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Customs - Case Laws
Showing 81 to 100 of 185 Records
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2017 (10) TMI 817 - ALLAHABAD HIGH COURT
Grant of bail - Smuggling - heavy quantity of foreign origin cigarettes - declaration made as import of scrap and other goods - Held that: - Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as wall as totality of the facts and circumstances, at this stage without commenting on merits of the case, I do not find it a fit case for grant of bail to the two applicants - bail application rejected.
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2017 (10) TMI 816 - CESTAT BANGALORE
Smuggling - 24 numbers gold biscuits weighing 2.8 kgs - evidences on record like statements of all the persons, forensic data, the passport of all the individuals - confiscation of vehicle of Smt Fatimath Rubeena - Held that: - The appellant Smt. Fatimath Rubeena has not factually controverted the findings recorded by the adjudicating authority as there is corroboration of the fact that vehicle was to be used for transport of smuggled gold and was also used earlier - confiscation upheld.
Shri Abdul Basheer - the adjudicating authority recorded a finding on the role attributed to Shri Abdul Basheer in paragraph No. 84 and relied upon the independent statements of various persons to hold that this appellant had recruited individual into aiding in the smuggling of the gold and was waiting outside the airport to collect the smuggled goods. He has also recorded a finding that this appellant was helping to organize the smuggling of gold biscuits through Calicut International Airport using carriers - Held that: - As against such detailed findings, in my view there is no effective contradiction of the same by this appellant - impugned order upheld.
Shamsuddin K.A - confiscation - penalty - the appellant has tried to change the adjudicating authorities findings by stating that there was no verification of accounts maintained in appellant s shop before seizing the currency; ingredients required for confiscation of sale proceeds of smuggled goods - Held that: - there are no evidences to show that the Indian currency of ₹ 25,77,500/- is the sale proceeds of smuggled gold, in view of which, I hold that the absolute confiscation or confiscation of the Indian currency of ₹ 25,77,500/- is incorrect and not in accordance with law and needs to be set aside - In the absence of any evidence to indicate that the Indian currency of ₹ 25,77,500/- was sale proceeds of the smuggled gold, I find that the penalty imposed on this appellant is unwarranted and liable to be set aside and I do so.
Shri Ummer Abdulla - penalty u/s 112(a) and (b) of the CA - Held that: - I do not find any reason to interfere in such detailed findings recorded by the adjudicating authority which clearly brings out the role attributable to this appellant in the smuggling of gold, hence the penalties imposed on this appellant are upheld and the appeal is rejected.
Shri Althaf K.M - penalty u/s 112(a) and 114(AA) of the CA - Held that: - nothing is recorded in the mahazar; no evidence is brought on record linked appellant with any of the so called gold smuggling in fact members; appellant has not done any act or omission which was rendered the goods liable for confiscation under Customs Act. Hence penalty imposed on the appellant under Section 112(a) is incorrect as also under Section 114(AA) of the Customs Act, 1962 - further, It is also recorded that the appellant had not made any declaration about bringing gold to the Customs authorities when he arrived at Calicut Airport from Dubai and appellant himself has admitted in the statement recorded that the gold which he had handed over would have been transported out of the Airport without Customs clearance. In my view, the finding recorded by the adjudicating authority is correct and does not require any interference.
Shri Manoj P - penalty u/s 112(a) of the CA 1962 - Held that: - It is noticed that in the findings the adjudicating authority has brought on record that this appellant was recruited by Shri Abdul Basheer to aid smuggling of the gold and was paid consideration; the statement of Shri Althaf indicated that this appellant was handed over gold within the Airport premises. I do not find any reason to hold contrary to detailed findings recorded by the adjudicating authority to impose penalty on this appellant - penalty upheld.
Appeal allowed in part.
