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Customs - Case Laws
Showing 121 to 140 of 663 Records
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2012 (11) TMI 487
Claim for refund on excess duty paid rejected - unjust enrichment - ordered for credit the amount of refund to the consumer welfare fund on presumption of unjust enrichment - Held that:- As from the Cost Accountant's Certificate reproduced by assessee it can be seen that net realisation was Rs. 1.87 Crores approximately and appellants had suffered a loss of Rs. 4.44 Crores approximately. The Commissioner has rejected this claim on the ground that raw material cost was about 1.13 Crores whereas, the net realisation was Rs. 1.87 Crores and therefore, the realisation of finished goods is higher than the cost of finished goods. However, the cost itself shows that the value of materials consumed was Rs. 4.10 Crores and other costs have to be added. Only when the material imported is sold as such, the method adopted by the Commissioner can be acceptable. In a case like this, where raw material have been used for manufacture, what is required to be seen is the total cost incurred for the finished goods and not the difference between the cost of raw material and the price of finished goods without taking other expenses/raw materials/ inputs into account. Therefore, the method adopted by the learned Commissioner to reject the cost certificate cannot be sustained. The cost certificate clearly shows that the appellant's realisation from POY was less than the cost incurred by them for manufacture and therefore, it cannot be said that they have passed on the duty liability to the customers.
As appellants have been able to show that they have not passed on the customs duty liability to the customers and therefore, are eligible for refund appellants have been able to show that they have not passed on the customs duty liability to the customers and therefore, are eligible for refund - in favour of assessee by way of remand.
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2012 (11) TMI 449
Time Expired Refund claim - Held that:- Appellants paid duty at higher rate than what was applicable, and they have woken up after several years and sought for refund in 2009 and did not succeed before the original authority and also before the Commissioner (Appeals). They have attempted to reopen the issue by invoking provisions under Section 149. Section 149 gives discretionary power to Customs authorities for amending the documents in certain circumstances. This provision cannot be used to revive a time expired refund claim - no interference with the order of the Commissioner (Appeals) - appeal is, therefore, rejected.
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2012 (11) TMI 448
Grant of Bail – fraudulent availment of duty drawback by exporting inferior quality garments in the name of bogus firms – ACMM granted interim Bail – Held that:- ACMM in his order granting bail to the petitioner, has recorded the involvement of certain custom officers in the offence, and has stated that there are allegations of illegal detention, against those custom officials, pertaining to the same case - apprehension of the respondent to be kept in illegal custody, is justified - right of the respondent, to surrender himself to the competent Court, squarely falls within the ambit and scope of Section 437 CrPC, and cannot be held to be arbitrary or illegal - The provisions of a Special Act, in this case the Customs Act, cannot override the provisions of the CrPC, unless expressly provided so in the special Act - grant of bail to the respondent shall not hamper the investigation or prejudice the investigation
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2012 (11) TMI 447
Import of certain medical equipments duty free by claiming the exemption under Notification 64/88 - certificate given by DGHS has been withdrawn/cancelled – Held that:- Applicant has treated more than 10% indoor and 40% outdoor patients free of charge but there is no evidence on record to show that the patients who have been treated free of charge are having income below Rs. 500/- per month - goods are still in possession and use of the applicant. Therefore, the applicants have failed to make out a case for 100% waiver of the pre-deposit of the amounts - applicants directed to make a pre-deposit
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2012 (11) TMI 443
Import of goods – non-fulfillment of condition - Confiscation – held that:- Therefore, the relevant date for determination of the rate of duty and Customs valuation in respect of imported capital goods would be the rate prevailing on the date of deemed removal, which is 31-3-2001 in the instant case. Coming to the issue of depreciation, inasmuch as the appellants have put to use the capital goods at least for part of the period, they are eligible for depreciation and, accordingly, the Customs duty is liable to be demanded on the imported capital goods on the depreciated value as provided for in Board's Circular No. 14/2004 dated 13-2-2004 and at the rate prevailing on 31-3-2001.
Duty on Depreciated value of raw material - held that:- In the case of indigenously procured capital goods and raw materials lying unutilized, there are no specific provisions for grant of depreciation or relevant date for their demand and, therefore, the excise duty foregone at the time of procurement of these goods are liable to be paid by the appellants and we hold accordingly.
