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Customs - Case Laws
Showing 141 to 160 of 663 Records
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2012 (11) TMI 209
Duty Free Import Authorization – inflation in CIF value - Import of Printing Ink-Intaglio - alleged that Optically Variable Ink (OVI) imported by the respondent was a distinct product, used exclusively for printing of the currency notes by the subsidiaries of Reserve Bank of India and the respondent had imported such highly valued item against DFIA issued for import of printing ink used for printing on bags/sacks used for export of rice, thereby evading huge amount of customs duty – allegation of the Revenue that the DFIAs have been obtained fraudulently – Held that:- Obviously, there appears to be a contradiction between the notification and the paragraph. Nevertheless, in such a situation what is required to be taken into account is the provisions in the exemption notification issued under Customs Act, 1962 and the Notification No. 40/2006 is very clear. Because the notification clearly says that in respect of resultant products specified in paragraph 4.55.3, the imported materials should be of the same quality, technical characteristics and specifications as the materials used in the resultant product.
Having allowed export of motors with input specifications as bearing upto 50 mm bore, it may not be appropriate for the customs authorities to insist on technical specifications at the time of import of bearings.
Fraud - in this case Shri. Lalit Jain, the broker, is seen to have used some forged letters for transferring the license from the exporter to the importer through the medium of shell firms, though the exporter does not appear to be complaining about it. The adjudicating authority has held that this issue is to be decided under laws other than Customs Act, it is not a matter to be adjudicated under the Customs Act. Such matter arises when agitated by any of the affected parties. He has held that the interest of Revenue has not been prejudiced by such impugned actions. We also note that DGFT which is concerned with the transfer of licenses has not taken cognizance of this matter. So we agree with the finding of the adjudicating officer.
Revenue is directed to refund the amount and release the bank guarantee and bond to the respondents within four weeks of the communication of this order.
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2012 (11) TMI 208
EXIM Policy - door mats, floor mats - denial of benefit of DEPB Scheme – alleged that product did not satisfy the description of the Entry 547; ‘Rubber Compounded Sheets’ – Held that:- These products which are also manufactured out of compound rubber, are separately included in the Public Notice, whereas floor mats and doormats are not so included, demonstrates that it was never the intention of the policy makers to extend the DEPB benefits to floor mats, door mats etc., exported by the petitioners - DEPB benefits, being product specific, products such as floor mats, doormats etc., are not items covered by the entry “Rubber Compounded Sheets” and that to deny DEPB benefit to such products, an amendment of the Public Notice, requiring the issue of another Public Notice is unnecessary - door mats, floor mats, etc., are ineligible for DEPB benefits under the EXIM Policy
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2012 (11) TMI 155
Customs House Agent written examination and the oral examination - held that:- There is no dispute that the petitioner had passed the written, as well as the oral examination under Regulation 9 of the Customs House Agents Licensing Regulations, 1984, which were existing prior to the coming into force of the new regulations in the year, 2004. - Authorities directed to issue the necessary certificate granting the Customs House Agents Licence to the petitioner,
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2012 (11) TMI 154
Refund - principle of unjust enrichment – Held that:- Provisions of unjust enrichment will not apply to the refund claims arising out of finalisation of provisional assessment under Section 18 of the Customs Act, 1962, prior to 13-7-2006 - finalisation of the provisional assessment took place prior to 13-7-2006 and letters claiming the amounts were also filed prior to 13-7-2006 – refund allowed – in favor of assessee
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2012 (11) TMI 153
Condonation of delay in filing the appeal – Held that:- No explanation has been given for this delay. In fact the delay of 147 days has been explained in one sentence that the delay has been occurred due to unavoidable co-ordination gaps between different Sections or units of the Department - delay has not been properly explained - application for condonation of delay rejected
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2012 (11) TMI 126
Provisional release of goods - Held that:- The value of the silk yarn imported by the petitioner, from Vietnam, had been fixed, as USD29.5 per kilogram it is open to the petitioner to take delivery of the goods in question, by paying the customs duty, on the value fixed by the respondents, at USD29.5 per kilogram.
