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Customs - Case Laws
Showing 1 to 20 of 73 Records
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2015 (7) TMI 1417
Import of used tyres - hazardous waste - confiscation - HELD THAT:- Reliance placed in the case of COMMISSIONER OF CUSTOMS (IMPORTS), CHENNAI VERSUS VS. GOVINDAN [2013 (2) TMI 638 - MADRAS HIGH COURT] where it was held that as per the United Nations Environmental Programme vis-à-vis Basel Convention regarding Pneumatic tyres, the lifetime of an original tyre casing must not exceed seven years.
Having perused the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and more particularly definition of clause ‘hazardous waste’ and provisions of Rules, 12, 13, 16 and 23 of the said Rules along with Part B of Schedule III of the said Rules, it is held that the responsible authority / officer of Respondent No.2, Ministry of Environment and Forests, through Joint Director, HSM Division, 2nd Floor, Jal Block, Indira Paryavaran Bhavan, Jor Bagh Road, Aliganj, New Delhi-110003 shall visit the place where the goods in dispute i.e. waste pneumatic tyres are lying. Such Officer should be an expert who possesses the expertise to give the opinion about the quality of the pneumatic tyres.
Such Officer shall give a detailed report with regard waste pneumatic tyres and shall specifically opine whether aforesaid pneumatic tyres are reusuable, retreadable, etc. as provided at entry No.B3140 of Part B of Schedule III to the Hazardous Waste (Management, Handling and Disposal) Rules, 2008.
Petition disposed off.
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2015 (7) TMI 1336
Maintainability of petition - jurisdiction of Settlement Commission - prime stand of the Appellants is that the Writ Petition filed by the Respondent/Petitioner is not perse maintainable because of the reason that as against the Impugned Order revoking license granted to the Customs House Agent, Appeal is provided under Section 129A (1) of the Customs Act, 1962, which lies to the Customs, Excise and Service Tax Appellate Tribunal within 90 days from the date of receipt of copy of the Order.
HELD THAT:- It is to be borne in mind that Section 127-H of the Customs Act, 1962 confers power on the Settlement Commission to grant immunity from prosecution - for any offence under this Act or the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and such immunity may be either in whole or in part from the imposition of a penalty, fine and interest under the Customs act, 1962, in regard to the case covered by the Settlement.
The offence discussed in Section 127-H of the Act means an offence pertaining to the case, covered by the Settlement. Even the power 'Waiver' is expressly conferred by Legislative to the Settlement Commission - Furthermore, as per Section 127-J of the Customs Act, 1962, 'every order' of settlement passed under Sub-Section 5 of Section 127-C shall be conclusive as to the matters stated therein and no matter covered by such order shall save as otherwise provided in this chapter (Chapter, 14-A) be reopened in any proceeding under this Act or under any other law for the time being in force - Also it cannot be forgotten that as per Section 127-M of the Customs Act, 1962 the proceedings before the Settlement Commission shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 and for the purposes of Section 196 of Indian Penal Code (45 of 1860).
In the instant case, there is no two opinion of the fact that the importer was guilty of under valuation etc., and he was let out with the nominal fine, but the punishment of revocation its license and the forfeiture of security deposit of the Respondent/Petitioner, in the considered opinion of this Court is the excessive, arbitrary and capricious one - When the importer had escaped liability and when its case was concluded by the Settlement Commissioner, the Respondent/Petitioner is also to reap similar benefits in the considered opinion of this Court.
This Court comes to an inescapable and resultant conclusion that the Learned Single Judge had rightly allowed the Writ Petition filed by the Respondent / Petitioner - Appeal dismissed.
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2015 (7) TMI 1332
Issuance of speaking order - assessment of the aluminium scrap covered by Bills of Entry Number and Dates as specified in the Annexure to the writ petitions - Valuation of imported goods - enhancement of value - HELD THAT:- This Court finds no embargo to direct the third respondent-The Deputy Commissioner of Customs, to pass a speaking reasoned order. Accordingly, the third respondent is directed to pass a speaking reasoned order under Section 17(5) of Customs Act in respect of assessment of aluminium scrap covered by Bills of Entry specified by the petitioner-firm, within a period of one week from the date of receipt of a copy of this order.
Petition disposed off.
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2015 (7) TMI 1204
Classification of imported goods - Lime Stone Powder - The importer claimed exemption from payment of basic customs duty relying on a Notification bearing No. 46/2011-Cus., Sl. No. 192(1). Such exemption is available to specified goods when imported from specified country - The test report revealed that the samples have the “characteristic of precipitated Calcium Carbonate. It is other than Calcium Carbonate (Natural) - petitioner requested for retesting - Held that: - this Court directs the concerned respondent authority to send a sample of the goods imported drawn in presence of the writ petitioner for sending the same to the National Test House or any other reputed test laboratory which the respondent authorities may deem fit and proper for the purpose of retesting. The expenses of such test shall be borne solely by the writ petitioner. Till such time the report is made available, the impugned order of adjudication shall be kept in abeyance - matter on remand.
