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Customs - Case Laws
Showing 101 to 120 of 181 Records
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2016 (9) TMI 620 - CALCUTTA HIGH COURT
Refund of duty along with interest - benefit under Notification No.12/2012 - benefit under Notification No.21/2012 - an appeal from the order of the Commissioner is pending before the learned Tribunal - Held that: - The Commissioner has allowed the appeal preferred by the writ petitioner. Therefore, the revenue is liable to carry out that order. The revenue has to make payment. The learned Writ Court has directed the revenue to make such payment. It is clarified that such payment to be made by the revenue shall be subject to result of the appeal pending before the learned Tribunal.
Direction to pay cost set aside.
Appeal disposed off - decided against Revenue.
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2016 (9) TMI 619 - MADRAS HIGH COURT
Short-landing of goods - Acid Grade Flurospar - is tolerance limit of 6.47% justified? - Imposition of penalty - Held that: - The experts say the Acide Grade, which shipped routinely in the form of damp filtercake, contains 7% to 10% moisture. Adoption of the tolerance limit at 6.47% is correct.
If 6.47% is adopted as tolerance limit on the entire manifested cargo, then there will be no shortlanding. The respondents are directed to adopt the tolerance limit of 6.47% on the entire manifested quantity and redo the assessment to ascertain as to whether there is any penalty leviable on the petitioner. Amount of refund of the amount already collected, if any, after assessment, should be duly made with appropriate orders - writ petition allowed - decided in favor of petitioner.
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2016 (9) TMI 618 - MADRAS HIGH COURT
Maintainability of appeal - Section 35G of the Central Excise Act, 1944 - Demand of differential duty - denial of Exemption Notification No.08/1996 dated 23.07.1996 - tenacity with 14% variance - Nylon Filament Yarn - Chapter 54 of the Central Excise Tariff Act, 1985 - test of samples - denier range of yarn above permissible limit - Whether the appeal filed by the appellant under Section 35G of the Central Excise Act 1944, is maintainable when the same relates to the rate of duty of excise, as raised in the substantial question of law by the appellant? - Held that: - Section 35G makes it clear that an appeal to High Court shall lie, provided it not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment - the issue relates to the claim for exemption under the exemption notification, whether exemption applicable to the appellant or not. The conditions in the notification for the tolerance limit of nylon yarn have not been fulfilled by the appellant. Any dispute relating to rate of duty, cannot be decided under Section 35G of the Act - appeal not maintainable.
Maintainability - appeal pending for a period of 10 years - want of jurisdiction - Held that: - where there is a lack of inherent jurisdiction of the Court, the decree is then said to be a 'nullity'. Just because the case pending for a period of 10 years, it cannot be made maintainable as any judgement made in the lack of jurisdiction will be a nullity anyway - appeal not maintainable.
Merits of the case need not be considered - appeal dismissed - decided against appellant.
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2016 (9) TMI 617 - BOMBAY HIGH COURT
Processing of drawback application - denial of deemed export drawback - All Industry Rate of Duty Drawback - customs duty components paid on inputs/components - Column-B, “Sr No.540203” of Schedule of All Industry Duty Drawback Rates 2011-2012 - EOU - DTA - principles of natural justice - information by letters and no personal hearing - whether the decision given by Development Commissioner on supplies made from the domestic tariff unit to the export oriented unit not eligible for refund on All Industry Draw Back Rate without providing any opportunity of being heard to the petitioner is tenable in law? - Held that: - it was expected from the Development Commissioner that he would apply his mind to the whole case and after a oral hearing to the Petitioner pass a reasoned order in accordance with law. The Development Commissioner SEEPZ, Special Economic Zone, Mumbai himself will now grant a personal hearing to the Petitioner and on perusal of all the records pass a proper reasoned order on the draw back application within three months from the date of receipt of a copy of this order - petition disposed off - decided in favor of petitioner.
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2016 (9) TMI 616 - MADRAS HIGH COURT
Maintainability - territorial jurisdiction of the court to entertain the writ petition - reliance placed on the decision of the case Zeenath International Supplies V. Commissioner of Customs, Visakhapatnam, [2014 (3) TMI 676 - MADRAS HIGH COURT] - Held that: - when there is a conclusion that the litigation amounts to forum shopping, the Court would refuse to exercise discretion to entertain a writ petition - writ petition not maintainable and dismissed - liberty granted to the petitioner to approach the CESTAT, Bangalore and the CESTAT shall exclude the period from 23.06.2004, till the receipt of the certified copy of this order, while computing limitation in the appeal to be filed by the petitioner - decided against petitioner.
