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Customs - Case Laws
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2017 (9) TMI 1991
Seeking time to file an additional affidavit to indicate as to how the goods imported were utilized - HELD THAT:- The additional affidavit be filed within a period of two weeks from today. Counter affidavit be filed within a period of four weeks thereafter. Rejoinder, if any, be filed within a period of two weeks thereafter.
List on 15th March, 2018.
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2017 (9) TMI 1985
Jurisdiction - power of DRI to issue SCN - HELD THAT:- It appears that the preliminary issue which emerges in the present appeal is regarding the jurisdiction of the DRI to issue the show-cause notice under the Customs Act. The assessee-Respondent has taken a stand that in terms of the Hon’ble Apex Court decision in the case of COMMISSIONER OF CUSTOMS VERSUS SAYED ALI [2011 (2) TMI 5 - SUPREME COURT], the DRI officers were not proper officers in terms of section 2(34) of the Customs Act, 1962.
It may be mentioned that recently, the Hon’ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] has dealt with the identical issue where the notice was also issued by DRI. The Hon’ble High Court of Delhi has considered the judgment in the case of M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 225 - DELHI HIGH COURT] which is stayed by the Hon’ble Supreme Court in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER]. Finally the Hon’ble High Court has granted liberty to the petitioner by observing that “petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangli Impex Ltd.”
The appeals are allowed by way of remand to the adjudicating authority to decide the issue afresh after the judgment of the Hon’ble Supreme Court in the case of Mangli Impex.
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2017 (9) TMI 1978
100% EOU - non/short payment of Customs duty - appellant exported less quantity and for the remaining quantity the appellant has applied for the N/N. 52/2003-Cus dated 31.03.2003 read with Foreign Trade Policy 2009 to 2014 (FTP), to dispose of the raw material in DTA (Domestic Tariff Area) with approval of the Customs authorities - It is the allegation of the Department that on the quantity of the raw material which was cleared in the DTA, the assessee has not paid applicable customs / central excise duties - HELD THAT:- It appears that the appellant has claimed that the maximum quantity or value of the raw material has not been mentioned in the permission letter. From enquiry, it appears it is not clear as to how much raw material was utilized for the export of goods and how much remained with the appellant. Further, it is also not clear as to for how much amount permission was granted by the appropriate authority for disposal of surplus raw material and whether duty was paid at the time of clearance of such raw material as claimed by appellant. During the course of the arguments, both the parties have agreed that it is not mentioned in the enquiry how much additional raw material, upon the permission, was sold by the appellant.
When it is so, then the fresh adjudication is required by the adjudicating authority - matter remanded back to the adjudicating authority to decide the issue denovo and by providing reasonable opportunity to the appellant - appeal allowed by way of remand.
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2017 (9) TMI 1868
Re-export of imported goods - baggage imported from Pakistan to India along with Cigarettes & Dupattas - applicability of section 150 of CA - HELD THAT:- After the applicant failed to comply with the condition for re-export of goods on payment of specified redemption fine, the goods stood confiscated on 5th September, 2011 and the ownership was vested with the Central Government. As a result the Attari Customs was having full authority to dispose of the said goods after 4-9-11 and no error is committed by them by disposing of the goods on 3-11-11. The applicant has heavily relied upon Section 150 of the Customs Act to assert her agreement that a prior notice to her was required before disposal of the goods. But the applicant has conveniently overlooked the significant fact that notice to the owner is to be given u/s 150 only if the goods are to be sold prior to confiscation and not after confiscation - Since in the instant case the goods were sold after confiscation thereof, section 150 is not applicable at all. Thus the applicant’s case that she was not sounded by the Customs authorities before the disposal of their goods is completely misplaced.
The Revision Application filed by the applicant is not maintainable and hence it is rejected.
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2017 (9) TMI 1854
Smuggling - Gold - release of seized goods - Confiscation - redemption fine - penalty - HELD THAT:- Only prohibited goods cannot be released on payment of redemption fine. Admittedly, the gold in question is not prohibited goods under the Customs Act or any other law in force.
The goods in question cannot be absolutely confiscated in terms of Section 125 of the Customs Act, 1962 - Confiscation set aside - appeal filed by the Revenue is dismissed.
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2017 (9) TMI 1852
Classification of imported goods - Rubber Process Oil - whether hazardous goods or not? - whether the goods are classifiable under chapter sub heading 2707 9900 as canvassed by the revenue or 2710 1960 as canvassed by the Appellants or under 2713 9000 as alternatively pleaded by the Appellants?
HELD THAT:- There are no reason to entertain the appeals - appeal dismissed.
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2017 (9) TMI 1845
DEPB Scheme - Not to reduce the credit - HELD THAT:- Parties have not filed the Statements of Case. The same is not mandatory as per Supreme Court Rules, 2013.
