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Customs - Case Laws
Showing 41 to 60 of 139 Records
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2016 (5) TMI 988 - CESTAT NEW DELHI
Valuation - SS Utensils exported under DEPB Scheme - Goods overvalued to claim higher DEPB benefit - Held that:- the issue stands covered by the majority decision of the Tribunal in the case of Sitaram Ramdhan & Co. Vs. Commissioner of Central Excise, Jaipur [2015 (4) TMI 1072 - CESTAT NEW DELHI] whereas it was observed that when the goods are examined by the Customs and found as per the declaration and when realization of the export proceeds in full is not disputed and when there is no evidence to show flow back from the exporter to the foreign buyer, DEPB benefit has to be extended on the basis of FOB value and not on PMV, Accordingly, by holding that restricting DEPB benefit to PMV is totally wrong, when especially there is no wrong declared in the FOB value. In as much as the said decision covers the issue in full, we by following the same, set aside the impugned order. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 987 - CESTAT NEW DELHI
Classification - Goods exported under EPCG Licence Scheme - Whether to be declared as Marble Blocks as per appellants or Silcified Limestone as per revenue - Held that:- the Geological Survey of India report reflects upon the goods to be limestone, which is nothing but marble. The said report is not available on record in as much as the same was not handed over to the assessee. We are not aware as to what were the questions put to Geological Survey of India at the time of sending all the samples. There being admittedly another report on record holding the goods to be marble and GSI's report not clearly saying that the goods were not marble, therefore the goods have to be held as marble. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 986 - DELHI HIGH COURT
Seeking provisional release of goods - Confiscated as mis-declaration of description of goods and transaction value - Held that:- it is stated by the Respondents that if an application is made by the Petitioners in that regard not later than one week from today, the said application will be dealt with and decided by the Respondents in accordance with law not later than two weeks thereafter and the decision communicated to the Petitioners forthwith. - Petition disposed of
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2016 (5) TMI 985 - DELHI HIGH COURT
Refund of Terminal Excise Duty (TED), which was erroneously paid to the excise department - goods were exempted absolutely vide Section 5A - Held that:- Director General of Foreign Trade (DGFT) is directed to consider the application of the writ petitioner for refund in terms of provisions of Foreign Trade Policy (FTP) 2009-2014 and pass an appropriate order in accordance with law uninfluenced by the impugned order dated 19th February, 2013. Also he is directed to consider the orders passed in the case of M/S Gammon India Limited and in the case of M/s Vlotamp Transformers Limited. - Petition disposed of
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2016 (5) TMI 917 - CESTAT CHENNAI
Leviability of Anti Dumping Duty and imposition of penalties - Confiscation of imported goods - Appellant classified the goods as parts of injection moulding machine whereas revenue classified it as injection moulding machine - Held that:- it is clear that the ADD is imposed only on the plastic processing or injection moulding machines when they are imported from the specified country and subject to other conditions. Looking at the nature of goods imported vide the two Bills of Entry as presented, the nature of goods was "parts of the injection moulding machine". The technical aspects of the imported goods have been gone into by the Chartered Engineer who in his certificate dt. 25.2.2010 has categorically concluded that the parts imported in the two shipments will not form complete individual machines. The missing parts such as Control Unit (Computer Controller), Electrical Parts (Control Cabinet) and Drive Unit (Servo Drives & Pumps) are critical parts without which the injection moulding machine cannot be complete and operated. Once it is concluded that what has been imported are nothing but parts of injection moulding machine, the case of the Revenue for imposition of Anti Dumping Duty fails and it is not warranted to examine other pleadings of both sides. - Decided in favour of appellant
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2016 (5) TMI 916 - DELHI HIGH COURT
Seeking release of imported goods from Sri Lanka - Petitioner produced the necessary documents as well as the confirmation letters issued by the Government of Sri Lanka - Revenue contended that Petitioner is not coming forward to produce the requisite documents to satisfy the requirements - Held that:- it is directed that the authorized representative of the Petitioner will appear before the concerned Deputy Commissioner of Customs with the B/Es, with all the necessary documents. After examining the said documents, and seeking further clarification/verification as may be necessary, the concerned Officer will pass either provisional assessment order within one week or final assessment order within two weeks and communicate the said order to the Petitioner forthwith. In the event of passing the provisional assessment order, the orders passed by the Court including the one G.S. Nuts v. Commissioner of Customs reported in [2016 (3) TMI 430 - DELHI HIGH COURT] shall be kept in view. - Petition disposed of
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2016 (5) TMI 915 - CESTAT NEW DELHI
