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Customs - Case Laws
Showing 61 to 80 of 185 Records
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2017 (10) TMI 989 - DELHI HIGH COURT
Jurisdiction - power of DRI to issue SCN - Held that: - Considering that the question of law raised is yet to be decided by the Supreme Court in the appeals filed against the judgment of this Court in Mangali Impex Ltd. [2016 (5) TMI 225 - DELHI HIGH COURT], which has been stayed by the Supreme Court, the Court is not in a position to entertain the present petition and grant any of the reliefs as prayed for - petition dismissed.
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2017 (10) TMI 988 - KARNATAKA HIGH COURT
Principles of Natural Justice - only ground for assailing the said order before this Court under Article 226 of the Constitution of India is, the breach of principles of natural justice by the Respondent, a Quasi Judicial Authority - Held that: - this Court is satisfied that the principles of natural justice have not been followed in the present case and Respondent Authority appears to have passed the said order in a hot haste without giving a reasonable and breathing time to the petitioner Company for taking its defence before the said Authority and verify the relevant evidence produced by them. The said order, therefore, cannot be sustained and deserves to be set aside.
The Quasi Judicial Revenue Authorities while assigned the job of collection of Revenue in accordance with law need not act in a rash manner and throw the principles of natural justice to winds like it has been done in the present case and this Court does not find any justification for fixing three consecutive dates for personal hearing on 06/10/2015, 07/10/2015 and 08/10/2015 and then closing the opportunity for the petitioner Company to defend its case and passing an ex- parte order. The ends of justice cannot be met merely because an order raising a demand of tax or duty is passed by the Authority concerned but such orders also have to show that not only the adequate opportunity has been given to the assessee concerned but also there has been due and reasonable application of mind on the part of the Authority concerned before raising such demand.
Petition allowed with costs - matter on remand.
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2017 (10) TMI 987 - MADRAS HIGH COURT
Provisional assessment of goods - furnishing of Bond and Bank Guarantee - Held that: - Mere pendency of an appeal before the Appellate forum will not amount to stay of the order passed by the lower forum/authority. In the instant case, the valuation of the identical goods passed by the Commissioner of Customs (Appeals) is binding on the third respondent - the third respondent cannot mechanically insist upon the production of bond and Bank guarantee without referring to the earlier decision passed by the Commissioner of Customs (Appeals), which is in favor of the petitioner - petition allowed.
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2017 (10) TMI 986 - CESTAT BANGALORE
Refund of duty paid - Section 26A of the Customs Act, 1962 - misdeclaration of goods - import of hazardous waste in the guise of Light Melting Scrap (LMS) - Held that: - the impugned goods were not cleared by the Customs for home consumption whereas the provisions of Section 26A would apply only in cases where the goods have been cleared for home consumption and later, such goods are identified to the satisfaction of the Deputy Commissioner/ Additional Commissioner as imported goods are exported as specified in Clause (a) to (c) of Section 26A - the application of the appellant for refund is within the limitation period and since the goods were not cleared for home consumption, the Doctrine of Unjust Enrichment is not attracted - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 985 - CESTAT ALLAHABAD
Smuggling - gold - confiscation - redemption fine - penalty - Held that: - the genuineness of the appellant is doubted and the goods were rightly seized - carrying the gold in temple is doubtful, therefore, it is a case of smuggling of gold by the appellant from Nepal to India - confiscation upheld.
Cross-examination of witnesses - Held that: - in the case of Surjeet Singh Chhabra Vs. Union of India [1996 (10) TMI 106 - SUPREME COURT OF INDIA], the Hon'ble Apex court has held that when the goods have been recovered in the custody of the appellant itself during the course of investigation, in that circumstances by providing cross-examination of the witnesses is of no help - Admittedly, the goods in question has been recovered from the personal custody of the appellant. Therefore, there is no requirement to give cross-examination to the appellant of the panch witnesses.
The value of gold is ₹ 6,26,258/- and redemption fine and penalties are imposed of ₹ 1 lakh each which are highly excessive, therefore, the redemption fine and penalty are reduced to Rs,50,000/- each.
Appeal allowed in part.
