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Showing 141 to 160 of 181 Records

• 2016 (9) TMI 318 - AUTHORITY FOR ADVANCE RULINGS
  

  Valuation - import of goods from third party and sale in India under the brand name of foreign holding company - principal to principal relationship - applicability of Section 14 of the Act read with the Customs Valuation (Determination of Values of Imported Goods) Rules, 2007? – Held that: - applicant and the overseas third party manufacturers do not qualify as “related entities‟ in as much as none of the conditions specified in Rule 2(2) of the Customs Valuation (Determinations of Value of Imported goods) Rules, 2007 is satisfied; that it is also clear that the price paid by the applicant to the overseas third party manufacturers will be based on the purchase invoices and is the sole consideration for the sale transaction – value of invoice raised will form the transaction value.

  Trade Mark/ License Fee - payment made in terms of the foreign collaboration agreement - payment under Rule 10 (1)( c)of the Rules – is the above amount required to be added to the Transaction Value of the said goods for levy of Customs Duty under the Act read with the Rules – Held that: - the applicant will pay the Trademark License fee in lieu of grant of right to exploit and use of associated trademark for sale of said goods; that such Trademark License fee will be payable on the basis of the sales made by the applicant in India; that said activities for which the applicant will pay the license fee are post importation activities and are not related to the sale of goods by the third party manufacturers to the applicant. Further, the said payment of Trademark License Fee is a not condition for sale between the third party manufacturers and the applicant – the trademark fee and payment under foreign collaboration agreement do not qualify as payment made under Rule 10 (1)( c)of the Rules and need not be added to the transaction value.

  Sales and Business Support Fee - payment under Rule 10 (1)( c)of the Rules - is the above amount required to be added to the Transaction Value of the said goods for levy of Customs Duty under the Act read with the Rules – Held that: - payment not made under condition for sale – payment do not qualify as payment under Rule 10 (1)( c)of the Rules and need not be added to the transaction value.

  There is no Agreement between third party manufacturers and H & M GBC where the third party manufacturers agreed to supply the goods to only such party who enters into an Agreement with the H&M GBC under the Foreign Collaboration Agreement and the Trademark License Agreement. The role of H &M GBC is only restricted to in identifying independent third party manufacturers.

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• 2016 (9) TMI 317 - DELHI HIGH COURT
  

  Refund application – CVD – unjust enrichment - whether CVD has been passed on and collected from the end users? - decision on similar issue passed in the case Yu Televentures v. Union of India [2016 (8) TMI 184 - DELHI HIGH COURT] – Held that: - the operative portion of the case should be similar to the case of Yu Televenture - Refund allowed – refund to be made along with interest.

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• 2016 (9) TMI 316 - KERALA HIGH COURT
  

  Maintainability of the writ petition - waiver of pre-deposit - Held that: - the Court will not be justified in conducting an enquiry regarding the maintainability of the writ petition at this stage, especially when the writ petition has been admitted as early as on 19.1.2015 and an interim direction had been issued by the Court, not to reject the appeal during the pendency of this writ petition - writ petition maintainable.

  Reduction of pre-deposit amount - maintainability - principles of natural justice - Held that: - predeposit is a statutory restriction imposed on the petitioner. The amount of pre-deposit too high for the petitioner to make payment - amount of pre-deposit reduced - appeal to be considered on grounds of merits after compliance of payment of pre-deposit - petition disposed off - decided partly in favor of petitioner.

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• 2016 (9) TMI 315 - DELHI HIGH COURT
  

  Restoration of the Redemption fine imposed earlier - section 125 of the Customs Act, 1962 - Held that: - The Court notes that the Order-in-Original in this case did not make the ultimate purchaser i.e. the Respondent herein liable for payment of duty. The duty liability was fastened on to the first purchaser - the reduced amount of redemption fine upheld.

  Restoration of penalty - Held that: - As far as the deletion of the penalty is concerned, the Department has failed to prove the involvement of the Respondent in the illegal import of the car in question - deletion of penalty upheld.

  Appeal rejected - decided against Revenue.

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• 2016 (9) TMI 314 - CESTAT NEW DELHI
  

  Rejection of refund claim - refund of export duty - mild steel items - angles - channels - pipes - clearance from DTA to SEZ - duty paid under protest - withdrawal of protest and finalisation of assessment - Held that: - It is a well settled position of law when a claim is preferred by an assessee before the Departmental Authority the same has to be processed within the scope of the legal provisions and the sanctioning authority cannot entertain any claim beyond the statutory time limit prescribed under the law. The decision in the case Mafatlal Industries Ltd. vs. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] is held appropriate, where, it was decided that it is not open to any person to make a refund claim on the basis of a decision of a court or Tribunal rendered in the case of another person. Once the assessment of levy has become final the assessee cannot seek to reopen it nor can he claim refund without reopening such assessment, only on the basis of decision in another person's case - Section 72 of the Contract Act or for that matter Section 17 (1) (c) of the Limitation Act, 1963 has no application to such a claim for refund - appeal dismissed - decided against appellant.

