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Customs - Case Laws
Showing 41 to 60 of 204 Records
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2017 (11) TMI 1529
Benefit of N/N. 94/96-Cus - DEEC Scheme - goods reimported for reprocessing/reconditioning, claiming Notification No.158/95-Cus - As the subject goods could not be re-exported within the period of six months prescribed in the said notification, they sought extension for re-export - Whether differential duty can be levied on goods re-imported with full duty exemption under Notification No.158/95-Cus. when the repaired/reconditioned goods have been exported only after expiry of the period prescribed in that notification? - Revenue neutrality - Whether the demands made on this score in these appeals can be set aside even on the grounds of revenue-neutrality? - Held that: -
A close look at the conditionalities of the notification would reveal that the legislature has sought to clip any possibility of misuse. For example, by requiring that such goods are re-imported not beyond the period of three years from the date of their export. So also, to prevent any misuse of facilitating provisions by way of retention of goods in India, the notification also requires that after reconditioning/repair, the re-import goods shall have to be re-exported within a maximum period of 12 months from the date of such re-import. These time limits prescribed both, for re-importation as well as the re-exportation, in our view, are substantive conditionalities and not merely procedural.
It is also not the case that when being required to pay duty forgone in the event of non-compliance of Notification No.158/95-Cus., the importer is left high and dry with no other remedy. Indeed, such importer, even if he has to discharge differential duty liability, provided he eventually re-exports the re-imported goods at some point, will surely be eligible to claim drawback towards the duties suffered on the goods exported - once the substantive post-importation condition of Notification No.158/95-Cus. is not satisfied or complied with, the importer will have no other option but to pay an amount equal to the difference between duty levied at the time of re-import and the duty leviable on such goods at the time of importation, but for the exemption contained in Notification No.158/95-Cus - decided in favor of appellant.
Whether the appellants can claim the benefit of another N/N. 94/96-Cus or otherwise? - Held that: - Appellants have contended that since they have missed the bus in respect of Notification No.158/95-Cus., they should be nonetheless allowed to claim the beneficial provisions of Notification No.94/96-Cus. However, in view of the discussions supra regarding Notification No.158/95-Cus. and Notification No.94/96-Cus., we are unable to find much merit in this contention. Both these notifications have been issued for different situations and different reasons. Notification No.94/96 does not require that the re-importation is for the purposes of repair or reconditioning. There is also no requirement in that notification mandating re-export of the goods of the re-imported goods. In other words, Notification No.94/96-Cus. seeks to cover only those situations where the importer does not have any declared intent to immediately re-export the re-imported goods, as long as the duty liability specified in Col.3 of that notification is discharged. The importer can leave the goods undisturbed e.g., in their factory or premises, without any pressing need for their re-export. That however is not the case with Notification No.158/95-Cus which seeks to cover a situation where the goods are re-imported within 3 years, only for repair or reconditioning and proximate re-export thereafter - the contention of the appellants that they can very well claim alternative benefit of Notification No.94/96-Cus is misplaced - decided against appellant.
Appeal allowed in part.
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2017 (11) TMI 1528
Quantum of redemption fine and penalty - Baggage Rules - valuation of electronic goods - Held that: - the goods imported are mainly electronic goods. These goods do get reduced in their value as they became outdated over a period of time, so also the appellant has paid Customs duty to the tune of ₹ 6,87,165/- on the goods - the Redemption Fine and penalty imposed is excess and, therefore, which we reduce the Redemption Fine to ₹ 2,50,000/- and penalty to ₹ 75,000/-, would meet the ends of justice - appeal allowed in part.
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2017 (11) TMI 1527
Confiscation - allegation of smuggling not established - Held that: - this Tribunal have categorically held that if the allegation of smuggling is not established confiscation is bad, as have been held by the Coordinate Bench ruling of this Tribunal in the case of M.B. Enterprises v/s CC, New Delhi - on the basis of such findings, holding the goods liable to confiscation under Section 111(d) of the Act is misplaced and erroneous, leading to miscarriage of Justice - confiscation, redemption fine and penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1496
Violation of conditions for import of goods against EPCG licnece - failure to intimate the department after installation - allegation of installation of capital goods at non-approved premises - Benefit of N/N. 55/2003-Cus. dated 1.4.2003 - Held that: - From the facts on record, we do not find any allegation that the goods imported, though not installed at approved premises were otherwise not used for the intended purposes or for that matter were otherwise sold or disposed of in a clandestine manner. In this circumstance, what is therefore required to be adjudged is only whether the acts and omissions on which the proceedings have been initiated by the department or such that they constitute non-adherence or violation of mandatory or substantial procedural requirements, the breach of which would justify the action initiated against the appellants.
