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Customs - Case Laws
Showing 41 to 60 of 129 Records
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2016 (4) TMI 925 - CESTAT NEW DELHI
Validity of Prohibition order - Import of various high value cars - Stoppage of the business operations of the applicant - Appellant prohibited from working as Customs Broker at New Delhi Customs stations - Held that:- no evidence has come on record that the appellant authorized Mr. G S Prince expressly or impliedly. We note that the impugned order also held the appellant responsible for the acts of Mr. G S Prince, G card holder at New Delhi office. As already recorded, no investigation was made or statement recorded from the Directors / partners of the appellant to bring out their role or the connection with the importer who were found to have violated the provisions of Customs Act. It is also noted that CHA license is issued at Nagpur. There is nothing on record to inform whether any action has been initiated till date against the appellant by the original licensing authority at Nagpur customs.
The impugned order is passed without following the principle of natural justice and without due process of inquiry. The order was issued after almost 7 years of purported misdemeanor. Thus the prohibition order fails due to lack of due process, inordinate delay and on prima facie merit. Therefore, order of prohibition is not legally sustainable and accordingly set aside. - Decided in favour of appellant
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2016 (4) TMI 924 - CESTAT NEW DELHI
Provisional release of seized aircrafts - Section 110A of Customs Act, 1962 - Aircrafts originally imported and assessed provisionally to duty - Assessment and duty liability are yet to be finalized by the authorities even after 5 years of original import.
Held that:- the appellants sold these aircrafts to foreign buyers. These aircrafts left India and were brought back again on lease agreement. The present seizure and provisional release is with reference to improper export and re-import of these aircrafts. The conditions for release has been fixed as execution of bond for full value of the aircrafts and supported by bank guarantee for full duty liability of these aircrafts. After considering the background, while furnishing bond for the full value can be considered as proper. insistence of bank guarantee of full duty liability is apparently a harsh condition followed by the decision of the Tribunal in appellant's own case involving similar set of facts reported in in [2016 (3) TMI 558 - CESTAT CHENNAI]. Accordingly, the orders for provisional release to the extent of reducing the bank guarantee to 20% of the duty liability as fixed and ordered by the original authority is modified, Bond will be for full value of the aircrafts. - Appeal disposed of
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2016 (4) TMI 923 - MEGHALAYA HIGH COURT
Seeking release of confiscated goods - Seizure of 26 gold biscuits - Section 110(1) of the Customs act, 1962 - Illegally imported into India - Held that:- the seizure of the gold in this case was not an exception, but on earlier occasions also, such seizure of smuggled gold while being transported by air or train had been carried out. Moreover, the gold items in the instant case were being carried stealthily by the accused persons. Thus, according to Customs authorities, there was a reasonable belief that the instant goods have been smuggled into India without payment of customs duty in violation of Section 7(1)(c) and Section 11 of the Customs Act, 1962 and were liable for confiscation under Section 111 of the Act after seizure under Section 110 of the customs Act, 1962. The reasons furnished by the petitioner in the petition as well as subsequent affidavits seem to be only hyper-technical and learned counsel has tried to build up his case mainly on the basis of case laws
Alternative remedy - Held that:- there is no violation of the principle of natural justice or a fundamental right or there is impugnment of vires of the Act by way of any challenge. Moreover, we also do not find that the proceedings of the case are pending at a stage which could foreclose the right to avail the alternative remedy of filing appeal. In the case like the one in hand, the petitioner cannot be allowed to take recourse to prerogative writ under Article 226 of the Constitution of India otherwise it may amount to enabling and empowering a litigant to defeat the provisions of the statute providing for certain conditions for filing the appeal, like limitation, payment of Court fee, or deposit of some amount for entertaining the appeal. It is also not a case where there is arbitrary exercise of powers by statutory authority in clear violation of the provisions of statute. Though the petitioner has tried to offer some explanations in support of the arguments on the requirement of reason to believe' as contained in Section 110 of the Customs Act, 1962 but it is also not a case where the appeal or any further proceedings under the statute were not or would not be dealt with on merit and may end as a mere idle formality because the administrative authorities under the Customs Act are also a quasi judicial authority and as such, they are under a legal obligation to decide the matter carefully and pass speaking and reasoned orders in accordance with law after giving full opportunity to the parties.
