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Customs - Case Laws
Showing 161 to 180 of 663 Records
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2012 (10) TMI 996
Punishment for contravention in relation to poppy straw – Appeal against conviction – Appellant was convicted under Section 15 of NDPS Act and sentenced him to undergo rigorous imprisonment (RI) alongwith fine – High court also affirmed conviction order by rejecting appeal of appellant – Held that:- true that independent witness was not examined on side of prosecution – In order to substantiate its claim, prosecution examined PW-1, PW-2, PW-3 and PW-6 – It is better if prosecution examines at least one independent witness to corroborate its case but in absence of any animosity between accused and official witnesses, there is nothing wrong in relying on their testimonies and accepting documents placed for basing conviction – No animosity established on part of official witnesses by accused in defence and no infirmity in prosecution case – True that Section 15 of NDPS Act speaks about punishment for contravention in relation to poppy straw – As per sub-section (b) where contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees – Even after taking two samples of 250 grams each, quantity measured comes to 69.50 kgs which is more than commercial quantity – Taking note of all materials, court in entire agreement with conclusion arrived at by trial Court and affirmed by High Court – Decided against Appellant.
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2012 (10) TMI 992
Issues involved: Refund claim of differential amount in export incentives based on conflicting circulars issued by DGFT, challenge to original assessment order, entitlement to higher export incentives based on similar case precedent.
Summary:
The appeal was filed against an Order-in-Appeal passed by the Commissioner of Customs, Mumbai Zone-I. The appellant, M/s. Steelco Gujarat Ltd., had filed a refund claim on the grounds of differential amount in export incentives. The dispute arose regarding the credit rate applicable to the export of 'mild steel galvanized sheets/strips' under DEPB. The department contended that the products fell under a lower credit rate entry, leading to a demand for payment of excess credit availed. The appellant paid the excess credit under protest based on a DGFT circular from 2000. Subsequently, a 2003 circular clarified the eligibility for the higher credit rate, prompting the appellant to file a refund claim. The department rejected the claim citing non-challenge to the original assessment order. The appellant argued that the payment was made under protest, and similar cases had been allowed higher incentives based on court directions.
The Tribunal noted that the original order was a general directive applicable to all exporters and subsequent DGFT circulars clarified the eligibility criteria for higher incentives. The appellant had paid the excess amount under protest, and the department's rejection without addressing the protest was deemed improper. Referring to a similar case precedent where higher incentives were allowed, the Tribunal ruled in favor of the appellant, granting the appeal with consequential relief.
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2012 (10) TMI 990
Classification of goods - Misdeclaration of goods - Held that:- From the tariff description and the headings reproduced earlier, it can be seen that the sole criterion required to be fulfilled for items imported to be classified under 7013 32 00, is the linear coefficient of expansion. The test memos had clearly indicated that this aspect is required to be verified. The Chemical Examiner has chosen just to say that since there was no breakage, the thermal expansion is nil. When the heading required specific indication that linear coefficient of expansion is less than 5 x 10-6 per Kelvin, in our opinion, this statement of the Chemical Examiner was not sufficient. In fact, the department should have required the Chemical Examiner to specifically indicate the linear coefficient of thermal expansion. Therefore, when the appellants requested for retest by CGCRI, Kolkatta, it could have been considered. In any case option was available to the department to send it for retest to the Chief Chemist at Delhi which was also not done.
We have a blank statement from the Chemical Examiner in the test report that, since there was no breakage on hearing and cooling, it indicates lower linear coefficient of expansion. How can we conclude whether it is below the level prescribed in the heading or not is not indicated by the Chemical Examiner. We could have appreciated if he stated clearly that it is lower than what is prescribed in the tariff heading. Even this is not forthcoming from the reports. On the other hand, the supplier of the appellants and CGCRI has clearly measured the linear coefficient of expansion and have indicated the same. Under these circumstances, we have no option but to hold that the department has failed to show and prove that the classification of the goods in question would come under 7013 32 00.
