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Showing 161 to 180 of 181 Records

• 2016 (9) TMI 175 - CESTAT MUMBAI
  

  Valuation – joint venture – related parties – relationship influencing the price - transaction value - Rule 4(3)(b) of the Customs valuation Rules – Held that: - merely by holding 40% equity by the foreign company, Indian company cannot become a related person to the foreign company. Therefore, when there is no relationship, transaction value cannot be questioned. Rule 4(3)(b) does not apply – appeal dismissed – decided against Revenue.

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• 2016 (9) TMI 174 - CESTAT MUMBAI
  

  Demand of differential duty - Section 110A of the Customs Act, 1962 – provisional release of goods – execution of bond – security in the form of bank guarantee equal to 25% of value of seized goods – seeking of provisional release on the basis of bond and bank guarantee only – Held that: - provisional release of the goods is allowed on execution of Bond for the value of the goods and on furnishing a Bank Guarantee only in case where matter is pending for adjudication.

  Since confiscation of the goods has not yet concluded, therefore, the Bond for full value of the goods and Bank Guarantee of 25% is required. After the assessment of the Bill of Entry, the release cannot be allowed without payment of duty as assessed in the Bill of Entry in addition to execution of Bond for the full value of the goods and furnishing of Bank Guarantee for 25% - conditions imposed for provisional release upheld – appeal disposed off – decided against appellant.

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• 2016 (9) TMI 173 - CESTAT MUMBAI
  

  Valuation – declared value accepted as transaction value - Rule 3(3)(b) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 – Helukabel products – rejection of transaction value due to fluctuating prices of the goods – prices of similar/identical products - Held that: - the order dated 16.1.2008 was passed essentially on the ground that the importer was able to establish that the contemporaneous imports were at a price lower than the transaction value in their case. The order dated 9.2.2011 has been passed without going into the contemporaneous imports of the material time i.e. 2010. It is apparent from the order that no such data was submitted by the appellant or examined by the Assistant Commissioner. The letter dated 02.01.2008 from the foreign supplier, itself admits to the fact that the prices are fluctuating as per the international copper rates - the contemporaneous import prices of identical/similar goods to be considered before accepting the transaction value under Rule 3(3)(b) of the Customs Valuation Rules, 2007- matter remanded to original authority – appeal disposed off.

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• 2016 (9) TMI 172 - CESTAT MUMBAI
  

  Availment of exemption under Advance License Scheme - Classification of imported goods – crude Iodine – pure Iodine – advance license scheme – benefit under Exemption Notification No. 43/2002-Cus. – SION of pure iodine and iodine crude different – Held that: - the iodine having 99.8% purity has been considered as crude iodine, which indicates that the iodine having 100% purity can only be considered as pure or refined iodine, which is other than the crude iodine. The imported goods admittedly having iodine assay 99.9% also contain chlorine and bromine and non-volatile matter, therefore, it contains some impurities, and is not pure iodine - goods imported by the appellant qualifies as crude iodine, hence eligible for exemption claimed by them under Advance License Scheme – appeal allowed – decided in favor of appellant.

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• 2016 (9) TMI 171 - CESTAT MUMBAI
  

  Valuation – addition of commission amount to the declared price as mentioned in the price list – agents of foreign supplier - 100% subsidiary of foreign supplier - agreement for Distribution of foreign supplier goods – Held that:- In terms of Rule 9(1)(a)(i) of the Customs Valuation Rules, 1988, the commission and brokerage except buying commission will be added to the invoice value. Commission is not available to third party, which is quite clear from the clauses of the agreement. Hence the same is includible in invoice value – appeal dismissed – decided against appellant.

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• 2016 (9) TMI 170 - CESTAT BANGALORE
  

  Imposition of Redemption Fine - re-import of rejected assorted tea exported earlier - Duty Entitlement Pass Book Scheme – export rejected due to quality reasons – Section 125 of the Customs Act, 1962 - failure to get clearance from the Health Officers and the sample does not conform to FSSAI Standard and the same was unsafe as the sample is not free from extraneous matter - Held that: - the import of edible food products require mandatory clearance from the Port Health Officer and Local Health Authority. Such imports would also include the re-import and those food articles found unsafe cannot be allowed to be cleared from home consumption. The unsafe goods being not permitted to be released as per the Food Safety and Standards Act, 2006 are prohibited under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1092), for not being as per the standards laid down by the Food Authority under the provisions of the Act and the Rules and Regulations made thereunder - reimported goods failed to get clearance from health officers and held as unsafe and was liable to confiscation - imposition of redemption fine upheld.

