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Customs - Case Laws
Showing 81 to 100 of 204 Records
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2017 (11) TMI 1187
Revocation of CHA License - forfeiture of security deposit - scope if inquiry report - Held that: - the fact remains that the inquiry which is conducted as per the requirement of the Regulation has recommended only imposition of the penalty. Such inquiry report was made available, without any further comments to the appellant, for their representation. Accordingly, the appellant filed their representation. It is clear that the revocation order, as done in the impugned proceedings, is beyond the recommendation given by the inquiry officer - there is a clear violation of principles of natural justice.
It is necessary to put the appellant to notice regarding proposed rejection of the inquiry report and proposed enhancement of penal action, including revocation - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1186
N/N. 12/2012 - manufacture of gold bars of purity of 99.5% and above - Held that: - it has been held by the adjudicating authority that the goods seized are manufactured out of the goods imported by the appellant. Therefore, as goods imported has been used for intended purpose, in that circumstances, the appellant has complied with the condition of the N/N. 12/2012 - demand set aside.
Neither during the investigation nor at the time of transportation the goods, the appellants were carrying proper documents for transportation of the said goods. As the appellant is not maintaining the proper records of the imported goods including sl. number, date etc. and not maintaining the record of intended use of the said goods, in that circumstances, the goods are liable for confiscation in terms of Section 111(o) of the Customs Act, 1962.
Appeal allowed in part.
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2017 (11) TMI 1185
100% EOU - N/N. 53/97-Customs and 1/95-CE. - Since the appellants did not fulfill the conditions of export for duty free procurement of capital goods and other items, the jurisdictional Commissioner initiated proceedings against them to demand and recover the customs duty/excise duty forgone in terms of the above notifications - Held that: - The prime condition is that they have to manufacture and export the products from their units. They have not exported any product. After repeated extension of LOP, the same was terminated w.e.f. 1.4.2013. In fact the licensing authority, the Development Commissioner, Noida, categorically recorded the developments from the date of issue of LOP in 1995 and concluded that the appellants failed to fulfill the terms of the LOP and there is a violation of the FTDR read with FTP 2009-2014. As such, the violation of EXIM Policy and non-fulfilment of export conditions is clearly an admitted fact.
Appellant was specifically asked as to the process of fresh adjudication based on all facts now in the knowledge of the appellant than can be completed by the Original Authority - Matter remanded for fresh consideration - appeal allowed by way of remand.
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2017 (11) TMI 1159
Revocation of CHA License - Whether the Tribunal is legally correct in setting aside the revocation of CHA Licence of the appellant No.3 in the circumstances when there is gross violation of CHA Licensing Regulations, under which the said licence was granted, on the part of the CHA himself? - Held that: - the decision in the case of Commissioner of Customs Versus M/s K.M. Ganatra & Co. [2016 (2) TMI 478 - SUPREME COURT] referred, where it was held that To ensure appropriate discharge of such trust, the relevant Regulations are framed. Regulation 14 of the CHA Licensing Regulations lists out obligations of the CHA. Any contravention of such obligations even without intent would be sufficient to invite upon the CHA the punishment listed in the Regulations.
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.
Revocation is upheld - appeal allowed - decided in favor of Revenue.
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2017 (11) TMI 1125
Maintainability of petition - appealable order - Section 110A of the Customs Act, 1962 - Held that: - Normally, writ petitions are not entertained, where there is an equally efficacious alternative remedy - the petitioner should invoke the appellate statutory remedy by way of appeal under Section 128 of the Act. The same would be efficacious and proper forum for redressal of the grievance. If any such an appeal is filed within a period of two weeks from today, the same would not be dismissed on the ground of limitation - petition disposed off.
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2017 (11) TMI 1124
Rejection of application made to Settlement Commission - Section 123(1) of the Act - Held that: - A reading of Sub-Section (1) of Section 123 of the ACt shows that the place, time and manner of seizure of the goods under the provisions of the Act is immaterial as the section only contemplates that "Where any goods to which this section applies are seized". Therefore, no distinction can be made between seizure during the course of examination of cargo or seizure of the goods after they left the customs barrier, etc. This is precisely what the petitioner wants the Court to do which is impermissible under the Statute - the impugned order passed by the Settlement Commission is just and proper and calls for no interference - petition dismissed - decided against petitioner.