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2017 (10) TMI 815 - CESTAT AHMEDABAD
Confiscation - excess goods found during examination - misdeclaration - Held that: - the goods were examined during the period from 25.07.2007 to 07.08.2007, after de-stuffing and seggregation and independent panchas were present during this process of examination. Hence, the contention of the appellants that the importer was not represented during the examination is untenable - the contention of the appellants that there was excess of only 2.15 MT in the consignment is not tenable as the quantity of excess scrap was in respect of Copper Scrap, Copper Wire Scrap, Brass Scrap and Aluminium Scrap. Hence, the adjustment of such scrap against the heavy melting scrap found less would be illogical as the scraps are of different kinds with different values and rates of duty. The contention of the appellants that surveyor report should be accepted as evidence in absence of testing of goods are also not convincing.
In the present case, there is clear misdeclaration of quantity of distinctly different types of scrap having different values - Confiscation upheld - the quantum of redemption fine and penalty reduced.
Appeal allowed in part.
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2017 (10) TMI 814 - CESTAT MUMBAI
Rectification of mistake - mention of incorrect order number - Held that: - in para 3, the mention of order no. S/9-226/GATT/98 SVB dated 07.07.2000 is not by mistake whereas it was a reproduction of the finding given in page 7 of the Order-in-Original no. S/9-79/GATT/2001 GVC dated 22.02.2002 - Therefore the order no. mentioned in para 3 of this Tribunal order dated 28.11.2016 is not incorrect - ROM application not maintainable and is dismissed.
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2017 (10) TMI 813 - CESTAT BANGALORE
Classification of imported vehicle - misdeclaration - it was alleged that The car is a converted vehicle originally designed for transport of less than 8 persons but apparently converted to carry more than 13 persons - violations of Policy with reference to Motor Vehicles Regulations in India - confiscation - Held that: - when the proceedings for reassessment were initiated by a show-cause notice, the original authority is bound to decide on the correct valuation. It is not sustainable for him to delegate such work to further proper officer. The original adjudicating authority was in fact acting as proper officer for reassessment and there is no other proper officer for such work. In any case, redetermination of value was not proposed with reference to specific value and legal provision and with supporting evidence in the show-cause notice. Similarly reclassification, with reasons, was not proposed in the show-cause notice. Incidentally it is noted that para 20(iv) of the original order rejected the classification under CTH 8703 and ordered reclassification under CTH 8702. We note that in fact, the appellant in their Bill of Entry classified their product under CTH 8702 only. It would appear that the said finding of the original authority is, perhaps, an error. In any case, when there was no proposal with reasons in the notice, reclassification without such proposal is not sustainable. We also note that the appellant contended on the correctness of the classification. We are not going into the details as that will be beyond the scope of the proceedings.
Absolute Confiscation of imported car - section 125 of CA - Held that: - this imported car cannot be considered as a prohibited item. No evidence to such assertion has been provided by the lower authorities. Violations of certain conditions with reference to freely importable items cannot make the items as a prohibited item. Even in such a situation of holding the item as prohibited item, still Section 125 provides for option for redemption.
In the present case, the lower authorities allowed reexport of goods only, though no such prayer has been made by the importer. We find that the reliance placed by the appellant on the decision of the Tribunal in Subramanyam Iyyer Vs. CC [2002 (7) TMI 621 - CEGAT, BANGALORE], in similar set of facts are appropriate and applicable to the present case.
Considering the prayer of redemption, we find that the same can be redeemed for clearance on payment of fine of ₹ 20,000/- as fixed by the original authority. Regarding fixation of redemption fine, we note that the learned counsel for the appellant pleaded that the goods were in detention from March 2017 onwards increasing demurrage and cost. Factoring that, we hold that the said redemption fine is sufficient - penalty on importer upheld.
Appeal allowed in part.
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2017 (10) TMI 812 - CESTAT BANGALORE
Eligibility of the importer to clear the goods for home consumption as a trader - e-waste - import of used Multifunction Digital Photocopiers and Printers - violation of Foreign Trade (Development and Regulations) Act, 1992, Foreign Trade Policy 2015-2020 and Pollution Control Regulations applicable to e-waste - absolute confiscation - Held that: - the products under import are MFDs having use as digital multifunctional devices as intended. It is not clear as to how when the product imported in the form of whole machine and having certified functional life of 5/7 years, the same can be considered as waste. Even if the items imported require certain reconditioning, repair, it will not make the product as waste - It is specifically mentioned that the items imported are in full form and fit for use for printing A3 size papers and they are capable of being put to productive use and the machines were not in a damaged condition to such an extent which will compromise their functionaility. The residual life of these machines has been certified. In the face of these technical opinions and facts as recorded, the imported items cannot be considered as waste.
