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Customs - Case Laws
Showing 41 to 60 of 188 Records
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2018 (2) TMI 1509
Restoration of Registration of Courier License - All that the Revenue would argue is that the Tribunal should not have interfered with the concurrent orders for they are passed on the materials produced on record - Jurisdiction of CESTAT - Regulation 14 of the said Regulations - Held that: - There are compliances to be made and particularly of execution of bond and furnishing of security. By Regulation 12, it is stated that a courier, who is registered under Regulation 10 or had intimated in form 'A' to the Commissioner of Customs having jurisdiction over the Customs Station from where he has to transact the business, shall furnish a bond and security as specified in Regulation 11 for each Customs Station. The obligation of authorised courier is set out in Regulation 13 and then, there is a power of de-registration. That power is conferred in the Commissioner of Customs. By sub-regulation (2) of Regulation 14, the aggrieved authorised courier and whose authorisation is revoked or he is de-registered, may, if aggrieved by the order of the Commissioner, represent to the Chief Commissioner of Customs in writing against such order of the competent authority and thereafter it is permissible for the Chief Commissioner to dispose of the representation.
We do not think that the tribunal, in the facts and circumstances of the case, has acted perversely in entertaining the appeal. More so, when the attempt of the Revenue was to question its jurisdiction on more than one occasion.
The case of the Revenue is not that the courier agent sub-contracted to sublet/outsource any of the activity/function for the purpose of assessment and clearance of courier parcels. On further scrutiny, it was found that the charge of violation of Regulation 13(j) is not substantiated - also, the tribunal found that no infringement of KYC verification leading to any significant revenue loss was pointed out even in the SCN.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1508
Freezing of bank accounts - Communications addressed by the Directorate of Revenue Intelligence to the Bankers, namely Kotak Mahindra Bank and Bank of Baroda - Held that: - In this case, when the petitioners state that to the knowledge of the DRI and the Customs Department, they have been importing consignments, having them cleared by payment of duty or otherwise exporting the goods with compliance of the Customs Act, 1962, suddenly there was no need to investigate their cases - there is no prohibition against investigation of old cases and past transactions, but in the garb of such investigation and scrutiny, the need for freezing and attaching the bank accounts should be made out by referring to and production of necessary materials.
Merely because the investigations are pending, we are not inclined to accede to the request of Mr. Jetly to continue the freezing order till all investigations are concluded and show cause notices are issued. We are not inclined to presume merely on the basis of the affidavit in reply filed by the Revenue that the adjudication process will necessarily result in a demand for payment of duty, interest and penalty.
Petition disposed off.
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2018 (2) TMI 1506
Import of restricted item - two consignments of 3-½ OD Tubing (seamless pipes) classifiable under CTH 7304 - confiscation - redemption fine - penalty - As per Foreign Trade Policy 2004-2009, import of such goods was allowed ‘free’. However, DGFT vide Notification No.64/2008 dated 24.11.2008 amended the policy which reads as ‘Import Policy for the item ‘Seamless Tubes/Pipes’ under 4 digit Exim Code ‘7403’ will be amended to read as ‘Restricted’ (instead of ‘free’). However, this restriction imposed on import was lifted subsequently by DGFT vide Notification No.81/2008 dated 16.1.2009.
Held that: - the appellant-importer has bonafidely imported the said goods and has undertaken effective steps for importing the same when that was freely importable prior to 24.11.2008 and further the restriction imposed under Notification No.64/2008 stood withdrawn vide subsequent Notification No.81/2008 dated 16.1.2009 - There was no restriction both at the time of placing the orders and also when the Bill of Entry was filed subsequently on 16.1.2009.
The appellant has also taken effective steps for obtaining licence from the DGFT - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1505
Benefit of N/N. 7-21/2002-Cus dated 1.3.2002 as per Serial I52A - import of consignment of paper which was claimed by them as waste paper classifiable under Chapter Heading 47.07 - the applicant represented before the Commissioner that the goods were having inherent defects because of uneven coating and damaged sheets and therefore could not be used as such and were accordingly cleared by the supplier as a waste paper not capable of being put to prime use.