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• 2016 (9) TMI 277 - CESTAT MUMBAI
  

  Confiscation in lieu of redemption fine - Import of car for personal use - appellant failed to satisfy the conditions of the Notification No.4/97-2002 dated 31/03/2001 - car provisionally released on ITC Bond - Held that:- it is found that the import of car is restricted. Anyone wishing to import a car has alternate route. The first route is to obtain a licence from the ministry of commerce and the 2nd route is to fulfill the conditions of Notification No.4/97-02. The appellant chose the second route and have failed to produce necessary certificate to avail the benefit of said notification. In these circumstances, the import of car is in violation of import export policy. Therefore, the impugned order rightly confiscated the car and imposed penalty. - Decided against the appellant

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• 2016 (9) TMI 276 - CESTAT MUMBAI
  

  Acceptance or rejection of Appeal - Discretion of Tribunal to admit or refuse the appeal - Second proviso to Section 129A of Customs Act, 1962 - Held that: - in view of the discretion provided to the Tribunal, the appeal is dismissed, only on the ground that amount is below threshold limit of ₹ 2,00,000/-, without going into merit of the case - appeal rejected.

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• 2016 (9) TMI 275 - CESTAT KOLKATA
  

  Confiscation of seized betel nuts - Section 111(b) of the Customs Act, 1962 – imposition of redemption fine - section 125 of the Customs Act, 1962 – imposition of penalty - Section 112(b)(ii) of the Customs Act, 1962 – demand of duty - Section 125(2) of the Customs Act, 1962 – whether 521 bags of betel nuts are of foreign origin and smuggled into India, so as to attract confiscation, fine and penalty ? – Held that: - the case is already decided in Maqsood ALam vs.- Commr. of Customs, Lucknow 2015 (5) TMI 131 - CESTAT NEW DELHI where it was held that the onus to prove that the goods are of foreign origin and are smuggled is squarely on Revenue and this onus cannot be discharged merely on the basis of suspicion - there is no evidence that seized goods claimed by the appellants were of foreign origin and smuggled into India. Also, appellants have produced documents indicating procurement of Betel Nuts. Any impropriety in the documentation for local movement of goods, under the local laws, cannot make the goods liable to confiscation under Section 111(b) of the Customs Act, 1962 – imposition of redemption fine, penalty and duty unjustified – appeal disposed off – decided in favor of appellant.

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• 2016 (9) TMI 274 - CESTAT MUMBAI
  

  Imposition of penalty - Section 114(i) of the Customs Act, 1962 – CHA – export clearance – attempt to illegally export Red Sanders – proper authorization not taken by appellant - forged documents on the part of exporter – Held that: - the CHA and its employee intentionally did not follow the regulation and dealt with unscrupulous person for handling the export container of red sanders. The appellants acted as conduit for enabling the smuggling of red sanders for illegal export – imposition of penalty upheld – appeal disposed off – decided against appellant.

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• 2016 (9) TMI 273 - CESTAT MUMBAI
  

  Imposition of Redemption fine - violation of restriction for unloading of appellant’s imported goods at Dighi Port. - import or Hot Briquetted Iron - Direct Reduced Iron - permission to be unloaded at Dighi Port as per Notification No. 01/2012-Cus.(NT) dated 31.01.2012 – contravention of Section 33 read with Section 8 of the Customs Act, 1962 – Held that: - When there was a restriction of unloading of goods at Dighi Port while filing the IGM and before permitting the unloading, the Customs department could have raised the objection and denied the unloading. Further, the appellant are held equally responsible in as much as they must abide the law prevailing. Ignorance of law is no excuse – some leniency granted – redemption fine and penalty decreased – appeal disposed off – decided against appellant.

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• 2016 (9) TMI 272 - CESTAT MUMBAI
  

  Imposition of penalty - Section 114(iii) of Customs Act, 1962 – CHA – authorization – drawback – mis-decaration - Indian Woolens Floor Covering Carpet having drawback rate @ 13.30% of the FOB - Durries made of wool and jute having drawback rate @ 9.80% of the FOB – Held that: - CHALR has put obligations on the CHA to follow certain procedure laid down in the regulation, which was purposely made to avoid any fraud in the customs clearances. Appellant CHA was not having any fraudulent intention and he was also not supposed to know the content of consignment. But, appellant CHA failed to follow the procedure laid down in CHALR, and did not obtain authorization, for which he was punishable - appellant CHA not involved in the fraudulent availment of drawback by the exporting firm and deserve some leniency – penalty amount reduced – decided partly in favor of appellant.

