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Customs - Case Laws
Showing 121 to 139 of 139 Records
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2016 (5) TMI 188 - CESTAT MUMBAI
Determination of assessable value of goods imported - Agent agreement between the respondent and its associates - Adjudicating authority held that the value of the goods which are imported by the respondent needs to be loaded by an amount paid as commission to them. Revenue submitted that identical goods from the same supplier was charged higher price and relied upon Rule 9 of Customs Valuation Rules. Also there cannot be two different prices/value for identical goods which are imported at or about the same time.
Held that:- it is seen that Revenue is not able to dislodge the factual finding of the first appellate authority. Also it is recorded that the first appellate authority has considered the entire facts of the case and also considered the case laws relied upon by the respondent-assessee and came to a conclusion that loading of the value is not sustainable. Therefore, the grounds of appeal do not contradict by evidence against the findings of the first appellate authority and the impugned order is upheld as correct and legal. - Decided against the revenue
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2016 (5) TMI 187 - CESTAT NEW DELHI
Denial of refund claim - Rent paid on behalf of the Revenue to CWC warehouse - Seizure of some indigenous goods - Appellant paid duty, redemption fine and penalties and sought release of the goods as per adjudication order but while releasing the goods, the appellant was asked to pay an amount on account of rent to Commissioner of Customs (Preventive), NCH, New Delhi which was paid by the appellant under protest.
Held that:- in adjudication order, the appellant is asked to pay redemption fine, penalties and the duty applicable on the goods in question. The appellant has paid the same, therefore, the goods were required to be released to the appellant on payment of the amounts confirmed as per adjudication order. The adjudicating authority has not passed any order for payment of rent by the appellant for the period of seizure of goods. In these circumstances, the appellant is not liable to pay rent. As the appellant has paid an amount on account of rent in favour of Commissioner of Customs (Preventive), NCH, New Delhi under protest, the said amount is refundable to the appellant as the appellant has no liability to pay rent. Therefore, the impugned order is not sustainable in the eyes of law and accordingly set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 186 - CESTAT MUMBAI
Imposition of penalty on Courier - Section 117 of the Customs Act, 1962 - Incorrectly advising their client and for non-compliance of the provisions of the Act which was his duty to do so - Held that:- both the lower authorities erred in imposing penalty on the appellant under Section 117 of the Customs Act, 1962 for more than one reason. Firstly, the appellant is a courier and has filed courier bill of entry as per the declaration and authorization given to him by the importer. Appellant had filed courier bill of entry based upon the proforma invoice provided to him by the importer and in my view, has not contravened any of the provisions of the Customs Act, 1962 to attract penalty. It was his duty to inform the importer to file the bill of entry and discharge duty liability, in response to which he was authorised to file the bill of entry with the value as being shown in the proforma invoice and cannot be considered as a dereliction of duty.
Secondly, provisions of Section 117 gets attracted only to a person who has contravened the provisions of the Act or abets any such contravention or fails to comply with any provisions of the Act which is his duty to comply and where there was no express penalty provided is not at all present in this case. Therefore, if the Revenue had strong case against the appellant they could have issued a show cause notice by invoking the various other provisions of the Act for imposition of penalties. Having not done so, the penalty under the provisions of Section 117 cannot be invoked against the appellant. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 185 - SUPREME COURT
Eligibility - Benefit of exemption Notification No. 20/99 dated 28.02.1999 - Whether Vitamin E-50 is classifiable under Chapter 2309.00 of the Customs Tariff Act, 1975, as “Prawn Feed” and therefore eligible for exemption - Description of exempted goods in the notification is “Prawn Feed” - Held that:- on the strength of the judgment of larger Bench in the case of Sun Export Corporation, Bombay vs. Collector of Customs, Bombay and Another [1997 (7) TMI 117 - SUPREME COURT OF INDIA], it has been contended on behalf of the assessee that “prawn feed” covered by the exemption notification No.20/99 must be understood to include 'prawn feed supplements' which is what the Vitamin E-50 involved in the present case is. In paragraph 13 of the Order of this Court in Sun's case, views have been expressed with regard to the interpretation of an exemption notification to support the conclusion reached. The same may require a reconsideration.
That apart, in the referral order it has been noticed that Sun's case has been distinguished in 'Collector of Central Excise, Guntur vs. Surendra Cotton Oil Mills & Fert. Co. [2000 (12) TMI 103 - SUPREME COURT OF INDIA]. The basis on which the said distinction has been drawn needs to be further pursued. Therefore, the opinion expressed in Sun's case may require a reconsideration.
