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Customs - Case Laws
Showing 61 to 80 of 204 Records
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2017 (11) TMI 1341
Valuation of imported goods - rejection of declared value - enhancement of transaction value based on NIDB data of contemporaneous imports - In respect of items in S.Nos.2,6,9,10,11,13,15,18,19 and 20, the enhancement is made merely on the basis of NIDB data - Held that: - reliance placed in the Tribunal's decision in the case of M/s. Best Ways International Company Versus Commissioner of Customs, Trichy [2017 (8) TMI 1262 - CESTAT CHENNAI], where it was held that the NIDB data cannot be made the basis for enhancement of value - enhancement of value to be set aside.
In respect of items in S.Nos.1,12 and 21, the enhancement is not on the basis of NIDB data or contemporaneous imports of identical goods, but the value is enhanced on the basis of other models’ descriptions - Held that: - this cannot be the basis for enhancement and thus the enhancement is set aside.
In respect of Item No.22, the enhancement is based on the enhanced value of the Bill of Entry which was in dispute in the appellant’s own case as mentioned above - Held that: - the enhancement not sustainable and is to be set aside.
In respect of Items in S.Nos.8,14,17, the enhancement is made on the highest value of contemporaneous imports - Held that: - sub Rule (3) provides that in applying this Rule, if more than one transaction value of identical goods is found, the lowest of such value shall be used to determine the value of imported goods - following the decision in appellant own case as mentioned, the enhancement of value is set aside - the matter has to be remanded to the adjudicating authority to re-determine the value on the basis of lowest value of the contemporaneous imports.
Appeal allowed in part and part matter on remand.
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2017 (11) TMI 1340
Interest on refund - redemption fine and bank guarantee - order of the adjudicating authority having reversed, petitioners become entitled to the amount deposited, being there neither any challenge to the order of Tribunal nor was the amount stayed by the Higher Court - Whether the petitioners is entitled to interest on redemption fine and Bank guarantee? - Held that: - As per the settled law, it may be open for the Department to challenge the said judgment before the higher Court, but cannot avoid implementation of the Tribunal’s order for an indefinite period without stay being granted by the Higher Court - In the present case, as on date, admittedly, no stay has been granted, within a reasonable time after the judgment of the Tribunal, therefore, the Department was expected in law to implement the directions, which would result into refund of sum of ₹ 10 lakhs deposited by the petitioners and releasing of Bank Guarantees. Though the petitioners reminded the Department on numerous occasions, this was not done for over three years - Merely because the Customs Act, 1962 does not make any provision for granting interest under such eventuality, would not mean that the Court, in exercise of writ jurisdiction, cannot direct the Department to pay the same. When the facts are gross, to ensure refund of the amount years later without interest would be doing injustice.
The Department must pay interest on the sum of ₹ 10 lakhs deposited by the petitioners to the extent of delay in refunding the same - On the Bank Guarantees, we do not see any case for granting interest since the petitioners were not made to deposit the same with the Department.
The Respondent is directed to pay interest at the rate of 8% per annum upon completion of period of three months from the date of judgment of the Tribunal till actual payment of refund - no interest on the Bank Guarantee component - petition allowed in part.
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2017 (11) TMI 1300
Refund of SAD - N/N. 102/2007-CUS dated 14th September, 2007 - whether limitation period specified under Section 27 of the Act would apply to claims for refund made under the notification of 2007? - Held that: - the issue is covered by the decision of the Delhi High Court in the case of Sony India Private Limited versus Commissioner of Customs [2014 (4) TMI 870 - DELHI HIGH COURT], where it was held that With the introduction of the circular and then amended notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed w.e.f. 01.08.2008 by notification became applicable. There is a body of law that essential legislative policy aspects period of limitation being one such aspect cannot be formulated or prescribed by subordinate legislation.
