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Customs - Case Laws
Showing 221 to 240 of 663 Records
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2012 (10) TMI 274
Writ of certiorari for quashing demand notice - Held that:- As the petitioner has not approached the concerned authority by presenting a representation projecting the points as raised in the present petition, he is directed to do as advised.
On moving such a representation to the concerned authority who will decide the same by passing a speaking order in accordance with law expeditiously.
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2012 (10) TMI 273
Search - seizure of the documents – alleged that search of its premises has been conducted by the respondents without there being any “reason to believe” for issuance of authorisation for search that any goods liable for confiscation or any documents or things which in the opinion of the authorising officer will be useful for or relevant to any proceedings under the Act are “secreted” in any place – Held that:- It cannot be said that the authority which had issued the warrant of authorisation, was not having enough material to form opinion about reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceedings under the Customs Act are secreted in any place as contemplated under Section 105(1) of the Customs Act or that the said authorisation was issued without application of mind - no case is made out to interfere in the matter at this stage of seizure – seizure upheld
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2012 (10) TMI 272
Drawback claim – re-export - Held that:- Applicant imported Injection Mould EPAS 14 way (9622) with associated accessories at concessional rate of duty under EPCG Scheme, which was re-exported - applicant as importer cleared the goods at concessional rate of duty under EPCG Scheme on execution of Bond, imposing upon themselves the obligation to pay duty along with interest in case they failed to fulfil condition of the Notification. The applicant after importation found their goods defective and paid the differential duty along with interest before re-export of the goods - as the applicant paid the whole duty along with interest, they are eligible for drawback under Section 74 of the Customs Act, 1962
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2012 (10) TMI 236
Scope of Deemed Exports - whether it includes sale to foreign tourists - whether it is restricted to REP Licenses only or include advance licence - petitioner obtained an advance license for 212.8 Metric Tons against which the petitioner had actually imported only 180 Metric Tons of the stainless steel - thereafter, on account of conflict between the President and the Managing Director of the Foreign importer, which couldn't be resolved in the near future, the export order on the basis of which the advance license was obtained had been terminated - petitioners were stuck with a huge consignment of steel utensils made to the unique specifications demanded by the Foreign Company, for which reason the petitioners found no other buyers in the Foreign Market - petitioners fulfilled export obligation by selling the said utensils to foreign tourists within the country
Held that:- "Deemed exports” cannot and should not be restricted to REP Licenses only if the prime objective is to earn foreign exchange which is also the objective under the Advance Licenses as well. Since the main objective of both the licenses is to earn foreign exchange, which is achieved even when sales are made to foreign tourists, the plea of the respondents that deemed exports can be done only in case of REP license cannot be accepted.
In the facts and circumstances it is clear that the respondents have turned a blind eye to the genuine problem faced by the petitioners, the real cause for the termination of the export order, and the subsequent foreign exchange earned by the petitioner, beyond the export obligations attached to the advance license has not been denied. Thus solely on the technical ground that the petitioners had not sought the permission of the competent authority before affecting the deemed exports, and that the DEEC Books were not maintained, such strict mechanical application of the provisions of Import and Export Policy in the facts and circumstances cannot be accepted, when the substantive intent behind the issuance of the advance license has been achieved by the petitioners. In these circumstances imposition of any penalty on the petitioners will be iniquitous and not justifiable considering the objective of the policy. Thus, for the forgoing reasons the impugned order dated 14th May, 1986 is set aside and the writ petition is allowed. The petitioners shall also be entitled for release of their bank guarantee in the facts and circumstances - Decided in favor of assessee
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2012 (10) TMI 235
Whether the Tribunal should have permitted waiver of 100% of the pre-deposit amount as the appellant was a public sector undertaking – Held that:- Pre-deposit is the rule and waiver is an exception and having regard to the financial ability and undue hardship to be caused to the appellant and not otherwise - appellant is a public sector undertaking and very solvent. If it is so, nothing wrong in depositing amount as is indicated by the Tribunal - Even otherwise when the Tribunal has examined the matter and has exercised its discretion in favour of the assessee to dispense with the requirement of deposit in respect of a part of the amount, we do not find any occasion at all to set aside or in anyway modify that order in an appeal under Section 130 of the Act - appeal is dismissed.