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2017 (10) TMI 984 - CESTAT MUMBAI
Clearance of finished goods without filing bills of entry - case of Revenue is that Customs was in dark. It had no scope to know whether the boat cleared was war ship falling under CTH 8906 manufactured by appellant - Held that: - There is no dispute that the raw materials were sent to the ware house of the appellant under in-bond bill of entry for use in manufacture.
Dispute on classification was raised by Revenue contending that the boat manufactured by appellant was of the nature dealt by CTH 8903. We do not understand why Maharashtra Police shall be investing huge public money for purchase of boat for pleasure without being used for the purpose of patrolling.
There was breach of law for not informing the excise authorities as to the manufacture carried out in ware-house and also there was breach of law made by appellant without filing ex-bond of bill of entry. Maharashtra Police having clarified that the boats were meant for the purpose of security and patrolling, no penalty is imposable on the appellant in the fitness of the circumstances of the case since warship was exempt from duty.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 983 - CESTAT ALLAHABAD
Smuggling - red sandal - Held that: - in this case only the truck driver has given inculpatory statement that on the instruction of the respondent, the Red Sandal was loaded in the truck but no other evidence is on record to implicate the respondent in the proceedings. Moreover, the person who found to be the owner of Red Sandal, penalty of ₹ 5,00,000/-, has been imposed, whereas on the respondent, the penalty was imposed to the tune of ₹ 50,00,000/- without any reason - appeal dismissed - decided against Revenue.
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2017 (10) TMI 921 - MADRAS HIGH COURT
Anti Dumping Duty - issuance of a writ of mandamus - N/N. 125/2010 - Populated Circuit Board Assemblies (PCBAs) - clearances from Flextronics Special Economic Zone (FSEZ Unit) into Domestic Tariff Area (DTA Unit) - effect of amendment to Notification No.125 of 2010, which was brought about, by Notification dated 15.01.2015, after a lapse of first Notification, i.e., with effect from 07.12.2014 - extension of duty upon initiation of sunset review under second proviso to Section 9A(5) of Customs Tariff Act, 1975.
Whether the Writ Petition is maintainable against a show cause notice? - Held that: - there can be no quarrel over the said proposition, but the Courts have carved out certain exceptions to this Ruling. In the considered view of this Court, the case on hand would fall within one such exceptions, in the light of the law being settled by the Hon'ble Supreme Court. Therefore, the first issue is answered in favor of the petitioner.
Whether the impugned show cause notice, insofar it relates to the levy of ADD based on the amendment Notification, which was issued after the lapse of principal Notification is valid and proper? - Held that: - the amendment Notification, dated 05.01.2015, having been issued after the lapse of principal Notification No.125 of 2010, dated 16.12.2010, the show cause notice is not sustainable - the demand of ADD during the period of review is not automatic, but, has to be imposed before the expiry of five years, which is life of the Notification, imposing ADD. As noticed above, the Notification imposing ADD, dated 16.12.2010 had lapsed on 07.12.2014. Therefore, the extension Notification, dated 05.01.2015, issued after the lapse of the said period is not sustainable, and no ADD can be demanded from the petitioner, based on such extension Notification.
The demand of ADD under the show cause notice dated 28.10.2015, for the period from 08.12.2014 to 26.04.2016, i.e. after the lapse of the Notification No.125 of 2010 is not sustainable.
Petition allowed.
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2017 (10) TMI 920 - PUNJAB AND HARYANA HIGH COURT
Validity of N/N. 3/2015-2020 dated 25.4.2016 - import of dogs - Chapter 01 of ITC (HS), 2012 – Schedule-1 (Import Policy) - dog imported to be a pet dog - Held that: - Since the case of the petitioner herself is that she does not want to import dog(s) for the commercial purpose and only requires to import the dog(s) as pet dog(s), therefore, I do not find any kind of restriction imposed in the impugned notification especially in view of Clause 7(i) of the notification .
Since, the import license of the petitioner is stated to have expired, therefore, the petitioner may, if so advised, apply for the import license for the pet dog(s), which shall be issued to the petitioner, in accordance with law.
Petition disposed off.