Restriction on import - Import of Random Polished Marble Slabs of CIF value less than US Dollar 60 per SQM - freely not importable as per Notification No. 65(RE-2010)/2009-14 dated 04.08.2011 - Held that:- the good were of “CIF” value less than US $ 60 per SQM even on the date of shipment and remained in violation of Exim Policy on the date of their imports as the CIF value was admittedly less than US $ 60 per SQM. Consequently, the impugned goods became liable to confiscation under Section 111(d) of Customs Act, 1962. However, it is also evident that in the above scenario, there is no whiff of any deliberate misrepresentation and the goods were in violation of Exim Policy only marginally as the CIF value worked out to be only marginally less than US $ 60 per SQM and that too due to monthly exchange rate changes notified vide Customs Notification after the appellant obtained quotation for the goods on 10.09.2011. Therefore, in all fairness and in the interest of justice, considerable leniency is called for in adjudging the redemption fine and penalty. Impugned order is upheld except that the redemption fine and penalty are reduced to ₹ 1,50,000/- and ₹ 50,000/- respectively - Decided partly in favour of appellant
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2016 (5) TMI 914 - CESTAT NEW DELHI
Classification - LED panel or LED Television - Import of goods having essential characteristics of Television in terms of Rule 2(a) of the General Rules of Interpretation of the Customs Tariff Act - Held that:- the examination report and re-examination report of Customs officers categorically stated that the goods were branded LED Panels and encased in TV casing but without the speakers, without the remote controls, without the power cables, without the Mother board and without the sockets. The box in which the goods were contained is also found to have been labeled LED panel as per the photocopy of one side of the box. It is further seen that as per the sale invoices the appellant has been selling these goods to the various traders in the name of LED panels only. Further, LED panels devoid of speakers, remote controls, power cables, Mother board and sockets can scarcely be called as having essential characteristics of Television. Indeed in the trade, LED panels are commonly available and they become television when speaker and mother board and other parts mentioned earlier are attached thereto. Therefore, the goods have to be treated as LED panels (and not as LED Television) and LED panels are freely importable and do not require any BIS registration. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 913 - CESTAT MUMBAI
Levy of penalty on CHA - Import of Ivory and its articles - Prohibited under Foreign Trade Policy and under Wildlife (Protection) Act, 1972 - Mis-declaration of goods and value of goods - Two invoices - Held that:- nothing found on record which suggests that appellant was aware of the content and nature of goods which was subsequently found as two statues made of ivory and other materials which was prohibited. As per Section 114AA, the penalty can be imposed only if a person has knowledge about the false declaration in the documents. As I stated above, as regard the content and nature of the goods and value thereof, the appellant had no knowledge. Therefore, they are not liable for penalty under Section 114AA. As regard findings of the Ld. Commissioner that the CHA has not followed the rule 13(d), (e) and (o) of CHALR 2004, however the Ld. Commissioner has not given reason how the appellant has contravened the aforesaid provision. Therefore, it cannot be alleged that the appellant has not followed the provision of Rule 13(d), (e) and (o) of CHALR, 2004 supported by various judgments. - Decided in favour of appellant
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2016 (5) TMI 907 - DELHI HIGH COURT
Revokation of CHA licence and forfeiture of security deposit - Licence suspended prior to SCN - No proceedings took place for almost 3 years after replies were filed by the petitioner to the SCN - Failure to adhere to the time limit under Regulation 22(5) of CHALR - Held that:- the case is identical to that of M/s S.K. Logistics Versus CC (General) New Delhi [2015 (11) TMI 1155 - CESTAT NEW DELHI]. The only explanation offered by the Department is that the earlier inquiry officer appointed to adjudicate the SCN dated 14th October, 2011 retired and it was only after the new inquiry officer was appointed by the letter dated 8th December, 2014 that the inquiry could be completed and a report submitted on 23rd January 2015. In the case of S. K. Logistics, this Court held that this was hardly a justification for not adhering to mandatory time limit set out in Regulation 22(5) of the CHALR. Therefore, this Court quashes the Order-in-Original passed in the case of the Petitioner. Any action taken consequent to the impugned order and the Inquiry Report that led to its passing shall also stand quashed. The Petitioner's CHA licence is stated to have expired in the meanwhile and not renewed. The Respondent will process the Petitioner‟s application for renewal of its licence in accordance with law without any unnecessary delay. - Decided in favour of petitioner
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2016 (5) TMI 893 - CESTAT MUMBAI
Crude Palm Kernel oil -Whether it is vegetable fat and whether benefit of Notification No. 46/2002-Cus can be extended or otherwise - Revenue contended that Crude Palm Kernel oil is not used as raw material, but it is an intermediate for manufacturing biscuits, it is not a raw material, hence not covered by DFRC licence - Held that:- the issue is squarely covered by the decision of Tribunal in the case of Good Health Agro Tech Pvt. Ltd [2010 (11) TMI 1013 - CESTAT BANGALORE], where the identical issue was considered and held that Crude Palm Kernel oil is covered under the duty free replenishment certificate. - Decided against the revenue.
