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Customs - Case Laws
Showing 1 to 20 of 188 Records
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2018 (2) TMI 2101
Valuation - FOB contract on export items - whether FOB price can be treated as cum-duty or not? - HELD THAT:- Delay condoned.
Appeal is admitted.
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2018 (2) TMI 2099
Detention of goods - Betel Nuts - Perishable goods - Petitioner's defence appears to be that the goods are not imported goods, but such as have been produced inside the country, therefore, the custom authority has no jurisdiction to detain or seize the same - HELD THAT:- While the aforesaid issue may be properly gone into in adjudication proceedings which are yet to be undertaken, at this stage, the goods being perishable in nature may not be detained by the custom authority any further. Accordingly, goods in question may be released in favour of the petitioner, subject to its furnishing security in the shape of bank guarantee for the full value of the goods as disclosed in the invoice.
Petition disposed off.
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2018 (2) TMI 2077
Jurisdiction - power of DRI to issue SCN - section 28 of the Customs Act - HELD THAT:- By following the ratio laid down by 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] as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter 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 UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER] 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.
Matter on remand.
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2018 (2) TMI 2072
Presence of the counsel for the Petitioner within visible range but outside audible range while the Petitioner is questioned by its officers - HELD THAT:- The Petitioner having been in custody for 52 days during which time he was not questioned by the Customs Department, it is appropriate that the Petitioner's prayer in this application should be allowed - It is accordingly directed that the Petitioner shall be permitted the presence of an Advocate of his choice within range of sight but outside audible range while being questioned by the Customs Department hereafter.
Application disposed off.
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2018 (2) TMI 2029
Maintainability of petition - alternative remedy of appeal - right to cross-examine the makers of statements which are heavily relied upon - Smuggling - foreign origin gold bars - vehicle Nissan Micra Car - penalty - infringement of principles of natural justice or not - HELD THAT:- No doubt, there is lapse on the part of the first respondent in not passing an order negativing the request of the petitioner as and when it was made. If a request for cross examination of witnesses or supply of certain document is made, the authority is obliged to dispose of the said request then and there. If a request for adjournment is made again it will have to be dealt with then and there. It is not proper on the part of the authority to receive applications making such a request and dispose them of while passing the final order. The order rejecting the request made in the application forms an internal part of the final order. Such an approach is to be frowned upon. But, on this score this Court does not propose to interfere in the matter.
In the light of the decisions rendered by the Hon'ble Delhi High Court in SUDHIR SHARMA, RN. ZUTSHI, AJAY YADAV, YASH PAL, VK. KHURANA, TRK. REDDY, PRADEEP RANA, ANIL MADAN VERSUS THE COMMISSIONER OF CUSTOMS, UNION OF INDIA AND ANOTHER [2015 (3) TMI 820 - DELHI HIGH COURT], this Court is of the view that the petitioner has not made out a case that the adjudicating authority has violated the principles of natural justice. Only if the infringement of the principles of natural justice is categorically demonstrated, this Court would be justified in permitting the petitioner to bye-pass the statutory remedy available to him. In as much as the petitioner has not made out a case of infringement of principles of natural justice by the first respondent, this Court is of the view that the writ petitioner can rather workout his remedies in terms of the statutory scheme laid down in the Customs Act, 1962.
This Court is of the view that since the petitioner has been relegated to availing the alternate remedy of appeal, there is no necessity to examine if the impugned order is resting on materials other than the statements of the said co-notices - The petitioner is at liberty to file an appeal before the appellate authority - petition dismissed.
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2018 (2) TMI 1994
Imposition of ADD - import of Acyclic alcohols i.e., Iso Nonanol (INA) having Carbon No.9 - initiation of investigation for imposition of anti-dumping duty on dumped imports - HELD THAT:- The undisputed facts are that the petitioner company submitted applications dated 18.10.2016 and 02.12.2016 before the 2nd respondent under Rule 5 of the Rules seeking initiation of investigation for imposition of anti-dumping duty on the imports of 2-EH, INA and 2-PH, which are the like articles. Though the Carbon numbers of the said acyclic alcohols differ from one another, they are being treated as like articles. Even the 2nd respondent vide notification No.63/1/2001-DGAD considered and held that Isononanol imported into India and 2EH produced by the domestic industry are like articles.
The 2nd respondent failed to appreciate the evidence/information furnished by the petitioner company that they are interchangeable in usage and are considered to be substitute products. Even the notification issued by the 2nd respondent held that Isononanol is a like article to 2EH produced by the domestic industry and in the absence of 2EH, INA and 2PH can be used as raw materials for manufacturing plasticizers.
