall be paid by the petitioner along with actual duty payable. On such payment, the goods shall be released forthwith leaving the other issues open to the respondents to proceed in accordance with law. The assessment of differential duty shall be completed by the respondent concerned within a period of one week - Petition disposed of.
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2015 (12) TMI 1301
Detention of goods - Smuggling of goods - Misdeclaration - Confiscation - Imposition of redemption fine - Held that:- Admittedly, the representation of the petitioner followed by the reminders have not been considered. The respondents are obligatory under law to take a decision for allowing re-export of the goods on payment of aforesaid fine and penalty. Not having done so, has caused serious prejudice and hardship to the petitioner, despite the order of the first respondent, allowing redemption of the goods under seizure for confiscation for re-export. The petitioner has not received any notice from any higher forum than the first respondent, by which, the order in adjudication passed by the first respondent is under challenge. In the absence of any appeal against the said order of the first respondent, there is no legal impediment for the respondents to act in terms of the order in adjudication dated 14.7.2010 and cause release of the confiscated goods on payment fine and penalty for the purpose of re-export. - There is no denial with regard to the availability of the goods by the customs authorities even after a period of 5 years. The note issued by the Superintendent of Customs dated 21.09.2015 supports the claim of the petitioner. The inaction on the part of the authority is not explained properly in the counter affidavit. In this view also, the continued detention and non-release of the goods at the hands of the respondents cannot be sustained or countenanced - Assessee directed to pay redemption fine - Petition disposed of.
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2015 (12) TMI 1300
Detention of goods - Provisional release of goods - Misuse of IEC Code - misdeclaration related to 'Superior' and 'Fantastic' brands were found - Undervaluation of goods - Held that:- Goods in question are freely importable goods and there is no restriction or prohibition for the same. When the SIIB by de-stuffing the goods inspected and found that the description and weight are fully tallied with the declaration, there is no justifiable reasons for delaying the assessment of duty and release of the goods. Hence, to give quietus to the issue, the respondent is directed to assess the value of the goods as expeditiously as possible according to the prevailing rate. In the meantime, in the interest of justice, as an interim measure for releasing the consignment, the petitioner is directed to pay the actual duty according to the invoice value and further, pay the differential duty to the tune of 30% and for the remaining 70% of differential duty, the petitioner is directed to execute a bond. On such compliance, the goods detained shall be released forthwith. Other proceedings in the manner known to law be proceeded with. - Petition dispose of.
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2015 (12) TMI 1299
Duty demand - Import has obtained the DFIA license by fraud - Transfer of licenses DFIA - Misdeclaration - Transferee Appellants purchased part of such transferable DFIA Licenses from the market after paying due considerations and after verifying these licenses from the website of DGFT - Held that:- A script obtained from the Licensing authority fraudulently cannot give licence to any transferee to avail any Customs duty exemption. Fraud in common parlance means dishonest dealing, deceit or cheating etc. It makes no difference whether fraud is committed by outrightly forging of documents or by willful misdeclaration/misrepresentation. A fraud is a fraud and there are no categories of mild frauds and severe frauds in taxation matters. - Section 28 AAA of the Customs Act, 1962 has been made effective from 28/5/2012 and cannot be made applicable to the present proceedings for the periods prior to 28/5/2012. This provision has been made to give the department a tool also to recover Customs duty even from a person other than the importer of the goods. It is also observed that proviso to Section 28AAA(1) does not absolve the actual importer from payment of duty. Further Hon ble Apex Court in the case of Tata Iron & Steel Co. Ltd. Vs. C.C. Mumbai (2015 (8) TMI 290 - SUPREME COURT) has held that extended period is available to the Revenue for demanding duty from the transferres also.State cannot be deprived of its share of duty if the same is claimed exemption by fraudulent acts of the exporters in the present proceedings.
Duty demands and interest have been correctly confirmed by the Adjudicating authority against all the appellants. However, we are of the considered opinion that penalties are not imposable upon the transferee appellants as they have no knowledge of the nature of goods used and exported by the manufacturers/exporters. Accordingly, penalties imposed upon the transferee appellants are set aside. - Decided partly in favour of assessee.
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2015 (12) TMI 1298
Denial of the benefit of the exemption Notification No.32/2005-Cus. Dt. 08/04/2005 - nexus between the imported and exported goods - Difference of opinion - In view of the difference of views between the two Members, the following points emerge for consideration by a Third Member:
(i) Whether the appellants are covered by the Target Plus Scheme, read with the provisions of Handbook of Procedure, in respect of the imports of RBD Palmolein oil made by them as against the export of Rice and Wheat;
(ii) Whether the appellants have satisfied the criteria of broad nexus between the imported and exported goods;
(iii) Whether the disputed issue is covered by the decisions of the Hon'ble High Court of Bombay and the Hon'ble High Court of Delhi, as observed by Member(Judicial) or the same is distinguishable in the facts and circumstances of the case, as held be Member(Technical); and
(iv) Whether the appeal has to be allowed as held by Member(Judicial) or to be rejected as held by Member(Technical).
