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Customs - Case Laws
Showing 21 to 40 of 181 Records
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2016 (9) TMI 1340
Early disposal of proceedings - The petitioner’s grievance is that the respondents - Customs authorities are not concluding their proceedings expeditiously - goods imported for re-export, abandoned - Held that: - The materials on record show that the respondents acted on the basis of the information by the DRI and have seized the goods - the respondents shall take steps to conclude the investigation and take appropriate follow-up action as is necessary having regard to the outcome of the investigation at the earliest convenience - petition allowed.
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2016 (9) TMI 1339
Refund claim - Section 27(1) of the Customs Act, 1962 - rejection on the ground that as per the proviso (3) to Section 26A ibid, no refund of custom duty on the imported goods shall be granted in case an offence has been committed at the time of import - Held that: - it is evident from the fact of this case that the subject goods were not cleared by the Department for home consumption. Hence, the duty paid on such goods should be eligible for refund under Section 27 ibid - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1316
Natural justice - the matter is still subjudice in W.P. No.3726/2015 and C.M No.6651/2015 - Held that: - the liberty is granted to the appellant to come again after having final verdict from the Honble High Court, if need be within the prescribed time - appeal disposed off.
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2016 (9) TMI 1273
Maintainability of petition - Seizure of mazahar - the petitioner does not propose to challenge the mahazar, and would agree to certain contentions, so that the goods can be exported - Held that: - the prayer sought for in this Writ Petition is slightly different, and if the petitioner seeks for any direction for exportation of the goods, he should file separate Writ Petition - the challenge to the seizure mahazar is held to be not maintainable - petition closed.
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2016 (9) TMI 1258
The impugned orders dated 12th July, 2016 and 2nd August, 2016 passed by the High Court set aside - until the final decision of the writ petitions, the goods be not released and the auction (if any) will not take place without the leave of the Court - appeal disposed off.
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2016 (9) TMI 1256
Imposition of ADD - soda ash - Rule 16 Disclosure of information - principles of natural justice - Held that: - there is still some time left for the authorities to record its final finding and as authority is under obligation to record its finding after following principles of natural justice - The authorities be permitted to go on with the inquiry and petitioners may also shall place on record with the authorities their submissions, but the final findings may not be rendered without there being sufficient opportunity and supply of material legitimately admissible to the petitioners, as the Disclosure Statements, as on date, clearly indicates that there are vital information, which has gone into consideration by the authorities without they being available to the petitioners, as many columns have been containing asterisk marks, and figures have been withheld from the interested parties - Notice returnable on 17.10.2016 - petition allowed.
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2016 (9) TMI 1228
Rejection of declared value - Regrind ABS 20% Glass filled - Rule 10A under the Customs Valuation Rules, 1988 - Notification No. 10/98-Cus (NT) dated 19.2.1998 allowed rejection of transaction value in certain circumstances - discount of 35% over the PLATT price - Held that: - the declared value of Regrind ABS 20% Glass filled has been rejected for the reason that it is significantly different from the PLATT price of the ABS. The price of the two commodities, which is significantly different, cannot be compared in this manner. Only if ABS is imported at a price significantly different from the PLATT price then the question on the declared value can be raised on the basis of PLATT price.
The item imported i.e. Regrind ABS 20% Glass filled has very remote connection if at all with the PLATT price - the rejection of declared value cannot be upheld - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1227
Legality and correctness of levy of Anti-Dumping duties - digital plates imported from China and Japan - Customs Notification No. 3/2012 -CUS (ADD) - Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Chinese producers should have been considered as operating in market economy conditions - Held that: - the DA has recorded that in the past three years China PR has been treated as non-market economy in the anti-dumping investigations by other WTO Members. Hence, a rebuttable presumption of non-market economy status has been made in terms of para 8 (2) of Annexure I of AD Rules. The DA on analyzing the responses provided by the producers/exporters of the subject goods from China PR and the DI, concluded that there is significant government interference in the aluminium industry in China. Reliance was also placed on the findings of Canadian authorities in their anti-dumping and subsidy investigation. It was concluded that the price of major raw material, aluminium, is not market determined and hence, the market economy treatment was denied by the DA to the appellants.
Impact of safeguard duty on imported raw material - Held that: - the transitional, product specific, safeguard duty was in force on the imports of aluminium coils from China PR from 23/3/2009 to 22/3/2011. Safeguard duty of 14% and 12% for first and second year were imposed. The duty was to remedy the market disruption caused by increased imports. The DA examined the impact of this duty on domestic industry who use this as raw material to produce subject goods. Noting that such imports by DI are only negligible, the DA concluded that the impact of safeguard duty on arriving at NIP is not significant.