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2015 (7) TMI 1189
Discharge of accused - discharge on the basis of the direction issued by the High Court to dispose of the matters on priority basis pertaining to the order of 1996-1997 - Held that: - there are no reasons to proceed against the accused persons and even splitting of the case would not serve the purpose - petition rejected - decided against petitioner.
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2015 (7) TMI 1182
Waiver of pre-deposit - The said order was passed on 30.4.2015 and a period of 8 weeks time was given to the appellant for depositing the dues in question. Neither the dues stand deposited nor any application for recalling of the said ex parte order stands filed by the assessee within a period of more than 2= months. As such, the prayer of the learned advocate to adjourn the matter to a further date so as to enable them to file an application cannot be appreciated and accepted. Learned advocate has not been able to give any valid reason for not taking the action during the intervening period
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2015 (7) TMI 1170
Demand - export of “knitted woollen shawls (Dyed)” - advance licence scheme - mis-declaration of goods - Held that: - In so far as mis-declaration in respect of quantity as well as description of the goods in Shipping Bill No.4319 dated 22.05.1999 is concerned, after confirming the findings to that effect, the CESTAT reduced the redemption fine to ₹ 3,00,000/- lakhs and personal penalty of ₹ 2,00,000/- - We are not inclined to interfere with the discretionary power exercised by the CESTAT in the given facts and circumstances of the case.
Appeal dismissed - decided in favor of respondent-assessee.
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2015 (7) TMI 1158
Maintainability of appeal - Section 130 of the Customs Act, 1962 - the decision in the case of RACAL SURVEY OVERSEAS LTD. Versus COMMISSIONER OF CUS. (IMPORT), MUMBAI [2005 (5) TMI 151 - CESTAT, MUMBAI] referred - Held that: - against the impugned order of the Customs, Excise and Service Tax Appellate Tribunal, appeal had to be filed to the High Court under Section 130 of the Act and the present appeal to this Court is not maintainable - appeal dismissed on this ground alone giving the appellant liberty to approach the High Court
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2015 (7) TMI 1157
Demand - Penalty - Notification No. 13/81-Cus dt. 9.2.1981 - 100% EOU - Held that: - The show cause notice demanded duty under proviso to Section 28(1) and the demand was clearly time barred Commissioner in his order, although referring to violation of Notification No. 13/81, does not mention that in terms of the Bond executed by 100% EOU there is no time limit for demand of duty.
Regarding Penalty - Held that: - once the goods are held not liable to confiscation, the question of penalty does not arise under Section 112 of the Act - Decided in favor of the assessee.
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2015 (7) TMI 1149
Seizure of Foreign Currency - reducing the quantum of redemption fine and penalty - the decision in the case of Shri S. Pandithurai v. Commissioner of Customs [2009 (3) TMI 1046 - CESTAT CHENNAI] relied upon and order of reduced penalty passed - Held that: - Even a cursory perusal of the order passed by the Tribunal reveals that the Tribunal has relied on another decision of its own in Pandithurai’s case for reducing the redemption fine and penalty. However, from the order of the Tribunal it is evident, that the Tribunal has not discussed the applicability of Pandithurai’s case to the facts of the present case for it to reduce the redemption fine and penalty. It is also not clear under what circumstances and what set of facts, fine and penalty were reduced in Pandithurai’s case. Such a conduct of the Tribunal in passing an order mechanically without adverting to the facts of the said case but equating the same to the present case is highly deplorable. Equally deplorable is the conduct of the Department in not producing before us the decision of Pandithurai’s case.
We do not approve of the Tribunal reducing the penalty or fine on the ratio laid down in another decision. Each case will have to be decided on its own merits and the ratio, if any, to be followed on the legal plea and not otherwise. It may be so that a particular decision could be taken into consideration, but no straight jacket formula can be adopted, on the basis of one decision, to reduce the quantum of fine or penalty in another case. If the facts in Pandithurai’s case had been discussed by the Tribunal, probably it would have thrown much light, on the decision arrived at in that case which would have prompted the Tribunal to reduce the quantum. As already pointed out above, the department has not placed the decision in Pandithurai’s case before this Court and the Department counsel is also equally blank about the decision, which is staring on his face in the impugned order. In such circumstances, this Court is of the considered opinion that the matter has to be remanded to the Tribunal to consider the issue afresh and give a reasoned order insofar as fine and penalty is concerned.
Appeal disposed off - matter remanded.