The respondents are directed to release the goods in question on the petitioner paying the customs duty equivalent to 75% of the value of the goods at USD29.5 per kilogram & for the balance 25% the petitioner shall furnish a personal bond to the satisfaction of the respondents. The respondents shall complete the adjudication process, within a period of four weeks thereafter by issuing a necessary show cause notice & in reply to it the petitioner shall submit its objections, appear before the respondent and co-operate with the department in the adjudication process.
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2012 (11) TMI 125
Confiscation - Kar Vivad Samadhan Scheme, 1998 (KVSS) - held that:- the Scheme has to be given a purposive interpretation and the Scheme cannot be interpreted in a manner so as to defeat the very object and intention of the Scheme. Petitioner cannot claim to pay simply 50% of the duty amount specially when there has been no lis in respect of the same or dispute with regard to it. - existence of a dispute or lis being a sine qua non for the applicability of the Scheme - in addition to 50% of the fine and penalty paid for settlement of the case, the appellant is also liable to pay duty at appropriate rate on the confiscated goods and only on such payment of duty the appellant can redeem the goods.
Whether the duty is liable to be paid on the confiscated goods by treating them as baggage under Chapter Heading No. 98.03 of the Customs Tariff Schedule – Held that:- Smuggled goods cannot be treated as imported goods, the question of classifying them as baggage under Chapter 98 does not arise at all - seizure has not taken place in a customs area - there is no declaration filed in respect of such baggage to apply the rate of duty applicable to baggage on the impugned goods under Section 78 read with Section 77 of the Customs Act - claim of the department to levy duty under Chapter Heading No. 98.03 does not have sufficient legal basis - “Diamonds, whether or not worked, but not mounted or set” fall under Heading No. 71.02 of the Customs Tariff. Since the goods under seizure are rough as well as cut and polished diamonds, they would be correctly classifiable under Heading No. 71.02 of the Customs Tariff for the purpose of levy
Relevant date for the purpose of charging of duty – Held that:- Payment of duty arises at the time of redemption and the option to redeem the goods was exercised when the fine was paid - whatever was the rate of duty applicable at that time, that is, the date on which the fine was paid and the option to redeem the goods was exercised, will be the relevant date for computing the rate of duty also - appellant will not be eligible for any concessional rate of duty and the duty liability will have to be discharged at the tariff rate applicable to the goods under CTH No. 71.02 - appellants are liable to pay customs duty on the confiscated diamonds at the tariff rate of duty applicable to goods falling under Heading No. 71.02 of the First Schedule to the Customs Tariff Act on the date of payment of fine (date of exercising the option to redeem the goods) in addition to the fine and penalty already settled under the Kar Vivad Samadhan Scheme.
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2012 (11) TMI 124
Export of Iron Ore fines declaring iron content below 62% - alleged that exporter declared the iron content of the exported Iron Ore fines was 62% and below and the test revealed 62.1%, the authorities came to the conclusion that the exporter has misdeclared the iron content at the time of export and short paid export duty – Held that:- Difference in the iron content is hardly 0.1% - difference which sought to be made out is hardly 0.1%. If a provision is made for human error this 0.1% is negligent - That does not disclose that the assessee has disclosed the Iron content wrongly with the intention to evade payment on duty – in favor of assessee
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2012 (11) TMI 83
Charge under Section 135 of the Customs act - unauthorized possession of 79 gold biscuits of foreign origin – Held that:- Nothing to show that the said biscuits had been imported into India in a lawful manner - Once the accused was found in possession of gold biscuits of foreign origin and he has not been able to prove that the same had been imported lawfully into India, he is liable to be charged under Section 135 of the Customs Act - Though the accused did not confess his guilt in the said case, but the (sic-offence is) made out against the accused - Trial Court has analysed the material in the right perspective, correctly negate his plea, chargesheeted the Petitioner-accused for the commission of indicated offence and recorded the cogent grounds in this respect - no patent illegality or legal infirmity has been pointed out by the learned Counsel for the Petitioner-accused, so, the impugned orders deserve to be maintained
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2012 (11) TMI 82
Undervaluation – import of old and used machinery – enhancement of value – Held that:- the depreciated value as certified by Chartered Engineer, U.K. is only 7.25% of the invoice value in 1970, whereas he certified that the residual life of the machine is more than 15 years subject to proper maintenance and procedure being followed and also that the spares presented were either new or in good enough condition to represent 80% of the normal life expectancy and that the technology involved equivalent was consistent with present day practice which has not radically changed.
