|
Advanced Search Options
Customs - Case Laws
Showing 61 to 80 of 233 Records
-
2017 (9) TMI 1391
Refund claim - EPCG scheme - denial of refund on the ground of unjust enrichment - case of Revenue is that the appellants have not established beyond doubt that the said duty paid by them was not recovered from their customers - Held that: - the goods imported by the appellant are "light and light fittings" which are used by them in their hotel for enhancing the beauty and decor. The same are neither sold to any other person nor consumed in the manufacture of any other final products which are ultimately sold to their customers. In such a scenario, the principle of unjust enrichment will not apply.
It is not the Revenue’s case that the said Chartered Accountant’s Certificate does not reflect the correct position. Neither they have been able to produce any evidence so as to cause doubt on the said certificate or to rebut the same - refund allowed - appeal dismissed - decided against Revenue.
-
2017 (9) TMI 1390
Smuggling - Urea Fertiliser - illegal export - seizure of truck - penalty - Held that: - initially, Shri Om Prakash, Proprietor of M/s. Om Khad Beej Bhandar, disowned the goods before the Adjudicating Authority and it was claimed before the Commissioner (Appeal). There is a clear link between Shri Omprakash and Shri Niranjan Rai and therefore, imposition of penalty is justified. However, the quantum of penalty is excessive - penalty imposed on Shri Niranjan Rai and Shri Omprakash are reduced to ₹ 25,000/-.
There is no material available that Shri Shiv Kumar Shastri had any knowledge of illegal attempt of export of goods. On perusal of the statement of the driver of the seized truck would not show any knowledge of the driver of the truck of the attempt of illegal export. Therefore, the confiscation of the seized truck and the imposition of penalty on Shri Shiv Kr. Shastri are not justified.
Appeal allowed - decided partly in favor of appellant.
-
2017 (9) TMI 1389
Release of confiscated goods - illegal import - Gold Biscuits - redemption fine - applicability of Section 125 of the Act - Held that: - the Adjudicating Authority observed that the appellant has failed to prove the sole question of ownership of the said goods and thus disentitled to claim option to pay the fine in lieu of confiscation under Section 125 of the Act - It is apparent on the face of the record that the appellant failed to establish the ownership of the seized goods - appeal dismissed - decided against Revenue.
-
2017 (9) TMI 1338
Project Import - reinforced/filled thermo plastic compound - eligibility for the purpose of availing benefit of project import to be considered as a project import falling under Chapter 9801 and read with Project Import Regulations, 1986 - Held that: - the provisions of the PIR 1986 themselves do not bar the import of machine in question - the chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein even though they should be covered by a more specific heading elsewhere in the schedule. Chapter Note 2 lays down that Heading 9801 is to be taken to apply to all goods which are imported in accordance with PIR.
The Project Import Regulations are beneficial provisions to facilitate persons for setting up substantial expansion of an existing unit. The definition of industrial plant excluding industrial system having a single machine or a composite machine is relevant. True, the definition is to identify whether industrial plant project per se falls within scope and purpose of CTH 9801 and the PIR 1986. Certainly, that is not the dispute here.
There is no allegation that the project per se cannot be industrial plant project because there will be installation of only one machine or a composite machine - what is relevant is whether the goods imported are for a project having only a single machine or a composite machine. Such an allegation is not forthcoming from the records. In any case, the importers as evidenced from the replies during the adjudication proceedings etc. have been crying hoarse that importer had already made an investment of ₹ 8.32 crores in plant and machinery before the importation. The imported machinery is only meant for substantial expansion of installed capacity to the extent of 100% as certified by the Chartered Engineer.
The imported goods qualified for classification under CTH 9801 and read with PIR 1986 - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1337
Validity of SCN - Time limitation - Advance License Scheme - case of Revenue is that amount of ₹ 10,69,643/- confirmed in the impugned order had already been paid by them under protest on 17.10.2003. In the circumstances, the SCN ought to have been issued within the period of limitation from that date. However, the same having been issued more than one year i.e. on 29.12.2004, is therefore hit by limitation.
