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Customs - Case Laws
Showing 81 to 100 of 181 Records
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2016 (9) TMI 777
Denial of benefit of duty free import - saffron - duty free import authorisation - Assorted Confectionery and Biscuits - proceedings from the Court's judgment and order, copy of which is Annexure-M dated 15th February, 2016, are pending in the Hon'ble Supreme Court of India - cross-examination of such officials of the department who have endorsed the bills of entry at the relevant time.
Held that: - no opinion expressed on the rival contentions nor on the respective stands taken by the parties. writ petition disposed off on this aspect alone - no opinion expressed on the rival contentions about the principle of law.
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2016 (9) TMI 776
Cancellation of DEPB license - Section 9(4) of the 1992 Act - imposition of penalty under Section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992 - export of consigmnent of hand tools - Bank Certificate of Export Realization - licence as defined in Section 2 (g) - issue, suspension and cancellation of licence - Section 9 - Chapter 7 of the Export and Import Policy, 1997-2002 - Notification No. 1(RE-99)/1997-2202 dated 31-3-2000 - validity of DEPB licence - Held that: - the DEPB shall be valid for a period of 12 months from the date of issue. The DEPB was issued on 25.8.2000. Thus, it remained valid only till 24.8.2001. The show cause notice for imposition of penalty u/s 11(2) of the 1992 Act was issued on 20.10.2003. Thereafter another show cause notice- cum-corrigendum was issued on 5.7.2004 proposing to cancel the DEPB ab initio. It was thereafter that the order dated 30.11.2004 was passed cancelling the DEPB imposing penalty of ₹ 2,00,000/- on the petitioner. All these actions are after the expiry of the period of validity of the DEPB.
Once the period of validity of the DEPB has expired no action to cancel or withdraw it can be taken because then there is no ‘DEPB' in existence to be cancelled and on which the cancellation order can operate. Cancellation of DEPB in such a situation is a meaningless order and can have no consequence.
Section 9(4) enables the Director General or officer authorised by him to cancel or suspend the licence - in Section 9(4) there is no power to cancel or suspend the licence retrospectively.
The order of cancellation of the DEPB being illegal and without jurisdiction the penalty imposed being a consequence thereof also cannot sustain - petition allowed - decided in favor of petitioner.
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2016 (9) TMI 775
Valuation - Linkage between royalty paid for transfer of know-how and sale of capital goods - agreement for know-how licence and technical assistance agreement - sale and purchase agreement - holding-subsidiary relationship - is there any direct link between the two agreements linking the royalty paid to sale of capital goods? - Held that: - there is no direct link between the two agreements although both the agreements have executed on the same day. A perusal of both the agreements show that there is nothing to link the two agreements. Nowhere in the agreement it can be seen that there is any link between the two. Under these circumstances, it cannot be said that the sale and purchase agreement has been executed subject to the execution of know-how licence and technical assistance agreement. In these circumstances it cannot be said that the royalty paid for transfer of know-how is linked to the sale of capital goods.
The decision of the case Commissioner Of Customs Versus M/s. Essar Steel Ltd [2015 (4) TMI 486 - SUPREME COURT] would apply as the activities covered under the know-how agreement are of post importation activities.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 774
Recovery of duty foregone in DEPB licence - Cancellation of DEPB licence - DEPB licence obtained fraudulently against submitting fake/forged documents - denial of exemption provided by DEPB licence - goods cleared after verification of the DEPB licence - much after import of the goods the DRI started the investigation and found that all the DEPB licences purchased by the appellants were obtained by various persons fraudulently against submitting the fake/forged documents to the DGFT - is the demand of duty justified in the view that the licence was valid at the time of import and clearance of the goods? - Held that: - the appellants-importers cannot be made responsible for any fraud committed by some other person for obtaining the DEPB licence from DGFT. On this issue much water has flown. The Division Bench of this Tribunal consistently held that the duty cannot be demanded from the importer who is the bonafide buyer of the DEPB licence even though the licence obtained fraudulently by some other persons. Similar issue has been decided in any cases. The case of Sumit Wool Processors & Others Vs. Commissioner of Customs, Nhavasheva - [2015 (10) TMI 329 - CESTAT MUMBAI] can be referred.
The goods imported and cleared under DEPB licence much before the issue of show-cause notices, therefore at the time of import of the goods and clearance thereof, the DEPB licences were valid in the hands of the appellants-importers - the duty demand against the appellant not sustainable - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 773
Rejection of refund claim - SAD - ground of limitation - notification number 102/2007-CUS date 14.09.2007. The notification provides a period of one year for claiming the refund by treating the relevant date as date of payment of duty - provisional assessment - refund claim filed rejected on the ground that they should be filed after finalization of assessment - Held that: - Revenue cannot first refuse to accept the refund claim on the ground of provisional assessment and then to reject the same, when filed after finalization on the ground of limitation.
