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Customs - Case Laws
Showing 1 to 20 of 185 Records
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2017 (10) TMI 1645
Seeking leave to withdraw the petition with liberty to urge the grounds raised therein at the appropriate stage in the adjudication proceedings - HELD THAT:- Petition dismissed as withdrawn with liberty as prayed for.
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2017 (10) TMI 1610
Jurisdiction - SCN issued by DRI - Proper Officers to issue SCN or not - HELD THAT:- It may be mentioned that recently, the Hon'ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] has dealt with the identical issue where the notice was also issued by DRI.
The Hon'ble High Court of Delhi has considered the judgment in the case of M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 225 - DELHI HIGH COURT] which is stayed by the Hon'ble Supreme Court in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER]. Finally the Hon'ble High Court has granted liberty to the petitioner by observing that "petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of MangLi Impex Ltd.”
The matter is remanded to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon'ble Supreme Court decision in the case of Mangli Impex and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the status quo will be maintained - the appeals are allowed by way of remand.
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2017 (10) TMI 1608
Jurisdiction - power of DRI to issue SCN - section 28 of the Customs Act - HELD THAT:- By following the ratio laid down by the Hon’ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER] and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the status quo will be maintained.
Matter on remand.
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2017 (10) TMI 1607
Jurisdiction - power of DRI to issue SCN - section 28 of the Customs Act - HELD THAT:- By following the ratio laid down by the Hon’ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER] and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the status quo will be maintained.
Matter on remand.
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2017 (10) TMI 1579
Maintainability of application filed under Section 110(1B) of the Customs Act - HELD THAT:- Having regard to the scheme under Section 110(1B) of the Customs Act, 1962 in absence of any proceedings in court, the judicial magistrate will not be required for the purpose of certifying the inventory or performing any function mentioned in the said section.
SLP disposed off.
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2017 (10) TMI 1550
Smuggling - Betel Nuts of Nepali Origin - non-notified item - burden of prove - Confiscation - redemption fine - penalty - HELD THAT:- The appellant produced the purchase invoice No. 754 dated 6-11-2014 in support of ownership of the goods. The Lower Authorities observed that the goods were identified as "Split Betel Nuts" and the invoice indicates "Dry Betel Nuts".
The Betel Nuts is a non-notified item under Section 123 of the Customs Act, 1962. It is well-settled that burden of proof lies with the department to establish smuggled nature of goods - In the present case, the goods were seized from the Chhapra Railway Station. The appellant produced the purchase documents. No investigation was conducted.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1525
Jurisdiction - power of DRI/DGCEI officers to issue SCN - section 2(34) of the Customs Act, 1962 - HELD THAT:- The Hon’ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] has dealt with the identical issue where the notice was also issued by DRI. The Hon’ble High Court of Delhi has considered the judgment in the case of M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 225 - DELHI HIGH COURT] which is stayed by the Hon’ble Supreme Court reported in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER]. Finally the Hon’ble High Court has granted liberty to the petitioner by observing that petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangli Impex Ltd.
Matter remanded to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of Mangli Impex and then on merits of the case but by providing an opportunity to the assessee of being heard - appeal allowed by way of remand.
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2017 (10) TMI 1511
Grant of anticipatory bail - summons under Section 108 of the Customs Act - HELD THAT:- The applicant is only an employee of a firm, which was engaged for the purpose of customs clearance and transportation and change containers on behalf of M/s. Bhagyoday Enterprise of one Shri Dipak Thakor, Proprietor and Radhika Enterprise, Proprietor - Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to the powers of Investigating Agency to file an application before the competent court for his remand.
The present application is allowed by directing that in the event of arrest of the applicant herein, the applicant shall be released on bail on his furnishing a personal bond of ₹ 10,000/-, subject to following the conditions imposed.
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2017 (10) TMI 1505
Suspension of CHA License - SCN pending adjudication before the Customs Authority - Regulation 19 (1) of CBLR - HELD THAT:- The respondent has invoked Regulation 19(1). This Regulation commences with a non-obstante clause and states that, notwithstanding anyting contained in Regulation 18, the Commissioner Customs may, in appropriate cases, where, immediate action is necessary, suspend the licence of a customs broker, where, an enquiry against such agent is pending or contemplated. Thus, to invoke the power under Regulation 19(1), the Commissioner of Customs should be satisfied that, immediate action is necessary to suspend the customs broker licence, and such powerr is exercisable, where, an enquiry against the Agent (petitioner in this case) is pending or contemplated.
