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Customs - Case Laws
Showing 21 to 40 of 188 Records
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2018 (2) TMI 1799
Classification of imported goods - parts of Air-Conditioner - the case against A2 [Sanjay Kakkar] was quashed on a technical ground for want of proper sanction to prosecution - Held that:- Quashing of complaint on technical reason for want of sanction will not ensure any benefit to the co-accused. It is now well settled by catena of the judgments that when the prosecution has placed before the trial Court prima facie material for the trial, the Court cannot probe into the records summarily and discharge the accused persons. In this case, the material placed by the prosecution, if proved to be true it will lead to conviction.
The observation of the Commissioner in the adjudication proceedings that there was no loss to the State cannot be considered at this juncture, because on going through his report, though he has discussed at length about various proposition of law, he has not addressed the core issue of mis-declaration of goods and wrong reference of Tariff code.
This Court holds that order of the Trial Court is legally sustainable and need no interference - petition dismissed.
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2018 (2) TMI 1795
Refund of excess duty paid - unjust enrichment - demand of Interest - Held that:- In the absence of any other contrary evidence to show that the excess amount paid by the appellant is recovered from anyone, the impugned order holding that the doctrine of unjust enrichment has not been satisfied, is incorrect and impugned orders are liable to be set aside.
Refund of Interest - Held that:- Both the lower authorities have not considered the issue in its correct perspective, as the amount of interest which has been paid by the appellant is due to faulty assessment of imported goods - the interest liability which has been demanded when the consignment was cleared was not due and is not correct - the interest paid by appellant which has been charged by Revenue, needs to be refunded to appellant.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1792
Vires of Public notice dated 10-1-2018 - the petitioner was directed to file their application before the second respondent well before the cut-off date and the application was directed to be received by the second respondent - Held that:- The petitioner did not comply with the direction issued in paragraph No. 10 of the order, dated 23-1-2018 on the ground that the petitioner does not have any contracts trade from China - Thus, the petitioner has no locus standi to challenge the impugned notification.
The petitioner has no locus standi to challenge the impugned notification and apart from that, having not complied with the interim direction issued by this Court, on 23-1-2018, this Court is not inclined to entertain this writ petition - petition dismissed.
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2018 (2) TMI 1748
Jurisdiction - Proceedings u/s 124 of the Customs Act as initiated by the Directorate of Revenue Intelligence (DRI), Kolkata Zonal Unit - Smuggling of Red Sanders - Held that:- This Court is of the view that the submission of Mr. Dey that the petitioner is liable in his capacity as “any person” to face a penalty under section 124 of the Customs Act does not exclude him from the purview of a proceeding under Section 124 as initiated through the SCN as well as the Supplementary SCN.
This Court must further notice the point raised by Mr. Dey that on conclusion of the proceedings, if adverse to the noticees, the DRI is empowered to take steps in terms of Section 124 both against the importer/importers and the petitioner as well as other persons named in the SCN/ Supplementary SCN, who have all allegedly acted not in discharge of their official duties but, as members of a smuggling syndicate.
The ends of justice do not call for interdicting the proceedings and, the law, as normally understood, requires the petitioner, in the facts of this case, to participate/cooperate in/with the show cause - interim relief/reliefs stand refused.
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2018 (2) TMI 1729
Valuation of imported goods - copper scrap - enhancement of value on the basis of LME price - Held that: - undisputedly, the appellant had imported the scrap against the aforesaid 19 bills of entry and through their letter to the department, they have accepted the enhanced value, but, later within the time limit prescribed for filing appeals, they filed appeals before the Ld. Commissioner (Appeals) challenging the said assessment order based on the LME price - the matter may be remanded to the Adjudicating authority to decide the issue on merit - appeal allowed by way of remand.
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2018 (2) TMI 1719
Provisional release of goods - requirement of furnishing Bank Guarantee - Held that: - if the petitioner is aggrieved by the impugned order, he can prefer an Appeal before the Commissioner of Customs (Appeals). This is clear on a reading of Section 128 of the Customs Act, 1962.
