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Customs - Case Laws
Showing 1 to 20 of 139 Records
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2016 (5) TMI 1611
Seeking refund of seized rubber or its market value - grievance of the petitioner is that the authorities have not responded to his representation - principles of natural justice - HELD THAT:- This writ petition is disposed off with a direction to the Assistant Commissioner of Customs, (Preventive) NER Region, Shillong (Respondent No.4) to decide the representation 21.8.2015 (Annexure-A) of the petitioner by a reasoned order within 45 days from the date of receipt of a copy of this order and communicate the order to him.
Petition disposed off.
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2016 (5) TMI 1605
Principles of natural justice - Denial of duty free benefits for the subject import consignment under Customs Notification No.98/2009-Cus, dt.11.09.2009, without detailed reasons - SCN also not issued - HELD THAT:- Under the circumstances, the Tribunal cannot take up or decide the issue on merit. It would be in the fitness of things that the matter goes back to the Adjudicating authority who should put the appellants on notice and decide the issue by a speaking order after giving them a reasonable opportunity to be heard.
At this juncture, the learned Counsel for the Appellant submits that this is a live consignment and therefore, a time limit may be specified - there are force in the contention of the learned Counsel and request the Adjudicating authority to dispose of the matter in accordance with the above, within a period of two months from the date of receipt of this order.
Appeal allowed by way of remand.
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2016 (5) TMI 1508
Preparing the rosters for re-assigning the bench matters to the Members beyond 29th April, 2016 “till the joining of new President CESTAT or until further orders, for smooth functioning of the tribunal - Sections 129(1) and 129C(6) of the Customs Act, 1962, Section 35D of the Excise Act read with Rule 3 and 4 of the CESTAT (Procedure) Rules, 1982 - HELD THAT:- While the Court appreciates the necessity for taking the above step, at the same time, the Court is concerned that since more than two months now no President of the CESTAT has been appointed. In the meanwhile, even the post of the Vice President has fallen vacant. The impugned order can at best be treated as temporary arrangement for a certain period and cannot continue indefinitely.
Consequently, with a view to ensure that there is no unnecessary delay in the filling up of the posts of the President and Vice President of the CESTAT, which as is known, has a large pendency of matters, the Court issues notice in this Petition limited to the above aspect. The Central Government will keep the Court apprised, by way of affidavit, by the next date of hearing as to the steps taken to fill up the posts of President and Vice President of the CESTAT. It is made clear that no interim direction is being issued and the matters will proceed as per the roster prepared by the Member (Judicial) of the CESTAT in the meanwhile.
List on 30th May, 2016.
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2016 (5) TMI 1436
enefits of original license by legal heirs of deceased - petitioner (legal heir) stepping into the shoes of deceased - the decision in the case of Navedita Prakash Gawade Versus Union of India [2014 (9) TMI 1148 - BOMBAY HIGH COURT] contested - Held that: - no merit in present petition - SLP dismissed.
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2016 (5) TMI 1427
Valuation - Cement - requirement of RSP to be declared - whether cement sold in 50 Kgs packed condition to Builders, Developers, Ready Mix Concrete Manufacturers /Government etc. would come within the category of Institutional consumers? - Held that: - the issue decided in the case of ULTRATECH CEMENT LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE [2014 (9) TMI 966 - CESTAT NEW DELHI], where it was held that cement in 50 Kg bags sold to builders/developers qualifies as sales to institutional consumers and benefit of serial number 1C of N/N. 4/2006-C.E., is available to such clearances - appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1418
Violations of import conditions - case of Revenue is that the respondent failed to demonstrate that the cars were in fact used for transporting the foreign guests of the hotel - Whether the respondent violated the conditions attached to the import of cars for use in the hotel business? - Held that: - the Department was unable to show any stipulation in any notification issued by the Central Board of Excise and Customs or any other notification specifically requiring the imported cars to be used only for transporting foreign guests of the hotel - as long as foreign exchange is earned by the hotel and the imported cars are being used, there cannot said to be a violation of any statutory requirement - appeal dismissed.
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2016 (5) TMI 1406
Detention of property - property in the nature of a factory with plant and machinery - order of attachment - recovery of outstanding dues of the Customs Department - liability of last owner - the decision in the case of C OIL EXIM LTD. Versus UNION OF INDIA [2015 (9) TMI 1594 - GUJARAT HIGH COURT] contested, where it was held that The subsequent owner had agreed to discharge the dues of the erstwhile owner, the question whether it was the property of the business which was sold need not be gone into - Held that: - the decision in the above case upheld - SLP dismissed.