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2012 (10) TMI 234
Filing of bill of entry before arrival of ship - rate of duty - On 12-6-2002 the petitioners filed a Bill of Entry for Home Consumption in respect thereof and in conformity with Notification No. 29/2002-Cus. - ‘subject shipment’ actually arrived in India only on the following day on 13-6-2002 - Respondents contended that by that date enhanced tariff became payable by virtue of Notification No. 38/2002-Cus. – Held that:- Bill of Entry must be is deemed to have been presented on 13-6-2002 and not on 12-6-2002. Secondly, Notification dated 13-6-2002 would apply to the subject shipment since it was published in the Official Gazette on that date and accordingly it was efficacious from the commencement of that date itself. Thirdly, the Parliament itself is empowered to prescribe and modify from time to time, the different tariffs for each class of goods dealt with in the sundry Headings 15.01 to 15.22 of Chapter 15 of Section III of the Customs Tariff Act, 1975 - writ petitions are dismissed - shortfall of the duty paid as against the duty demanded/leviable under the subject Notification dated 13-6-2002 together with interest thereon at the rate of 12% per annum be deposited
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2012 (10) TMI 196
Appeal against continuation of suspension of CHA license pending enquiry under Regulation 22 of CHALR, 2004 - assessee contended that prescribed time limit under Regulation 20(2) of CHALR, 2004 has not been followed - whether the timeframe prescribed under Regulation 20 is to be followed strictly or is to be interpreted liberally - whether the timeframe work as prescribed under the guidelines issued by CBEC through Circular No. 09/2010 dated 08.04.2010 are to be followed strictly by the Licensing authority or not - Held that:- In present case, investigation started in the month of December,2010, statement of the appellant recorded in June, 2011, Inquiry Report received in the month of April 2012 and licence has been suspended on 23.05.2012, vide order dated 18.06.2012. Since, vide order dated 23.5.2012. the licence was suspended by the Commissioner of Customs and also afforded an opportunity of post decisional hearing and thereafter order dated 18.6.2012 was passed. In these circumstances, the order dated 23.5.2012 is merged with order dated 18.6.2012 which is under challenge. Hence it cannot be said that the appellants are required to file separate appeal against the order passed by licensing authority dated 23.5.2012. The question is answered accordingly.
As per provisions of the Regulation 20(2) of CHALR, 2004 the suspension order is to be passed within 15 days from the date of receipt of the report of investigating agency. From the records, it is found that report of the investigating agency was received on 25.4.2012 and the proposal to suspend the licence was put up before the Commissioner of Customs and the proposal was approved on 10.5.2012. From the record, further, it is found that draft suspension order in respect of the CHA is prepared and it was put to the Deputy Commissioner on 18.5.2012 and thereafter put to the Additional Commissioner on 21.5.2012 and ultimately signed by the Commissioner of Customs on 23.5.2012. Since order suspending the licence is only passed on 23.5.2012, hence no merit found in the contention of the Revenue that the order of suspension was passed on 10.5.2012 i.e. 15 days after receipt of the report of the Investigating Agency, and it is passed in violation of the provisions of Regulation 20 (2) of the CHALR, 2004 - Decided against Revenue
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2012 (10) TMI 195
Rate of conversion for measurement of timber imported – Held that:- There is no attempt on the part of the dealer to suppress the Turnover as alleged - petitioner filed an application for refund, which however was considered by the second respondent, allegedly in a wrong and perverse manner, leading to Ext. P7, whereby only a partial refund has been ordered – Matter requires to be re-considered by the second respondent, so as to assess the actual facts, as to whether the petitioner is entitled to have the balance refund, if any, on applying the correct conversion table - Ext. P7 issued by the second respondent is set aside and the second respondent is directed to re-consider the matter
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2012 (10) TMI 194
Loss of Bill of lading – Held that:- Petitioner has apparently advertised the Loss of the bills of lading in the issue of ‘The Statesman’ published on July 15, 2010. According to the petitioner, there has not yet been any response. The respondent No. 4 being the shipping agent apprehends that the original bills of lading might have been endorsed and the shipping agent and/or its Principal may be liable for compensating the endorsee of the bills of lading - goods covered by the two consignments shall be released subject to clearance of all freight, demurrage and other charges as also the requisite to customs duty as assessed on the said goods
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2012 (10) TMI 170
Requested for amendment in the Bills of Entry - According to the appellant, due to clerical/arithmetical error, all the Bills of Entry were assessed to duty @ 15% while Notification No.11/2005, prescribed the rate of duty as 10% ad valorem for import of Low Density Polyethylene – Held that:- Amendment has to be allowed when a request is based on documentary evidence, which was in existence at the time of clearance of the goods - Petitioner has paid the duty under mistake of law and or in the instant case by oversight, cannot result in being assessed to duty which was otherwise not payable – assessing officer has a duty to assess according to the law and refusal to amend the document would result in an irregular assessment - in terms of provisions of Section 149 of Customs Act, 1962, the Bill of Entry allowed to be amended
