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Customs - Case Laws
Showing 1 to 20 of 129 Records
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2016 (4) TMI 1417
Classification of imported goods - Lubricant Oil-Open Gear - classifiable under tariff item No. 2710 1980 of Customs Tariff Act, 1985 or not - HELD THAT:- Without expressing any opinion on the merits of the case, as the petitioner claims that it is a live consignment, it is deemed appropriate to direct the concerned Authority to adjudicate the show cause notice within two months from the date of receipt of certified copy of this order by passing a speaking order and after affording an opportunity of hearing to the petitioner in accordance with law.
Application disposed off.
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2016 (4) TMI 1402
Issuance of Summons u/s 108 of Customs Act - requirement of petitioner to present himself in person before the Senior Intelligence Officer, DRI , DZU, New Delhi - HELD THAT:- The summons in original has been placed on record by the petitioner. A perusal thereof reveals that the summons under Section 108 of the said Act is completely bereft of all necessary and material particulars. It does not even specify the inquiry/investigation in relation to which the petitioner has been summoned. It is also evident that the impugned summons is completely silent in respect of any case being registered against the petitioner as well as absent of any information as to why he has been called.
The impugned summons is ex facie unsustainable. Consequently, the summons dated 19.03.2016 is set aside and quashed - Petition disposed off.
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2016 (4) TMI 1340
Correctness of the authority of the Tribunal to make a reference to a larger Bench - Tribunal was confronted with conflicting decisions of two benches of the Tribunal on an identical question of law arising in the said group of tax appeals - Held that:- When the Tribunal recorded that the two Benches had given diagonally opposite decisions, the Tribunal was perfectly justified in making a reference. Even if the department were of the opinion that one of the judgements could be distinguished on facts, the same would not give rise to a substantial question of law. Being a forum discharging judicial functions, the Tribunal was bound by the law of precedence.
If two different benches of co-ordinate strength had given deferring opinions, the Tribunal had to refer the dispute to the Larger Bench. All the questions of law are, therefore, answered against the Revenue - appeal dismissed.
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2016 (4) TMI 1284
Benefit of notification of December 28, 2012 - duty credit scrip - Held that: - the petitioners will be entitled to the benefit under the notification of December 28, 2012 irrespective of the modification that was brought in by the notification of September 25, 2013. Accordingly, the petitioners’ claim should be considered by the DGFT in such light and on the basis of the earlier notification and without reference to the later. The order impugned dated October 5, 2015 is set aside to the extent that it disallowed the petitioners’ claim under the notification of December 28, 2012 - petition allowed by way of remand.
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2016 (4) TMI 1283
Pre-deposit - 1% of penalty - petitioner pointed out that in another proceedings arising out of the same chain of transactions, where, Tribunal had required the petitioner to deposit ₹ 1 lac by way of pre-deposit looking to his status as an employee - Held that: - looking to his position as an employee, we modify the pre-deposit requirement to ₹ 5 lacs which shall be done latest by 30-6-2016 upon which the remaining demand shall remain stayed - petition allowed in part.
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2016 (4) TMI 1281
Order u/s 3(1) of COFEPOSA - The main challenge is to the order of detention passed u/s 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 – the decision in the case of Tushar Kishore Trivedi S/o Shri Kishore Trivedi and Others Versus Principal Secretary, Government of Maharashtra, Home Department and Detaining Authority And Others [2013 (10) TMI 272 - BOMBAY HIGH COURT] contested, where it was held that onsidering the grounds on which the detention order is sought to be quashed at the pre-execution stage and the law relating thereto, none of the grounds are attracted in the present case - Held that: - No ground for interference is made out to exercise our jurisdiction under Article 136 of the Constitution of India - SLP dismissed.
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2016 (4) TMI 1247
Doctrine of Habeas Corpus - Detention of petitioners - smuggling of gold - baggage rules - section 3[1][i] of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Held that: - it is not in dispute that the detenus, in their bail applications have retracted the inculpatory statements given to the authorities. But, in paras 11 & 12 of the counter affidavit filed by the first respondent, it is stated that the detenus have given voluntary statements and no retractions of statement have been made. No written retractions were made either when they were in jail or when they were out on bail or during the course of investigation, hence, the consideration of the retraction does not arise. Further, the detention order is silent about the retraction.
The detention order is being passed as if the detenu I Om Prakash attempted to bring 23 kilograms of gold without proper declaration and it is also mentioned in the grounds of detention, however the declaration card was neither placed before the detaining authority nor supplied to the detenu despite asked for in the representation dated 29.09.2015. In the counter affidavit, it is stated that the documents relied upon were supplied to the detenu. However, in the rejection order dated 28.10.2015, nothing is mentioned about supply of declaration card - It is settled law that the detaining authority should furnish all relevant and relied upon documents to the detenu to enable him to make effective representation. Further all documents which are relevant which would have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before it. In this case, the detention order would disclose that the detaining authority relies on the declaration card. However, it was neither placed before the detaining authority nor supplied to the detenu to make further representation to the advisory board.
