|
Advanced Search Options
Customs - Case Laws
Showing 221 to 233 of 233 Records
-
2017 (9) TMI 136
Principles of Natural justice - Absolute confiscation - gold - the petitioners have an effective alternative remedy by way of an appeal to the Commissioner of Customs (Appeals), Chennai. However the petitioners, without availing such remedy, have approached this Court, challenging the impugned order on the ground of violation of principles of natural justice - Held that: - in the communication dated 27.02.2016, the Superintendent of Customs informed the petitioners' counsel that they can examine the documents referred to in the show cause notice at the time of personal hearing. This opportunity has not been given though the counsel pointed out that most of the documents requested from the department have not been supplied to them and this seriously hampers the defence of the case - the statement made in counter affidavit is of little worth and it does not substantiate that principles of natural justice have been complied with and thus for the above reasons the impugned order is liable to be set aside for De novo jurisdiction - the impugned order is set aside and the matter is remanded back to the second respondent for fresh consideration - petition allowed by way of remand.
-
2017 (9) TMI 135
Advance licence scheme - appellant have exported MS angles on deemed export basis and have obtained intermediate licence for duty free import of various inputs including MS billets. They had imported MS billets duty free against these advance intermediate licence and they cleared them free of custom duty - N/N. 50/2000-Cus dated 27.04.2000, 51/2000 dated 27.04.2000 and 43/2002 dated 19.04.2002 - case of Revenue is that the appellant have not imported the goods whereas the said goods was imported by Maharashtra Steel Rolling Mills (MSRM), Mumbai and the appellant have purchased the same on high sea sale basis. The goods were further given to MSRM for job work and after manufacturing the said goods were sold to MSRM. In this fact department contended that right from import of goods to sale of finished goods it is MSRM who owns the goods, therefore the clearance of goods by the appellant under advance licence has been transferred to MSRM. Accordingly the condition of N/N. 51/2000 and 43/2002 was violated.
Held that: - as per the record the material was initially imported by MSRM who subsequently sold on high sea sale basis to appellant M/s. Prakash Ispat Udyog and Sanvijay Rolling & Engg. Ltd. The appellants cleared the said imported goods on the basis of advance licence under notification 51/2000-Cus and 43/2002-Cus. The goods were directly sent from the port to MSRM for job work under a job work agreement and after processing, the goods were sold to MSRM only. Though on record it appears that the goods were cleared under advance licence by the appellant and till the processing of goods on job work basis the ownership of the goods remained with the appellants.
The ownership of goods remains with the appellants from purchase of goods from high sea sales basis till the processed goods are sold. It is important to ascertain that whether the goods have been transferred or otherwise on the basis of payment transaction in every stage right from import of goods till sale of processed goods. The show-cause notice also relied upon the accounts ledger of the appellant but no verification was found to have been carried out by the adjudicating authority. The fact of payment in overall transaction of the imported goods as well as sale of processed goods is very vital. However, we have observed that the adjudicating authority has not properly examined the payment transaction issue from the records.
The matter needs to be reconsidered by the adjudicating authority - appeal allowed by way of remand.
-
2017 (9) TMI 134
Confiscation - smuggling - Cigarettes - redemption fine - penalty - case of appellant is that the investigation/inquiry on the smuggling of cigarettes is still pending and it is premature to conclude the issues raised by the Revenue - Held that: - the ld. Commissioner (Appeals) even though recorded that the inquiry relating to smuggling of cigarettes is still pending, but, proceeded to decide the issue on merit and later remanded the matter to the adjudicating authority to consider the confiscation of goods with appropriate redemption fine and imposition of penalty. This observation of the ld. Commissioner (Appeals), cannot be sustained, as it suffers from self contradiction and also premature - the inquiry by the DRI relating to the smuggling of cigarettes is on the last stage of completion and therefore, it is appropriate to direct the adjudicating authority to consider all issues relating to the allegation against the appellant, after completion of inquiry by the DRI on the issue of smuggling of cigarettes - appeal allowed by way of remand.
