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Showing 81 to 100 of 233 Records

• 2017 (9) TMI 1213
  

  Penalty - default in fulfilment of its export obligations - RITES (petitioner) neither surrendered the licence nor completed the export obligations - Held that: - According to RITES, it did not receive the said impugned orders as they were sent to its erstwhile office address at New Delhi and RITES had since shifted to Gurgaon. RITES further claimed that it became aware of the impugned orders on 28.04.2015. Even thereafter, RITES did not take any further steps to assail the impugned orders. On the contrary, RITES paid the penalties and requested for closure of the case by the letters dated 13.07.2015.

  It is apparent that present petitions are grossly delayed and have been filed to overcome the failure of not availing of the alternate remedies within the time specified - RITES is Government of India Enterprise and not a hapless individual, who can be taken advantage of; it cannot be heard to canvas that it had made payments under duress. Further, even after the cases were closed, RITES did not take immediate steps to challenge the impugned orders and had approached this Court more than a year thereafter.

  The impugned orders are neither arbitrary nor unreasonable - petition dismissed - decided against petitioner.

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• 2017 (9) TMI 1212
  

  Benefit of N/N. 153/94-Cus dated 13.07.1994 - violation of condition of notification - goods of foreign origin imported for repairs and return - provisional release of the said seized grabs - Held that: - it appears that the appellant though substantially complied with the conditions of the N/N. 153/94-Cus dated 13.07.1994, they have been negligent in not giving a specific declaration at the time of unloading of subject goods that they were for Repairs and Return - Tribunal's decision in the case of Commissioner of Central Excise, Chandigarh vs. JCT Electronics Ltd. [2009 (11) TMI 727 - CESTAT NEW DELHI] and Hon’ble Gujarat High Courts decision in the case of IFFCO Ltd. Vs. UOI [1991 (6) TMI 84 - HIGH COURT OF GUJARAT], where it was held that the subject goods namely two grabs are eligible for benefit of the said N/N. 153/94 - There is no dispute about the identity of the subject goods which have already been re-exported and for which the appellant had given required bond undertaking as specified in the said Notification.

  There are clear procedural contraventions of the customs law and the rules made thereunder by the appellant in case of the subject goods. Therefore, the appellant is liable for the penalty u/s 112 (a) of the Customs Act, 1962 Considering overall facts including the negligence and consequential contravention of customs law, which is in the nature of contravention a penalty of ₹ 2,45,145/- is imposed u/s 112 (a) of the Customs Act, 1962.

  Appeal allowed - decided partly in favor of appellant.

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• 2017 (9) TMI 1211
  

  Valuation of imported goods - polyester spun yarn - enhancement in value based on Directorate of Valuation data (DoV data) - Held that: - It is well settled law that transaction value has to be accepted as the assessable value for the purpose of duty, unless the same is proved to be incorrect by production of any evidence. The said legal issue is settled by various decisions of the Tribunal in the case of Venture Impex Pvt. Limited vs. CC (Import & General), New Delhi [2016 (4) TMI 368 - CESTAT NEW DELHI], while setting aside the enhancement of the value on the basis of NIDB data, it was held that for adopting any other method for enhancement of the value of the imported goods, first of all transaction value is required to be rejected as incorrect/false on the basis of some evidences. It is only thereafter that the other method of deciding value has to be adopted.

  At the time of assessing the bills of entry, no evidence stand given for enhancing the value and the same has been done only on the basis of DoV data, by observing that similar goods stand imported at the higher value. No further details are available as to how the present consignment is similar to the earlier imports - The Revenue has neither alleged nor produced any evidence on record to indicate that the value agreed upon between the buyer and the seller or as reflected in the invoices is not a correct value, thus justifying the enhancement.

  Appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1210
  

  Exemption from CVD - polyester knitted fabrics - Whether the appellants are entitled for benefit of exemption from payment of CVD in terms of N/N. 30/2004-CE dated 09.07.2004 or not? - Held that: - reliance placed in the case of M/s. Artex Textile Pvt. Limited Versus Commissioner of Central Excise & Customs, Delhi (Faridabad) [2017 (9) TMI 1011 - CESTAT CHANDIGARH], where it was held that even if the claim of benefit under a particular notification is not made at the initial stage, the assessee cannot be estopped from claiming such benefit at a later stage - the appellant is entitled for the benefit of payment of CVD in terms of N/N. 30/2004-CE dated 09.07.2004 on polyester knitted fabrics.

  Valuation - On the basis of DRI alert whether the value of imported goods can be enhanced or not? - Held that: - reliance placed in the appellant own case case Artex Textile Pvt. Ltd. Versus C.C., Delhi-IV [2017 (9) TMI 1166 - CESTAT CHANDIGARH], where it was held that The value of imported goods in question cannot be enhanced on the basis of DRI alert and the basis of assessed bill of entry - the value of imported goods cannot be enhanced on the basis of DRI alert.

  Appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1209
  

  Penalty u/s 117 on CHA license holder - unclaimed consignment - misdeclaration of goods - Held that: - The appellants has failed to discharge his obligations under the Board’s circular No.9/2010 dated 8.4.2010. Thus, the appellant has not discharged his duties to verify the KYC norms.

  For clearance of the present container, the appellant was not involved. When it is so, then levy of the penalty is looking on the higher side. By keeping in mind the doctrine of equality, justice and good conscious, penalty reduced to ₹ 15,00,000/-.

  Appeal allowed - decided partly in favor of appellant.

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• 2017 (9) TMI 1208
  

  Confiscation - requirement of import license - Held that: - the imported material is plastic, waste and scrap and would be covered by the above public notice. This has been confirmed by way of test report of CIPET, Bhopal. Hence, the imported goods require an import licence which was not produced by the appellant - confiscation upheld.

  It is further seen that the appellants have also mis-declared the value of the imported goods resulting in liability for confiscation in terms of Section 111 (m). Waste and scrap of plastics are appropriately classifiable under CTH 3915 and not under 3901 as claimed by the appellant. Goods also will not be entitled to concessional duty under N/N. 12/2012 dated 17.03.2012.

  Appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1207
  

  Challenge to the levy of anti dumping duty - Interpretation of statute - scope of New Shippers - Rule 22 of Customs Tariff (Identification, Assessment and Collection of AD Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - DA held that the applicants therein cannot be treated as "New Shippers" - eligibility for individual dumping margin - imposition of ADD on the vitrified/porcelain tiles imported from China PR - N/N. 73/2003-Cus ADD dated 1.5.2003 and N/N. 82/2008-Cus AD dated 27.06.2008 - time limitation.

  Delay in finalizing the NSR - Held that: - Admittedly, Rule 22 itself does not provide for any statutory time limit for completion of review. We also note that there has been delay in completion of the NSR - While we note that there is a delay in the proceedings, which concluded in the final finding now under challenge, what is to be considered is whether in the absence of any statutory limitation, the appellants were put to any disadvantage due to such delay. It is necessary to note that immediately on the application filed by the applicant and initiation of NSR by the DA, order of provisional assessment has been issued by the competent authority so that the interest of the appellant shall be safeguarded. In case finally the authorities hold that the appellants are eligible for individual rate of AD duty or no AD duty, then all the benefits so available cannot be denied to the appellants. Keeping these facts in mind, we hold that delay in issuing the final findings cannot be the sole reason to set aside such final finding. This is more so in the absence of any statutory time limit under Rule 22 of the AD Rules.

  It is contended by the appellants that in second sunset review, the exports from China, PR have been found to involve no dumping during 2012-13 and accordingly, the request for sunset review was rejected. In view of the above fact, there is no dumping or injury and accordingly, it was pleaded that the NSR should have given a finding to that effect - Held that: - we are dealing with NSR, which is for the period of investigation from 1.5.2012 to 31.10.2012. During the said period, the AD duty was validly levied on the imports of the subject goods and the NSR sought was to have a separate finding for the appellants dealing with subject goods exported to India. We note that the reference of the appellant regarding termination of AD duty is not relevant to the issue at hand. The finding on NSR was based on the analysis and facts as recorded by the DA and the termination of the AD duty in 2013 has no implication for the period when the said duty was validly levied.