Circular dated 28th April, 2008 specifically states the view and understanding of the Revenue that Section 27 of the Act is not made applicable to the N/N. 102/2007 and the time limit prescribed under the said Section would not be applicable. The Revenue notwithstanding the said understanding and their Circular, now seeks to contend and urge to the contrary.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1292
Penalty u/s 112 (a) of the CA, 1962 - Rule 5 was invoked in remand proceedings with reference to similar goods - SCN invoked Rule 9 and proposed market enquiry as the sole basis for re-determination of assessable value - Held that: - it is not open to the Original Authority to take recourse to an entirely different basis for re-determining the assessable value without due notice to the appellant - resorting to value of similar goods could be an admitted process of re-determining the assessable value only if the conditions of Rule 5 are fulfilled and the appellants were provided due opportunity to defend their case, which has not happened in the present case - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1275
Provisional release of goods - alteration in the order for release of goods - Held that: - the undisputed fact is that on 23.03.2017 initially the order for provisional release of the goods was passed with certain conditions as enumerated in Para 2 hereinabove and the same are not repeated for the sake of brevity. Thereafter, the show cause notice was issued to the applicant and the same was adjudicated. The said adjudication order was remanded back by this Tribunal to the adjudicating authority for fresh adjudication and order dated 09.08.2017 was passed by this Tribunal for provisional release of the goods on the conditions enumerated in Para-3 hereinabove and the same are not repeated for the sake of brevity.
The Id. Commissioner of Customs, Ludhiana has altered the condition of the interim order dated 09.08.2017 passed by this Tribunal. Therefore, the said officer appears to have committed the contempt of this Court - he Id. Commissioner of Customs, Ludhiana is to show cause as to why the proceedings for contempt of court under the said act, should not be referred to the Hon’ble Punjab & Haryana High Court.
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2017 (11) TMI 1274
Import of prohibited goods - smuggling - Refrigerant R-22 gas - Ozone Depleting Substance - Held that: - All the appellants have been found to hatch a conspiracy along with other persons and had engineered the import of prohibited goods in the form of R 22 gas. Such gases are known to cause irreparable environmental damage by destroying the ozone layer. Smuggling of such gases in such huge quantities is a very serious matter and but for the interception of such consignment before its release by DRI, the smuggling could not have been stopped - impugned order upheld - decided against appellants.
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2017 (11) TMI 1267
100% EOU - Benefit of N/N. 53/1997-CUS dated 03/06/1997 - compliance with remand directions - Held that: - On a close examination of the present impugned order, we are clear that the Original Authority passed the order in respect of certain aspects showing indifference, if not defiance, towards the remand directions of the Tribunal as contained in the final order dated 28/10/2016.
We are not in agreement with the submissions of the learned AR to the effect that the remand directions are for deciding the case afresh in all aspects. A plain reading of the final order of the Tribunal makes it abundantly clear that the only role for the Original Authority in re-deciding the case is to find out the duty liability against the appellant limited to the gap between the foreign exchange outgo for the imports and foreign exchange earned on account of exports made.
Non-submission of documents by the appellant in support of their claim for export/deemed export - Held that: - in case of any doubt, the Original Authority could have referred to the concerned bank authorities to counter verify the genuineness of the documents. Further, the fact of export or DTA clearance against foreign exchange realization can also be collaborated by various other contemporaneous documents, which the appellant submits, will establish to the satisfaction of the Original Authority, the facts as claimed by the appellant.
Matteris remitted to the Original Authority to comply with the directions as contained in the final order dated 28/10/2016 of the Tribunal - appeal allowed by way of remand.
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2017 (11) TMI 1258
Misdeclaration of description and value of goods - view of Revenue is that the invoice which was filed alongwith the bill of entry was a fabricated one and the invoice which was found in the E-mail account should be considered as invoice for transaction which will establish the attempted mis-declaration of the appellant - Held that: - when the bill of entry declared the products correctly alongwith value with supporting invoice, the charge of mis-declaration cannot be sustained on the basis of certain documents retrieved from the E-mail account of the appellant, which was never used for customs clearance - The failure of the appellant to get the IGM and bill of lading amended was construed as a mis-declaration by the Original Authority. We note that these two documents were not to be filed by the importer/appellants.
Re-determination of declared value - Held that: - Considering the nature of the goods and possible variation in appraising the case by different persons, we note that there is no case of misdeclaration of value. The duty difference comes to around ₹ 73,000/- only. When considering the total liability of duty being more than ₹ 70 lakhs such difference is mainly attributable to appraisal method and variation in opinion - rejection of declared value not justified.