It should be remembered that the rule requiring the exhaustion of a statutory remedy before the writ is to be granted is more appropriately a rule of policy, convenience and discretion than a rule of law and the Court may, therefore, in exceptional cases, issue a writ, such as, a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. The proceedings under the Customs authorities being in the nature of quasi-judicial cannot be quashed lightly. The exercise of prerogative writ jurisdiction is pre-eminently one of discretion and no inflexible rule can be laid. Where the provisions of Customs Act have not been complied with or if the fundamental principles of judicial procedure have been given a goodbye, the High Court can certainly grant relief in exercise of prerogative writ. However, the right of appeal as provided in the Customs Act should not be by passed merely on the ground that it is an appeal from one administrative authority to another. However the facts of the case in hand are not such that can attract the exercise of writ jurisdiction. - Decided against the petitioner
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2016 (4) TMI 922 - CALCUTTA HIGH COURT
Suspension of CHA licence - Passed within a short time of the licensing authority being made aware of the order of February 26, 2016 - Nothing contrary demonstrated by the petitioner - Held that:- if the licence had been suspended or revocation proceedings had been initiated prior to the order of February 26, 2016 (in the event the licensing authority was aware of such proceedings), there may have been some basis to the petitioner asserting that the licensing authority was attempting to prejudge an issue pending consideration before an appropriate authority. In this case, the order of suspension has been passed within a short time of licensing authority being made aware of the proven misconduct on the part of the petitioner as established by the order of February 26, 2016.
Since an order of suspension of a Customs broker licence may be passed under the said Regulations without affording the broker any previous opportunity to explain his perceived misconduct, the invocation of this extraordinary jurisdiction cannot be seen to be on the ground of the breach of the principles of natural justice. Further, since the order impugned is founded on the basis of a previous order holding the petitioner guilty of abetting his client in an illegal import transaction, the order of suspension cannot be seen to be completely without basis that would shock the conscience of the court.
Alternate remedy of appeal - Held that:- since the challenge in the petition is not founded on any of the grounds that may excite the court to disregard the alternative remedy available to the petitioner, the merits of the petitioner’s challenge to the impugned order cannot be gone into. It must also be emphasised that the alternative remedy that was available to the petitioner was the post-decisional hearing as an appeal from an order of suspension ought, ordinarily, not to be entertained since such order does not attain any degree of conclusivity before a subsequent order is passed after the post-decisional hearing.
The present essay of the petitioner is misconceived and ill advised. In any event, the petitioner ought to have participated at the post-decisional hearing since no order was passed on this petition preventing the petitioner from so doing or keeping the post-decisional hearing in abeyance. If the petitioner has participated in the post-decisional hearing, the concerned Principal Commissioner will pass an order within 15 days hereof without being influenced by this order. If the petitioner has chosen not to participate at the post-decisional hearing, the Principal Commissioner will take necessary steps in accordance with law without affording the petitioner any further opportunity of hearing. - Decided against the petitioner
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2016 (4) TMI 883 - CESTAT MUMBAI
Admission of appeal - Amount involved is less than statutory limit of ₹ 2 lacs as per Second proviso to Section 35B(1) - Appellant submitted that it is a prima facie case in favour of the appellant therefore they may be given opportunity to argue their appeal on merit - Held that:- considering the submissions made by Ld. Consultant is satisfactory, the appeal is admitted. - Appeal admitted
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2016 (4) TMI 882 - CESTAT MUMBAI
Misdeclaration - Undervaluation - Import of Hitachi Z-ONE-D Camera System and accessories - Held that:- the 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.