From a perusal of the impugned proceedings none of the aspects referred and placed before the 2nd respondent authority by the petitioner company are neither considered nor appreciated. In fact, there is no mention about any of these aspects so as to initiate the investigation for imposition of antidumping duty on the import of INA and 2PH more particularly in the light of the definition as contemplated under Rule 2(d) of the Rules as well as the notification issued by the 2nd respondent vide No.63/1/2001-DGAD. This clearly establishes that the 2nd respondent has not considered any of these aspects and in a mechanical manner rejected the applications of the petitioner and in a routine course issued the impugned proceedings on a nonexisting ground that the authority does not find it appropriate to initiate anti-dumping investigation concerning imports of the products not being produced by the petitioner - the ground on which the impugned proceedings are passed is not available and alien to the language employed in Rule 2(d) of the Rules for considering like article and contrary to the determination made by the 2nd respondent in notification No.63/1/2001-DGAD.
The 2nd respondent is hereby directed to consider the applications dated 18.10.2016 and 02.12.2016 filed by the petitioner company afresh after evaluation of the entire information placed before him in accordance with the provisions of the Act and the Rules - Petition allowed.
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2018 (2) TMI 1989
Permission to clear imported goods - import of used tyres - HELD THAT:- Identical issue decided in the case of KADRI ENTERPRISE A PROPRIETOR CONCERN OF GULAM RASUL GULAM MUSTUFA SHAIKH VERSUS UNION OF INDIA & 2 [2015 (11) TMI 677 - GUJARAT HIGH COURT] where the respondents are directed to forthwith permit assessment and clearance of the goods imported by the applicant - petitioner.
The respondents are directed to permit the clearance of the goods imported by the petitioner - Customs authorities shall depute a Surveyor to check whether the tyres are reusable with or without retreading.
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2018 (2) TMI 1972
Imposition of penalty on CHA - Mis-declaration of value of goods - no corroborative evidences - case of appellant is that impugned order has been mechanically passed without considering the submission of the appellant - principles of natural justice - HELD THAT:- There is no corroborative evidence to the allegation that the appellant has helped the importer by undervaluing the imported goods. The penalty has only been imposed on the basis of the e-mails received from his e-mail account which have not been corroborated by independent evidence - Further, it is found that the clearance of the impugned goods were done not by the appellant but some other Customs broker and the appellant had not played any role in the clearance of the impugned consignment.
In view of insufficient evidence against the appellant to impose penalty on him under Section 112(a) of the Customs Act, 1962, penalty cannot sustain - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1968
Export of Basmati Rice - restricted item - The test report stated that the samples did not confirm to standards prescribed in Basmati Rice (Export) Grading and Marketing Rules, 1979 - HELD THAT:- The parameters laid down under the said DGFT Notification dated 5-11-2008 read with Notification No. 57/2009-2014, dated 17-8-2010 have been met with as discussed by the Learned Commissioner in the impugned Order-in-Original - there are no merit in the impugned order in confiscating the goods in question which have already been exported and imposing penalty on the appellant and its proprietor, based on the negative report received from laboratory in the light of Basmati Rice (Export) Grading and Marketing Rules, 1979, especially when the said report was challenged and request for retesting the samples by some other laboratory was made which was rejected without any plausible reasons.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1963
Recovery of Drawback amount - they had realised the export proceeds well in time and the Commissioner (Appeals) has not considered this fact while rejecting their appeal - Rule 16A of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 - HELD THAT:- The Commissioner (Appeals) has categorically observed that the dates of realization of the export proceeds are 20-9-2011, 15-11-2011 and 22-2-2012 in respect of Shipping Bill Nos. 1037266, dated 19-2-2008, No. 1037871, dated 31-3-2008 and Shipping Bill No. 1040217, dated 19-8-2008 respectively. He has further recorded that no document from the RBI regarding extension of initial period of six months for realization of export proceeds has been produced before him. The Government has also noticed that the applicant has not produced any evidence along with the Revision Application or otherwise to prove that they had realized export proceeds in respect of above mentioned three Shipping Bills within specified period of six months from the date of export and dates of realization mentioned by Commissioner (Appeals) in his order are undoubtedly much beyond the prescribed period of six months. No document issued by RBI is also produced to evidence that the applicant was allowed to realize the export proceeds beyond the period of six months.