Held that: - the waste paper as defined even in the HSN Explanatory Notes include printers rejects and similar material. It therefore implies that the goods need not necessarily be in the shape of clippings, shavings, cuttings etc. but defects in the roll as a whole. Prima facie uneven coating can be considered as one of the defects for which purpose the paper cannot be considered as prime paper.
As per report dated 04.06.2008 along with photographs (certified by the team) were furnished to this Tribunal, the paper imported is defective and scrap only.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1504
Import of restricted item - old and used ballast wagon for demag - It appeared to Revenue that the same is not capital goods but only accessory and as such, being a second hand used part, was not importable without specific licence as per para 2.17 of the Foreign Trade Policy for the period 2004-09.
Held that: - the appellant have imported a second hand spare parts for equipment which enhanced capacity of the existing crane and the same has resulted in modernization or technological upgradation of the existing crane - the same was appropriately imported under the provisions of Foreign Trade Policy 2004-09, as is evident from para 9.2 read with para 9.12 of the Policy.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1499
Release of imported seized goods - Desiccated coconut fine grade - goods have been expired long back - imported products were expired, and unfit for human consumption - refusal to draw samples on the ground that the consignment does not satisfy the labelling requirement
Held that: - the labels contained the details of the supplier, receiver, product, batch number, weight, date of production and expiry date. The main aspect to be noted herein is that the goods imported from Malaysia got expired long back in the year May 2015 itself, the same cannot be used for human consumption. The raw materials imported is used for manufacturing chocolates which is consumed mostly by children. At this time, even if the goods are handed over to the appellant, the same cannot be used for manufacturing purposes, as the shell life of the raw materials is already expired. From the available records, it is seen that the appellant in their representation dated 23.07.2014 addressed to the fourth respondent have admitted that they would require 3 to 6 months to exhaust the total quantity of goods imported. - there is violation in the import process and the learned single judge has rightly taken note of the regulations and the import process while passing the order.
If at all any request is made by the appellant for waiver of demurrage charges, the same may be considered by the respondents in accordance with law.
Appeal dismissed.
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2018 (2) TMI 1454
Classification of imported goods - 0.1% Natural Brassinolide fertilizer - appellant claimed classification of the said goods under Heading 31010099 as “other animal or vegetable fertilizer whether or not mixed together or chemically treated; fertilizer produced by the mixing or chemical treatment or animal or vegetable products” - Revenue objected to the said classification and sought classification of the product under Heading 38089340 as “plant growth regulators”.
Held that: - there is only a fine distinction between ‘fertilizer’ and a ‘plant growth regulator’. While fertilizer is generally for promoting the growth of plant or crop for desired increased harvest, the plant growth regulators work on specific areas resulting in modified growth or even retardation of certain growth - n the absence of chemical test in the present imports the classification has necessarily to be done based on documents recovered, literature filed by the appellant. When specifically asked about availability of current imports or samples from past imports, no such samples were available and no imports currently. In such situation the classification has to be done with available literature and import documents only.
The matter has to go back to the Original Authority to re-decide the issue - applicability of chapter note and also the instructions issued by the Board alongwith that of competent authorities of Central Insecticides Board & Registration Committee, Insecticides Act etc. are to be examined by the Original Authority - appeal allowed by way of remand.
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2018 (2) TMI 1427
Stay of the reimbursement of the amount that would be due pursuant to the impugned order - the decision in the case of M/s. Wipro GE Healthcare Private Limited Versus Union of India, Development Commissioner Cochin Special Economic Zone (CSEZ) , The Director, Software Technology Parks of India, Department of Electronics and Information Technology, Director General of Foreign Trade, Deputy Director General of Foreign Trade [2017 (8) TMI 432 - KARNATAKA HIGH COURT] referred - Held that: - The amount is not yet quantified. Having regard to the facts and circumstances of the case, we are not inclined to stay the operation of the impugned order.