-
2017 (9) TMI 67
ADD - USB flash drives - import from Peoples Republic of China and Taiwan - scope of subject goods under investigation for ADD - appellants submitted that USB flash drives having storage capacity of above 64 GB and USB flash drives of 3.0 specification are not to be included for ADD enquiry - Held that: - the technology is dynamic, we find no reason to make a distinction based on storage capacity to consider USB flash drives into two categories. It is also to be noted that the inter-changability of higher capacity flash drives, if available on competitive price, for low capacity usage also cannot be ruled out. It is not incorrect on the part of the DA to consider such dynamic change in technology and potential threat of like products while examining the case for ADD levy. Similar reasoning can be adopted in respect of flash drives with 3.0 specification. The advancement in technology and the possibility of inter-changeable use and threat to USB flash drive of 3.0 specification, also requires consideration - we find no merit in the objections raised by the appellants regarding treatment of scope of products under consideration by the DA.
Principles of Natural Justice - inconsistency in import data - Held that: - the DA did act with deligence while collaborating the data during the course of analyzing the parameters for the need to impose ADD on the subject goods. We also note that many meetings have been held by the DA with interested parties and the aspects of import data have been disclosed and discussed. This is not being denied by any interested party. However, the dispute is relating to disclosure of complete transactionwise details. We find such disclosure is governed by the confidentiality condition put in by the DGCIS. We find the non-disclosure of individual transaction details by itself did not vitiate the proceedings of the DA and adversely affected the interest of the appellants - We find no merit in the points raised by the appellants regarding inconsistency in import data and also violation of principles of natural justice.
It is noted that import of subject goods from third countries are negligible and could not have caused injury to the DI. The economic parameters of the DI, the price under selling, price suppression and depression, of the subject goods has been examined in detail for different grades of subject goods starting from 1 GB to 64 GB and others of USB flash drives. The inconsistency in analysis as claimed by the appellants are based on comparison of CYBEX import data and DGCIS import data. As already noted that the DA has mainly relied on the data furnished by DGCIS. As such, we find no merit in the submission of the appellants that the analysis suffered inconsistency because of inconsistency between date of CYBEX and DGCIS.
Appeal dismissed - decided against appellant.
-
2017 (9) TMI 66
ADD on PVC resin - provisionally assessed and cleared consignments of the respondent during July to September, 2012 - N/N. 15/2013-Cus - N/N. 70/2010-Cus - Held that: - the provisional duty ordered to be continued for six months by the Tribunal is as per the rate applicable on the date preceding the N/N. 70/2010 Cus. - the N/N. 15/2013-Cus is not legally made retrospective and it cannot revive N/N. 70/2010-Cus, which has been set aside - the difference between the provisional duty under AD and provisional assessment for regular Customs duty has not been appreciated by the Revenue while preferring this appeal - appeal dismissed - decided against Revenue.
-
2017 (9) TMI 65
Classification of goods - “Tail Brush FIRC” - Parts of Tunnel Boring Machine (TBM) - whether classified under CTH 8431 43 90 or under CTH 9603? - Held that: - Chapter 8431 covers the parts which are suitable for use solely or principally with the machinery of headings No. 8425 to 8430; whereas brooms and brushes (including brushes, which are part of machines and appliances in general). A reading of Chapter 9603 makes it clear that it covers normal brushes which could also be part of certain machines and appliances - there is no dispute that the item imported is specifically suitable for use solely or principally with the Tunnel Boring Machine (TBM). The respondent has specifically mentioned that the item is customised only for Tunnel Boring Machine (TBM) having the specific purpose of shielding the flow into the TBM. Further, it appears that TBM would be covered under Heading 8430 and when the item imported is solely or principally for use as part the TBM, there should not be any doubt that it would be covered under Chapter Heading 8431 and under its sub-headings 8431 4310 or 8431 43 90.
The right classification for the subject item would be 84314390 only - appeal dismissed - decided against appellant-Revenue.