It does not make any economic sense to import a machine which has only 7.25% as residual value as declared by importer. It is to be noted that the invoice produced is not of any manufacturer or any person who was actually using machine earlier and is of a scrap dealer in U.K.
Reliance upon the report of Chartered Engineer - held that:- The first two are of facts and the third is an opinion. So there is no infirmity in accepting the facts and rejecting the opinion. Old and used machinery is inherently prone to undervaluation - In fact from the Government of India has amended the import policy to the effect that old and machinery having residual value less than 80% of the original value is not allowed for import.
Adjudicating authority has followed the valuation method prescribed by Board for arriving at reasonable price and at the ‘ time of assessment the respondent accepted the price suggested by Revenue - Decided in favor of revenue.
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2012 (11) TMI 81
Transaction value - Related person – alleged that supplier and the respondents related in terms of Rule 2(2)(iv) of the Customs Valuation Rules – Held that:- In terms of Rule 2(2)(iv) persons can be deemed to be related only if any person directly or indirectly owns, controls or holds 5% or more of the outstanding voting stocks or shares of both of them - only if a third person directly or indirectly owns, controls voting stocks or shares of both the supplier and the importer, then the supplier and the importer can be deemed to be related - supplier and the respondents are not related - whether the relationship has influenced the price and whether the price approximates any of the test values as provided under Rule 4(3) do not arise in the absence of relationship itself not being established. Such examination is envisaged only where relationship is first established.
The interpretation given by the original authority would amount to re-writing of Rule 2(2)(iv) to read that if the supplier has more than 5% of the shares in the importing company, then both would be deemed to be related. There is no warrant in law to do so.
As regards the question of dealing with the royalties, licence fee etc., there are adequate provisions in the Customs Valuation Rules [for example, Rule 9(1)(c)] to deal with the same. - It cannot also uphold arbitrary enhancement of value by 20% without there being any basis for it.
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2012 (11) TMI 39
Whether CESTAT has discretionary power u/s 129A (5) to condone the delay caused in filing the appeal under Section 129D(3) - appeal by revenue in compliance of direction by the Committee of Chief Commissioners of Customs or Commissioner of Customs to pass certain orders - Held that:- From the plain language of Section 129D(4), it is clear that Section 129A has been incorporated in Section 129D. The applications made by the Commissioner under Section 129D(4) shall be heard as if they were appeals made against the decision or order of the adjudicating authority and the provisions relating to the appeals to the Tribunal shall be applicable in so far as they may be applicable. Consequentially, Section 129A(5) has become integral part of Section 129D(4) & if the Tribunal is satisfied that there was sufficient cause for not presenting the application under Section 129D(4) within prescribed period, it may condone the delay in making such application and hear the same.
In the present case the provisions relating to the appeals to the Tribunal have been made applicable to an application made under Section 129D(4) and it has been further provided that such application shall be heard as if it was an appeal made against the decision or order of the adjudicating authority. Any delay in presentation of appeal under Section 129A is condonable by the Tribunal by virtue of sub-section (5) thereof.
It is competent for the Tribunal to invoke Section 129A(5) where an application under Section 129D(4) has not been made within the prescribed time and condone the delay in making such application if it is satisfied that there was sufficient cause for not presenting it within that period.
