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Customs - Case Laws
Showing 21 to 40 of 204 Records
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2017 (11) TMI 1735
Applicant are directed to remove all office objections within a period of four weeks from today failing which the appeal shall stand dismissed for non prosecution without further reference to the Court.
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2017 (11) TMI 1703
Penalty u/s 114A of the Customs Act, 1962 - import of equipment - undervaluation - Held that:- Section 114AA does not get attracted as sine qua non for invoking the said provision is that it must be established that 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, in the transaction of any business for the purposes of the Act. As noted herein before, when the Act itself has envisaged provisional assessment, it cannot be said that incorrect value of the imported goods per se amounts to any of the acts referred to in the said provision.
In respect of design, engineering and technical supervision charges, the actual value of the services requires interpretation of the agreement and from the nature of the contract, which includes design, engineering and technical supervision charges, it is a matter of interpretation of contract as to whether value of those services form part of the value of goods and services and if so, how to quantify the same.
Penalty not warranted and is set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1702
Refund claim - import of Capital Goods - duty paid under protest - Section 27 of the Customs Act - case of Revenue is that the respondent did not discharge his burden of proving that the incidents of duty was not passed on to the consumers - Held that:- The burden of proof was discharged by the respondent by producing certificate issued by the Chartered Accountant which was not considered by either of the lower authorities - Tribunal was only following judgment of the Madras High Court in CC, Chennai v. Venkataeswara Hospitals [2009 (4) TMI 925 - MADRAS HIGH COURT], which took the view that the concept of unjust enrichment would not be applicable to the import of capital goods.
The findings of the Tribunal are not vitiated by any illegality for interference - appeal dismissed.
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2017 (11) TMI 1699
Classification and eligibility to the benefit of Notification - Import of chemicals of various descriptions declared them as Pharmaceutical Reference Standards (PRS) classifying the same under Customs Tariff Heading No.38 22 00 90 - claimed benefit of Notification No.21/2002-Cus. dated 1.3.2002 and Notification No.12/2002-Cus. dated 17.3.2012 - Held that:- There is no cogent reason to entertain the appeals - The judgment impugned does not warrant any interference - appeal dismissed.
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2017 (11) TMI 1623
Clandestine removal - shortage of finished goods - Held that: - when the shortages of finished goods were detected, the appellant paid the duty. Revenue has failed to prove that the short found goods have been cleared, therefore, the date of shortages detected is the date of clearance and on the same date, the appellants have paid duty - demand of interest set aside.
No option has been given to the appellant to pay 25% duty as penalty as per the provisions of Section 11 AC of the Act - option given to the appellant to pay 25% duty as penalty with in 30 days of the receipt of the date of communication of this order and failing this opportunity to the appellant to pay 100% duty as penalty.
Penalty u/r 26 of CER, 2004 - Held that: - as the main firm has been penalized - penalty on the partner under Rule 26 of CER, 2004 is not sustainable.
Appeal allowed in part.
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2017 (11) TMI 1616
Supply of documents as necessitated by the petitioner - stay of proceedings - Held that: - till the next date of hearing, the Inquiry Officer is restrained from passing the final order - We are issuing a short date in the matter, in order to enable the learned counsel for the respondents to obtain instructions and in case, the copies of the relevant documents and oral statements relied upon by the respondents have not been furnished to the petitioner, the same would be brought to the court to be handed over to the petitioner on the next date of hearing.