Whether there was misdeclaration of description by the appellants - Held that:- After opening the packages and inspection, the examining officer had found the goods to be contained in 2 packages and the goods were found to be “Opal Glassware Dinner Sets”. The fact that even after finding the goods to be Opal Ware on examination, the same were allowed to be cleared when the Bills of Entry had been filed as Glassware supports the claim of the appellants that there was no mis-declaration since Opal glassware is nothing but Glassware. - examination reports in ICD, Vapi go against the department. Further, we also find that according to ASTM C-162-05 Standard Terminology of Glass and Glass Products, “Opal Glass” means, a glass with fiery translucence; typically nearly opaque white glass. “Borosilicate glass” means silicon glass with B2O3 content above 4 weight percentage characterized by a moderate to low thermal expansion, long in viscosity versus temperature, and low in density. While borosilicate glass can be Opal glass, it cannot be other way round. From the tariff description, the classification would depend upon the coefficient of thermal expansion and not merely the percentage of boron oxide or the trade name Opal Glass. - findings of misdeclaration of description and misclassification cannot be sustained.
Commissioner has not followed proper procedure for redetermination of value and for rejection also while initial grounds for rejection are acceptable after giving an opportunity to the importer and considering the submissions, there has to be a categorical finding as to why the transaction value is not acceptable. In this case the two grounds for rejection of transaction value is mis-declaration of value and inability of the General Manager to explain the difference between their price and price list, dated 9-2-2004 of the supplier. If the General Manager could not explain it at the time of investigation, it does not mean that they could be permanently shut out from explaining afterwards. Therefore, the submissions made during the hearing and in reply to the show cause notice should have been considered. - impugned order is set aside and the matter is remanded to the Original Adjudicating Authority for fresh adjudication - Decided in favour of assessee.
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2012 (10) TMI 987
Revocation of CHA license – alleged that CHA sublet his licence by signing blank papers – Supreme Court after condoning the delay dismissed the appeal filed by the Assessee against the decision of High Court [2012 (12) TMI 162 - PUNJAB & HARYANA HIGH COURT] wherein High Court held that if a power of attorney holder of a Customs House Agent commits fraudulent activities then the principal is responsible to the same extent.
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2012 (10) TMI 986
Rejection of request of fixation of Brand Rate of Drawback - Held that:- Legal provisions of the applicable statute clearly debars respondent case herein because the said amendment in Rule 30(8) is applicable only to the cases of supply to a SEZ developers who was provided limited/temporary relief at that time. Therefore in this background that above relief was provided for SEZ developers only which cannot be stretched so as to be made applicable to all the suppliers to SEZ Units also. - Respondent herein was bound to receive payments of stated exports i.e. supplies to a SEZ Unit in freely convertible foreign exchange only and not in Indian rupees. Any other provisions/procedure of reimbursement of any benefits cannot override the above statutory provisions of applicable Rules. Government therefore set aside the impugned Order-in-Appeal for not being legal & proper and restores the impugned Order-in-Original. - Decided in favour of assessee.
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2012 (10) TMI 983
Imposition of penalty - appellant did not produce any valid Import Licence for the clearance of the goods - Confiscation of goods - Redemption fine - Tribunal failed to advert to the question as to whether margin of profit could be a factor for determining the quantum of penalty - Held that:- In the impugned order the Tribunal found that the issue to be decided in the appeal was not relatable to the fact as to whether the margin of profit can be considered to be a relevant factor for enhancement of penalty or not and concluded that there is no reason to interfere in the quantum of penalty of ₹ 4,00,000/- imposed on the appellant. It is well settled that a Collector when adjudicating confiscation acts in a quasi-judicial capacity and that he should after due enquiry take an unbiased decision in each case applying his own mind to the materials disclosed in enquiry, independently. - penalty imposed does not also violate Section 112(b)(i) of the Customs Act. We find that the Authorities concerned have exercised the discretion properly and no substantial question of law arises for consideration in this appeal. - Decided against assessee.