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2012 (11) TMI 38
Benefit of exemption under Indo-Sri Lankan Free Trade Agreement - whether there is liability of the assessee to pay duty - determination of the rate of duty payable – Held that:- Question has to be adjudicated buy the Apex Court under Sec. 130(c) of the Customs Act, 1962 as it does not fall within the purview of Sec. 129 of the Act - appeals are rejected reserving liberty to the assessees to approach the Apex Court.
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2012 (11) TMI 37
Rebate claim – cenvat credit with DFIA Scheme - Held that:- The effect of retrospective legislation is that Notification No. 40/2006-Cus., dated 1-5-2006 never prohibited rebate on export of goods under DFIA Scheme, if the Cenvat Credit of duty paid on imported/procured raw material have been availed.
No restriction in the said Notification No. 40/06-Cus., dated 1-5-2006, on claiming rebate of duty paid on exported goods and availment of Cenvat Credit - applicant has complied with all the provisions and procedure as laid down in Rule 18 of Central Excise Rules, 2002 and Notification No. 19/04-C.E. (N.T.), dated 6-9-2004 and there is no dispute about the export of duty paid goods, the rebate claim is admissible to the respondent – rebate claim allowed
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2012 (10) TMI 1134
Issues Involved:
1. Rejection of application for Customs House Agents Licence.
2. Validity of examination passed under CHALR, 1984 for licence under CHALR, 2004.
3. Principles of natural justice.
Summary:
Rejection of Application for Customs House Agents Licence:
The petitioners challenged the order dated 12/16th May, 2011, rejecting their application for a Customs House Agents Licence (CHA Licence) in response to Public Notice No. 81/2010. The rejection was based on the fact that the petitioners were qualified u/s 9 of the Customs House Agents Licensing Regulations, 1984 (CHALR, 1984) from the Mumbai Commissionerate and not from the Calcutta Commissionerate.
Validity of Examination Passed under CHALR, 1984 for Licence under CHALR, 2004:
The primary issue was whether an applicant who passed the examination under Regulation 9 of CHALR, 1984, could be deemed to have passed the examination under Regulation 8 of CHALR, 2004. The Court referred to a previous judgment which held that a temporary licence holder who passed the examination under Regulation 9 of CHALR, 1984, was not required to clear an examination under Regulation 8 of CHALR, 2004 for a permanent licence. The Supreme Court affirmed this view in Union of India & Anr. v. Sunil Kohli & Ors., stating that the 2004 regulations expressly save things done before their framing.
Principles of Natural Justice:
The petitioners contended that the rejection of Shukla's application was in violation of the principles of natural justice as they were not given an opportunity to be heard. The Court found that the distinction in the Commissionerate from which the examination was cleared had no bearing on the legal proposition that a person who passed under Regulation 9 of CHALR, 1984, is deemed to have passed under Regulation 8 of CHALR, 2004.
Conclusion:
The Court held that the impugned orders could not be sustained and were set aside. It was clarified that the petitioner, having passed the examination under Regulation 9 of CHALR, 1984, should be deemed to have passed under Regulation 8 of CHALR, 2004, irrespective of the Commissionerate. The application for the licence was to be disposed of within 60 days, and the petitioner was to be granted a licence if otherwise entitled.
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2012 (10) TMI 1124
The Supreme Court dismissed the special leave petitions as the matter is pending before the High Court. The Department can proceed to recover amounts due from the petitioner unless an interim order is passed by the High Court.
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2012 (10) TMI 1017
Issues involved: Seizure of garlic of third country origin loaded in trucks, confiscation of vehicles, imposition of penalties, non-receipt of original show-cause notice dated 24.08.2009 by the appellants, non-service of the show-cause notice resulting in violation of natural justice, provisional release of a vehicle to a party not made a party in the addendum to the show-cause notice.