Held that: - appellant had exported substantially fulfilling the export obligation and in fact had been seeking extension of time to complete the quantitative obligation also - It is not the case of the department that they were involved in any diversion of imported raw material clandestinely for purposes other than that intended - The SCN therefore should have been issued within a period of six months provided for normal period of limitation under section 28 of the Customs Act, 1962 as was in force at the relevant time. However, this was not done and the show cause notice was issued only after six months period i.e. on 29.12.2004.
Reliance placed in the case of Commissioner of Customs, Chennai Vs. Lalchand Bhimraj [2013 (7) TMI 797 - MADRAS HIGH COURT] wherein duty was paid on 1.6.2000 and the SCN was served on imported on 2.12.2000. It was held that the notice was time-barred.
Appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1336
Valuation of imported goods - Re-Rollable Material - mis-declaration of goods - whether classified under CTH 72044900 or under CTH 72089000? - Held that: - heading 7208 requires that the width of product should be 600 mm or more to be classified under the said heading - In the instant case, it is nowhere coming out in either the examination report or the market opinions as to what is width of these cuttings. Hence, classification under this heading as has been held in the adjudication order and in the order of Commissioner (Appeals) is without any basis and hence incorrect.
The reports are conflicting - the basis of classification as well as loading the value is fallacious.
Appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1335
Refund claim - amount paid under the first bill of entry - amendments in the first bill of entry by rectifying the mistake - rejection of refund claim on the ground of time limitation - Held that: - there is no taxable event i.e., import of goods into India relatable to the first advance bill of entry and as such, the deposits made by the appellants, under the advance bill of entry cannot acquire the characteristics of duty of Customs. The same would remain only a deposit with the Revenue. If the said deposits do not adopt the nature of duty, the provisions of section 27(1) would not get attracted.
The Hon'ble Gujarat High Court in the case of Swastik Sanitarywares Ltd. Vs Union of India [2012 (11) TMI 149 - GUJARAT HIGH COURT] has held that second-time deposit of the same amount on clearance of the same goods did not amount to deposit of excise duty and was a pure mistaken deposit of the amount with the department which the Revenue cannot retain or withhold. Such claims would not fall under section 11B of the Central Excise Act - Admittedly, the filing of advance bill of entry with deposit of duty amount, did not materialize inasmuch as, on account of some mistake in respect of bill of lading, the goods were not cleared against the said bill of entry. As such, it can be successfully concluded that no event of import took place so as to fix the duty liability against the importer.
Appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1334
Refund of amount deposited in Customs House Treasury, where no export took place - rejection on the ground of time limitation - Held that: - the lower authorities had not examined the facts of the case particularly the assessment of the shipping bills as contended by the ld. Counsel on behalf of the appellants - The matter is remanded to the Adjudicating Authority to decide afresh after considering the facts and the case laws after observing the principles of natural justice - appeal allowed by way of remand.
-
2017 (9) TMI 1333
Penalty u/s 117 of CA, 1962 - EPCG scheme - non-fulfillment of export obligation - Held that: - Section 117 of the Act, 1962 provides any person who contravenes any of the provisions of this Act or who fails to comply with the provisions of this Act, etc., where no express penalty is elsewhere provided for such contravention or failure, shall be liable to penalty - the appellant failed to comply with the provisions of the Act by way of non-fulfillment of the obligations of the Act, the imposition of penalty u/s 117 is warranted.
As the appellant failed to fulfill the export obligations due to the manufacture of sub-standard materials, the quantum of penalty should be reduced.
Appeal allowed - decided partly in favor of appellant.
-
2017 (9) TMI 1332
Smuggling - Gold bars - confiscation - Whether Commissioner of Customs (Appeals) was legally correct to pass an order for Denovo Adjudication by lower authority after verification with the records of M/s. Anand Silver Pvt. Ltd. for the gold bar which was already tempered and when it is not clear how verification will bring out the truth? - Held that: - the Commissioner(Appeals) had given an opportunity to establish the truth on the basis of records, if available and thereafter the question of further investigation would arise, which cannot be treated as unreasonable.