In the instant case, the petitioner is required to avail such remedy because of the complicated factual situation involved. Therefore, the Court cannot test the correctness of the impugned order, by making a roving enquiry into the factual position, which has been placed before the Court at the instance of the DRI - Petition is disposed of, by directing the petitioner to file an Appeal before the Commissioner of Customs (Appeals).
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2018 (2) TMI 1689
Provisional release of vessel - Sagar Fortune - whether condition imposed by the Ld. Commissioner i.e. bank guarantee of 30% of the estimated value is reasonable or harsh? - Held that: - bank guarantee should cover entire differential duty, redemption fine and penalties - In the present case, value of the goods estimated by the customs authority is ₹ 41.45 crore, accordingly differential duty amount (after payment of duty on the declared value) come to ₹ 3.62 crores.
By taking this differential duty, the total amount as per the guidelines given in para 2.2 of Circular dated 16-8-2017 should be approximately not more than ₹ 10 Crores.
Appeal disposed off.
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2018 (2) TMI 1688
Rectification of mistake - the main ground for rectification of the order raised by the Ld. Counsel is that the case is mainly based on the panchnama drawn at the premises of Shri Bhumish Shah and the documents recovered thereunder - Held that: - The present case in on valuation and tribunal passed order not only on the basis of panchnama alone but relying on various other materials such as statements of various persons and other facts, therefore merely on the basis of Commissioner’s order dated 28.04.2005 that too in different case of Shri Bhumish Shah, the order passed by this tribunal will not become incorrect.
There is no error apparent on record, in the order dated 13.2.2015 passed by this Tribunal - ROM application dismissed.
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2018 (2) TMI 1687
Penalties u/s 112 of CA, 1962 - case of Revenue is that the appellants were involved in sale of liquor to the domestic passengers, the conditions of licence have been violated - Held that: - Since the department has not specifically brought on any evidence against the appellants for improper importation of the goods or violation of the conditions of licence issued to M/s. Alpha, the penalties imposed against them u/s 112 of the Act cannot be sustained for judicial scrutiny - penalty set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1686
Penalty u/s 112(a) of the CA - allegation against the appellant is that they had colluded/ connived with the shipper in bringing Arecanut Betelnut Splits to India - Held that: - Since both the authorities below had categorically recorded a finding that the appellant had neither connived nor colluded with the shipper or the importer in getting the cargo imported, therefore, imposition of penalty u/s 112(a) of the CA 1962 is unwarranted - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1685
Valuation of export goods - It appeared to revenue that the market value of the consignment was inflated by the exporter - Held that: - the market enquiry of the value of goods was conducted in India whereas the goods were consigned for Dubai and the value said goods would fetch in Dubai was not enquired - since the export proceeds have been realized the declared value is found to be correct - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1621
Customs Broker - Prohibition imposed on petitioner M/s. Cargomar from operating within the jurisdiction of Bangalore Customs Division, with immediate effect - appeal to Appellate Tribunal - case of petitioner is that the same has been passed without giving any prior opportunity of hearing to the petitioner and it has virtually deprived the petitioner assessee of its source of livelihood by prohibiting it from operating in the jurisdiction of Respondent Commissioner of Customs, Bangalore Division - mis-declaration of goods - maintainability of petition.
Held that: - This Court dealing with a similar impugned order under Regulation 23 in the case of M/s. Capricorn Logistics Pvt. Ltd. [2017 (12) TMI 1040 - KARNATAKA HIGH COURT] had held that such orders under Regulation 23 of the ‘Regulations of 2013’ would be appealable before the Appellate Tribunal under Section 129-A of the Act.
The contention raised by the learned counsel for the petitioner that Regulation 21 provides for an appeal to the Customs Broker only in the limited contingency of suspension and cancellation of licence and not under any other contingencies based on the reading of Section 146 (2)(g) of the Act is rather misconceived and does not deserve to be accepted. The power to frame Rules given to the Board in the various fields enumerated in Clauses (a) to (g) of sub-Section (2) of Section 146 of the Act are not restrictive in any manner, but they provide for different fields for which Regulations can provide for.
