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Customs - Case Laws
Showing 41 to 60 of 73 Records
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2015 (7) TMI 750
Jurisdiction of Court - Court in previous judgment held that This court has no jurisdiction to entertain these appeals - Held that:- The original Article 226 of the Constitution of India came up for consideration before the Supreme Court of India in ELECTION COMMISSION, INDIA vs SAKA VENKATA RAO [1953 (2) TMI 39 - SUPREME COURT]. It was held that the location of the respondent would give territorial jurisdiction to the High Courts under Article 226 of the Constitution of India. The situs of the cause of action was held to be material for this purpose. The Constitution (15th Amendment) Act, 1963, brought clause (1A) to provide that the High Court, within whose jurisdiction the cause of action arises, fully or partly, would, also, have the jurisdiction to entertain an application under Article 226 of the Constitution of India. The result of the amendment is that the accrual of cause of action is made an additional ground to confer jurisdiction to a High Court under the said Article. With the insertion of clause (1A), no new jurisdiction was conferred on the High Court but, it provided an additional ground and extended the jurisdiction beyond the boundaries of the State if the cause of action arose within its territory.
The consignments were received by the writ petitioner at Delhi air cargo complex. They were cleared by the authorities at Delhi, after obtaining clarification from the Board of Customs. The consignments were cleared for home consumption upon acceptance of the duties as mentioned in the said notification without any demur. The writ petitioner dispatched those gold dore bars to Uttarakhand. The shipments were refined and the refined gold bars were brought back from Uttarakhand to Bengaluru for sale and manufacture of gold jewellery. - The jurisdiction under Article 226 of the Constitution of India can be invoked if even a fraction of the cause of action arises within the territorial jurisdiction of the High Court. Against the aforesaid background, it is difficult to uphold the view taken by the Hon'ble Judge that this court had no territorial jurisdiction to entertain the writ petition - Decided in favour of appellant.
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2015 (7) TMI 749
Validity of detention order - Order under COFEPOSA - Violative of constitution of India - Held that:- The constitutionality of COFEPOSA has been already upheld by a nine Judge Bench of this Court. Its constitutionality is again sought to be assailed by the petitioners in the present matter on the ground that with the change of legal regime by repeal of FERA and enactment of FEMA (the provisions contained in FEMA did not regard its violation a criminal offence) the intent and object behind the enactment of preventive detention in COFEPOSA had ceased to exist and continuation of impugned provision in COFEPOSA was violative of Article 21 read with Articles 14 and 19 of the Constitution.
The menace of smuggling and foreign exchange violations has to be curbed. Notwithstanding the many disadvantages of preventive detention, particularly in a country like ours where right to personal liberty has been placed on a very high pedestal, the Constitution has adopted preventive detention to prevent the greater evil of elements imperiling the security, the safety of State and the welfare of the Nation.
On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional. There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to the state security. After all, the essential concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State.
The detaining Authority must apply its mind properly before passing order of detention. The Authority is obliged while passing order of detention and taking away liberty of the citizen of this country to exercise due care and caution and ensure that the person detained is so detained on grounds which justify the detention in the interest of the country. Further the proceedings in the matter of detention and the order of detention should show that such care and caution was exercised and reflects sense of responsibility while depriving citizen of his liberty without trial. - there is a bond executed and furnished and which records an undertaking of the detenu that he would not leave India without prior permission of the competent official or the Court. Pertinently, the learned Counsel does not dispute that the passport in the case before us was returned to the detenu. The detenu, thus, was free to utilize the passport. It may be that the passport authority has independent powers and after it was informed of the prejudicial activities of the detenu, it would have prevented departure from India, but that by itself does not mean that the detaining authority in any way is prevented in law from making order of detention. The passport is not surrendered nor is it in custody of the Authority. It is with the detenu. There was, therefore, a definite apprehension that the detenu would use it to smuggle foreign currency out of India. The satisfaction in that behalf is thus based on cogent and reliable material including the past record of the detenu. Thus, there was an application of mind to germane and relevant factors necessary to invoke Section 3(1)(i) of the COFEPOSA.