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2015 (7) TMI 1136
Whether M/s. Ultra Tech Environmental Consultancy and Laboratory and Aavanira Biotech Pvt Ltd are accredited by the Ministry of Environment and Forest to test the samples for parameters of rubber process oil namely; colour, Ash Content, Flash Point(COC), Density, Kinematic Viscosity, Aniline Point, Poly Aromatic Hydrocarbon(PAHs) and Test for Halogens etc. - Held that: - M/s. Ultra Tech Environmental Consultancy and Laboratory replied that they are not accredited by the Ministry to test parameters. The accreditation is given for testing certain products; it is not given for testing particular parameters.
With the consent of both sides, the samples may be drawn in the presence of both sides and send to M/s. Ultra Tech Environmental Consultancy and Laboratory. While sending the samples for testing, it may be kept in mind that the accreditation by the Ministry of Environment and Forest is for product testing as per Standards and not for individual parameters. Letter may be addressed to the laboratory accordingly.
Drawal of samples and analysis may be completed within 15 days. The sample may be tested by the laboratory to meet the requirement of the Hazardous Waste(Management, Handling and Transboundary Movement) Rules, 2008 - Cost of analysis to be born by the applicant.
Application disposed off.
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2015 (7) TMI 1097
Seeking direction to issue NOC to allow clearance of duty payable on perishable goods - Imported Rostaa processed triangle cheese lying in the warehouse for more than four months.
Held that:- the petitioner as per the requirement of notification S.O. 655(E) dated 07.07.2001 of the Ministry of Agriculture imported the subject goods into India with a SIP and the said shipment arrived into India on 10.09.2014, which is prior to the notification S.O. 2666(E) was introduced on 17.10.2014. Therefore, the notification S.O. 2666 (E) itself provides a remedy to the petitioner in terms of applicability of the provision of S.O. 655 (E) over its subject goods. Since the consignment already arrived before the notification S.O. 2666 (E) came into force, the argument that the petitioner‘s subject goods satisfy the requirements as prescribed under S.O. 655 (E) find favour with this Court.
However, as the petitioner has not been able to convince this Court so as to whether the said certification meets the Indian vegetarian requirements and standards. Therefore, the submission of the respondents that the conditions need to be certified as the other ingredients viz. cheddar cheese, butter, milk protein concentrate have been imported from other countries by the manufacturer in Egypt in addition to skimmed milk powder from India, finds favour with this Court.
It is a contention of the respondents that the concerned department has asked the petitioner to submit the test reports and animal rennet certification conducted by the Egyptian authority so that the department can examine and take a considerate view, but the petitioner has failed to oblige. Since it has been confirmed now that the Egyptian authorities will not issue the health certificate as per the Indian requirement for this particular consignment, this court is of the view that the testing of the samples has to be conducted in India. There is no justifiable reason so as to understand why any deficiency on the part of the Indian importer/petitioner cannot be made up by the petitioner itself in India. The object of this entire process is to satisfy the respondents/concerned authority that no animal rennet has been used in the process of creation of the subject goods. In order to issue a NOC, the respondents must be satisfied so as to the veracity of the declaration on the label and the requisite tests need to be carried out in this regard.
Therefore, this court gives the liberty to the petitioner to allow the Central Government to take requisite samples of the subject goods for conducting the necessary tests or if the petitioner wants to get the samples tested from the Central Government authorized and approved laboratories; he may be entitled to do so. The results of such samples are to be provided to respondent No.4 who may then take a decision whether the products are entitled to be released or not based upon such samples. Petition disposed of
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2015 (7) TMI 1095
Determination of assessable value of export goods - Iron ores - exported after 1-1-2009 - Held that:- Tribunal had already decided the issue and observed that for the period after 1-1-2009, the said goods be assessed to duty adopting the FOB Price reported in [2014 (4) TMI 658 - CESTAT KOLKATA] and later followed in the appellant’s own case reported in [2014 (4) TMI 1117 - CESTAT KOLKATA]. By following the same, the said issue is decided in favour of the Revenue and against the respondent.
Whether duty to be calculated on ‘Wet Weight’ basis or on the transaction value on ‘Dry Weight’ basis - period after 13-6-2008 - Held that:- Tribunal had decided the issue in favour of the assessee, observing that the export goods namely, Iron Ore Fines, be assessed to duty, adopting the criteria of ‘Dry Weight’, as agreed to between the assessee and the overseas purchasers, reported in [2014 (8) TMI 213 - CESTAT KOLKATA].