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2016 (5) TMI 1343
Fraudulent availment of benefit under Duty Entitlement Pass Book Scheme - forgery of signature in DEPB - The allegation against the petitioner Pavitar Singh is that he was Accountant and that Satbir Singh was his employee and that a fake firm was floated in the name of his employee Satbir Singh and that he was involved in preparation of the forged DEPB which is transferable and can be used for setting off against the customs duty.
Held that: - offence u/s 132 of the Act pertains to false declaration and false documents in the transactions of the business relating to customs and Section 135 of the Acts relates to evasion of customs duty - In the CBI case against Gurkirpal Singh, allegations u/s 420, 467, 468 and 471 IPC were also levelled alleging that he has done cheating by evading customs duty to the extent of ₹ 1.85 crores and has prepared forged documents. Therefore, charges are substantially same for which accused Gurkirpal has already tried, convicted and sentenced. Therefore, present complaint against Gurkirpal is hit by the principles of double jeopardy and is liable to be quashed.
CBI recorded statements of some of the witnesses under Section 108 of the Act which are admissible in evidence. Therefore, it is not possible to pre-judge the case before the trial.
The complaint was previously filed at Amritsar Court. It was returned and after one year, it was filed at Jalandhar Court. Let the petitioner Pavitar Singh take a plea regarding bar of limitation for offence under Section 132 of the Act and let the lower Court decide the same. In the quashing petition, it is not possible to critically appreciate evidence, which is yet to be produced before learned Chief Judicial Magistrate, Jalandhar.
Petition dismissed - decided against petitioner.
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2016 (5) TMI 1338
Refund claim - bank guarantee furnished in compliance with N/N. 49/2000-Cus., dated 27th April, 2000 for imports under the Export Promotion Capital Goods (EPCG) scheme that had been prematurely encashed by the proper officer of Customs without awaiting the Export Obligation Discharge Certificate (EODC) under consideration with the competent licensing authority - it was the claim of Revenue that there is no record of application for refund dated 2nd October, 2009 having been received in the Customs House.
Held that: - This is a matter that can be resolved on the facts available in the records. Appellant has furnished the application for refund submitted to New Customs House Mumbai along with the covering letter. I find from the covering letter that there is a clear date stamp on it. The date of the stamped acknowledgement of receipt by the EPCG unit is 20th October, 2009 and the endorsement states clearly that ‘copy of EODC not received.’ - Failure to enclose discharge certificate is, undoubtedly, a deficiency and may render the application incomplete but it does not detract from the existence of the refund application. The acknowledgement with date stamp authenticates the application. The application was certainly made within time.
Appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1315
Jurisdiction - the alleged smuggled article was intercepted at Ghaziabad, outside the jurisdiction of Delhi Court - whether the accused could be prosecuted at Delhi? - Held that: - in case the complaint is ordered to be returned to Ghaziabad Court, it will be difficult for them to pursue the proceedings, as such, counsel submits that the matter be remanded back to the Trial Court where necessary submissions will be made - The matter is remanded back to ACMM, New Delhi who will decide the same after considering the rival submissions - matter on remand.
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2016 (5) TMI 1301
The petitioner has failed to honour the undertaking given before this Court in the previous order[s] - in view of the prayer made by counsel for the petitioner, we dismiss the writ petition as withdrawn with liberty to file fresh one on the same cause of action - auction stayed for a week.
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2016 (5) TMI 1293
Imposition of ADD - imports of melamine - imported from People’s Republic of China - alternative remedy provided under the Customs Tariff Act, 1975 of an appeal before the Customs, Excise and Service Tax Appellate Tribunal - Held that: - The Court does not find the above plea to constitute a sufficient justification to permit the Petitioner to bypass the statutory remedy of an appeal provided under the Customs Tariff Act, 1975. It would be open to the Petitioner to request the CESTAT, as and when an appeal is filed, to dispose it expeditiously - petition dismissed.
