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Customs - Case Laws
Showing 61 to 80 of 188 Records
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2018 (2) TMI 1268
Valuation - enhancement of value of imported goods i.e. PVC Flex Sheet Rolls - contemporaneous imports - Held that: - in the absence of any contrary evidence to the finding recorded by the First Appellate authority, the Revenue's appeal is devoid of merits - respondent has filed cross-objections which are actually in support of the First Appellate Authority's order and has annexed various documents indicating the contract signed by them with the Chinese manufacturer/exporter and also the prices which have been offered to them. When these documents were produced before the First Appellate Authority, which have been considered by the said authority and the integrity and genuineness of the documents has not been contested by the Revenue in the appeal.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1237
Classification of imported goods - Under Pads - appellant claimed the classification under CTH 48184090 and the department sought to classify the said goods under CTH 48184010 - Held that: - the product is essentially having the characteristics of the disposable under pads which are technically known as disposable bed pads/ bed sheets - Since, the goods in question were not made for fastening into the body, the same should not be termed as baby and clinical diapers and should more appropriately fall under Chapter Sub-Heading of 48184090 which provides for other sanitary articles - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1200
Cancellation of redemption certificates - imposition of fiscal penalty - Held that: - from a perusal of the affidavit in support and the annexures thereto it is found that none of the factual developments post institution of the writ petition have been denied or controverted by the Revenue - Once identically situate, parties have obtained the relief and in terms of the order of the CESTAT, as confirmed by the Hon'ble Supreme Court and these certificates or letters of redemption, then, we do not think that anything would survive for adjudication. The Revenue has acted in terms of the orders and which bind it. We, therefore, do not think that the Director General of Foreign Trade can withhold the request which is made by the petitioner all the more when the orders passed and impugned in the petition, would not survive the scrutiny of law - petition allowed - decided in favor of petitioner.
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2018 (2) TMI 1199
Issuance of guidelines for Registration of Sale Contracts for Import of Poppy Seeds from China - Public Notice No.PS-11/2016 (Annexure- W) - Amendment in the condition No.3(c) of the import policy, imposing quantitative restriction - issuance of guidelines for registration of sale contracts for import of poppy seeds from Turkey and China Governments - selection of applicants through ‘draw of lots’ - validity of public notices dated 4.11.2016 and 5.12.2016 issued by the Narcotics Commissioner, Government of India, Ministry of Finance, Central Bureau of Narcotics in compliance of the guidelines issued by the Government of India, Ministry of Finance, fixing the final country cap for import of poppy seeds from Turkey and China Governments? - condition No.3(c) of the amended import policy issued by the Central Government, exercising powers under Articles 226 and 227 of the Constitution of India?
Held that: - The import of poppy seeds, is governed by EXIM (Imports and Exports) Policy. Chapter 12 of Import Policy heading 1207 applies, among other things, to poppy seeds. The poppy seeds is governed by Exim Code heading 1207 91 00. The policy contemplates import of poppy seeds subject to certain conditions which have been specified - condition No.3 contained three stipulations, by amended notification, condition Nos.(a) and (b) are not altered. Condition No.3(c) as amended, in addition to existing one is, “All import contracts for this item shall compulsorily be registered with the Narcotic Commissioner, Gwalior, prior to import in accordance with the guidelines issued by the Department of Revenue, which may, inter-alia, include fixing of country caps, imposing quantitative restrictions, if any, per importer, or any other relevant provisions as deemed necessary for implementation of National Policy on Narcotic Drugs and Psychotropic Substances”.
On careful perusal of the provisions of Section 3 of the Foreign Trade Act, it makes it clear that the power conferred under Section 3(1) of the Act is not restricted merely to prohibiting or restricting imports at the point of entry but extends also to controlling the subsequent disposal of the goods imported. It is for the appropriate authority to consider the policy, which must depend on diverse considerations, to be adopted in regard to the control of import of goods. The import of goods can be controlled in several ways. If it is desired that goods of a particular kind should not enter the country at all, the import of those goods can be totally prohibited. In case total prohibition is not desired, the goods could be allowed to come into the country in limited quantities.