Even if the appellant had purported intention of mis-declaration the same has not manifested in their act. No confiscation or penalty can follow on an intend only, without an actual act of violation of the provisions of law.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1256
Exemption under N/N. 26/2000-CUS dated 01/03/2000 - denial on the ground that condition of Rule 7 of the said Origin Rules not fulfilled as the value addition in Sri Lanka fall below 35% - case of appellant is that there is no evidence to the effect that the certificate of origin issued by the Competent Authority was based on incorrect information or the said certificate has been withdrawn or amended later, and thus exemption cannot be denied - Held that: - certificate of origin and the data submitted to get such certificates cannot be questioned based on statements of the importers. There are no record to the effect that the country of origin certificates issued by the Sri Lankan Government has been questioned by the Indian Authorities and follow up after import was done in order to cancel or recall the same. The issue regarding country of origin certificate and questions of bonafideness was discussed in the bilateral meeting of working group between the two countries on 05/06/2002 it was agreed that no detention or hold up of cargo is to be ordered on the question of bonafideness of certificates. Verification, if any, can be done post-facto with the concerned local nodal focal points at the respective headquarters.
In the presence of valid certificates of origin issued by Competent Authority, the assessing authorities in India are not right in denying the benefit of exemption notification - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1254
Mis-declaration of goods - goods are neither detained nor seized by the customs authorities - Held that: - there is no legal support to confiscate the goods, which were neither detained nor seized and thereafter released with a conditional bond. As such, the question of confiscating the goods, which are neither in custody nor bound to be presented as per the bond, is not legally sustainable - confiscation set aside.
Applicability of Section 28 (5) as per the new amendment carried out in Finance Act, 2015 - compliance of payment of 15% within 30 days of enactment of the Finance Bill 2015 - Held that: - Admittedly, in the port of import now under consideration the customs operations are not available on 13.06.2015 being second Saturday. As such, the possibility of getting endorsement and paying the penalty of 15% on 13.06.2015 was not available to the appellant - Considering such factual position and applying the provisions of Section 9 & 10 of General Clauses Act, 1897, we find that the compliance is to be taken as in time. Accordingly, in terms of Sub-Section (6) of Section 28 the proceedings against all the parties involved in the case shall conclude on payment of full differential duty with applicable interest along-with 15% of penalty.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1253
100% EOU - Extended period of limitation - demand of customs duty - debonding of unit - Held that: - it cannot be said that the facts of the assessee-appellant in context with de-bonding and payment of duties was not within the knowledge of the department. Hence, in such an eventuality, the SCN should have been issued within one year from the relevant date - In this case, since the same was issued beyond the period of one year, the duty demand cannot be confirmed against the assessee-appellant on the ground of limitation alone.
Identical issue decided in the case of M/s Century Denim Versus CCE, Indore [2015 (1) TMI 1031 - CESTAT NEW DELHI], where it was held that when all the facts are fully disclosed to the Department, extended period of limitation cannot be invoked for confirmation of duty demand.
Appeal allowed - decided in favor of appellant-assessee.
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2017 (11) TMI 1250
Import of restricted goods - import of old and used Digital Multifunction Printers Copiers/Scanners etc. without a valid license - confiscation - redemption fine - penalty - Held that: - the Commissioner (Appeals) has held that, for violation of Para 2.17 of Foreign Trade Policy, 2009-14, the goods are not liable for confiscation, in that circumstance, redemption fine and penalty are not imposable.
