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Customs - Case Laws
Showing 41 to 60 of 185 Records
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2017 (10) TMI 1200 - CESTAT AHMEDABAD
Classification of goods - import of old and used vessels for breaking purpose - restricted item - classifiable under CTH 89 08 or otherwise? - whether the Marine Gas Oil imported inside the fuel tanks of vessels which are imported for breaking is subject to ITC restrictions? - Held that: - the issue is no longer res integra and is squarely covered by the decision of this Tribunal in the case of A.G. Enterprise [2014 (8) TMI 44 - CESTAT AHMEDABAD], where it was held that as the imports under ITC(HS) 89.08 are free without any restrictions, therefore, such MGO/HSD contained in the vessels brought in for breaking up, cannot be held as liable for confiscation - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1199 - CESTAT NEW DELHI
Violation of import conditions - demand on the ground that the steel slabs under Target Plus licences were diverted in the open market by the Appellant and were not used for the intended purposes i.e. further manufacturing - Held that: - even though allegation of diversion of goods has been made against the Appellant, but no investigation has been made as to where the goods were cleared or who are the buyers. None of the evidence which can show the diversion of goods has been brought on record. Though the non maintenance of job work record and transfer of payment made by Appellant to M/s AEL back to M/s MIL has been alleged, but the charges of diversion of goods cannot be substantiated on this ground alone.
At the one hand, the allegation is made that the licence was sold by the Appellant and on the other hand, it has been alleged that the goods were diverted, which shows that the allegations against Appellant are themselves contradictory. No evidence has been adduced as to how the alleged diversion of imported goods took place and how the consideration for such alleged diversion was received - in absence of any evidence of diversion of imported goods or dispute regarding the identity of finished goods manufactured from such imported goods, the demand against the Appellant cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1198 - CESTAT NEW DELHI
Sale of liquor - Duty free shop - public notice no. 5/2006 - it was alleged that appellant have made sales of liquor from the stock of duty free imports in contravention of various conditions which are required to be adhered to by M/s. Alpha as a duty free shop. Such goods are to be considered as cleared from the bonded warehouse in contravention of the conditions in which goods were allowed to be stored in the bonded warehouse - section 72 (1)(a) of the Customs Act - confiscation - redemption fine - penalty.
Held that: - The decision of the Hon’ble High Court of Karnataka in the case of Flemingo Duty Free Shops Pvt. Ltd. [2009 (7) TMI 161 - HIGH COURT OF KARNATAKA AT BANGALORE], discussed by the Adjudicating Authority has settled the issue that duty free shops are to be considered as bonded warehouses within the meaning of section 28 of the Customs Act as it is distinguishable.
M/s. Alpha were issued customs bonded warehouse license and permitted to operate duty free shops in various areas of the IGI airport New Delhi. The customs department has thoroughly investigated into the facts of M/s. Alpha in terms of the bond executed for the PBWL as well as conditions for grant of permission of running the DFS, which has been made with the strict condition that import of goods such as liquor, tobacco etc. were allowed duty free only for the purpose of selling the same to international passengers. They were also required to maintain detailed documentation by which the customs authorities could verify and ascertain whether the strict conditions prescribed for DFS / PBWL have been complied by M/s. Alpha. The scrutiny of the documents relating to DFS and PBWL have revealed that the appellant have completely disregarded the conditions under which licenses were granted to them. Bills were found to have been issued without mentioning required details like name, passport number, flight number, etc. of the passenger to whom liquor has been sold. The scrutiny has further revealed that the employees of the appellant have fraudulently recorded false details pertaining to the passenger to whom liquor has been sold. Fake passport numbers and wrong names were found to have been routinely recorded. Many of the passport numbers, upon verification with regional passport office, were found to be bogus. The names of passengers recorded were found to have never travelled in international flights.
The statements recorded from various functionaries of M/s. Alpha have categorically established that such falsification of record was systematically carried out for diverting duty free imported liquor to domestic passengers in complete disregard of the conditions under which PBWL as well as DFS licenses were issued to M/s. Alpha. The well designed fraud committed against Revenue came to light only with the detailed investigations undertaken.
