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Customs - Case Laws
Showing 61 to 80 of 129 Records
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2016 (4) TMI 764 - CESTAT NEW DELHI
Restoration of classification - Import of interactive electronic white board - Whether to be classified under CTH 84716090 [as per respondent], CTH 84729090 [as per Original Authority] or CTH 85285100 [as per Commissioner (Appeals)] - Held that:- the learned Commissioner (Appeals) examined specifically the correct classification of the product with reference to its actual function and applicable Chapter Notes. The impugned order also recorded the impugned goods cannot work without a projector even if it is attached to a computer. The learned Commissioner (Appeals) on seeing the demonstration of the equipment and after examination of the applicable Chapter Notes came to the conclusion that they are correctly classifiable under CTH 85285100. - Decided against the revenue
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2016 (4) TMI 722 - KARNATAKA HIGH COURT
Seeking quash of letter dated June 18, 2013 and declaration that the condition Nos.34(b) and 34(c) of the notification No.12 of 2012, was satisfied by the petitioner while importing - Import of gold dore bar - goods are to be imported in accordance with the packaging list issued by the mining company by whom they are produced.
Held that:- the goods are not required to be imported along with the packaging list. In the Condition No. 34 the expression "in accordance with the packing list issued by the mining company by whom they were produced" is used. Normally, the courts will have to follow the rule of literal construction, which enjoins the court to take words as used and to give it the meaning, which naturally implies. As there is no allegation that the importer did not follow the procedures set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996, therefore, we do not find any fault in the order of the Hon'ble Single Judge in holding that the demand of the Deputy Commissioner for production of the packaging list from the mining company was illegal and that the importer has complied with the requirements of the notification No.12 of 2012. - Appeal disposed of
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2016 (4) TMI 721 - DELHI HIGH COURT
Confiscation and penalty - Finished leather lying seized for more than a year - permitted to withdraw on payment of redemption fine - Held that:- the appropriate course would be to permit the petitioner to furnish a bank guarantee for the entire amount of redemption fine and penalty and for the goods be released to the petitioner. Therefore, it is directed to the petitioner to furnish a bank guarantee in favour of the Department, for the entire amount of redemption fine and penalty as ordered by the Order-in- Original, the goods in question shall be released to the Petitioner. - Petition disposed of
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2016 (4) TMI 720 - CESTAT NEW DELHI
Suspension of Customs broker licence - G Card holder employee of the appellant alleged to have been involved in fraud of manipulating the value of export goods and using the license for import of paper / paper products by various importers - Held that:- in the absence of at least a prima facie case indicating the role of the appellant in various frauds, suspension of license will be harsh and unjustified. Further, more importantly, it is found that though the suspension was confirmed on 20.11.15, till date no show cause notice has been issued to the appellant. The time limit as prescribed in CBLR 2013, has apparently not been followed. In the present case, the role of G card holder and the involvement of appellant either directly or through his G card holder are yet to be clearly alleged / established as no progress could be made in the inquiry. In the absence of any prima facie finding to that effect, suspension of license which amounts to stoppage of appellants business is not justified. Therefore, impugned order is unsustainable. - Decided in favour of appellant
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2016 (4) TMI 719 - CESTAT CHENNAI
Claim of Notification benefit - Bill of Entry filed inadvertently taking the benefit of Notification No. 6/02-CE dated 01.03.2002 - Revenue contended that goods came with inbuilt machine which should not enjoy the notification benefit - Held that:- in view of the detailed examination done by the ld. Commissioner (Appeals), and being guided by the Apex Court judgment in the case of CC (Prev.), Mumbai Vs. M. Ambalal & Co. [2010 (12) TMI 16 - Supreme court of India], laying down the ratio that interpretation of law should be made to suppress the mischief and to curb ills of mis-declaration, we are in full agreement with ld. Commissioner (Appeals) that right of claim to the notification benefit is extinguished when the declaration was found to be false and deliberate mis-declaration causing revenue loss was patent. - Decided against the appellant
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2016 (4) TMI 718 - CESTAT CHENNAI
Condonation of delay - Delay of 244 days - Appellant pleaded that they have not received the original OIA passed on 14.10.14 till date - Held that:- the address of the appellant is correctly written and there is no change in the address but the letter has been returned as "unclaimed". On receipt of the recovery notice, the appellant has immediately taken steps with the Commissioner (Appeals) asking for a certified copy. The Superintendent of (Appeals-II) for Commissioner (Appeals - V) intimating that they had replied to the appellant to contact their Advocate M.Velmurugan or S.Chandrasekaran, Advocate for the copy of the order. The Commissioner (Appeals) order was received from S.Chandrasekaran and the appellant written back to Commissioner (Appeals) informed that Shri.S.Chandrasekaran was not appointed by the appellant. From this, it is found that the Authorized Advocates are Velmurugan and others to appear before the Commissioner (Appeals). The appellants have not authorized Shri. Chandrasekaran. On perusal of the whole correspondence of appellants with Commissioner (Appeals), the certified copy was not issued by the Commissioner (Appeals). The appellants requested for the same.