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2012 (10) TMI 981
Penalty u/s 112(b) of the Customs Act, 1962 - final product was being cleared by the 100% EOU in the local market - physical exports were shown only on paper - advance licences and advance release orders were fake and forged - Difference of opinion - Majority order - Held that:- The expressions fake, forged or fictitious - nowhere came on record in the statements of any of the persons, including the present appellant. It nowhere stood admitted by the appellant that he was aware of the fact of said licences being forged. The Revenue has heavily relied on the findings recorded by the learned Member (Technical). However, it is seen that procurement of licences from Shri R.K. Gupta has not been disputed anywhere. It is also not disputed that other persons namely Shri K.D. Sharma and Shri Nitin Rastogi also used to buy licences from Shri R.K. Gupta. Filing of anticipatory bail by Shri R.K. Gupta is also not in dispute - No evidence suggests that the present appellant sold the licences directly to 100% EOU on such premium. In absence of any cogent evidence, although circumstances may raise grave suspicion, I am unable to hold that the appellant was aware that the licences were fake, forged or fictitious.
Efforts made by DRI officers to locate Shri R.K. Gupta, has not resulted in any fruitful result. The appellant during the course of his interrogation, also disclosed the names of one Shri K.D. Sharma and Shri Nitin Rastogi as the persons who used to buy licences from Shri R.K. Gupta. These persons have also admitted the same. Not only that, he also disclosed the case file number where Shri R.K. Gupta has filed anticipatory bail in Sessions Court of Delhi. Shri R.K. Gupta’s affidavit was also on record. No evidence of further sincere investigations on all these evidences by DRI is forthcoming. - it is seen that no serious efforts to trace Shri R.K. Gupta, by taking help of Shri Nitin Rastogi, Shri K.D Sharma. the court records in the Court of District Sessions Judge, Delhi are forthcoming from the records. It therefore appears that no serious efforts were made to locate Shri R.K. Gupta
Solely on the basis of the appellant’s oral statement, it cannot be established that he was aware that no goods would be cleared but only paper transactions will be made. Moreover, when it is established that the appellant was not even known to the concerned directors/persons of the said 100% EOU, the question of aiding and abetting them would not arise.
It is trite that to attract penalty, the penal provisions would require strict interpretation. Even if the present appellant dealt with the licences, he has not dealt with any goods in any manner nor is there any such allegation. Without dealing with the goods in any manner whatsoever, in the facts of the instant case, the ratio laid down in the Larger Bench decision of this Tribunal in case of M/s. Steel Tubes of India Ltd. v. CCE, Indore as reported in [2006 (10) TMI 146 - CESTAT, NEW DELHI [LB]] would be a binding precedent, wherein it was held that penalty is imposable under Rule 209A only if excisable goods are dealt with by the person concerned with knowledge of liability of confiscation, and that even where any person has issued only invoices without actual movement of the goods, the said rule cannot be pressed into service for imposing penalty. - neither the appellant has dealt with or transacted for the goods in any manner, nor has it been established that he was aware about forged/fake nature of the licences.
Since, none of the acts referred to in Section 112(b) of Customs Act, 1962 are proved against the appellant, imposition of penalty under Section 112(b) also cannot sustain. - Decided in favour of appellants.
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2012 (10) TMI 919
Interest on delayed payment of Refund – The refund claim of the petitioner had been rejected by the Department on the ground that the amount had been recovered from the petitioner for the breach of trust and that the claim had not been filed, within a period of six months from the date of the encashment of the bank guarantee. - Following the decision of Supreme court in case of [Sandvik Asia Limited Versus Commissioner Of Income-Tax And Others 2006 (1) TMI 55 - SUPREME COURT] Held that:- Department is solely responsible for the delayed payment, Interest of justice would be amply met if payment is made of simple interest at 9 per cent, per annum from the date it became payable till the date it is actually paid - the respondents are directed to pay the interest on the amount of Rs.6,60,000/- refunded to the petitioner, based on his refund claim, for the period, from December, 2004, to 26th of August, 2008, at the rate of 9% interest per annum, within a period of eight weeks from the date of receipt of a copy of this order - writ petition is disposed of with no costs - Consequently, connected miscellaneous petition is closed.
