Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s. J.K. Exim Versus The Principal Commissioner of Customs, The Deputy Commissioner of Customs (SIIB) , The Inspector (Prev-SIIB)

Whether the detention of goods and seizure of goods are similar? - Classification of export goods - hand knotted woolen carpets or hand woven carpets? - CBEC circular dated 04.01.2011 - Held that: - Ordinarily, the word "detention" applies to person and not goods. However, in the context of the statute, with which, we are dealing with, detention is the terminology, which is also used in the context of goods. - Therefore, while seizure is an act of taking possession of a property, i.e., goods in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e, despite, the petitioner's letter dated 08.06.2016, 17.06.2016, 24.02.2016 and 29.03.2016; though, I must note that in the letter dated 24.02.2016, as per the assertions made in the counter-affidavit by the respondents, the terminology used by the petitioner was, he be given permission to re-export the goods, as against seeking permission to export the goods - the continued detention of the subject goods is illegal. Therefore, the petitioner, in my opinion, should be handed over the custody of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Sam For the Respondents : Mr.G.M.Syed Nurullah Sheriff Standing Counsel ORDER 1. This is a writ petition filed for issuance of a writ of Mandamus or, any other order or, direction of the like kind, to the respondents to release the goods, which are covered by the seizure mahazar dated 11.02.2016, to enable the petitioner to export the goods, in terms of Section 110(2) of the Customs Act, 1962 (in short "the Act"). 2. In order to adjudicate upon the instant writ petition, the following .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the consignment, which was covered by these ten (10) shipping bills, was pegged, by the petitioner, at ₹ 3,10,30,857/-. 2.5. Against each of these shipping bills, the petitioner had claimed duty draw back, which, cumulatively, amounted to ₹ 27,12,946/-. 2.6. It appears that the respondents noted discrepancies, as indicated above, in the shipping bills and the consignment and, accordingly, detained the subject goods. 2.7. While there is no specific date of detention of the subject .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

goods on 30.11.2015. 3.2. Be that as it may, as indicated above, it is the common ground that the goods were detained in November 2015. The most plausible date available is 30.11.2015, when, even according to the respondents, examination of the detained goods was carried out. 3.3. The record shows that the respondents drew two sets of samples from the detained goods, each of which were sent to the Textile Committee for testing. As per the stand of the respondents, samples were sent to the Textil .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e petitioner. 3.5. This apart, the statement of the Proprietor of the petitioner, i.e., Kalpesh B. Patel, was also recorded on 15.062016, 16.06.2016, 25.06.2016 and 26.06.2016. 3.6. I may only record that, on the other hand, the respondents' stand is that the petitioner's statement was recorded on 29.12.2015, 25.05.2016 and 26.05.2016. 3.7. In the interregnum, though, i.e., on 17.06.2016, the petitioner claims that he received information, for the first time, that the subject goods were .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tes, to seek release of the subject goods, as continued detention of the subject goods was, purportedly, in violation of the Circular issued by the Central Board of Excise and Customs (in short "CBEC), in Circular No.01/2011-Customs, dated 04.01.2011. 3.9. Insofar as the letter dated 17.06.2016 was concerned, that was replied to, by the Deputy Commissioner of Customs (Export), vide a letter dated 20.07.2016, whereby, he, while reiterating the reasons for the seizure of the subject goods, ca .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

SIIB, Commissionerate III, Chennai, issued a show cause notice dated 05.08.2016, to the petitioner. 4.2. The aforementioned writ, however, came up for hearing before this Court on 21.09.2016. Hon'ble Mr.Justice T.S.Sivagnanam, vide order of even date, i.e., 21.09.2016, disposed of the writ petition, with the following operative direction, in the light of the fact that a show cause notice dated 05.08.2016, had already been issued to the petitioner : "..... 4. Accordingly, the challenge .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ter is dated 24.02.2016, whereby, the petitioner sought permission to re-export the goods. The second letter is dated 29.03.2016, whereby, the petitioner sought provisional release of the subject goods. 5.2. The facts pertaining to aforementioned letters emanate from the assertions made by the respondents in paragraph 8 of the counter-affidavit. 5.3. According to the respondents, the first letter dated 24.02.2016, was not replied to, as according to them, and perhaps, rightly so, the request was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

