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Customs - Case Laws
Showing 41 to 60 of 233 Records
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2017 (9) TMI 1507
Concessional rate of duty - N/N. 16/2000-Cus dated 01.03.2000 as amended - It emerged that there was short receipt of the imported goods and hence a case was made out against the respondents that such short received quantities were not used for the intended purpose - Held that: - the total shortage of 325.491 MTS spread over five years, amount to only 1.5 % of total imported quantity. In fact if we are take into consideration only the transit loss of 123.904 MTS arrived in the at earlier paragraph, the loss would be only 0.57%. We are of the considered view, that such negligible loss percentages, that too over a five year period, are well within acceptable limits.
If the department makes an allegation that a portion of the imported goods have not been used for the intended purpose, it will also have to establish that allegation and adduce proof that the goods constituting the short fall were clandestinely removed, or sold or transferred in any other manner in violation of the conditions of the import. This is a sine qua non. In the absence of any such proof or evidence the allegation of the department will have no legs to stand on.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1506
Misdeclaration of imported goods - The examination revealed that the imported consignment consisted Zinc Scrap and there was no Aluminium Scrap in the consignment imported - confiscation - redemption fine - penalty - Held that: - the appellant filed Bill of Entry on the basis of documents available with them such as contract, invoice, Bill of Lading and Pre-shipment inspection certificate and description of the goods in all the said document was Aluminium Scrap therefore, the appellant did not have any mala-fide intention to mis-declare the goods - penalty set aside.
The goods have contravened the provisions of Clause (m) and Clause (l) of Section 111 of Customs Act, 1962 - redemption fine reduced from ₹ 5 lacs to ₹ 50,000/- - appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1505
Conversion of shipping bills - whether conversion of Free Shipping Bills into DEPB shipping bills as requested by the Appellant in their respective letters, be allowable or otherwise? - Held that: - the principle relating to allowing conversion of free shipping bill into DEPB, DFRC etc. shipping bill and from one promotion scheme to another promotion scheme has been laid down by the Hon’ble Delhi High Court in the case of Terra Films Pvt. Ltd. v. C.C. [2011 (4) TMI 13 - DELHI HIGH COURT]. Their Lordships after considering the Board's Circular No.4/2004 dated 16.1.2004, observed that amendment of the shipping bill after the goods have been exported, cannot be considered as mere amendment, when the request is for conversion of free shipping bills into DEPB or for conversion of shipping bills from one export scheme to another.
It is, therefore, clarified that conversion of free shipping (B) bills into Advance Licence/DEPB/DFRC shipping bills should not be allowed. As regards permitting conversion of shipping bills from one export promotion scheme to another is concerned, it is clarified that such conversion should only be allowed where the benefit of an export promotion scheme claimed by the exporter has been denied by DGFT/MOC or Customs due to any dispute.
The appellants had applied for conversion of free shipping bills into DEPB Shipping Bills much after the export of goods. Also, at the time of clearance of the goods it was specifically not disclosed in the free shipping bills nor in the ARE-1 export document by declaring thereunder, specifically their intention to claim any of the export benefit i.e. benefit under DEPB scheme, therefore, the consignment was not opened for physical examination by the Customs and the export was allowed. Hence, it is difficult to appreciate the argument of the appellant that it was a question of mere amendment to the shipping bills, which is contrary to the Circular No.4/2004 dated 16.1.2004 issued by the Board and was in force during the relevant time.
Appeal dismissed - decided against appellant.
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2017 (9) TMI 1504
Penalty u/s 114A - Classification of imported goods - Optical Fibre Cables - Held that: - there was surely some considerable confusion in the classification of the product - the appellants paid up the entire duty liability along with interest thereon, almost around nine months before the issue of show-cause notice, the imposition of penalty is not only unfair and unjust - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1503
Valuation of imported goods - old and used mainframe assemblies and parts/components of photocopiers - enhancement of value on the basis of second Chartered Engineer's certificate - whether the enhancement confirmed by the Commissioner on the basis of the second Chartered Engineer would sustain or not? - Held that: - there is inordinate delay in conducting inspection and also filing of the report - Even if the date of inspection is taken as 30.4.2003, as contended by the learned AR, the report is filed by the second Chartered Engineer after inspection of goods with much delay which is 18.8.2004. This is already after obtaining the report of first Chartered Engineer. When the department has not given cogent reasons for rejecting the enhancement/valuation made by the first Chartered Engineer and when there is so much delay in inspection as well as report of the second Chartered Engineer, we have to hesitate to accept the enhancement made on the basis of such report of the second Chartered Engineer - the enhancement on the basis of the second Chartered Engineer's certificate is not legal or proper.