Determination of assessable value - on the basis of Bench-Marked Price of CCCMMC - Evidence/data not supplied to the respondent - Held that:- the matter is remanded back to the ld. Adjudicating Authority for re-determination of the assessable value , after supplying the necessary data to the respondent, in the appellant's own case reported in [2014 (4) TMI 1117 - CESTAT KOLKATA]. - Appeal disposed of
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2015 (7) TMI 1093
Entitlement for bail - Recovery of gold - Petitioner contended that the offence, if it is taken separately, is bailable however, the prosecution has clubbed many past alleged incidences though no recovery of gold was made in the past from the petitioners. In view of above, petitioners are entitled for the bail - Held that:- the issue raised by the applicant has already been decided by the co-ordinate Bench of this Court in the case of Smt. Amal Mubarak Salim Al Reiyami v. Union of India & Ors. [2015 (9) TMI 196 - RAJASTHAN HIGH COURT]. The clubbing of total quantity of gold is permitted to find out whether the offence is bailable or non-bailable. If the total value, after clubbing, comes to more than ₹ 1 crore, it does not remain the bailable offence. - Decided against the applicant
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2015 (7) TMI 1091
Maintainability - Letter of Assistant Commissioner - Request for cross-examination rejected - No reason for the same communicated - Held that:- the letter dated 2-7-2015 signed and issued by the Assistant Commissioner (Adjudication) cannot be considered as decision or order passed by the Commissioner (Customs), as the Adjudicating Authority. Even assuming that the said communication is to be considered as an appealable order, yet in view of the fact that the Assistant Commissioner has conveyed the decision of the Commissioner (Customs), but appeal against the said communication is premature, in view of the fact that the order of rejection of the request for cross-examination by the Adjudicating Authority has not been passed and communicated to the appellant. Therefore, the letter of Assistant Commissioner (Adjudication) is not maintainable. - Early hearing application dismissed
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2015 (7) TMI 1086
Seeking non-release of foreigners on bail which are in judicial custody - brought six bricks of gold - goods seized and liable to be confiscated - Held that:- as per Chapter 71 of Classifications of Export & Import Items (with Customs Tariff Rates & Exemptions 2015-20) under Notes in clause 4 (A) it is prescribed that “precious metal” meats silver, gold and platinum. The duty upon the said metals is 24.463% and policy on the said metal is free to import. The gold is not banned to be imported in India, but it comes under the restricted items which can be imported only with certain conditions and under policy which is obviously not available to the respondents. Therefore, no doubt, the seized goods are liable for confiscation, penalty and to be dealt under the Customs Act. By granting bail, the learned trial court has not discharged the respondents from the case. Simply because they are foreigners cannot be kept detained in judicial custody if they are entitled to be released on bail. Further the respondents are directed to surrender their pass-ports before the Trial Court. The learned trial court is at liberty to release the respondents on the same terms and conditions as imposed vide its order dated 29.06.2015 and by this Court. - Decided against the revenue
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2015 (7) TMI 1075
Availment of benefit under Notification No. 01/2011-CE dated 1.3.2011 - for the period prior to the fresh notification issued raising CVD @ 6% - Payment of duty @ 2% CVD on goods imported through Nepal - Petitioner contended that representation made before Assistant Commissioner of Customs on 22.5.2015 has not yet been disposed of and he has been compelled to keep on paying CVD at the higher rate of 6 %, though under protest - Held that:- let a fresh representation be filed by the petitioner along with a copy of the earlier representation dated 22.5.2015 as also a copy of the order of the Supreme Court in the case of M/s. SRF Ltd vs. Commissioner of Customs, Chennai [2015 (4) TMI 561 - SUPREME COURT] within a period of two weeks from today so that it may be disposed of expeditiously. - Writ application disposed of
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2015 (7) TMI 1069
Jurisdiction to entertain appeal - Restoration of appeal - Dismissed for non-compliance of predeposit as per the Hon’ble High Court’s order - Held that:- in view of the Hon’ble Supreme Court’s decision in the case of Lindt Exports Vs. Commissioner [2013 (9) TMI 1102 - SUPREME COURT], Tribunal has no jurisdiction to entertain the application for restoration of appeal. - Appeal dismissed
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2015 (7) TMI 1060
Application for early hearing - evidence of credibility of bringing gold - Adjudicating authority has made absolute confiscation of the gold and cross-examination was denied by Commissioner (Appeals). - Considering the prayer, EH application is allowed.
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2015 (7) TMI 1045
Revocation of CHA License - Investigation not completed within 9 months - Held that:- Appellant s licence has been suspended since 19/12/2013 and the same continued to remain under suspension by the impugned order dated 13/1/2014. CBLR, 2013 itself has prescribed an over all time limit of 9 months to complete the proceedings against the CHA right from the initiation of the proceedings to its final disposal. None of the time limit has been adhered by custom authority in this case. In these circumstances it will be in the interest of equity and justice to set aside the suspension and allow the appellant to function as a CHA pending completion of inquiry by the custom authority - Decided in favour of Appellant.
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