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2017 (11) TMI 1123
Refund claim - bank guarantee furnished - time limitation - EPCG Scheme - Held that: - The Commissioner (Appeals) allowed the appeal filed by the petitioner and set aside the order passed by the respondent dated 25.4.2011. Further, the Commissioner (Appeals) directed that status quo to be maintained till the petitioner produces EODC and once it is produced and if it is found to be in order, the amount recovered by encashing the bank guarantee should be refunded - Therefore, now calling upon the petitioner to approach the Assistant Commissioner (Refunds) is presumably with an intention to reject the said application as being time barred, as the Assistant Commissioner (Refunds) is likely to take a stand that the application should have been filed for refund within one year from the date of payment of duty.
Bond furnished by appellant shall stand cancelled - Bank guarantee less administrative charges to be refunded - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1122
Validity of SCN - The main ground on which the show cause notice is questioned is by contending that the respondent has come to a foregone conclusion that the petitioner is involved in smuggling, whereas the petitioner had no earlier opportunity to put forth their case, apart from the fact, the petitioner did not have opportunity to object to the Authority extending the period by six months under Section 110(2) of the Act - Held that: - the averments set out in paragraph no.8 of the affidavit of undertaking filed by the adjudicating authority would be sufficient to safeguard the interest of the petitioner - the affidavit of undertaking dated 08.11.2017 filed by the adjudicating authority, is placed on record and the writ petition is disposed of with a direction to the adjudicating authority to adjudicate the show cause notice without being influenced by the findings rendered in the order-in-original dated 31.03.2017 and proceed based on the available material and the statement recorded under the provisions of the Customs Act, 1962 - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1121
Jurisdiction - Whether the Appellate Tribunal could travel beyond the scope of the allegations levelled in the show cause notice and decide the appeal, rejecting the refund claim of the appellant, on the basis of issues/allegations not raised in the show cause notice? - refund claim - Held that: - The contention raised by the appellant is based on the show cause notice dated 20th May, 2002 and even the first authority and second authority have considered the bill of entry and the attachment which was liable for the Jacquard - the show cause notice which was issued for refund is required to be set aside. The appellant is entitled for the refund.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1120
Applicability of Section 28AAA - export of chilled meat - DEPB credit - The allegations made in the SCN by customs Department are that such scripts where procured by undertaking export of chilled meat in contravention of the relevant provisions of the Foreign Trade Policy (FTP) - case of appellant is that Section 28AAA came into effect w.e.f. 28.05.2012 so the same is not applicable in the instant case - Held that: - In the present case, the appellant has exported chilled meat and procured DEPB/VKGUY scrips issued by DGFT - the relevant period involved in the present case is 01.04.2006 to 31.10.2010 and the show cause notice has been issued on 30.05.2011 to the person to whom such scrips were issued.
The investigation has revealed that certain blank certificates duly signed by the doctors were found in the appellant’s factory at the time of their search along with the relevant seals. The allegation is that the veterinary doctors never supervised such slaughter and hence, all such certificates were not valid but only an empty formality.
Cross-examination - the appellant has sought cross-examination of the veterinary doctors whose certificates where recovered during such proceedings - Held that: - cross-examination has not been allowed by the adjudicating authority before passing the impugned order. We note that it is a well settled legal principle that the cross examination of witnesses whose statements are admitted as evidence has to be considered in terms of Section 138B of the Customs Act. The said provisions are identical to the provisions of Section 9D of the Central Excise Act, 1944 - cross-examination of the above witnesses will be particularly necessary since the case of revenue is based on the certificates said to have been issued by these doctors.
The matter is required to be remanded to the adjudicating authority to pass fresh orders after allowing the cross-examination of the witnesses - appeal allowed by way of remand.
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2017 (11) TMI 1119
SEZ unit - penalties - jurisdiction of customs authorities - Held that: - Customs Authorities had the jurisdiction to adjudicate cases originating within a SEZ even for the period prior to the amendment in the SEZ Rules. To this extent the impugned order cannot be held to be passed without jurisdiction.