Thus, it is found that appellants obtained a copy of the impugned order through Recovery Cell by email copy dt.13.8.15. Also Section 153 of the Customs Act existed during the period in dispute. On perusal of the Customs Act,it is found that there is no provision to order authorized person. Therefore, by considering the background of the case and also considering the nature of the dispute involved, the condonation of the delay is allowed. - Delay condoned
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2016 (4) TMI 683 - GUJARAT HIGH COURT
Confiscation of seized rough diamonds - Diamonds provisionally released by the time order is passed by Adjudicating Authority (AA) - AA ordered redemption fine of ₹ 32.61 lacs on the petitioners, and directed that the bank guarantee of ₹ 32.61 lacs furnished by the petitioners may be appropriated against such redemption fine. Additionally, there were also fines imposed.
Held that:- If there is any error apparent on the face of the record which requires rectification, it is always open for the authorities to exercise such powers. In catena of decisions, in the guise of rectification, the power of review which do not vest in the authority, cannot be exercised. Be that as it may, when the original order passed by the adjudicating authority is perused, in which the redemption fine and personal penalties were imposed. Clearly, the bank guarantees and bonds were to be executed by the petitioners for provisional release of the goods. This provisional release was substituted by confiscation and redemption fine. If therefore, the petitioners pay such redemption fine, they should be entitled to return of the bank guarantees and cancellation of the bonds. The redemption fine and the penalties having been modified by the Appellate Authority, direction ought to have been given for return of the bank guarantee and cancellation of the bonds upon the petitioners depositing substituted redemption fine. Linking the return of the bank guarantee and the cancellation of bond to the penalties, was either done wholly through oversight or at any rate without legal justification. In either case, we would strike down that portion of the appellate order and permit the petitioners to pursue their pending appeal before the Tribunal for the rest of the grievances. - Petition disposed of
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2016 (4) TMI 682 - CESTAT CHENNAI
Confiscation as prohibited goods - Seizure of silver oak wood - Re-export allowed on payment of redemption fine and imposed penalty under Section 112(a)(i) of Customs Act, 1962 - Held that:- by following the ratio laid down by Apex Court in the case of Collector of Customs, Bombay Vs. Elephanta Oil and Industries Ltd. [2003 (1) TMI 108 - SUPREME COURT OF INDIA] and followed by Hon'ble High Court of Madras in the case of Chennai Marine Trading (P) Ltd. Vs. Commissioner of Customs (Seaport - Import), Chennai [2014 (9) TMI 326 - Madras High Court], the appellant is directed to deposit ₹ 50,000/- towards redemption fine and entire amount of penalty and make prayer for re-export since mis-declaration surfaced on record. Such mis-declaration required the public exchequer to incur cost seeking report from the forest department. Also mis-declaration being found to be deliberate, imposition of penalty of Rs. One lakh is uninterfered. - Decided partly in favour of appellant
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2016 (4) TMI 681 - CESTAT AHMEDABAD
Confiscation of goods and imposition of penalty - Import of LED TV's - Goods covered under clearance on the basis of MRP value - Differrantial duty and interest paid immediately before issuance of Order-in-Original - Appellant contended that there was no intention to evade duty and mis-declaration of MRP was a bonafide mistake on the part of their Customs Broker Agent - Held that:- there is no evidence on record to substantiate the claim of appellant. As the importer has paid the differential duty and interest before issuance of the Order-in-Original, so it is found to be a fit case for reduction of redemption fine. It is also seen that the importer had paid 25% of the penalty imposed under Section 114A of the Customs Act, 1962. Therefore, the redemption fine of ₹ 22 lakhs imposed by the Original Adjudicating authority is reduced to ₹ 7 lakhs. - Appeal disposed of