The importation of the impugned goods is in violation of Import Policy of the relevant time and also of some of the conditions of Hazardous Waste Rules 2016. The violation of Hazardous Waste Rules is with reference to country of origin certificate. Other conditions mentioned therein have substantially been fulfilled.
Penalty - whether such violations will result in refusal to release the goods on redemption in terms of Section 125 of Customs Act, 1962? - Held that: - Admittedly, the goods are restricted and there are violations of Policy - while confiscation of the imported items cannot be faulted with, we note that the appellants are entitled for release of the goods on payment of appropriate redemption fine - a redemption fine of ₹ 52 lakhs and ₹ 14 lakhs for consignments imported by M/s. Atul Automation Pvt. Ltd. and M/s. Parag Domestic Appliances, respectively can be imposed.
Penalty u/s 114AA on both the importers as well as Director of one of the importer - Held that: - the provisions of Section 114AA will apply in cases where a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular - there is no situation of any false document submitted by the importer or by the Director of the importer. As such, the application of provisions of Section 114AA is not fully justified by the impugned order and accordingly, the penalties imposed u/s 114AA set aside.
Appeal allowed in part.
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2017 (10) TMI 767 - BOMBAY HIGH COURT
Maintainability of appeal - section 129A of the Customs Act,1962 - power of Commissioner of Customs to reject the application for grant of license - Held that: - The law is well settled. An appeal is always a creation of a statute and unless there is a specific remedy provided in the statute by way of an appeal, a right of appeal is never available to a litigant.
The Regulation of 2013 framed under subsection (1) of section 146 is a complete Code in itself which governs the powers of the Licencing Authority to grant or deny a licence under the Regulation which is contemplated by subsection 1 of section 146. In the present case, the Commissioner of Customs acted in his capacity as the Licensing Authority under the said Regulation of 2013 and not as an Adjudicating Authority as contemplated by clause (a) of subsection 1 of section 129A of the said Act.
Against the said order of the Commissioner (General), an appeal was not maintainable either under section 129A or under the provisions of the Regulation of 2013. The appeal under the said Regulation of 2013 is available only to a person who has been granted a licence.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 766 - CESTAT BANGALORE
Refund of excess duty paid - denial on the ground that the same is time-barred and that required documents were not furnished by the appellants - Held that: - the appellants have filed the refund claim on 06.05.2012 whereas originally M/s. BEML filed the refund claim which was rejected by Assistant Commissioner vide his Order-in-Original dated 13.03.2012 on the ground that BEML has neither paid the duty nor borne the duty. After the rejection of refund claim by BEML, M/s. BEML has not filed appeal against the Order-in-Original but appellant has filed the refund claim on 06.05.2012 whereas re-assessment was made on 30.12.2009 which is barred by Section 27 - as per Section 27 of the Customs Act, the time for filing the refund claim has to be strictly followed and the argument of the learned counsel for the appellant saying that it was only a deposit and not the duty is not tenable in law - the time limit as prescribed under Section 27 of the Customs Act is applicable in the present case.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 765 - CESTAT BANGALORE
Confiscation - Redemption fine - penalty - amusement park equipments like crazy cars, mini disco, roller coaster etc. under EPCG scheme - the goods appeared to be used one - since the Revenue has not produced any evidence which shows that there is a guilty mind on the part of the appellant to import the second hand goods, therefore the imposition of penalty is not warranted in the facts and circumstances of this case, penalty set aside - redemption fine also reduced to ₹ 1 lakh - Appeal allowed in part.