Scope of SCN - Held that: - ld. Commissioner (Appeals) has imposed the redemption fine and penalty on the charge of undervaluation and the same is not the allegation in the show cause notice - ld. Commissioner (Appeals) has travelled beyond the scope of show cause notice. In that circumstance, redemption fine and penalty on the charge of under valuation is not sustainable.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1247
Classification of goods - Heavy Melting Scrap - Revenue formed an opinion that inasmuch as the goods are rail line length of below 1.5 meter, they are properly classifiable under tariff item 7302 10 90 of CTA, 1975 - whether the rail cut length below 1.5 meters are to be assessed under chapter heading 72.04, as claimed by the assessee or the same are classifiable under chapter heading 73.02, as contended by the Revenue - Held that: - the Hon’ble Supreme Court’s decision in the case of Union of India Vs. Madras Steel Re-Rollers Association [2012 (8) TMI 788 - SUPREME COURT OF INDIA] referred, wherein the Hon’ble Madras High Court decision reported in [2007 (6) TMI 222 - HIGH COURT OF JUDICATURE AT MADRAS] as also the Hon’ble Punjab & Haryana High Court decision in GURUDEV OVERSEAS LTD. Versus CENTRAL BOARD OF EXCISE & CUS., NEW DELHI [2007 (11) TMI 317 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH] vide which the Circular No.8/2006-Cus dated 17.01.2006 was quashed and set aside, vide which that said decisions of High Courts were set aside and the matters were remanded back to the lower authorities, without expressing any opinion on the merits of the issue - matter to the original adjudicating authority for fresh decision in the light of the observations made by the Hon’ble Supreme Court - Supreme Court has held in the said decision that Such orders are required to be passed by exercising independent mind and without impartiality and while doing so, such Authorities are required to consider various evidences made available to them - appeal allowed by way of remand.
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2017 (11) TMI 1244
Valuation - freight charges - Revenue entertained a view that the freight incurred is less than what was recovered from their customers and such differential amount is required to be added in the assessable value - Held that: - reliance placed in the case of Indian Sugar & General Engg. Corpn. Vs. CCE, Panchkula [2016 (2) TMI 145 - CESTAT NEW DELHI], where it was held that excess freight collected from the customers more than actually incurred will not be includible in the assessable value when goods are sold ex-factory.
The freight charges for transportation of the goods to the buyer’s premises are shown separately. It is further seen that the freight charges are separately shown in the contract - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1193
Revocation of CHA License - the decision in the case of Commissioner of Customs Versus M/s Naresh Kumar Meena [2017 (11) TMI 1159 - RAJASTHAN HIGH COURT] contested, where it was held that The view taken by the Tribunal is required to be reversed in view of the licence which was granted by the competent authority to particular person with a particular purpose to be utilized by the same in sub-delegation to any person is required to be deprecated - Held that: - Permission to bring on record additional documents is granted - issue notice - In the meantime, there shall be stay of the order of the High Court as held in the above mentioned case.
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2017 (11) TMI 1192
Benefit of N/N. 25/99-Cus dated 28.02.99 - case of Revenue is that the imported plates were not parts of switches and units were not entitled for the said exemption - whether or not the show cause notice and an adjudication proceedings are valid on the question of jurisdiction as contested by the appellant? - Held that: - The present proceedings are for the period preceding the period covered by the show cause notice issued by the DRI. This show cause notice dated 13.12.2013 was issued to cover the period from 16.06.2006 to 13.11.2007, which is well beyond 5 years period that could not be covered under a demand invoking Section 28. It would appear that two separate proceedings were initiated against the appellant, one under Section 28 for the permissible period of 5 years and another subsequent one invoking Rule 8 for the period beyond 5 years on the ground that Rule 8 did not provide for any time limit - such dual approach by the Revenue is not legally sustainable.
It is apparent and clear that show cause notice issued by the DRI correctly invoked the jurisdiction of the proper Customs Authority in charge of assessment to apply the provisions of Section 28 of the Act. It is not open to the Revenue to resort to Rule 8 to demand and recover customs duty for earlier period, beyond five years.
The demand proceedings in the present case is not under Section 28 of the Customs Act. This is under Rule 8 of 1996 Rules. In respect of this appellant, a five year demand on the very same issue has been issued invoking Section 28. The notice was made answerable to the jurisdictional customs officer at the port of import. In such situtation, we note that another proceedings, for earlier period, cannot be initiated invoking Rule 8 by the central excise officer. In the present proceedings, the central excise officer did not exercise his powers, if any, under Section 28 of the Customs Act. Such powers were admittedly available with the Assessing Officer of Customs at the port of import.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1191
ADD - fixation of separate rate of AD duty - Linear Alkyl Benzene (LAB) - import from China PR, Iran and Qatar - The main thrust of the argument by these appellants is that the DA did not obtain complete details of full value chain in transactions. The investigation is not proper as individual dumping margin could not have been arrived at in the absence of full transaction details and consequently the weighted average could not be arrived at properly.