Release of Gold Bars - Held that: - there is no indication in the Panchnama that these goods have foreign markings. The Revenue had not disputed this fact - there is no material available on record that the cue pieces were not bearing any foreign markings. So, there is no reason to interfere with the order of First Appellate Authority.
The confiscated gold has already been disposed by the department. The Commissioner(Appeals) observed that the appellants are entitled to the sale proceeds minus the fine etc., if any, as provided under section 150 of the Customs Act, 1962 - appeal dismissed - decided against Revenue.
-
2017 (9) TMI 1280
Bail application - It is the case of the Department that the petitioner had well-planned the entire modus with full knowledge of the fact that the modus adopted by the petitioner amounts to offence and loss of revenue to the Department - mis-interpreting provisions of Section 108 of the Act - production of documents by petitioner - whether pending investigation under the provisions of the Customs Act, the petitioner is considered as an accused? - interpretation of statute - Held that: - The Department has challenged the order of the Sessions Court in not accepting their contention that the petitioner has not cooperated with the investigation and has erroneously concluded that when the Court granting bail had imposed condition of full cooperation to the Investigation Agency, did not include that the petitioner was required to produce any documents before the Investigating Officer. The Sessions Court appears to have limited the operation of the condition of bail conservatively. Section 108 of the Customs Act is for the very purpose to aid the investigation and in the aid of investigation, to produce documents - The nature of details sought for under the summons of Section 108 of the Customs Act issued by the Investigating Officer is on the basis of investigation carried thus far. The investigation, which is under the domain of the Investigating Officer, he was perfectly justified in calling upon the details - interpretation now given to word “fully cooperate with the investigation” stands expanded to the extent that it means to see that the petitioner to fully cooperate and such cooperation must be voluntary cooperation, thereby leaving it upon the petitioner, who is facing investigation, to decide on his own where he desires to volunteer and where he does not. Such proposition cannot be accepted in the field of investigation - The petitioner has therefore not fully cooperated with the investigation as per the conditions of bail order.
Whether in the facts of the case, the petitioner, who is arrested under Section 104 of the Customs Act can be considered as an accused to bring him under the protection of Article 20(3)? - Held that: - this Court is of the view that in the facts of the present case, where petitioner is yet to attend the status of an accused arrested for commission of offence, Article 20(3) of the Constitution cannot be made applicable, which would protect the petitioner from operation of Section 108 of the Customs Act - The power of a Customs Officer to carry out investigation in Chapter 13 of the Customs Act, both Sections 104 and 108 fall in Chapter 13 when person under investigation joins the investigation with the aid of the powers in Chapter 13. Hence, when the petitioner was imposed with a condition to cooperate fully, he would be subjected to investigation under the provisions under Chapter 13 including Section 108. Therefore, when the Department was within its power to investigate, issued summons under Section 108 and it was obligatory upon the petitioner to cooperate. Non-cooperation on the grounds mentioned amounts to breach of conditions of bail.
Application allowed - The order dated 10.03.2017 passed by Additional Sessions Judge, City Sessions Court No.15, Ahmedabad in Criminal Misc.Application No.3525 of 2016 is quashed - The case is relegated back to the Additional Sessions Judge, City Sessions Court No.15, Ahmedabad for fresh consideration of the application filed by the Department - petition allowed by way of remand.
-
2017 (9) TMI 1279
Penalty u/s 112 of CA - principles of natural justice - the petitioner was denied an opportunity of cross-examination of the material witnesses relied upon by the prosecution - Held that: - The show cause notice although intulated as to be one under Section 124 of the Customs Act, 1962, the order in original proceeds to impose penalty under Section 112 of the Customs Act, 1962 - The allegations in the proceedings are that, about 40 kgs. of gold were found in the custody of the petitioner. These allegations along with the order in original are required to be gone into. With the petitioner not providing any asset from which the penalty can be recovered, it would not be prudent to grant an unconditional stay of the imposition of the personal penalty.