Period of limitation - Appellant contended that declaration regarding the intended re-export was made in the first bill of Entry and the Invoice itself at the time of assessment - Held that:- it is a fact that the Bill of Entry contained the endorsement that it was intended for the purpose of display in exhibition and return thereafter. However it was found to be a misdeclaration as the documents recovered did not show any such intent. Furthermore the fact that it was at a special and highly discounted price was not declared. It is not apparent from the declaration that the import is at a discount of over 80% to the list price. The misdeclaration is alleged, not merely on the basis of the misdeclaration that the goods were for exhibition and return thereafter, but on the basis of the fact that a specially discounted price was declared for the said purpose but not disclosed. It is apparent from the documents recovered that the price negotiated and the discounts offered during the tripartite meeting were different from those declared at the time of import. They had not shown the correct price negotiated in the tripartite agreement with the manufacturer and its export agent. - Decided against the appellant
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2016 (4) TMI 881 - CESTAT MUMBAI
Refund claim - excess custom duty paid - unjust enrichment - non-production of certificate of non-availment of Cenvat credit - Held that:- the appellant is not registered with Central Excise department for issuance of Cenvatable invoice therefore question of either availment of Cenvat credit or passing of Cenvat credit does not arise. Appellant have submitted sales invoice wherein it was clear that Cenvat credit was not passed on. In this factual position insistence of the Adjudicating authority for producing Cenvat non-availment certificate, in my view not at all required. As regard other test whether the incidence of refund amount was passed on or otherwise, I find that appellant have submitted C.A. certificate as well as they shown amount of refund as “Custom Duty Receivable:” in their balance sheet. From this evidence, it is clear that appellant has been able to prove that the incidence of excess paid duty for which refund is sought for, has not been passed on to any other person. - Matter remanded back
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2016 (4) TMI 880 - CESTAT CHANDIGARH
Period of limitation - Imposition of redemption fine and penalty - Section 114AA of the Customs Act, 1962 - Misdeclaration of goods - Imported Tungsten Carbide Rods and Bits in the name of alloys steel melting scrap of mixed grade, seized and released provisionally - Held that:- it is the case of mis-declaration and therefore the show cause notice can be issued within a period of five years from the date of findng mis-declaration by the investigating authority. Therefore, no reason to interfere with the impugned order which is found to be correct in the eye of law. - Decided against the appellant
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2016 (4) TMI 834 - SUPREME COURT
Seeking direction for modification in rules governing availability of morphine and other opioids required for pain control in accordance with Circular issued by the Central Government - Held that:- the Government appear to have taken the issue regarding the availability of narcotic drugs for palliative care seriously and not only amended the statutory provision to make availability of the drugs easy but also to regulate the use thereof for medical and non-medical purpose In that view, therefor, the present petition does appear to have served its purpose and led to an improvement in the system that was earlier prevailing. There may still be certain areas of concern which according to the petitioners need to be addressed by the competent authority but the petitioner shall be free to seek such other redress as may be warranted under the law before the authorities. - Petition disposed of
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2016 (4) TMI 833 - MADRAS HIGH COURT
Seeking direction to renew and activate Custom House Agents License - Cancelled for non-compliance of obligations - Respondent contended that inspite of granting three opportunities of personal hearing, the petitioner neither appeared for the personal hearing nor submitted any reply to the respondent, therefore, the contentions raised by the petitioner that the Writ Petition is maintainable inspite of having an alternative remedy of appeal for the reason that the order passed by the respondent is in clear violation of principles of natural justice, cannot be accepted.