Impoundment of passport of detenues - the passports of the detenus have been impounded by the authorities after their arrest - Held that: - when there was no material placed before the detaining authority that there is likelihood of detenus indulging in smuggling activities in future, the subjective satisfaction arrived at by the detaining authority is based on no material.
Detention order passed is set aside - petition allowed - decided in favor of petitioner.
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2016 (4) TMI 1244
Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law by declining production of additional evidence in the appeals filed by the importer even though the Revenue has established sufficient cause to adduce additional evidence within the meaning of Rule 23 of the CESTAT Procedure Rules, 1982? - Held that: - Whatever be the validity of such conclusions, the fact remains that the scope of rectification jurisdiction was extremely narrow. The Tribunal having considered all the aspects in the earlier round of litigation was correctly persuaded not to exercise jurisdiction of rectification - appeal dismissed.
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2016 (4) TMI 1243
Mis-declaration of goods and value thereof - period of limitation - relevant date - principles of res judicata - import of low/high carbon steel wire rods and electrolytes zinc free of duty under the Duty Exemption Entitlement Certificate (DEEC) Scheme by mis-declaring and undervaluing the goods and then disposing of the said imported goods in the local market for profit instead of using them in the manufacture of steel wire ropes for export - the decision in the case of Maldhari Sales Corporation & Others, Subhash Gupta, Janki Ram Versus Union of India & Others [2016 (2) TMI 309 - DELHI HIGH COURT] contested, where it was held that The date of clearance of the consignment with reference to that B/E was obviously on a date after the date of such B/E - Held that: - the decision in the above case upheld - present SLP dismissed.
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2016 (4) TMI 1242
Condonation of delay - Appeals – Delegate – delegation of power - the decision in the case of Videocon International Ltd. and Maheshwar V. Kasbekar Versus UOI, GOI, Chief Controller of Imports and Exports and Joint Chief Controller of Imports and Exports [2011 (2) TMI 8 - Bombay High Court] contested - Held that: - The special leave petition is dismissed on the ground of delay.
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2016 (4) TMI 1235
Restoration of petition - Refund claim - Held that: - this Court in the case of Micromax Informatics Limited Versus Union of India & Others [2016 (3) TMI 431 - DELHI HIGH COURT], passed a detailed order in relation to the very same Assessee requiring the Assistant Commissioner (Refund) to reconsider afresh the applications filed by the Petitioners for refund of the excess duty paid by it on the imports made within the months of August, September and October, 2014 - As the facts and circumstances of the case are similar, the Court sets aside the impugned orders dated 19th January 2016 and 14th January, 2016 respectively and restores the said claims of the Petitioners to the file of the Assistant Commissioner (Refund) for a fresh decision on merits in light of the above judgment of the Court - petition restored.
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2016 (4) TMI 1222
Time limitation - refund claim - duty paid under protest - duty against the finally assessed Bill of Entry was paid during the period from 31.8.04 to 31.7.08 and the refund claim of the said payments stand made by the appellant on 12.4.10 - Held that: - As per the provisions of section 27 of Customs Act, 1962, refund claim is required to be filed before the expiry of six months from the date of payment made by the assessee. However, as per 2nd proviso to section 27(1)(b), such limitation of one year/six months as the case may be, shall not apply when any duty and interest has been paid under protest - The second proviso nowhere restricts the limitation to passing of any order by the original adjudicating authority nor refers to any alternative date. It simplicitor is to the effect that limitation will not apply when the duty has been paid under protest.
However, the fact as to whether the duty was paid under protest or not does not stand substantiated before us by production of sufficient documentary evidence - inasmuch as neither of the authorities below have given categorical finding that duty was actually paid under protest, the matter needs to be remanded to the original adjudicating authority - appeal allowed by way of remand.
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2016 (4) TMI 1217
Advance Authorisation scheme - there was a delay in obtaining Export Obligation Discharge Certificate (‘EODC’) for reasons not attributable to the petitioners but due to the delay in the office of the DGFT in issuing such certificate - The case of the petitioner is that the aforementioned impugned order was not served upon it, and the petitioner was not aware of it till 24th February, 2015 when a representative of the petitioner was in the office of the Deputy Commissioner for some other matter - Held that: - In the similar circumstances, where the EODC was obtained subsequent to passing of the impugned order by the Customs Department, but, for the reasons not attributable to the petitioner, this Court has set aside such demand and penalty and remanded the matter to the adjudicating authority for a fresh determination after taking into consideration the EODC obtained - reliance placed in the case of Lifelong India Private Limited Versus Union Of India & Anr. [2016 (4) TMI 1104 - DELHI HIGH COURT] - petition allowed by way of remand.