M/s. Alpha were granted PBWL as well as permission to operate DFS. The investigation has revealed that through the action of the employees of M/s. Alpha, liquor has been sold to unauthorised passengers in clear violation of the terms of the bond executed. The acts of the employees have been done in their official capacity and are binding on the employer who cannot escape the vicarious responsibility. The duty free imported liquor, which had been warehoused, was found to be removed in contravention of the warehousing bonds. Consequently, the customs duty is required to be paid in terms of section 72 (1)(a). The goods cleared are also liable for confiscation. But, since the goods were not seized by the department no redemption fine can be imposed. However, the appellant will be liable for levy of penalties. The various employees of M/s. Alpha are also liable for penalty u/s 117.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1197 - CESTAT CHANDIGARH
Confiscation of scrap - redemption fine - penalty - Held that: - The appellant have not challenged the fact of presence of prime HR sheets in the scrap. Neither have they felt aggrieved with the classification of the prime quality of sheets adopted by the lower authorities nor the higher valuation of the same. This leads to the inevitable fact that the prime sheets were sought to be imported in the guise of re-rollable scrap and there was mis-declaration, thus making the goods confiscable. As such, the confiscability of the goods in question is required to be upheld.
Redemption fine - penalty - Held that: - the appellant have contested the quantum of redemption fine on the ground that there was nothing to suggest that the said prime quality of sheets were sent by the foreign supplier was at their request. Appreciating the fact that no evidence stands placed by the Revenue to show that such presence of sheets was at the appellant's behest, redemption fine reduced to ₹ 35,000/- - Similarly, the penalty of ₹ 15,000/-, in the absence of any evidence to show the direct involvement of the appellant, is reduced to ₹ 7,500/-
Appeal allowed in part.
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2017 (10) TMI 1140 - PUNJAB AND HARYANA HIGH COURT
Principles of natural justice - opportunity of being heard - adjudication procedure - Held that: - A perusal of Section 122A of the Customs Act shows that an opportunity of hearing to a party in a proceeding is required to be given before passing the order. If sufficient cause is shown at any stage of the proceeding, the adjudicating authority may grant more time to the party for reasons to be recorded in writing. A proviso has also been inserted that adjournment shall not be granted more than three times to a party during the proceeding.
Admittedly, in the present case, the petitioner had purchased the above mentioned goods from M/s Sanex International PTE Ltd. & Sunagro PTE., Singapore at Container Freight Station, Dhandari Kalan, Ludhiana, which were cleared provisionally. However, the assessment had been finalised against the petitioner, without affording an opportunity of personal hearing and issuance of show cause notice under Section 28 of the Act - No opportunity of hearing was given to the petitioner.
Neither any show cause notice under the provisions of the Act was issued nor any opportunity of hearing was given to the petitioner before passing the impugned order, resulting in violation of principles of natural justice - similar issue decided in the case of R.V. General Trading Vs. Union of India [2016 (9) TMI 673 - PUNJAB & HARYANA HIGH COURT], wherein in the absence of affording an appropriate opportunity of hearing, the impugned order was set aside and the matter was remitted back to the competent authority for fresh consideration.
The action of the respondents in not providing an opportunity of hearing or issuance of any show cause notice to the petitioner before passing the impugned order cannot be held to be justified - the matter is remanded to the competent authority for passing fresh order - petition allowed by way of remand.
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2017 (10) TMI 1139 - CESTAT MUMBAI
Duty Exemption Pass Book (DEPB) Scheme - it came to light of Revenue that the documents filed before Jt. DGFT to obtain the DEPB scrips were fake including the BRC bearing No. 0305023 dated 16.07.1998 claimed to have been issued by Union Bank of India, Bandra, Mumbai - Held that: - Impugned DEPB scrips were obtained by appellant fraudulently from Jt. DGFT and that was sold by him. He was actively and consciously involved in defrauding revenue for which interest of Customs was prejudiced. Appellant was not at all a stranger to the commission of the offence alleged by investigation. Having pre-determined mind to deceive the exchequor, he perpetuated fraud against Revenue. Accordingly, he was liable to the penal consequence provided under section 112(a) of the Customs Act, 1962 - if circumstances establish that there is high degree of probability that a prudent man ought to act on the supposition that there was design to obtain DEPB scrips without any export and such scrips sold for duty free import in contravention of the law or abetting to achieve such ill object, such act against public Revenue calls for penal consequence to curb such mischief.