The appellant is liable to pay duty on the enhanced value on the basis of the report of the, first Chartered Engineer - Further, since the goods were not restricted items during the relevant time of import, we find that the redemption fine and penalties are unwarranted and requires to be set aside - appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1502
Valuation of imported goods - used Mercedes Benz car, Model E230 and one used Yamaha motorcycle model FZ600 - reference to Parker's Guide - Held that: - for valuation of such used car has to be done on the basis of Parker’s Guide by giving appropriate Depreciation, Trade Discount and VAT Discount. Such a procedure has also been approved by the Tribunal in the case of Sunil Kumar Gupta Vs. Commissioner of Customs, Nava Sheva [1999 (10) TMI 557 - CEGAT, MUMBAI] - appeal allowed - decided in favor of Revenue.
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2017 (9) TMI 1501
Seizure of goods - Betel nuts - department is of the view that the respondent had not been able to satisfactorily explain the procurement of the goods - Held that: - the Customs officers merely proceeded on the basis of information collected through sources - it is well settled that the onus lies with the department to establish that the goods are of foreign origin in respect of non-notified goods.
The claim of the department that the respondent failed to produce the evidence of procurement of goods is fallacious and cannot be accepted - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1468
Benefit of N/N. 21/2002-Cus dated 01.03.2002 - Concessional rate of duty - import of Micronized Progesterone BP - The form of import being bulk, the Revenue contends that it should be under 80 (B) - Held that: - similar issue decided in the case of CIPLA LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI [2007 (8) TMI 131 - CESTAT, CHENNAI], where it was held that admittedly, the bulk drugs imported by the appellants were specifically mentioned in List 3 appended to Sl. No. 80(A) of Customs Notification No. 21/02 and are liable to be considered as drugs mentioned at 80(A). It is beyond doubt that bulk drugs are also drugs. They are so defined under the Drugs (Prices Control) Order, 1995 also - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1457
Restoration of appeal - Jurisdiction - Assessee filed written submissions before the CESATAT raising the issue of jurisdiction of DRI to issue a SCN and adjudicate it. The challenge was to the DRI officer not being a ‘proper officer’ under the Customs Act 1962 - Held that: - the Court is of the view that the CESTAT had to decide the issue on merits - the Court finds that the CESTAT was not justified in rejecting the application filed by the Appellant-Assessee - appeal restored - decided in favor of applicant.
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2017 (9) TMI 1456
Confiscation - Sweet Whey Powder - it was alleged that the goods are not conforming to the provisions of the Food Safety and Standards Act, 2006 Rules and Regulations made thereunder - This Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot examine the validity of test report when there are no other malafides alleged against the officers who have done the testing. Thus, merely because the third respondent has reported the presence of heavy metal-Aluminium in the samples, that by itself cannot vitiate the report by stating that he ought not to have examined the metal content in the samples as the general parameters do not provide for the same - this Court is not inclined to entertain the writ petition and the same is dismissed as not maintainable.
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2017 (9) TMI 1455
Redemption fine - smuggling - electrical goods and iridium of highest purity - prohibited goods - Held that: - admittedly, the goods were not declared by the petitioners, while they landed in Chennai Airport - In terms of Section 3(3) of the Foreign Trade (D and R), Act, 1992, all goods, to which, sub-section (2) applies shall be deemed to be the goods, imported or exported, of which has been prohibited under Section 11 of the Act. Therefore, when the baggage of the petitioners was treated as non bona fide baggage, the goods therein were rightly treated as prohibited goods under Section 11 of the Act - petition dismissed - decided against petitioner.
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2017 (9) TMI 1454
Absolute confiscation - prohibited goods - gold bars coming out of the SEZ - section 125 of CA, 1962 - option to pay redemption fine - Held that: - even if the goods in question are considered as prohibited goods as defined under the Customs Act, the adjudicating authority may consider imposition of fine and need not invariably direct absolute confiscation of the goods. - In these premises, thus to consider the issue raised at the bar that whether the gold bars removed from the Unit in SEZ with out permission and contrary to the Circulars issued by RBI and Customs, became prohibited goods, or otherwise, in our view, becomes more an academic exercise and hence need not be resorted to.
On the issue of considering the quantum of redemption fine imposed by the adjudicating authority, we find substance in the contention of the Revenue inasmuch as, wiping out of profit cannot always be the yardstick invariably in all the circumstances in fixing the quantum of fine; also in the present case there has been no data to support the finding that the margin of profit from such illicit transaction of removal of goods from the authorised SEZ operation to the local market would be 3 to 4% in the Respondent's case - quantum of redemption fine and penalty upheld.
Appeal allowed.
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2017 (9) TMI 1453
Benefits of N/N. 21/2002 dated 1.3.2002 - concessional rate of duty - denial on the ground that the respondents have not complied condition of producing the requisite certificate at the time of import - Held that: - the respondents have complied with the condition of producing the certificate at the time of filing the appeal itself. This being the case, the delay in producing the certificate has been rightly condoned by the Commissioner (Appeals) and has given the benefit of the Notification to the respondents.