Erroneous fixation of NIP by the DA - Held that: - the methodology adopted for arriving at the NIP is well within the guidelines framed under AD Rules. The rate of return, costing parameters, differential treatment to violet and thermal plates, exclusion of selling/distribution cost, exchange note fluctuation etc. have all been taken into consideration by the DA - No material point found to interfere with the reasoning adopted by the DA while arriving at the NIP.
Wrong determination of injury to DI - Held that: - there is material injury to DI caused by the dumped imports of subject goods. Recommendation was, thereupon, made for imposition of AD duties. - no material ground with supporting evidence to interfere with the findings of the DA and the final customs notification imposing AD duties.
Appeal dismissed - decided against appellant.
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2016 (9) TMI 1226
Demand of customs duty on capital goods imported - imposition of penalty - 100% EOU - tissue culture plants - capital goods originally imported duty-free for setting up of the unit. On account of failure to carry on the business, the factory had to be shut down and approach made to Development Commissioner in February 1997 for de-bonding of the unit - whether the appellant is entitled to depreciation on the capital goods on which he is required to pay customs duty now?
Held that: - The CBEC circular No. 43/98 dated 26th of June 1998 issued from file No. 314/19/98 allows depreciation for the capital goods other than computers and computer peripherals up to a maximum extent of 90% with the following stipulations for the units operating under EOU scheme for capital goods cleared in DTA. From a careful reading of the notification No. 53/97 customs dated 3rd of June 1997, it is seen that the capital goods at the time of clearance will be entitled to payment of customs duty on depredated value provided that the said unit has been allowed by the Development Commissioner to clear such goods in DTA.
the unit commenced its production in the year 1994. The appellant has approached the Development Commissioner for de-bonding of the unit as early as 4th of February 1997. The adjudication order passed by the Commissioner originally, demanding customs duty on capital goods was passed in the year 1999. This order was received by the appellant only in the year 2011. As per the directions of the Tribunal in the 1st round of litigation, the Commissioner was directed to pass a de-novo order. Accordingly the impugned order came to be passed. Meanwhile the appellant has chosen to pay the duty, interest and penalty in the year 2011 in terms of Commissioner's order in the original proceedings and has since de-bonded the unit. Hence it is fair to take the view that the capital goods have been allowed to be cleared in DTA and hence depreciation upto 90% will be allowable to the appellant in calculating the duty payable on the capital goods.
Requirement to pay customs duty - goods auctioned by department and assessee not in possession of the goods - Held that: - The appellant's unit was registered as 100% EOU. The unit was started in 1994 and was in existence till 2011, i.e. till de-bonding of the unit. The customs duty as computed originally by the Commissioner was discharged by the appellant in 2011 and thereafter the capital goods were auctioned by the government. - appellant liable to pay the customs duty and cannot take shelter under the fact that the government has auctioned the goods.
Customs duty payable on the capital goods need to be reworked after allowing 90% depreciation. Consequently the customs duty payable by the appellant will considerably come down as also the interest payable thereon - in view the facts and circumstances of the case and also the fact that the appellant could not carry on its business because of adverse turn of business circumstances, a lenient view taken and the penalty imposed is waived.
Appeal disposed off - decided partly in favor of appellant.
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2016 (9) TMI 1225
Imposition of Anti-dumping duty - import of hot rolled flat products of stainless steel - Final Findings dated 11.10.2011 of Designated Authority (DA), Directorate General of Anti-Dumping and Allied Duties, Ministry of Commerce & Industry - notification No. 104/2011-Cus dated 25.11.2011 of Ministry of Finance - Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Held that: - market share alone is not a fair indicator of presence of injury or otherwise. Domestic prices have been undercut by imports from the subject countries throughout the injury investigation period. Further, the prices of domestic industry has not increased in line with increase in costs. The profitability of the domestic Industry has been shown to be adversely affected during the said period.
The Tribunal in Kothari Sugars & Chemicals Limited Vs. Designated Authority [2005 (8) TMI 411 - CESTAT, NEW DELHI] held that if the volume of imports at a particular price level is sufficient enough to have adverse impact on domestic selling prices, the same should not be taken into account and given due weightage in the analysis. It otherwise meant that even if there are high priced transactions and low price transactions from a country, the very fact that the low price transactions cause injury (with positive injury margin) justifies imposition of duty on the entire country.