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2012 (10) TMI 918
Anti-Dumping Duty - Status of Domestic Industry - Appellant contended that they had concealed material information from the D.A. Even though they had stated that they had never imported the subject material from the subject country, they had actually imported the penultimate intermediate product namely Ceftriaxone Sodium (non-sterile) from there. They had also concealed their relationship with some of the Chinese exporters. The learned counsel for the appellants further states that for the purpose of injury analysis M/s. Orchid Chemicals has been wrongly excluded on the ground that it was a 100% EOU. Similarly, other domestic units have also been excluded from the consideration thereby restricting the domestic industry to comprise only the petitioners.Held that:- Domestic industry status granted by the D.A to the sole petitioner is justified.
Market Economy Status - Appellant contended that one of the grounds taken by the D.A. that they are buying power from state controlled public utility is not a valid ground as the D.A. has taken no such objection in respect of some of the other anti-dumping cases. Market economy assessment is an overall assessment of the entity involved, covering several aspects and not an isolated examination of single parameter, which could give a decisive indication of the status of the entity. Held that:- Import prices at which the appellants are sourcing only about 5% of their raw material requirement internationally are quite low compared to the international import prices prevailing in India as per DGCIS data, which goes to indicate that the appellants are not operating in a Market Economy scenario.
Determination of normal price - Held that:- Lower normal value calculated by the first method of construction adopting the average consumption norms of the cooperative exporters is required to be applied for the purpose of calculating the dumping margin and anti-dumping duty - Appeal is thus partly allowed by reducing the anti-dumping duty.
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2012 (10) TMI 917
Classification – Personal Digital Assistant (Data Processing Machine) - Revenue found the item to be “Pocket Surfer Device - revenue was of the view that the equipment has no capability for processing of data – Held that:- Device is of a kind used principally in data processing - device is covered by Chapter Note 5(B) - It is not explained which is the individual function, other than data processing which the device is capable of doing. Note 5(D) will apply in situations like that of a CNC machine or a machine used in testing of eyes which machine may be using a computer to program the device and analyse the data - Heading 84713090 is more appropriate than Heading 84798999 – in favor of assessee
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2012 (10) TMI 874
Doctrine of Merger – Commssioner (Appeals) has rejected the review application - Commissioner (Appeals) has not decided the issue on its merit - held that:- Commissioner (Appeals) has erred in dismissing the Review Application filed by the Department on the doctrine of merger. - Decision of Apex Court in Commissioner of Central Excise, Delhi Vs. Pearl Drinks Ltd. [2010 (7) TMI 10 - SUPREME COURT OF INDIA] followed.
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2012 (10) TMI 873
Whether central excise and customs duty arrears have priority and precedence over the claims made by public sector Banks - either under the decree/recovery certificate granted by the Debts Recovery Tribunal (DRT) under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 or while enforcing the security interest under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - interim measure restrained the first respondent from confirming the sale in favour of the highest bidder but allowed the auction sale – Held that:- For the first time the Parliament created first charge on the property of the assessee in relation to duty, penalty and interest payable under the Central Excise Act or Customs Act as the case may be. But these provisions themselves exclude from their operational field, the recovery or withholding of monies under Section 529 A of the Companies Act, DRT Act and the SARFAESI Act - two provisions would do not support the Dept. - When they were about to conduct auction or about to confirm auction sale, the Assistant Commissioner intervened objecting Bank sale. So also the auction initiated under the SARFAESI Act in all these matters, is not yet completed. These are, therefore, saved by Section 11E of the Central Excise Act and Section 142A of the Customs Act, and the Dept., cannot claim first charge or priority in recovery
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2012 (10) TMI 872
Penalty - abetting illegal import – alleged that appellant was aware that the consignments were imported in the name of M/s. Kalinga Trading Co. showing one Shri Prakash Surendra Tiwari as the proprietor, even though Shri Jainarayan I. Rajbhar was the actual proprietor – Held that:- In spite of coming to know this fact, he did not inform the Customs authorities and got the bills of entry assessed as ABC dry chemical powder for fire extinguishers - he knew that one Shri Ajay R. Bhan was attempting to arrange certain manipulations with reference to the chemical test report of the goods under importation, but he remained silent and did not inform the Customs of the same - acts of omission and commission which rendered the goods liable to confiscation under Section 111(d) & (m) of the Customs Act, 1962, Shri Brajesh Tiwari is liable to penalty under Section 112 of the Customs Act
Penalty against Shri Kishun Ram, Assistant Chemical Examiner - There is no evidence on record to show that Shri Kishun Ram undertook any activity, the commission or omission of which rendered the goods liable to confiscation. In the absence of such a positive evidence, the benefit of doubt has to be given to him and therefore, a penalty under the Customs Act, 1962 cannot be imposed on him. We should hasten to mention here that this finding of the Tribunal does not in any way affect the departmental disciplinary proceedings initiated against Shri Kishun Ram for dereliction of duty and that should be decided on the basis of the evidence available on record independently of the findings given herein.