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2016 (5) TMI 184 - SC ORDER
Recovery of amount of Drawback under Rule 16A of 1995 Rules - Sale proceeds of export not realised - Appellant appealed before th CESTAT for various issues viz., recovery of amount of Drawback under Rule 16A of 1995 Rules, Confiscation of goods, Period of limitation and imposition of penalty where the CESTAT decided in favour of appellant reported in [2015 (1) TMI 1266 - CESTAT NEW DELHI] - Revenue now stated that it intends to withdraw these Civil Appeals and wants to question the impugned order before the High Court within a month’s time from today - Apex Court disposed of the appeals as withdrawn with liberty to file appropriate petition(s) before the High Court within a month’s time from today.
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2016 (5) TMI 177 - CESTAT MUMBAI
Refund - Order passed beyond the scope of show cause notice and decided the appeal on altogether different ground of admissibility of refund whereas the the appeal was on the bar of unjust enrichment - Adjudicating authority has already sanctioned the refund but credited into Consumer Welfare Fund applying the provisions of unjust enrichment.
Held that:- the refund is in respect of revenue deposit made by the appellant for provisional assessment of imports in terms of Section 18 of the Customs Act, 1962. It is clear that at the time of provisional assessment the bar of unjust enrichment in case of a refund arising on finalization of the assessment was not applicable. Therefore, the lower authority has wrongly credited the sanctioned refund in the Consumer Welfare Fund. As per the decision of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA], the bar of unjust enrichment is not applicable in case of provisional assessment. Therefore, the impugned order is not sustainable and set aside. - Decided in favour of appellant
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2016 (5) TMI 176 - CALCUTTA HIGH COURT
Claim of Exemption form CVD where the like products are not being manufactured in India - Held that:- concerned respondent authority is directed to finally assess the Bills of Entry, as mentioned in the chart, on the basis of the observations made by the Supreme Court in the judgment in the case of M/s. SRF Ltd. v. Commissioner of Customs, Chennai [2015 (4) TMI 561 - SUPREME COURT] and in the case of M/s. ITC Ltd. v. Commissioner of Customs (Import & General), New Delhi [2015 (4) TMI 561 - SUPREME COURT] and if distinguishable, give a decision in the matter, supported with cogent reasons. - Mere filing a review petition before the SC cannot be held that the decision rendered are not valid as on date - Petition disposed of
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2016 (5) TMI 175 - CESTAT KOLKATA
Imposition of penalties and confiscation of goods in lieu of redemption fine - Seizure of 13 vehicles - Smuggling of Betel Nuts of third country origin and Garlic of Chinese origin goods from Nepal into India - Held that:- there is no retraction of a confession statement. Appellants never asked for cross-examination of witnesses. None of the persons came forward to claim the ownership of seized goods of more than ₹ 2.00 Crore in value. The act of running away of Drivers from the place of interception is not disputed by Appellants. It cannot be imagined that the drivers who ran away would not have informed the masters that goods/trucks have been detained by some agency. There is thus a plethora of circumstantial evidences corroborating the relied upon statements of drivers and khalasi.
As per Section 115 of the Customs Act, 1962 a driver has to be considered as an agent of the owner and accordingly knowledge of the drivers will have to be considered as the knowledge of the owners of vehicles. The argument of appellant that in the absence of test report of the samples sent, it cannot be said that the seized goods were of foreign origin and that even the department was not sure of that nature, can be taken by the owner of goods who produces some documents of licit acquisition of seized goods. Adjudicating authority has given a logical findings that Garlic of Chinese origin can be easily identified by its size. It is also a common experience that in Indian markets Garlic of Chinese origin is easily recognized from indigenous Garlic by its size. However, in the case of Appellants awaiting the reports of testing agencies are not relevant when the drivers/khalasi are themselves confessing to the fact that seized goods were brought from Nepal for the lure of money. Therefore, the penalties imposed upon the appellants and confiscation of vehicles under Section 115 of the Customs Act, 1962 are also upheld.