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2017 (10) TMI 764 - CESTAT BANGALORE
Penalty on CHA u/s 114(i) and 114 AA of the CA, 1962 - abetting with the exporters to clandestine export of their product - it was alleged that the main appellant herein being a CHA has not verified the antecedent of the exporters who sought to export Ketamine Hydrochloride in the guise of garments but did not notice it was concealed inside the said consignment which was detected after the Customs investigation and based on information - Held that: - when the adjudicating authority himself has abandoned the allegations in the show-cause notice for the violation of the Customs Act 1962, there being absence of evidence which indicate that appellant had a role, which is tantamounts to abettment in export of goods which are liable for confiscation, penalties imposed on these appellants are liable to be set aside - similar issue decided in the case of Sarosh Nagarwala, Skylark Travels Pvt Ltd, Flavian Walter D’Souza Versus Commissioner of Customs (Export) [2017 (1) TMI 405 - CESTAT MUMBAI], where it was held that provisions of Customs Act cannot be applied for in case of there being no finding as to the role attributable to appellants - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 763 - CESTAT BANGALORE
100% EOU - Violation of import conditions - obsolete goods - Held that: - the concerned officials of the appellant themselves have admitted that goods had become obsolete and the same had not been put to use. Further there was no evidence put up on record that when the goods were usable and had operational life, they were installed and put to use by the appellant - demand of duty upheld.
The impugned order confiscating the goods listed in Annexure A&B of the show-cause notice and in lieu of confiscation, imposing redemption fine of ₹ 20 lakhs is not sustainable. Therefore, though the demand of duty confirmed for the goods, there are no further reason to order confiscation for these goods and when there is no confiscation warranted, there cannot be any question of imposing any redemption fine. Consequently, the redemption fines imposed are set aside.
Appeal allowed in part.
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2017 (10) TMI 762 - CESTAT MUMBAI
Penalty u/s 112(a) of Customs Act, 1962 - cross examination sought for by appellant, which was not provided - Principles of Natural Justice - Held that: - appellants have not received hearing notice of the said dates - principle of natural justice was not adhered to by the adjudicating authority - the adjudicating authority to allow cross examination of the witnesses - appeal allowed by way of remand.
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2017 (10) TMI 761 - CESTAT MUMBAI
100% EOU - N/N. 52/03-cus dated 31-3-2003 - non-fulfillment of conditions relating to clearance under STPI scheme - Held that: - there was no malafide intention on the part of the appellant to violate any condition of licence provisions. Initially truck was supposed to be cleared under Notification no.52/03. When the appellant was unable to fulfill the condition they immediately paid the customs duty and cleared the goods, the conduct of the appellant is clearly bonefide.
The goods were rightly confiscated but the appellant deserve some leniency in view of the conduct of the appellant and in absence of any malafide intention, therefore redemption fine reduced from ₹ 15 Lacs to ₹ 5 Lacs and penalty is reduced from ₹ 4 lacs to ₹ 1 lacs - appeal allowed in part.
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2017 (10) TMI 760 - CESTAT CHENNAI
Import of restricted goods - old and used photocopiers - confiscation - penalty - Held that: - the import of photocopiers had become restricted only after 19.10.2005. Goods imported herein have been done by a Bill of Entry filed on 27.04.2004. This being the case, they cannot be confiscated for want of a specific import licence and accordingly, the provisions of section 111 (d) will not be applicable in this matter.
The interests of justice would be adequately served in this case by reducing the redemption fine imposed under section 111 (m) to ₹ 3,00,000/- and penalty imposed u/s 112 (a) ibid to ₹ 2,00,000/- - appeal allowed in part.
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2017 (10) TMI 719 - TELANGANA & ANDHRA PRADESH HIGH COURT
SAD Refund - N/N. 102/2007-Customs issued on 14-09-2007 - denial on the ground that the timber logs imported by the respondent-assessee were not sold as such by them, but were sold locally after sawning them and cutting them into smaller sizes and also on the ground that the logs cut into smaller sizes could not correlate to the items described in the import packing list - Section 130 A of the Customs Act - The grievance of the appellant/revenue is that a person not entitled to the benefit of exemption notification, cannot walk away with a refund - Whether the CESTAT was justified in placing reliance on Commissioner of Customs vs. M/s. Variety Lumbers Pvt. Ltd., [2013 (11) TMI 1013 - GUJARAT HIGH COURT] where the appellant Department had filed Appeal before the Supreme Court and the same is pending for adjudication?