Held that:- the petitioner has got an alternative remedy by way of an appeal and without exhausting the same, when there is no violation of principles of natural justice, the Writ Petition cannot be entertained. Since an alternative remedy by way of an appeal is available to the petitioner, it is open to the petitioner to challenge the impugned order before the Appellate Authority by way of an appeal in accordance with law. - Decided against the petitioner
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2016 (4) TMI 832 - MADRAS HIGH COURT
Seeking direction to draw fresh samples from the consignment and to send them for lab test - Import of wet dates - Petitioner contended that packing lapse is only curable defect, the crops are very fresh and new crops, the wet Dates will be fit for human consumption for about 2 years and due to scarcity of PP bags, the foreign supplier might have packed them in old bags and it is only an agricultural produce - Held that:- the petitioner is directed to submit fresh representation to the second respondent, for the above claim, along with a copy of this order and shall produce all the relevant documents, including the Origin Certificate to the authorities for consideration, within a period of one week from the date of receipt of a copy of this order. On receipt of such a representation, the second respondent is directed to draw the samples from the Consignment(s)/goods/Containers in question and forward them to the Notified Laboratory for their report, within a period of one week thereafter. The Notified Laboratory is directed to submit a report to the concerned authority within a period of one week thereafter. After receipt of the report to be given by the Laboratory Authorities, the respondents are directed to consider the above claim of the petitioner and pass appropriate orders. - Petition disposed of
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2016 (4) TMI 831 - CESTAT KOLKATA
Whether Betel Nuts, seized are smuggled across Indo-Nepal Border - Confiscation and imposition of penalties - Revenue contended that the documents were pertaining to Betel Nuts loaded on a different truck bearing registration No.RJ-2G-4000 and not truck No.RJ-14-2G-4000 and none of the appellants have claimed the ownership of the goods seized from truck No.RG-14-2G-4000 - Held that:- the argument taken by Appellant No.1 that Betel Nuts were sent through truck having registration No.RJ-14-2G-4000 and in the grounds of appeal also it has been taken that digits “14” not getting mentioned in the transport documents was a clerical omission has some weight because truck registration number must have been communicated through phone/mobiles where some digits can get omitted. Such an omission is plausible in view of the omissions, where inspite of truck No.RJ-14-2G-4000 being as record, a different number is written by various persons including the Adjudicating authority and the first appellate authority. The first two alphabets of a vehicle registration number indicate the state of registration. The next two digits represent the Area/District of the vehicle registration authority. Therefore vehicle No.RG-2G-4000 is not the complete registration number of a vehicle and could be same as RG-14-2G-4000.
The contradiction in the statement of transporter of Appellant No.1 and the Driver Shri Jagroop Singh clearly brings out that entire story narrated by the Driver/Khalasi, in their statements recorded after interrogation for three days, is not entirely correct. It is now a well accepted legal principle that only a part of the statement, favorable to the department, cannot be considered as acceptable and that the entire statement has to be accepted or rejected. There is no other evidence that Betel Nuts seized were not obtained by the Appellant No.1 from legalized channels.
Appellant No.1 has not given any confession statement at any stage. Reliance of third party statements without extending cross-examination is not acceptable as evidence when the entire facts of the statement are not true. Minor procedural irregularities in the documents produced by the Appellant No.1 cannot be considered sufficient to hold that Betel Nuts seized were different than the Betel Nuts procured by Appellant No.1 and were of smuggled nature.Also no investigations have been done whether any truck having registration No.RJ-2G-4000 also exists. Mobile calls of the Appellants made before the seizure have also not been investigated by the department which could have given vital clue regarding movement of persons and vehicle No.RJ-14-2G-4000. Therefore the order-in-appeal is set aside. - Decided in favour of appellant with consequential relief
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2016 (4) TMI 790 - MADRAS HIGH COURT
Whether the fourth respondent is empowered to issue the public notice by imposing certain conditions over and above the three conditions stipulated in Chapter 12 of Exim Code 1207 91 00 relating to import of poppy seeds from China into India - Held that:- the petitioner company has obtained Certificate of Importer-Exporter Code (IEC) issued by the Additional Director General of Foreign Trade for the purpose of commencing import of spices, poppy seeds and other items. It is clearly stated that during the course of his business, sought to import poppy seeds from China. However, the petitioner could not submit the necessary application for registration of the import contract in view of the multiple conditions imposed by the fourth respondent in the impugned public notice. In such view of the matter, the petitioner has a genuine grievance to be ventilated as against the impugned public notice issued by the fourth respondent inasmuch as it prohibits and restricts him to carry on his import business.
