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Customs - Case Laws
Showing 181 to 200 of 663 Records
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2012 (10) TMI 761
Imposition of anti dumping duty on import of Diethyl Thio Phosphoryl Chloride - Personal hearing - natural justice – previous Designated Authority was changed – Held that:- Newly appointed Designated Authority cannot rely on in the hearing given by the previous officer holding the position of Designated Authority - since public hearing was granted by one Officer and the Final Findings were submitted by the another person, the entire procedure was in violation of the principles of natural justice. - In the result, by allowing this petition, the Final Findings dated 6th May 2010 issued by the Designated Authority and the Notification dated 7th July 2010 issued by the Union of India on the basis of such final findings, are set aside.
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2012 (10) TMI 740
Granting of CHA License – Held that:- Following the decision in case of Sunil Kohli (2012 (10) TMI 638 - SUPREME COURT) those who had cleared the examinations under the regulations issued in the year, 1984, would be eligible for the grant of license, subject to their fulfilling the other conditions of eligibility, as the actions already taken under the earlier regulations issued in the year, 1984, had been saved by the new regulations issued in the year 2004. Therefore, direct the authority to issue the necessary certificate granting the Customs House Agents Licence to the petitioner, as per Regulation 9 of the Customs House Agents Licencing Regulations, 2004, on the petitioner complying with the requirements prescribed under Regulation 10 of the said regulations. In favour of assessee
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2012 (10) TMI 739
Demand of duty and penalty – import of mountings and findings of Gold jewellery - benefit of duty exemption under Notification No. 62/2004-Cus - expression “gold in any form” or “silver in any form” shall include medallions and coins but shall not include jewellery made of gold or silver as the case may be and foreign currency coins – Held that:- Gold mountings and findings being items as jewellery are outside the purview of Notification No. 62/2004-C.E. and, hence, the Board’s Circulars No. 40/2004-Cus., dated 4-6-04 and 13/2006-Cus., dated 29-3-06 clarifying that the gold and silver mountings and findings are covered by the Notification No. 62/2004-Cus. are contrary to the provisions of law and, hence, have no validity - duty demands raised against the respondents are confirmed along with interest under Section 28AB of Customs Act, 1962. The Revenue’s appeals are allowed.
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2012 (10) TMI 738
Demand of duty – it was found that they had imported excess quantity of cartons and did not utilise the same in the packing of goods exported – Held that:- Export obligation have been fulfilled and the cartons have been used in the manufacture of export product, no violation of the terms and conditions of the exemption notification has been committed - duty demanded and confirmed by the department is merely on technical grounds without any legal basis or substance - appellant has utilised the imported cartons in the manufacture and export of Pears soap and they have not diverted or mis-used – in favor of assessee
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2012 (10) TMI 728
Demand of duty, interest and penalty – import of medical equipment - importer claimed Customs duty under Notification No. 64/88-Cus., - Held that:- Appellants are eligible for benefit of Notification No. 65/88-Cus., - Notification No. 65/88-Cus., grants exemption not only from the basic Customs duty but also from the Additional Duty of Customs (CVD) leviable under Section 3 of the Customs Tariff Act - when CVD is exempted, there is no liability to pay special excise duty. The Commissioner, while quantifying the duty liability, has not granted any benefit in respect of special excise duty - entire quantification confirmed by the adjudicating authority is totally incorrect and the matter has to be remanded back to the adjudicating authority for correct quantification.
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2012 (10) TMI 700
Direction to conduct interrogation - allowing presence of petitioner's Advocate - Held that:- Allowing the application of assessee and direct that the petitioner's counsel to be allowed to be present at the time of interrogation, made to sit at a visible distance, but beyond audibility.
This order will not permit the petitioner from not appearing before the customs authorities as and when called upon & shall co-operate at all times.