Whether penalty can be imposed on Sh. Jatin Arora, partner in as much as penalty has already been imposed on the a SEZ unit? - Held that: - The investigation further established that Sh. Jatin Arora, partner, was the main person who was instrumental in planning and carrying out the systematic diversion of duty-free imported good - the impugned order has clearly brought out the fact that Sh. Jatin Arora, partner, has indulged in acts of commission leading to evasion of customs duty by M/s Global Partners (India) - for the acts of omission and commission on the part of Sh. Jatin Arora leading to the evasion of customs duty by M/s Global Partners (India), he will be liable for penalty both under section 114 A as well as section 114AA - penalty upheld.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1118
Misdeclaration of imported goods - appellant had mis-declared the quantity of the blank video cassettes of Panasonic brand, had not declared a large quantity of blank video cassettes of Sony brand and also 30 pieces of high definition video cameras of Panasonic brand - valuation of imported goods - Held that: - when the goods were examined by the Customs Authorities, it was found that the imported goods did not match with the declaration made by the appellant in the bill of entry - Mis-declaration was found in terms of the actual quantum of the video cassettes as well as in the description of the imported video cassettes. In addition to the declared goods, 30 pieces of Panasonic brand video cameras were also found. Since, there is no dispute on the fact of mis-declaration, we have no hesitation in upholding the confiscation of the imported goods under section 111 of the Customs Act 1962.
Valuation of imported goods - evidence of contemporaneous import - Held that: - the Apex Court in the case of Varsha Plastics Pvt. Ltd. [2009 (2) TMI 40 - SUPREME COURT] has held that once the nature of goods is mis-declared, the value declared becomes unacceptable - in view of the mis-declaration by the importer, the declared values become un-acceptable. In the peculiar facts and circumstances of the present case, we also do not find any serious irregularity in the method adopted by the lower authorities.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1117
Misdeclaration of imported goods - confiscation - redemption fine - penalty - Held that: - on examination of the goods, the Chartered Engineer gave a categorically report that these are old and used pipes which were rusted internally as well as externally. If pipes are rusted internally and externally and have been removed from some project then it is only a waste, nothing else. His opinion that 80% of the goods can be re-used but the same is without any market survey or supporting documents. In that circumstances - the charge of mis-declaration on the appellant is disproved, therefore, the goods are held not liable for confiscation - redemption fine and penalty also not sustainable - appeal allowed in part.
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2017 (11) TMI 1046
Penalty - Whether on the facts and circumstances of the case, the Tribunal was justified in reducing the penalty imposed u/s 114(iii) of the CA, 1962 when the suppression by the appellant has been established during adjudication proceedings? - Held that: - When the adjudicating authority is empowered to impose lesser penalty than the maximum provided it cannot be said that the Tribunal is not vested with the same power. The Tribunal having exercised the above discretion for the reasons recorded which do not appear to be arbitrary or whimsical, in any way, the said discretion is not liable to be interfered with and the Tribunal was justified in reducing the penalty imposed u/s 114(iii) of CA - appeal dismissed - decided against appellant.