Registry to process the matter for listing before the Hon'ble Court, as per rules.
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2017 (9) TMI 1824
Re-import of export goods - relevant date for export - HELD THAT:- The date of export can be construed from reading of Section 2(18) of Customs Act, 1962. The date on which goods left India and goes beyond its territory then export takes place.
Tribunal has taken a view that when the goods were allowed for export, that date should be construed as date of export and that is 19-6-2009. It is undisputed fact that goods came back to India on 11-6-2010. That is 8 days before expiry of one year from the date of loading of the goods to the ships. In such circumstance, there is no reason to deny the benefit of notification in question to the appellant since reimport within one year export is duty free.
The issue is required to be answered in favour of the assessee and against the department - Appeal dismissed.
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2017 (9) TMI 1814
Finalization of provisional assessment - Section 14 and 17 of the Customs Act - It appears from the pleadings that on the basis of the bill of entry and with the consent of the petitioners that they do not want provisional assessment, the valuation of the aluminium scrap imported was done and that was accepted by the petitioners for the payment of customs duty - HELD THAT:- Valuation of the aluminium scrap imported has been done by the Assessing Officer on the basis of the bill of entry and the same has been accepted by the petitioners, they cannot turn around at this stage to question the valuation and the consequential assessment of the custom duty.
Valuation done by the Assessing Officer has lead to the assessment of the custom duty payable by the petitioners which can be assailed by them by filing an appeal under Section 128 of the Act wherein not only the assessment of duty but also the valuation of the goods can be considered and decided.
Petition dismissed.
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2017 (9) TMI 1802
Jurisdiction - power of Commissioner of Customs (Preventive) to issue SCN - Held that:- Similar issue has come up before this Tribunal on many earlier occasions also. The Tribunal remanded the cases to the original adjudicating authority - Reliance placed in the case of M/S SHRI MAHINDERA DUGAR, SHRI MAHENDER DUGAR AND PHOTOCOPING SERVICES VERSUS CC, NEW DELHI (IMPORT & GENERAL) [2017 (6) TMI 662 - CESTAT NEW DELHI].
Matter remanded to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of Mangli Impex [2016 (8) TMI 1181 - SUPREME COURT] and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the status quo will be maintained.
Appeal allowed by way of remand.
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2017 (9) TMI 1793
Imposition of Penalty u/s 114AA of the Customs Act, 1962 - misdeclaration of imported goods - Aluminium Scrap - it was alleged that the goods contains contains Old Used Tyres - Held that:- In this case, it is a fact on record that respondent has purchased the impugned goods on high seas sale basis from M/s. Sage Global, New Delhi. As per the Packing List, Pre-Inspection Report, Bill of Lading, Invoice, Bill of Entry & Description of Goods are shown as “Aluminium Scrap”. In that circumstance, it cannot be alleged against the respondent that he had deliberately misdeclared the goods.
In the absence of any evidence on record by the Revenue that the respondent was having any knowledge of the goods contains in the container was “Old Used Tyres”, no penalty can be imposed on the respondent - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1789
Rebate of duty - input sage - Duty Drawback - rejection of rebate claims of the appellant on the ground that the double benefit i.e. rebate of input stage and drawback of duty is not admissible - Held that:- Since the applicant has claimed drawback @ 5% which is common in both the A & B column of drawback schedule it is implicit that the applicant has claimed only Customs component of drawback on exported goods and not in respect of Central Excise and service tax. Apparently because of this fact alone Customs Authorities granted drawback @ 5% in respect of exported goods without verifying availment of Cenvat credit by the applicant in respect of inputs.
As the applicant has not availed drawback of duty of Central Excise paid on inputs, the rebate of duty in respect of the duty paid on inputs used in the exported goods cannot be denied to the applicant - Even otherwise there is no provision in Rule 18 and in Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 which prohibits grant of rebate of duty in the event of availment of duty drawback.
Revision application allowed.
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2017 (9) TMI 1787
Violation of import conditions - import of Zip Fasteners - N/N. 21/2002-Cus., dated 1-3-2002 - misuse of benefits of the Notification - garment accessories imported vide 8 Bills of entry were neither brought to the factory premises of the applicant nor used in export production as mandated in the said Notification. Instead the imported garment accessories were sold in the domestic market - Section 123 of the Customs Act, 1962.
Held that:- The impugned goods were neither smuggled nor seized to make it illegal import under Section 123 of the Customs Act, 1962. It was imported against the import certificate issued by the AEPC. The only allegation in the impugned SCN is that the applicant has not fulfilled the conditions of Notification No. 21/2002-Cus., dated 1-3-2002, thereby making them ineligible for “Nil” rate of duty on the accessories imported. As the goods were neither seized by the DRI nor there is any allegation against the applicant that they smuggled clandestinely these goods, the Bench is of the considered view that under the facts and circumstances of the case, import under Bill of Entry 4572044 dated 7-9-2011 is not hit by the bar envisaged under Section 123 of the Customs Act, 1962.