Held that: - where the trader/exporter fails to provide requisite sales information and if the sales by such trader/exporter is insignificant when compared to cooperative exporting/trading channels, then the DA can recommend individual duty rate for the participating trading channels which comprise the bulk of sales to India. We note in a situation where a producer sold the goods through multiple trading channel and one or more trading channel did not participate in the investigation, the DA can proceed to determine the need for fixing individual anti dumping rates based on the data provided by cooperating trading channels. We note such practice has indeed been followed regularly by the DA in various investigations - appeal dismissed.
Regarding delay in initiation of investigation it is clear that the DA found it appropriate to call for updated information from the petitioners for the period of investigation chosen for the case and thereafter issued the questionnaire with updated data. Sufficient time of 40 days was given to all the interested parties to filed questionnaire response and to provide other information to defend their interest. It is clear that the DA ensured that all interested parties get adequate opportunity to defend their interest.
The DA is required to examine injury in both the parameters of volume and price. It is clearly recorded that all parameters of injury need not show deterioration. It is the cumulative assessment of effect of such imports which is appropriate to determine the injury. In this regard both volume effect and price effect of imports have been dealt with elaborately by the DA - The volume and price of imports from third countries, developments in technology, export performance of the DI and productivity of the DI has been examined by the DA. It is apparent that decline in profits, cash profits and return on capital employed for the DI, is so high that the said decline cannot be attributed to decline in productivity. As such, we find no merit in the contention of the appellant in this regard.
Regarding difference in molecular weight between the imported and domestic LAB, it is recorded that the difference in weight of molecular is a result of difference in raw materials or processes. Apparently this has no impact on injury analysis.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1190
Penalty u/s 112 (a) of the CA, 1962 - mis-declaration of imported goods - Held that: - A careful consideration of the narration recorded in the impugned order clearly brings out the role of each one of the appellant in the mis-declaration and improper import of the impugned goods in the name of M/s Bharat Medical Devices Pvt. Ltd. who upon investigation were established to be not connected to the import at all - Section 112 (a) states that any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act shall be liable to penalty of specified quantum mentioned therein.
In the present case, the evidences analyzed in the impugned order clearly bring out the role of each one of the appellant in the importation of impugned consignments which is rightly held to be liable for confiscation - While the appellants roles in the case were established, considering the fact that there is no evidence that they have gained substantially through these impugned acts/omissions, we find it fit and proper to reduce the penalty to ₹ 5 lakhs each on the appellants.
Appeal allowed in part.
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2017 (11) TMI 1189
Valuation - enhancement of value - value was enhanced on the ground that the similar goods were imported at higher price - It would appear that the appellant’s failure to submit copy of the contract, manufacturer’s price list, details of negotiated price are the reasons for rejecting the transaction value - Held that: - the appellant has rightly objected to such enhancement on the ground that the contemporaneous value should be comparable on various parameters. There is no finding as to how the contemporaneous value has been accepted based on true comparison - The appellant’s contention that their product is unbranded and the product, with which it is compared, is branded again carries much weight - also there is more than two months gap in comparison of similar consignments. The admitted fact is the price of impugned goods are highly flexible and varied even in a short period - rejection of transaction value and refixing of such value not justified.
The impugned order failed to justify with factual and legal basis for enhancing value as ordered by the Revenue - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1188
Confiscation of aircraft taken on lease - redemption fine - penalty - The department is of the view that duty is payable retrospectively w.e.f. 20.2.2008 when the lease agreement was entered into by M/s. Futura Travels for the aircraft.
Held that: - The aircraft imported by EIHL on 21.10.2007 stands exported on 14.4.2008, within the period of six months as per the provisions of Rule 58(6) ibid. There is nothing on record to show that EIHL has filed any application to register the aircraft in India. Hence we are convinced that EIHL cannot be held liable for contravention of Rule 58(6) ibid. Consequently there is no justification to order confiscation of the aircraft and demand of customs duty from EIHL.
FTL imported the same aircraft in Mumbai. Hence Commissioner(Cus) Delhi does not have the jurisdiction to demand customs duty from FTL. There is also no basis for raising duty demands jointly and severally from two legal persons.
Appeal dismissed - decided against Revenue.
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