The enquiry should be conducted under the provisions of CBLR, and the respondent cannot fallback upon the show cause notice, which has been issued to the petitioner, under the Customs Act. This is more so, because, the licence has been granted, in terms of CBLR, and enquiry ought to have been commenced against the customs broker, for violation of the licence conditions, and for such other matters, as provided under the Regulations, and in particular, Regulation 18 - On a reading of the impugned order of suspension, it is seen that there is no enquiry, either pending, or contemplated against the petitioner, under the CBLR. Therefore, the power under Regulation 19 (1) of the CBLR could not have been invoked. Furthermore, there was no necessity to suspend the petitioner’s customs broker licence, as the consignment was detained on 01.04.2016.
The importer had requested the petitioner to amend the Bill of Entry, by adding invoice No.YF2-2016, dated 15.03.2016, and changing the description of the goods, quantity and value, as per the second invoice, and such a request was made on 04.04.2016. There is no immediate necessity for suspending the licence issued to the petitioner - in the absence of contemplation of enquiry, or pending enquiry, suspension order cannot be passed by invoking the power vested with the Commissioner under Regulation 19(1) of CBLR.
The order of suspension shall remain stayed till the adjudication of the show cause notice issued under the Regulation 20 (1) of the CBLR - By virtue of this order, the petitioner would be entitled to carry on their activities as a licensed customs broker.
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2017 (10) TMI 1480
Period of limitation for filing refund claim of SAD - Notification No.102/2007 Cus - it was contended that sale of the exempted goods is thus a precondition and until that is complied, refund cannot be obtained.
HELD THAT:- Leave granted.
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2017 (10) TMI 1454
Effect of N/N. 1/2013 Custom dated 21.01.2013 - prospective effect or retrospective effect? - import of gold - case of petitioner is that the customs duty at the prevailing rate of 4.12% in terms of N/N. 12/2012 Cus dated 17.03.2012 was already deposited, and the N/N. 1/2013 Customs dated 21.01.2013 cannot be applied retrospectively to the goods already cleared - HELD THAT:- There is no legal and valid ground for interference - The Special Leave Petition is dismissed.
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2017 (10) TMI 1452
Grant of refund - refund allowed subject to the condition that the assessee furnished a bank guarantee for half of the amount - HELD THAT:- Leave granted.
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2017 (10) TMI 1446
Penalty on CHA u/s 114 of CA - Smuggling - Red Sanders - violation of the provisions of Customs Broker Licensing Regulations, 2013 - whether the appellant was also in aid of abetting the stakeholders to attempt the smuggling of prohibited goods, namely Red Sanders? - Held that:- It is not the case of the appellant that he knew the exporter, from whom on getting the shipping bill, he was present at the time of initial stuffing of the containers and only in the presence of himself, the container were seized with proper declared goods from the exporter. When that being so, the appellant cannot claim knowledge that at the time of initial stuffing, only the declared goods were stuffed and subsequently only it might have been tampered. Since the appellant did not have any knowledge of the initial stuffing also, as he had stated that he had lent license only to the Litheesh of M/s. Flamingo, the said defence taken by the appellant in the reply to the show cause notice cannot be accepted.
In the case on hand because of the attitude on the part of the appellant in lending his CHA license to a third party for usage without knowing the actual importer and the goods to be imported, is a serious issue and for the said purpose, since the appellant was admittedly get only ₹ 1,000/- for each consignment, the appellant has not only misused the CHA license but also very recklessly and carelessly lend it to some unscrupulous perons for facilitating smuggling activities and therefore such act on the part of the appellant shall be viewed seriously.
Taking into account the said aspect of the issue, the imposition of penalty of a sum of ₹ 5 lakhs by invoking the provisions of the Customs Act, in the considered view of this Court, is not only justifiable but also acceptable as there was no excess imposition of penalty on the part of the revenue in this regard compared with the omission and commission of the appellant - the order-in-original as has been confirmed by the CESTAT through the impugned order is liable to be sustained and the substantial questions of law raised before this Court are to be answered in favour of the Revenue.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1437
Absolute confiscation - smuggling or not - seizure of Bullock and Cattle - redemption fine - penalty - Held that:- Nobody claimed the seized cattle. The circumstantial evidences would show that the driver of the vehicle fled away while the vehicle was being intercepted by the BSF. The driver of the vehicle had not given any statement on the procurement of the seized cattle. Thus, it is clearly evident that the said vehicle was carrying the cattle for attempted illegal illicit export to Bangladesh. Hence, the submission of the Ld. Counsel on this issue has no effect.