Seizure of Garlic and Confiscation of Vehicles:
The trucks loaded with garlic of third country origin were intercepted and seized by Customs for violation of provisions of Customs Act, 1962. The garlic and the trucks were placed under seizure under Section 110 of the Customs Act, 1962. Later, a show-cause notice was issued on 24.08.09. The seized garlic was absolutely confiscated, and the vehicles were confiscated under Section 115 of the Customs Act, 1962 with an option to redeem on payment of redemption fines. Penalties were also imposed on the owners of the vehicles. The appellants challenged the confiscation of vehicles and imposition of penalties before the Tribunal.
Non-Receipt of Original Show-Cause Notice:
The appellants contended that they did not receive the original show-cause notice dated 24.08.2009, which was not detailed in the adjudication order by the Commissioner. The Department reported that while the copy of the show-cause notice was available, it could not be ascertained whether it was served on the appellants. The absence of the original show-cause notice was argued to result in a violation of the principle of natural justice, making the impugned order legally flawed.
Provisional Release of Vehicle and Party's Status:
One of the appellants, Smt. Meera Devi, owner of a confiscated vehicle, had the vehicle provisionally released to her but was not made a party in the addendum to the show-cause notice. The appeal was filed to safeguard her interests, as it was unclear whether she was made a party in the original show-cause notice. The confiscation of her vehicle was challenged as contrary to the law, and it was argued that she should have been included in the proceedings.
Judgment:
After considering the arguments and perusing the records, the Tribunal found that the non-service of the original show-cause notice dated 24.08.2009 resulted in gross injustice to the appellants. Additionally, the failure to include Smt. Meera Devi as a party in the proceedings raised concerns. The Tribunal set aside the order of confiscation of vehicles and imposition of penalties, remanding the cases to the Commissioner for a fresh determination. The Commissioner was directed to serve a copy of the show-cause notice dated 24.08.2009 on all appellants, allowing them to file necessary replies and providing a reasonable opportunity for a hearing. Both parties were permitted to produce necessary evidence in the fresh proceedings. All appeals were disposed of accordingly.
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2012 (10) TMI 1008
Issues involved: Attempted export of restricted goods without proper license, confiscation of goods, imposition of penalty under Section 112 of the Customs Act, 1962, waiver of pre-deposit of penalty for admission of appeal.
Summary:
Attempted Export of Restricted Goods: The case involved an attempt to export Muriate of Potash declared as "OWC (Drilling Chemical Additives)" without the required license from DGFT. Customs intercepted the goods and confirmed them to be Muriate of Potash, a restricted item for export.
Confiscation and Penalty: The goods, valued at Rs. 27 crores, were absolutely confiscated, and a penalty of Rs. 50 lakhs was imposed on the appellant under Section 112 of the Customs Act, 1962. The appellant sought a waiver of the pre-deposit of penalty for admission of appeal, citing that the goods were already with the Department.
Arguments and Decision: The learned DR opposed the waiver, highlighting the importance of the goods as fertilizers for the country's farmers. The Tribunal considered the seriousness of the offence and ruled that once goods are confiscated, they belong to the Government and cannot serve as security for the penalty. The Tribunal directed the appellant to deposit Rs. 25 lakhs within 8 weeks for admission of the appeal. The pre-deposit of the balance penalty was waived, and its collection was stayed during the appeal process.
Conclusion: The Tribunal upheld the confiscation of the goods and the imposition of the penalty under the Customs Act, 1962. It required a partial pre-deposit of the penalty for admission of the appeal, emphasizing the gravity of the offence committed.
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2012 (10) TMI 1007
Issues Involved:
1. Validity of the impugned order demanding interest.
2. Compliance with export obligations under the Export Promotion Capital Goods Scheme.
3. Applicability of interest on customs duty in the absence of specific provisions in the relevant notifications.
Detailed Analysis:
1. Validity of the Impugned Order Demanding Interest:
The petitioner challenged the impugned order passed by the third respondent, which demanded payment of interest within 30 days, failing which penal action would be initiated under Section 11(2) of the Foreign Trade (Development and Regulation) Act. The petitioner argued that the impugned order was illegal, arbitrary, and without jurisdiction as there was no provision in Notification No. 160/1992 to demand interest on duty for non-compliance with export obligations.
