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Customs - Case Laws
Showing 201 to 220 of 663 Records
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2012 (10) TMI 584
Penalty - Prohibition on import of second hand goods Held that:- Initially Tribunal had reduced fine and penalties to the range of 15% and 5% of the assessable value. From the repeated imports made by the importer it is quite clear that the fine and penalties imposed are not wiping out the profit margin, probably because the wrong value declared also. Considering the repeated nature of the offence there is need to increase this fine and penalty. But still there is no justification for increasing the penalty to about 62% and 25% of the assessable value approved - penalty reduced - appeal is allowed partially.
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2012 (10) TMI 554
Denial of grant of licences to to act as Customs House Agent - change in procedures - old regulation v/s new regulation - Held that:- Those who had cleared the examinations under the regulations issued in the year, 1984, would be eligible for the grant of licence, 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, the petitioner is eligible for the grant of Customs House Agents Licence, as he had passed the written, as well as the oral examination under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 held prior to the coming into force of the new regulations in the year, 2004 - direction to the department to issue the necessary certificate granting the Customs House Agents Licence to the petitioner - against department.
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2012 (10) TMI 553
Misdeclaration in the Bill of Entry confiscation redemption fine - appellants noticed that the supplier had given two invoices - But the Appellant while authorising the CHA to file Bill of Entry had given only one invoice to the Customs House Agent which resulted in wrong declaration in the quantity of the goods and the value of the goods Held that:- an error in filing Bill of Entry which error was detected before taking delivery of goods and Customs Act provides for correction of such errors as may be seen from Section 149 of the Customs Act - It to be a case of genuine mistake and ordered that there was no case for confiscation of the goods and therefore redemption fine imposed set aside - appeal filed by Revenue is rejected
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2012 (10) TMI 552
Siphoning foreign currency to the abroad by overvaluing the imported goods Held that:- Siphoning of money to foreign country was dropped by the FERA against the applicants, therefore, the charge of siphoning of money is not sustainable.
Mis-declaration - applicant submits that in this case it is an admitted fact that the importer had declared the goods as per the invoice raised by the foreign supplier and on examination it was found that the goods were not as per the description in the invoice/bill of entry Held that:- Applicants proceeded the matter with foreign supplier, who admitted the fault that the some other goods had been supplied wrongly to the importer - charge of mis-declaration of goods is also not sustainable against the applicants - applicants have made out a case for 100% waiver of pre-deposit of penalty
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2012 (10) TMI 505
Smuggling - vessel was carrying High Speed Diesel (HSD) from Muscat & Captain was not holding any legal documents for import of the said diesel oil into India - S.L.P. against detention order on non-application of mind - Held that:- It is true that though the detenu was granted bail on 12.04.2005, for the reasons best known to him, he did not avail such benefit and continued to be in jail on the date of the detention, i.e., 03.05.2005. It is true that this aspect has not been mentioned in the detention order, however, on the other hand, it is not in dispute that the grounds of detention which forms part of the Detention Order dated 03.05.2005 clearly mention the details about the bail order dated 12.04.2005 and non-availing of the same on the date of detention order, i.e., 03.05.2005.
As the Detaining Authority was aware of the grant of bail and clearly stated the same in the grounds of detention, the contra arguments made by the appellant rejected. The Detaining Authority was conscious that the detenu was having the order of bail in his hand, it is presumed that at any moment, it would be possible for him to come out and indulge in prejudicial activities of all relevant aspects and passed the impugned order of detention in order to prevent the appellant from abetting the smuggling of goods in future. It is the subjective satisfaction of the Detaining Authority whether the order of detention is to be invoked or not.
Keeping the writ petition pending after hearing the parties and compelling the detenu to wait for 5 months to know the result of his petition, cannot be accepted. We request all the High Courts to give priority for the disposal of the matters relating to personal liberty of a citizen, particularly, when the detention period is for one year or less than a year and, more so, after hearing the parties, the decision must be known to the affected party without unreasonable delay.
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2012 (10) TMI 504
Fear of likely order of preventive detention - Held that:- in view of the fact that the threatened arrest of the petitioner is based on the allegation of customs violations, it would be appropriate for the State Government to obtain the comments of the Settlement Commission before any final order is passed.
If the detention of the petitioner is being considered only on the basis of the recommendations of the Customs Department, the State of Maharashtra is directed, to seek the comments of the Settlement Commission, before passing any order of preventive detention against the petitioner.
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2012 (10) TMI 463
Licencing of Custom House Agent - old regulation v/s new regulation - Held that:- Those who had cleared the examinations under the regulations issued in the year, 1984, would be eligible for the grant of licence, 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, the petitioner is eligible for the grant of Customs House Agents Licence, as he had passed the written, as well as the oral examination under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 held prior to the coming into force of the new regulations in the year, 2004 - direction to the department to issue the necessary certificate granting the Customs House Agents Licence to the petitioner - against department.