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2016 (4) TMI 621 - CALCUTTA HIGH COURT
Legality/validity of Circular No. 19/2013-CUS dated 9th May, 2013 - classification of Filters referred to as 'Disposable Sterilized Dialyzer' and 'Microbarrier' for filtering blood - Originally the goods being Dialysers were classified under CTH 90189031 which pertain to "Renal dialysis equipment (artificial kidneys, kidney machines and dialysers)" but after the circular dated 9th May, 2013, classified as above under Tariff Item 84212900, attracting a higher rate of customs duty
Held that:- CTH 90189031 specifically provides for dialysers whereas CTH 84212900 provides for generic description of articles. Heading 9018 under Chapter 90 pertains to medical instruments whereas heading 8421 under Chapter 84 pertains to goods which are generally used for industrial purposes and do not appear to have any medical use. Hence, the natural classification of dialysers should be under CTH 90189031 as it was prior to issuance of the impugned circular. When a specific tariff heading for classification is available, the goods concerned cannot be classified under a generic tariff heading. In the instant case, the onus was on the department to justify the change of classification sought to be made by the impugned circular, which onus, in my opinion, has not been discharged by the Department. Thus, it is evident that the impugned circular is blatantly contrary to the said Rule and is thus, not sustainable.
Challenge to circular - Department contended that once agreed to the assessment made by the Department, the petitioner cannot be permitted to challenge the said assessment or the impugned circular on the basis whereof the assessment was made - Held that:- non-mentioning of any and every fact does not amount to suppression of material facts. A material fact is one that would have a bearing on the decision of the court. Even if the petitioner mentioned in the writ petition about the factum of he having initially agreed with the Department's assessment, my decision would not have been any different. This is so because there can be no estoppel against the statute. S. 11A of the Customs Tariff Act does not countenance amendment of the First Schedule to the said Act by issuance of a mere departmental circular. The method in which the First Schedule has been sought to be amended is contrary to the method prescribed by S. 11A and as such the circular cannot be sustained. Hence, the fact that the petitioner initially agreed with the Department's assessment is not a material fact and accordingly the respondent's first point is rejected.
Validity of Show cause notice - Department contended that the petitioner has not challenged the show cause cum demand notice dated 21 April, 2014 - Held that:- this is a point without any substance. The said show cause notice is admittedly based on the impugned circular. If the circular is quashed, the show cause notice automatically goes.
Hence, the impugned circular is bad in law being without jurisdiction and cannot be sustained. The Circular No. 19/2013-CUS dated 9 May, 2013 is quashed and set aside. - Decided in favour of applicant
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2016 (4) TMI 620 - CESTAT NEW DELHI
Revocation of licence and forfeiture of security deposit - Import of 'tetrahydroxybenzophenone' chemical - Appellant did not advice their client that the chemicals are to be properly described/classified and supported by proper documents - Non-fulfilment of obligation of a Custom House Agent required under Regulation 13 of CHALR, 2004 i.e. failed to verify antecedents, identity of their client and functioning of their client at the declared address by using reliable, independent, authentic documents, data or information.
Held that:- the CHA was found responsible for all acts or omission. It is found that apart from mere reproduction of the wordings of the provisions of CHALR substantial portion of the conclusion in the enquiry report is totally contrary to the finding of the Original Authority. To the extent that the appellant has not complied with the KYC norms with reference to client stands resolved by a clear finding by the Adjudicating Authority. A contrary conclusion drawn in the enquiry report prepared after the said adjudication order is not sustainable.
