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Customs - Case Laws
Showing 61 to 73 of 73 Records
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2015 (7) TMI 178
Suspension of custodianship of CFS - illegal removal of seized goods due to failure on the part of custodian not ensuring safety and security of the seized goods kept under the appellant's custody - Held that:- Commissioner of Customs has rightly exercised the power to suspend the custodianship of appellant. Appellant s reliance on case laws which are related to suspension of CHA licence under CHALR and the appellant s plea is that provisions of CHALR and HCCAR are pari materia not acceptable for the reasons that Container Freight Station (CFS) who is appointed by the Government for handling import and export cargo as Terminal operator cannot be equated with licence issued to Custom House Agent under CHALR. The obligation of custodian of CFS and the role played by them in handling the cargo including safety and security of the cargo are entirely governed by strict conditions as set out in HCCAR whereas the CHA only acts as an agent between customs & importer/exporter in processing of document and clearance of cargo. Therefore, the role of CFS as custodian and role of CHA are far different and cannot be termed as pari materia.
Suspension was ordered only in December 2004 and the Custom Department is yet to complete their investigation. We also find that seized containers are recovered by the police the subsequent investigation and filing of charge sheet by the police is still pending. Therefore, by considering the serious nature of offence and breach of conditions of regulations and also taking into account the past adverse instances and conduct of the appellant of identical smuggling of Red Sanders and other goods detected in appellant s own premises, we hold that the bonafide and credibility of conduct of custodian-appellant raises serious doubt and the investigation by Customs and Police authorities is still pending and yet to be completed and if appellants are allowed to continue as custodian it will certainly cause jeopardy and hamper the process of investigation. Accordingly, we hold that appellant s plea for setting aside the suspension order does not merit consideration and the suspension order is liable to be upheld. - Decided against Appellant.
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2015 (7) TMI 148
Valuation of goods - Old and used second hand imported monitors and computer parts - Held that:- Commissioner (Appeals) has already reduced the redemption fine from ₹ 3.30 Lakhs to ₹ 2.50 Lakhs and penalty from ₹ 1.30 Lakhs to ₹ 75,000/-. Ld. Advocate has brought to our notice the other decision of the Tribunal where the redemption fine was reduced to 10% and penalty to 5%. Our attention stands drawn to a latest decision of the Honble Punjab & Haryana High Courts decision in the case of B.E. Office Automation Products vide final order dated 18.11.2013, wherein the Honble High Court has held that keeping in view the element of wiping out of profit in the interface of expenditure incurred on detention and demurrage charges as also in defraying of legal expenses and interest, redemption fine of 10% of the value assessed by the department and penalty of 5% of such value would suffice. By adopting the same criteria, we reduce the redemption fine to 10% and penalty to 5% of the value of the imported goods. - Decided partly in favour of assessee.
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2015 (7) TMI 132
Demand of differential duty - Rate of duty - Maintainability of appeal - Held that:- In view of the provision of Section 130, which exempts appeal to be entertained by the High Court in relation to rate of duty, the objection as raised by the respondent as regards maintainability is liable to be sustained in view of the decision of the Supreme Court in Navin Chemicals case (1993 (9) TMI 107 - SUPREME COURT OF INDIA), which decision has been followed by this Court in Commissioner of Central Excise Vs - Vadapalani Press (2015 (1) TMI 318 - MADRAS HIGH COURT). - Appeal not maintainable - Decided against Revenue.
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2015 (7) TMI 131
Denial of refund claim - whether the Tribunal was justified in dismissing the restoration application on the premise that COD clearance is required - Held that:- Court extended the concept of dispute resolution by High-Powered Committee to amicably resolve the disputes involving State Government and their instrumentalities. The appeal in this case was filed on 25.09.2004 and therefore, prima facie the appellant is justified in saying that there was no requirement for clearance by the High Powered Committee. The Tribunal was at error in dismissing the appeal at the first instance. Even otherwise, subsequent to the decision of the Supreme Court in the case of Electronics Corporation of India Vs. UOI, reported in [2011 (2) TMI 3 - Supreme Court], the restoration application has been filed on 30.5.2011. The law as it stands on and after 17.2.2011 is that there is no requirement of getting clearance from the COD. The Tribunal had failed to note the decision of the Supreme Court and therefore, the order of the Tribunal is erroneous. - when the restoration application was filed on 30.5.2011 by the appellant, the decision of the Supreme Court in the case of Oil and Natural Gas Commission v. Collector of Central Excise reported in [1994 (1) TMI 88 - SUPREME COURT OF INDIA] does not apply to the State Government and its instrumentalities - Decided in favour of assessee.