Penal provisions are enacted to suppress the evils of defrauding Revenue which is an anti-social activity adversely affecting the public revenue, earning of foreign exchange, economic and financial stability of the economy. Therefore such provisions are construed in a manner to suppress the mischief and to promote the object of the statute, preventing evasion, foiling artful circumvention thereof. Thus construed, the term fraud within the meaning of these penal provisions is wide enough to take into its fold any one or series of acts committed.
Appellant fails to succeed in his appeal having acted malafide causing detriment to the interest of public revenue. Ill will of appellant came to record. Pre-ponderance of probability was in favour of Revenue and lent credence to its case.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1138 - CESTAT NEW DELHI
Provisional release of seized goods - Section 110A of the Customs Act, 1962 - case of the revenue is that as Swatch Group (India) Pvt. Ltd, the importer has cleared the watches by declaring RSP which is less than the RSP at which the appellants are selling the watches, therefore, M/s Swatch Group (India) Pvt. Ltd has misdeclared the value of the impugned goods - Whether in the facts and circumstances in the case, the goods can be released to the appellant being owner of the goods or not? - Held that: - From the documents produced, it is clear that the appellant is the owner of the impugned goods - the goods are required to be released to the owner of the goods - decided in favor of appellant.
Whether conditions imposed for provisional release are harsh to the appellant, if so, what should be the conditions for provisional release? - Held that: - in case of Kuber Casting (P) Ltd. V/s Union of India [2013 (9) TMI 784 - PUNJAB & HARYANA HIGH COURT] the Hon’ble High Court after examining the issue held that the bank guarantee of 30 per cent of the value of the goods seized is harsh condition to the appellant and thereafter the Hon’ble High Court direct to pay the differential duty and on payment of the differential duty, the Adjudicating Authority was directed to release the goods to the appellant - the appellant directed to pay the differential duty of ₹ 21,78,906/- on the seized goods for release of the goods provisionally.
Appeal allowed in part.
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2017 (10) TMI 1137 - CESTAT NEW DELHI
Penalty on CHA - Regulation 18 read with Regulation 20 & 22 of CABLR 2013 read with Regulation 20(1) read with Regulation 22 of CHALR 2014 - illegal export of granite slabs - no proceedings were initiated for revocation of CHA License - Held that: - In the case of Vikrant Gogia Vs. CC Delhi [2016 (11) TMI 1468 - CESTAT NEW DELHI] also the penalty was dropped against the customs broker in a situation where the customs authorities held that the revocation of the CHA license as proposed by the Revenue is not warranted - Admittedly in this case also, the Ld. Commissioner has held that the revocation of customs broker license is not warranted.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1136 - CESTAT NEW DELHI
Rectification of mistake - case of applicant is that the submissions were neither mentioned nor discussed in the impugned order - Held that: - the Hon’ble Supreme Court in the case of CIT vs. K. M. Thapar [1989 (2) TMI 5 - SUPREME Court], observed that only cumulative effect of the arguments will have to be mentioned in the order. It is not necessary to repeat each and every word of the arguments and case law. If some incidental facts were not mentioned, then rectification is not permissible.
The impugned order has been passed on merit after hearing both parties and we find no infirmity in it. There is no apparent mistake in the impugned order. Thus, RoA has not merit and the same is dismissed.
RoA application dismissed.
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2017 (10) TMI 1135 - CESTAT NEW DELHI
Penalty - import of mobile phones - restricted item or not - conspiracy to import goods - front/ bogus firms - Held that: - The investigation carried out at DRI established that Shri Preet Mohinder Singh along with Shri Mukesh Arora and Shri Ankur Gupta have conspired in misusing IEC code number of Shri Anil Kumar, Proprietor of M/s. Samay International for a monetary consideration of ₹ 15000/- to ₹ 20,000/- per month. Shri Preet Mohinder Singh along with others ordered importation of mobile phones. Investigation has further established that the goods have been mis-declared in terms of description as well as value - Shri Preet Mohinder Singh has played a vital role in illegal import of mobile phone using the IEC code number of M/s. Samay International.
Penalty imposed on Shri Preet Mohinder Singh upheld - appeal dismissed - decided against appellant.
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2017 (10) TMI 1134 - CESTAT CHENNAI
Valuation - enhancement of declared value - fax message seized from residential premises of Shri MKPP - Held that: - the show-cause notice admitting to compare the incomparable imports from different suppliers, from different countries and where there is an apparent difference in description of the imported product. In such a scenario, the attempt of the department to enhance the import values of all the consignments based on the fax message recovered from Shri BMS relating to B/E No.304848, dated 07.12.2000 is legally not justified - enhancement of value does not sustain.