It is a condition on which the bail has been granted. The condition inter alia is that the detenu shall attend the office of the officer or the Court on every day on which the investigation or trial is held and an undertaking is given by the detenu that he will not leave India without prior written permission of the concerned officer or the Court as may be. This is not enough to nullify the subjective satisfaction and which is recorded in the present case.
This is not a case where the material or the grounds were not supplied. Rather this is a case where the detenu desired to have better and further particulars about the documents and their contents. The documents speak for themselves. They were supplied and some of them were clearly referred in the representation. The particulars thereof and as sought were not necessary to make a meaningful representation. Apart therefrom, the complaint in that behalf is identical and based on the same plea regarding alleged variance in the subjective satisfaction in the Detention Order and the reasons in support thereof. We have already dealt with and rejected it. Once we have found that the subjective satisfaction and as recorded clearly spells out the distinction in law, then, we are in agreement with Mr.Yagnik that one word or sentence from the detention order cannot be picked up and read in isolation or torn out of context. The subjective satisfaction is based on the detaining authority's opinion that it is necessary to detain the detenu so as to prevent him from indulging in smuggling activities in future. - detenu's rights guaranteed by Article 22 of the Constitution of India are in no way infringed nor is the mandate of the said Article in any way violated. There is ample opportunity given to him and to make an effective and meaningful representation. Even on that count, we do not find that the detention order suffers from any legal infirmity. - decided against the appellant.
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2015 (7) TMI 748
Waiver of pre deposit - Evasion of duty - suppression of FOB value - Penalty u/s 114AA - Held that:- Tribunal has committed no error. Firstly, against the total penalty demand of more than ₹ 10 crores, the Tribunal imposed condition of pre-deposit of merely ₹ 10 lacs which comes to just about one per cent of the amount. Secondly, in the earlier case, the penalty imposed was ₹ 25 lacs against which the Tribunal imposed the condition of pre-deposit of ₹ 1 lac. Merely because the allegations are common, the Tribunal is not bound to adopt the same figure irrespective of the quantum involved in each case. The condition of pre-deposit has some rational relation to the total demand confirmed by the adjudicating authority - Decided against assessee.
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2015 (7) TMI 747
Denial of benefit of Notification No. 93/2004-Cus., dated 10-9-2004 - Held that:- Following the decision of Commr. of S.T., Bangalore v. Scott Wilson Kirkpatrick (I) Pvt. Ltd. reported in [2011 (4) TMI 500 - KARNATAKA HIGH COURT], it is held that the issue is of interpretation of notification, therefore is matter should lie before Apex Court - Appeal not maintainable - Decided against Revenue.
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2015 (7) TMI 704
Duty demand - Non issue of Form 2B - Held that:- Considering the comprehensive application filed, and to include the liability raised by Customs (Seaport) and Customs (Air) and in view of the order of this Court passed in previous case, learned counsel for the assessee submits that on receipt of Form 2B, the assessee will comply with the requirements as contained in the said certificate within the statutory period. - order passed by the Customs, Excise and Service Tax Appellate Tribunal does not call for any interference. - Decided against assessee.
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2015 (7) TMI 455
Revocation of Customs Broker Licence - belated issuance of SCN - allegation that, it was found that the Customs Broker, the petitioner herein had attempted to assist and clear the impugned goods at a much lower value, to evade payment of applicable duties by suppressing the Load Port Chartered Engineer's Certificate and original purchase invoices of the subject machineries, which would have resulted a possible revenue loss to the Government, to the tune of ₹ 1.05 crores.
Held that:- it is explicit that the show cause notice under Regulation 20(1) is required to be issued within 90 days from the date of receipt of the offence report as prescribed under Regulation 22. In the present case, the offence report was received on 29.08.2012 and the show cause notice was issued on 05.03.2015, by which, it is clearly revealed that it was issued beyond the period stipulated in Regulation 22(1). Therefore, when the impugned show cause notice has been issued beyond the statutory period, as rightly pointed out by the learned senior counsel for the petitioner that the same cannot be sustained for want of jurisdiction. - SCN set aside.