Regarding source data it has been recorded that the DGCI & S and IBIS data have been used wherever required. The methodology for arriving the NIP has been disclosed. 22% return on investment has been granted to domestic industry as per consistent practice followed in this regard. The injury margin calculation for residual exporters of a country follows a methodology different from that adopted for price underselling which is determined in respect of a country as a whole - imposition of duty justified.
Appeal disposed off - decided against appellant.
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2016 (9) TMI 1224
Application for renewal of CHA Chennai license - license issued at Vishakapatnam and their branch license registered with Chennai Customs - expiry of Chennai license - respondent allowed to operate as CHA in Chennai Customs under Regulation 10(2) of the Customs House Agents Licensing Regulations (CHALR), 1984, on the basis of CHA licence issued to them, under Regulation 10(1) of the said Regulations, by Visakapatnam Customs - whether, merely because, the Commissioner of Customs (Seaport-Import), the licencing authority, has acted as an adjudicating authority, to adjudge an issue, as to whether, the 1st respondent is entitled to get the licence, issued by the Commissionerate, Chennai, renewed under Regulation 10(2), irrespective of the fact that when the original licence, at Vizag Customs has not been renewed, whether the duty to be discharged by him, at the time of considering a renewal application is adjudicatory or administrative, in nature?
The decision in the case of GAJRAJ SINGH Versus STATE TRANSPORT APPELLATE TRIBUNAL [1996 (9) TMI 607 - Supreme Court Of India] has been relied upon. It was held that adjudication is not required, while considering a renewal application. Grant or renewal of licence, is administrative in nature.
Section 129 of the Customs Act, 1962, provides for an appeal. Bare reading of the Section may indicate that any decision or order passed by the adjudicating authority, can be appealed to the Tribunal. The Regulations dealing with grant of licence for renewal should be harmoniously read with the provisions of the Customs Act, 1962 and should be given the effect, in conformity with the legislative intent. On the principle of harmonious construction and going through the entire Regulations, it was held that an order, rejecting an application for renewal, is administrative in nature.
The Tribunal held that the appeal filed against the order, on the application to renew the licence issued to the Customs House Agent, under the CHALR, 1984 or 2004, as the case may be, is not maintainable - no interference required with the order of the Tribunal - appeal dismissed - decided in favor of respondent.
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2016 (9) TMI 1169
Confiscation of seized gold under Sections 111(d) and 111(p) of the Customs Act, 1962 - imposition of penalty under Section 112(b) of the Customs Act, 1962 - contravention of the provisions of Section 11 of the Customs Act, 1962 read with Section 3(1) of the Import & Export (Control) Act, 1947 - foreign marked gold weighing 19831.805 gms - import of gold prior to or after prohibition - prohibition in import of gold bars vide notification dated 25th of August, 1948 - whether the gold bars acquired before of after prohibition and is seizure and confiscation of gold bars justified if acquired after issuance of prohibition notification?
Held that: - though the initial onus was on Revenue to prove the illegal import of gold and that such illegal import stand established when almost 20 Kg. of gold with foreign marking was confiscated in the year 1950. Since the gold was seized in the year 1950, it would be believed to have been imported soon before that as such gold imported would not be kept as such for a long period as alleged that it was imported between the years 1941 to 1949. In fact, the prohibition of import of gold came into force on 25th of August, 1948. Therefore, for more than two years, it is unbelievable that imported gold will be retained as such. Such stand of the Revenue has to be examined keeping in view the stand taken by the assessee that he purchased the gold when there was no prohibition and also stated that he purchased it from Reserve Bank of India through brokers. The assessee has failed to discharge the special fact within his knowledge as to when the gold was purchased and through whom the purchase of the gold was made. To avoid the rigour of prohibition, the onus was on the respondent being a fact within his special knowledge, thus, in terms of Section 106 of the Evidence Act, the onus was on respondent and thereafter his wife to prove that the gold imported is prior to prohibition vide notification dated 25th of August, 1948 and or has been purchased from the Reserve Bank of India. - there is no proof of any of these facts - learned Tribunal erred in law in holding that mere assertion that gold has been purchased cannot partake the character of proof of legal purchase.
Seizure and confiscation of gold bars justified - petition disposed off - decided in favor of Revenue.