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2016 (4) TMI 1214
Restoration of CHA licence - Appellant has challenged the suspension on the ground that no action lies against them under the Customs Brokers Licensing Regulations, 2013 as they, in the absence of access to the customs clearance systems, had not undertaken any work - Held that: - the appellant, though a holder of a customs brokers licence, continued to function within the logistics chain as it did before obtaining its own licence. It is normal bona fide practice in the trade for a freight forwarder to engage a ‘customs broker’ to handle the clearance formalities of its customers. There is no bar on the services of a ‘customs broker’ being contracted by freight forwarders or even other customs brokers. It is the contracted customs broker, who, in the present instance, is M/s. Vignesh Freight Forwarders Pvt. Ltd., to ensure compliance with the provisions of the Customs Act, 1962. There is no allegation of non-compliance of contravention of the Customs Act, 1962 against appellant or contracted customs broker. Further, there is no prescription on the manner and terms of employment of individuals by customs brokers. To the extent that a broker has sought for and obtained passes for individuals claimed to be their employees, the brokers are responsible vicariously for any contravention of the provisions of the CA, 1962 or breach of the Regulations by such employees - the appellant has not rendered any service as a ‘customs broker’ in relation to import or export consignment and is, therefore, outside the ambit of the said Regulations - suspension order set aside and licence directed to be restored - appeal allowed - decided in favor of appellant.
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2016 (4) TMI 1209
Forfeiture of facility to pay the duty on a monthly basis under Rule 8(4) of the Rules for a period of two months - rejection on the ground that the assessee has defaulted in payment of duty even after a lapse of thirty days, from the date on which the payment was due - Held that: - We see no reason to interfere with the order, under challenge in this writ petition, as it has not been disputed before us that payment of duty was belated; and all that the respondents have done is to deny the petitioner the facility, of payment of duty on a monthly basis, only for a period of two months. The impugned order does not suffer from any illegality - petition dismissed - decided against petitioner.
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2016 (4) TMI 1197
Condonation of delay - application for fixation of brand rate - appellant has filed this application beyond the period of three months but before the expiry of 12 months from the date of Let Export Order made in the shipping bills - Held that: - granting of drawback or industrial brand rate which is a beneficial legislation needs to be considered in a broader perspective rather than a narrow view - The statute mandates that an application can be filed for condoning the delay beyond the period of three months but within 12 months from the date of Let Export Order needs to be read in the correct perspective in line with beneficial legislation and delay, if any, needs to be condoned.
Matter remanded back to the Commissioner with direction to condone the delay by taking a liberal approach - appeal allowed by way of remand.
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2016 (4) TMI 1190
N/N. 66/94-Cus., dated 1-3-1994 - import of Steam Geared Turbine Alternator - denial on the ground that the said certificate is signed by Dy. Advisor in the Ministry of Fertiliser and it was not clear whether the Dy. Advisor is an officer not below the rank of Dy. Secretary - Held that: - the Revenue’s claim that the imported goods are used for sulphuric acid plant and it is not a fertiliser plant. Such a submission is totally misdirected as it is common knowledge that for manufacture of fertilizer sulphuric acid is one of the prime raw material and is cost effective if produced within the plant wherein fertilizer is manufactured. It is not disputed that sulphuric acid plant is within the fertilizer plant of the respondent - Accordingly the benefit of N/N. 66/94-Cus. cannot be denied - appeal rejected - decided against Revenue.
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2016 (4) TMI 1187
Revocation of CHA licence - revocation on the ground that CHA have failed in their obligation of verifying the identity of his client and their existence in the given address - Held that: - No physical verification of importer’s premises is mandated in the regulations nor it is a general requirement as per business practice. No violations have been noticed in respect of transactions with Customs with reference to consignment cleared through the appellants - As such the order of revocation of license, only on the ground that on later verification the importer was not found in the indicated premises, is not justifiable.
The time-limits prescribed under Regulation 20 of CBLR, 2013 have not been adhered to in this case. As such, the impugned order is not sustainable on this ground also.
Appeal allowed - decided in favor of appellant.
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2016 (4) TMI 1181
Maintainability of appeal - Held that: - The appeal being for a small amount of ₹ 25,000/- and Revenue has made a policy not to seek appeal remedy upto an amount of ₹ 10,00,000/- of demand, this appeal is dismissed on pecuniary jurisdiction - appeal dismissed.
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2016 (4) TMI 1169
Validity of detention order - immediate release of undisputed consignments - one sample each of the disputed consignments be taken by the Custom Authorities in the presence of the officer/representative of the DRI as well as of the petitioners, under their respective signatures, which shall be kept sealed in the custody of DRI without prejudice to the right of the Custom Authorities for acceptance of testing report dated 28.01.2016 - The petitioners undertake to join the inspection regarding verification of thickness of the imported material - matter on remand.
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