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2018 (2) TMI 1426
Scope of SCN - it is alleged that there is no whisper in the SCN either for invoking Section 14 of the Customs Act, 1962 or the Customs Valuation Rules, 2007. There was no proposal for rejection of the value declared - Held that: - It is correct that the SCN does not propose for redetermination of the value of the goods or reject the value declared by the exporter/appellant. So also there is no proposal for invoking section 14 of Customs Act or the Valuation Rules, 2007 - there is no proposal for invoking the provisions for redetermination of value or proposing rejection of the value declared by the appellant.
The Commissioner has applied Section 14 and the Valuation rules to redetermine the value of goods. The contentions of the department that there is sufficient ground for confiscation under section 113(h)(ii) of the Customs Act, is not tenable as the alleged mis-declaration is not conclusively established.
The Commissioner has traveled beyond the scope of SCN - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1425
Penalty u/s 114 AA of the Customs Act, 1962 - The Revenue contended that the whole modus operandi adopted by the importer was to avail the benefit of Section 74 even after a lapse of two years from the date of import - Held that: - it is clear that the appellant is in a responsible position and coordinated the imports and other operations as deposed by the customs house agent. In fact, the appellant appeared before the authorities and gave various explanation with reference to the impugned consignment. He also undertook to provide additional supporting documents, clarifications as sought by the officers. Some of these documents, originally promised to be supplied, were not provided. This was also recorded by the original authority. All these will reveal that the appellant cannot be considered as a lower level employee executing the directions of responsible senior person of the company - If the appellant is not a responsible person directly connected to the present dispute, it is not clear as to why he is coordinating the action with the CHA and deposed before the customs authorities in the follow up investigations also. In other words, an un-connected employee of a company, as claimed by the appellant, has no business in these activities.
The goods were lying un-cleared, as claimed by the appellant, with customs department, duty of ₹ 5.61 crores, have been duly discharged and appropriated to the Government; a penalty of ₹ 5 crores has been imposed on the importer/re-exporter under Section 114 of the Customs Act, 1962 - the interest of justice will be met if the penalty imposed on the present appellant is reduced to ₹ 50 lakhs from ₹ 1 crore - appeal allowed in part.
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2018 (2) TMI 1424
Violation of import condition - The department entertained the view that respondent having not fulfilled the export obligation and having diverted the duty free imports into the domestic market are not eligible for exemption under Customs N/N. 204/92 and 80/95 and was liable to pay duty - Held that: - the Tribunal had given specific direction to the adjudicating authority to take cognisance of the EODC issued by JDGFT and to consider the matter on the basis of such documents. When the authority who granted the license has rendered a finding and issued certificate that the respondent-company has fulfilled the export obligation, the contention of the Revenue that the respondents are liable to pay duty as well as penalty cannot sustain - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1423
Rectification of mistake - case of appellant is that the ground was taken up in appeal but the Tribunal has not given any findings on the subject - Held that: - At the time of passing the Final Order, the Tribunal had occasion to hear all connected parties and considered the entire record of the case. After such careful consideration the Tribunal has upheld the penalties imposed on M/s MAX Shipping & Forwarding Pvt. Ltd. as well as the Operational and Managing Directors. every sentence or words or argument order.
Under the garb of rectification, a fresh order cannot be passed by the Tribunal.
Rectification of Mistake application is misuse of judicial process, and the same has no merit - ROM Application dismissed.
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2018 (2) TMI 1422
N/N. 53/2016-Customs (ADD) dated 25/11/2016 - ADD on “low ash metallurgical coke” originating in or exported from PR China and Australia - Held that: - It appears that the said notification has already been assailed by the other parties in the case, M/s Kalyani Steels Limited and M/s Association of India Mini Blast Furnaces, [2017 (4) TMI 545 - CESTAT NEW DELHI] on identical grounds, before the Tribunal, where it was held that The import from subject countries has increased significantly and the market share of domestic sales has actually come down, in spite of increase in total demand. The magnitude of dumping has been examined by the DA. On the causal link, the point raised by the appellant, like high inland freight cost and poor performance of DI due to other factors, due consideration was given by the DA in his investigation.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1421
Valuation - The grievance of the appellant is that the Department proceeded to take NIDB data that too on a higher basis - Held that: - the value as declared by the importer was based on an invoice, which was admittedly not genuine. In such situation, proposals were made based on the contemporenous assessment, correctness of which has been admitted. No protest has been recorded. As such, we cannot be now called upon to examine the correctness of value in absence of any ground towards that.