Even the orders passed under Regulation 23 of ‘Regulations of 2013’ are appealable under Section 129- A of the Act read with Regulation 21 of the 2013 Regulations.
Departmental Authorities including the Appellate Authorities and also the CESTAT under Section 129-A of the Act are better equipped and manned with experts in the field to measure the pros and cons of the cases arising under the Customs Act, 1962 and therefore they are better disposed of to deal with the situations arising under the said ‘Regulations of 2013’ namely “prohibitions” under Regulation 23, suspension of licence under Regulation 19, cancellation of licence under Regulation 18 and imposition of penalty under Regulation 20.
As far as exercise of jurisdiction under Article 226 of the Constitution is concerned, it is well settled that the Rule of alternative remedy is not a Rule of bar of jurisdiction of this Court under Article 226 of the Constitution of India, but a Rule of discretion invoked by the Court in its extra-ordinary jurisdiction and this Court would be slow in invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India, if the order impugned before it have not passed through the Forums of appellate remedies provided under the relevant statutes - the present writ petition is disposed of as not maintainable with a liberty to the petitioner assessee to avail the remedy by way of an appeal under Section 129-A of the Act read with Regulation 21 before the Tribunal, if so advised in accordance with law.
Petition disposed off.
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2018 (2) TMI 1620
Revocation of CHA license - time limitation of SCN - Held that: - It is pertinent to record that the offence took place in a different place from that of the Licensing Authority who is in Delhi. Inasmuch as the offence report contained in the alleged violation of CBLR was received by the Commissioner of Custom, IGI Airport, New Delhi only on 15.12.2016, the SCN which was issued on 20.08.2017 within time and cannot be held to be time barred.
The role of the CHA in the Customs procedures is significant. The CHA is expected to safeguard the interest of exporter of the goods as well as the Customs - even though the appellant is guilty, the violations are not so grave as to justify the revocation of the custom licence - the ends of justice will be met with the forfeiture of security deposit of ₹ 75,000/- and in addition imposition of penalty of ₹ 50,000/-.
Appeal allowed in part.
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2018 (2) TMI 1619
Illegal exportation to Bangladesh - Cough Syrups - Bangladeshi Taka and Indian Currency Notes - Confiscation - Held that: - export of Phensedyl Recodex Cough Syrup for illegal exportation to Bangladesh through a route other than the specified route under Section 7(1)( c) of the Act, 1962 is prohibited - the appellant had failed to give any satisfactory explanation in respect of storing of huge quantity of Cough Syrups and Bangladeshi Taka.
It is presumed by the Revenue that the said amount is related to the sale proceeds of smuggled goods. At the time of seizure of Indian currency, the appellant could not give any explanation. Subsequently, Late Gopal Chandra Shil took a plea that the recovered Indian Currency notes were the advance payment received from the intending purchaser against the sale of the land and submitted copy of Deeds and Agreements. The Adjudicating authority had not examined the documents as these were not produced at the time of recovery - the Adjudicating authority cannot brush aside these evidences for the reason that these were not produced at the time of recovery.
The confiscation of Cough Syrup and Bangladeshi Taka is upheld - confiscation of Indian currency is set aside - matter is remanded to the adjudicating authority to decide afresh - decided partly against appellant and part matter on remand.
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2018 (2) TMI 1576
ADD - import of Para Nitro Aniline (PNA) originating in and exported from China PR - N/N. 88/2011-CUS dated 09/09/2011 - Sunset Review - Held that: - the confidential version of final finding which contained all the crucial data was perused by us during the course of hearing - It is clear that the data relevant in para 38, 68, 77 and 78 of the final finding were duly examined by the DA. In fact, on close perusal of such data, we have no reason to differ from the findings as recorded by the DA.