Quantum of redemption fine - imposed upon the vehicles of the owners of the vehicles - Appellant contended that value of seizure is arbitrary and the quantum of redemption fine, nearly 50% of seized value, is very high - Held that:- there is substance in the argument of owner appellants that over the period the seized/confiscated vehicles must have deteriorated and that some of the vehicles have been disposed of without giving any intimation to the owners. It is observed that redemption fine imposed is nearly 50% of the seizure value of vehicles determined on 02.10.2009 which must have further depreciated till the date of adjudication. Therefore, imposing a redemption fine of nearly 50% of the seizure value of vehicles is excessive. In the interest of justice it will be appropriate to restrict the redemption fine to the extent of 25% of the auction price where vehicles have been disposed of by the Revenue in auction. Same ratio of seizure value vs. auction price of auctioned vehicles can be taken for the purposes of imposing redemption fine on vehicles released provisionally. - Decided partly in favour of appellant
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2016 (5) TMI 174 - CESTAT KOLKATA
Denial of ownership claim and imposition of penalty - Section 112(b) of the Customs Act, 1962 - Seizure of 7 gold bars concealed in the rectum - No foreign markings found on the seized gold bars - Appellant contended that the seized gold bars were made from the gold ornaments belonging to his family - Held that:- none of the seized gold bars bear any foreign markings. The method of concealment of the seized gold bars in the rectum of appellant is no doubt very suspicious, but that does not establish that seized gold bars are of foreign origin. Secondly the seizure of gold bars has also not been effected in a Customs area to shift the onus on appellants.
Therefore, in view of the decision of Tribunal in the case of Nand Kishore Modi v. CC(Prev.), West Bengal [2015 (10) TMI 2132 - CESTAT KOLKATA], once appellant Shri Swadesh Ch.Paul has produced the evidence of licit acquisition of 7(seven) gold bars then an enquiry was required to be made at the end of Nantu Banik, Pinky Jewellary to refute the claim of the appellant Shri Swadesh Ch. Paul. In the absence of any such investigation claimant Shri Swadesh Ch.Paul has discharged his burden that 7(seven) gold bars seized from Shri Babul Roy belonged to him and are not of foreign origin. The only evidence in the form of first statement of Shri Babul Roy, which was also subsequently retracted, cannot be made as the sole basis to hold that the seized gold bars are of foreign origin and smuggled. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 173 - CESTAT MUMBAI
Imposition of penalty - Smuggling of foreign branded cigarettes and liquor - brought in the guise of computer casing - falls under the category of lending of their IEC Code to Shri Sujit Satam - Held that:- the statement of Shri Kishore Shah clearly indicates that he was monitoring the activities and had allowed the use of IEC Code of M/s. Darshana Impex in collusion with Shri Sujit Satam. Shri Kishore Shah also had helped Shri Sujit Satam for arranging banker’s cheque or demand draft for the payment of duty on the mis-declared goods i.e. computer casing, in the name of one of the employees. These facts indicate that Shri Kishore Shah was aware of nefarious activity of Shri Sujit Satam as otherwise he would have issued demand draft of the firm M/s Darshana Impex. Since the consignment which is confiscated by the adjudicating authority is of M/s Darshana Impex and Shri Kishore Shah handling day-to-day activity of said firm he is liable for penalty under Section 112(a) of the Customs Act, 1962.
The adjudicating authority while attributing the role of Shri Pravin Gada, has not indicated how Shri Pravin Gada is liable to be penalized under Section 112(a) of the Customs Act, 1962 as it is very clear that Shri Pravin Gada had given a Letter of Authority to Shri Kishore Shah as Manager to look after the day-to-day affairs. Therefore the penalties imposed on Shri Pravin Gada seems to be unwarranted as he may have been kept in dark by the Manager and the same is liable to be set aside. - Decided partly in favour of appellnat
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2016 (5) TMI 127 - MADRAS HIGH COURT
Refusal of the adjudicating authority to provide copies of certain documents mentioned in the show cause notice - Import of gold jewellery from Thailand - Availment of benefit of exemption under Customs Notification No.85/2004 dated 31.8.2004 read with Customs Notification No.101/2004 dated 31.8.2012 - Held that:- the show cause notice made a mention about certain documents, but, by the orders impugned in the writ petitions, the Department has taken a stand that those documents are not relied upon. Once the Department takes a stand that they are not relying upon certain documents mentioned in the show cause notice, there is no way the appellants could compel the Department to furnish copies of such documents before adjudication. If at all the Department relies upon any document that they do not furnish to appellant, the appellant can always challenge the order in original passed thereafter, on the ground of violation of principles of natural justice. But, at the stage of adjudication proceedings, the appellant cannot forestall the enquiry. Therefore, nothing wrong is found in the order of learned Judge. - Decided against the appellant
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2016 (5) TMI 126 - MADRAS HIGH COURT