Penalties - Held that: - penalty u/s 114(a) of the CA, 1962 can be imposed only in respect of the differential liability determined in respect of B/E No.304848 - it would in the interest of justice to reduce the penalty imposed under section 112(a) ibid of Shri MKPP reduced to ₹ 10,000/-.
Appeal allowed in part.
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2017 (10) TMI 1075 - CESTAT MUMBAI
Misdeclaration of import - Imports were made by M/s. Chanakya Impex as a pretended high seas buyer of the goods while bills of lading were in the name of M/s Sun Impex, M/s Kanakratna Steel and M/s Reliance Stainless Steel - it was also alleged that M/s. Chanakya Impex was using its advance licence to unduly benefit the present appellants without payment of duty and to channelizing such imported goods to them ultimately.
Held that: - In the garb of high seas sellers of imported goods, the appellants M/s. Sun Impex, Kanakratna Steels and Reliance Stainless Steel, they used M/s. Chanakya Impex, and became beneficiary of fraud of use of advance licence of M/s. Chanakya Impex to clear their imports. They all had arrangement to transport the imported goods to their destination and M/s. Chanakya Impex had also pecuniary interest in the fraud. The appellants being facilitators and perpetuators of the fraud were abettors of the breach of law.
Appellants have no defence at all to refute any of the allegations of Revenue in their grounds of appeal while Revenue proved its call on all counts with cogent and credible evidence.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1074 - CESTAT MUMBAI
ADD - classification to attract levy - Appellant's grievance is that the goods imported by appellant declared as Styrene Butadience Co Polymer was classified under CTH 40021100 and such goods were provisionally cleared - Revenue's only grievance today is that antidumping duty having been imposed in terms of N/N. 100/04-Cus dated 26.09.2004, in consequence of the Sunset Review by the designated authority, in terms of his final findings dated 2nd June, 1999, antidumping duty was levied on the above said goods.
Held that: - There is no whisper of any reason in the show-cause notice to disturb the classification claimed by the appellant. Therefore, the classification of the imported declared by the appellant under CTH 40021100 remained untouched by this order. Anti-dumping notification indicates that the goods falling under customs heading Nos. 3903 and 4002 of the first schedule to the Customs Tariff Act, 1975 were subject to levy of anti-dumping duty. Accordingly, levy was confined to the goods of heading 4002.19 since anti dumping investigation was confined to the goods covered by heading 4002.19. Therefore there cannot be any mis-conception about the product under consideration.
Revenue's submission that the appellant did not plead as above before the learned adjudicating authority is untenable as a litigant can raise question of law at any stage of proceeding till conclusion thereof.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1073 - CESTAT NEW DELHI
Refund of excess CVD paid - rejection on the ground that the appellant has not challenged the assessment of the bill of entry - Held that: - the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27 - appellant is entitled for the refund claim - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1072 - CESTAT KOLKATA
Benefit of N/N. 158/95-Cus - the appellants failed to re-export the re-imported goods - Held that: - in the N/N. 158/95-Cus stringent conditions have been laid down as safeguards to prevent misuse of facility of re-export of re-imported goods two conditions have to be complied at the time of re-import and other two conditions (No. 2 and 3) have to be complied at the time of re-export. Hence, the question of compliance with the conditions of the aforesaid notification needs to be examined in that context.
Non-declaration of consignment as re-export consignment - Held that: - on the shipping documents there is no such declaration. The document that has been presented by the appellant in their support is the examination order of the bill of entry 3736870 dt. 08.06.2011 under which goods were re-imported. But documents for export do not declare re-export after re-import. Admittedly, such a declaration would have engendered examination to be done in presence of the Dy./Asstt. Commissioner. Hence, the finding of the Ld. Commissioner that shipping bill did not have any declaration regarding re-export of re-imported goods is also correct.
Examination of goods in the presence of proper officer - Held that: - Examination of such a consignment done in the presence of officer of lower rank not only defeats the purpose of this notification but also renders the requirement of satisfaction of Assistant Commissioner as regards identity of re-export goods as redundant. It is clear that the examination at the higher level has been mandated by the notification to thwart the misuse of the notification and non-compliance with the same is bound to result in denial of the benefit of the notification.