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2016 (9) TMI 1168
Prayer for issuance of writ of certiorarified mandamus to quash the circular - accept application for the grant of Custom Broker Licence - permission to write examination, conducted under the Regulation 6 of Customs Broker Licence Regulation, 2013 (CBLR) - whether Inspite of eligibility for being recognized as a Customs Broker, in accordance with Rule 5 (f) (ii) of CBLR, the petitioner not allowed to sit for the written examination is justified? - Held that : - when certain qualifications are listed out under the Regulations, it can be taken as an illustrative and not exhaustive. The Authorities are required to examine the nature of qualification possessed by the candidates, and as to whether, it would fall within the scope and ambit of the required qualification as per the Regulations contemplated under CBLR.
The petitioner has been successful, both, in the written examination and oral examination. Also, the qualifications possessed by the petitioner are in conformity to the Regulation 5 (f)(ii) of CBLR - the respondents directed to consider the petitioner's application and grant Custom Broker Licence within a period of three weeks - this order shall not be treated as condition precedent, and the legal issue raised by the respondents left open - writ petition disposed off - decided in favor of petitioner.
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2016 (9) TMI 1167
Mis-declaration of goods in the shipping bills - confiscation of export goods under section 113 of the Customs act, 1962 - option to pay redemption fine of ₹ 20 lakh under section 125 of the Customs Act, 1962 - imposition of penalty of ₹ 10 lakh under section 114 (ii) of Customs act 1962 - Duty drawback at ICD - export of man-made fiber jeans - detention of goods - provisional release of goods on execution of bank guarantee - whether the mistake committed is bonafide and no mens-rea involved? - Held that: - the mis-declaration of the details of the goods made in the shipping bills was not intentional and it has arisen in due to a bona fide mistake. This view is further strengthened by the fact that the appellant himself has informed the customs authorities about the mistake even before the consignment was taken up for examination. The Commissioner in the impugned order has fairly recorded that the mistake could not have gone unnoticed. - there is absolutely no malafide.
Confiscation and penalty imposed on the ground that the party failed to file an amendment to the shipping bill as required under law even after they realized that they had filed wrong particulars. Similar issue decided in the case CCE, Calcutta - II vs. India Aluminium Co. Ltd [2010 (9) TMI 275 - SUPREME COURT OF INDIA] - the steps by way of penal action not warranted - confiscation and penalty set aside - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1166
Enhancement of Anti Dumping Duty - rubber chemicals known as PX13 (6 PPD) - Mid Term Review - Notification No. 92/2011-Cus. dated 20.09.2011 - imports of subject goods from PR China and Korea RP - Rule 23 of Anti Dumping Rules indicate the powers of the DA to review the need for continued imposition of any AD duty on its own initiative or upon request by any interested party - Held that: - the decision in the case Rishiroop Polymers Pvt. Ltd. vs. Designated Authority & Addl. Secretary [2006 (3) TMI 143 - SUPREME COURT OF INDIA] is relied upon. It was held if there is significant change in the facts and circumstances that it is considered necessary either to withdraw or modify appropriately the AD duty which has been imposed the DA can act accordingly.
The procedure envisaged has been followed by the DA. The DA has considered volume effect of dumped margin, price effect, price under selling, price suppression and depression and other economic parameters relating to domestic industry before reaching the conclusion.
The injury to the domestic industry is likely to recur in case the present AD duties are not modified. The definitive AD duty has been revised based on such recommendation by the DA - the imposition of AD duty per-se cannot be challenged.
Appeal dismissed - decided against appellant.
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2016 (9) TMI 1165
Provisional release of betel nuts – seizure – evidence produced as to the ownership of the goods – whether rejection of provisional release of goods is proper and justified? – Held that: - Even if no owner is coming forward to claim the goods then also it is a settled proposition of law that the goods should be released to the person from whose custody the goods were seized. In the present case as per the case records there is no indication till date that seized betel nuts are of foreign origin. No evidence has been brought by the Revenue on record that betel nuts are absolutely prohibited or banned for importation into the country.
Betel-nut unfit for human consumption – test carried out by Food Analyst, Guwahati – Held that: - provisions of Food Safety & Standards Act, 2006 are implemented by the State Govt. and not by the authorities under the Customs Act, 1962. Such objection can be raised only when the goods are being imported through regular Custom stations.
The request of the Appellant for provisional release of seized betel nuts rejected by the Adjudicating authority was improper and legally not correct. It is ordered that seized betel nuts should be provisionally released to the Appellant after executing a bond for the full value of the goods with one solvent surety equal to 25% of the value of the seized goods.
Appeal allowed – decided in favor of appellant.