Therefore, the petitioner has a right to question the impugned public notice issued by the fourth respondent especially when it violates the fundamental rights guaranteed to the petitioner as enshrined under Article 14 and 19 (1) (g) of The Constitution of India to carry on his legitimate business of import of poppy seeds and other goods. In the absence of any amendment to Import-Export policy framed by Central Government by publishing a notification in the official gazzette, it has to be held that the fourth respondent is not empowered to impose the conditions in the impugned public notice. Also, Article 39 (2) of the Constitution of India will not in any way be a source of power or provides a spring board to the fourth respondent to impose the conditions in the impugned public notice. - Decided in favour of petitioner
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2016 (4) TMI 789 - BOMBAY HIGH COURT
Seeking grant and sanction of interest in respect of refund claim - Respondents have clarified that once the Order-in-Original has been implemented and the refund amount has been paid to the Petitioner within the stipulated period, then, the question of payment of any interest for delayed refund does not arise.
Held that:- the Authorities are not going to reopen the issue of refund but are only raising plea that the Petitioner is not entitled to any interest on the refund amount for there is no delay in granting refund. It is not that issue which will be examined and we do not permit that to be examined by the Authorities upon remand. Thus, the remand order and this affidavit, if read together, the jurisdiction of the Authorities now is extremely limited. They will hear the Petitioner on the request of quantum of interest on the refund sanctioned and only that issue will be decided. That will be decided by the Authorities unmindful of and irrespective of the stand taken in the affidavit-in-reply. They shall deal with the said issue on its own merits and pass a reasoned order as expeditiously as possible. If the interest is payable as held in the order-in-appeal, then, the calculation thereof is the limited issue which the Authority must now examine. Once the statutory provisions are clear and there is delay in grant of refund, then, the interest must follow. It is only the quantum thereof which would be determined by the Authority. - Petition disposed of
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2016 (4) TMI 788 - MADRAS HIGH COURT
Seeking permission for clearance of goods - Import of insecticide viz., Ethephon from china - Petitioner contended that they have obtained a necessary registration certificate under Section 9(4) of the Act in the year 1991 and also in 1992 - Held that:- it could be seen that the certificate dated 01.07.1991 was issued for indigenous manufacture only and not meant for import of Ethephon. When it was not issued for the purpose of import of Ethephon and it was issued only for the purpose of indigenous manufacture, the petitioner cannot rely upon this document to say that they are entitled for import of Ethephon from China. Similarly, the registration certificate dated 10.02.1992 was also issued only for indigenous manufacture. When both the documents relied upon by the petitioner pertain to the indigenous manufacture only, the same cannot be pressed into service by the petitioner for importing Ethephon from China. The petitioner's contention that it has been importing Ethephon since 1991 cannot be accepted as a ground for permitting them to import Ethephon insecticides, without following the mandatory provisions of the Act. It can only be said that the petitioner Company have managed to import Ethephon all these years. As stated above, that cannot be a ground for directing the respondents to release the consignment. In the absence of the mandatory registration, the consignment cannot be released. - Decided against the petitioner
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2016 (4) TMI 787 - MADRAS HIGH COURT
Revocation of CHA licence and forfeiture of security deposit - Misdeclaration of goods - Consignment of Red Sanders logs seized - Signed blank custom documents were handed over to M/s.Aruthura Logistics, which were used for clearance of exported goods - Petitioner contended that goods were stuffed in the containers in the presence of the Customs Officials, so substitution of the goods and for tampering of the custom seal of the container, cannot be fastened on the Custom House Agent.
Held that:- even though the appellant herein is guilty of handing over blank signed forms to third parties, that would not attract the punishment of cancellation of licence, since no other grave charges could be fastened on the appellant, as there was no role played by him either in the substitution of goods or tampering with custom seal, as it happened outside the custom yard after the sealing was made by the Custom Officials.