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2015 (12) TMI 1254
Auction of goods by the port authorities due to non clearance - Auction done without notice to Assessee - Held that:- Any kind of communication or reply, addressed before or after the notice, does not confer any right on the consignee to seek any legal remedy. Therefore, it is more clear that either the goods should have been cleared soon after the publication of the notice or some steps should have been taken legally by the petitioner - When the petitioner and the respondents are in exchange of correspondences in respect of the clearance of the goods, there is no need for any specific notice regarding the clearance of goods. However, in the case on hand, the agent of the petitioner himself had admitted that he was intimated about the disposal of the consignment and the press notice was issued in the English Daily, dated 19.6.2002 and a copy of the same was affixed in the office of the Cargo Terminal, Chennai and therefore, viewed from any angle, the question of non-issuance of notice before the public auction does not arise. Even after paying the customs duty, the petitioner should have been more vigil and strenuous in clearing the goods. - Court does not find that the action of the auctioning the goods of the petitioner suffers from any infirmity. - action of the auctioning the goods of the petitioner suffers from any infirmity - Decided against Assessee.
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2015 (12) TMI 1253
Confiscation of goods - Penalty u/s 117 - Held that:- 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 all 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. - 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. It is not the case that no penalty has been imposed on the importers in this case. In my opinion under these circumstances penalty imposed by the original authority in all the cases will serve the purpose and therefore I consider that it would not be appropriate to consider the appeals - Decided against Revenue.
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2015 (12) TMI 1252
Classification of goods - Classification under CTH 3004 or under CTH 9018 - Import of Extraneal Peritoneal Dialysis Solution with 7.5% Icodestrin - Held that:- Revenues appeal is against classification of CAPD under 9018 was allowed by the Commissioner (Appeals). The L.A.A. in the impugned order had relied the Tribunals order in the appellants own case reported in [2004 (7) TMI 454 - CESTAT, NEW DELHI]. Revenue appealed against the above Tribunals order and Hon’ble Supreme Court upheld the order [2015 (5) TMI 695 - SUPREME COURT] and dismissed the Revenue appeal. - By respectfully following the Apex courts order in the appellants own case, we hold that CPAD is rightly classifiable under Chapter heading 9018. - Decided against Revenue.
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2015 (12) TMI 1251
Refund of Additional Customs duty - Held that:- Commissioner (Appeals) should grant fair opportunity to the appellant to explain its case. Since, prima facie , it appears that the appellant by the aforesaid averment and evidence has discharged its burden of proof, the authority should examine thoroughly to satisfy the law as to the eligibility of refund of Additional Customs duty claimed by the appellant. - Since the matter has travelled a lot, learned Commissioner (Appeals) should issue notice to the appellant within a month of receipt of this order or the applicant may make an application within one month of receipt of this order before Commissioner (Appeals) to hear the matter afresh and dispose the same by a reasoned and speaking order. - Matter remanded back.
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2015 (12) TMI 1250
Imposition of redemption fine - Enhancement in penalty - Held that:- On the account of redemption fine, there is no material from the appellant to suggest that redemption fine should not have been imposed. There appears no reason to intervene to the quantum of redemption fine determined by learned Commissioner (Appeals). The appellant fails on this count but succeeds on the count of penalty. - Decided partly in favour of assessee.
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2015 (12) TMI 1203
Violation of Regulation 13 (O) of Custom House Agents Licensing Regulations, 2004 - petitioner failed to produce the exporter as per terms of Regulation 13 (o) of CHALR, 2004 - petitioner presented goods for export on behalf of fictitious/bogus exporter whom he cannot produce before the Customs Department though sufficient time was given for same time and again - Held that:- It is a case of clear violation of Clause 6 of Regulation No.13 of CHALR, 2004. The petitioner will not get any help from clause 6 of Circular No.09/10 of the Board. The respondent had not committed any mistake in passing the impugned order with holding the license of the petitioner and petitioner had admitted in ground 6.10 that exporter is involved in bogus and illegal activies and he was not aware of the previous or future transactions of the exporter. The petitioner had further admitted that original exporter had vanished and is absconding and it cannot be said that powers under Regulation 21 could not be exercised. - Decided against Appellant.
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