Prima facie it is found that the firm has not violated any condition of the licence excepting the fact the licence holder has not intimated us about the installation of the machinery in the premises of the supporting manufacturer i.e. M/s.Regency Glazes Ltd. According to para 5.3.2 of Hand Book, the licencee can install the machinery in the premises of the supporting manufacturer and such a facility is allowed under Foreign Trade Policy / Hand Book. Although they have submitted the Chartered Engineer Certificate regarding installation of the machinery, the same may be taken as a supporting document but not the relevant document because Installation Certificate has to be obtained from the Central Excise Authorities and the Chartered Engineer as the case may be.
The appellants have produced sufficient certification not only from the Chartered Engineer but also from the jurisdictional Assistant Commissioner of Central Excise that the capital goods imported by them against the concerned EPCG license had very much been installed and put in use initially at their own manufacturing premises as required.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1495
Proceedings to levy Anti-dumping duty - Exclusion of the party from the proceedings - power to initiate proceedings under Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on dumped articles and for determination of injury) Rules 1995 - whether the direction as sought for by the petitioner/Association to direct the first respondent to proceed to determine his jurisdiction to initiate proceedings under Rule 5 of the Anti-Dumping Rules as sought for in their representation/application should be issued?
Held that: - The apprehension of the petitioner/Association appears to be without any basis. This is so because of the manner in which Rule 12 of the Customs Tariff Rules is worded. In terms of Sub-rule (1) of Rule 12 of the Customs Tariff Rules, the Designated Authority shall proceed with the conduct of the investigation and in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping. To determine these three factors, essentially the first respondent has to go into the aspect as to who are the domestic industry and whether any of them are related to the exporters or importers.
If at the inception of an enquiry by a Tribunal or an authority, a challenge has been made to the jurisdiction, the Tribunal/authority has to take a decision as to whether or not to act and give a ruling on the preliminary or collateral issue, but such ruling is not a conclusion. Above all, the rules are clear, especially Rule 12 of the Customs Tariff Rules and there is no necessity for this Court to issue any direction to the first respondent to decide the matter in a particular manner nor it would be right in doing so, as he is cast with a statutory duty to determine the injury based on relevant consideration, which undoubtedly would mean as to whether the fifth respondent has to be excluded from the proceedings or not.
Petition disposed off.
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2017 (11) TMI 1490
Stay of the reimbursement of the amount - the decision in the case of The Development Commissioner, MEPZ, Special Economic Zone & HEOUs, The Director General of Foreign Trade (DGFT) , The Secretary, Ministry of Commerce and Industry Versus M/s. Hospira Health Care India Pvt. Ltd. [2017 (7) TMI 786 - MADRAS HIGH COURT] contested - Held that: - The amount is not yet quantified - we are not inclined to stay the operation of the impugned order - decided against appellant.
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2017 (11) TMI 1452
Valuation - Rule 8 - similar imports - Revenue entertained a view that the goods were undervalued for assessment by the importer–appellant - Held that: - It is an admitted fact that similar or identical items are not available with the authorities to compare the value or even to conduct the market enquiry to arrive at the value on computation - the methodology adopted by the Revenue by simply relying on the Chartered Engineer certificate who examined the raw material cost, cost of production etc. is not acceptable - matter is remanded to the original authority to re-determine the issue in all aspects after hearing the party - appeal allowed by way of remand.
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2017 (11) TMI 1450
Refund of excess duty paid - SAFTA N/N. 10/2008-Customs dated 15.01.2008 - principles of natural justice - Held that: - the customs authorities have taken the application on record but did not decide the same by passing any speaking order - the AC passed the OIO rejecting the refund claim summarily without an opportunity of hearing to the appellant and similarly the Commissioner (Appeal) has also not considered any of the submissions of the appellant in the impugned order - case remanded back to the original authority with a direction to first decide the application of the appellant for reassessment of the BoE and thereafter decide the refund application after following the principles of natural justice - appeal allowed by way of remand.
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2017 (11) TMI 1444
Misdeclaration of description of imported goods - redemption fine - quantum of penalty - Held that: - When the goods came from China and such goods were ‘opal glassware’, that remained uncontroverted. Similarly, the statement recorded from the above two persons also proved that they were aware of their ill will as well as pre-meditated design of the syndicate of above said persons to cause loss to Revenue - there shall be no redemption fine since imports were not under bond and no penalty can be simultaneously imposed on the proprietor Shri Rajesh Jain and Raj Agencies who are one and the same - demand of duty and interest upheld - appeal allowed in part.