wever, being aggrieved, and, perhaps, re-energized by the liberty given by this Court, filed the instant petition on 18.10.2016. 6.1. On 21.10.2016, Hon'ble Mr.Justice T.S.Sivagnanam, issued notice in the writ petition. Pursuant to issue of notice, as indicated above, a counter-affidavit was filed by the respondents. 6.2. The matter came up before me, for hearing, on 08.12.2016. Upon hearing arguments, judgement was reserved in the matter. 7. On behalf of the petitioner, arguments were advan .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in the matter. Even, if, the case of the respondents were to be accepted, in totality, which is, that the goods were hand woven carpets and not hand knotted woolen carpets, as declared by the petitioner, all that would happen, would be that the petitioner would be entitled to duty draw back, only in the sum of ₹ 2,41,850/-, as against the sum of ₹ 27,12,946/-, that is, the claim made by the petitioner qua the shipping bills. Besides, reduction in duty draw back, if, the case made ou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e goods. Assuming without admitting that even, if, the said charge levelled by the respondents, at this stage, is taken to be correct, detention of the subject goods is not justified on the ground that the purported investigation, would have logically came to an end, with the issuance of show cause notice dated 05.08.2016. In support of this submission, reliance was placed on CBEC's circular dated 01.04.2011. (iv).The respondents' stand that the seizure took place only on 11.02.2016, and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fficient cause being shown in that behalf. In support of this submission, learned counsel relied upon the judgment of the Kerala High Court in the matter of M.Mohammed V. Collector of Customs and Commissioner of Excise, Cochin, 1999 (110) E.L.T. 451 (Ker.). (vii).Furthermore, reliance was also placed by the learned counsel for the petitioner on the following judgements : (1) Santosh Handloom V. Commissioner of Customs (Import), 2016 (331) E.L.T. 44 (Del.) and (2) Sree Rajendra Textiles V. Commis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

declared by the petitioner as ₹ 3,10,30,857/-, against which, duty draw back of ₹ 27,12,946/- was claimed, whereas, market inquiries had revealed that the value of the subject goods was a sum equivalent to ₹ 24,93,291/-, against which, the petitioner was entitled to duty draw back only to a sum equivalent to ₹ 2,41,850/-. 7.4. Therefore, according to the counsel for the respondents, since, the re-determined market price of the subject goods was less than the duty draw ba .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e said statement has been signed by the petitioner, and therefore, the petitioner cannot now say that he was not given a copy of the report of the Textile Committee. 7.6. It was also the submission of the counsel for the respondents that the detention of goods could not be equated with seizure. The detention of the subject goods, as in this case, was made to ascertain as to whether or not the declaration made by the petitioner was correct. It was submitted that upon samples being taken on 30.11. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the contention of the learned counsel for the respondents that only when the Officer concerned had reason to believe that the subject goods were liable for confiscation, that he proceeded to seize the same, and therefore, followed it up, by issuing the show cause notice within the prescribed time limit. In support of his submission, counsel for the respondents, like the counsel for the petitioner, relied upon the CBEC's circular dated 04.01.2011. Specific emphasis was laid by the counsel for .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

moment. The Dictionary meaning of the word "detention" would be : "the action or state of detaining or being detained" (See Concise Oxford English Dictionary, Tenth Edition, Revised, page No.390). Whereas, "seizure" means : "the act or an instance of taking possession of a person or property by legal right or process". 8.2. Ordinarily, the word "detention" applies to person and not goods. However, in the context of the statute, with which, we are .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

authority and/or legal process. 8.5. As a matter of fact, I cannot conceive of the situation, where, Mr.Sheriff, would argue to the contrary. It is, perhaps, because of the reason, which is, that there is no clear legislative backing for detaining the goods, as against seizing them that nothing was shown in this behalf by Mr.Sheriff. 8.6. As a matter of fact, the CBEC, by way of administrative direction, vide its circular dated 04.01.2011, exhorts the officers to allow the provisional exportatio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

respondents. It is further averred that the request for provisional release of the subject goods made by the petitioner, is declined, as the mis-declaration constituted a fraud, within the meaning of paragraph 2.2(c)(iii) of Chapter XV of the Customs Manual. For the sake of convenience, paragraph 8 of the counter affidaivt is extracted hereinbelow : "..... 8. It is most respectfully submitted, vide letter dated nil which was received by this office on 24.02.2016, the petitioner requested fo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e of the goods had been processed, and the same was denied by the Competent Authority as the case fell under Para 2.2(c)(iii) of Chapter XV of Customs Manual, as the case involves fraud." 8.8. In my view, the said provision, that is, para 2.2.(c)(iii) of Chapter XV of the Customs Manual, has to be read along with the circular. 9. Quite clearly, fraud, if at all, as allegedly committed by the petitioner, pivots around the allegation of the respondents that the petitioner had declared the sub .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