Held that: - It is not indicated anywhere in the notification, that the imported goods should be sold as such, so as to qualify for exemption. All that the notification says is that the imported goods should be sold locally and that the conditions stipulated in para-2 should be fulfilled - the timber logs imported by any one, when cut into smaller logs, do not lose the character of being timber logs. More over, the size of timber logs that could be imported in huge ships, will be so large that they cannot be transported locally in trucks on roads. What the department had done, is to read one more condition into the exemption notification, which is not found in the notification itself.
It is not the case of the department that goods falling under one classification are entitled to exemption and the goods falling under another classification are not entitled to exemption. What is claimed is only the refund of the special additional duty. The special additional duty is payable on the goods that fall under the First Schedule to the Customs Tariff Act 1975, in terms of Section 3 (5) of the Act. The fact that the imported logs fall under the First Schedule to the said Act and the fact that as a consequence special additional duty was paid and the importer became entitled to refund, are all not denied. It is not the case of the department that round/square logs falling under Heading 4403 alone are entitled to exemption and that sawn woods falling under Heading 4407 are not entitled to exemption. Both of them fall under the First Schedule. Therefore, the argument sought to be advanced is completely meaningless.
Circular No.15/2010, dated 29-06-2010 has virtually amended the exemption notification. It is needless to point out that by a Circular or executive fiat, an exemption notification issued in exercise of the statutory power, cannot be amended. Hence, the reliance placed upon the circular is unfounded.
No importer can claim refund of special additional duty that was not paid by him. No importer can claim refund of SAD (special additional duty) paid on the imported logs, by showing the sale of locally purchased wood logs. This is in view of the fact that the imported timber logs may have to be sold in any case in the local market. If the Government of India wanted the importers of timber not to have the benefit of the exemption notification, if they indulged in the sale of smaller pieces, the Government could have said so in the notification itself - Once it is clear that by making a mismatch between the description contained in the original packing list and the description of the goods locally sold, an importer may not be able to claim refund of more than what was paid, then it would follow as a natural corollary that the second objection of the department is merely weaved out of imagination - decided against Revenue.
Whether the CESTAT was justified in allowing the respondent’s appeal and declaring that the respondent is eligible for refund of SAD relying on the judgment in Commissioner of Customs Vs. M/s. Variety Lumbers Pvt. Ltd., without imposing any condition to protect the interests of the appellant and thereby departing from the order of the Supreme Court wherein the Supreme Court imposed a condition that the respondent should furnish bank guarantee security for half of the amount to the satisfaction of the appellant department’s Assessing Officer? - Held that: - the orders-in-original, out of which all the present appeals arise, were passed long after the interim order of the Supreme Court dated 24-11-2011. Therefore, the Jurisdictional Customs Officer, instead of showing great valour in challenging the ratio laid down by the Gujarat High Court, could have simply allowed all the refund claims with a brief order to the effect that the refund claims are allowed (i) subject to the outcome of the appeal before the Supreme Court and (ii) subject to the further condition that a bank guarantee is furnished for half of the amount claimed as refund. The Original Authority did not adopt such a course of action - As a matter of fact, if the adjudicating authority had passed orders-in-original incorporating the same conditions as found in the interim order of the Supreme Court in Variety Lumbers Pvt. Ltd., incorporating a condition that the refund was ordered subject to the outcome of the decision before the Supreme Court, the department would have been better of. If the original authority had passed such an order, the department would have become entitled to recover the amount of refund, in the event of their success before the Supreme Court in Variety Lumbers Pvt. Ltd. The department let go this opportunity and invited an order on merits from the Tribunal - the Tribunal was right in rejecting the Miscellaneous Applications - decided against the appellant/revenue.
Appeal dismissed - decided against Revenue.