In the facts of the present case, it is clear that the appellant themselves were in fault in presenting a fake invoice.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1335
Classification of Steam Coal and Bituminous Coal - Held that: - Since the final disposal of the appeals rests on the judgment of the Hon ble Apex Court on the classification issue of Steam Coal and Bituminous Coal, therefore, we are not in agreement with the argument of the learned Special Counsel for the Revenue that the Revenue would be free to enforce the demands during the intervening period i.e. after the present order is passed and till the final verdict of Hon'ble Supreme Court delivered. Similarly, the appellants also cannot have the right to claim refund during the same period, if any, accrues to them - the status quo should be maintained i.e. no recovery nor any refund of the amounts involved in these appeals would be processed during this period - appeal disposed off.
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2018 (2) TMI 1334
Valuation - enhancement of value - contemporary prices in NIDB data - Customs authorities took the view that declared values not being based on manufacturer's invoices, hence declared values are required to be enhanced to USD 430 per tonne (or Euro 401/378/385 etc.) based on contemporary prices in NIDB data.
Held that: - the invoices issued by the traders from countries like Belgium, Malaysia, Singapore etc. cannot be dismissed peremptorily unless there are justifiable reasons not to accept the genuineness or authenticity of such invoices. In any case, the declared values can be rejected only in terms of statutory provisions and rules governing valuation of imported goods - It is now well settled that NIDB data cannot be made the basis for enhancement of declared import values.
Department has not brought out any other material to demolish the transaction value and has also not brought any evidence to prove that the overseas supplier has been paid consideration higher than the amount indicated in the invoices which have been paid through bank channels.
Appeal allowed.
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2018 (2) TMI 1333
Benefit of concessional rate of duty - imported “Ethylene Vinyl Acetate” - N/N. 21/2002 dated 01.03.2002 (Sl. No.494) amended by N/N. 11/2006 dated 01.03.2006 - denial of exemption on the ground that the concession is applicable to “Ethyl Vinyl Acetate”, falling under Chapter 39, whereas the goods imported were Ethylene Vinyl Acetate - whether the imported goods are eligible to the concessional rate of customs duty as per the N/N. 21/2002 dated 01.03.2002 (as amended)?
Held that: - The goods imported are “Ethyl Vinyl Acetate”, but during the relevant time, the notification granted the concession only to Ethylene Vinyl Acetate. It is not disputed that these two goods are different. Since the imported goods do not find mention in the notification, the concessional rate of duty cannot be extended to them.
The Honorable Supreme Court in the case of Gammon India Limited [2011 (7) TMI 17 - SUPREME COURT OF INDIA] has observed that Exemption Notification, being an exception, is to be strictly construed.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1271
Recovery proceedings - Refund u/s 27(1) of the Customs Act, 1962 - appropriation towards the petitioner’s liability arising out of an order dated 25.04.2016 - duty drawback - whether the adjustment of a refund granted amounts to a coercive step? - Held that: - It does - Merely because an amount is lying with the respondents the adjustment thereof by the respondents, makes no difference. The unilateral action of adjustment constitutes a coercive measure as much as any step or action to recover an amount lying with the petitioner or with any other party on behalf of the petitioner.
Whether the circular places an absolute bar of prohibition against the respondents’ recovering an amount in excess of the amount deposited as per the said circular? - Held that: - It does not - The word “shall” in clause 4.2 must be read as “may” for more than one reason. Firstly, if it is read as “shall” and not as “may”, the circular would be contrary to section 142 of the Customs Act, 1962.