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2016 (9) TMI 1164
Revocation of CHA license - forfeiture of security deposit - smuggling of R-22 gas - Regulation 22 of the CBLR, 2003 - time limits prescribed under CBLR of 90 days prescribed for submission of the enquiry report after the issue of show cause notice - contravention of CBLR - Held that: - the decision in the case A.M. Ahamed & Co. vs. Commissioner of Customs (Imports), Chennai [2014 (9) TMI 237 - MADRAS HIGH COURT] is relied upon where it was held that the observance of time limits should be followed strictly.
What constitutes offence report has not been spelt out in the regulation, the same will have to be inferred from the circumstances of the case. From the records it is found that the licensing authority namely the Commissioner of Customs (Import & General) has been apprised of the matter by the DRI on 13.08/2014. This may be practically considered as the offence report. The show cause notice proposing revocation has been issued on 28.10.2014. The inquiry report which is mandated to be completed within ninety days from the date of the show cause notice has been filed only on 11.03.2015, very much beyond the ninety days time limit prescribed for the same.
The order of the lower authority issued without adhering to the time schedule liable to be set aside - revocation of license and forfeiture of security not justified - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1163
100% EOU - DTA sale of prawn seed - production and export of shrimp and processed shrimp - Notification 13/81-Customs - Notification 123/81-central Excise dated 02-06-1981 - whether the impugned prawn seed have been removed from the EOU into the DTA or whether they emanate from the Hatchery of M/s Magunta Exports which is not part of EOU and which has been taken on lease by the Assessee and if it falls within the former, what would be the manner and method of calculation of duty liability?
Held that: - the decision in the case of WATERBASE LTD. Versus COMMISSIONER OF CUS. & C. EX., GUNTUR [2005 (12) TMI 429 - CESTAT, BANGALORE] followed.
The allegations in the show cause show cause notice and the conclusions in the impugned order are without solid foundation, without evidence and premised on presumptions and assumptions. Deand of duty, confiscation of consignments and imposition of penalties set aside - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1123
Effect of withdrawal of Anti-Dumping Duty - Sodium Tripoly Phospate - import from China - based upon the Final Finding of the Designated Authority, notification No. 13/2012-Cus (ADD) dated 22.2.2012 rescinded the earlier notification No. 58/2011-CUs dated 8.7.2011 except as respects things done or omitted to be done before such rescission - Whether the exception clause of the notification is justified and the plea that the withdrawal of the Anti-Dumping duty would have been with retrospective effect is justified?
Held that: - It is only vide mid-term review that a conclusion contrary to the first Finding was arrived at and the Designated Authority has rightly observed that such conclusion would be applicable only prospectively. Such mid-term review for reviewing the changed circumstances was in terms of Rule 23 of the Anti Dumping Rules and making recommendations for withdrawing the duty. Based upon such mid term review, the Designated Authority could not have upset, its own Final Finding recorded in original investigation, in as much as having not put to challenge the same had attained finality. He has rightly observed that there is no provision under Rules empowering the Designated Authority to recommend discontinuation of Anti Dumping Duty with retrospective effect. In other words, Rule 14 enabling power of Designated authority to terminate the proceedings is not available for review proceedings in terms of Rule 23. No provisions of law found enabling the Designated Authority or empowering him to allow backdated relief in such circumstances - no justifiable reason to interfere in the Final order dated 10.2.2012 of the Designated Authority.
Appeal rejected - decided against Appellant.
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2016 (9) TMI 1122
Issuance of writ of mandamus to implement the order passed by the appellate authority - the appellate authority dismissed the appeal filed by the Department and allowed the petitioner's appeal and reduced the redemption fine for re-export from ₹ 2,10,000/- to ₹ 1,50,000/- and did not interfere with the personal penalty - order of appellate authority not implemented by the respondents - revision filed against the order - whether on not granting of order by the Revisional Authority would amount to stay of order passed in the appeal? - Held that: - the decision in the case of NVR Forgings v. Union of India [2016 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT] is relied upon where it was held that the Revisional Authority has no jurisdiction to entertain the Revision Petition, against an order passed by the Officer, who is in the same cadre. In any event, the order passed by the Appellate Authority, having been nearly one year back, this Court is of the view that one more opportunity can be granted to the Department to pursue the revisional remedy and if they are unable to obtain any orders, either interim or final, then, they have to comply with the Order-in-Appeal.
Writ petition disposed off - four weeks time granted to the respondent / Department from the date of receipt of the copy of this order, to obtain appropriate interim or final orders from the Revisional Authority, failing which, the orders passed by the Commissioner of Appeals, dated 29.10.2015, shall be implemented within a period of ten days from the date on which the thirty days' period expires - decided against petitioner.
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