In respect of earlier bill of entries refund claim filed by appellant was rejected by the Revenue on the ground that it is to be filed after finalization of assessment. It is not clear as to whether any refund claim in respect of the present disputed bill of entries were also filed by the assessee during the provisional assessment or not - matter remanded to original authority for factual verification - appeal disposed off.
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2016 (9) TMI 726
Valuation - enhancement in assessable value - engineering information, drawing and design - post importation expenses or pre importation expenses - project imports - Project Import Regulations, 1986 - provisional assessment - rule 4(1) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 read with Rule 9(1)(e) - rule 9(b)(iv) of the Rules - whether the declared value of imported goods necessarily has to be subject to enhancement merely on the ground that a contract with the overseas supplier incorporates a second and distinct transaction? - Held that: - rule 9 of the Rules does not confer a blanket mandate to add the value of elements of a contract merely because the supply of imported goods are covered in the same contract. The nature of each element of the contract that has a separate and distinct value, whether so segregated at the specific request of the importer or not, must be scrutinized for ascertainment as pre-importation component for addition to the assessable value.
The value of ‘engineering drawings’ is a post-importation cost. No evidence has been adduced to show that the provision of these ‘drawings’ is conditional to placing order for equipment or that it is a pre-importation cost - mere supply of drawings at a value in the same agreement does not, ipso facto, have the support of law resort to rule 9 - cost of drawings and engineering services not included in the assessable value.
Appeal of revenue dismissed - decided against Revenue.
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2016 (9) TMI 725
Refund of the amount paid as pre-deposit pending investigation along with interest - sanction of refund claim but credited to consumer welfare fund - import of branded Car, Ferrari 599-GTB - denial of benefit of Sr. No. 344(2) of the Notification No. 21/2012 dated 1/3/2002 - seizure of car - voluntary payment of customs duty with interest by subsequent buyer - later on demand of duty and interest set aside - is the refund amount rightly credited to the consumer welfare fund? - whether the provision of unjust enrichment is applicable or otherwise? - Held that: - In the Section 27 clause(b) provisions of unjust enrichment is not applicable in case where duty and interest, if any, paid on such duty on imports made by an individual for his personal use.
The issue raised by the appellant that though duty for which refund was sought for paid by the subsequent buyer of the car Shri. Sanjay Sunil Dutt, appellant is entitle for refund, we are of the view that irrespective whether duty was paid by a person other than the importer but in connection with the import made by the appellant, it has to be considered that duty was paid by the appellant only therefore only for the reason duty was paid by the Shri. Sanjay Sunil Dutt refund cannot be denied. It is also observed that appellant has not produced sufficient documents to establish whether the incidence of refund amount has not been passed on to any other person or otherwise. Therefore in the interest of justice one more opportunity can be given to the appellant to prove whether the incidence of duty for which the refund is sought for, has not been passed to any other person - matter remanded to original authority for limited purpose of verifying the factual aspect whether the incidence of duty has not been passed on to any other person or otherwise - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 724
Absolute confiscation under section 111(i), (j) and (m) of the Customs Act, 1962 - cut and polished diamonds and pendants - prohibited goods or not - Held that: - goods of commercial nature not allowed to be imported as part of passenger baggage. Also, the importer does not hold any Import Export Code - non-fulfillment of the restrictions imposed would bring the goods within the scope of prohibited goods. The decision of the case Molok Boloky [2004 (8) TMI 616 - CESTAT, NEW DELHI] is relied upon.
Whether appellant is entitled to the option to pay redemption fine in lieu of confiscation under section 125 of the Customs Act, 1962 or the absolute confiscation imposed on him is justified? - Held that: - The crime is of higher gravity - absolute confiscation justified. Similar issue decided in the number of cases, one such being the case of Mohd. Akhtar [2011 (9) TMI 968 - PATNA HIGH COURT].
Appeal dismissed - decided against appellant.
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2016 (9) TMI 723
Issuance of No Objection Certificate for the consignments for local consumption - rejection of consignments - date of manufacture/packing - absence of name and complete address of the manufacturer/packer - Held that: - an identical issue seen in the case of Kantilal N.Shah v. The Authorised Officer, FSSAI, Chennai, and others [2016 (9) TMI 661 - MADRAS HIGH COURT].
Petitioner to file an application before the Director of Imports, Food Safety and Standards Authority of India, New Delhi, seeking one time relaxation and the application shall contain all the details and supported by documentary proof.