-
2017 (9) TMI 64
Classification of the imported vehicles - Sportsman Forest Tractor - classified under CTH 87012010 or under CTH 87031090? - The department is of the view that such vehicles are all train vehicles capable of being used not only on road but also in other places like farms, golf course etc. But the claim of the appellant is that the vehicles are constructed essentially for hauling or pushing another vehicle, and satisfy the condition of Note-2 to Chapter 87 and hence classifiable as a Tractor under 8701 - Held that: - Only the vehicles which satisfy the Note-2 to Chapter 87 will merit classification under 8701 whereas heading 8703 will accommodate motor vehicles principally designed for the transport of persons. There is no dispute about the fact that Note-2 to Chapter 87 is satisfied by the imported vehicles. On a perusal of the booklet pertains to the imported vehicles, it is easily seen that it can accommodate only one person i.e. driver of the vehicle.
The appellant has submitted copies of the tariff ruling by the U.K. as well as that of the European customs authorities wherein identical goods have been classified under heading 8701 9020 in accordance with the General Interpretation Rules as well as Rule 2 to Chapter 87. It is to be recorded that the Indian Customs Tariff is aligned with the HSN and hence the HSN explanatory notes as well as various decisions in connection with the classification of goods under HSN will have persuasive value.
The vehicles are rightly classifiable under 8701 2010 as claimed by the appellant in the Bills of entry - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 63
Maintainability of appeal - Section 9C of the Customs Tariff Act - ADD - AA Dry Cell Batteries - imported from China PR and Vietnam - Held that: - the Government of India, Ministry of Finance, Department of Revenue who is the Competent Authority to impose any ADD on goods in terms of Section 9A, did not issue any order either imposing or reviewing the imposition of ADD on subject goods. Though the DA initiated investigation in terms of the statutory powers conferred on him, on conclusion of the investigation he issued the final findings stating that there is no case for imposition of ADD. Thereafter no order has been passed or notification issued in terms of Customs Tariff Act or the Rules of 1995.
The Tribunal in Indian Spinners Association vs. Designated Authority [2000 (6) TMI 54 - CEGAT, COURT NO. I, NEW DELHI] held that the DA is purely a recommending authority. The determination of levy of ADD is by the Central Government. As the Central Government did not determine imposition of ADD, no appeal could be considered against the finding of the Designated Authority - there is no notification in the official gazette. An information obtained under RTI Act cannot be equated to a notification issued under official gazette in terms of exercise of statutory powers vested in the Central Government.
There is no determination of ADD levy by notification as published in the official gazette by the Central Government under Rule 18 and, as such, the appeals under Section 9C in the present case are not maintainable - appeal dismissed being not maintainable.
-
2017 (9) TMI 12
EOU - refund of Central Sales Tax - case of Revenue is that the first petitioner is not entitled to CST reimbursement in view of the fact that, the petitioner has purchased material from a SEZ Unit - Held that: - There is no reason as to say that, purchases from SEZ by an EOU will not be entitled to reimbursement of CST in terms of FTP of 2009-2014 - An EOU purchasing goods from a SEZ will be entitled to reimbursement of CST in terms of FTP, 2009-2014. The first petitioner was allowed such reimbursement - petition allowed - decided in favor of petitioner.
-
2017 (9) TMI 11
Valuation of imported fabrics declared as Polyester Knitted Fabrics under CTH 6006 9000 - enhancement of value - the original authority redetermined the value of the goods as USD 59845.30 (Rs.27,64,853/- CIF) and classified the goods to be under CTH 60063300 - Held that: - though the test report has been conducted, it is seen that the rate of duty in respect of both the classifications are same and therefore the contention of the appellant that they had any malafide intention to mis-declare or mis-classify the goods is not without force. Further, a certificate has been produced from the supplier and also bank statement to the effect that the appellant has paid only 4848 USD to the foreign supplier - reliance placed in the case of SAI IMPEX Versus COLLECTOR OF CUSTOMS [1992 (7) TMI 162 - CEGAT, NEW DELHI], where it was held that the transaction value is not enhanceable in the absence of evidence of contemporaneous import of identical or similar goods and that if the manufacturer's invoice is available and genuine, is the best evidence of the price of imported goods - the enhancement of value is unjustified - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 10
Demand of duty - confiscated goods - option to redeem not exercised by the appellants - Benefit of N/N. 64/88 dated 1.3.1988 - import of various medical equipments - violation of condition of notification - section 124 of Customs Act, 1962 - Held that: - it is not clear whether the show cause notice was issued under section 124 since the copy of the same is not part of the records - The issue whether the department can demand duty under section 124 of the Customs Act, on identical facts, has been analyzed by the Hon’ble Supreme Court in the judgment of Fortis Hospital [2015 (4) TMI 348 - SUPREME COURT], where it was held that It is clear that when such an action was not contemplated, which even otherwise could not be done while exercising the powers under Section 124 of the Act, in the final order there could not have been direction to pay the duty.