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2017 (11) TMI 1585
Penalty u/s 112 of CA - demand of penalty from widow of late V.M.G.Srinivasa Vandayar, the petitioner - case of petitioner is that in terms of Section 112 of the Customs Act, 1962 the liability is personal in nature and cannot be recovered against the estate of the deceased - Held that: - if proceedings are to be initiated against the petitioner, then liability should have been fixed on the petitioner, for which proper procedure was required to be followed, more so, when it is the case of the Department that the petitioner is liable in terms of Section 112 of the CA. Thus, the present attempt of the first respondent to make good the loss of Revenue after the demise of the petitioner's husband cannot be permitted - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1584
Import of coal - coking coal or not - benefit of N/N. 21/2002-Cus, dated 01.03.2002 - whether the coal imported by appellant under 19 Bills of Entry are eligible for exemption of customs duty under N/N. 21/2002 or otherwise? - the main stand of Revenue is that the Corex technology does not require coking coal and the weakly coking coal said to be imported cannot get the benefit of the exemption - Held that: - identical issue came up before the Bench in Mumbai in respect of the coal imported by appellant for using corex furnace through Port in Goa and the Bench in the case of JSW Steel Ltd. [2015 (12) TMI 1389 - CESTAT MUMBAI], after considering the entire gamut of the arguments and the findings held in favor of applicants - the self issue is now settled in favour of the main appellant and it has to be held that coal imported by appellants under 19 Bills of Entry is eligible for the benefit of exemption notification under 21/2002-Cus and impugned order has to be held as unsustainable - question of upholding penalties on the other appellants and the main appellant does not arise - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1583
Quantum of redemption fine - case of appellant is that reduction of redemption fine from ₹ 3,94,000/- to ₹ 1,20,000/- has not been translated into the order portion - Held that: - the Commissioner (Appeals) has indicated in para 4.4 of the impugned order his inclination to reduce the redemption fine to ₹ 1,20,000/- - Presumably by inadvertence, the same has not been reflected in the order portion in para-5 of the impugned order. Ld. D.R. fairly concedes this fact - redemption fine under Section 125 ibid should also be reduced from ₹ 3,94,000/- to ₹ 1,20,000/- - appeal allowed.
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2017 (11) TMI 1582
Waiver of pre-deposit to admit the appeal - the applicant are involved in actions which will render the goods for confiscation and cannot escape penal action under Section 112 - Held that: - the applicant did not make out a case for full waiver of the penalty imposed on him. The role of the applicant cannot be completely ruled out at this stage - it is ordered that pre-deposit of ₹ 1.5 lakhs to be paid within four weeks - On payment of such amount, the appeal will be taken up for regular disposal.
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2017 (11) TMI 1581
Refund of excess duty - excess duty paid was pointed out by assessment of Bill of Entry - N/N. 46/2011 as amended - section 27 of CA - Held that: - In similar set of facts, Hon'ble High Court of Delhi in the case of Micromax Informa Tics Ltd., [2016 (3) TMI 431 - DELHI HIGH COURT] held that refund claim can be preferred when the assessment is under EDI system and duty liabilities are discharged; wherein their Lordships interpreted the Provisions of Section 27 of the Customs Act, 1962 - the impugned order is correct and legal and does not suffer from any infirmity - appeal dismissed - decided against appellant.
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2017 (11) TMI 1580
SAD Refund - whether change in description of the goods in domestic retail invoice, is sufficient ground to deny benefit of refund under N/N. 102/2007? - Held that: - The goods imported in bulk from Indonesia having sold on retail basis, on certified sales invoices, which have been and assessed at the hands of the VAT authorities and which have been certified by the statutory auditor and the appellant, there cannot be any doubt that the goods imported were sold on “AS IT IS” basis - The attempt of the department to verify the sales by addressing the letters to some of the buyers has not elicited any response and that cannot mean that the goods were not sold to them - rejection of refund unjustified - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1537
Conversion of shipping bills - Section 149 of the Customs Act 1962 - CBEC Circular No.36/2010–Customs dated 23/9/2010 - Held that: - It is not in dispute that the respondent is a manufacturer and exporter of Human Rabies Vaccine. The Tribunal has recorded a finding that fault lied with the EDI system. The Board Circulars are issued to ensure that standard operating system is followed. Here is a case where, technical error had crept in the computer system, which prevented generation of shipping bills - there is no infirmity in the impugned order passed by the Tribunal. The order under challenge is based on appreciation of facts and no substantial question of law arises for consideration - appeal dismissed - decided against appellant.
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2017 (11) TMI 1536
DEPB benefit - Applicability of Policy Circular No.6, dated 20.05.1998 and Policy Circular No.35, dated 03.09.1998 to the petitioner's case and what is the legal effect of such policy Circulars - Whether the denial of DEPB benefit based on the impugned policy Circulars is valid and proper?
Held that: - This benefit which flows from the statutory policy is sought to be denied based upon the policy Circular Nos.6 and 35 as held in the case of Karle International Vs. Commissioner of Customs, Bangalore [2012 (10) TMI 652 - KARNATAKA HIGH COURT], the right conferred in the statute which in the instant case is in the nature of Export Import Policy cannot be taken away by issuing Circulars. Thus, the benefit which has accrued to the petitioner by virtue of Export Import Policy cannot be denied by relying upon the impugned policy circulars. Though the petitioner has challenged the amendment to Circular No.31/2000, eventually in the impugned order reference has been made to policy Circular Nos.6 and 31.