Condoantion of delay in filing an appeal - delay of 18 days - Period of limitation - Valuation of imported goods - Seeking direction to assess the payment of duty as per the Section 4 of the Central Excise Act, 1944 - Held that:- the petitioner has taken different avenues to challenge the Bill of Entry dated 01.05.2014. First he filed an appeal before the Commissioner of Appeals-II, which was dismissed on the ground of limitation. Thereafter, this Court also confirmed the order passed by the Commissioner of Appeals-II in the writ petition. Now, after the dismissal of the said writ petition, the petitioner has challenged the original Bill of Entry dated 01.05.2014. Hence, if the petitioner is allowed to challenge the Bill of Entry dated 01.05.2014, after the dismissal of the appeal and the writ petition, the matter will not reach finality. That apart, when a specific limitation has been prescribed under the Act, the petitioner should have filed an appeal within the stipulated time. Having failed to do so and having lost in the writ petition also, the prayer sought in the writ petition cannot be allowed. - Decided against the petitioner
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2016 (5) TMI 125 - DELHI HIGH COURT
Validity of impugned order passed by the learned Single Judge - Directions provided to release the goods imported by respondent - Show cause notice in terms of Section 110(2) of the Customs Act, 1962 are not issued in view of the expiry of six months from the date of seizure of goods - Appellant submitted that the goods were actually detained under Section 17(2) of the Customs Act and there was no confiscation under Section 110 of the Act, hence, Section 110(2) of the Act had no application and there was no question of permitting return of goods to the respondent.
Held that:- none of the procedures as stipulated under Section 153 of the Act were followed by the appellant while serving a show cause notice before exercising power under proviso to sub-section 2 of Section 110 of the Act. The service on the custom agent was no service and vitiates the order. Section 146(A) of the Act provides that any person who is to appear before an officer of the customs/appellate authority may do so other than where appearance is required under Section 108, by an authorized representative. Section 146A(2) provides that an authorized representative would include a relative/regular employee/customs broker licensed under Section 146/legal practitioner/person who has acquired such qualification as may be specified. Similarly, Section 147 of the Act provides for liability of principal and agent. Section 147(1) provides that where the Act requires anything to be done by the owner/importer/exporter, the same may be done by his agent.
Confiscation/seizure of goods would not fall within the meaning of “import of goods” as used in Section 146 of the Act and Regulation 2(c) of the Customs Broker Licensing Regulations, 2013. Such confiscation being penal in nature cannot be termed to be a part of the duty of a custom agent. Service would have to be effected on the owner of the goods personally or through agent so specifically authorized to accept. The right of owner of goods cannot be defeated without prior notice on him. Hence, the contention of the appellant that service of the show cause notice could also be effected on the Custom Agent in view of Sections 146, 146A & 147 of the Act is a contention without merits and the view of the learned Single Judge that for a custom agent to be able to receive notice of show cause in circumstance as stated above is agreed. - Decided against the revenue
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2016 (5) TMI 124 - SC ORDER
Suspension of import / advance license - import of bearings - fraud - High Court held that when the bills of entry was filed there was no valid licence in the names of importer also there was no application for transferability made on 19th August, 1999 nor the licence was made transferable reported in [2014 (9) TMI 289 - Bombay High Court] - Hon'ble Supreme Court on the regard being made on the submission of petitioner that the Tribunal as well as the High Court has failed to appreciate the controversy in proper perspective, for though the licence is subsequent but the goods had already been imported and, therefore, the petitioner is entitled to benefit of clause 7.17 of the Policy, had ordered to issue notice.
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2016 (5) TMI 83 - CALCUTTA HIGH COURT
Constitutionality of amended Section 129E of the Customs Act, 1962 - Imposition of exemplary penalty under Section 112 of the Customs Act - Improper importation of gold bars of foreign origin - Appellant contended that penalty imposed on the basis of value of smuggled gold could not have been made as gold is not a prohibited item nor is the import thereof prohibited by virtue of any notification or order under the Act of 1962 or any other law for the time being in force.
Held that:- there is a distinction between Section 111 and Section 112 of the Act. The former provides for confiscation of improperly imported goods and the latter prescribes the penalty for improper importation of goods. It is possible for a provision providing for confiscation of goods to be liberally interpreted, but when a provision provides for punishment it has to be strictly construed.
The expression “goods in respect of which any prohibition is in force" in the context of Section 112 of the Act would imply goods which are prohibited from being imported and not goods which have been smuggled into the country in contravention of the procedure established by law for the import thereof. Thus, while the corresponding provision in Section 111 of the Act permits the confiscation of the goods on a broader construction of the relevant expression with reference to the definition of “prohibited goods”; the similar provision in Section 112 of the Act has to be strictly construed and confined to goods which are expressly prohibited from being imported into the country.