The condition No. 3 is a mandatory condition of the N/N. 158/95-Cus dt. 14.11.1995 and hence its non-observance is fatal to the appellants plea, particularly in the accentuating circumstances of this case when there was no escorting of the goods by the Preventive Officer from the factory to CFS, and when the declaration about re-export after re-import was not made by the appellants.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1071 - CESTAT CHENNAI
Valuation - rejection of declared value - The value was enhanced on the ground that appellant had declared different prices for the goods having the same description - Held that: - we do not find any cogent ground for rejecting the transaction value. The only doubt raised by department is that for same description of goods different prices have been declared. This has been explained by the appellant by giving technical write up and analysis report, Moreover, the declared value of subsequent imports having been accepted by department, we find no grounds to uphold the rejection of transaction value and enhancement - the enhancement is unjustified - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1070 - CESTAT CHENNAI
Refund of SAD - N/N. 102/2007-Cus. dated 14.09.2007 - denial on the ground that the VAT/Sales Tax applicable on the products so sold by the assessee was nil/zero and as such it cannot be said the appropriate tax was paid on the subsequent sale so as to entitle the appellants for refund of SAD - Held that: - the appellants would be entitled to the refund of SAD paid at the time of import of the goods, on their subsequent sale, even if the vat or sales tax rate was ‘NIL’ - reliance placed in the appellant's own case M/s. Kubota Agriculturall Machinery India Pvt. Ltd. And M/s. Acer India Pvt. Ltd. Versus Commissioner of Customs, Chennai-IV [2017 (6) TMI 565 - CESTAT CHENNAI] - Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1069 - CESTAT CHENNAI
Refund of SAD - N/N. 102/2007-Cus. dt. 14.09.2007 - denial on the ground that since they have claimed Sales Tax/VAT exemption notification for sale of goods in U.P. State, condition No.2 (d) of the notification is not fulfilled - Held that: - for the purposes of Condition No.2 (d) of the N/N. 102/2007 Sales Tax has been paid at appropriate rate for the purpose of condition No.2 (d) and Nil rate of Sales Tax/ VAT, CST is to be considered as appropriate duty - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 991 - DELHI HIGH COURT
Maintainability of appeal - Benefit of N/N. 40/2006-CUS - Held that: - this High Court do not have jurisdiction to entertain and adjudicate the present appeal. The question raised in the present appeal amongst other things relates to determination of a question relating to the rate of duty of customs and whether or not duty of customs was leviable in view of the exemption N/N. 40/2006 - reliance placed in the case of Commissioner of Service Tax Versus Ernst & Young Pvt. Ltd. And Others [2014 (2) TMI 1133 - DELHI HIGH COURT], where it was held that Determination of any question relating to rate of tax would necessarily directly and proximately involve the question, whether activity falls within the charging Section and service tax is leviable on the said activity. The said determination is integral and an important injunct to the question of rate of tax.
In the context of Sections 130 and 130E of the Customs Act, 1962, it has to be held that the present appeal is not maintainable before this High Court as one of the issues amongst other things which is required to be determined and decided has a relation to the rate of duty of customs - appeal dismissed being not maintainable.
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2017 (10) TMI 990 - MADRAS HIGH COURT
Maintainability of petition - Principles of Natural Justice - gist of the allegation against the petitioners is that they have diverted the goods bonded in their private bonded private warehouses without payment of duty - whether the case on hand is one where there has been violation of principles of natural justice or whether the petitioners were afforded reasonable opportunity to put forth their defence? - Held that: - The facts clearly demonstrate that the Department had afforded sufficient and more than adequate opportunity to the petitioners. The conduct of Mr.Saraf clearly would show that he had been avoiding the proceedings. Prima facie it appears that but for the arrest and detention by CBI, he would not have cooperated with the department in giving the statements under Section 108 of the Act. Thereafter, he has failed to cooperate in the adjudication process.
The charge being diversion of bonded goods without payment of appropriate customs duty. The charge is a serious charge and if the petitioners were totally innocent and if they had not committed any violation, they ought not to have avoided the adjudication. Thus, the facts clearly show that the petitioners failed to avail the opportunity granted to them. Therefore, the plea that the petitioners did not have adequate opportunity is a plea to be rejected.
Petition dismissed being not maintainable.
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