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2016 (5) TMI 892 - CESTAT MUMBAI
Imposition of penalty - Section 114A and 112 of the Customs Act, 1962 - Diversion of imported polyester fabrics/cotton fabrics/HDPE - False declaration of manufacturer-exporter as Sahil industries - Held that:- the adjudicating authority has considered all the evidences on record and therefore, correct in setting aside or dropping of the proceedings initiated for imposition of penalties on Shri Kiran Choksi and Shri Pragnesh Jain. - Decided against the revenue
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2016 (5) TMI 891 - DELHI HIGH COURT
Imposition of penalty - 100% default in fulfillment of export obligation - export obligation period of the petitioner expired on 21st June, 2001 and the petitioner not submitted export details in the requisite manner supported with the bank certificate/ documents.
Held that:- nothing on record leads to the conclusion least suggest that export obligation has indeed been fulfilled. Rather the case of the petitioner is of having fulfilled the export obligation even prior to the date of issuance of the Advance Licence. I fail to see how the exports effected prior to the date of Advance Licence, imposing obligation to effect export within 18 months thereof, can be said to be against the Advance Licence. A perusal of the Advance Licence shows that against the column “category of licence” the words “Quantity Based Advance Licence” were entered.
Customs Notification No.48/99-Customs, dated 29th April, 1999 and 50/2000-Customs and 51/2000-Customs, both dated 27th April, 2000 providing that in order to ensure proper monitoring and utilisation of inputs imported against Advance Licences, a DEEC book is issued along with Advance Licence and at the time of import and export against the Advance Licence entries are made in the DEEC book by Customs to keep record of import/export made against it. Obviously the petitioner, even before the Advance Licence was issued, could not have the DEEC book and it is clear as sky that the exports even if made were not against the Advance Licence and the petitioner is clearly in violation of its obligation thereunder and there is no reason for interference with the orders impugned.
Therefore, it is clear that the export effected by the petitioner prior to the date of issuance of Advance Licence cannot be considered in fulfillment of Export Obligation under the Advance Licence. The whole case of the petitioner was premised on said edifice and fails. There is no error in the factual finding of the Statutory Authorities, of the petitioner having not fulfilled the Export Obligation. Resultantly, the impugned demand is justified. - Decided against the petitioner
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2016 (5) TMI 890 - CESTAT MUMBAI
Waiver of penalty - DEPB license obtained through fraudulent means were used by the various importers for importation of the goods - Confiscation of goods - Undue rebate of Central excise duty - malafide intention - Held that:- the appellants have declared the manufacturer as a supporting manufacturer and the goods so procured from the so called supporting manufacturer were not manufactured by the said manufacturer. If this is so then all the material particulars mentioned in the ARE-1 and subsequently declared in the shipping bills and other documents for export, obviously, do not correspond to the goods shown to have been manufactured by the supporting manufacturer. Therefore, the appellants have knowingly committed offence as specified under Section 113(i) and made themselves liable for penalty under Section 114 of the Customs Act.