Penalty against Shri Shailendra Bahadur, Assistant Chemical Examiner. - There is no allegation that Shri Shailendra Bahadur was in touch with the importer or his agents nor did he take any money from the importer for testing the sample. In the absence of any evidence directly inculpating Shri Shailendra Bahadur in the commission of the offence, we are of the view that imposition of penalty on Shri Shailendra Bahadur cannot sustain in law. - penalty set aside
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2012 (10) TMI 834
Food Safety and Standards Act, 2006 - imported consignment of Crude Palm Oil (Edible Grade) - Interim order to allow the petitioner to clear the imported consignment – petitioner submitted that goods are conform to the standards laid down under the Food Safety and Standards Act, 2006 and the applicable regulations – Held that:- Petitioner is also entitled to an order of injunction restraining the respondent and each of them, their officers and subordinates from causing any delay or further delay in allowing the petitioner to process the imported consignment – interim order passed
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2012 (10) TMI 833
Validity of show cause notice - Held that:- It is not a mere formality, but a statutory right to oppose the decision for extension of time. Issuance of a notice of three day has defeated the right of the petitioner to effectively defend its case. The petitioner had not only submitted reply, but also requested for more time, so as to represent the case before the department. The department in hurry to pass the order before six months, passed an exparte order, by considering the objection filed by the petitioner, without giving an opportunity of personal hearing. The impugned order therefore on the face of it is in violation of principles of natural justice - alternative remedy of statutory appeal cannot be a bar to maintain this writ petition - Writ petition is allowed. Impugned order is set aside. The petitioner shall be entitled to release of goods subject to payment of admitted duties and right of department to hold enquiry and impose duties & penalties under Section 124 of the Act -Connected Miscellaneous Petition is closed - No costs.
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2012 (10) TMI 832
Definition of the term Domestic Industry - anti dumping duty on Soda Ash - held that:- between 1999 and 2010 in respect of the producers who are related to the exporters or importers of the dumped articles, or who are themselves importers, the term “domestic industry” was liberally construed by giving discretion to the Designated Authority treating such persons as forming part of the domestic industry.
In the amendment which was brought in with effect from 27-2-2010, on a reading, it is clear that the first portion of the definition of the domestic industry, which relates to the domestic producers as a whole whose collective output constitutes the major portion of the total domestic production, remains intact.
Insofar as it relates to the producers who are related to the exporters or importers of the dumped article or who are themselves importers of the dumped articles, the law-makers made it very clear that while construing them as domestic industry, the Designated Authority “may be construed as referring to the rest of the producers only”.
The term “may be construed as referring to the rest of the producers only” on a bare and literal interpretation, in our view, should be construed only in respect of the producers who are related to exporters or importers, or producers who are themselves importers, and simply because the term “only” is construed, it cannot be taken to the first portion of the definition.
The word “only” under Rule 2(b) of the Rules need not be concentrated much and in our view it has no significance as such.
While it is true that the international agreements like WTO and GATT may not be the absolute and only source for interpreting the Indian Law, so long as there is no contradiction between the definition of the agreement in the international law and the terms of the Indian Law, there is absolutely no prohibition for this Court to take note of the terms of the international agreements for the purpose of better appreciation of the term.