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2016 (9) TMI 615 - PUNJAB & HARYANA HIGH COURT
Whether the Tribunal is justified in holding that “Para 9.9 (a) of the policy provides that unless specifically prohibited in the LOP/LOI, rejects may be sold in the Domestic Tariff Area on the basis of records maintained by the unit and on prior intimation to the Customs Authority” and that “only sale of rejects above 5% of the FOB value of exports shall be counted against DTA sales”, when the facts and law is otherwise? - Held that: - assets of the respondent taken over by financial institution and were sold. The company, presently, existing only on papers. Thus, it is not appropriate to go into the issue raised by the revenue in the present appeal - appeal dismissed.
In case the stand taken by the counsel for the respondent is found to be incorrect, the revenue shall be entitled to get the present appeal restored within 3 months.
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2016 (9) TMI 570 - CESTAT CHANDIGARH
Classification - Glyphosate Technical 95% - Paraquat dichloride 42% Technical - classifiable under Tariff Item 38089990 or under tariff item 38089390 - Fipronil 92% - Sources of imports - Insecticides Act, 1968 - Held that: - the DGFT both in the policy as well as the licences, issued to the appellant specifically mentioned the classification of the chemical ITC (HC) under tariff item 38089990. - the import policy as issued by the DGFT read with the licences given to the appellant are to be considered for assessment of clearance of the goods in so for they related to the classification of the goods. The appellant followed the provisions of DGFT import policy where the products are specifically mentioned by the name and also by the classification - no violation with reference to import - classification in order.
The certificate of registration issued by the Ministry of Agriculture approved of import of these chemicals without any specification of source.
Valuation - mis-decaration - Held that: - the quantum of import of each consignment will have the bearing of unit price and so also the time difference between the imports. There is nothing on record to indicate that the earlier import price has been vitiated by the extra consideration between the exporter and the India importer. The imports were under advance licence intended for re-export - re-determination not justified.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 569 - CESTAT MUMBAI
Valuation - transaction value - Rule 3 (3) (a) of Customs Valuation (Determination of value of import goods) Rules, 2007 - related party - Rule 2 of Customs Valuation (Determination of value of import goods) Rules, 2007 - the case applicable involving the similar issue is Matushita Television & Audio Ltd. Vs. CC [2007 (4) TMI 5 - SUPREME COURT OF INDIA] - Held that: - letter submitted from the related supplier certifying the prices charged in the invoices for the supply of the goods at international prices which are computed on the basis of all costs and representative profit - transaction value acceptable.
Assessable value - royalty - Rule 10 (1) (c)of Customs Valuation (Determination of value of import goods) Rules, 2007 - Rule 9 (1) (c)of Customs Valuation Rules, 1988 - Held that: - the royalty payment is includible in the assessable value of the goods.
The value of imported goods is thus, included in the net sale price of appellant’s manufactured goods - appeal allowed - decided in favor of Revenue.
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2016 (9) TMI 568 - CESTAT MUMBAI
Demand of SAD - Section 28(1) of the Customs Act, 1962 - demand of interest - Section 28AB of the Customs Act, 1962 - imposition of penalty - Section 112(a) of the Customs Act, 1962 - trading - imported Polyester Filament Yarn - imported Polyester Chips - exemption of SAD - Notification No. 22/99-Cus dated 28.02.99 - contravention of condition provided under Sr. 5 of the table annexed to the Notification No. 22/99-Cus. - whether the appellant is entitled for exemption under Notification No. 22/99-Cus dated 28.2.1999 from payment of Special Additional Duty in terms of Sr. No. 5 of the table annexed to the above referred Notification? - Held that: - similar issue has been decided in the case G.H. Shaikh v. CCE, Pune [2002 (9) TMI 702 - CEGAT, MUMBAI] where it was held that the proviso to Sl. No. 5 relates to a place from where sales takes place and not place to which sale is made. Exemptions have been given under the Sales tax Act in respect of certain transactions and such exemptions for specified cases would not make the place “an area where no duty is chargeable on sale and purchase of goods - Even though the sales tax was not charged from area from where the goods sold, such area shall not become non taxable territory to apply the proviso of Sr. 5 of the Notification No. 22/99-Cus - appellant entitled to claim exemption under notification no. 22/99-Cus - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 567 - CESTAT MUMBAI
Confiscation of consignment - under-invoicing of import of Diamonds - Bill of Entry not accompanied with packing list - option to pay redemption fine - section 125 of the Customs Act, 1962 - imposition of penalty - Section 112 (a) of the Customs Act, 1962 - Held that: - if serious mistake occurred the same should have been intimated by the appellant immediately whereas all the explanations brought before the department only when the excess quantity was detected. This shows that explanation and reason for excess shipped quantity given by the appellant appeared to be afterthought. Even if it is presumed that there is bonafide mistake in shipping excess quantity of diamonds, for the purpose of mis-declaration, mens rea is not required. Even though there is no mens-rea in the mis-declaration but if there is mis-declaration intentional or un-intentional, the goods are liable for confiscation. The element of mens-rea is only parameter to decide the quantum of fine and penalty - confiscation justified - quantum of fine and penalty reduced.