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2017 (11) TMI 1013
Jurisdiction - Whether the Custom, Excise and Service Tax Appellate Tribunal exceeded its jurisdiction in the recalling its earlier order dated 26.10.2005 by restoring to powers under Sub-section 2 of Section 129B of the Customs Act? - Held that: - The power of the Tribunal under Section 129B(2) of the Act is identical to the power under Section 254(2) of the Income Tax Act. Therefore, while exercising power under Section 129B(2) of the Act to rectify mistake apparent on the face of the record, would include within it the power to recall an order while exercising jurisdiction under Section 254(2) of the Income Tax Act or Section 129B(2) of the Act for rectification of mistake - identical issue decided in the case of ASSISTANT COMMISSIONER, INCOME TAX, RAJKOT Versus SAURASHTRA KUTCH STOCK EXCHANGE LTD [2008 (9) TMI 11 - SUPREME COURT ], where it was held that in exercise of power under Section 254(2) of the Income Tax Act, 1962 the Income Tax Tribunal has power to recall an order passed under Section 254(1) of the Income Tax Act while exercising power of rectification as provided under Section 254(2) of the Income Tax Act - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1012
Principles of natural justice - petitioners were denied a right of cross-examination of the witnesses of the prosecution by the customs authorities - Held that: - Although the petitioners have statutory alternative remedy, the petitioners have chosen to apply under Article 226 of the Constitution of India impugning the order-in-original. Existence of a statutory alternative remedy is not a complete bar to the maintainability of a writ petition. Despite existence of a statutory alternative remedy, the writ petition is maintainable if it is demonstrated that the impugned order suffers from jurisdictional error or has been passed in breach of principles of natural justice or is vitiated by bias or malice or is perverse - The petitioner was denied an opportunity to cross-examine the witnesses - the impugned order suffers from breach of principles of natural justice - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1007
Diversion of the goods to the DTA - demand - two parallel proceedings in relation to the same subject matter - Held that: - once the question of duty liability based upon the allegation of diversion of the goods to the DTA in relation to the goods imported vide Bill of Entry No. 2376, dated 25-9-2003 has already been adjudicated upon, it is not permissible for the respondents to pursue another proceeding in relation to the same subject matter as it is not permissible for the authorities to prosecute two parallel proceedings in relation to the same subject matter. While it is true that the show cause notice dated 18-12-2008 does not propose confiscation of goods and levy of penalty, an order of confiscation or penalty would be only consequential to the confirmation of the duty liability. In the facts of the present case, having regard to the fact that the adjudicating authority, albeit beyond the scope of the proceeding before him, has thought it fit to issue a show cause notice in respect of levy of duty and interest, and has already proceeded to adjudicate upon the same, it is now not permissible for the respondent authorities to proceed further to adjudicate upon the same controversy in another parallel proceeding.
Confiscation of goods - Held that: - though there may be additional proposals in the subsequent show cause notice, the basic proposal relates to confirmation of duty and interest based upon the allegation of diversion, which has already been adjudicated upon pursuant to the show cause notice dated 18-12-2008. The adjudicating authority having already adjudicated upon the issues, it is not permissible for it to keep the proceedings of the show cause notice dated 6-9-2007 in abeyance till the culmination of the proceedings arising from the show cause notice dated 18-12-2008. The continuance or otherwise of the show cause notice dated 6-9-2007 cannot be contingent upon the outcome of the proceedings arising out of the show cause notice dated 18-12-2008 - further proceedings pursuant to the show cause notice dated 6-9-2007, which relate to a subject matter which already stands adjudicated, stand vitiated - SCN do not sustain.
Petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1003
Penalty - smuggling of gold by the process of courier - case of appellant is that the impugned order is passed merely on presumption and assumption without any legally sustainable evidence - Held that: - In view of the clear cut evidence by way of various statements recorded during investigations which have not been controverted by the appellants except saying that they are not concerned with the said courier and it does not belong to them - in view of the detailed reasoned order passed by both the authorities below discussing the role of each appellants in the matter of smuggling of gold by the process of courier, there are no infirmity in the impugned orders - appeal dismissed - decided against appellant.
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2017 (11) TMI 989
Misdeclaration of goods - the goods declared as finished leather but found to be other than finished leather, in the absence of wax coating - confiscation - redemption fine - penalty - Public Notice No. 21/2009 dated 01.12.2009 - Held that: - identical issue decided in the case of M/s. Expos Leather Company Versus Commissioner of Customs, Chennai [2010 (4) TMI 1112 - CESTAT CHENNAI], where confiscation and imposing penalty was set aside after noting that no effort was made to export the goods in question and that the goods had been allowed to be taken back for the purpose of applying protective coating so as to make the goods conform to the definition of finished leather - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 974
Valuation - import of Old and used Digital Multifunction Printer - enhancement of value - Held that: - As for the question of confiscation of the goods for mis-declaration of value, the appellants had declared the goods correctly in description/quantity/value and classified them under proper chapter heading of Customs Tariff. The value of the goods was enhanced on the basis of the Chartered Engineer’s certificate which was accepted by both the parties. We agree with Commissioner (Appeal)’s findings that (i) mere enhancement of value on the basis of C.E. certificate cannot be a ground for treating declared value as mis-declared unless there is other corroborative evidence. (ii) except enhancement on the basis of C.E.’s Certificate, there is no other material on record to inform that declared value was mis-declared - appeal dismissed - decided against Revenue.
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