In view of setting aside the impugned show case notice dated 05.03.2015, there is no impediment for the respondent to renew the Customs Broker Licence of the petitioner in terms of Regulation 9(1) of the CBLR, 2013. - Decided in favor of appellant.
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2015 (7) TMI 419
Imprisonment for non payment of dues - carrying smuggled gold - offences punishable under Sections 132 and 135(1)(a) of the Customs Act, 1962 - Held that:- It is a settled law that the confessional statement made by an accused under Section 108 of the Customs Act is admissible in evidence for prosecution under section 135 of the Customs Act. Though, it was the case of the petitioner that he had retracted his confessional statement, but he failed to show that the same was recorded under any inducement or promise or threat or the same was tutored one. It has been shown from the record that the petitioner made the statement voluntarily and the same is admissible in evidence.
Though the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice. The High Court is not required to interfere in the concurrent finding of facts. This Court is of the considered opinion that the present case is not a fit case where the revisional jurisdiction is required to be exercised on the concurrent finding of facts recorded by the Courts below.
This Court does not find any procedural irregularity, overlooking of material evidence, misreading of the same or miscarriage of justice. There is no jurisdictional error in the judgments passed by the Courts below. Neither there is any failure to exercise the jurisdiction or exceeding of jurisdiction by the learned trial Court and appellate Court while passing the judgment. The discussion made above in the light of evidence/material led by the prosecution, does not warrant any interference in the conclusion drawn by the Courts below. Thus, the judgment of conviction and order on sentence passed by the learned trial Court as well as the judgment passed by the learned appellate Court are upheld. The petitioner is directed to surrender before the learned trial court concerned to serve the sentence of imprisonment.
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2015 (7) TMI 418
Renewal / Cancellation of CHA license - proceedings in the nature of administrative or of quasi-judicial - non compliance of the regulations of the CHALR 2004 - Held that:- A perusal of the order of the Tribunal reveals that the Tribunal on the wrong premise passed an order that an appeal is not maintainable in a case of renewal of CHA licence, which is not a case on hand. The issue on hand is with regard to the cancellation of licence issued to the first respondent, whereas the Tribunal held that the order of the Adjudicating Authority is with regard to renewal of licence, which is administrative in nature. Hence, the Tribunal on the wrong premise dismissed the appeal filed by the Revenue. Accordingly, we set aside the order of the Tribunal and remanded the matter back to the Tribunal for fresh consideration. - Decided in favor of revenue.
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2015 (7) TMI 417
Validity of SCN - Proper officer - DRI officials have been appointed as customs officers - Seizure of 15.16kg of gold bars of foreign origin - confiscation and penalty - petitioner has retracted all the statements - whether the show cause notice has pre-determined the issue and it is the pre-meditated in nature - Held that:- the contention of the learned Senior Counsel that the insertion of sub-section (11) to Section 28 is only with regard to the power exercisable under Section 28 of the Act and would not apply to Section 124 is not tenable in the light of the fact that the notifications referred to supra states that all officers of the Directorate of Revenue Intelligence to be Officers of Customs and the Notifications dated 26-4-1990, 6-7-2011 and 21-6-2012 and the Circulars dated 15-2-1999 and 23-9-2009, make it manifestly clear that DRI officials have been appointed as customs officers by in exercise of the powers conferred under Section 4(1) of the Act.
Issuance of SCN - Held that:- an act or omission which will render the goods liable for confiscation under Section 111 or 113 of the Act, is an act of smuggling as defined under Section 2(39) and where there is smuggling, Chapter 14 would get attracted. Section 113 provides for confiscation of goods attempted to be improperly exported and Section 122 refers only to the question of adjudication process and the limit of officers and it is only under Section 124, which says that before confiscating the goods or imposing any penalty, the show cause notice should be given to the person concern.