No extension from RBI is obviously procured and received by the applicant and the copy of BRC is actually not submitted for consideration. Above all, the delay in realization of the export proceeds as mentioned in the order of the Commissioner (Appeals), which are referred above in this order, also are much beyond the period extended by J & K Bank even though this bank is not a competent authority for giving any such extension - Considering all these facts, the Government finds that the applicant has failed to provide any evidence to establish that they have received export proceeds within six months or within extended time granted by the RBI. Accordingly, no fault is found in the order of the Commissioner (Appeals).
Revision dismissed.
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2018 (2) TMI 1956
100% EOU - duty free import - benefit of N/N. 52/2003 Cus. dated 31.03.2003 - import of various capital goods without payment of duty and bonded the same in their private bonded premises - HELD THAT:- It appears that the appellant’s entitlement to duty free import of various goods under N/N. 52/2003 Cus. dated 31.03.2003 has not properly examined by the lower authorities. When it is so, we set aside the impugned order and remand the case to the Original Authority in the light of the above decisions but after providing an opportunity to the appellant to present their case.
Appeal allowed by way of remand.
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2018 (2) TMI 1893
Principles of Natural Justice - prohibiting Custom Broker from operating in the port - applicant submits that in gross-violation of principles of natural justice, without affording an opportunity of hearing to the appellant, the prohibition order has been passed - HELD THAT:- Even though the prohibition order was passed on 08.11.2017, from the record we do not find that an opportunity of hearing was extended to the appellant to explain their position before such order was passed. Needless to mention, this is gross violation of principles of natural justice and touches the very root of the matter.
The matter is remanded to the adjudicating authority to follow the principles of natural justice and pass a fresh order accordingly.
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2018 (2) TMI 1886
The Tax appeal is admitted for consideration of the substantial question of law:- Whether the CESTAT was right in law and in facts of the case to order release of the seized gold on payment of redemption fine of ₹ 40 lacs?
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2018 (2) TMI 1867
Refund claim - duty paid under protest - rejection of refund on the ground that the assessment order not challenged - Held that:- The appellate authority has correctly held that the duty was paid under protest and further that there is no need to challenge the assessment order and the refund claim has rightly been filed.
Unjust enrichment - Held that:- The appellate authority has held that the incidence of duty has been passed on to the buyer - further, once the appellate Commissioner has held that the refund has properly been filed and the duty was paid under protest the appellate authority should have also considered the memorandum of understanding between the appellant and his supplier abroad as well as the DGFT letter dated 28.02.2012 permitting the import at 50US$ per SQM.
The impugned order has simply rejected the appeal of the appellant after holding that the refund claim is barred by unjust enrichment. Once a refund is barred by unjust enrichment then it was incumbent upon the appellate authority to credit the said refund to Consumer Welfare Fund which has also not been done in the present case.
The present case is required to be remanded back to the Commissioner with the direction to examine the issue of unjust enrichment - appeal allowd by way of remand.
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2018 (2) TMI 1847
Maintainability of appeal - Section 128 of the Customs Act, 1962 - error in the invoice - Held that:- Without commenting on the correctness of such claim, we note that correct legal course is to bring it to the notice of the assessing authority for his acceptance or otherwise resulting in a reassessment of the duty liability based on the revised facts, by the assessing authority - In the present case no such course of action has been taken by the appellant.
In the present case, the original assessment stands and the grievance is directly to the appellate authority without the original authority examining the purported error made by the appellant - the order of the Commissioner (Appeals) cannot be interfered with.
Appeal rejected.
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2018 (2) TMI 1842
Duty Drawback - rejection for the reason that although the applicant exported their goods to M/s. DHL-FTZ, who are a consolidator in FTWZ, yet the export proceed was not received from M/s. DHL-FTZ - Rule 30(8) of SEZ Rules, 2006 - Held that:- Actually the goods have been finally exported to M/s. Utexam Logistics Ltd., Ireland through M/s. DHL, a SEZ unit in India. The applicant itself has strongly asserted in the Revision Application that M/s. Utexam Logistics is the real buyer of the goods exported by the applicant and M/s. DHL is merely a conduit for M/s. Utexam Logistics. Considering this fact, the applicant’s claim for drawback in this case is not covered under C.B.E. & C. Circular No. 43/2007-Cus., dated 5-12-2007.
The eligibility of drawback of duty against any export of goods by a DTA Unit to a SEZ unit is governed by Section 26(d) of the SEZ Act, 2005, Rule, 30(5) and Rule, 30(8) of the SEZ Rules, 2006 which are referred to in the C.B.E. & C’ s above mentioned circular. Rule, 30(8) of the SEZ Rules specifically provides that the drawback against supply of goods by DTA supplier shall be admissible provided payment for the supply are made from the foreign currency account of the SEZ Unit. Thus, to be eligible for claiming drawback of duty, it is imperative that the payment in foreign currency should be received by the DTA Unit from the SEZ Unit only.