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2017 (11) TMI 1440
Valuation of imported goods - contemporaneous import of similar goods through other port - Held that: - In the present case, the reason being contemporaneous import of similar goods through other port, in such situation full particulars of other imports are to be examined and made available to the appellant also - In view of non-fulfilment of such requirement, reassessment order suffers from serious infirmity - it is a settled position of law that in terms of Section 14 of Customs Act, 1962, the transaction value is required to be accepted. The valuation relating to Valuation Rules can only be done when the transaction value is rejected for valid reasons.
Relying on the decision of Hon'ble Supreme Court in Eicher Tractors Ltd. Vs CC Mumbai [2000 (11) TMI 139 - SUPREME COURT OF INDIA], the Tribunal held that transaction value cannot be rejected on the basis of availability of data value for contemporaneous import of similar goods. This may at best raises a suspicion on the transaction value but cannot form basis for refixing the value.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1439
Classification of imported goods - Valuation - rejection of transaction value - Held that: - the impugned order records that appellant themselves imported similar items through Nhava Sheva three months before the present consignment. The authority reiterated that value difference of US$ 1.40 cannot be accepted and since goods are identical, applying Rule 5 of the Valuation Rules reassessed the same at unit price of US$ 14.63 - rejection of transaction value adequate and proper reason has to be adduced by the assessing officer.
Considering that the imported goods are electronic items and price variation is in the range is only about 10%, there is no justification recorded in the original authority order for rejection and redetermination of assessable value.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1437
Principles of natural justice - Benefit of N/N. 26/2000-Cus dated 01.03.2000 - denial on the ground that the process undertaken by Sri Lankan supplier does not confer the status of originating products - Held that: - It is indeed correct that the impugned order has been passed without hearing the appellant. The appellant was served with a show cause notice only on 21.10.2015 whereas within a week i.e. on 29.10.2015, the adjudicating authority has passed the order exparte - matter remanded to the adjudicating authority - appeal allowed by way of remand.
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2017 (11) TMI 1433
Redemption fine - penalty - benefit of N/N. 21/2002-Cus. dated 1.3.2002 - the goods were examined and it was found that the goods contained copper scrap in wire forms, clippings and punchings which are Berry, Birch and Candy varieties - Held that: - the reply to the SCN in which the appellant has explained that the supplier on their own dispatched copper scrap, even though appellant placed orders for HMS scrap only. That the appellant had filed Bill of Entry on the basis of such documents and that they had no malafide intention to mis-declare or undervalue the goods. He submitted that the differential duty involved is only ₹ 5,53,736/- - quantum of redemption fine and penalty reduced - appeal allowed in part.
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2017 (11) TMI 1412
Whether the CESTAT was justified and correct in law in passing an order of remand to the CUSAA Nos. 57/2017 & 58/2017 Page 3 of 4 original adjudicating authority to first decide the issue of jurisdiction, after decision of the Supreme Court in Civil Appeal preferred against the decision of Delhi High Court in Mangli Impex Limited v. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT]?
Held that: - The Tribunal will decide the appeals on merits, including the question of jurisdiction of the officers of DRI to issue the show cause notice, without being influenced by the decision of the Delhi High Court in the case of Mangli Impex Limited which has been stayed by the Supreme Court - the substantial question of law is answered in favor of the appellants - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1411
Condonation of delay in filing appeal - delay on the ground that they did not receive the impugned order and change of address indicated was not duly followed up for dispatching the letter by Revenue - Non-compliance with the provisions of Section 153 - service of order - change of address - Held that: - the appellant in the present case is an importer. Unlike the assessee for Central Excise and Service Tax, the importers are not required to register their address etc. with the Department. In other words, there is no registered address as an assessee with the department. The declarations made in the bill of entry and thereafter any correspondence will be considered by the officers for communicating with the importer in any proceedings.
In the present case, the dispatch of the impugned order to the known address of the appellant and its return have been evidenced and recorded in the written submissions of Revenue. The display in the Notice Board is evidenced in the impugned order, wherein copy was marked to the Notice Board also. While we note that the Revenue could not produce the details of the exact date of display, we also take note that we are dealing with 13 years’old case. Here, it is necessary to note that large number of communications in the form of notices, orders were sent to the various assessees by the Department. The standard legal requirements are generally adopted for dispatch of these letter by registered post or by speed post etc.