2. Compliance with Export Obligations Under the Export Promotion Capital Goods Scheme:
The petitioner obtained a licence under the Export Promotion Capital Goods Scheme to import machinery at a concessional customs duty rate, subject to the condition of exporting goods worth four times the CIF value within five years. Due to unforeseen circumstances, the petitioner failed to meet the export obligation, leading to the enforcement of the bank guarantee and recovery of Rs. 18 lakhs towards duty liability.
3. Applicability of Interest on Customs Duty in the Absence of Specific Provisions:
The customs authorities issued a show-cause notice demanding an additional duty amount and levied 24% interest per annum on the duty amount. The petitioner contended that there was no provision in Notification No. 160/1992 for levying interest on duty. The petitioner relied on a previous judgment (Cochin Malabar Estates v. Customs and Central Excise) where it was held that in the absence of specific provisions in the notification, interest could not be levied on duty.
Judgment:
The court considered Notification No. 160/1992 and the previous judgment in Cochin Malabar Estates v. Customs and Central Excise. It concluded that the respondents could not levy interest as there was no specific provision in the notification or the Customs Act for such a levy. The court referenced Circular No. 131/1995-Customs, which provided for interest in cases of non-fulfillment of conditions, but noted that Notification No. 160/1992 was not covered by this circular. The court also cited a Division Bench decision which held that interest could not be demanded in the absence of specific provisions in the notification or the Customs Act.
Conclusion:
The court found no merit in the arguments of the respondents and held that no interest could be levied against the petitioner for failing to comply with the conditions mentioned in the licence. The writ petition was allowed, and the impugned order demanding interest was set aside.
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2012 (10) TMI 1004
Issues Involved:
1. Non-placement of bail order before the detaining authority.
2. Relevance of the bail order as a vital document.
3. Application of Section 5A of the COFEPOSA Act.
Summary:
1. Non-placement of bail order before the detaining authority:
The Petitioner filed a Writ Petition u/s Article 226 of the Constitution of India seeking a writ of habeas corpus to quash the detention order dated 17th April 2012 u/s 3(1) of the COFEPOSA Act. The Petitioner argued that the bail order dated 18th May 2011, which imposed stringent conditions on the detinue, was not placed before the detaining authority, thereby vitiating the subjective satisfaction of the detaining authority. The Respondent contended that the bail order was not relevant as the detention was based on a subsequent incident on 26th August 2011.
2. Relevance of the bail order as a vital document:
The Court noted that the bail order imposed significant restraints, such as retaining the detinue's passport, requiring weekly attendance at the Investigating Officer's office, and prohibiting the detinue from leaving Mumbai or India without permission. The Court held that these conditions were vital and relevant to the detaining authority's subjective satisfaction. The Court referenced the Apex Court's decisions in Sunila Jain v. Union of India and Ahamed Nassar v. State of Tamil Nadu, emphasizing that every relevant and vital document must be placed before the detaining authority to ensure a fair decision-making process.
3. Application of Section 5A of the COFEPOSA Act:
The Respondent argued that u/s 5A of the COFEPOSA Act, the grounds of detention are severable, and even if one ground is invalid, the detention order can still stand on the remaining grounds. However, the Court held that the subjective satisfaction of the detaining authority was vitiated due to the non-consideration of the bail order, which imposed drastic conditions. Therefore, reliance on Section 5A could not save the detention order.
Conclusion:
The Court concluded that the non-placement and non-consideration of the bail order, which imposed significant conditions, vitiated the subjective satisfaction of the detaining authority. Consequently, the detention order was quashed, and the detinue was ordered to be set at liberty. The Rule was made absolute in terms of prayer clause (a) of the Petition.
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