It is not in dispute that in view of the notification dated 29.7.2016 made in No.17/2015-20, the Central Government has permitted to import poppy seeds from the countries as mentioned in condition No.3(a) of the notification i.e., from Australia, Austria, France, China, Hungary, the Netherlands, Poland, Slovakia, Spain, Turkey and Czech Republic, United Kingdom, Democratic People’s Republic of Korea, Macedonia, Germany and Ukraine. If the competent authority fixes the country cap to import poppy seeds from the exporting countries mentioned supra, every importer/applicant like the petitioners would get 90 metric tons on the basis of the priority list in accordance with the draw of lots and there would not be any discrimination among the applicants/traders and it is the policy of the Central Government and the same is in accordance with law - the Central Government is justified in amending condition No.3(c) of the import policy imposing quantitative restrictions, if any per importer under the provisions of Section 3 of the Foreign Trade Act.
The respondent – Central Government has taken all precautions to distribute poppy seeds among the traders restricting 90 metric tons per importer and drawing of lots as stated supra is only at the interest of public/consumers at large. Therefore there is no violation of fundamental rights of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India. The restriction made by the Central Government is reasonable restriction imposed by the Central Government as a policy decision and same is in accordance with the provisions of Article 19(6) of the Constitution of India.
The import policy amending condition No.3(c) came to be issued exercising the powers under the provisions of Section 3 of the Foreign Trade Act in order to facilitate all the applicants/traders in the field of poppy seeds business and to control the monopoly of poppy seeds business to a particular importer, in the interest of the general public in India at large. Therefore the interest of the country prevails at large, but not individual. On that ground also, the writ petitions are liable to be dismissed.
The Central Government taking into consideration all the surrounding circumstances and the fact that poppy seeds is a special produce, amended condition No.3(c) of the import policy as a policy decision exercising its legislative domain in order to distribute poppy seeds to all the applicants who aspire for import of poppy seeds and in order to avoid monopoly by any one of the applicants. The petitioners have not pointed out any malafide on the part of the Central Government while amending the condition No.3 of the import policy. Further, there is no violation of fundamental rights of the petitioners guaranteed under Article 19(1)(g) of the Constitution of India. Therefore the reasonable restriction imposed by the Central Government is within the parameters of Article 19(6) of the Constitution of India and in the interest of consumers at large - the petitioners have not made out any case to interfere with condition No.3(c) of the amended import policy issued by the Central Government exercising the powers under Article 226 and 227 of the Constitution of India.
The impugned notification, guidelines and public notices issued by Respondent Nos.1 to 4 are in accordance with law. The petitioners have not made out any ground to interfere with the same exercising the powers under Articles 226 and 227 of the Constitution of India - petition dismissed.
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2018 (2) TMI 1198
Condonation of delay - Whether the CESTAT was right in passing the order dated 2nd February, 2017 and dismissing the application for rectification on the ground that the Tribunal does not have any power of review and hear the appeal on merits notwithstanding the fact that the appellant had filed an application that there was error apparent on the face of the order dated 20th October, 2014?
Held that: - there was an error apparent in the order dated 20th October, 2014, for the issue was whether the appeal was preferred within limitation period, and not whether delay in filing of the appeal should be condoned. The appellant had clearly contended that there was no issue or question of condonation of delay, as the starting point of limitation would be the date of communication of the order to the appellant and not the date on which the order under challenge was passed - The primary aspect, which has to be examined and answered, is the date on which the order-in-original dated 20th March, 2007 was communicated and served on the appellant and whether the stand of the appellant that this order was communicated and served for the first time on 25th February, 2013 was correct. It is case of the appellant that the appeal was not time barred.
In view of the stand of the assessee, the Tribunal would have to decide whether or not the appeal preferred by the appellant was within limitation. Issue would also arise whether limitation period would commence or taken from the date of the impugned order, date on which the order was issued or sent by post or the date on which the order was served. The second aspect/issue is a question of law. Factual and legal aspects are interconnected. In case the Tribunal comes to the conclusion that the date of the order or the date of issue would be the starting point of limitation, then the Tribunal would have to examine and decide the question of condonation of delay.
Partly decided in favor of assessee and part matter on remand.
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2018 (2) TMI 1197
Confiscation of seized Betel Nuts - smuggling - Held that: - the appellant had not refuted the allegations against them except that the goods are non-notified items - the quantum of redemption fine and penalty are excessive - the fine and penalties imposed on the appellants are reduced to 50% of the amount as ordered - appeal allowed in part.