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2016 (5) TMI 1238
Period of limitation - Suspension of CB licence - Violation of Regulation 11 of CBLR 2013 - Imposition of penalty under Regulation 22 read with Regulation 20 of the CBLR 2013 - Held that:- the Court is unable to agree with the submission for the simple reason that the SCN dated 19th September 2015 was not issued under the CBLR 2013. Further, it was not issued to the Petitioner. By adding the name of the Petitioner to the said SCN dated 19th September 2015 issued under the CA by way of a corrigendum dated 1st February 2016, it cannot be said that an SCN was issued to the Petitioner under the CBLR 2013 on 19th September 2015. It bears reiteration that in terms of Regulation 20(1) of the CBLR 2013, the SCN had to be issued to the Petitioner within ninety days from the date of the receipt of offence report, i.e., within 90 days from 18th February 2015. Clearly the SCN under Regulation 20(1) of the CBLR 2013 was not issued within ninety days after 18th February 2015.
Therefore, the Petitioner not having been issued the SCN within ninety days of receipt of the offence report by the Customs, the SCN dated 2nd February 2016 issued to it by the Commissioner of Customs (General) is clearly unsustainable in law. The order dated 23rd March 2015 confirming the suspension of the Petitioner's CB licence cannot also be continued on account of the failure to issue the SCN and therefore complete the enquiry within the time limit specified in Regulation 20. Consequently the said order dated 23rd March 2015 is hereby declared to be invalid and set aside on that basis.
Suspension of licence - Alleged illegal imports - Held that:- the name of M/s Universal Enterprises in respect of one B/E does not find mention in the table of the said order. Therefore there is an obvious error in the impugned order. It is not clear as to the precise nature of the alleged violation committed by the Petitioner and whether it was qua the transactions involving M/s Universal Enterprises or the transactions involving Chaman Lal & Sons and Shyama Corporation. What appears to have happened is that in drafting the suspension orders qua each of the 10 CHAs/CBs there has been a mix up of facts. This by itself is sufficient to show that there was a total non-application of mind to the facts involving the Petitioner as far as the decision to suspend its CB licence was concerned. Therefore, the suspension order is set aside. - Petition disposed of
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2016 (5) TMI 1237
Validity of Customs Notifiaction No. 91/2009 dated 11th September 2009 - restricting the transfer/sale of goods imported using the Served From India Scheme ('SFIS') duty certificates/scrips for the purpose of payment of customs duty - Held that:- it is obvious in the instant case that the impugned notification dated 11th September 2009 issued by the DoR under Section 25(1) of the CA on the one hand and the amendment to the FTP 2009-2014 with effect from 1st August 2013 and the HBP cannot co-exist. The notification dated 11th September 2009 issued by the DoR takes away what the amended para of the FTP 2009-14 and the HBP permits. It also takes away what para 3.6.4.6 of the FTP 2004-09 read with para 2.43 of the HBP permits. On the contrary, the DoR should have on its own have issued a fresh notification consistent with the changes brought about to FTP 2009-14.
In the event of conflict of views between two ministries of the central government, the view taken by the ministry that is primarily responsible for the policy in question, which in this case is the FTP, should prevail. The SFIS was introduced by the Ministry of Commerce and its instrumentality, i.e. the DGFT has been statutorily entrusted with the final word on the interpretation of the FTP. The letter dated 6th September 2013 from the Commerce Secretary to the Revenue Secretary is instructive. It refers to Circular No. 837/14/2006 dated 3rd November 2006 issued by the CBEC under the Ministry of Finance which acknowledged that payment of customs duty could be made by using the duty credit scrips.
The Court posed a query to the learned ASG whether denying permission to alienate goods imported under the SFIS when the FTP 2004-09 was operational while permitting such alienation if goods were imported under the SFIS under FTP 2009-14 was based on any rational criteria or was designed to achieve any legitimate objective. The learned ASG was unable point out any. Indeed denial of permission to transfer vessels imported more than three years ago only because they were imported under FTP 2004-09 serves no useful or rational purpose.
The stand taken by the DoR appears to be unjustified. The result of such a stand would be that while the transfer of vessels that were imported three years after 1st August 2013 do not require any permission, vessels that were imported more than three years earlier to 1st August 2013 would not be permitted to be transferred except by way of re-export or within the group or to managed hotels, come what may. While it is not clear what revenue is sought to be protected in that process, it surely subjects the importer of goods that fall in the latter category to discrimination. Such denial of permission would attract the vice of impermissible discrimination in terms of Article 14 of the Constitution particularly since it is based on no rational criteria. In fact it contradicts the intent expressed in the relevant paras of the FTP 2004-09 and the HBP which have been adverted to. There is also nothing in the FTP which prohibits the sale of vessels that have completed more than three years after import from being sold in the domestic market. In other words, there is no justification for the DoR to insist that the vessels of the Petitioner that have completed more than three years after import should be transferred only by sale within group companies or managed hotels or be re-exported.