Petition disposed off - decided in favor of petitioner.
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2016 (9) TMI 722
Cancellation of DEPB issued - withdrawal of benefits availed on the basis of DEPB - demand of customs duty and SAD - confiscation under section 111 of the Customs Act, 1962 - option to pay redemption fine of ₹ 1,00,000/- under section 125 of the Customs Act, 1962 - principle of "buyer be ware" - whether duty can be demanded from an importer who is not a party to fraud committed by an exporter ? - Held that: - similar issue decided in many cases one such being Commissioner of Customs, Amritsar v. Vallabh Design Products [2007 (4) TMI 274 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH], where it was held that the importer therein was not a party to the fraud and there was categoric finding that he had purchased DEPB from the open market in bonafide belief of its being genuine.
There is a specific finding recorded by the first appellate authority and even by the Tribunal that the appellant was not party to the fraud with the seller of DEPB. DEPB was found to be a genuine document, though obtained by seller by producing some forged documents, to which the appellant was not a party - duty not demanded from the buyer - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 675
Smuggling of gold - section 135(1)(a) of the Customs Act, 1962 - inspection of goods declared - silver bricks contained gold - statements made under Section 108 of Customs Act, 1962 - Whether sanction Ex.PW-1/B granted by the Commissioner of Customs was proved given that the sanctioning authority was not examined as a witness? - Held that:- the case of Directorate of Revenue Intelligence Vs. Mohd. Anwar [2010 (10) TMI 366 - DELHI HIGH COURT ] is relied upon. Even though the sanctioning authority has not been examined, it has been proved through the testimony of R.K.Duwan, Inspector, ICD, PW-1 that the sanction Ex.PW1/B had been duly accorded by the sanctioning authority.
Whether the retraction of the accused persons were placed before the sanctioning authority at the time of grant of sanction? - Held that: - whether the sanction was granted by the Commissioner of Customs after due application of mind was a matter of evidence and was not relevant at the stage of framing of the charge - contention of accused could not be accepted.
Whether a prima-facie case of commission of offence under Section 135(1)(a) of the Customs Act, 1962 was made out against A-2 to A-5? - Held that: - Section 135(1)(a) of the Customs Act, 1962 provides that any person ‘knowingly in any way concerned’ in the evasion of payment of duty would be liable under the section - the order discharging A-1 and A-2 has been set aside while upholding the same qua A-3 to A-5.
Petition dismissed - decided against petitioner.
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2016 (9) TMI 674
Validity of order of Settlement Commission – rejection of settlement application - Section 127B of the Customs Act – export of ferro silicon – goods of Indian origin – DEPB license obtained by the petitioner to avail benefit of free import of goods – some of the license sold for valuable consideration – later found that goods were of Bhutanese origin and are not entitled to DEPB benefit – demand of duty and imposition of penalty on petitioner for wrong availment of DEPB license – duty discharged by petitioner and approach to settlement commission for waiver of penalty – rejection of application by settlement commission on the ground that the petitioner has discharged the entire liability himself, on behalf of the importers also to who he sold DEPB license – Held that: - the ground on which the Settlement Commission rejected the application for settlement under Section 127B of the Customs Act, is not sustainable at law. The department is concerned with the recovery of the import duty which was not paid by the concerned importers on the strength of the DEPB licenses. Since it is now admitted that the petitioner was not entitled to the benefit of the DEPB licenses all that the department should look forward to is recovery of the amount of ₹ 3,12,60,465/-. Who pays the money should not matter to the department.
One cannot lose sight of the fact that the importers purchased the DEPB license from the petitioner for valuable consideration. Hence it is only fair that the petitioner pays the entire import duty – rejection of application by settlement commission not correct.
Matter remanded to settlement commission for fresh adjudication without going to the merits of the case – writ application disposed off – decided in favor of petitioner.
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2016 (9) TMI 673
Re-assessment of value of goods - re-calculation of duty - order passed under section 17 of the act or section 18 of the act - opportunity of being heard - Rule 12 of the Customs Valuations (Determination Value of Imported Goods) Rules 2007 - alternative remedy of appeal - Retail Sale Price - bill of entry - Held that: - the petitioner was not been afforded proper opportunity of hearing, the order dated 18.03.2016 for re-assessment of goods is set aside and the matter is remitted back to the competent authority for fresh consideration.
Perishable nature of goods - release of goods - provisional assessment of goods - Section 18 of the Act - Held that: - direction to the competent authority to provisionally assess the goods imported within a period of seven days and release the same to the petitioner on complying with the procedure required to be followed after provisional assessment. The final assessment under Section 17 B of the Act be framed thereafter, after granting an opportunity of hearing to the petitioner.