  Scope of “New Shipper” - whether the appellant do not fall within the scope of “New Shipper”? - Held that: - the DA, after following the procedures laid down in the AD Rules, proceeded to analysis the available record, before concluding the NSR. The crucial point is whether or not the appellants were involved in export of subject goods from the subject country during the earlier period. The DA also conducted though, belatedly, on the spot verification after the consent was given by the appellants - Having examined closely the arguments and facts of the case, we find that the DA did examine the data available to him and arrived at a sustainable and reasonable conclusion on NSR. The appellants are trying to take advantage of non-availability of certain specific data or non-disclosure of certain data to DA, to support their case that the DA cannot make a recommendation unless complete and thorough verification of all the facts are made and supported by the documentary evidences. We find such proposition is not tenable keeping in mind the constraints already noted and also the overall scope of the NSR investigation undertaken by the DA.

  The change of name of some of the appellants and their interconnectivity in business, as explained by the DA, has formed the foundation for further analysis by the DA in NSR. It is necessary to note here that the appellants did not make full and complete disclosures regarding their period of existence and relationship among themselves. In the absence of full and complete disclosure in a true and transparent manner, it is not open to the appellant to contest the final findings against individual dumping margin.

  The appellants failed to make all supporting disclosures and the DA correctly relied on available evidence with him to reject the claim for NSR. It is to be noted here that the NSR was initiated as per request of the applicants claiming individual dumping margin. It is apparent that the applicants have to establish their status as new shippers. It would appear that, in the present case, the applicants are substantially shifting the burden on the DA to adduce evidence that they are not new shippers. This is not a tenable proposition.

  Appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1206
  

  Misdeclaration of value imported goods - software - The appellant has claimed that they cannot be considered as the importer, since they have made payment to SAP India in INR for procurement of software which is only a domestic transaction. They have also claimed that they did not file the bill of entry nor did they authorised M/S DHL to file bill of entry - Held that: - It is evident that the software was directly supplied by SAP Germany to the appellant and DHL has filed the bill of entry on behalf of the appellant. Though no authorization was given by the appellant to DHL, it is an undisputed position that the software has, in fact, been ordered by the appellant and have been delivered to them by DHL. These actions clearly establish that the appellant is to be considered as the importer under Customs Act and, therefore, liable to the payment of customs duty.

  The portion of the license fee, which was paid by the importer of software which was repatriated to the foreign supplier of software, needs to be included in the assessable value of imported goods.

  Time limitation - Held that: - there is no evidence which implicates the appellants - There were also very much aware that such software was to be supplied by SAP Germany and is an import transaction. But for the detailed investigations carried out by DRI, the evasion of custom duty would have gone unnoticed. Hence, we find no merit in the argument that there was no willful suppression of facts by the appellant.

  Appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1205
  

  Benefit of N/N. 30/2004-CE dated 9.7.2004 - denial on the ground that the condition provided in the proviso has not been complied, inasmuch as the goods were not produced or manufactured in India - Held that: - in the appellant’s own case, M/s Artex Textile Pvt. Ltd. Versus Commissioner of Customs New Delhi [2016 (11) TMI 1456 - CESTAT NEW DELHI], the Tribunal has extended the benefit of notification dated 9.7.2004 by relying on the judgement of the Hon’ble Supreme Court in the case of SRF Ltd. [2015 (4) TMI 561 - SUPREME COURT], where it was held that appellants were entitled to exemption from payment of CVD in terms of N/N. 6/02 - the benefit of N/N. 30/2004-CE dated 9.7.2004 should be available to the appellants - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1204
  

  Detention of goods - hazardous goods - certain petro-chemical products viz. Pressed Distillate oil (FDO), Rubber Process Oil (RPO), calcium base grease and slack Wax - waste products - the department was of the opinion that the goods stated as Grease and Rubber process oil detained at the premises of M/s. Ess Ess Traders during the search proceedings were not up to the requirement of calcium base grease and rubber process oil as specified in the IS specifications - absolute confiscation - penalty u/s 112 of CA, 1962.