Re-export of excess found goods - Held that: - allowed to be re-exported.
Decided partly in favor of appellant.
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2016 (9) TMI 566 - CESTAT CHANDIGARH
Served From India Scheme Scrip (SFIS) - wrong availing of benefit of exemption Notification No. 91/09-Cus dated 11.09.2009 - assorted wines, liquors, beers etc - assessment of bills of entry - Held that: - the goods imported by the licence holder and in the circumstance, on merit the appellant has not contravened the provisions of Notification No.91/09-Cus dated 11.09.2009 as the goods were not be transferred or sold. Also, the bills of entry has been assessed and there is no allegation against the appellant of mis-declaration or mis-classification or suppression of facts, therefore without challenging the bills of entry, the proceedings are not sustainable. The assessment of bill of entry has not been challenged by the Revenue, therefore, the said assessment of bills of entry are final. Therefore, without challenging the same, the show cause notice issued to the appellant is not sustainable. Decision as given in the case Karan Associates vs. CC, Mumbai [2009 (2) TMI 20 - BOMBAY HIGH COURT] has been followed.
Invocation of extended period of limitation - malafide intention to evade payment of duty - Held that: - malafide intention of the assessee has not been established. In the show cause notice it was merely alleged that the appellant has taken the benefit of Notification No.91/09-Cus dated 11.09.2009 wrongly - extended period of limitation is not invokable.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 565 - CESTAT HYDERABAD
Foreign Going Vessel - Conversion of vessel to coastal run – ship stores inventorised at the time of conversion – consumption of provisions during coastal voyage – inclusion of local purchase of the quantity of 193.03 MT of fuel in the opening inventory of 678.22 MT of fuel oil – ascertainment of the total quantity of fuel oil consumed during the coastal run – Held that: - local purchase of the quantity of 193.03 MT of fuel oil is to be included in the opening inventory of 678.22 MT of fuel oil - resultant duty liability on the net quantity of fuel oil Viz., 379.22 MT could be fastened on the appellants - demand of duty justified.
Valuation – Held that: - the Commissioner has adopted a very just and fair reasoning with regard to ascertaining the assessable value of imported fuel oil lying in the foreign bunkers for finalisation of the provisional assessment. The adjudicating authority had taken contemporaneous price of identical goods of which the bunkers were supplied to the same class of buyers during material period. This is the correct and proper manner for finalization of the assessment.
Appeal dismissed – decided against appellant revenue.
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2016 (9) TMI 526 - SUPREME COURT
Validity of judgement - Rigorous Imprisonment and fine - Offences under Sections 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - CHA - Transit Certificate - secret information of receipt of dry fruits which had the marking of 'AB', contained some narcotics as well - summon of two witnesses - search - section 50 of the Customs Act, 1962 - concealment of 165 packets of brown powder weighing 21 kilograms 450 grams was revealed - heroin - arrest of appellant - statements made under Section 108 of the Customs Act, 1962 - Held that: - the appellant has stated that up to 14.1.1999, there is mention of the appellant on the T.C. and thus, the consignment did relate to him. He received the consignment as he was to take delivery of the consignment, as he had received phone calls regarding this. These phone calls were received by his Clerks Amit Taneja, Janak Raj, and some were received by him. Statements made under Section 108 of the Customs Act, 1962 coupled with the statements of the prosecution witnesses which have found corroboration inter-se, the guilt of the appellant is proved beyond a reasonable doubt - no infirmity in the judgement of the Additional Sessions Judge-cum-Special Judge in convicting the appellant - appeal disposed off - decided against appellant.