Pendency of another SCN demanding Anti-Dumping Duty - Held that:- The Bench has considered this issue and is of the firm view that the SCN demanding Anti-Dumping Duty is not a proceeding pending before an adjudicating authority against which the applicant has filed settlement application and the applicant has approached the Settlement Commission in settling the issue arising out of SCN regarding the wrong availment of benefits of Notification No. 21/2002-Cus., dated 1-3-2002. Hence the Bench holds that the pendency of another SCN demanding Anti-Dumping Duty is not an impediment in settling this case.
The Bench is of the opinion that the applicant has made full and complete disclosure of the duty liability, co-operated with the investigation and discharged their duty liability along with interest immediately on commencement of investigation i.e., over one year before issuance of SCN dated 31-3-2015. Accordingly, the Bench considers it as a fit case to settle the differential duty liability at ₹ 23,19,372/- along with interest amounting to ₹ 6,35,309/-.
Redemption fine - Held that:- The Bench holds that the Commission/Omission on part of the applicant have rendered the goods liable for confiscation. However, as the goods had not been seized at any point of time in this case, the question of imposition of any fine on the goods in lieu of confiscation does not arise.
Penalty on applicant - Held that:- The applicant had deliberately misused the ICs of the exporters and availed unintended benefit of nil duty. However, once the investigation started, the applicant extended full co-operation, made no attempt to cover up the wrong doing and paid the entire amount of duty along with interest before the issue of Show Cause Notice. But for the painstaking investigations carried out by the Officers of DRI, Coimbatore Regional Unit, the fact of the matter would not have surfaced - The act of the applicant attracts penalty under Section 114A and also under Section 114AA of the Customs Act, 1962 separately for having rendered the goods liable for confiscation under Section 111(d) and 111(o) of the Customs Act, 1962 for not fulfilling the conditions prescribed under Notification No. 21/2002, dated 1-3-2002 and accordingly the applicant is liable for penalty under the provisions of the Customs Act invoked in the SCN.
Penalty on co-appellants - Held that:- It is inconceivable to believe that the Directors failed to monitor their import transactions and activities of their staff till it was detected by the DRI. The Directors of the applicant firm cannot wash their hands off saying that they were not aware of the said illegal arrangements. Shifting the blame on Shri Kannan will not absolve them of the act of evasion or duty. The applicant firm is equally responsible for actions of its employee and the Directors of the applicant firm equally responsible for the imports made in their name resulting in the revenue loss for the Government. The omissions and commissions of the three directors of the applicant company, viz., Shri K. Tamizharasan, Director - “the Co-applicant I”, Shri N. Sridhar, Managing Director -”the Co-applicant II” and Shri S. Ramachandran, Director -”the Co-applicant III” have rendered the impugned goods liable for confiscation - the Bench imposes a penalty of ₹ 10,000/- (Rupees Ten thousand only) each on Shri K. Tamizharasan Director - “the Co-applicant I”, Shri N. Sridhar, Managing Director - “the Co-applicant II”, Shri S. Ramachandran, Director - “the Co-applicant III” under the provisions invoked in the show cause notice and grants immunity to the applicant in excess of the above amount. The penalty should be paid within 30 days from the date of receipt of this Order and compliance reported to the jurisdictional Commissioner.
The Bench is inclined to consider grant of immunity from prosecution to the applicant and co-applicants.
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2017 (9) TMI 1786
Valuation of imported goods - Coal and Petcoke - inclusion of elements of freight in the assessable value - demurrage charges - applicant had not brought to the notice of Customs certain elements of cost, i.e., amount paid towards ship demurrage charges in addition to actual freight which should have been taken into account for arriving at assessable value - Section 14 of the Customs Act, 1962 read with Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - applicant accepted the tax liability in the SCN dated 7-10-2016 and has paid an amount of ₹ 21,42,012/- (which included an amount of ₹ 2,00,874/- paid voluntarily by the applicant) as confirmed by the Revenue. The interest liability of ₹ 7,94,604/- was also paid before issue of the SCN - applicability of Rule 10 of the Customs Valuation Rules, 2007.
Held that:- The Bench is of the view that the applicant has made full and complete disclosure of the duty liability, co-operated with the investigation and discharged their duty liability along with interest. Accordingly, the Bench considers it as a fit case to settle the differential duty liability at ₹ 21,42,012/- as admitted by the applicant along with interest amounting to ₹ 7,94,604/-. This amount has been fully paid and the same is appropriated and adjusted towards the Customs duty and interest.