Validity of impugned order - Revocation of licence and forfeiture of security deposit - Import of 'tetrahydroxybenzophenone' chemical - Appellant did not advice their client properly relating to importation of chemicals - Held that:- the appellant obtained all the documents and filed the bill of entry based on the documents submitted by the importer. It is only on test by a competent laboratory the actual nature of the chemical could be found. It is found that the appellant followed normal business practice in verifying the client's background like address, IEC Code etc. and filed the bill of entry based on documents submitted by the importer. Therefore, the appellant cannot be put to extreme action, like revocation of licence in the absence of evidence of misdemeanor on their part. - Decided in favour of appellant
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2016 (4) TMI 608 - CESTAT KOLKATA
Confiscation and imposition of penalties - Import of Defective shafts - Classified the same under Customs Tariff Heading 84831099 as capital goods - Held that:- on perusal of the provisions of Foreign Trade Policy, all second hand goods except second hand capital goods, are only restricted. In the present case, it is not disputed by the Revenue that the imported goods are not capital goods being shafts of ships. By virtue of the wordings of para 2.17 of the hand book of procedures under Foreign Trade Policy, the goods imported by the appellant were thus not restricted. Even if it is considered that the shafts were cut into small pieces of different sizes then also the same has to be considered as scrap for which no license is required. Therefore, defective shafts imported by the appellant were not prohibited/restricted goods. Accordingly, the confiscation of goods and imposition of penalties upon the appellant were not justified. - Decided in favour of appellant with consequential relief
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2016 (4) TMI 607 - CESTAT CHENNAI
Whether guilty of fraud - Export of red sander, prohibited goods - Mis-declaration as gypsum board - Held that:- evidence gathered under section 108 of the Customs Act, 1962 is not from an accused or accused person. The words ‘accused’ or ‘accused person’ is used only in a generic sense in law. Recording of the proceeding by customs being pre-accusation stage that is not extracted from an accused. Therefore, customs officer is not a police officer as is defined under Evidence Act and Code of Criminal Procedure. Accordingly, appellant's plea that the exculpatory statement of the appellant has credence in evidences does not sound well when he had pre-meditated design to commit fraud against Revenue.
The statement made by Alexander inculpating the appellant could be used against him as substantive evidence following the ratio laid down by the Hon'ble Supreme Court in the case of Naresh J Sukhawani Vs. Union of India [1995 (11) TMI 106 - SUPREME COURT OF INDIA]. The 108 statement resulted in confiscation of the red sanders discovered from the cavity on the gypsum boards was sufficient a proof which could be instrumental to trace the appellant. It is also settled principle of law that even if the confession is retracted the time within which such retraction has been made and the veracity of the retraction play a vital role for believability thereof. Confession binds the author and against whom the deposition has been made.
The contravention of law and the offence committed in the organized manner was under absolute secrecy which was proved from the discovery of red sander from the cavity made in the gypsum board to hide the same. If the appellant is granted any leniency, that shall be bonus to smuggling. So also unchecked smuggling when upsets the economy, appellant fails to deserve any leniency. All these can be said following the principles of law laid down in the case of KI Pahavunny Vs. Assistant Collector (HQ), CX, Collectorate of Cochin [1997 (2) TMI 97 - SUPREME COURT OF INDIA]. The evidence on record having probative value it is the objective evaluation thereof applying relevant test, finding has been reached. There is neither any surmise nor suspicion that can be attributed to investigation. They made their story very successful. No fancible reason has been assigned by them. The issue germane from the root of the matter and has been well tested by the investigation. Reason being soul of the law they have tried to establish the truth of the clandestine deal by a detailed investigation. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity are routed from man's proclivity. Flattering when it is tested on the anvil of the circumstantial evidence, truth trans and scanning evidence going through the reasoning of the learned adjudicating authority it imbibes a feeling that investigation result is not false.