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2016 (9) TMI 525 - GUJARAT HIGH COURT
100% EOU - requirement to achieve positive net foreign exchange (NFE) during every block of five years of its existence - period for computing the block of five years for consideration of NFE - manufacturing activity had commenced on 28.02.2003. the first block of such five years would comprise of financial year 2002-03 to 2006-07 and the second block of five years would comprise of the financial year 2007-08 to 2011-12. - the first block of five years would commence from 01.04.2003 and end on 31.03.2008 and, the second block would be the financial year 2008-09 to financial year 2012-2013 - foreign trade policy - which would be the relevant block period of five years for computing NFE? - Imposition of penalty - sub section (2) of Section 11 of the Foreign Trade Development and Regulation Act, 1992
Held that: - the computation of NFE would be financial year wise and which would be the beginning of the financial year following the year under which the manufacturing activity commences. Under no circumstances such period would be the period anterior with the date of manufacturing activity. Even if a literal interpretation of expression used in Clause 6.5 of the foreign trade policy is taken, it refers to the calculation of NFE cumulatively in block of five years “starting from the commencement of production” - block of five years to begin from 1.04.2003.
Monitoring the performance of the unit - period envisaged would be the financial year immediately starting the manufacturing activity - the unit which has not completed one year from the date of commencement of commercial production will not be monitored. Further, a unit which has completed less than five years from the date of commencement of the commercial production, it would be monitored only for the number of completed years. The reference to completed years must be for a broken period between the date of commencement of production and the commencement of financial year.
Interpretation of policy not in favor of petitioner - decided against the petitioner.
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2016 (9) TMI 524 - PUNJAB & HARYANA HIGH COURT
Restoration of order passed by first Appellate Authority - levy of redemption fine - Section 125 of the Customs Act, 1962 - imposition of penalty - Section 112(a) of the Customs Act, 1962 - amount of redemption fine and penalty increased buy the Tribunal - jurisdiction of Tribunal - Whether redemption fine and penalty, as determined by the first appellate authority, can be increased further by the Tribunal in the appeal filed by the assessee, especially when the appeal filed by the department against the same order passed by the first appellate authority had been dismissed? - Held that: - It is only in the appeal filed by the department that the amount of penalty could be increased and for that the appeal filed by the assessee had to be dismissed. But in the case in hand, the facts are otherwise. The appeal filed by the revenue was specifically dismissed. In the appeal filed by the assessee, the order passed by the first appellate authority was set aside and the quantum of redemption fine and penalty was increased. That course was not possible in the appeal filed by the assessee, especially when the appeal filed by the department had been dismissed - order passed by the Tribunal set aside - order passed by the first appellate authority restored - amount of penalty and redemption fine as imposed by first appellate authority justified - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 523 - GUJARAT HIGH COURT
Claim of reward - information given to Department - raid carried on, on the basis of information of informer - excise duty evasion by one VFL - Polyester staple fiber - clandestine removal without payment of duty - O-41 register - CENVAT credit - Held that: - the Rewards Committee has not adverted to various factors which are required to be taken into consideration by the Rewards Committee for coming to the conclusion qua the informant's entitlement to receive reward and the quantum, the Rewards Committee has rather rendered its decision making it subject to outcome of the proceedings before the DRT. The non-advertance to various factors in non-recording of findings qua informant or as to why informant deserves what reward and not recording its clear findings, the order is rendered vulnerable and hence, the Rewards Committee will have to take afresh look into the matter.
The Rewards Committee will give full opportunity to both the sides to raise all the contentions. Reading of the scheme, calls upon the Rewards Committee to take a decision on the final reward and such decision is to be arrived at after completion of adjudication /appeal /revision proceedings and the final reward to be determined on the basis of net sale proceeds of goods seized /confiscated (if any) and/or amount of additional duty /fraudulently claimed drawback recovered plus penalty /fine recovered - the scheme seals limit of reward to 20% of the net sale proceeds.
It will be open to all concerned to raise all contentions including the contention of recovery as contemplated in “The Scheme” does not cover the payment of duty by utilizing the cenvat credit.
Petition disposed off - decided in favor of petitioner.
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2016 (9) TMI 522 - CESTAT MUMBAI
Confiscation - gold - shortages found during stock-taking - goods not available for confiscation - fine in lieu of confiscation - recovery of customs duty - imposition of penalty - Section 111, 112A, 125 of the Customs Act, 1962 - Notification No.117/94-Cus dated 21/10/1994 - SEEPZ unit - Held that: - the decision of the Apex court in the case of Weston Components Ltd. v. CC, New Delhi [2000 (1) TMI 45 - SUPREME COURT OF INDIA] does not apply here.
The confiscation always presumes availability of goods and presumption normally is that goods have been seized and thereafter the proceedings would culminate into confiscation or release. Confiscation would mean that seized goods become the property of the Government and the party to whom it is ordered to be released on payment of fine, will have to pay fine and redeem the goods. When the goods have been diverted and not released on execution of bond with conditions, the question of confiscation of the same does not arise since goods have already become someone else's property.