Therefore, the order impugned in so far it imnposes the penalty on either petitioner based on the value of the goods, is set aside and the matter remanded for such limited purpose for the imposition of such other quantum of penalty that may be permissible. - Decided in favour of appellant to limited extent
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2016 (5) TMI 82 - CESTAT NEW DELHI
Suspension of CHA licence - Appellant acted in a irresponsible manner and failed to fulfill the obligation under Regulation 11(a), 11(d) and 11(n) of CBLR, 2013 - Held that:- though this suspension was confirmed on 24.4.2015, till now no proceedings by way of issue of show cause notice or inquiry has been initiated under CBLR, 2013 against the appellant, we find the impugned order cannot be sustained. It is also noted that the appellant got renewal of license during the continuation of suspension, so, the continuation of suspension is not legally sustainable and accordingly, the impugned order is set aside. - decided in favour of appellant
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2016 (5) TMI 81 - CESTAT NEW DELHI
Period of limitation - Regulation 20 of the Customs Brokers Licensing Regulation 2013 - Revokation of CHA licence and forfeiture of security - Illicit import of cigarette - Held that:- the offence report was dated 08.10.2012. The show cause notice was issued on 07.01.2014 and the enquiry report was dated 10.11.2014. The Regulation 20 stipulates that show cause notice has to be issued within 90 days of offence report. Even it is to be considered that the new Regulations came into effect only from 21.06.2013. The enquiry report also has been filed more than 10 months after the show cause notice, therefore, it is found that the statutory time limit prescribed by the relevant regulations have not been followed. By considering the decision of Hon’ble High Court of Madras in the case of A.M. Ahamad & Co. Vs. CC (Imports) Chennai 2014 [2014 (9) TMI 237 - MADRAS HIGH COURT] and in the case of Sanco Trans Ltd. Vs. CC Chennai [2015 (7) TMI 455 - MADRAS HIGH COURT], the time limit prescribed under Regulations are to be strictly adhered to. Hence, the impugned order cannot be sustained. - Decided in favour of appellant
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2016 (5) TMI 80 - CESTAT NEW DELHI
Legal interpretation of the provisions of Section 28 (1A) of the Customs Act - Deposit of entire duty liability along with interest and 25% of the penalties within a period of 30 days from the date of service of SCN, therefore no further adjudication requiring confiscation of seized jewelleries or imposition of penalty - Appellant receiving gold jewellery Shri Ajit Singh/Komal Jain, who were importing the same from Dubai free of duty, in violation of the SEZ Scheme.
Held that:- the provision of Section 28(1A) cannot be interpreted to the effect that all the proceedings against the importer under all the Acts would be deemed to be concluded. The said provisions are applicable only in respect of proceedings under Customs Act, 1962 and provides for conclusion of the proceedings under Customs Act only. The original authority's presumption that closure of proceedings under Customs Act may conclude all proceedings under other Acts also is fallacious. He is acting under the powers vested under Customs Act, 1962. While may be vested with some powers under the provisions of allied Acts, his role comes from the Customs Act. Nothing prevents respective competent authority under other Act if there is any action warranted to be taken against any person for violation of provisions of specific law.
Having deposited the full amount of duty, interest and 25% of the penalty, no further proceedings were required to be continued in terms of the provisions of Section 28(1A) and the first proviso to Section 28(1A). Therefore the impugned order has no leg to stand and is accordingly set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 79 - DELHI HIGH COURT
Import of baggage - Non declaration of 16 Sony Digital HD Video Camera Recorders made in Japan along with accessories and two Black Magic Cinema Cameras - Confiscation of goods - CCESC reduced the fine and penalty on duty amount already paid - Held that:- the present case is not covered by any of the provisos to Section 127B (1) of the Act. In other words, it does not fall under any of the excluded categories of cases. The Court sees no reason why in the circumstances of the present case the Respondent's admission that he had brought dutiable goods into the country while leaving blank the relevant column in the disembarkation card ought not to be considered as an attempt at evading payment of customs duty. By following the decision of this court in the case of Commissioner of Customs v. Ashok Kumar Jain [2013 (8) TMI 317 - DELHI HIGH COURT], the provisions that confer jurisdiction on the CCESC should not be construed narrowly to exclude such type of cases from the purview of Section 127B. If that was the legislative intent, then there ought to have been a specific provision to that effect. The Court sees no reason to interfere with the impugned final order. - Petition disposed of
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