Shri Rajendra Doshi, General Manager of appellant co. has admitted in his statement, that he visited the factory of M/s. Siddhi Creative, who has issued the invoices and found that M/s. Siddhi Creative did not have the manufacturing unit. Knowingly this fact, he has mis-declared the bogus ARE-1s in the shipping bills. Thus, he was indulged in entire offence committed by the appellant colluding with M/s Siddhi Creative. It is found that the equal amount of penalty was imposed each on the appellant company as well as Shri Rajendra Doshi. Taking into consideration that Shri Rajendra Doshi is an employee of the appellant company equal amount of penalty of ₹ 5,03,000/- is very harsh. Therefore, in respect of Shri Rajendra Doshi, if the penalty is reduced from ₹ 5,03,000/- to ₹ 2,00,000/- the interest of justice can be met. - Decided partly in favour of appellant
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2016 (5) TMI 833 - CESTAT MUMBAI
Whether the Commissioner (Appeals) was to decide only personal penalty or the issue of confiscation, the penalty and redemption fine related thereto - Held that:- the Hon;ble Member has mentioned that he is unable to go into merit of the case and the matter was remanded to the Commissioner (Appeals) to reconsider the issue and pass a fresh order on merit. It was observed that the appeal before the Commissioner (Appeals) as well as before this Tribunal was undisputedly, not only on the issue of penalty but also the issue of confiscation and redemption fine was challenged. I also tried to find out in the proceeding that at any stage where the appellant conceded and gave up the issue of confiscation of goods and redemption fine, but I found that appellant has not conceded on the issue of confiscation and penalty, therefore while remanding the matter by this Tribunal to the Commissioner (Appeals), all the issues were kept open to reconsider by the Commissioner (Appeals). Commissioner (Appeals) decided the issue of personal penalty in isolation without deciding the confiscation and redemption fine on merit.
Therefore, the impugned order deserves to be set aside and matter to be remanded to the Commissioner (Appeals) to decide all the issues involved in the appeal filed by the appellant. As regard submission of the appellant that since goods have been sold by the department and the same is not available for redemption, the redemption fine penalty will not sustain and the appellant is entitle for refund the value of the goods in terms of the Hon'ble Supreme Court and Karnataka High Court judgments. It is found that since the Commissioner (Appeals) has yet to decide the merit of entire case, it will be pre-mature to pass any order on this aspect. However, the Ld. Commissioner (Appeals) while deciding the case on merit may consider this issue. Appeal allowed by way of remand
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2016 (5) TMI 832 - CESTAT MUMBAI
Confiscation in lieu of redemption fine - Imposition of penalty - Export of skimmed milk powder - prohibited by DGFT Notification No. 23(RE-2010/2009-2014 dated 18/2/2011.
Held that:- the shipping bills was presented on 10/2/2011 and 16/2/2011 and on the date of entry of the goods the goods, was not prohibited. The goods arrived at the customs area on 22/2/2011 and 23/2/2011 even if these dates are considered, on these dates also goods were not prohibited as per notification No. 23(RE-2010/2009-2014 dated 18/2/2011 read with transitional provision as provided under para 1.5 of Foreign Trade Policy, 2009-2014 therefore even though the goods were declared prohibited on 18/2/2011 transitional provision was restricted in certain condition by notification No. 37(RE-2010)/2009-2014 dated 24/3/2011. But the fact remains that on the date of entry of the goods in terms of Section 50 the goods were not prohibited therefore confiscation under Section 113(d) was not warranted. It is also noted that at the time of opening L.C., dispatch of the goods from the factory to the port, filing of shipping bill before the customs, the goods were not notified as prohibited goods therefore it is beyond the control of exporter to avoid the dispatch of the goods from the factory to the port. Therefore, the goods cannot be confiscated. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 831 - CESTAT MUMBAI
Refund claim - Appellant could not establish that the imported goods have not been exported - Import of glass motifs - Exemption claimed under Notification No. 17/2001-Cus. dated 1.3.2001 - Held that:- it is an undisputed fact from the books of accounts of the appellant that the entire imported goods were shown as purchase in the books of accounts of the appellant against which their 100% clearance is for export. There is no contrary evidence adduced by the department that any of the quantity of imported goods cleared in the domestic market. Therefore, it can be conveniently concluded that all the goods imported by the appellant were exported, as nothing was cleared in the domestic market.