Revision application rejected.
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2018 (2) TMI 1840
Duty Drawback - rejection on the ground since the goods had been put to use by the applicant, 98% drawback of duty of Customs is not admissible by virtue of Section 74(2) of the Act - Section 74 of the Customs Act, 1962 - Held that:- Testing of goods is considered as use of goods. The order of the Commissioner (Appeals) holding that testing of goods amounts to use of goods is not denied by the applicant also. But it is claimed that they had only inspected the goods and not tested. But no evidence has been provided to support their above claim. It does not sound otherwise also logical as the defects in the product like lanterns cannot be found out merely on physical verification and the functional defects can be actually found out on testing of the lantern.
The applicant has also not produced any copy of correspondence with the Chinese supplier of lanterns to ascertain the type of defects found in the lanterns from which it can be ascertained whether the defects in lanterns could be found out on mere physical inspection or testing of the goods was required - Whereas the Commissioner (Appeals) has clearly held in his order that the goods in question were tested and comes under the category of used goods as envisaged under Section 74 of the Customs Act, 1962. The applicant has failed to rebut his finding and, therefore, the Government does not find any reason for interfering in the order of Commissioner (Appeals).
Revision application dismissed.
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2018 (2) TMI 1839
Duty Drawback - Section 74 of the Customs Act, 1962 - rejection on the ground that identity of the re-exported High Carbon Ferro Manganese Fines could not be established with the imported High Carbon Ferro Manganese Fines on the basis of documents submitted at the time of import and export - Held that:- While Government agrees with the applicant’s contentions that physical examination of the goods is not only the sole method for verification of identity of goods, each item must be identified by methods appropriate to the nature of goods and that the applicant has exported high carbon ferro manganese to the Korean company, no convincing evidence has been adduced by the applicant to establish that high carbon ferro manganese fines imported from South Africa only has been re-exported to the Korean company. The Government is convinced that identity of the exported goods with the imported goods cannot be established merely by one reason that the description of goods is common in both the imported as well as exported goods. Therefore, merely because high carbon ferro manganese has been exported by the applicant does not automatically mean that the applicant has exported the same high carbon ferro manganese fines which they had imported earlier.
As the imported high carbon ferro manganese had been cleared by Customs under RMS without physical examination thereof and high carbon ferro manganese is of various qualities in terms of content etc., it cannot be accepted on the basis of the applicant’s claim only that high carbon ferro manganese exported to South Korea is the same as was imported earlier - Thus apart from tallying of description and quantity of the exported goods with the imported goods, matching of contents of exported high carbon ferro manganese fines with the imported variety of high carbon manganese fines is of very crucial importance in this case to establish the identity of the exported goods with the imported goods.
As per test report of Assmang Manganese Division Cato Ridge Works manganese contents are reported as 72.09%. But in respect of exported goods the manganese contents are reported as 68.02% by Customs House Lab. Thus there is a major difference in manganese content in the imported and exported high carbon ferro manganese fines as per these two reports also. The applicant has relied upon the other two test reports received from M/s. Inspectorate Griffity India Pvt. Ltd. and M/s. Posco Center Korea to claim that difference in manganese content is not very significant. But the Government does not consider these two reports relevant to the issue as these two test reports have not been given in respect of the samples drawn from exported goods in the presence of Customs officers and, therefore, their authenticity is not free from doubt.
The applicant has not provided any convincing material on the basis of which it can be accepted at this juncture that the exported goods were the same which the applicant had imported earlier from South Africa. Hence, Government does not find any fault in the Order of Commissioner (Appeals) - Revision application rejected.
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2018 (2) TMI 1831
Seizure of goods - Delay in passing of the order under Section 110A of the Customs Act, 1962 - case of petitioner is that the order is being deliberately delayed and prolonged to harass the petitioner - Held that:- Counsel for the respondent states that the order under Section 110A of the Customs Act, 1962 would be passed within a period of ten days. The said order would be passed and also communicated to the petitioner by speed post within ten days - Re-list on 12th April, 2018.
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2018 (2) TMI 1812
Provisional release of the seized jewellery - Section 124 of the Customs Act, 1962 - Held that:- The petitioners are directed to deposit 50% of the duty for the value of the gold jewellery seized from them. On such deposit being made, the respondents 2 and 3 shall release the seized items forthwith. It goes without saying that the petitioners shall cooperate with the adjudication proceedings that may be initiated by the respondents - petition allowed.
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