The show cause notice runs to 41 pages and most of which are the summary of the statements given by the petitioner and other co-noticees, the material which was recovered the result of the search conducted in the residence etc. Therefore, this Court has no hesitation to hold that the show cause notice is neither pre-meditated nor pre-conceived rather it is an attempt to place all the facts, which have been recorded by the officers of the DRI in the course of investigation. Therefore, by elaborately setting out all the facts in the show cause notice in fact provides full and effective opportunity to the petitioner to put forth his objections to the show cause notice, which will be adjudicated by a different officer and not the respondent, who issued the show cause notice.
The Writ Petition fails and it is dismissed - Decided against the appellant.
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2015 (7) TMI 393
Refund of TED - Deemed export - Jurisdiction to claim refund is Central Excise or DGFT - Terminal Excise Duty (in short the TED) has been paid by the petitioner - petitioner’s request for refund of the TED has been, evidently, rejected by the JDGFT- Held that:- insofar as the prayer (a) is concerned, the same cannot be granted; not for the reason that the petitioner does not have a case, but for the reason that, it seeks setting aside of a file noting. It is not disputed by the petitioner before me that the impugned file noting has not been formally communicated to the petitioner. A decision, not communicated, cannot be assailed by instituting an action in court.
The common case of parties before me, is that, exemption was not availed of by the petitioner, instead the petitioner ended paying TED. Therefore, the petitioner had two options: First, to seek refund of the Excise Duty from the Excise Department. Second to seek refund from the respondent herein. The petitioner has chosen the latter. The FTP, as it then existed, did not de-bar the petitioner from seeking a refund from one of the two departments, subject to fulfilment of other conditions.
Joint Director General of Foreign Trade, will examine the case of the petitioner and pass a suitable order thereafter.
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2015 (7) TMI 379
100% EOU - allegation of diversion of the imported duty free raw material through its related firm - Further, during search, As such the officers had drawn a reasonable belief that the goods of foreign origin were not acquired validly and seized the same under Section 110 of the Customs Act, 1962. - Held that:- It is not denied that there might be some lapses in the observance of said notification, however, from the record there is no glaring averment which could establish that there was some deliberate deviation/disposal of material or any other loss to Revenue, but imported/duty free procured material were utilized in accordance with the notifications, for the manufacture of export products which were exported under physical supervision of Central Excise officers.
The Hon’ble Apex Court in the case of Mangalore Chemicals & Fertilizers v. Deputy Commissioner [1991 (8) TMI 83 - SUPREME COURT OF INDIA] held that non-compliance with substantive and mandatory requirement fatal but non-compliance with formal and procedural requirement not fatal to the application for grant of permission.
We are afraid the stand of the Revenue suffers from certain basic fallacies, besides being wholly technical. - There are condition and conditions, some may be substantive mandatory based on considerations of policy, and some others may merely belong to the area of procedure. - In fact, it is now a trite law that the procedural infraction of notifications/circulars etc. are to be condoned if exports have really taken place and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirements. The core aspect or fundamental requirement for debate is its manufacture and subsequent export. As long as this requirement is met, other procedural deviations can be condoned.
All documents relating to removal were under scrutiny by these officers and relevant documents relating to removals were subjected to proper scrutiny. It is relevant from the record that the department did not point out any contraventions. In this background, the issuance of demand in the year 2005 for non-compliance with procedural rules for the year 2001-02 to 2003-04 are unsustainable and liable to be rejected. - Decided against the revenue.
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2015 (7) TMI 315
Denial of CENVAT Credit - whether the appellants, who have paid the Additional Custom Duty through DEPB are entitled to avail the CENVAT credit of the same or not - Held that:- Decision of the Larger Bench in the case of ESSAR Steel Ltd., [2004 (8) TMI 123 - CESTAT, NEW DELHI] stands considered by Hon'ble High Court of Madras and by order passed in the case of CCE, Chennai Vs. SPIC Ltd., it does not stand concurred with. It stands held by the Hon'ble High Court that even when the duty stands paid under DEPB pass book entries, the assessee was eligible to claim the credit of the same. - Impugned order is set aside - Decided in favour of assessee.