  Imposition of penalty - Section 112(a) of the Customs Act, 1962 – Held that: - no intention of fraud involved – penalty not imposable - appeal disposed off – partly allowed in favor of appellant.

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• 2016 (9) TMI 169 - CESTAT KOLKATA
  

  Rejection of Refund claim – time-bar - Notification No.102/2007-Cus. dated 14.09.2007 as amended by Notification No.93/2008-Cus. dated 01.08.2008. Ld – Held that: - the original Notification NO.102/2007-Cus. dt. 14.09.2007 was not having any time limit for filing refund claim and time period of one year from the date of payment of said additional duty of customs was added to the original Notification No. 93/2008-Cus. dated 01.08.2008. Amending Notification No. 93/2008-Cus. dated 01.08.2008 cannot be said to have retrospective effect. Refund claim of additional duty of customs paid on imported goods with the jurisdictional customs officer is required to be filed within one year from the date of payment of said additional duty of customs. In the present appeal the dispute is from 25.03.2011 to 18.09.2012 which is after 01.08.2008 when Notification No. 93/2008-Cus. dated 01.08.2008 was issued and operative. Time limit of one year applicable – refund claim barred by period of limitation - appeal disposed off – decided against appellant.

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• 2016 (9) TMI 124 - CESTAT NEW DELHI
  

  Assessment - Rule 5 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962 – mis-declaration of the thickness of import of PU leather cloth – waiver of the right to SCN and personal hearing – Held that: - It is evident that thickness of the impugned goods was found to be more than that declared and therefore rejection of transaction value is in conformity with Rule 12 of Customs Valuation Rules, 2007. Once the transaction value was rejected and as the appellant did not want any show cause notice or hearing, nothing unsustainable found in the adjudication order which determined the value on the basis of value of contemporaneous imports of similar goods – enhanced value sustained.

  Confiscation of goods - Section 111(m) of the Customs Act, 1962 – option to redeem the goods on payment of redemption fine - Section 125 of the Customs Act, 1962 - Imposition of penalty - Section 112(a)(ii) of the Customs Act, 1962 – Held that: - there is nothing to suggest that there was any deliberate mis-declaration of thickness. The invoice mentioned possible variation of up to 10%. There is no evidence that there was any deliberate design on the part of the appellant to mis-declare the thickness or that there was any collusion between the supplier and the appellant. Similar stand taken in the case M/s Sky International 2016 (6) TMI 67 - CESTAT NEW DELHI – redemption fine and penalty set aside – partly decided in favor of appellant.

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• 2016 (9) TMI 123 - CESTAT NEW DELHI
  

  Restoration of CHA license - revocation in terms of the Regulation 22(7) of the Customs House Agent Licensing Regulations 2004 – forfeiture of security amount - SCN under Regulation 22(1) ibid – inquiry report to be submitted within 90 days of the SCN - CHA Regulation No. 22(5) – Held that: - Madras High Court in the case of A M Ahmad [2014 (9) TMI 237 - MADRAS HIGH COURT] in effect has clearly held that breach of the time limit prescribed in Regulation 22 is fatal to the order and set aside the order on that ground. The impugned order is unsustainable on account of time bar, as enquiry report submitted after prescribed time limitation – Also, Allahabad High Court in the case of Commissioner vs Monsanto Manufacturing Pvt. Ltd. [2014 (4) TMI 505 - ALLAHABAD HIGH COURT] decided that once it is held that the demand is time barred, there would be no occasion for the Tribunal to enquire into the merits of the case raised by Revenue – impugned order set aside – appeal disposed off – decided in favor of appellant.