Petition disposed off - decided partly in favor of petitioner.
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2016 (9) TMI 672
Release of detained consignments - Section 110 of the Customs Act, 1962 - option to pay redemption fine along with duty and interest - Sections 28 and 125 of the Customs Act, 1962 - Coke Breeze - benefit of exemption notification No.12/2012, dated 17.03.2012 - exemption from payment of Basic Customs Duty - Metallurgical Coke - clearance of 69848.48 metric tons of goods by availing benefit of exemption notification - denial of exemption for clearance of balance 14801.52 metric tons of consignments and goods detained - whether for the release of 14801.52 metric tons of material lying in Port, the petitioner should be directed to pay the differential duty relating to the total consignment of about 84365 metric tons or whether the goods can be released upon payment of the proportionate differential duty representing the duty payable for the goods, of which release is now sought? - Held that: - though the object of the proceedings under Sections 28 and 125 of the Act are different from each other, they overlap. This is the reason why the Supreme Court held in Commissioner of Customs (Import), Mumbai Vs. Jagdish Cancer & Research Centre [2001 (8) TMI 113 - SUPREME COURT OF INDIA)] that the order for payment of duty under Section 125(2) would be an integral part of the proceedings relating to confiscation and consequential orders thereon.
All the goods, including those already cleared, were liable for confiscation under Section 111(m), and that since a major portion of the goods had already been cleared, it was not possible physically to confiscate or detain them. Since such a deeming fiction is created, even in respect of the goods already released, the expression such goods appearing in Section 125(2), has to be construed as referring to all the goods that were liable for confiscation, but which escaped confiscation for whatever reasons. Otherwise, the appeal filed by the petitioner before the CESTAT as against the order in original, will itself turn out to be an exercise confined only to the goods now detained.
The entire order in original is on appeal before the CESTAT. What the petitioner is now seeking in this writ petition is to order the release of the goods, by accepting a portion of the order, without prejudice to their rights in the appeal. If the petitioner had raised such a plea before the Tribunal, the Tribunal may probably take a holistic view of the entire matter. For the purpose of seeking an interim relief, an interpretation of the nature made by the petitioner cannot be accepted by the Court. - Writ Petition dismissed. It will be open to the petitioner to seek appropriate orders from the CESTAT. - decided against petitioner.
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2016 (9) TMI 671
Application to issue writ of mandamus - direction to the respondent to provide documents / informations, as requested for by the petitioner - SCN - Sections 28 and 124 of the Customs Act, 1962 - import of PVC Flex banners - import from Malaysia or from China - copies of documents - mahazars - Held that: - during the course of adjudication, if the petitioner's contention is that, certain documents recovered from the office premises of those three companies are relevant, it would always be open to the petitioner to raise such a plea before the Adjudicating Officer and that cannot be a reason to submit a proper reply to the show cause notice and participate in the adjudicating proceedings - at this stage, the petitioner cannot insist upon the documents, which they now seek for, which are admittedly not recovered from their business premises - the prayer sought for by the petitioner cannot be granted.
Petitioner is directed to submit their reply to the show cause notice, within a period of two weeks from the date of receipt of a copy of this order, after which the respondent shall fix the date of personal hearing and proceed to complete the adjudication, in accordance with law.
petition dismissed - decided against petitioner.
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2016 (9) TMI 670
Effective date of notification - Notification No.36/2001-Cus(NT) dated 03.08.2001 - notification issued for publication in the gazette on 03.08.2001 - gazette made available to public on 07.08.2001 - Circular No.46/2001 dated 10.08.2001 - import of edible oil including palmolein oil - bill of entry for home consumption was filed on 03.08.2001 - powers conferred to fix the tariff value - Section 14(2) of the Customs Act, 1962 - customs duty paid on invoice value 248 U.S. dollars - whether liablity to pay customs duty at the tariff value, fixed under Notification No.36/2001, of 372 U.S. dollars per metric tonne correct?
Held that: - the decision in the case Param Industries Ltd [2015 (6) TMI 732 - SUPREME COURT] is relied upon where it was held that Notification No.36/2001 came into force on or after 06.08.2001, the action of the respondents in applying the tariff value prescribed therein, for the earlier import of R.B.D. Palmolein oil on 03.08.2001, is illegal. Customs duty on R.B.D. Palmolein oil, imported on 03.08.2001, could only have been levied on its invoice value, and not on the tariff value prescribed subsequently in Notification No.36/2001 dated 03.08.2001.