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2018 (2) TMI 1196
Classification of imported goods - Palm Stearin - Adjudicating authority vide speaking order classified the goods imported under chapter 38.23 as against the claim of the Respondent before him being covered under chapter 15.11 - Held that: - the issue is now covered by the decision of Hon’ble Apex Court in the case of Commissioner of Central Excise, Customs & Service Tax Visakhapatnam vs. Jocil Ltd [2010 (12) TMI 24 - Supreme Court of India], where it was held that their Lordships has held as under and settled the law that the classification of Palm Stearin Oil will be under chapter 38.22 - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1195
Scope of SCN - classification of imported goods - Held that: - In the SCN the revenue sought classification under CTH 44219019 whereas in the appeal the revenue now want to change the classification to CTH 44219090 which is beyond the scope of the SCN - appeal not maintainable as beyond the scope of SCN - Appeal dismissed.
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2018 (2) TMI 1194
Benefit of N/N. 21/2002-Cus dated 01.03.2002 - inport of D.C. Defibrillators for Internal use & Pacemakers - Revenue says that internal use means the Defibrillator is required to be used internally - Appellant explains that the equipment cannot be used in the body of a patient.
Held that: - Revenue has no evidence to show that D.C. Defibrillators is required to be used in the heart but not in the Operation Theatre. When Revenue fails to lead any evidence to establish that such equipment can be used at any place other than operation theatre, to be called as meant for internal use, the term of “internal use” cannot be interpreted as suggested by Revenue - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1139
Provisional release of imported goods - areca nuts - Held that: - nature of the goods being perishable as well as the interest of Revenue as several importers in the past have subsequently not been traceable after taking release of goods in similar circumstances, we deem it fit and proper to modify the conditions of provisional release - appeal allowed subject to modification of terms.
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2018 (2) TMI 1138
Penalty under the provisions of Regulation 18 read with Regulation 20(7) and 22 of Customs Broker Licensing Regulations, 2013 - time limitation - Held that: - there is no offence report received by the licensing authority prior to the issue of show cause notice by the DRI, which is received on 05.10.2016 - No such report has been received or placed on record prior to the issue of show cause notice by the DRI. As such, we find no breach of limitation of time limit.
Scope of SCN - Penalty - Held that: - the allegation made against the appellant with reference to connivance with the importer regarding non-adherence of MRP labeling is not established. Similarly, the other serious offences alleged has also found to be not established - Regarding the original authority going beyond the scope of the allegation as contented by appellant, we note that the provisions of Regulation 11 (d) are very generic and a portion of the acts of the appellant was found to be violating such obligation. We find no infirmity in the findings recorded in the original order to the effect that such infringement will attract penal action.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1137
Conversion of shipping bills - EPCG scheme to drawback cum-EPCG scheme - denial on the ground that no substantive reason for seeking conversion, after two years of export, was given other than ignorance of procedures for claiming duty drawback - Held that: - The scheme allows export and import for capital goods for predetermined or specified value of exports to be effected within a specified period. However, this scheme applies only to capital goods and not to inputs to be used in the manufacture of export products. There is no bar in the EPCG scheme to avail simultaneous drawback on the exported goods. Hence the exporter is very much entitled to seek conversion of ‘zero duty EPCG shipping bills’ to ‘zero duty EPCG scheme cum drawback scheme shipping bills’.
The reason for grounds for rejection of the request by the adjudicating authority also does not pass muster since the said authority has only found fault with the appellant that ‘lack of coordination and ignorance of provisions cannot be considered as reasons beyond control of exporter’.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1136
Misclassification and misdeclaration of value of imported goods - Concentrated mineral drops (CMD), Elete Electrolyte and NanoSiI etc. - penalties u/s 112 (a) and 114 AA of the CA 1962 - Held that: - the penalties imposed u/s 112 (a) requires interference as the issue with regard to the classification has now been decided in favour of the appellants - However, since there is finding by the Tribunal that the valuation of the goods is not proper and requires redetermination, for which reason the matter has been remanded, the penalties imposed under Section 112 (a) cannot be wholly set aside - the quantum of penalty is reduced.
Penalties under Section 114 AA - Held that: - There is no allegation in the SCN that the appellants had used any false documents in the transaction. The ingredients stated in the said Section is not established by the department and therefore the imposition of penalties u/s 114 AA, is unwarranted - penalty set aside.