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2012 (10) TMI 699
CHA – import of goods – misdeclaration – alleged that goods were actually MPEG cards and that the ores described in the Bill of Entry - case of the Revenue is based on the statement of Shri Biswajit Bhowmick. Shri Arsh Kumar who imported the goods in the name of M/s. Shiv Shakti Enterprises was not asked whether CHA firm or Shri Biswajit Bhowmick were aware of the fact that what was being imported was MPEG card or not and whether he had given them any specific instructions to ensure that the goods are improperly declared and cleared without any problem by the Customs. All questions put to Shri Arsh Kumar related to importation, documentation, repatriation of moneys, etc - CHA firm submitted that the Director of CHA relied upon that the CHA firm had only done the work of clearing of goods and neither he nor his employee was aware of the fact that what was being imported was MPEG card – Held that:- Statement has been improved as submitted but in the absence of any corroboration by the importer himself or any facts and circumstances of the case which are needed to reach such conclusion - no case has been made out against the appellants by the Revenue – order set aside
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2012 (10) TMI 698
Under valuation – import of various spices and dry fruits – Held that:- When undervaluation is alleged, the Department has to prove it by evidence or information about comparable imports - adjudicating authority has given cogent reasons, for rejection of the invoice of the petitioner by placing reliance on the documentary evidence showing import of same goods - order is in consonance with Rule 6 of the Rules as well as the provisions of the Customs Act - petitioner had chosen not to appear before the second respondent, in spite of opportunity given - writ petition dismissed
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2012 (10) TMI 654
Redemption fine and penalty - importers had declared that the country of manufacture was United States whereas the vehicles had been imported from Thailand - Held that:- Violation of Para-2(II)(a)(iv) of the Licensing Note of Chapter 87 of the ITC(HS) Policy, which provides that the vehicle shall be imported from the country of manufacture. It is revealed from the Bill of Lading that the vehicle was loaded at Thailand. There is no evidence produced by the Appellants that the vehicles were imported from USA. So, the confiscation of the vehicles on this ground is justified - Tribunal was of the opinion that of the two grounds which persuaded the Commissioner to hold the imports to be in violation of Exim Policy, one was unsubstantial. The assessee does not argue that the surviving ground was unjustifiably upheld by the Tribunal.
Reduction of redemption fine and penalty by Tribunal - Held that:- An overall conspectus of the facts of the case would show that the redemption fine was barely 25% of the total amount which could have been recovered also the penalty was a fraction of the total value of the goods, including the different component. A further reduction, in the opinion of this Court, should have been resorted to only if there were certain unusual or exceptional features indicating hardship or benefits or complete good faith on the part of the importers. There is, however, no material on record to suggest that these elements were present in the cases of the assessees. The reduction directed by the Tribunal was, therefore, in clear error of law as it was not informed by any reason. Whilst the authority may possess the power to do something, there ought to be a justification for the exercise of that authority. Without such justification, action would be based on mere caprice or whim – a proposition unacceptable in our legal system - against assessee.