-
2017 (9) TMI 1278
Penalty u/s 117 of CA, 1962 - service of notice - no notice u/s 155 (2) of the Customs Act, 1962, was issued - Held that: - on the identical issue, the Tribunal in the case Suvasis Banerjee & Others [2016 (8) TMI 874 - CESTAT KOLKATA] has held that the protection under section 155(2) is applicable to all legal proceedings. Further, if protection to officers against proceedings in courts can be given, there is no reason why such a protection cannot be given to proceedings before quasi judicial authorities - penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1277
Benefit of N/N. 21/2002-Cus - the appellant had claimed the exemption of the imported goods under Sl.No.80A of the N/N. 21/2002-Cus. From the facts, it emerges that this was also initially allowed by the department. It was only later that the appellant changed their claim to benefit of Sl.No.80(B) of the notification - denial on the ground that procedures set out in IGCRDMEG Rules were not followed - whether the IGCRDMEG Rules, 1996 will have the effect of denying the benefit extended under exemption notification?
Held that: - there is no post-import condition for Sl.No.80(A). The requirement of following procedure laid down in IGCRDMEG Rules comes into the picture only when the goods are imported under claim of benefit under Sl.No.80(B). The appellant has a point that when the goods had been imported with initial claim of benefit under Sl.No.80(A), there would not have been any inkling of the requirement of the said rules. For this reason itself, appellant cannot be faulted for not having taken correct registration and filed declaration as provided for in the said Rules. In any case, appellant have submitted letter of the jurisdictional Superintendent of Central Excise dt. 13.1.2006 confirming the use of the imported goods in the manufacture as required.
The purpose of the IGCRDMEG Rules is to ensure mandate of the import and its manufacture and its subsequent processing etc. without obviating commission of fraud etc. There is no such allegation here. The usage of the imported goods have been sufficiently established which would be sufficient compliance of the condition of the notification.
Appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1276
Quantification of duty - redemption fine - penalty - non-fulfillment of export obligation - production and export of polished Granite Slabs, Tiles and Monuments - In terms of the LOP, the assessee have to achieve a minimum export obligation of NFEP of 40% for a period of 10 years. Only because this obligation was not achieved, the Development Commissioner on 23.02.2005, imposed penalty of ₹ 2,00,000/- and finally on 29.05.2005 had cancelled the LOP - whether the duty liability confirmed against the assessee is in order or otherwise?
Held that: - when the capital goods, tools etc. have been obtained and used by the assessee right from 1988, till permanent closure of the factory in July 2002, and, subsequent cancellation of LOP on 02.09.2005, it would be unjust and unfair to deny depreciation for the period of four years exposure to natural elements as also for wear and tear that would have resulted due to their extensive use. It is also noted that machinery available in the factory premises had been placed under seizure on 29.08.2006. It is also not the case that assessee had siphoned off capital goods etc. and that they were not found as on the date of seizure - for the purposes of determining the duty liability in respect of both imported and indigenously procured goods, depreciation for the period from their import/procurement, upto the date of cancellation of the LOP and the duty liability should be calculated accordingly. The matter is therefore once again remanded to the adjudicating authority, however only for the limited purpose of requantifying the duty liability - matter on remand.
Penalty u/s 112 (ii) of Customs Act, 1962 - Held that: - considering that travails faced by assessee, in particular, the fact that while having not fulfilled export obligation in toto, they have however achieved NFEP of 82.69% and 96.21% for the relevant periods, as also the fact that the dispute has resulted in protracted legal proceedings, the penalty should be reduced to ₹ 25,00,000/-.
Confiscation and penalty upheld - appeal allowed - decided partly in favor of appellant.