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2012 (10) TMI 462
Confiscation of goods - heavy melting steel scrap Held that:- Once the classification is accepted and goods are held to be used pipes, it is quite clear that they are not covered by para 2.17 of Import Trade Policy which allows free import of goods since this paragraph does not cover goods under CTH 7304. Since the goods are old and used, restriction applicable on second hand goods would apply - appellant requires license and therefore goods are liable to confiscation confiscation upheld
Mis-declaration Held that:- Claim of the appellants that they had given the full description of the goods is correct Held that:- It is a question of interpretation as to whether used and old pipes can be considered as heavy melting scrap or not and appellant has gone by the description in the invoice and the party from whom they have imported goods to give the description in the bill of entry. Therefore the charge of mis-declaration cannot be sustained penalty reduced
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2012 (10) TMI 461
Stay application - Computer networking equipments were imported by the respondent and assessment was sought on the basis of the unit price declared by them Held that:- Lower appellate authority has, in fact, allowed deduction to the extent of over 97% on HP listed prices, for which no rhyme or reason is forthcoming - appellate Commissioner's order should be stayed till final disposal of this appeal
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2012 (10) TMI 445
Writ petition - Confiscation and penalty alternative remedy Held that:- Writ petition cannot be directly entertained ignoring the statutory remedy of appeal, that was available to the petitioner - petitioner did not avail the remedy of getting the reference made to this Court under Section 130A of the Act. Petitioner has also not challenged the order passed by learned Additional District Judge - Petitioner has thus by his own action/inaction, while not questioning correctness of the confiscation order as also the order passed by the learned Additional District Judge, accepted those orders as valid, which orders have even otherwise became final. In these facts, petitioner cannot be held to be entitled to the relief prayed for
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2012 (10) TMI 425
Mis-declaration in exporting the non-Basmati Rice - reredemption fine and penalties - Held that:- There is clear and unambiguous admission to the misdescription of the goods. It was not case of classification or any dispute with regard to description, which was required to be sent for the final reference to DGFT, or to some other laboratories. The Tribunal proceeded on the basis that there was no dispute to the nature and quality of goods, which was not non-basmati rice. If the petitioner had any grievance with regard to non-consideration of matter on merits, the point should have been taken in the Tribunal itself. Having failed to do so, the appellant cannot be allowed to canvass the point in the High Court in an appeal under Section 130 of the Act.
The redemption fine has been imposed at 10% of the penalty under Section 114 (5) on the ground that the goods were not exported and that containers did not go out of India & the penalty under Section 114 (i) have been imposed reasonably at Rs.6,90,000/-, which is 5% of the amount of penalty awarded by order in original - Thus the redemption fine and penalties were not levied only on confession & the customs authorities relied on test reports, which were not denied nor any objections were filed - against assessee.
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2012 (10) TMI 424
Maintainability of Writ petition writ challenging the Show Cause Notice - Held that:- Customs Officer assigned with specific functions of assessment and re-assessment in jurisdictional area where goods imported alone are competent to issue Show Cause Notice under Section 28 of the Customs Act, 1962 as proper officer and Collector of Customs (Preventive) had not been assigned such functions. Therefore it is submitted that the impugned order is issued by a Preventive Officer and hence the said Show Cause Notice is itself void abinitio - Court is not inclined to impugned the Show Cause Notice especially when the Respondents are seized of the matter and the Petitioner has also given its own inputs in coming to the proper conclusion which has been permitted by the earlier Division Bench of this Court - writ petition dismissed
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2012 (10) TMI 423
100% Export-Oriented Unit - manufacture of ready-made garments alleged that 100% EOU had cleared without payment of duty certain goods and had been diverted into the domestic market in violation of the provisions of the Customs Act, 1962 Held that:- Apart from the statement given by the employees who are also held guilty of liability to make payment of penalty there is no other material whatever to connect the company M/s. MNS Exports Private Limited and its Managing Director - disputed transaction has been carried out by collusion with three employees of the respondent-company and Sri Bhaskar who was an employee in the Customs Department and Sri Vikram Jain - in the criminal case no allegation was made against the respondent, it clearly shows that there was no nexus between M/s. MNS Exports Private Limited or its Managing Director - appeal is dismissed
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2012 (10) TMI 422
Duty drawback alleged that appellants had declared the export goods to be Handicrafts/Artware of the constituent materials and accordingly claimed drawback separately on the constituent materials treating the goods as composite articles - appellants placed reliance on Circular No. 56/99-Cus., dated 26-8-1999 and produced the certificates issued by Metal Handicraft Service Centre and a few invoices stamped by the Export promotion Council for Handicrafts and based their claim for drawback on the fact that all the goods exported were handicrafts Held that:- Since in this case neither any approval was taken from Commissioner of Central Excise/Customs nor discussions were held with certificate issuing authority, the decision taken by adjudicating/appellate authority to reject the respective handicraft certificate is liable to be set aside - matter back to original authority for de novo proceedings
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2012 (10) TMI 386
Refund claim of duty paid under protest rejected on ground that if the assessment is not challenged by filing any appeal, the refund claim made u/s 27 would not be maintainable - assessee imported Coking coal classifiable under heading 27011910 and claimed benefit of exemption Notification No.21/2002 - provisional assessment under Heading 27011910 @5% BCD - Held that:- The basic philosophy denying refund without challenging an Assessment Order, as held by the Apex Court in case of PRIYA BLUE INDUSTRIES LTD (2004 (9) TMI 105 - SUPREME COURT OF INDIA), rests on the principle that the proceedings of refund and filing of appeal against an assessment order are two separate proceedings and the scheme under the Act meticulously provides relief to the assessee, when the assessment order is not acceptable to him. It provides that when an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. Appeal filed by the Appellant is dismissed.