Therefore, the impugned Customs Notification No. 91/2009 dated 11th September 2009 under Section 25(1) of the CA to the extent it restricts the transfer/sale of goods imported using the SFIS duty certificates/scrips for the purpose of payment of customs duty, even where such goods satisfy the criteria for transferability under the FTP and HBP, is in violation of the FTDR Act, the FTR Rules as well as FTP 2004-2009 and FTP 2009-2014.
It is further held that the letter dated 12th June 2013 issued by the DoR asking the DGFT to keep in abeyance the NOC granted by the PRC is contrary to the legal position explained above and can have no binding effect on the DGFT. On questions of interpretation of the FTP, it is the DGFT whose views will prevail. For the same reason, the stand of the DoR conveyed to the Court through the letter to the DoR, and recorded in the Court's order cannot prevail. Hence, the DoR is restrained from objecting to the transfer/sale of the vessels Greatship Aarti, Greatship Ahalya, Greatship Amrita, Greatship Anjali and Greatship Asmi belonging to the Petitioner since each of the said vessels has been imported more than five years ago. - Petition disposed of
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2016 (5) TMI 1212
Seeking exemption from pre-deposit - Section 129E of the Customs Act, 1962 - Entire amount of Customs duty has been recovered prior to filling of appeal with encashment of Bank Guarantee - Held that:- when the encashment of Bank guarantee was to the extent of duty then the Commissioner (Appeals) has still ignored the aforesaid. It happened for the reason that after keeping the appeal pending for ten months without pointing out any defect, it was decided without giving opportunity of hearing to the appellant. As an outcome of which, the order was passed in ignorance of the application regarding exemption from predeposit. The way Commissioner (Appeals) has conducted the appeal, shows ignorance of the material available on record. The condition of pre-deposit get satisfied with recovery of the amount of duty which is much more than 7.5% of the duty imposed on the petitioner herein. Therefore, dismissal of appeal in reference to Section 129E of the Act of 1962 cannot be said to be proper. The impugned order is thus set aside with remand of the case to the Commissioner (Appeals) for its hearing on merit. - Petition allowed by way of remand
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2016 (5) TMI 1211
Validity of Tribunal's order - Confiscation of gold bars recovered and imposition of penalty - suspected that gold bars recovered were of a foreign origin - Held that:- the contention of Mr. Bhardwaj, that the gold recovered from the possession of Nand Kishore Somani, according to the clinical analysis report, contains gold content between 99.94% and 99.96% and also the certificate is a pointer to show that the gold bars could not have been of Indian origin found mo merits for various reasons. Therefore, we need not add to the reasons why the certificate is of no consequence. - Dismissed as unmeritorious
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2016 (5) TMI 1210
Smuggling of memory cards in unaccompanied baggage - Whether the impugned goods as held by the adjudication authority liable for absolute confiscation have been righty allowed to be released on payment of redemption fine and penalty by the Commissioner (Appeals) and whether penalty imposed on the respondents been rightly reduced or not - Held that:- the impugned goods are in commercial/trade quantity and do not constitute bonafide personal effects under Section 79 ibid read with the EXIM policy in force and the passenger neither made a true declaration of the goods nor declared true quantity and value. therefore, he contravened the provisions of Section 77 and 79 of the Customs Act. In terms of CBEC’s Circular No. 29/200-Cus dated 11.04.2000 import of goods in commercial quantity would not be permissible within the scope of baggage rules, ever on payment of duty. The respondent was not eligible to import the impugned goods and were imported in gross violation of the provisions of the Customs Act and Foreign Trade (Development and Regulatory) Act and would appropriately constitute prohibited goods liable for confiscation under Section (i),(I) & (m) ibid. Therefore, government upholds Department’s contortion that absolute confiscation is legally warranted keeping in view the facts and circumstance of the case.