The term “domestic industry”, as it was amended on 27-2-2010, has not taken away the discretionary power of the Designated Authority and the Designated Authority is entitled to proceed further.
As elicited above, under Rule 5(3)(a) proviso, there is a prohibition against the Designated Authority not to investigate when the domestic producers expressly supporting the application account for less than 25% of the total production of the like article by the domestic industry. But under the first portion of the term “domestic industry” defined under Rule 2(b) of the Rules, elicited above, it is very clear that the collective output of the entire manufacture put together totally must constitute the major proportion of the total domestic production. While so, on the admitted fact that M/s. DCW Limited is the only producer of Soda Ash in the country, even though it has produced only 4%, by a combined reading of Rule 2(b) and Rule 5(3) proviso, M/s. DCW Limited must be considered as a domestic industry.
The writ petition against the preliminary finding published by the Designated Authority is maintainable
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2012 (10) TMI 831
Offence under Section 135A of the Customs Act – confession of the co-accused – Petitioner contends that the statement of the Petitioner recorded under Section 108 of the Customs Act is exculpatory in nature and the statement of Virender Singh Batra, recorded under Section 108 of the Customs Act, 1962 cannot be relied upon for the purpose of framing charges as he was not examined as a witness in terms of Section 244 Cr.P.C in the complaint case – Held that:- Confession of the co-accused is admissible only under Section 30 of the Evidence Act. One of the essential requirements of the said provision is that the two accused should be tried jointly. Since the confession of the co-accused is not admissible as he is not being jointly tried with the Petitioner and besides this piece of evidence there is no other evidence, no charge can be framed against the Petitioner for offence under Section 135A of the Customs Act - order directing framing charge and the consequent order framing charge against the Petitioner for offence under Section 135A Customs Act are set aside
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2012 (10) TMI 830
Refund claim – benefit of Notification No. 21/2002-Cus. – Held that:- There is no ‘contest’ or ‘lis’ between the appellant and the department at the time of clearance of the goods - payment of higher rate of duty by the appellant is by way of inadvertent mistake without taking the benefit of notification - benefit of said notification, was available to the importer - it is clear case of payment of higher duty due to ignorance - appellants are entitled to refund of excess duty paid by them
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2012 (10) TMI 772
EPCG Scheme - Revenue contended that the Notification provides exemption to the spare parts for existing plant and machinery whereas as per the EPCG scheme under para 5.1A, spares including reconditioned spares, tools, spare refractories are covered and the Notification during the period in dispute provides exemption only to the spares and not to the catalysts hence the demand is rightly made. - Held that:- In the policy, the capital goods also include catalysts for initial charge and under the EPCG scheme for existing plant, the catalysts are separately mentioned in the spares. Catalysts and consumables are separately mentioned in para 5.1A of the Policy. The Notification in question provides exemption from payment of duty in respect of spares as well as consumables. Subsequently, the consumables were omitted for the benefit of the Notification. The applicant was declaring catalysts in the bills of entry and the same were cleared without any objection. In these circumstances, as the catalysts are separately mentioned in addition to consumables in the EPCG scheme for existing plant and also separately mentioned in the definition of capital goods under the policy, prima facie we find merit in the contention of the applicant on merits as well as on time bar. - stay granted.
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2012 (10) TMI 771
Penalty under Section 114(i) of the Customs Act - wrong provision of law has been quoted by the Revenue in the show-cause notice - non-mention of Section 113 in the show-cause notice would not per se invalidate the penalty imposed under Section 114 if the penalty is otherwise supported by the essential facts alleged and proved - no allegation of “fraudulent” export in the show-cause notice - show-cause notice did not allege the essential, and consequently the adjudicating authority could not hold any goods to be liable to confiscation in terms of Section 113 of the Act - nobody could have been held to have rendered the goods liable to confiscation so as to attract a penalty under Section 114 of the Act in the present case - question whether Section 114 of the Act could be invoked against the appellant did not arise in that case - in favor of assessee.
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