Interest - held that:- A combined reading of the provisions make it clear that the place where the goods are deposited should be a warehouse at the time of deposit of the goods. On the date of removal, it is not necessary that the place where the goods have been deposited remains a warehouse. Therefore, reading the provisions of Section 61 with Section 2(44) of the Customs Act, the goods are liable to interest on the delayed payment of duty.
Penalty - Held that:- Appellant imported the goods subject to the condition that he would fulfil the export obligation which obligation he failed to fulfill - goods became liable to confiscation under Section 111(o). Since the goods are liable to confiscation under Section 111(o), penalty under Section 112(a) is attracted. In this case, penalty has been imposed under Section 112(a) and there is no illegality or infirmity in imposing penalty apart from demanding differential duty
Redemption fine – Held that:- When the goods are liable to confiscation, the adjudicating authority has the power to allow the redemption of the goods on payment of fine in lieu of confiscation under Section 125 of the Customs Act - goods were allowed to be cleared by the appellants at the time of importation under a bond executed by the appellant. The clearance of the goods was thus provisional - when the assessment is finalized subsequently, even if the goods are not available for confiscation, redemption fine in lieu of confiscation can be imposed - imposition of redemption fine in the instant case permissible under the law
Matter remanded back to the adjudicating authority for re-computation of the duty demand
Interest - appellant is also liable to interest on the said duty demand under the provisions of Section 61(2) and in terms of the bond executed by them
Fine and penalty, on account of non-fulfilment of export obligation would automatically follow but their quantum again will depend on amount of duty demand - appeals are allowed by way of remand
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2012 (11) TMI 409
Order of enhancement of the value - assessee not having the manufacturer's invoice and that the goods were not covered by any letter of credit - Held that:- The appellant has imported old and used worn clothing/rags which are to be used for reclaiming purpose as the goods are old and used worn clothing. There is no manufacturer of the same goods as the same are scraps, therefore, the manufacturer's invoice is not available and the same is not required. As the impugned goods are not imported under letter of credit against the letter of credit, therefore, letter of credit for the same does not arise.
The appellant himself is a regular importer of the same goods and the appellant is produced at least 50 bills of entry of the same goods during the impugned period. Therefore, the same has not been considered by the adjudicating authority while assessing the goods. Therefore, the decision taken by the adjudicating authority as well as the lower appellate authority is not sustainable when there is an evidence on record produced by the appellant that contemporaneous imports of the impugned goods during the impugned period is available at 0.12 US $ per Kg. for the similar goods. Also that the appellant has imported goods at a price of 0.13 US $ per Kg. in the impugned bills of entry. Therefore, the loading of value on the declared price in the bills of entry is not sustainable when the price of similar goods for the same period is available in appellant's own case - in favour of assessee.
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2012 (11) TMI 408
Interest – seizure of Indian currency under a reasonable belief that the same is sale proceeds of smuggled goods - order of release – delay in returning seized currency – Held that:- Though there is absolutely no justification for more than 10 years delay in returning the seized currency and the conduct of the officers amounts to defying the Tribunal’s order, the Commissioner (Appeals)’s order sanctioning the interest on the seized currency for the delay in its return is not correct - It is only the Hon’ble High Court, or the Hon’ble Supreme Court which in exercise of their writ jurisdiction can order the payment of interest by the Department for period of delay in return of the currency. In view of this, the impugned order ordering payment of interest is set aside and the Revenue’s appeal is allowed
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2012 (11) TMI 407
Penalty - collusion - proceedings were initiated against an exporter, M/s. Radhika Exports, who had exported goods to Bangladesh under Bills of Export and claimed the drawback in contravention of the provisions of the Customs and Central Excise Duties Drawback Rules – alleged that appellant had allowed clearance of the said goods for exportation - Held that:- There was no evidence that Appellant was involved in abetting the Proprietor of M/s. Radhika Exports to avail duty drawback fraudulently - Department could also not produce any evidence to show that there was any collusion between the present Appellant and the exporter - even in the adjudication order, the only finding is that the supervisory officer cannot escape his liability. There is no evidence on record to show that there is any collusion between the present respondents and the exporter - penalty imposed on the Appellant is not sustainable
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2012 (11) TMI 366