Whether refund claim is liable to be credited in the Consumer Welfare Fund - Unjust enrichment - Held that:- the books of account of the appellant shows that the entire income of the appellant during the relevant period is towards the export of the goods and there is no sale in the domestic market. Therefore, even without going to one to one co-relation, it is established that the incidence of duty paid by the appellant was not passed on to any other person in India. It is settled position of law that in case of export of goods, unjust enrichment is not applicable. Therefore, refund is not liable to be credited in the Consumer Welfare Fund. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 830 - CESTAT MUMBAI
Imposition of penalty - Smuggling of Red Sanders - Non-compliance of KYC Norms in terms of Public Notice No. 17/2012 - Held that:- appellant has not taken the KYC norms of the exporter/person who has placed the order for container for the purpose of stuffing of the goods. Therefore, by following the decision of this Tribunal in the case of Scope Amra Logistics (I) Pvt. Ltd. Vs. C.C.E.C & S.T., Aurangabad [2015 (6) TMI 652 - CESTAT MUMBAI] which is on the same footing of present appellant, the appellant is found guilty of non-compliance of Public Notice No. 17/2012 and liable for penalty. The penalty is reduced from ₹ 10 lakhs to ₹ 3 lakhs. - Decided partly in favour of appellant
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2016 (5) TMI 829 - CESTAT MUMBAI
Import of Star Aniseeds - Mis-declaration of declared value - Enhancement of value on the basis of Spices Market Weekly - Held that:- a value declared by an importer who had imported the consignment four months, after the consignment cleared, is not in consonance of the provisions of the Customs Act, as on the day of import there seems to be no contemporaneous imports and the value declared by the appellant was accepted. We are not in the position to come to a conclusion whether the imports made in May 2001, were solitary imports or regular imports. At the same time it is noted that various imports made by the appellant during the same time, the transaction value remained the same. It is also noted that revenue has not brought on records any evidence to indicate that the appellant and the supplier were in collusion to suppress the value nor there is any corroborative evidence of suppression of the value or repartition of any amount over and above the invoiced value. Therefore, in the absence of any such evidence, rejection of transaction value as declared is incorrect and such order is unsustainable. The ratio of the decision of Hon'ble High Court in the case of Basant Industries [1995 (1) TMI 89 - SUPREME COURT OF INDIA] and the decision of Tribunal in the case of Kanhaiyalal & Co. [2003 (8) TMI 423 - CESTAT, MUMBAI], would directly apply to the present case. - Decided in favour of appellant
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2016 (5) TMI 776 - CALCUTTA HIGH COURT
Entitlement to extension of EPCG licence - Export licence had expired prior to the policy spoken of by the petitioner - Recovery of certain claims - Petitioner submitted that BIFR has extended the export obligations for a period of ten years from March 31, 2008 and the scheme sanctioned by the BIFR is under implementation. Therefore, it is binding upon the respondents - Held that:- the authorities will look into the performance of the first petitioner in respect of the EPCG Licence subsequent to the expiry of the period sanctioned by the BIFR, i.e., ten years from March 31, 2008. The authorities will be at liberty to take such steps against the petitioners in respect of its obligations under such licence if the petitioners have failed to discharge such obligations.
Security for the event of default - in fulfilling the obligations under the licence within the extended time - Petitioner submitted that relevant circulars of the department allow the petitioner to furnish security by way of a bank guarantee. Also the bank guarantee in question has been renewed on May 3, 2016 and is in terms of the General Exemption No. 56 and the Circular No. 52/95, the same should be allowed to be accepted. Moreover, as the petitioner being a sick company it would be harsh and burdensome if it is directed to put in cash security.
Held that:- the petitioner has obtained the bank guarantee by furnishing cash security to the bank issuing the bank guarantee. Therefore, the petitioner is in a position to put in a cash security with the bank concerned to obtain the bank guarantee. The plea of undue hardship is not available to the petitioner in such circumstances. Moreover, the present bank guarantee is valid upto March 31, 2019. In the event of the authorities not making any demand within such period of time, the petitioner will be entitled to take the plea that the bank guarantee is no longer valid. In such eventuality, the State Exchequer ultimately suffers. Conversely, if money is allowed to be deposited with the authorities, the same will enure to the benefit of all the parties. The petitioner will receive refund of the money deposited in the event it is found to be refundable. However, in the event the petitioner is found to be a debtor to the authorities then the money lying with the authorities, can be adjusted against such claim without any further action. Invoking the bank guarantee and receiving the payment, entails further proceedings and allows a party furnishing the bank guarantee to indulge in further litigation.
If a banker issues a bank guarantee without taking 100% cash security in respect thereof, then such banker is extending a credit facility out of public money. If such a bank guarantee is invoked, then the public money stands to be jeopardized. Such a scenario is not healthy. A private party should not be allowed to do its business on the strength of public money. Therefore, the petitioner will deposit a cash security with the authorities as security for the subject licence. - Petition disposed of
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