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2017 (10) TMI 919 - CESTAT CHENNAI
Classification of imported goods - Yeast Cell - whether the product declared as "Yeast Cell Wall" is in the nature of Autolysed Yeast which would merit classification as "Aytolysed Yeast" under CTH 2106 or whether the classification under CTH 2102 declared by the appellant is more appropriate? - Held that: - no contradictory evidence has been adduced by the department to show that the Yeast Cell Wall is autolysed and undergone change in any such autolysation - during the process of autolysis, the cells get destructed and the outer covering would also not remain integrated. Having made such an observation, we are not able to fathom how lower appellate authority finds that the impugned goods are autolysed yeast, in spite of his confusion.
Once it is evident that in the process of autolysation merely results in enzymatic digestion of the cell by enzymes and their destruction, the resultant degenerated cell per se would possibly merit classification as 'Autolysed Yeast' under CTH 2106. However, when the Yeast Cell Wall on its own does not get autolysed or undergoes any change, the same would only be classifiable as yeast under CTH 2102.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 866 - CESTAT CHANDIGARH
Valuation - re-rollable steel scraps - rejection of declared value - the bills of entry were assessed on enhanced value, on the basis of cotemporaneous value of steel scraps imported by the other importers - Section 17 (5) of the Customs Act, 1962 - Held that: - at no point of time the appellant have any occasion to lodge a protest. The bills of entry were filed and the same have been assessed and the appellant has paid the duty to avoid detention and demurrage charges. At no point of time, the appellant has accepted the enhanced value or have offered to the authorities below to enhance the value.
In this case the value of contemporaneous imports has been taken as a basis for enhancing the price. The transaction value has not been rejected under Section 14 of the Customs Act, read with Rule 3(2) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007. Also, no samples were drawn from the consignments and no laboratory reports of the contents of the said goods are available - reliance placed on the decision in the case of S.K. Dhawan vs. CC (Import) Mumbai [2016 (3) TMI 888 - CESTAT MUMBAI].
The transaction value cannot be rejected on the basis of contemporaneous value of steel scrap in the absence of the details of such cotemporaneous imports and relied by the authorities below without bringing the evidence of undervaluation - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 865 - CESTAT CHENNAI
Advance Authorisation Scheme - clubbing of advance licences and export obligation discharge in respect of some of the advance licences - main contention of appellant is that consequent to the approval granted by DGFT for clubbing of the advance licences and regularization of export obligation, the quantity of excess raw materials utilized will necessarily have to be calculated as the net excess quantity after clubbing of the advance authorizations-
Held that: - There is considerable merit in this ground of appeal put forth by the appellant, especially when viewed in the context of the letters of DGFT, conveying permission for clubbing of licences and regularization of export obligation. Only in the interest of expediting decision in this appeal, and only based on the request made by the departmental representatives themselves, was a request made by this Bench on 05.10.2016 to the concerned Commissioner for causing verification of these averments. Surely that did not involve any complicated procedural and protracted procedural impediments to cause ascertainment requested for. All that was required to confirm the veracity of copies of the letters submitted by the appellant as having been issued by the DGFT. In case, once the fact of the permission for clubbing of advance authorization and regularization of export obligation has been approved by the DGFT, it only remains to rework the net duty liability and interest thereon, and, to ascertain whether such liability worked out are in sync with that paid by the appellant and appropriated in the impugned order. Sadly, that has not happened.
Even at this stage, we find from the letter dt. 07.09.2017 that the Review Cell of Air Cargo Customs, Chennai has only transferred the responsibility to the Asst. Commissioner (DEEC) Group-7D of Chennai Seaport Customs. The end result is akin to the story of "Where Everybody Blames Somebody when Nobody did what Anybody could have done". We also note that even in the nine hearings that have happened in this appeal in the last one year, for reasons we are not aware, three different ARs have appeared on behalf of the department - This is certainly not in keeping with the mission of National Litigation Policy which aims to transform the Government into an efficiency and responsible litigant.
We are constrained to remand the matter to the original authority for de novo consideration - appeal allowed by way of remand.