inordinate detention of seized goods, leads to delays in fulfillment of export orders and at times their cancellation, as also, congestion in ports and accumulation of demurrage charges, and therefore, mis-declared goods, which are seized and are liable for confiscation, should be released provisionally, on the terms, indicated in the circular. 9.3. Strangely, as indicated above, the respondents, in derogation of its own circular dated 04.01.2011, rejected the request of the petitioner for a pro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re not allowed to be exported provisionally on the ground that Board's Circular referred above provides for provisional release of only the seized goods. 3. In this regard it is observed that inordinate detention of the seized goods entered for exportation results in delays in fulfillment of export order and at times cancellation of such orders. Detention of goods also adds to congestion in ports besides resulting in payment of demurrage charges to the Custodians. Accordingly, the matter has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

110A of the Customs Act, 1962 would come into play. However, there may be situations when the goods are to be detained for purpose of tests etc. to confirm the declaration. In such cases the endeavour should be to quickly undertake the necessary action (test / enquiry etc.) and take appropriate legal action thereafter so that the period of detention is kept to the minimum. Thus, the following course of action is prescribed in respect of goods entered for exportation. (a) In case the export good .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ITC (HS), the same should be seized and appropriate action for confiscation and penalty initiated. (c) In case the export goods are suspected of mis-declaration or where declaration is to be confirmed and further enquiry / confirmatory test or expert opinion is required (as in case of chemicals or textiles materials), the goods should be allowed exportation provisionally. The exporters in these cases are required to execute a Bond of an amount equal to the value of goods and furnish appropriate .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd the export allowed expeditiously unless the prohibited nature of goods is confirmed. Continued detention of any export goods in excess of 3 days must be brought to the notice of the Commissioner of Customs, who will safeguard the interest of the genuine exporters as well as the revenue. ...." 10. Therefore, having regard to the facts and circumstances of the case, the provisions of the CBEC circular dated 04.01.2011 and the foregoing discussion, I am of the view that the fine distinction .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion to export the goods. 10.1. Quite clearly, therefore, the continued detention of the subject goods is illegal. Therefore, the petitioner, in my opinion, should be handed over the custody of the subject goods. 11. The other question, which arises for consideration, is as to the terms, on which, the petitioner be allowed release of goods. 11.1. Even, Mr.Sheriff, during the course of the arguments, admitted that there was no duty liability involved, since, the petitioner only sought to export th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Highlight: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017 - Notification

Highlight: Companies (Acceptance of Deposits) Second Amendment Rules, 2017 - Notification

Highlight: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg. - Circular

Highlight: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20 - Public Notice

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Circular: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20

Notification: Companies (Acceptance of Deposits) Second Amendment Rules, 2017

Notification: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017

Forum: Trans1 return

News: Exchange Rate of Foreign Currency Relating To Imported and Export Goods Notified

Forum: Credit on Repair of Company Car & Its Insurance

Circular: Promote the officers of the Indian Revenue Service (Customs and Central Excise) to the grade of Principal commissioner of customs, GST & CX

Circular: Allocate the charges amongst the Members of the Central Board of Excise and Customs

Circular: Strategy for audits in 2017-18 consequent to GST - Audit by Central Excise and service Department to continue for the accounting year 2016-17 and for the past period

Circular: Appoint the IRS (C&CE) officers as Principal Commissioner (Revision Application) and ex-officio Additional Secretary

Circular: Time limit for filing intimation for composition levy under Rule 3(1) of the CGST Rules, 2017 extended to 16-8-2017

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017

Circular: C.B.E. & C. Advisory on Customs related matters on introduction of Goods and Services Tax regime

Circular: List of Reduced Tax Liabilities under GST regime in comparison to present combined Indirect Tax rates

Circular: Works Contract for construction of Flats, Complex — Builders to pass on GST benefit to buyer otherwise anti-profiteering provisions of Section 171 of GST Act to apply

Circular: Clarification regarding applicability of section 16 of the IGST Act, 2017, relating to zero rated supply for the purpose of Compensation Cess on exports – Regarding.

Circular: Clarification on Inter-state movement of various modes of conveyance, carrying goods or passengers or for repairs and maintenance- regarding

Forum: Duty Drawback & Input Credit - under GST

News: RBI Reference Rate for US $

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.

News: Anti-dumping duty on import of bus/truck tyres from China

News: Fast-track GST refund, else ₹ 65K cr may be stuck: Exporters



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version