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• 2016 (9) TMI 122 - CESTAT MUMBAI
  

  Excess stock of gold ornaments found in the registered premises of the appellant – confiscation under section 71 of the erstwhile Gold (Control) Act, 1968 – option to redeem on payment of redemption fine and penalty under section 74 of the Gold (Control) Act, 1968 – Held that: - In view of the material facts recorded and the stultifying of an appeal, if any, against the first order, the dismissal of the appeal by the first appellate authority is not tenable. Further, in view of the finding that option to redeem confiscated goods can be, and has been, legally exercised by appellant, there is no bar to release of the confiscated goods - impugned order is modified to direct the Assistant Commissioner to release the confiscated gold after confirming that the redemption fine has been paid by appellant – appeal disposed off.

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• 2016 (9) TMI 121 - CESTAT HYDERABAD
  

  Refund claim - eligibility for concessional rate of additional duty of 5% - notification no. 21/2002-CE dated 1st March 2002 – ignorance of order of the Tribunal no. 1112/2008 dated 1st September 2008 by appellate authority - certificate by chartered accountant furnished that burden of duty not passed – principle of unjust enrichment – Held that: - It is surprising that a senior officer discharging functions as Commissioner (Appeals) appears to be bereft of knowledge of judicial hierarchies and comprehension of judicial discipline. The disposal of these matters by the appellate authority ignoring the decision of Tribunal reflects poorly on the first tier of the appellate mechanism in the scheme of tax administration leaving needless burden on the assesse – appeal disposed off – decided in favor of appellant.

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• 2016 (9) TMI 76 - CESTAT KOLKATA
  

  Waiver of pre-deposit - Section 35F(iii) of the Central Excise Act, 1944 - Section 129E of the Customs Act, 1962 - CBEC Circular No.984/8/2014-CX dated 16.09.2014 – defective memos - whether Appellants are required to deposit an additional 10% of duty confirmed, while filing Appeal before CESTAT against Orders passed by the first appellate authority over and above 7.5% deposit made before the first appellate authority ? – Held that: - After success at the level of first appellate authority may be Legislature wants that the case has passed one test of first appeal successfully and Revenue deserves an additional 10% of the duty or penalty as deposit till the issue is finally decided in the second appellate stage. Appellants required to pay additional 10% of duty confirmed. Defect Memoranda were thus correctly issued by CESTAT Registry – all appeals dismissed on account of non-compliance – decided against appellant.

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• 2016 (9) TMI 75 - CESTAT KOLKATA
  

  Imposition of redemption fine – confiscation - Sec 125 of the Customs Act 1962 – imported goods not available for confiscation – bond / bank guarantee – Held that: - in the case of Weston components Ltd. Vs. CC, New Delhi 2000 (1) TMI 45 - SUPREME COURT OF INDIA, it was held that, for ordering confiscation / redemption either the goods should be physically available for confiscation or an instrument in the form of bond / bank guarantee should exist when the goods were released to the Respondent. Here it was argued that a bond / Bank guarantee has been executed by the appellant. Adjournment was given to the AR to produce such Bond / Bank guarantee executed by the Respondent. No such Bond / Bank guarantee executed by the appellant is brought on record till date. The matter is remanded to the Adjudicating authority for the limited purpose of deciding the matter afresh in the light of Bond / Bank Guarantee if any executed at the time of release of the imported goods. If there is no Bond and or Bank Guarantee given by the Respondent at the time of release of goods then no redemption fine can be imposed – matter remanded – appeal allowed.

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• 2016 (9) TMI 74 - CESTAT KOLKATA
  

  Review petition – stay application – Held that: - only ground under which Revenue filed this appeal is that department has filed a review petition in the Apex Court in the case of M/s. SRF Ltd. 2015 (4) TMI 561 - SUPREME COURT which is pending in the Apex Court. In view of dismissal of the review petition of the department by Apex Court by order dated 15.07.2016, appeals filed by the department are not sustainable – appeals filed by Revenue dismissed – stay applications dismissed.

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• 2016 (9) TMI 73 - CESTAT CHENNAI
  

  Imposition of penalty – lenient consideration on the quantum of penalty – IE code – mis-declared imports – rejection of declared value – Held that: - racket of smugglers abused the IE code granted by DGFT and also mis-declared the goods and upon detection of the mis-declaration they have vanished. When statements were recorded from different importers, the authority also found that benami transactions were made and some name lenders operated the action. The ill-gots were parked to the total detriment of the customs – no grant of relief – appeal rejected – decided against appellant.