Denial also on the ground that catalyst imported cannot be considered as raw materials or consumables etc. specified in Notification - Held that: - The Hon'ble Supreme Court in the case of COLLECTOR OF C. EX. Versus BALLARPUR INDUSTRIES LTD. [1989 (9) TMI 102 - SUPREME COURT OF INDIA], observed that sodium sulphate can be considered as a raw material - the ground of the department that the respondents are not eligible for notification for the reason that the catalyst imported by them cannot be considered as raw material is not tenable and therefore rejected.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1452
Benefit of the DFRC licences - N/N. 48/2000, dated 25.04.2000 - benefit denied for the reason that the DFRC licences were issued initially to M/s. Tata Iron and Steel Co. Ltd., and were subsequently issued to the importer - Held that: - the DFRC licences were dated 11.05.2001 as well as 13.08.2001. The date of shipment is 21.11.2002, for which, the Bills of Entry were filed on 11.12.2002 - There is nothing on record to suggest that the date of the DFRC licences were otherwise. Further, the scheme of DFRC provides for procurement of valid licences subsequent to its issue the purposes of import by third parties - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1451
100% EOU - Misdeclaration of description of goods - enhancement of value - Held that: - the goods have been imported accompanied by the Malaysian supplier's invoice in which the value of the goods found declared differently from what has been claimed at the point of export. Once the goods are considered as an independent import not connected with the claim of export from India, the findings of the adjudicating authority merits approval - confiscation upheld - appeal dismissed - decided against appellant.
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2017 (9) TMI 1450
Penalty u/s 114 (i) of the Customs Act, 1962 - Smuggling - red sanders - claim of appellant is that they have no knowledge of the attempt of illegal export - Held that: - Shri Chaphamayum Sana Singh had confirmed that all the three persons i.e. he himself, Shri Tomcha Singh and Shri Taorem Naba Singh, were physically present at the time of loading of Red Sanders and Potatoes and fruits. Thus, it is clearly evident that such persons had full and complete knowledge of the contraband goods being transported - it is clearly evident that the appellants except Shri Bajinder Singh had consciously loaded the Red Sanders attempting to export illegally.
The penalty on Shri Chaphamayum Sana Singh, Shri Tomcha Singh and Shri Taorem Naba Singh is upheld - the amount of penalty is reduced to ₹ 50,000/- each in case of the appellant - penalty imposed on Shri Bajinder Singh is set aside and absolute confiscation of vehicle is upheld.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1449
Refund claim - whether refund is admissible, when, the respondent did not challenge the assessment? - Held that: - the issue is squarely covered in favor of the respondent by the decision of the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi [2009 (9) TMI 41 - DELHI HIGH COURT], where it was held that non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 - refund allowed.
Unjust enrichment - Held that: - the facts are not clear as to how the imported goods were dealt with, whether the inputs were actually used to manufacture final products. The Commissioner(Appeals) has passed a perfunctionary order without discussing the complete facts in the background of the judicial precedents in the matter - the matter of unjust enrichment needs to be remanded.
Appeal allowed in part and part matter on remand.
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2017 (9) TMI 1394
Valuation of imported goods - inner part of Mini-valve (zinc) - it was alleged that the average declared value of the brass hardware imports was 25-30% lower than the prevalent notified tariff value for brass scrap - enhancement of value on the basis of LME price of zinc - Held that: - the sole basis of enhancement of value in this case is LME price of zinc, on which the Proprietor of importer was persuaded to pay the differential duty. No other evidence has been produced by the department - in a similar case, in which ball valves/check valves through JNPT, ICD, Mulund and where the value was also proposed to be loaded on the basis of LME prices, this Tribunal in the case of S.K. Dhawan and Ors. [2016 (3) TMI 888 - CESTAT MUMBAI] has held that the methodology adopted by the adjudicating authority for redetermination of the value of the imported consignments is totally on presumption and surmises and is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1393
Refund of SAD - N/N. 102/2007 - natural justice - case of appellant is that they were not issued with a deficiency memo or SCN or given a personal hearing before passing the adjudication order - Held that: - it is evident that appellant has not been given a chance to defend his case - also, an opportunity of personal hearing was not given - it is fit to remand the matter, so as to give opportunity to the appellant to establish his case - appeal allowed by way of remand.
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2017 (9) TMI 1392
Valuation of imported goods - "old and used photocopiers" - restricted item - Held that: - taking into account all factors, particularly, the aspect of the goods not being restricted at the time of their import, the interest of justice would be served in this case, by reducing the redemption fine imposed u/s 111(m) to ₹ 50,000/- and penalty imposed u/s 112 (a) ibid to ₹ 10,000/- - appeal allowed - decided partly in favor of appellant.
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