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2012 (10) TMI 653
Waiver of pre-deposit - denial of benefit of Notification No. 32/2005-Cus. – import of continuous cast copper rods – actual user condition - nexus between import and export - Held that:- Condition attached to each of these certificates/licences was that the imports must have “broad nexus” with the two export product groups viz. (i) Chemicals and allied products (ii) Engineering products - paragraph 3.2.5 of the Handbook of Procedures required a ‘broad nexus’ with the export product in the sense that any one or more items of the ‘export product group’ specified in the certificate/licence could be exported by the importer so as to claim the benefit of the exemption notification - waiver of pre-deposit and stay of recovery of penalties are also granted
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2012 (10) TMI 652
Duty Drawback – EOU - appellant is a manufacturer and exporter of ready-made garments - he got the goods manufactured in the second appellant Unit, which is 100% EOU Unit by supplying duty paid raw materials to EOU Unit – alleged that as the first appellant manufactured goods in EOU Unit and thus exported the goods, is he not entitled to Duty Drawback under Section 75 of the Act – Held that:- Circular 67/98 making it obligatory for DTA to get the goods manufactured in a EOU to necessarily approach the authorities for fixation of Brand Rate Drawback rate. Therefore declaring that he is not entitled to All Industry rate, is arbitrary, absurd and does not stand to reason – drawback cannot be denied
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2012 (10) TMI 649
Fraudulent mis-declarations - Rejection of review application of Department as time barred - date would be reckoned from the date of order passed by the lower adjudicating authority OR date of assessment of bill of entry - Held that:- As per para 13 of Commissioner (Appeals)'s order wherein it has been recorded that respective importers have already paid the extra duty, fine etc. is concerned, the department has challenged the same and contended that only in the case of one Bill of Entry the respondent has paid the duty and during the hearing of these cases, the respondent could not submit any document contradicting the department's submissions that duties were paid on 9 bill of entries were not paid. So far as the contention of the respondent that the jurisdictional Commissioner on 21.07.2009 has ordered for passing of speaking order and hence, the fact of passing of order was well within the knowledge of the jurisdictional Commissioner at least on 21.07.2009, we find that is not an endorsement for communication to jurisdictional Commissioner, but it is an endorsement of Board's Circular for issuance of speaking order by successor officer.
As the above aspects were not considered by Commissioner (Appeals) while deciding the appeal. The same are required to be examined - Appeal of revenue allowed by way of remand.
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2012 (10) TMI 646
Benefit of Customs Notification No. 90/94-Cus under the Project Import Regulations, 1986 – respondent entered into project contracts for importing Photo Composing System and Agfa Type Setting equipment - goods were installed, but due to some labour problems, a lock out was declared and the company later on became defunct - After a gap of about ten years, the Revenue required the respondent to produce an Installation Certification in terms of Regulation 7 of the Regulations – Held that:- No requirement of producing any Installation Certificate in terms of Regulation 7 of the Regulations - Regulation is not a condition for determining the eligibility of the concessional rate of duty - there is nothing to suggest that the equipment was not installed - against Revenue
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2012 (10) TMI 638
Granting of CHA license – CHA are governed under regulation Customs House Agents Licensing Regulations, 1984 & 2004 – To carry the business as CHA, agent is required to get license from prescribed authority – the applicant is required to clear the written as well as oral examinations to be held in terms of Clause 8 of those regulations to get license – Held that:- The examinations held under the 1984 Regulations did not get nullified with the enactment of the 2004 Regulations and the candidates who had qualified the examinations held under the 1984 Regulations are not required to again qualify the examination which may be held under the 2004 Regulations. As a corollary, it must be held that those who had cleared the examinations held between 1995 and 2003 under the 1984 Regulations would be eligible for grant of licence subject to their fulfilling other conditions of eligibility.
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2012 (10) TMI 631
Forged Release Advice - DEPB License - seizure of goods - demand of duty, interest thereon & penalty - Whether the provisional assessment resorted to under Rule 9B read with Rule 173J would render assessment provisional as a whole? - Held that:- As decided in COLLECTOR OF CENTRAL EXCISE, MADRAS Versus INDIA TYRE & RUBBER CO. LTD. [1997 (1) TMI 100 - HIGH COURT OF JUDICATURE AT MADRAS] the provisional assessment made is provisional for all purposes, and is not to be treated as provisional only in respect of a particular ground considered. The assessment is either provisional or final, and if it is provisional, it retains that character of being provisional for every purpose and cannot be treated as final in respect of a matter not considered. What is material is the ultimate character of the order of assessment whether it is provisional or final.
It is undisputed that the Bills of Entry which were filed by the appellant were provisionally assessed by the adjudicating authority and before finalization of the claim, Show Cause Notice was issued for recovery of duty from the appellant, thus once a Bill of Entry is provisionally assessed, unless the said provisional assessment is finalized by the lower authorities, demand of duty, if any, under Section 28 of Customs Act, 1962 will not arise - remand the matter back to the adjudicating authority to reconsider the issue afresh after considering the appellant's submissions as regards the Bills of Entry are not finally assessed - in favour of assessee.