In the present case, it is seen that the driver of the vehicle ran away on seeing the BSF patrol party. It appears that the driver, the agent of the owner of the vehicle, had knowledge of the illegal transport of smuggled goods. So, confiscation of the vehicle is justified - Penalty not justified - appeal allowed in part.
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2017 (10) TMI 1427
Export of prohibited item - red sanders - confiscation - penalties - Held that:- Since, no certificates were furnished by the Wild Life Inspectors in respect of 6 Nos. of Memos, it cannot be said that all the goods covered under the shipping bills are red sanders, liable for confiscation - Further, the Detention Memos do not identify any method and procedure adopted by the Wild Life Department for arriving at the conclusion that the description of goods declared by the exporter is false or incorrect.
The fact is not under dispute that the Department did not examine any Wild Life Inspectors, even if, request was made by the appellant for cross-examination of those persons. Further, it is noted that the competent authority to examine the type of wood, would be the experts in the Forest Department. It is not clear as to why no reference or opinion was taken from them - Thus, the endorsement made in the Detention Memo by the Wild Life Inspectors cannot be considered in isolation, without any further substantiation, that the goods as per the courier shipping bills were in fact red sanders.
Regulation 4(2) of Courier Regulations, 2010 provides that the export goods shall bear a declaration from the sender or consigner regarding the contents of each of the packages and the total value thereof. Further, Regulation 6(2)(b) ibid mandates that no person shall, except with the permission of proper Officer, open any package of export goods, brought into the customs area, to be loaded on the flight - the courier agency has very limited role in checking of the consignments contained in the courier packages. Thus, it cannot be said that the appellant had the reason or occasion to inspect the contents of the package and accordingly, relied on the declaration made by the consigner for the purpose of preparation of the shipping bills. The department has not proved the fact with any substantial evidence that there was prior knowledge on the part of the appellants in respect of the allegations made against them - Therefore, as per settled principle of law, provisions of Section 114(i) ibid cannot be invoked, justifying imposition of penalties.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1425
Illegal import or not - import of Old Batter scrap from Nepal - violation of Section 7(1)(c) of Customs Act, 1962 and Notification No. 9/96-Cus., dated 22-1-1996 issued under Section 11 of Customs Act, 1962 or not - Held that:- There is no evidence on record to establish that the old battery scrap which was subject matter of the proceedings was brought into India from Nepal through either designated routes or undesignated routes. Therefore, there is no evidence on record to establish that there was any violation of said Notification No. 9/96-Cus. There is no evidence on record to know through which route the goods were brought for the simple reason that there was no evidence that they were brought from Nepal to India. Therefore, there is no evidence to establish that there was violation of Section 7(1)(c) of Customs Act, 1962 - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1411
Refund claim - erroneous assessment of the goods exported - Held that:- It can be noticed that the 1st Appellate Authority has relied upon the decision of the Tribunal to come to a conclusion which we find is the correct proposition of the law - the impugned order is correct and legal and does not require any interference - appeal dismissed.
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2017 (10) TMI 1378
Levy of Customs Duty on re-import - goods manufactured by Ordnance Factory was sent abroad for modification - Held that:- Record reveals that the goods manufactured by Ordnance Factory is excise duty-free in terms of Notification No. 62/95-CE dated 16.3.1995. Once such is the position of law, the re-importation notification should grant exemption to the re-imported goods - Order of the Authority below passed under misconception of law is liable to be set aside - Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1364
Review of order - import of used photocopiers - restricted item - case of Revenue is that proper remedy for the assessee is to carry the matter to the Supreme Court and that this review is nothing but a further appeal in disguise.
Held that:- There can be no dispute with the settled legal principle that a review petition cannot be permitted to masquerade as an appeal in disguise. In the normal circumstances, a judgment pronounced by the Court should be treated as final and departure from this norm would be justified only when grounds for review, in terms of Order 47 Rule 1 CPC, are specifically made out.
There was a manifest error in the order dismissing the appeal, as the issue raised therein was not even considered by this Court and the mistake committed by the CESTAT was just carried forward while dismissing the appeal - review petition allowed.
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2017 (10) TMI 1350
Misdeclaration of value and description of imported goods - Held that:- It is established that there was mis-declaration of the value of the goods which cannot be said to be inadvertent for no rebuttal made by appellant leading any cogent and credible evidence. Chartered Engineer’s technical details could not be challenged by appellant leading any evidence - appeal dismissed - decided against appellant.
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