-
2017 (9) TMI 1275
Benefit of N/N. 21/2002-Cus. dt. 1.3.2002 under Sl.No.80(B) - concessional rate of duty - import of bulk drug, Zidovudine - Revenue alleged that appellants are not eligible for such concession rate of duty as they have not fulfilled the conditions set out in Sl.No.80(B) of the notification - appellant claims that the procedure attached to Sl.No.80(B) is not a substantive one and being only a procedural condition, the non- compliance of the same would not disentitle the appellant of the substantive benefit - Held that: - It is not disputed that Zidovudine is specifically listed in List 3 against Sl.No.80(A) of the said notification. Against Sl.No.80(A), there is no condition attached - similar issue decided in the case of COMMISSIONER OF C. EX., HYDERABAD Versus HETERO DRUGS LTD. [2009 (7) TMI 1139 - CESTAT BANGALORE], where it was held that there is no definition of bulk drugs in the Notification involved. As per the Drugs (Prices Control) Order, 1995, drugs also include bulk drugs. The item Lopinavir figures in List 3 of N/N. 21/2002-Cus and exemption is allowed - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1274
Imported goods not used for intended purpose - it appeared to the department that against 6007.721 MTs of crude palm oil imported, only 5990.466 MTs was utilized for the intended purpose, hence 17.255 MTs of crude palm oil was not so utilized - Held that: - the quantity of 17.255 MTs not utilized in the manufacture of final products, in any case, constitutes only 0.57% of the total quantity imported - similar issue decided in the case of M/s Jhunjhunwala Vanaspati Ltd. Jaunpur (U.P.) Versus The Commissioner of Central Excise, Allahabad [2015 (10) TMI 1532 - ALLAHABAD HIGH COURT], where it was held that the object of grant of exemption was only to debar those importer/manufacturers from the benefit of the Notifications who had diverted the products imported for other purposes and had no intention to use the same for manufacture of the specified items at any stage - appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1273
Confiscation - Redemption fine - penalty - mis-declaration of quantity of goods - there is a difference in weight to the extent of 2000 kgs - Held that: - The excess quantity found in the container has not been disputed by the appellant and this is the exactly argument advanced by the Ld. AR that it is a case of mis-declaration of quantity. The authorities below have rightly confiscated the impugned goods and imposed redemption fine and penalty, therefore, the confiscation of goods is upheld.
Considering the fact that the differential duty is only 94000/- and mistake has been admitted by the supplier on the goods. In that circumstance, the redemption fine and penalty imposed on the appellant are excessively high, therefore, the redemption fine is reduced to ₹ 20,000/- and penalty is reduced to ₹ 10,000/-.
Appeal allowed - decided partly in favor of appellant.
-
2017 (9) TMI 1272
Safeguard Duty - Advance License Scheme - N/N. 96/2009-Cus dated 11.09.2009 and N/N. 98/2009-Cus dated 11.09.2009 - goods imported from People’s Republic of China - N/N. 04/2012-(S.G.) dated 05.10.2012 - Held that: - the issue is no more res-integra and stand settled by the Hon'ble Bombay High Court in the case of Balkrishna Industries Limited Vs. UOI [2015 (12) TMI 1390 - BOMBAY HIGH COURT], where it was held that the safeguard duty imposed under Section 8C of the Customs Tariff Act, 1975, vide N/N. 4/2012-Cus is leviable, as the same is country specific, whereas the other two notifications are not country specific.
Inasmuch as there is no exemption from safeguard duty leviable under Section 8C, which is imposed on the goods imported from China, the importer has to pay safeguard duty, in terms of Section 8C- appeal dismissed - decided against appellant.
-
2017 (9) TMI 1271
Smuggling - Betel nuts - confiscation - penalty - Held that: - the driver has admitted that he was transporting the said betel nuts and failed to explain the source of procurement of betel nuts, he only said that one person stopped him and told that there is some consignment which is carrying from Sonauli to Gorakhpur and for that he will get the fare of ₹ 4,000/- and he failed to explain the name and address of the person who loaded the betel nuts in pickup van - He also admitted his crime before the officers - penalty imposed on Shri Zubair Ahmad of ₹ 25,000/-, qua on Appellant No. 1 is justified.
Confiscation - quantum of redemption fine - Held that: - the vehicle in question was involved in transportation of betel nuts whom source could not be explained by the Appellant No. 1 in that circumstance, vehicle is liable for confiscation, and the order of confiscation is justified - redemption fine has been imposed to the tune of ₹ 90,000/- is highly excessive, and is reduced to ₹ 40,000/-.
Appeal allowed - decided partly in favor of appellant.
........
|