The appellate authority had completely ignored the fact that Shri Shamsuddin Malik was the carrier of the impugned goods and he brought the goods on behalf of Shri Didar Singh for monetary gain. The no objection given by Shri Didar Singh to Shri Shamsuddin Malik was nothing but an afterthought to escape from the penal action at the hands of Customs Authorities Government, therefore, holds that in the present case the goods imported by the passenger as a carrier are liable for absolute confiscation as rightly pleaded by the department. Hence, the original adjudicating authority has rightly ordered absolute confiscation of the impugned goods and that the commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty.
Government further notes that commissioner (Appeals) in his order has held that since the baggage rate of duty was levied on the impugned goods which inbuilt contains the provision of penalty also, it justifies the reduction of penalty amount imposed by the adjudicating authority. Government is not inclined to accept the averments of appellate authority as the baggage was cleared under rule 9 of Baggage Rules, 1998 as amended which deals with the provision for clearance of unaccompanied baggage wherein the baggage rate of duty is liveable which was statutory requirement under the Customs Act, 1962. Government further observes that facts on record clearly established the collusion in outright smuggling activities by Shri Didar Singh with Shri Shamsuddin Malik (main accused) and his abetment of such actions and both have indulged in smuggling of goods by way of outright concealment and mis-declaration as part of unaccompanied baggage. Therefore, the justification of appellate authority in reducing the penalty is not tenable and Government restores the penalty amount as imposed by the original authority on both the respondents. - Revision applications allowed in favor of revenue.
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2016 (5) TMI 1209
What is the correct date for filing of the refund claim - Whether the date should be taken as 11.1.2013 as contended by the appellant herein or 28.11.2013 which is the date of resubmission of the application by the appellant or whether 12.11.2014 as decided by the adjudicating authority - Held that:- the appellant had filed refund claim dt.11.1.2013 on 23.1.2013. A claim for refund which is wanting certain documents and particulars cannot be a reason to hold that the claim was not filed within time. The conclusion arrived at by the Commissioner (Appeals) holding that the appellant had filed the refund claim only on 17.9.2014 which was received in this case on 9.10.2014 is based on OIO. and has been filed beyond the stipulated period of one year from the date of issue of the OIO for final assessment, is in my opinion not correct. The consequential rejection of the appeal as time barred under Section 27 of the Customs Act, 1962 is also incorrect. The Hon'ble Madras High Court in the case of Sashun Pharmaceuticals Ltd. Vs Jt. Secretary, M.F. (D.R), New Delhi [2013 (8) TMI 200 - MADRAS HIGH COURT] has held that original filing of the claim is to be reckoned for the purpose of limitation. Therefore, the finding that claim of refund is time barred is contrary to the judgement of the Hon’ble Madras High Court and is therefore set aside. The matter is being remanded to the original authority to examine the aspect of unjust enrichment. - Appeal allowed by way of remand
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2016 (5) TMI 1195
Seeking modification in the order to remove the rider of obtaining permission from the learned trial court for each visit to abroad and come back to India - Appeal is pending against adjudication order but the presence of the petitioner is required before the learned trial court during trial court of the case - Held that:- since the petitioner is having good business at UAE and his wife and family are also residing there if permission will not be given to him to visit UAE, then his business may be adversely effcted and his family may also suffered therefore, this petiton deserves acceptance. The learned trial court is directed to decide the application of the petitioner pending before it since 18.1.2016 within two days from the date of receipt of the certified copy of this order and accord him permission and in future, if he wants to go abroad after informing the court, he may be allowed to go abroad whenever necessity arises so that his business may not be affected and he may also take care of his family subject to the condition that trial, before the trial court may not be effected. - Decided in favour of petitioner
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2016 (5) TMI 1194
Validity of order passed by writ court - Clearance of goods covered by the commercial invoice and consignments of Alloy Steel Deformed Bars also forthwith lying in the port of Chennai - Held that:- the proposition, which has been proposed by the writ petitioner that till the contempt is purged the appeal against the writ petition cannot be heard has no merit and, therefore, we reject the said preliminary objection and issue notice to the respondents on merit as well as on I.A.No.5511/2015, I.A.No.6418/2015 and 6425/2015. Appellants are directed to supply the copy of memo of appeal to Shri V.K. Jain, learned counsel for the respondent No.1, so that he may seek further instructions in the matter, within a period of 3 days from today. Looking to the fact that in contempt proceedings order has been passed and in case, if stay is not granted against the appellants then, the impugned order will be executed and both the writ appeals of the department will be rendered as infructuous apart of facing contempt by the writ court. - Interim relief and stay granted
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