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2015 (7) TMI 301
Waiver of pre deposit - Whether, Tribunal in passing order of two different amounts by way of predeposit and bank guarantee in the Stay Petition for waiver of predeposit of penalty amounts to non application of mind, self contradictory and therefore, unsustainable in law when the Directorate is already having seized Indian currency which was not confiscated and the foreign currencies could not have been seized through addendum without affording opportunity - Held that:- In the order under challenge at more places than one the Tribunal has observed that the main appeal arising out of the adjudication dated 22.1.2010 and the subsequent addendum dated 15.2.2010 raises several questions of facts and law. After noting the rival contentions, the Tribunal in paragraph 7 has observed that no final view can be expressed at the stage of grant of stay but the grounds would require indepth consideration. Apart from the violation of principles of natural justice, the other aspects on merits also require deeper scrutiny. The Tribunal has observed that it is convinced that the appellant has an arguable case. In the circumstances, we do not think why the conditional order was passed. The direction to deposit 10% of the total amount of penalty and to furnish bank guarantee for the balance 90% of the sum adjudicated and demanded, in effect and in substance means denial of stay. This is clear from the conditions that have been imposed. Once the case is arguable and the Tribunal is required to consider several grounds and indepth, then we do not see justification for imposition of such conditions. - Stay granted.
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2015 (7) TMI 300
Penalty u/s 112 of the Customs Act,1962 read with Section 114A of the Customs Act, 1962 - Held that:- Revenue could not place any judgement contrary to the decision of Tribunal in P. C. Chakraborty's case (2010 (6) TMI 398 - CESTAT, KOLKATA). - Following the same - Penalty is set aside - Decided in favour of Appellant.
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2015 (7) TMI 261
Under-valuation of goods - Imported computer parts - penalties imposed upon the CHA and its Managing Director separately - Held that:- As regards M/s. Indam Recycling Pvt. Ltd., we find that the demand of duty to the extent of ₹ 63.46 lakhs stand confirmed on the finding of under-valuation of the computer parts. Learned AR brings it to our notice that the appellant, during the course of investigations, have accepted the under-valuation. Further one of the live consignments, where the investigations were started by the DRI, stand abandoned by the appellant. As such at this prima facie stage, we are of the view that the said M/s. Indam Recycling Pvt. Ltd. has not made out a good prima facie case in its favour so as to dispense with the condition of predeposit of entire duty. Accordingly, we direct M/s.Indam Recycling Pvt. Ltd. to deposit an amount of ₹ 10 lakhs as a condition of hearing of its appeal. - Penalty imposed on the CHA is reduced - Decided partly in favour of Appellant.
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2015 (7) TMI 260
Waiver of pre deposit - Demand of differential duty - Held that:- First, this bench on in the case of Mohit Minerals Pvt. Ltd, has taken a view that once the issue has been referred to a Larger Bench, as a convention of waiver of pre-deposit of amount involved needs to be allowed and secondly, the bench presided over by the Hon'ble President of CESTAT in Hyderabad in the case of NSL Sugars Ltd., has also noted the matter has been referred to Larger Bench and stay has been granted. We find that when the matter was referred to Larger Bench, the referral Bench has granted stay and then referred the issue to the Larger Bench, which we need to follow. Since the issue of demand of differential customs duty on the coal imported as to whether bituminous coal or steam coal has been referred to Larger Bench, we allow the application for waiver of pre-deposit of amount involved and stay recovery thereof till the disposal of the appeal. - Stay granted.
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2015 (7) TMI 259
Extension of stay order - Appellant contend that their appeals has not come up for disposal for no fault of theirs - Held that:- as the stay in the present case was in force beyond 07.08.2014, the same would continue till the disposal of the appeal. - Decision in the case of M/s. Venketeshwara Filaments Pvt. Ltd. & Ors. Vs. CCE & ST., Vapi [2014 (12) TMI 227 - CESTAT AHMEDABAD] followed - Stay extended.