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2017 (10) TMI 864 - DELHI HIGH COURT
Smuggling - opening of the “Sealed cover” - During this period, the Department of Revenue Intelligence (DRI) found some undeclared material, concealed behind cartons of papers in a consignment - whether, there was any obligation cast on the Petitioners to open the sealed cover immediately after 24th June, 2015, in view of the admitted position that no clean chit had been given to the Respondent on the said date, meaning thereby that he had not been exonerated? - Held that: - The undisputed position which emerges from the record is that the Respondent was initially placed under suspension on 4th October, 2013. His suspension was extended from time to time as per provisions of Rule 10 of the CCS (CCA) Rules. A DPC was convened on 17th June, 2015 on which date the case of the Respondent was kept in a sealed cover. It is also an undisputed fact that the Respondent’s suspension was revoked on 24th June, 2015 i.e. prior to the date when his juniors were promoted, vide order dated 30th June, 2015. The petitioner was neither under suspension, nor any kind of chargesheet had been issued to the Respondent on the date of promotion of his juniors.
It is an undisputed fact that, till date, the respondent has actually not been promoted. Another undisputed fact is that one of the circumstances mentioned in para 2 of the OM dated 14th September, 1992, has arisen on 24th October, 2016 by way of issuance of a chargesheet to him. Consequently, disciplinary proceedings against the respondent are underway. We find that there is a specific bar in the OM, which envisages that in such circumstances, where any of the situations mentioned in para 2 arises before the actual promotion of the government servant, he will not be promoted until he is completely exonerated of the charges against him. We are, thus, of the considered view that the claim of the respondent for opening the sealed cover or giving effect to the recommendations of the DPC is not at all sustainable.
The respondent, who was under the cloud even when his suspension was revoked, as the matter was pending consideration with the CVC, would stand rewarded, notwithstanding the fact that a chargesheet has been issued to him some time thereafter, for which he is admittedly facing a departmental inquiry. Neither the OMs dated 14th September, 1992 and 2nd November, 2012 nor the decisions of the Supreme Court, relied upon by the Respondent, supports his claim for opening of sealed cover at this stage.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 863 - CESTAT KOLKATA
Smuggling - Betel nuts - burden of proof - Held that: - It is well settled that the Betel Nuts are non-notified item and the onus lies with the department to establish the smuggled nature of goods - In the present case, the department had not discharged the burden of proof - In a recent decision, in the case of Maqsood Alam v. Commissioner of Customs, Lucknow [2015 (5) TMI 131 - CESTAT NEW DELHI], the Tribunal in identical situation allowed the appeal, and held that mere suspicion based on circumstances is not sufficient to sustain the allegation of smuggling.
In the present case, both the authorities below proceeded on the basis of visual examination. They have ignored the evidences. Hence, such order cannot be sustained in the eye of law - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 862 - BOMBAY HIGH COURT
Release of seized goods - certificate evidencing local procurement of goods - Held that: - It is not in dispute that the Deputy Commissioner has received the copies of Annexure I, II and III mentioned in the said letter - by way of further adinterim relief, we direct that Shri Rahul Yadav, the Deputy Commissioner of Customs or any appropriate Officer of the Customs to release articles/goods which are in godown but which are not part of the Annexure SM1. This exercise shall be completed by the first respondent within a period of one week from today.
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2017 (10) TMI 861 - MADRAS HIGH COURT
Release of detained goods - non-participation in the proceedings - Held that: - taking note of the letter of the third respondent dated 05.04.2017 and as the fourth respondent has not participated in the proceedings, whatever applies for the goods covered under the Bill of Entry No.7285334, dated 31.10.2016, will equally apply to the consignment covered in the Bill of Entry No.6885665, dated 27.09.2016 - there will be a direction to the third respondent to cause assessment and release the goods covered in the Bill of Entry No.6885665, dated 27.09.2016 and Bill of Entry No.7285334, dated 31.10.2016 - petition allowed.
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2017 (10) TMI 860 - MADRAS HIGH COURT
Confiscation - Gold/jewellery - foreign convertible currency - Held that: - It is not clear as to what is the stage of the Revision Petition filed by the Department and whether it has been taken on file etc. Since the Assistant Commissioner (Legal), Chennai has informed the petitioner that the outcome of the Revenue's appeal is shortly awaited by letter dated 23.01.2017. The present stage of the matter has not been placed before the Court by the Revenue - the respondent directed to release the gold/ jewellery for the purpose of re-export, subject to the petitioner complying with the condition imposed by the Commissioner (Appeals-I) - petition disposed off.