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2012 (10) TMI 385
Demand of duty import of goods from Nepal - importer had claimed exemption under Notification 40/2002-Cus., - goods were intercepted by Directorate of Revenue Intelligence and seized under the belief that the importer had mis-declared the goods in the Bill of Entry for claiming the exemption under Notification 40/2002-Cus., - alleged that exemption under Notification 40/2002-Cus. was meant for goods of Napalese origin; the goods imported were pure Calcium Di-Pantothenate, classifiable under Customs Tariff Heading 29.36 and the goods were imported from Germany Held that:- Case of the department is proved based on test reports - When the goods were available for testing and were tested and found to be different from what was declared, the appellant was just trying to avoid coming before the department - His agent was accepting that the certificate was forged - department did not make enquiries with the Nepal Chamber of Commerce which is stated to have issued the certificate is not a major flaw in investigation - no need for any joint visit by the Indian Customs and Napalese Customs to the factory of the exporter to find out the correctness of the certificate issued
Whether goods could have been confiscated absolutely alleged that goods were prohibited goods and liable to confiscation under 111(d) of the Customs Act Held that:- Goods in question is not of a type which causes injury to public health or can cause damage or threat to the society if released into Indian market - goods have been sold by the Customs in Indian market - goods should have been released to the importer against a redemption fine rather than the customs department selling the goods after absolute confiscation.
Value of the goods - Appellants have raised the objection that the basis for such assessment is not disclosed in the SCN or in the order-in-original - When the description was wrong the value declared cannot be accepted
Penalty Held that:- Penalty imposed on the firm is about 45% of the assessed value of seized goods - Considering that goods were absolutely confiscated, and the relief from such order is being granted only after more than 8 years, and thus the appellant has suffered severe penal consequence we reduce the penalty
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2012 (10) TMI 347
Dismissal of appeal as time-barred - Held that:- As both sides seem to be contending that the order was sent by post from the office of the Additional Commissioner and received by the appellant by post Tribunal has to presume that Section 153(a) of the Customs Act was followed by the Additional Commissioner.
If it be assumed that the order-in-original was despatched on 19.8.2011 from the Additional Commissioner's office in Hyderabad, the postal article must have been received by the addressee located in Bhatkal, Karnataka on some date after 19.8.2011, in which event the question of delay of the appeal filed on 20.10.2011 does not arise - set aside the impugned order and allow this appeal by way of remand with a request to the Commissioner (Appeals) to decide it afresh.
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2012 (10) TMI 311
CHA - forfeiture of the security - violation of Regulation 13(a) and (d). The allegations are that they did not have an authorisation from M/s. Nelcast Ltd., the importers and they did not advise the importers that the impugned goods were required to be re-exported within a period of six months Held that:- There is nothing to indicate that the appellant-CHA has acted mala fide in any manner. It is usual in international trade these days for logistic companies to act as agents of the importers and exporters and engage CHAs on their behalf - appellant-CHA did not act mala fide and they had the tacit authorisation of the importers M/s. Nelcast Ltd., to deal with the goods for Customs clearance purposes. It is also clear that M/s. Nelcast Ltd., did not take any action to receive the impugned goods in their own premises and to re-export the same within the required six month period. After giving the required documents and bonds, they cannot claim to be unaware of the clearance of the impugned goods from the Customs. Even after a lapse of nearly a year, they are seen to be threatening the suppliers and M/s. DAMCO that the latter should not attempt to re-export the cargo even though they themselves had executed the Customs bond to re-export the cargo within six months - Strangely the Customs authorities have not taken any action against the importers but have acted against the appellant-CHA in this case, without there being sufficient reason for such action - appeal is allowed.
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2012 (10) TMI 310
Conversion of shipping bill - appellants applied for conversion of free shipping bill to a drawback shipping bill which has been rejected by the jurisdictional Commissioner Held that:- Goods were taken straight away from the dealer for export and they were not at all manufactured and hence there was no question of claiming of excise duty rebate under ARE-1 procedure when goods were produced abroad - It is also apparent that even if such a conversion is allowed, it would be a futile exercise as no drawback can be sanctioned unless the identity of the imported and export goods can be established - conversion not allowed - Accordingly, the appeal is dismissed
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2012 (10) TMI 309
Penalty - misdeclaration in respect of description and value - Commissioner while imposing the penalty on the partner ARM Faiyaz has imposed 114A and 112 of the Customs Act, 1962 Held that:- Under Section 114A of the Customs Act, penalty can be imposed only on the person who is liable to pay duty and penalty under Section 114A can be imposed, no penalty shall be imposed under Section 112 or 114 of the Customs Act - no penalty can be imposed on the partner
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