  Held that: - Commissioner (A) in the impugned order has elaborately discussed the evidence unearthed by DRI as well as nature of the goods and the relevant test report from CRCL. He categorically concluded by giving detailed reasons that the goods in question are of hazardous nature and is in the form of waste - Once it is established that the impugned goods are in the nature of hazardous waste they become prohibited goods and hence have been rightly confiscated absolutely - penalty upheld - appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1203
  

  Mis-declaration of goods - It was mentioned “Calcium Carbonate” in the papers relating to the consignment but inside the consignment, there were “Fire Crackers and Telescopic Channels” - Held that: - it appears that the appellant has not dealt directly with the importer, M/s. Sanco Industries Pvt. Ltd. but through M/s. Sky Park India, a logistic service provider (middle man), which was not desirable but not prohibited - matter remanded to the Adjudicating Authority to decide the issue of levy of any maximum punishment other than revocation of licence but by providing reasonable opportunity of hearing to the appellant - appeal allowed by way of remand.

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• 2017 (9) TMI 1202
  

  Confiscation - redemption fine - penalty - Classification of imported goods - used rails - whether classified under CTH 72 or under CTH 73? - Held that: - the classification of the impugned goods namely 'used rails' was doubtful and the Board has issued a Circular in 2005 holding that the said goods are classifiable under CTH 72 and later Board has changed their view by issuing another Circular in 2006 stating that such goods are classifiable under CTH 73 - the appellant has not acted dishonestly and contumaciously or with the deliberate or distinct object of breaching the law - confiscation of the goods is unjustified - redemption fine and penalty also unjustified - decided partly in favor of appellant.

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• 2017 (9) TMI 1201
  

  Adjudication of confiscations and penalties - violation of the judicial discipline - Held that: - In the present case, the Adjudicating Authority confirmed the earlier order despite the remand order of the Tribunal, is a clear violation of the judicial discipline and total disregard of the Order of the Tribunal and beyond the provisions of law. Therefore, such orders cannot be sustained in the eye of law - It should be kept in mind that the Adjudicating Authority is to act on the allegations of the Show Cause Notice and other materials as available. In the instant case, the Adjudicating Authority had not followed the direction of the Tribunal and therefore, such order is liable to be set aside.

  The matter is remanded to the Adjudicating Authority to decide afresh - appeal allowed by way of remand.

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• 2017 (9) TMI 1166
  

  Valuation of imported goods - Polyester Knitted Fabrics - enhancement of value on the basis of DRI alert - Held that: - the issue stands decided by the Tribunal in the same appellant's case Artex Textile Pvt. Ltd., Aggarwal Overseas Versus CCE, Delhi-IV [2017 (6) TMI 987 - CESTAT CHANDIGARH], where it was held that The value of imported goods in question cannot be enhanced on the basis of DRI alert and the basis of assessed bill of entry - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1144
  

  Redemption fine - penalty - transfer of DFIA license - clearance of pan masala, pan masala gutkha in domestic market as well as are exporting the same - N/N. 40/2006-Cus dated 01.05.2006 - Held that: - N/N. 40/2006 ibid clause 1 provisio provides that in respect of resultant products specified in para 4.55.3 of the handbook of procedures, the material permitted in the said authorization or the duty free authorization or the intermediate supply shall be for technical characteristic and specification as the material used in the said resultant product. Provided further that in respect of said resultant product, the exporter shall give declaration with regard to technical quality, characteristics and specifications in the shipping bill. The notification no.40/2006 provides that the items mentioned in para 4.55.3 of HBP are the resultant products.

  As per public notice no.35(RE13)2009/14 dated 30.10.2013 the provisions of notification no.31(RE-2013)2009-14 dated 01.08.2013 are not applicable if DFIA has been endorsed as transferrable after 01.08.2013. Admittedly, there is no dispute in this case that DFIA has already been transferred. Therefore, the provisions of notification no.31(RE-2013)2009-14 dated 01.08.2013 are not applicable to the facts of this case.