Anti-dumping duty - date of applicability of new notification no. 73/03 - appellant imported vitrified/porcelain tiles from China during the period February to April, 2003 - goods assessed provisionally under Notification no. 50/2002 dated 2.5.2002, which expired on 1.11.2002, in anticipation of final Anti Dumping Notification - demand raised on imports levying duty under Notification no. 73/03 dated 1.5.2003 w.e.f. date of imposition of provisional anti dumping duty i.e 2.05.2002 - assessee contesting the same - Held that:- Under provisions of Rule 20(2) of Anti Dumping Duty Rules, the Government has the power to impose final anti dumping duty from the date of imposition of the provisional anti dumping duty - Decided against assessee
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2012 (11) TMI 365
Demand of duty and interest – rejection of declared transaction value - upward revision of transaction value based on the value of contemporaneous imports of identical /similar items as available in NIDB – Held that:- Declared transaction value can be rejected only if the conditions specified in Rule 4(2) of the Customs Valuation Rules are not satisfied and in this case, no cogent evidence in this regard has been produced by the Department – demand rejected
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2012 (11) TMI 364
Under valuation of part of imported goods - loading of value on the imported goods made by the adjudicating authority on the basis of contemporaneous imports made at Chennai Port - Held that:- No case has been booked against the appellant against those imports made at JNPT Port and therefore, the value of the imports made at JNPT Port are to be considered as contemporaneous imports. Contemporaneous imports made at Chennai Port, are observed as non-comparable. Therefore, loading the value on the basis of contemporaneous imports at Chennai Port are not sustainable. Order set aside
Country of origin - packing box of goods mentioned country of origin as Japan instead of China as mentioned in the B/E - Held that:- It is found that appellant has produced letter issued by their supplier contending themselves to be actual manufacturer and that impugned goods were meant for supply to Japan and as Japan refused to take delivery of the goods, therefore, these goods were exported to the appellant and contended that the country of origin shown on the box as Japan is their mistake. Revenue has not controverted these two letters nor they have denied the genuineness. Therefore, the appellant has discharged their onus of proving that the country of origin is China.
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2012 (11) TMI 306
Demand of duty - Held that:- As the appellants are yet to receive some documents and they have not been afforded the reasonable opportunity to defend themselves against the show-cause notice wherein the impugned demands have proposed to be recovered from them, therefore, there is a violation of principles of natural justice.
Set aside the impugned order and remand back to the adjudicating authority to adjudicate afresh after giving the documents mentioned to the appellants keeping all issues open.
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2012 (11) TMI 305
Penalty u/s 114 – Following the decision of court in case of [Nichrome India Ltd. vs CCE 2009 (7) TMI 648 - CESTAT, MUMBAI] Held that:- There is no mens rea required for imposition of penalty under Section 114. Any action or omission on the part of any person which makes the goods liable to confiscation attracts penalty. Therefore, imposition of penalty on the exporter and the CHA for the omission on their part in exporting the goods before grant of LEO was in accordance with law. Value of goods under export is only about Rs. 8 lakhs, penalty reduced from Rs.1.00 lakh to Rs.40,000/- each on the exporter, M/s Electrotherm India Ltd. and on the CHA, M/s Sahil Freight Express Pvt. Ltd - order of the lower authority is upheld.
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2012 (11) TMI 304
Conviction - Criminal Appeal - accused was found in possession of foreign currencies – Held that:- accused being found in possession of the foreign currency is to the knowledge of the accused - sanctioning officer has stated that he has verified and has accepted the case of the DRI of P.W.3 finding in his investigation the accused in possession of foreign currency along with Indian currencies and Travellers cheques - revision petition dismissed
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2012 (11) TMI 267
Waiver of Penalty - Held that:- Applicant who was Superintendent of Central Excise gave a false certificate that the goods in question were stuffed in his presence. The evidence on record to show that containers were not at the given place at the time when the applicant gave certificate in respect of the goods export. The exports were made on the basis of certificate given by the applicant, and the exporters were entitled for the export benefit of approximately Rs. 4 Crores (Rupees four crores only). Therefore, prima facie it is not a case for total waiver - taking into consideration the facts and circumstances of the case and the financial hardship as pleaded, the applicant is directed to deposit Rs.50,000/- (Rupees fifty thousand only) within eight weeks. On deposit of the above mentioned amount, pre-deposit of the remaining amount of penalty is waived and recovery of the same is stayed during the pendency of the appeal.