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2015 (7) TMI 223
Valuation of goods - Enhancement in value of goods - Held that:- in spite of clear directions of the Commissioner (Appeals) vide Order-in-Appeal dated 07.08.2008 the Order-in-Original dated 28.07.2009 was issued by disregarding those directions of the Commissioner (Appeals). Therefore, the Commissioner (Appeals) is right in observing that the said Order-in-Original dated 28.07.2009 is not sustainable as no details have been given regarding NIDB data, which has been referred to in the Order-in-Original (dated 28.07.2009). Further, the Order-in-Original mentioned that "I find merit in the contentions of the Department that the value of the goods "appeared to be low". There is no basis as how the adjudicating authority found merit in the contentions of the Department and in any case he (i.e., the adjudicating authority) only stated that the value "appeared very low". We may mention here that this case has travelled upto Commissioner (Appeals) twice and even the second time, the adjudicating authority failed the requirement of passing a speaking order complying with the directions of the Commissioner (Appeals) contained in Order-in-Appeal dated 07.08.2008. In these circumstances, we are of the view that the impugned Order-in-Appeal (which contained detailed analysis as to why the Order-in- Original dated 28.07.2009 is not sustainable) suffers from no such infirmity as to warrant our intervention - Decided against Revenue.
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2015 (7) TMI 222
Denial of refund claim - Bar of limitation - Held that:- refund claim of the Appellant has been rejected as time barred under Section 27 of the Customs Act, 1962 on the ground that the OIA passed by the First Appellate Authority was upheld by CESTAT. In this regard, it is relevant that the Hon'ble Delhi High Court in the case of CC, ICD, New Delhi Vs Chandra Prabhu International Ltd (2014 (3) TMI 640 - DELHI HIGH COURT) has held that the refund of anti dumping duty will be covered under the provisions of Section 9AA of the Customs Tariff Act and that the provisions of Section 9A(8) of the Customs Tariff Act has got only extremely restricted application. - refund claim cannot be rejected as time barred under Section 27 of Customs Act, 1962 in the absence of any Rules of limitation framed under Section 9AA(2)(i) of Customs Tariff Act. A reasonable period has to be considered as appropriate for filing refund claim. As other refund claims of anti dumping duty of the Appellant after issuing of corrigendum were sanctioned to the Appellant, it has to be held that the refund claim filed by the Appellant is not time barred, when anti dumping duty after issue of corrigendum dt.31.03.2011 to Notification No.30/2011-Cus, dt.14.07.2010, became without authority of law. - Decided in favour of assessee.
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2015 (7) TMI 179
Penalty u/s 114A - allegation of mis-declaring that export product - availing the benefit of export promotion scheme viz. Vishesh Krish & Gram Upaj Yojana Scheme (VKGUY) - export of Oil Cake Meal - Held that:- There is no doubt that in the present proceedings, oil was extracted by a combination of both by expelling process and by solvent extraction. There was thus a bonafide opinion on the part of the Appellant, based on their understanding, that when both the processes of expelling and solvent extraction are used then the resultant meal will continue to be called as expeller variety of oil cake meal. Though the reasoning given by the Appellant was not accepted by the Adjudicating authority, while deciding the classification, but it cannot be said that there was a deliberate act of mis-declaring, knowingly and intentionally, while describing the export product.
If an incorrect exemption is claimed by the Appellant, as a matter of belief then it cannot be considered as a declaration intentionally made to evade customs duty. The ratio of the above law laid down by Hon’ble Apex Court will be applicable to the present facts & circumstances as the Appellant was holding a bonafide belief that so long as majority of the oil is extracted by expelling process, the resultant meal will continue to be classified as expeller variety of oil cake meal. In view of the above observations and settled proposition of law, there was no justification for imposing penalty upon the Appellant under Section 114AA of the Customs Act, 1962 - Decided in favour of assessee.
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