PNA produced by Suzhou Luosen Auxiliary Companies Ltd. and exported by Wujiang City Yilin Foreign Trading Co. Ltd. was originally subjected to the lowest of AD duty on conclusion of the original investigation. During sunset review the DA examined various parameters in order to determine the possible recurrence or continuation of likelihood of dumped and injury in case of non-continuation of AD duty already imposed - The learned Counsel for the appellants submitted that all the 4 parameters are to be examined and findings to be recorded in terms of Annexure II of the AD Rules. We note that the DA did take into account these parameters as listed in para 73 of the final finding.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1575
Refund of excess duty paid - benefit of N/N. 21/2002-Cus dated 1.3.2002 at serial no.248(1) - denial on the ground that they had complied with all the provisions of exemption notification and that relocation did not, in any way, breach the conditions specified therein - Held that: - on perusal of the records, it is seen that the rejection of the refund claim was without fulfillment of the prerequisite of a notice of the grounds on which the refund application was sought to be rejected. Not only is this a legal precondition but is necessary to ascertain the legality and propriety of rejection of the claim by the lower authority. We are deprived of such touchstone.
The only option before us is to restore the refund application to the original authority for disposal in accordance with the provisions of section 27 of Customs Act, 1962 - appeal restored.
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2018 (2) TMI 1574
Refund of SAD - N/N. 102/2007 Cus dated 14.09.2007 - denial on the ground that no amount was realized or received by the appellant company against 4% SAD paid by them as per the bills of entry - Held that: - the issue herein is squarely covered by the ruling of the Hon’ble Madras High Court in the case of CCE v. Flow Tech Power [2006 (1) TMI 37 - HIGH COURT OF JUDICATURE (MADRAS)], where it was held that duty had been absorbed by the assessee which was submitted that the Chartered Accountant’s Certificate and the profit and loss account also confirmed that the duty paid on the impugned goods had been absorbed by the assessee and had been shown as expenditure in profit and loss account and had not been passed on to the customer. Accordingly, it was concluded by the Hon’ble High Court that there was no error in the order of this Tribunal, directing to grant relief of SAD - refund allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1573
Classification of imported goods - Natural Calcite Powder - appellant classified it under CTH-25309030 - It appeared to Revenue that the goods imported were not Natural Calcite Powder but they were Processed Calcium Carbonate Powder and therefore, the goods were detained and samples were drawn and sent to Central Revenue Control Library, New Delhi (CRCL) - Case of appellant is that that CRCL did not have equipment to test the said samples and therefore, the test report given by CRCL was in doubt and that the appellant had right to ask retest of the samples from any other laboratory other than CRCL.
Held that: - in the case of M/s Rathi Enterprises, [2015 (2) TMI 81 - CESTAT NEW DELHI] this Tribunal had held that CRCL did not have facility to test the samples and therefore, the test report given by CRCL is in doubt and that the appellant had right to ask retest of the samples from any other laboratory other than CRCL.
The related confiscation and imposition of penalty and re-determination of value of consignments related to Bills of Entry filed on 25/09/2014 & 30/09/2014 is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1541
Classification of imported goods - Rommelag Bottle Packing Machine - classification under CTH 84224000 was changed to under CTH 84773000 by Revenue - Held that: - For such variation there is no reason stated by Revenue why the first classification sought as CTH 84773000 was converted into CTH 84775900. Neither in page No.327 nor in page 348 of the appeal folder exhibiting adjudication finding reason for change of classification under CTH 84224000 to CTH 84775900 is explained - Law is well settled that burden of proof is of Revenue to show that goods falls under a different CTH than declared - appeal allowed.
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2018 (2) TMI 1510
Payment of interest alongwith interest - applicability of EXIM Policy 1992-97 - Held that: - we cannot direct consideration of this application made in the year 1993 by issuing a writ in the year 2018. An entirely new regime has come into force since the policy (EXIM Policy) and the circulars which are relied upon. Going by the affidavit of the respondents, it is evident that this was not a open ended scheme. It was in effect and force for a particular period. It cannot be directed to be extended unless it is so provided in the document itself. Meaning thereby, this court can neither direct continuation of a policy or a circular or framing of a new policy.
Petition dismissed.
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