Therefore, evidence gathered by Revenue unambiguously proved that the appellant was contributory to the fraud committed against customs. It is established principle of law that fraud and justice are sworn enemies. The smuggling racket perpetuated smuggling for many years in the past as is revealed from their conduct. - Decided against the appellant
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2016 (4) TMI 606 - CESTAT KOLKATA
Seeking cross-examination of witnesses - Seizure of 6150 kgs of Red Sanders Wood - No cross examination of certain witnesses asked for was extended to the appellant - Held that:- the Adjudicating authority cannot brush aside the request for cross examination of the relied upon witnesses / investigating officers. If for any reason the cross examination of witnesses cannot be extended then the Adjudicating authority has to intimate the appellant about such rejection by a separate letter as is now a settled legal position. So, the appellant should give a specific list of persons / witnesses to be cross examined and adjudicating authority should make efforts to provide the cross examination of such witnesses. - Matter remanded back
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2016 (4) TMI 539 - SUPREME COURT
Correctness of High Court order - No order passed by High Court against the order passed by the Competent Authority in exercise of its power under Section 68-I of the NDPS Act, 1985 confiscating the property in respect of which the claim is preferred by the husband of the appellant (since deceased) - Respondent submitted that the issuance of notice is in accordance with the law laid down by this Court and, thereafter, the Competent Authority determined the lis between the parties with regard to the confiscation and the Tribunal has confirmed it and the same is the subject matter of writ petition before the High Court. The High Court has observed that order stands revoked as being similar.
Held that:- the confiscation order passed by the Competent Authority and confirmed by the Tribunal requires to be considered in the Writ Petition filed by the appellant herein. Hence, the matter requires remand to the High Court to re-examine the claim and counter claim of the parties. - Apex Court remitted the matter
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2016 (4) TMI 538 - SUPREME COURT
Seeking modification in rigorous imprisonment and payment of fine order - Possession of 1 kg of opium without any permit or licence - Search was conducted in the presence of and on the instructions of Gazetted officer - Held that:- the extracts of depositions of other prosecution witnesses show that it was not Satbir Singh alone who was involved in the investigation. Therefore, relevant to the note that this was not even a ground projected in support of the case of appellant and does not find any reference in the judgment under appeal, the submission is rejected. Therefore, there is no reason to differ from the view taken by the High Court. - Apex Court decided against the appellant
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2016 (4) TMI 537 - DELHI HIGH COURT
Confiscation and imposition of redemption fine as well as penalty u/s 112A & 114AA of the Act - Seizure of imported high end luxury car - Mis-declared as new car and evasion of payment of customs duty as under-invoiced - Held that:- the Court is not persuaded to come to a different conclusion from adjudication order as well as the impugned order of the CESTAT where the CESTAT has come to a definite finding that the respondent was a bonafide purchaser of the car and had no role in its importation. - Decided against the revenue
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2016 (4) TMI 536 - MADRAS HIGH COURT
Payment of redemption fine and anti-dumping duty - Confiscation of mulberry raw silk yarn of 3A grade of Chinese origin - second test report produced as the goods were of 3A Grade - Department itself agreed to a second test report - Held that:- once the Department had agreed to a second test report without reserving any right to rely upon the first test report, it is not open to the Department to contend that the second test report ought to be dumped. The samples sent for the second test had also been drawn from the very same consignment. The samples were actually available with the Department. Therefore, no confiscation of goods required. - Decided against the revenue
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2016 (4) TMI 490 - SUPREME COURT
Additional duty - Import of ship for breaking and for no other use - Appellant pleaded that no excise duty is payable and the product manufactured in India is exempted from excise duty - Held that:- in view of the Judgement of this court in the case of Hyderabad Industries Limited v. Union of India [1999 (5) TMI 29 - SUPREME COURT OF INDIA], when excise duty is exempted, there is no question of payment of additional duty.
Imposition of import duty - Purchase of vessel in auction - Held that:- by no stretch of imagination, it can be treated as import when the vessel was manufactured by an Indian company and was sold to another Indian company which was using this vessel. Therefore, the CESTAT has gone totally at a tangent and has held that the appellant shall be liable to pay duty on totally irrelevant consideration. Impugned order of CESTAT set aside and custom duty paid by the appellant shall be refunded within two weeks. - Appeal disposed of
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2016 (4) TMI 489 - CESTAT MUMBAI
Revokation of CHA licence - Involvement of appellant CHA in the case of Fraudulent availment of Drawback on exporters in the name of IEC which were obtained on the basis of fictitious addresses at and in the name of non-existent person - Appellant charged under regulation 13 (a), 13(e) & 13(n) of CHALR, 2004 - Held that:- by applying the decision of Tribunal in the case of Baraskar Brothers Versus CC [2012 (6) TMI 466 - CESTAT, Mumbai], the impugned order is unsustainable. - Decided in favour of appellant with consequential relief
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