Refund – Held that:- Relief of refund claimed is not maintainable before the order of assessment is amended or modified - he has not passed on the duties and as such the question of unjust enrichment would not arise in the matter
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2012 (10) TMI 169
Reduction of fine and penalty - goods have been imported unauthorizedly without valid import licenses – Held that:- Lower appellate authority reduced the fines and penalties was unjustified - original authority has imposed fines ranging from 20% to 30% only and penalties ranging from 5% to 25% which are not arbitrary or unreasonable - respondents are repeatedly importing the same goods and they are not deterred by lower fines and penalties imposed in the past - fines and penalties imposed in these cases cannot be said to be excessive considering the repeated nature of offences - orders passed by the lower appellate authority reducing the fines and penalties are set aside and the impugned Orders-in-Original are restored in regard to imposition of fines and penalties.
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2012 (10) TMI 144
Short payment of Custom duty - provisional assessments made in the Bills of Entry and related ex-bond Bills of Entry - application for waiver of pre-deposit - Held that:- It appears from the records that the appellant had filed a total number of 37 bills of entry which were provisionally assessed and accordingly the consignments were allowed to be cleared on payment of duty on provisional basis. Subsequently, in respect of 31 out of 37 consignments, show-cause notices were issued for recovery of differential duty on the basis of differential quantity of crude oil between bill of lading and shore tank measurement. These show-cause notices are said to be pending.
Thus a valid point in the submissions made by the assessee with reference to the pending show-cause notices. The pendency of those show-cause notices was duly notified to the adjudicating authority in the present case but the same appears to have been ignored. The Commissioner (Appeals) also appears to have ignored this aspect while asking for pre-deposit of Rs. 75 lakhs. Thus after considering all the aspects a pre-deposit of an amount of Rs. 25 lakhs would suffice the purpose of Section 129E of the Customs Act and that, upon such pre-deposit, the learned Commissioner (Appeals) should dispose of the assessee s appeal on merits without insisting on further deposit, of course, after giving the appellant a reasonable opportunity of being heard - in favour of assessee by way of remand.
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2012 (10) TMI 143
Penalty - non-payment of the cost recovery charges – Held that:- In the show cause notice no specific provisions has been quoted for imposition of penalty and under Section 117 of the Customs Act, the penalty is imposable for violating any provision of the Customs Act, only in those cases where no specific provisions has been made for imposition of penalty. Non mention of the Section 117 of the Customs Act in show cause notice will not vitiate the imposition of penalty, since Section 117 is a general provisions for imposition of penalty. Hence penalty was rightly imposed by the Commissioner of Customs under Section 117 of the Customs Act - most of the violations were prior to 10-5-2008, penalty is reduced
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2012 (10) TMI 142
Whether when consignment had reached the bonded warehouse of the consignee, there was no liability to pay duty on the part of the consignor – Held that:- Question for consideration is merely because the consignee did not issue the certificate as contemplated under the law showing that the goods are received from the assessee and is stored in their warehouse and hence, Sub-Rule (4) of Rule 20 of the Rules is attracted - they were satisfied that the assessee has transported the consigned goods to the consignee and it reached the bonded warehouse of the consignee - Tribunal proceeds on the assumption that the material on record do not disclose that the consignment reached its destination. It also do not disclose that the consignment came to the consignee and therefore it is to be held that there is violation of provisions and Sub-Rule (4) of Rule 20 attracts the provisions - order passed by the Tribunal set-aside
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2012 (10) TMI 114
Public charitable trust in process of establishing Hospital - rejection of request of the petitioner to categorise it under Category-1 of the Customs Notification No.64/1988 and for issuance of installation certificate - seizure without intimation of equipment imported in accordance with the exemption granted under Customs Notification No.64/1988 dated 1st March, 1988 - Held that:- Petitioner was granted exemption under Category-4 which is in respect of a hospital which is in the process of being established and which upon starting functioning would fall under any of the three categories viz. 1, 2 or 3. Application filed for placement in Category-1 under Notification No.64/1988, was rejected by second respondent on the ground that in the undertaking submitted by the petitioner it had chosen Category-2 and hence, the conditions applicable to Category-2 were applicable to the petitioner, which were not satisfied and had, accordingly, rejected the application.