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• 2016 (9) TMI 271 - CESTAT NEW DELHI
  

  Restoration of appeal – non-appearance of both parties at the time of passing of order - Valuation – import of second hand machinery – upward revision of value accepted by assesse – Held that:- Tribunal has the powers to recall an ex-parte dismissal of appeal on merits and infact such orders should be recalled when there was sufficient cause for absence of a party. The Hon'ble Court further observed that ends of justice requires when the party is unable to appear for any fault of his own, the ex-parte order against him should be set aside. Their exists sufficient cause for the advocate not to cause appearance before the Tribunal at the time when appeals were taken up for disposal. The late arrival of the advocate on account of delayed train is not a fault attributable to him - restoration of appeal allowed.

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• 2016 (9) TMI 223 - MADRAS HIGH COURT
  

  Demand alongwith interest - Section 28(2) of the Customs Act, 1962 - clearance of consignment as project contract, but failure to produce the required documents as per section 7 of the Project Import Regulations, 1986 for finalisation of the project - goods were bonded in the warehouse and a Bank Guarantee was given by the petitioner - goods having not been cleared within the statutory period, the Customs Authorities have brought the goods for sale and the sale was completed and taken delivery by the bidder.

  Held that:- an interim order was granted on the ground that the petitioner had furnished a Bank Guarantee covering the entire amount. However, it was subsequently, brought to the notice of the Court by the third respondent that the petitioner's Bank Guarantee dated 06.07.1990 was valid only upto 26.01.1991 and the same stand cancelled on 28.01.1993. Thus, the respondent Department cannot make a claim against the third respondent Bank and this observation would protect the interest of the third respondent Bank. Therefore, this Court is inclined to issue appropriate directions to the second respondent to take note of the subsequent events, the fact that the goods in question were sold and the sale proceeds have been remitted to the Customs Department, for which purpose the order passed by the second respondent requires to be set aside. - Matter remanded back

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• 2016 (9) TMI 222 - ORISSA HIGH COURT
  

  Validity of the demand for the period prior to the deletion of Rule 6-C of the Rules, 1989 - deletion of rule of Section 6-C to the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 - Notification dated 20th May, 2002, published in Orissa Gazette on 6th July, 2002 - Held that: - the actual repeal of Rule 6-C of the Rules, 1989 did take place vide Notification dated 30.05.2002 but, much prior thereto i.e. 31.03.2001, the State Government had created a State monopoly of wholesale trade for distribution of foreign liquors i.e. OSBC. Since no demand of the alleged shortfall of MGQ had ever been raised prior to 30th May, 2002, the date of which the State of Orissa deleted Rule 6-C from the Rules, 1989 and first time the demand was raised only on 27th December, 2002 effectively much after the date of repeal/deletion - Demand after the date of deletion not justified - demand of the alleged shortfall of MGQ dated 27th December, 2002 quashed.

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• 2016 (9) TMI 221 - KERALA HIGH COURT
  

  Challenge to conviction and sentence order passed by the courts below under Section 135(1)(i) of the Customs Act, 1962 - import of 560.32 gram of gold from abroad without remitting the duty and filing false declaration - petitioner submitted that the market value fixed by the Department was not in accordance with the then existing market value - Held that:- it is revealed from the records that the gold found in possession of the revision petitioner was having a purity ranging from 99.78% to 78.90%. The market value of the gold would, no doubt, vary with the purity of the gold. What was the yardstick taken by PW1 to ascertain the market value of the gold involved in this case is not revealed from the evidence on record. Apart from the oral evidence of PW1, there is absolutely no material before the court to prove the market value of the gold involved in this case. Therefore, I am of the view that it is only just and proper to grant an opportunity to both sides to adduce evidence regarding the market value of the gold involved in this case during the relevant period. For the said reason, I am inclined to set aside the conviction and sentence passed by the appellate court under Sec. 135(1)(i) of the Customs Act and remit the matter to the appellate court. - Appeal allowed by way of remand

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• 2016 (9) TMI 220 - CESTAT KOLKATA
  

  Demand of interest - Section 28 AA of the Customs Act, 1962 – manufacture of railway wagons and parts thereof – import of goods falling under CTH 8607 of the Customs Tariff from USA – payment of duty made under section 28 of the finance act, 1962 – Held that: - once the appellant has paid the amount under section 28, the payment of interest is automatic. Section 28AA of the Customs Act, 1962 mandates the appellant to pay interest.