Had we not construed the word “shall” as “may”, we would have readily struck down paragraph 4.2 of the circular as being contrary to section 142 and, therefore, illegal. In our view, however, the word “shall” must be read as “may”. The validity of the circular is accordingly upheld subject, however, to the word “shall” therein being read as “may”.
In the present case, one of the reasons for passing the order is that an appeal had not been filed in the name of one of the proprietary firms. That is irrelevant. These are not firms established under the Partnership Act, 1932, or incorporated under the Companies Act, 1956. They are merely the names in which the petitioner carries on business as the sole proprietor thereof. The name in which the petitioner carries on business is not relevant. Proceedings cannot be filed in such name or names. The petitioner having filed the appeal, therefore, serves the purpose of challenging the demand.
The impugned order is quashed and set aside - respondents shall be entitled to encash the bank guarantee. The respondents shall be entitled to retain the amount deposited and the amount recovered under the bank guarantee but subject to the fresh orders and the result of the challenge thereto, if any.
Petition disposed off.
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2018 (2) TMI 1270
Penalty u/s 114 (i) of CA 1962 on main appellant and Director - export of red sanders - prohibited goods - Held that: - The fact that there was a mis-declared export consignment for which shipping bill was filed by M/s. Bhavya Exports at Air Cargo , Jaipur is not in dispute - The close examination of the facts analyzed by the impugned order makes it clear that the appellants cannot be de-linked from the responsibility of involvement in such improper attempt to export of the items.
The present appellants were imposed with a penalty of ₹ 10 lakh and ₹ 5 lakh, perhaps, on the reason that they were master mind behind such action - interest of justice would be met if the quantum of penalty reduced to ₹ 5 lakhs and ₹ 2.5 lakhs respectively - appeal allowed in part.
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2018 (2) TMI 1269
Classification of imported goods - projectors of a kind which are principally used in an Automatic Data Processing System - While the appellant claims that the projectors imported by it were principally used in an Automatic Data Processing System (ADPS for short, which usually refers to computers) and are thus entitled for exemption, the Revenues case is that the projectors are equally usable in ADP systems as well as with Non-ADP equipments such as DVD Players, Set Top Boxes etc. and thus fall under the residuary heading 85296900 to which the exemption does not apply - whether the projectors imported by the appellant during the period November 2014 November 2016 were entitled for the benefit of Notification No.4/2005-Cus dated1.3.2005 (at Sr. No.17) which grants full exemption from payment of Basic Customs Duty to all goods falling under heading 85286100 of the Customs Tariff?
Held that: - specific technical differences between projectors of a kind used with ADPS and those used principally with non-ADPS equipment was explained before the Commissioner and brochures containing technical specifications of projectors of these two different kinds were also placed before him in a 99 page compilation - Since the appellant had made categorical assertions about the technical differences and had also backed them up by producing brochures of different manufacturers, the Commissioner was to deal with this crucial submission.
The appellant had adequately discharged the initial burden of proof which lay upon it. The burden of proof then shifted upon the Revenue to prove that the technical differences cited were either irrelevant or non-existent. No such attempt has been made by the revenue either in the Show Cause Notice or in the impugned order - the revenue has failed to produce any evidence to rebut the appellants contention or to disprove the evidence produced by the appellant.
The evidence on record establishes that the initial burden which lay upon the importer-appellant for claiming the benefit of an Exemption Notification has been adequately discharged by it. The Revenue has not been able to discharge its burden of disproving or rebutting the evidence placed by the appellant-importer. As such, the findings of the Commissioner in the order on the issue of classification cannot be sustained.
Extended period of limitation - Held that: - It is a settled law that any statutory amendment is prospective in its operation unless it is specifically declared to have retrospective operation. The Finance Act, 2016 does not contain any provision according to a retrospective operation to the said Act. As such, demands which had already become irrecoverable as on 13.5.2015 could not, by virtue of the amendment with effect from 14.5.2016 get resurrected or revived - the demand for the period prior to 13.5.2015 was barred by limitation.
Appeal allowed - decided in favor of appellant.
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