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2015 (7) TMI 130
Clandestine removal - Warehoused goods, date of clearance thereof - Evidence - Supreme Court granted leave to withdraw the appeal filed by the assessee against the decision of high court [2015 (6) TMI 906 - KARNATAKA HIGH COURT] wherein High court dismissed the appeal for non prosecution filed against the decision of Tribunal [2004 (7) TMI 217 - CESTAT, BANGALORE].
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2015 (7) TMI 95
Appeal before Commissioner (Appeals) - period of limitation - Proof of delivery or order in original - Held that:- In the acknowledgement card produced by the department, reference No. is given as 56/13/2001 and on top of the acknowledgement card it is also written 'EPCG' in capitals, the date of the letter is indicated as 14/09. This would show that the reference No. and the date on order-in-original and also the fact that it relates to EPCG are available in the acknowledgement card. We also could make out that the round stamp put on the acknowledgement card is of the appellant's company. It cannot be said that the Post Master has given contrary reports. When the appellants made enquiries, they had asked for a reference under OC No. 4066/2011 and sought information as to whether that letter has been delivered. The postal department also in their records would enter reference No. and the date as mentioned in the acknowledgement card or on the envelope and therefore in the records of the Postal Department, OC No. could not have been found. Therefore, the Post Master's report came favorable to the appellant. - However, the acknowledgement card would show the correct reference No and date since that is written by the Departmental Officers who had sent the letter. In view of the above, we cannot say that the letter issued by the Post Master is helpful to the appellant and we have to go by the acknowledgement card for determining whether the appellants have received the order-in-original or not. Therefore Commissioner's finding that appeal has been filed beyond the time limit prescribed as to be upheld. - Decided against assessee.
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2015 (7) TMI 94
Extension of installation period - import of capital goods for appellant's pollution control treatment plant - Notification No. 97/2004 dated 17.9.2004 - Held that:- Notification in question does not restrict itself to the period for which extension can be granted for installation of the imported capital goods. The genuineness and bona fide of delay on the part of the assessee is required to be assessed from various circumstances available in a particular case. As already observed, the appellant is a Government of Kerala Undertaking and is primarily depending upon the funds to be provided by the Government. Further, the fact that this is a huge plant can be considered as one of the reasons resulting in delay in installation. The appellant has already given an undertaking that all the machineries would be installed by December 2015. Accordingly, we consider the request for extension of period upto December 2015 as genuine and bona fide and accept the same. The appellant would file quarterly reports with the concerned Customs and Central Excise officers indicating the machinery installed by them in the previous quarter and the officers would verify the appellant's claim regularly. - Decided in favour of assessee.
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2015 (7) TMI 61
Extension of warehousing period - Clandestine removal of goods - Held that:- According to Section 72 of Customs Act, 1962, if any warehoused goods are not removed from a warehouse on the expiration of period during which such goods are permitted under Section 61 to remain in the warehouse. The proper officer may demand duty and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. In view of the specific provisions in the Section 72, once extension of time sought for storing goods in the warehouse is refused, the duty and interest and other liabilities automatically arise. - Therefore the impugned order cannot be found fault with - Decided against assessee.
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2015 (7) TMI 60
Determination of assessable value of export goods - Method of calculation of duty - determination of assessable value adopting the transaction value or on the basis of Bench-Marked Price - Held that:- Decision in the assessee's own previous case [2014 (8) TMI 213 - CESTAT KOLKATA] followed - Appeal disposed of.