  Period for which interest required to be paid – interest payable from the date when DRI pointed out the applicable rate of interest or from the first date of the month succeeding the month in which duty was expected to be paid by the appellant? – Held that: - Section 28AA (2) of the Customs Act, 1962 mandates the appellant to pay interest from the first date of the month succeeding the month in which duty was expected to be paid by the appellant. This is held in view of the statutory mandate provided under Section 28 AA(2) of the Customs Act, 1962, substituted w.e.f. 18.04.2011 under Section 43 of the Finance Act, 2011 – appeal rejected – decided against appellant.

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• 2016 (9) TMI 219 - CESTAT MUMBAI
  

  Demand of amount availed as drawback - Fraudulent claim of drawback – mis-delaration of goods – goods shipped to non-existent consignees – Held that:- Under the drawback provision it is not provided that the demand of drawback can be made jointly from various persons. Therefore in our view it is necessary for the adjudicating authority to decide who is actually liable for return of drawback availed. If at all the drawback is recoverable from various persons in such case the adjudicating authority must specify the amount of drawback to be recovered from each individual – matter remanded back to original authority for fresh adjudication of person responsible and the amount of drawback – appeal disposed off – decide in favor of appellant.

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• 2016 (9) TMI 218 - CESTAT MUMBAI
  

  Rectification of mistake – quantification of demand – non-fulfillment of export obligation – demand of tax – Held that: - there is an apparent error in mentioning the total duty foregone ₹ 23,86,928/- in notice dt. 23.8.2002 which should be ₹ 13,58,935/-. Accordingly the correct balance duty recoverable should be ₹ 12,23,041/- whereas incorrect amount of ₹ 22,51,034/- was proposed in the same was confirmed in the original order which appears to be incorrect and the same needs reconsideration – matter remanded for re-quantification of the demand of duty and interest and also for appropriation of the duty already paid by the appellant after verification thereof - opportunity of personal hearing to be provided to the appellant.

  Demand of interest – interest chargeable on the amount for which the Bank Guarantee was lying with the department – Held that: - in case of non-fulfillment of export obligation it is the appellant who was supposed to discharge the duty. It is also fact that the Bank Guarantee amount was not encashed by the department. The duty amount was not paid to the Government Exchequer - the interest chargeable on the entire amount of duty stand unpaid from the due date till the date of payment – no relief from the payment of interest.

  Period of limitation – section 28 of the Customs Act, 1962 - Held that: - the goods were imported under EPCG Scheme for which the appellant executed the bond with bank guarantee, whereunder it was undertaken to fulfill the export obligation which is to be discharged in next five years from the import of the capital goods. Therefore, till the validity of the bond the demand does not get time barred as the obligation is continuous till it is fulfilled or as the case may be till the bond is alive – section 28 does not apply – demand not hit by limitation.

  Appeal allowed – matter remanded.

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• 2016 (9) TMI 217 - CESTAT MUMBAI
  

  Confiscation in lieu of redemption fine - Import of car for use by the company - appellant failed to satisfy the conditions of the Notification No.4/97-2002 dated 31/03/2001 - car provisionally released on ITC Bond - Held that:- it is found that the import of car is restricted. Anyone wishing to import a car has alternate route. The first route is to obtain a licence from the ministry of commerce and the 2nd route is to fulfill the conditions of Notification No.4/97-02. The appellant chose the second route and have failed to produce necessary certificate to avail the benefit of said notification. In these circumstances, the import of car is in violation of import export policy. Therefore, the impugned order rightly confiscated the car and imposed penalty. - Decided against the appellant

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• 2016 (9) TMI 176 - MADRAS HIGH COURT
  

  Condonation of delay - Imposition of penalty - Section 116 of the Customs Act, 1962 – MTS of heavy melting scrap – short landing of goods – Held that: - The Act does not confer power on the Appellate Authority to condone the delay beyond the period of thirty days. Though this has been the rule, there have been certain exceptions where this Court has exercised its extraordinary jurisdiction, considering the peculiar facts and circumstances of the case. The Order-in-Original which was passed on 10.11.2004, is yet to be given effect to and it has not attained finality, in spite of lapse of nearly one decade. This Writ Petition has been pending before this Court from the year 2005 and eleven long years has lapsed and nothing has happened. Therefore, this is a good and sufficient reason for this Court to exercise its extraordinary jurisdiction – delay condoned – appeal allowed – decided in favor of ppellant.

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