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• 2016 (9) TMI 72 - CESTAT HYDERABAD
  

  Genuineness of DEPB licence / scrips – clearance of crude palmolien - Notification No.45/2002-Cus dated 22.04.2002 – principles of natural justice – Held that: - it was established in the case Aafloat Textiles 2009 (2) TMI 75 - SUPREME COURT that it was for the buyer to establish that he had no knowledge about the genuineness or otherwise of the SIL in question. The appellant have established that they had no knowledge about the non-genuineness of the documents.

  Recovery of duty with interest – Held that: - there is no estoppel, bar or impediment which can preclude the department from demand and recovery, at the earliest, of the wrongful benefit which accrued to the appellant on account of the impugned documents – demand of duty and interest sustainable.

  Imposition of penalty – Held that: - Once it is established that the appellants had no role in fabrication or forgery of the impugned documents, there is no ground for imposition of penalty either on the appellant or on the Executive Director – penalty set aside – appeal disposed off – partly decided in favor of appellant.

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• 2016 (9) TMI 28 - CALCUTTA HIGH COURT
  

  Waiver of pre-deposit – 10% of penalty amount directed to be deposited or to furnish 100% bank guarantee of penalty amount – discretion of appellant authority to dispense with pre-deposit unconditionally or subject to some conditions – inability shown by petitioner to pay the pre-deposit amount – Held that: - There is nothing on record to prove that the petitioners are financially disabled to make pre-deposit of 10% of the penalty amount to have their appeal entertained by the appellate authority. The discretion that has been exercised by the appellate authority is neither arbitrary nor capricious and, therefore, no interference warranted - Petitioner to make pre-deposit failing which the appeal shall stand dismissed – petition dismissed – decided against petitioner.

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• 2016 (9) TMI 27 - KERALA HIGH COURT
  

  Recovery of duty - section 28(1) of the Customs Act, 1962 – import of aluminum ingots - notification No.176/1980 dated 29.8.1980 – levy of additional duty to the extent of 12.5% of the value of goods – earlier notification rescinded by notification No.76-Cus dated 27.3.1981 with effect from 27.3.1981- issue of bank guarantee for recovery of the sums – non-renewal of bank-guarantee – proceedings under Sick Industrial Companies (Special Provisions) Act, 1985 – Held that: - the bank guarantee still in force and the bank will pay over the guaranteed amount to the appellant. Undertaking of payment of sum by the bank recorded – appeal disposed off – decided in favor of appellant.

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• 2016 (9) TMI 26 - CESTAT NEW DELHI
  

  Demand of duty – imposition of penalty under section 112 and 117 of the Customs Act, 1962 – import of various broadcasting equipment vide Bill of Entry 03.07.2010 – exemption Notification No. 13/2010-Cus dated 19.02.010 – Held that: - the goods have been imported for Commonwealth Games, 2010 and the importer name is specifically mentioned as “Doordarshan - Prasar Bharti/ Shaf Broadcast for Commonwealth Games, 2010”, New Delhi, thus, benefit of notification available. Further, there is no allegation of any misuse or diversion of the impugned goods for other then intended purpose. It is also recorded that all the goods imported, duty free in terms of the said notification, have been, in fact, exported out of country within the stipulated period of the said notification. Bill of entry needs to be amended to find out the position of appellant as the importer of goods - appeal allowed – duty and penalty not to be imposed – decided in favor of appellant.

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• 2016 (9) TMI 25 - CESTAT CHENNAI
  

  Imposition of redemption fine - transmission of higher value to the exporter – flow of money to the exporter in China – mistake on the part of exporter – mistake detected, rectified and import made on actual value - Held that: - this is not a case of any innocence of the exporter but it was well within the knowledge of the exporter and the appellant was in the process of clearance of the goods. When it was detected, the undervaluation was noticed – redemption fine not justified.

  Imposition of penalty under section 112(a) of the Customs Act, 1962 – Held that: - The mis-declaration having been made is liable for confiscation, reduced amount of penalty imposed – order of appellate authority modified – decided partly in favor of appellant.

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