The High Court has stated that for bringing the notification into force and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays - the notification will be effective only from 06.08.2001.
Petition disposed off - decided in favor of petitioner.
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2016 (9) TMI 669
validity of notifications - import of betel-nuts - notification dated 4/6/2008 issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce - Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 2.1 of the Foreign Trade Policy 2004-09 - Held that: - Merely for the reason that the DGFT also hold the post of Additional Secretary to Government of India does not mean that he cannot exercise the powers vested in him as per the Rules especially when he had issued the notification in accordance with the procedure prescribed after due approval of the concerned authority - when the notification has been issued clearly indicating that it is a notification under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 2.1 of the Foreign Trade Policy, 2004-09 and the power is exercised by the Central Government and when it is stated that the "Central Government hereby amends the Schedule-1" and the signature is made by the DGFT as Additional Secretary to Government of India as well, the learned Single Judge was not justified in forming an opinion that DGFT himself has issued the notification in terms of Section 5 of the Act.
Notification dated 20/2/2007 - notification dated 10/7/2007 - notification dated 29/8/2007 - restriction imposed for importing betel nuts from Mangalore Port - Held that: - these notifications have already been superseded by the notification dated 4/6/2008, which has later on underwent further amendments as well. Hence, there is no necessity to consider the validity of the notifications dated 20/2/2007, 10/7/2007 and 29/8/2007.
Matter remanded back for further consideration - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 661
Import of Olive Oil from Turkey – Compliance with the requirements of Food Safety and Standards (Packaging and Labelling) Regulations, 2011 – minor violation of the requirements to be complied with – can the relief granted to the petitioner on the ground that the consignment which they have imported largely satisfies the labelling requirements under the Regulation and they were ready to explain the minor discrepancies pointed out by the authorised officer? - Held that: - though the violations pointed out are minor, there appears to be several violations which though are stated to be minor if considered cumulatively may have to be interpreted as not in conformity with the labelling requirement. However, this observation should not be mistaken to state that the product is not a quality product nor it is unfit for human consumption.
Being conscious of the fact that Court is exercising jurisdiction under Article 226 of the Constitution of India, Court would not venture into disputed questions nor it would have expertise to find out as to whether what has been mentioned in Turkey language is in fact the name of the company or other details to verify the serial number, batch number etc.
The ingredients which are contained in the product should be disclosed in the label as required under the Regulations - these issues being technical matters have to be considered by the competent authority under the Food Safety and Standards Act, 2006.
Petitioner entitled to one time relaxation – petitioner to move to Director (Imports), Food Safety and Standards Authority of India, FDA Bhavan, Kotle Road, New Delhi 110 002 for one tie relaxation – opportunity of personal hearing to be granted to petitioner – decision to be taken within four weeks from the date on which the representation given as shelf life of product to expire in 2017 – petition disposed off – decided in favor of petitioner.
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2016 (9) TMI 622
Detention of goods - Heavy Melting Scrap - Re Rollable Steel Scrap - inspection by chartered engineer - the goods fall in the category of Seconds & Defective CRGO Silicon Steel Strips in Slit Coil Form and Seconds and Defective Cold Rolled Grain Oriented Steel Sheets/ Strips cut to different shapes and sizes - are all goods capable of being re-used? - Held that: - To take care of the apprehension expressed by the Department that the material can be re-used, the petitioner had offered its mutilation at his own cost before it is released. Even part of scrap also can be used as such or with some modification. The petitioner should be permitted to do that - the goods released on provisional basis. The Department shall be at liberty to issue show cause notice to the petitioner for any alleged violation of the provisions of the Customs Act. The petitioner will pay the duty on the material imported as scrap and further furnish surety and undertaking to pay the duty, penalty and interest, if any, as may be leviable on such goods, if these are found to be other than scraps - petition disposed off - decided partly in favor of petitioner.
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2016 (9) TMI 621
Confiscation of consignments - Section 111(o) of the Customs Act, 1962 - imposition of penalties - exemption notification No. 111/95-Cus., dated 5.6.1995 - a self contained code - sub-section (1) of Section 25 of the Customs Act, 1962 - sub-section (2A) of Section 25 of the Customs Act, 1962 - assets of the respondent-company were taken over by the financial institution and sold, is under challenge - closure of respondent's business - Held that: - the decision in the case Commissioner of Central Excise, Nagpur v. Vidarbha Veneer Industries Ltd. and others [2016 (8) TMI 707 - SUPREME COURT] is followed - appeal disposed off with liberty to the department to get the same revived, in case the respondent-company succeeds in challenge to the sale of assets and revives its business.
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