Appeal allowed in part.
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2018 (2) TMI 1135
Refund of SAD - N/N. 102/2007-Cuse dated 14/09/2007 - denial on the ground that appellants have not paid the VAT as they availed VAT exemption - Held that: - the issue whether the appellants are eligible for refund when the goods are exempted from levy of sales tax/VAT is settled by the decision of the Tribunal in the case of M/s. Kubota Agricultural Machinery India Pvt. Ltd. [2017 (6) TMI 565 - CESTAT CHENNAI], where Decision in the case of Vazir Sultan Tobacco Co. Ltd. [1996 (2) TMI 138 - SUPREME COURT OF INDIA], followed, where it was held that nil rate is also an appropriate duty - refund allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1134
Refund claim - valuation - air freight - case of appellant is that as per Rule 10(2) of the Customs Valuation (Determination of value of the imported goods) Rules, 2007, the assessable value has to be arrived by restricting the air freight component to 20% of the FOB value of the goods - Held that: - the freight element has to be restricted to 20% of the FOB value when the cost of transportation of the goods is ascertainable and the transportation is by air - appellant has paid total duty of ₹ 23, 85,494/-. The duty payable under the proviso of Rule 10 would be ₹ 15,09,938/-. Hence, the appellants have paid excess duty of ₹ 8,75,356/- - appellant is eligible for refund - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1079
Duty drawback - allegation was that the petitioners have availed excess drawback - opportunity of personal hearing sought by the petitioner - Held that: - The powers under the provisions of the Customs Act and the relevant Regulations do not envisage piecemeal hearing to render a decision in a controverted manner. All that this Court can do is to direct the respondent to consider the preliminary issues as first among other issues that the petitioner may raise. For this purpose, the petitioner has to necessarily submit their additional reply on the factual issues to enable the Authority to adjudicate the said show cause notices as a whole.
The prayer sought for by the petitioners cannot be granted and that the petitioners should necessarily submit their additional reply to the said show cause notices, touching upon the merits of the matter and thereafter, it is for the respondent to decide the case - petition dismissed.
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2018 (2) TMI 1078
Principles of natural justice - It is urged that the trial court did not appreciate the evidence in correct perspective. Summons to appear before the Investigating Agency were issued by speed post and were duly served upon the respondent - Held that: - The trial court committed no error to observe that before initiating criminal proceedings against the respondent, the prosecution/Investigating Agency was expected to ensure that the summons were duly served upon the respondent and he avoided to appear before it deliberately or intentionally - The impugned judgment is based upon fair and proper appreciation of evidence and this Court finds no illegality or irregularity to grant leave to file appeal against acquittal - petition dismissed.
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2018 (2) TMI 1077
Whether the appellant are required to discharge duty on the invoice quantity of bulk liquid cargo imported as reflected in the Bills of entry or on the quantity shown in the out turn report as determined?
Held that: - Hon’ble Supreme Court in the case of Mangalore Refinery and Petrochemicals Ltd. Vs CCE Mangalore [2015 (9) TMI 245 - SUPREME COURT] has held that If the goods are pilferred after they are unloaded or lost or destroyed at any time before clearance for home consumption or deposit in warehouse, importer is not liable to pay duty leviable on such goods.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1076
Refund claim - denial on the ground that since the appellant had not filed appeal against the assessment order, therefore, the refund claim filed under Sec 27 of the Customs Act, 1962 is not maintainable - whether the appellant are entitled to refund of customs duty paid against respective Bills of Entry which was finally assessed on 22.2.2014? - Held that: - post amendment to Sec 27, w.e.f. 1.4.2011 there is no necessity to file appeal against the assessment order, while claiming refund under Section 27 of the Customs Act, 1962 - reliance placed in the case of Micromax Informatics Ltd vs UOI [2016 (3) TMI 431 - DELHI HIGH COURT].
The matter is remanded to the Adjudicating Authority to consider the refund claim on merit - Appeal allowed by way of remand.
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2018 (2) TMI 1075
Valuation - includibility - royalty charges paid by the appellant to the Japan Company - Held that: - the cost of imported components and parts are to be excluded to arrive at the net value for computation of royalty charges - the factual and legal findings as recorded by the Original Authority cannot be contested - appeal allowed - decided in favor of appellant.
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