Penalties - Held that: - the certificate has been withdrawn by DGHS in 2000/2002 much later after import. It does not show the period during which the condition was not fulfilled. Hence, in our opinion, the penalty cannot sustain.
It is required to be verified whether the show cause notice is issued under section 124 of Customs Act, 1962 - Appeal allowed in part and part matter on remand.
-
2017 (9) TMI 9
Penalty - main pleading of the appellant is that the finished goods did not belong to them - Held that: - the Revenue has failed to discharge its responsibility to prove charge of illegal import against the appellant - The original adjudicating authority makes a mention that “despite their being no direct inquiry from Shri Jeevan Jain as regards his role, in this case, his culpability is speaking out for itself”. This finding is more in the nature of mere statement, which is without sufficient evidence to sustain the same - penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 8
Mis-declaration of imported goods - goods were declared as glass sets, but on verification, a total of 857 cartons of glass sets along with 248 cartons of glass chatons, of different marks and sizes, were found in the container - whether or not there is a violation of provisions of Customs Act on the part of the importer, M/s Parth Corporation? - Held that: - The QR code on the packages as well as the manner of storage of, initially undeclared, items (chatons) in the consignment clearly established that M/s Parth Corporation were aware of the contents of the shipment and also under-valuation of the imported goods - the impugned order is sustainable and accordingly we hold that M/s Parth Corporation have violated the provisions of Customs Act by their act of attempted clearance by mis-declaring the import item as well as value, in the bill of entry.
Penalty u/s 112 of CA - Held that: - We find no supporting evidence recorded in the impugned order to conclude that M/s Pajil & Co. had tried to aid the original importer in execution of wrong high sea sale agreement and had been an active member of this conspiracy - We find no support, by way of evidence, discussed in the impugned order - Entering into high sea sale agreement based on the information provided by the original importer by itself, will not attract the penal provisions of Section 112 unless evidence are available to the effect that such high sea buyer had knowledge of possible undeclared item in the consignment and under-valuation - penalty not sustainable.
Valuation of the imported consignment - whether the original authority is right in rejecting the declared value in terms of Rule 12 of the Valuation Rules? - Held that: - it is to be noted here that the person behind the import clearly stated that the value declared is not correct and they are agreeable to enhancement of value. In fact, the importer stated that they were willing to pay the differential custom duty, as per enhancement proposed by customs along with the penalty and fine. It is clear, that based on such facts and evidences, that the original authority is correct in invoking Rule 12 for rejection of declared value.
Whether or not the original authority followed the provisions of valuation rules for fixing the correct assessable value? - Held that: - The rules, which were reproduced in para 14 of the impugned order, clearly stipulate that when the transaction value is fixed either in terms of Rule 4 or Rule 5, if more than one transaction value of such goods is found, the lowest such value shall be used to determine the value of imported goods. The methodology adopted in the impugned order is contrary to the said legal provisions - the valuation of the imported goods requires re-examination by the original authority in line with the applicable provisions of valuation rules - also, the aspect of confiscation and quantum of redemption fine needs re-examination - matter on remand.
Appeal allowed - decided partly in favor of appellant, partly decided against appellant, and part matter on remand.
....
|