Appeal disposed off - decided against Revenue.
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2016 (9) TMI 521 - CESTAT MUMBAI
Imposition of penalty - Section114A of the Customs Act, 1962 - penalty imposable equal to duty short paid or dutynot paid is ₹ 68,22,953/- - penalty imposed ₹ 25,00,000/- - 100% EOU - imported raw material and capital goods - exemption Notification No. 13/81-Cus. Dt. 09.02.1981 - Held that: - under Section 114A the penalty should be mandatorily equal to the duty short paid or non-paid. On this issue the Hon ble Supreme Court in the case of Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] and Dharmendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT], held that the mandatory penalty provided under Section 11AC which is pari materia to Section 114A cannot be reduced from equal amount of duty short paid or non-paid - reduced penalty wrongly imposed - the appellant liable to pay the penalty under Section 114A equal to the duty confirmed in the adjudication order - reduced penalty not justified.
Demand of interest - Section 28AB of the Customs Act, 1962 - interest demand not confirmed - Held that: - it appears that there is an apparent error on the part of the adjudicating authority that despite clearly holding that the interest is recoverable on duty payable under the provisions of Section 28AB of Customs Act 1962 in Para 15 of the impugned order, it was left from mentioning in the operating portion of the order - demand of interest upheld.
Appeal allowed - decided in favor of Revenue.
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2016 (9) TMI 520 - CESTAT NEW DELHI
Restoration of CHA license - forefeiture of security deposit - Regulation 20 of CHALR/2004 - imposition of penalty - Section 117 of the Customs Act, 1962 - CHA licence-holder, firm of Mr. Walia - H Card holder, Shri Gurnani - mureate of potash (MOP) - restriction on export - seizure - violation of provisions of regulations 12, 13 (a) 13 (b), 13 (d) 13 (0), 19 (5) and 19 (8) of CHALR/ 2004 by Mr. Gurnani - Held that: - As regards the cross-examination of Mr. Gurnanai, the only possible consequence of denial of his cross examination would be that Shri Gurnanai's statement may not be relied upon as an evidence. However, we find that the statement of Shri Gurcharan Walia is quite in harmony with the statement of Shri Gurnanai, and therefore, to the extent the statement of Shri Gurnani is in harmony with that of Shri Walia himself, it certainly is of corroborative value as Shri Walia in cross-examination could not have questioned those aspects which he himself admitted.
The appellant allowed its license to be used and operated by Shri. Gurnani, for whom it sponsored H card even though it claimed he was not its employee (and therefore, sponsoring of H card itself was illegal). The appellant allowed using of its CHA license by Mr. Gurnani not as a one-off but for about 3 years and during this long period did not even take basic precaution to ensure that the license was not misused and that the obligations cast upon the licensee under CHALR 2004 were being fulfilled. The result was that the license got misused for attempted export of MOP which was restricted for export. The CHA licensee is reposed with a great degree of trust by the Customs Authorities and such conduct of the appellant was more than enough to irretrievably breach such trust. Such dereliction of duty on the part of a CHA, can potentially have even graver financial/security consequences. Thus, the appellant gravely failed to discharge its duties as CHA and thereby grossly violated Regulations 13 & 19 of CHALR, 2004 - Such serious violation on the part of the CHA can hardly deserve any condonation or leniency.
The case of State of Punjab V. Ex-Constable Ram Singh [1992 (7) TMI 332 - SUPREME COURT] is relied upon where it was held that a single act of corruption is sufficient to award the maximum penalty which under the CHALR, is of revocation of the license - revocation of licence and imposition of penalty upheld - appeal dismissed - decided against appellant.
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2016 (9) TMI 473 - CESTAT NEW DELHI
Revocation of CHA licence - Regulation 22(7) of the Customs House Agent Licensing Regulations 2004 - forefeiture of security deposit - CHA Regulation No. 22(5) - Madras High Court judgment in the case of AM Ahmad Co. vs CC Chennai [2014 (9) TMI 237 - MADRAS HIGH COURT] is relied upon. - Held that: - At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings thereon submit the report within a period of 90 days from the date of issue of notice under sub-Regulation 1. The SCN in this case under Regulation 22(1) ibid was issued on 05.06.2012 but the inquiry report was submitted on 20.03.2015 i.e. more than 21 months after issuance of SCN - the impugned order is unsustainable on account of time bar - appeal disposed off - decided in favor of appellant.
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