The appeal has been filed after more than 12 years after issue of the impugned order. We are not convinced with the submissions made by the appellant - application dismissed - appeal also dismissed being not maintainable.
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2017 (11) TMI 1410
DEPB benefit - mis-declaration of export value in shipping bills - principles of natural justice - case of appellant is that the Original Authority not adhering to the remand direction of the Tribunal while deciding the case afresh - Held that: - all the major points raised by the appellants have been dealt with by the Original Authority. None of the significant issues raised by the appellant with reference to purchase of impugned goods, documentation and legal points regarding cross-examination and reliance placed by the Revenue on various evidences collected during investigation have been left out by the Original Authority - there are no reason to interfere with the findings of the Original Authority on merits of this case.
Penalty - ineligible DEPB benefit - Held that: - considering the quantum of improper benefit sought to be derived, as mentioned above, the penalty is on the higher side. Accordingly, we hold that the penalties can be reduced to ₹ 4 crores (main appellant) and ₹ 1 crore each on the other two appellants in terms of Section 114 (i) of the Customs Act, 1962.
Appeal allowed in part (only as regards penalties).
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2017 (11) TMI 1409
Valuation - re-determination of value by the Original Authority - mutuality of interest - Held that: - It is apparent that different brand names carry different values. It is not practicable to have a comparison of one brand with another for Customs duty purpose. Such determination will be highly subjective. As such, the Original Authority is left with only option of arriving at the correct assessable value by backward calculation, which he did.
The second major point contested by the appellant is that postimportation expenditure and profit margin allowed is not correct - Held that: - While we note that the appellants contested the post-importation expenditure on the ground that the goods are fragile and some breakage is to be accounted for, we are not convinced by the said submission for the reason that the items are appropriately packed and no evidence is produced to support a particular quantum of breakage occurring during transportation. In the absence of such material evidence we cannot proceed based on simple assertion of the appellant.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1344
Penalty on CHA u/s 112 (a) of CHA - classification of imported goods - Rudraksh - Chapter 44 or Chapter 14? - classification as declared in the Bill of Entry was not accepted and it was found that the goods are rightly classifiable under Chapter 14 - case of Revenue is that CHA is obligated to file a Bill of Entry based on correct classification and in case he is aware of different classification being adopted by the importer, he is duty bound to inform the Customs about the wrong classification as advised by the importer - Held that: - the goods were imported and the Bill of Entry was filed for warehousing. Warehoused goods will be in control of the Customs authorities. Classification of the product is claimed under a particular heading.
The nature of product for classification could be more appropriately arrived at by physical examination only. Prima facie, Rudraksh classification, as a product of the particular chapter is to be examined with reference to the nature and the manner in which it is imported, whether it is plant product, for use or worked upon product or any declared other purposes. In such situation, it will not be correct to take a penal action against the Appellant who is director of the CHA for filing a classification under a particular chapter.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1343
Classification of imported equipments - Head End - whether 8543 as ordered by the adjudicated authority or 8525 as claimed by the appellant? - Held that: - similar equipments were held to be classified under 8525 in the case of Set India Pvt. Ltd. vs. CC [2002 (11) TMI 421 - CEGAT, MUMBAI] - Similar views have also been held in the case of Commissioner Customs vs. Multi Screen Media Pvt. Ltd. [2015 (8) TMI 241 - SUPREME COURT] - the imported goods are rightly classifiable under 8525 - The differential duty payable is required to be requantified and for this purpose the case is required to be remanded.
Valuation - whether the value of software already embedded in the equipment as well as service charges are required to be included in the assessable value? - Held that: - Since the software is already incorporated in the imported goods the value of same is required to be added to the transaction value. Likewise the purchase order also includes the process of installation of equipment after importation. The Explanation as above provides for addition of the charges towards this service also - addition of the above changes paid by appellant to supplier, to the declared value for purpose of charging duty is upheld.
Decided partly against appellant - part matter on remand.
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2017 (11) TMI 1342
Non-compliance of Pre-deposit - Section 129E of Customs Act, 1962 - provisional anti dumping duty - enhancement of duty by final notification for ADD - Held that: - Admittedly, there is no order on the merits of the case by the first appellate authority. The appeal stands dismissed by him on the question of predeposit itself - We direct the first appellate authority to hear the appeal without insisting on any predeposit - appeal allowed by way of remand.
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