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2012 (10) TMI 630
Classification - leather – applicants claimed the goods having description as ‘buffalo sole leather’ fall under 410701 - Department held that their goods are classifiable under 410709 as ‘Others’ - Council of Leather Research Institute (CLRI) has opined that impugned goods meet the definition of finish leather accordingly to Public Notice No. 3-ETC (PN)/92-97, dated 27-5-1992 – Held that:- Opinion of CLRI clarifies the nature of product i.e. that sole leather is a finished leather. Further, department has also not given any counter argument to CLRI opinion that the impugned goods passes through 16 stages during their processing - when expert body has given opinion in the favour of exporter and department has some reservations about it, the matter can be got clarified by again seeking their opinion as some specific point rather than straightaway rejecting the same in absence of any other contrary documentary evidence - case remanded back to original authority
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2012 (10) TMI 629
Writ petition – denial of Target plus scheme - request for copies of letters of the Directorate of Revenue Intelligence - petitioner stating that the demand notice is misconceived, requested to provide the copies of the report of DRI, to enable them to submit a detailed reply – Held that:- Petitioner is not entitled to, as a matter of right to seek for internal communications or inter departmental communications that to at the stage of show cause notice and more so when, such internal communication emanating from a specialized investigating agency - show cause notice is based on the records obtained by DRI from the petitioner’s bankers, copies of which along with all relevant details have been furnished to the petitioner - there is no arbitrariness or unreasonableness in the stand taken by the respondent - writ petition fails and it is dismissed
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2012 (10) TMI 593
Confiscation of the goods under seizure - demand against them while relying upon Notification No.9/96 - Held that:- Goods involved in this case is rain coats and trousers. The goods are not notified under section 123 of Customs Act, 1962. Thus that once the goods are not notified, the onus lies on the department to show that the goods are smuggled goods. The appellant produced the bill for the said goods i.e. cash memo No.384 dated 30.06.2001 and 22.09.2001. The show cause notice in this case was issued on 12.10.2001.
The applicant produced the cash memo prior to issue of show cause notice. Nothing prevented the department to carry out further investigation to check the veracity of the documents - As the department could not discharge the onus to show the smuggled nature of the goods. In these circumstances the Commissioner's order is not sustainable and is accordingly set aside and appeals in the case of above three appellants are allowed with consequential relief - in favour of assessee.
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2012 (10) TMI 592
Waiver of pre-deposit - Mis-declaration – limitation - goods were declared as Condensate by the appellant - Condensate is classified under CTH 2709, whereas the appellants have proposed classification under CTH 2710 - whether the appellants have suppressed the fact or resorted to mis-declaration with intent to evade duty – Held that:- In the case of imports, the goods are assessed by the Customs officers, allowed to be discharged out of the vessel under supervision and in this case, the sample was drawn and therefore, to invoke the limitation, there has to be very strong ground to show suppression or mis-declaration with intention to evade duty. No collusion has been alleged - appellants have a good case since the term ‘Condensate’ itself is a recent term and the quality of Condensate and the specification also vary from source to source - appellants have made out a prima facie case in their favour on limitation - waiver of pre-deposit allowed
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2012 (10) TMI 591
Release of consignments imported - alleged that there were discrepancies between the declaration and the inspection report with regard to the description of certain goods - whether consignments imported can be detained indefinitely without even passing any seizure order – Held that:- Provisional release would arise when there was seizure in accordance with law. There was no seizure in this case - goods imported cannot indefinitely be detained. Necessary action would have to be initiated and expeditiously concluded - respondent authorities are entitled to investigate and ascertain whether the price declaration has correctly been made or whether the goods have been undervalued with ulterior motive. However, such investigation would necessarily have to be concluded with utmost expedition. Apparently this has not been done in the instant case - writ application is, thus, disposed of by directing the respondent authorities to conclude the investigation/proceedings
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