In the light of the finding that the policy circulars cannot override the statutory benefit, the rejection of the petitioner's request for being eligible for DEPB Scheme vide order dated 28.02.2003 and the consequential communications of the 4th respondent dated 20.03.2003 and 04.03.2003 are held to be unsustainable in law.
It may not be necessary for this Court to declare the policy circular as either null and void or ultravires and it would suffice to hold that the policy Circulars cannot overide the statutory policy which is the Export Import Policy of the year 1997 framed under the provisions of Foreign Trade (Development and Regulations) Act, 1992 - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1535
CFS - reopening of earlier proceedings - refund of excess cost recovery charges - Held that: - decision of the Hon'ble Division Bench of the Bombay High Court in the case of Vijal Marine Services V. Commissioner of Customs & C. Ex., Goa, [2016 (3) TMI 939 - BOMBAY HIGH COURT] referred, wherein the appellant sought for refund of the cost recovery charges paid under protest to the Customs authorities, the Division Bench held that since the appellant therein did not file any appeals against the demands confirmed for the charges/cost, the appellant cannot be allowed to circumvent confirmed demand by way of refund - this Court is not inclined to exercise discretion in issuing a writ of mandamus as sought for by the petitioner - petition dismissed - decided against petitioner.
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2017 (11) TMI 1534
Implementation of Order dated 5th February, 2010 - refund of duty drawback - Held that: - It is not case made out by the respondents that in terms of the order dated 5th February, 2010 refund of duty drawback has been issued - the respondents cannot refuse to comply with the order dated 5th February, 2010 which has attained finality. The ground raised that copies of the proceedings are not available in their office is totally unsustainable - appeal allowed.
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2017 (11) TMI 1533
Refund of excess duty paid - rejection on the ground of time limitation - While the original authority held the refund claim as time-barred, the lower appellate authority allowed the appeal on the ground that the export duty paid should be treated as paid under protest.
Held that: - It cannot be denied that the facts leading to the filing of refund claim have occurred due to the change in stand of the department. In the first place, the Notification dated 13.6.2008 created a situation requiring issue of show cause notice for differential duty. Nonetheless, the Board Circular dated 10.11.2008 did a U turn in the existing practice and clarified that till 31.12.2008, the FOB price would be treated as cum-duty price.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 1532
Refund claim - denial on the ground that as the appellant has not challenged the assessment of Bills of Entry - Held that: - the lower authorities cannot dismiss the refund claims merely on the ground that assessment of bills of entry has not been challenged by the appellant and therefore the refund claims are not maintainable - reliance placed in the case of AMAN MEDICAL PRODUCTS LTD. Versus COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT], where it was held that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and 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.
The matter is remanded back to the adjudicating authority to consider the refund claims filed by the appellant - appeal allowed by way of remand.
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2017 (11) TMI 1531
Non-fulfillment of export obligation - N/N. 48/99-Cus. Dated 29th April, 1999 - the proprietorship firm was granted Advance License, which was further converted into partnership firm - there was a inter-se litigation between the partners and vide the order of competent District Court No.48k by the Hon’ble Civil Judge, Moradabad, arbitrators were appointed under the authority of law and a compromise was arrived before the court, whereby, it was agreed that excepting the liabilities of M/s SOM. Industries, M/s M. K. Handicrafts, all other liabilities of Government or Non-Government shall lie with the respondent-Shri Manoj Sikka and his wife Smt. Hema Sikka - Held that: - both the parties are directed to bring the facts on record whether the duty and penalty as demanded which have survived through process of appeal at the first stage, whether the same have been paid or discharged.
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2017 (11) TMI 1530
Finalization of provisional assessment - whether the Lower Authorities can finalize the provisionally assessed shipping bills, based on the outcome of analysis report and re-determine the transaction value according to the report of the Deputy Chief Commissioner? - Held that: - both the Lower Authorities have incorrectly appreciated the law which is governing the valuation of the consignments of iron ore cleared for export is as per provisions of Section 14 and 18(2) of Customs Act, 1962 - similar issue decided in the case of Commissioner of Customs, Visakhapatnam Vs. Rashmi Metaliks Ltd. [2016 (11) TMI 300 - CESTAT HYDERABAD], where it was held that When the department accepts the BRC, as well as the final invoice of the exporter and has no doubt or dispute that amount other than what was reflected in final invoice was not received by the latter, the BRC has to be given credibility and reliance - appeal allowed - decided in favor of appellant.
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