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2012 (11) TMI 266
Demand of duty - forged DEPB scrip – Held that:- Unless it is proved that the respondent in this case, who obtained the licence on transfer/purchase basis from M/s. ATM International, had knowledge about licence having been obtained by M/s. ATM by fraud, the duty cannot be demanded from them, when at the time of import, the licence was a valid licence and had not been cancelled - there is neither allegation nor any evidence to show that the appellant had knowledge about the fraudulent mis-representation of M/s. ATM International in obtaining the DEPB scrips – demand set aside
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2012 (11) TMI 265
Refund – Held that:- Claimant have to submit the Chartered Accountant’s certificate certifying that the burden of SAD (4%) has not been passed on by the importer to customers to fulfil the requirement of unjust enrichment - certificate from a Chartered Accountant is sufficient - appellant is eligible for refund - application for modification of stay applications are allowed, pre-deposit is waived
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2012 (11) TMI 249
Goods cleared from SEZ to DTA - Whether testing, packing and checking would amount to manufacture – Held that:- Definition in the SEZ Act of manufacture has to be construed widely and not narrowly. Instead of dwelling into the merits of the case, the matter can be disposed on the point of limitation itself. Therefore no reason to conclude that the imports were not to be subjected to or are not subjected to manufacture and are thus imports of Complete Consumer Goods, not permissible to be imported. there was no mis-declaration as applicant had filed bills of entry with officers, who after assessing the said bills of entry allowed the appellant to clear the goods from SEZ. It is also his submission that the officers were fully aware as to the process undertaken by the appellant The process (A) & (B) & (C) would be covered under the concept of manufacture, as there is no finding that the goods were marketable dehors all or any one of these process; the bland allegations of deodorant cans to be finished goods would not be sufficient to hold so.
Invoking Extended period of Limtation - It is the submission that the entire show-cause notice is hit by limitation as the show-cause notice is issued on 21/06/2010, while the demands are for the period from February, 2006 to December, 2009. It is his submission that the extended time beyond the period of 6 months cannot be invoked in this case as the appellant has made out a case on limitation; we hold that show-cause notice demanding of duty in this case being beyond the period of 6 months, and there being no act of suppression of facts or mis-declaration etc., with intent to evade duty, the adjudication order confirming such demand with interest, and imposing penalties on both the appellants is in-sustainable and is liable to be set-aside and we do so - Both the appeals are allowed and the impugned order is set-aside.
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2012 (11) TMI 248
Confiscation and penalty - Mis-declaration - clearance of the imported goods declared as “Old & Used Electrical Transformer without Oil” - bill of entry covered four containers - container was found to be “Secondary/Defective CRGO Electrical Grade Steel Strips in regular Shape & Size” - appellant wrote a letter to the customs indicating that as per their information one container was interchanged with the container of another importer M/s. Dynamo Stamping Industries at Bombay – Held that:- Interchange of containers has taken place at the hands of the supplier, without any involvement of the appellant. The mis-declaration of the goods, if at all is only a technical lapse on the part of the importer, who without even knowing about such interchange has declared the goods as per the orders placed by him - He cannot be held guilty of any mala fide mis-declaration so as to attract confiscation or penalty
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2012 (11) TMI 247
Rejection of rebate claim - exports made under DEEC Advance License for annual requirement under Notification No. 94/2004-Cus., - Held that:- Since non-availment of rebate under Rule 18 of the Central Excise Rules, 2002 is mentioned as condition under Customs Notification, the appellate authority has rightly rejected the rebate claim as per law in view of the exclusion of rebate under Rule 18 of Central Excise Rules, 2002 vide condition No. ‘8’ of Notification, 94/04-Cus., - no infirmity in the orders-in-appeal – appeal dismissed
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