Redemption fine - Held that:- he amount paid subsequently to the exporter as differential freight on account of demurrage charges was not brought to the notice of the Customs leading to the short collection of Customs duty, attracting the Provisions of Section 111(m) of the Customs Act, 1962. Therefore, the Bench holds that the goods are liable for confiscation. However, as the goods had not been seized at any point of time in this case imposing any fine on the goods in lieu of confiscation does not arise.
Penalty - Held that:- This is a case where the applicant failed to declare ship demurrage charges, which should have been taken into account for arriving at assessable value for the purpose of charging Customs duty as per the provisions of Section 14 of the Customs Act, 1962 read with Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - It is also brought to the notice of the Bench that out of the amount of ₹ 21,42,012/- paid towards differential Customs duty on ship demurrage charges/Lighterage, etc. an amount of ₹ 2,00,874/- pertaining to the Bill of Entry dated 16-7-2010, lay outside the statutory limit of 5 years for raising the demand. The applicant has not contested the demand though it is barred by limitation of time - The payment of differential duty to the tune of ₹ 2,00,874/- and interest thereon in respect of the imports made in July, 2010, i.e. the period beyond five years from the date of issue of the SCN amply establishes bona fides of the applicant in discharging duty liability - the Bench is inclined to take a lenient view and refrains from imposing any penalty on the applicant.
The Bench is inclined to consider grant of immunity from prosecution to the Applicant in as far as this case is concerned.
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2017 (9) TMI 1749
Maintainability of revision application - town seizure of the smuggled goods - Section 129DD read with sub-section (1) of Section 129A of the Customs Act - Held that:- It is clearly a town seizure case and is not a baggage matter at all. There is no clue in the RA by which this case can be related with a baggage. Therefore, Government considers that a revision application in respect of the Commissioner (Appeals)’s order involving the town seizure of the smuggled goods cannot be entertained under Section 129DD read with sub-section (1) of Section 129A of the Customs Act - revision application dismissed as not maintainable.
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2017 (9) TMI 1739
CENVAT Credit - benefit of N/N. 94/96-Cus. Dated 16.12.1996 - DEPB Scheme - goods went out of India when came back to India being found to be defective - recovery of excise duty lost - Held that:- It does not appeal to common sense why additional duty of customs payable by the appellant shall be allowed towards cenvat credit when the goods earlier manufactured in India and exported duty free, came back, shall be treated in par with domestic goods insofar as leviability of excise duty is concerned - appellant is not entitled to cenvat credit of the additional duty of customs paid since excise duty has already been lost by Revenue while the goods under DEPB declaration left India duty free.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 1730
Concessional rate of duty - N/N. 21/2002-Cus. - violation of use conditions - Whether the demand of differential duty on the goods imported by availing concessional rate of duty were eligible or otherwise which were not used for the intended purpose? - Held that:- Since the issue in respect of the very same appellant has attained finality in the hands of the Tribunal in the case of ASSISTANT COMMISSIONER OF CUSTOMS & CENTRAL EXCISE. VERSUS M/S ACALMAR OILS & FATS LTD. AND (VICE-VERSA) [2017 (7) TMI 673 - CESTAT HYDERABAD], we find no reason to deviate from the said view already taken - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1715
Misdeclaration of imported goods - import of Heavy Melting Scrap - Held that:- In the instant case admittedly, the pipes in question were old and used and therefore, these pipes are in the nature of scrap only, as the same cannot be used as prime. In these circumstances, the declaration of the goods by the appellant is correct and therefore, no differential duty be demanded from the appellant.
Moreover, as the goods are scrap, therefore, neither goods are liable for confiscation nor any penalty is warranted.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1710
Valuation - abatement of duty element from FOB price - value to be considered for discharge of export duty on Iron Ore Fines - Held that:- The issue is decided on merits against the appellant by the decision of Tribunal in the case of Sesa Goa Ltd. [2010 (8) TMI 747 - CESTAT, MUMBAI], where it was held that FOB price of iron ore exported by one of the present appellants was held to be cum-duty price and accordingly abatement of duty element from the FOB price was allowed to the assessee - appeal dismissed - decided against appellant.
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2017 (9) TMI 1681
Levy of anti dumping duty - effective date - Ascertainment of date on which the Public Notice in Gazette was made available to the Public - Held that:- Unless the levy sees the light of the day through the gazette made available to public, no levy can be imposed. According to appellant RTI exercise shows that the decision of Government was in public domain on 25/10/2008 while anti dumping duty has been levied on 20/10/2005.
The controversy as above is to be resolved by factual enquiry by learned adjudicating authority from the Government press from where gazette of India is published. Enquiry result is to be confronted to the appellant and recording pleadings and evidence of appellant appropriate decision shall be taken by the learned adjudicating authority following the ratio laid down by the apex Court in the Jindal Industries v. Union of India [2002 (5) TMI 63 - HIGH COURT OF DELHI].
The matter is remanded to the learned adjudicating authority.
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