The custom house licence agent cannot be held liable as the alleged offence took place after his role was over namely, dealing of the container. Once the role of the CHA licence came to over, he cannot be responsible for subsequent events. In any event, for giving signed blank forms to third parties, the revocation of licence is harsh penalty and the punishment should commensurate for guilty of offence. Therefore, the order of the Commissioner of Customs revoking the CHA licence as confirmed by the CESTAT is set aside. This Court is only restoring the CHA licence. Where forfeiture of the security deposit is concerned, there is a violation of CHA regulation by the appellant, therefore interest of justice would be met by restoring the CHA licence and confirming the order of forfeiture of security deposit.
Imposition of penalty - Held that:- a perusal of the order passed by the Collector, Custom Commissioner as well as the order impugned herein would reveal no connivance on the part of the appellant either in mis-declaration or substitution of the goods by tampering with the Custom seal. Therefore, the extreme penalty of cancellation of CHA licence is not warranted in this case. - Decided partly in favour of appellant
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2016 (4) TMI 786 - MADRAS HIGH COURT
Seeking direction to draw fresh samples from the consignment and to send them for lab test - Import of wet dates - Petitioner contended that packing lapse is only curable defect, the crops are very fresh and new crops, the wet Dates will be fit for human consumption for about 1-1/2 years and due to scarcity of PP bags, the foreign supplier might have packed them in old bags and it is only an agricultural produce - Held that:- the petitioner is directed to submit a fresh representation to the second respondent, for the above claim, along with a copy of this order and shall produce all the relevant documents, including the Origin Certificate to the authorities for consideration, within a period of one week from the date of receipt of a copy of this order. On receipt of such a representation, the second respondent is directed to draw the samples from the Consignment(s) /goods / Containers in question and forward the same to the Notified Laboratory for their report, within a period of one week thereafter. The Notified Laboratory is directed to submit a report to the concerned authority within a period of one week thereafter. After receipt of the report to be given by the Laboratory Authorities, the respondents are directed to consider the above claim of the petitioner and pass appropriate orders. - Petition disposed of
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2016 (4) TMI 767 - MADRAS HIGH COURT
Seeking direction of refund - interest wrongfully paid by the respondent - import of electrical goods and machinery - availed facility of deferred payment of duty by bonding the goods in a private warehouse - Tribunal directed the refund on the basis of its earlier decision and circular in F.No.475/39/90-Cus.VII dated 8.8.1990 - Held that:- in so far as Section 61(2) is concerned, it refers only to the interest that becomes payable under Section 47. As a matter of fact, the present Sub-Section (2) of Section 61, was amended only by Act 27 of 1999. The amendment, on which, strong reliance is placed by the department, to Section 27(1), came in 1991. Yet, Section 61(2) does not refer to Section 27. Therefore, the view taken by the Tribunal cannot be said to be incorrect. - Decided against the revenue
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2016 (4) TMI 766 - BOMBAY HIGH COURT
Validity of Tribunal's order - Non compliance with principles of natural justice and made error in not reading into evidence the opinion of Indian Institute of Technology though a copy of its report was on its file - Held that:- Tribunal's order is vitiated for want of consideration of a vital and valid ground of appeal i.e. non compliance with principles of natural justice and a patent error in not reading into evidence the opinion of Indian Institute of Technology though a copy of its report was on its file. That ground was squarely raised in the Memo and pressed during the oral arguments. The Appellants should have been given complete opportunity to press that ground on merits and non furnishing of such an opportunity, therefore, results in Tribunal's order being ex-facie illegal. It is vitiated by an error apparent on the face of the record. Therefore, the order is quashed and set aside. - Appeal disposed of
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2016 (4) TMI 765 - CALCUTTA HIGH COURT
Validity of order dated July 14, 1987 - Violation of principles of natural justice - Held that:- the original order dated July 14, 1987 cannot be said to be vitiated by the principles of natural justice. The petitioner was aware of the proceedings. It chose not to appear thereon. It chose to issue a letter dated July 13, 1987 and thereafter did not follow it up or kept itself abreast with the developments or the progress of the adjudicatory proceedings. A prudent person acting reasonably is expected to keep a track of the proceeding. - Decided against the petitioner
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