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2015 (7) TMI 59
Revocation of CHA License - Held that:- Revenue is not diligently pursuing their appeal as it is apparently seen that the appeal has not been numbered and probably lying in the defects. Such casual attitude of the respondent-Commissioner is not appreciated. The learned Commissioner has also relied on the order of the Hon'ble Bombay High Court in Customs Appeal No. 19/2014 dated 5.1.2015 in the case of ‘The West End Shipping Agency', where in the case of Revenue's appeal, the Hon'ble High Court have observed that where the Revenue have filed the appeal before the higher Court along with application for stay, the Tribunal should not pass drastic orders, contempt of court proceedings, etc. We find that the Hon'ble High Court in the same order have also observed that they are not inclined to grant the stay of the order of the Tribunal and have further directed the respondent-Commissioner to give effect to the order of the Tribunal subject to result of pending appeal before the Hon'ble High Court. - Commissioner to implement the order of the Tribunal with immediate effect within 3 days of service of a copy of this order subject to the final outcome of the appeal of the Revenue before Hon'ble High Court. - Decided in favour of appellant.
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2015 (7) TMI 26
Rejection of refund claim - Assessment of liquid cargo - manner of assessment - Assessment to be done on the invoice price when duty is payable on ad valorem basis and was to be done on shore tank quantity received when duty is payable on specific rate basis - Held that:- the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country; the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. - in case of NOCIL (2002 (2) TMI 1316 - SUPREME COURT), the Hon'ble Supreme Court affirmed that duty can only be charged on the quantity received in the shore tank. The same view has been reaffirmed by Tribunal in the cases of Ruchi Infrastructure Ltd. (2007 (11) TMI 210 - CESTAT, BANGALORE) and General Foods (2008 (5) TMI 546 - CESTAT, AHMEDABAD). The law as it exists clearly lays down that the value on which duty is payable will be the value of goods actually imported into the shore tanks. - Decided in favour of assessee.
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2015 (7) TMI 25
Waiver of pre deposit - Mandatory pre deposit - Held that:- In view of the provisions of Section 129A, as amended by the Finance Act, 2014, the Tribunal cannot condone the amount of pre-deposit fixed under the statute @7.5% of the amount demanded. Accordingly, the miscellaneous application stands dismissed. However, the appellant is allowed time to make pre-deposit 7.5% of the penalty imposed within a period of eight weeks - Decided against assessee.
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2015 (7) TMI 24
Revocation of CHA license - Subletting of license - whether the work of import/export executed by G and H card holder is an act of subletting or not - Held that:- All G and H card holders are the employees of the appellant. Apart from the employment of the appellant these G and H card holders are providing certain other services to the exporter/importers for that they are provided directly dealing with the importer/exporter but for custom clearances they are working as G and H card holder of the appellant and in the said capacity they are filing the documents. - in the case of M.D. Sadrani (2009 (7) TMI 1108 - BOMBAY HIGH COURT) the fact is that the CHA allowed unauthorised persons to use their CHA licence for consideration which is not the fact in this case the persons who are using the CHA licence and G and H card holders of the appellant. Further, in the case of Shree Venkatesh Shipping Services P. Ltd. (2010 (1) TMI 1057 - CESTAT MUMBAI ), the issue before the Tribunal was that the CHA did not have authorisation in writing from any of the exporters. Admittedly, it was not a case of subletting of CHA license, therefore, the same is not relevant here. Further, we find that in the case of OTA Kandla Pvt. Ltd. (2011 (3) TMI 801 - GUJARAT HIGH COURT) the facts of the case were that the CHA permitting employees of client to use their CHA license before the Custom authorities for monetary gain and removal of goods without obtaining authorisation from importer/exporter. Therefore the said facts are not applicable to the facts of this case.
Charge of subletting stands not proved. - appellant is out of business from last more than three years and the said punishment is sufficient in the facts and circumstances of the case and the said view has been taken by this Tribunal in the case of Peak Agencies Vs. CC, Mumbai [2015 (4) TMI 27 - CESTAT MUMBAI]. - Impugned order is set aside - Decided in favour of appellant.
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