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2017 (10) TMI 859 - CESTAT CHENNAI
Entitlement of interest - delayed Refund of SAD - N/N. 102/2007-Cus. - section 27A - Held that: - the issue is squarely covered by the decision in the case of Principal Commissioner of Custom Versus Riso India Pvt. Ltd. [2015 (10) TMI 1099 - DELHI HIGH COURT], where it was held that Department was not justified in denying interest to Respondent on the delayed refund of SAD by resorting the para 4.3 of the CBEC’s Circular No.6/2008 - interest granted - appeal dismissed - decided against Revenue.
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2017 (10) TMI 858 - CESTAT BANGALORE
Conversion of shipping bills - free shipping bills to drawback shipping bills - rejection on the ground that the goods have left the country on the basis of free shipping bill without due examination by the customs officers as such, the provisions of Section 74 could not be availed by the appellant as there is no physical examination of the goods to identify them to be the same which were originally imported by them - Held that: - The import and export goods should be same for applying the provisions of Section 74. Such identity can no doubt established by physical examination and /or by documentary verification - admittedly, no physical examination could be carried out. However, the same cannot be the sole reason for refusal of the request of the appellant for considering the claim for converting the shipping bill and to consider their request for drawback under Section 74.
The Board in the circular dt. 23/09/2010, in fact, clarified that the Commissioner may allow all industry rate of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to drawback scheme shipping bill, in terms of the proviso to Rule 12(1)(a) of Drawback Rules, 1995.
The appellants imported certain items and cleared them on payment of duty. Later after 4 months, they exported the said items. We are dealing with engineering product of easily identifiable nature with documentary support - Tribunal while dealing with similar requests by the exporters held that the refusal of conversion of the free shipping bill to drawback shipping bill cannot be on the basis of non-examination of such export cargo - In Essar Oil Ltd. Vs. CC, kandla [2014 (5) TMI 635 - CESTAT AHMEDABAD], it was held that even though no samples could be drawn on the furnace oil exported, to establish the exact nature of the product, based on documentary evidences, the conversion of shipping bill into drawback shipping bill and processing of the claim can be done.
The conversion of shipping bill as sought for, allowed - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 830 - GUJARAT HIGH COURT
Anti-Dumping Duty - Soda Ash - sunset review - section 9A of the Custom Tariff Act, 1975 - time limitation - Held that: - the time was granted to the authorities to complete the proceedings from the statement of disclosure and it was expected the purpose was only within two months from the date of receipt of copy of the judgment. As record indicates, the authorities received this order somewhere on 30th March 2017 and pursuant thereto the hearing was fixed on 25th April 2017. Ultimately, the said proceedings had not culminated into any order and the original notification dated 3rd July 2012 was coming to an end on account of lapse of time on 2nd June 2017. Hence, the concerned affected parties like the petitioners mopped the authorities for seeking appropriate review, which is known as Sunset Review for continuing the Anti Dumping Duty on account o reasons mentioned threunder, which request came to be accepted with effect from resultant order dated 16th June 2017.
There is a rival contention on account of the observations of paragraph D as well as in para 7 by both the sides that the said notification of initiation of Sunset Review was after recording a satisfaction which would render the Mid Term Review or OTS infructuous whereas the counsel for the respondent relying upon para 17 contended that the same was specifically made subject to the result of the MTR which was in fact an undertaking and which could not be completed on account of pendency of the litigation before this Court.
The Notification of 3rd July 2012 got extended up to 2nd July 2018 or till it is revoked by another order or notification. It is requierd to be noted at this stage that this notification is issued by the Governmetn of India, which is the competent authority and not respondent no.2 who has no power to issue any such extension notification.
There being an order available with the authorities and despite there being a time limit existed in it and if the proceedings are not completed within the time limit then the authorities after having recording Sunset Review then a question arises as to how the authorities are justified in simultaneously proceeding with both the review. In our view, the same was not permissible and it deals a serious blow to its competence to undertake and continue with Mid Term Review without there being any clear mandate from the court after the time granted by the Court had elapsed.
No prejudice is likely to be caused to the respondents in case if the status quo as on date is ordered to be continued under which the Union of India is restrained from acting upon the order dated 22.7.2017 under which the final findings have been rendered and Sunset Review is annulled.
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