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2017 (10) TMI 718 - BOMBAY HIGH COURT
Pre-deposit - demand of 50% of pre-deposit - Misdeclaration of imported goods - under-declaration - the case of the respondent-revenue is that the goods imported were under declared and custom duty was paid on declared value. The amount corresponding to the declared value was being paid to the supplier through normal banking channels. It is alleged that the additional amount being the difference between the actual transaction value and the declared value was being sent through Hawala transaction or through telegraphic transfers from the places like Singapore etc.
Held that: - Only because certain contentions were not raised by the appellants, an order of remand cannot not be made - the impugned order dated 6th June 2014 is just and fair. No modification is warranted. No substantial question of law arises in these appeals. Though we had shown inclination to extend the time granted to deposit the amount, under the said order, the learned senior counsel for the appellants stated that the appellants are not in a position to comply with the said order - appeal dismissed - decided against appellant.
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2017 (10) TMI 717 - CESTAT BANGALORE
Classification of imported goods - probat Roasting unit Model I-P from M/s. Probat-Weke, Germany - to be classified under CTH 85167990 or under CTH 841981.90? - N/N. 21/2002 dt. 01/03/2002 - Held that: - the Commissioner(Appeal) has held that the same cannot be considered as electro thermic appliances and therefore cannot be classified under the heading 8516 and accordingly he classified the impugned goods under Chapter 8419 - there are no infirmity in the impugned order which has been passed by the Commissioner(Appeals) - appeal dismissed - decided against appellant.
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2017 (10) TMI 716 - CESTAT BANGALORE
Classification of imported goods - crude palm oil - to be classified under CTH 1511000 or under heading 15119090 - N/N. 21/2002 - Held that: - the test on the samples taken were conducted after more than 10 days of the drawing of the samples and further we do not have the evidence to the fact that the sample of the goods were stored in ideal condition - also, the basis of various scientific data that the beta carotenoid content in crude palm oil decreases with the passage of time if the same is not stored in proper temperature.
In the case of Ruchi Soya Industries Ltd. [2008 (4) TMI 711 - CESTAT BANGALORE], this Tribunal has held that the carotene value changes over a period of time borne out by scientific opinion.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 715 - CESTAT BANGALORE
Penalty u/s 114 of CA, 1962 - mis-declaration - export of iron ore having Fe content above 64% - the exporter has declared the Fe content of the goods covered under the shipping bill is less than 64% - Held that: - in the present case, when shipping bills were filed, the Fe content, as per the Certificate of Quality issued by accredited laboratory, was less than 64% in the consignment and when the same was tested by the Chemical Examiner of the Customs Laboratory, it was above 64% and therefore the Revenue has come to a conclusion that it is in violation of the Policy - the report of the Chemical Examiner is based only on dry basis without showing the moisture content and without applying the correction factor for moisture content.
The sample was drawn on 10/05/2005 and was tested on 22/08/2005 which is beyond the period of one month and with the lapse of time, Fe content does not remain constant due to evaporation.
Reliance placed in the case of UNION OF INDIA Versus GANGADHAR NARSINGDAS AGGARWAL [1995 (8) TMI 73 - SUPREME COURT OF INDIA], where it was held that if the percentage of iron content is determined after ignoring the moisture the percentage would not be relatable to the lumpy iron ore weighed at the relevant point of time for the purposes of charging duty.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 714 - CESTAT CHENNAI
Classification of imported goods - ILP 45 Professional LCG Monitors of Sharp brand - importers classified the goods under CTH 85285100 - The department was of the view that the goods would fall under CTH 85285900 - Whether it is a Computer monitor or a TV/ Video monitor? - Held that: - as rightly pointed out by the learned counsel for appellant, the Commissioner (Appeals) has taken assistance of the Board Circular, dated 10.09.2007. A Computer chart is furnished in the Circular comparing TV monitor with that of Computer monitor. On a close perusal of this comparison, we do not find any disagreement with the view taken by Commissioner (Appeals) who has held that on the basis of description produced by appellant, the scales favor the classification under Computer monitor (CTH 85285100) rather than TV monitor - appeal dismissed - decided against Revenue.
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