  As appellant has exported the goods availing the benefit of N/N. 40/2006-Cus dated 01.05.2006 and complied with conditions thereof. Therefore, the proceedings are not sustainable against the appellant - as the DIFA has already been transferred and no objection was raised by customs authorities as well as DGFT while transferring or during the export of goods, in that circumstances, provisions of notification no.31(RE-2013)2009-14 dated 01.08.2013 are not invokable - redemption fine and penalty set aside.

  Appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1143
  

  Benefit of N/N. 158/95 - violation of condition of notification - Held that: - nowhere it is mentioned that the appellant is required to seek extension of time within six months from the date of re-importation. In fact, the fact is not in dispute that re-imported goods are required to be re-exported within three years of re-import as per condition (i) of the said notification.

  When the main condition of notification has not been violated by the appellant, therefore the benefit of notification cannot be denied merely on the ground that appellant did not seek extension of time within 6 months of re-import - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1142
  

  Valuation of imported goods - re-assessment if bills on the basis of contemporaneous price - enhancement of value - Held that: - There is no evidence that transaction value was being influenced by any other considerations. The only basis for enhancement of value by the assessing officer is that certain imports of similar items were assessed with higher value around the same period - the contemporaneous imports have been made in connection with dissimilar nature of consignments with reference to quantity and also in some cases, period of import. Even otherwise, the price variation is in the range of 11 to 15%. The exact nature of goods and the details of contracts of the contemporaneous consignments were not available, only basic description and quantity of the imported items were available, which were compared.

  In the present case due examination about this crucial aspect has not been done by the assessing officer and comparison based on the contemporaneous import is not proper. Further, the contractual arrangements and invoices should not be rejected in the absence of any evidence to question their authenticity. As submitted by the appellants, NIBD data is a guidelines and an indicator for the assessing officer and it cannot be a substitute for assessable value. The assessable value for imported items has to be invariably arrived at applying Section 14 read with Customs Valuation Rules, 2007.

  Reliance placed in the case of Topsia Estates Pvt. Ltd. Vs. CC, Chennai [2015 (1) TMI 750 - CESTAT CHENNAI], where the adjudicating authority enhanced the value as the declared value appears to be very low compared to value available in NIDB data, otherwise, there is no material available, and it was held that in this particular situation, Rule 9 of the Valuation Rules would not be invoked.

  Appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1141
  

  Valuation of imported goods - Pneumatic Tools Accessories of various types - rejection of invoice value - deductive method of valuation - Rule 7 of Customs Valuation Rules, 2007 - Held that: - Admittedly, the price-list of the main appellant as displayed in their Website for trading of imported products in India is the main basis. While applying the provisions of Rule 7, it is necessary that the parameters mentioned therein are to be adhered to - In the present case, there is no discussion at all regarding the legal provisions of Rule 7 and the method of arriving at the deductive value in terms of the said Rule.

  The matter is remanded back to the original authority, who will decide the basis of rejection of transaction value and also re-determination of the transaction value if required in terms of the applicable provisions of Section 14 read with valuation rules - appeal allowed by way of remand.

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• 2017 (9) TMI 1140
  

  Smuggling - export of contraband item - Red Sanders Wood - penalty - Held that: - Both the brothers were involved in illegal export of Red Sanders Wood which is prohibited item for export under Section 3 (2), and 3(3) of the Foreign Trade (D&R) Act. 1992 read with ITC (HS) Export Policy 2009-2014 for contravention for the provision of the Convention on International Trade in Endangered Species of Wild Flora (CITES) as contained on International Trade Policy - penalties rightly imposed - appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1139
  

  Benefit of N/N. 21/2002-Cus. dated 01.03.2002 - misdeclaration of goods - Crossslinkable Polyethylene Compounds - Held that: - importer has claimed the benefit of concessional duty for goods which were not entitled to the same. Consequently, the misdeclaration also stands established. Consequently, the order of confiscation of the impugned goods with the imposition of redemption fine and penalty also merits no interference - since the appellant will not be entitled to concessional duty, the demand for differential duty is to upheld along with payment of interest - appeal dismissed - decided against appellant.

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