In the writ petition filed by the petitioner challenging the said order, this court had set aside the said order and directed the second respondent to consider the matter afresh, while holding that that if hospitals fall in Category-1, the conditions which are attached to the hospitals falling in Category-2 are not attracted. This is not a case where the petitioner was granted exemption under Category-2 and upon withdrawal of the same is claiming benefit under Category-1. Even after exemption is granted under one of the three categories, it is permissible to change the category, it would certainly be open to the petitioner at a stage prior thereto, to claim the benefit of category-1 instead of Category-2.
A perusal of the impugned order makes it amply clear that the second respondent has decided the matter with a closed mind. The very basis of the impugned order, that is, the show-cause notice itself is contrary to the order passed by this court in the above referred writ petition inasmuch as the same calls upon the petitioner to show cause as to why it should not be considered only under Category-2 of Customs Notification No.64/1988 despite the fact that this court had categorically held that the respondent was required to consider the case and decide as to under which category the petitioner would fall.
The impugned order passed by the second respondent is hereby quashed and set aside. The matter is restored to the file of the second respondent who shall decide the application afresh without taking into consideration the fact that in the undertaking given by the petitioner it had chosen Category-2. The second respondent shall examine as to whether or not the petitioner satisfies the requirements of Category-1 so as to be entitled to the benefit thereof.
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2012 (10) TMI 113
Interest on interest - whether this Tribunal has power to award interest on delayed payment of interest to the assessee – Held that:- Tribunal has no such power for want of specific provision in the Central Excise Act/Rules for payment of interest on delayed payment of interest - appeals are dismissed
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2012 (10) TMI 112
Benefit of Notification - certificate of origin - benefit of Notification No. 85/2004-Cus., dated 31-8-2004 was not claimed by the respondents in the Bill of Entry filed by them – benefit claimed before the Commissioner (Appeals) - Held that:- merely because certificate was not produced before the Deputy Commissioner cannot be made a ground for denial of exemption benefit, if the same is otherwise available to the importer.
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2012 (10) TMI 79
Denial of drawback - whether the demand is to be sustained in view of para(iv) of Circular 17/97-Cus and para (vi) of Circular 64/98 though these are not relied upon in SCN ? - Held that:- The only relevant information was that the Appellant was a merchant exporter, which was always known to the department. As may be seen from para 1(iv) of Circular 17/97-Cus and para1(vi) of Circular 64/98-Cus there was no question of taking any declaration from merchant exporters who buy goods from the open market as in the case of this Appellant but the drawback was supposed to be restricted to the customs portion only.
That merchant exporters who did not get the garments manufactured or stitched through a job workers, but who procured goods from the open market were treated differently and an entirely different set of procedures always existed by virtue of Circulars of 1997 and 1998. The rationale for this was that goods were sourced from diverse suppliers and the authorities were alive to difficulty in securing certificates about duty credit. All these changed in 2003 with the issuance of Circular No.8/2003 it has been decided that instead these manufacturer exporters and merchant exporters with a supporting manufacturer shall be required to give a self-declaration that such manufacturer-exporters or the supporting manufacturers are not registered with Central Excise and that they do not avail / have not availed Cenvat facility. The form of self-declaration is enclosed.
The assessee is not a manufacturer but only procures or sources goods from the Indian market and exports them. Therefore, it availed the benefit of All India rates of duty drawback, a notional concept applicable to such class of exporters. None of the circulars cited by the department required the assessee to follow the procedure which is now mandated, in 2009. The previous circulars of 1997 and 1998 as well as the circular of 2003 clearly visualized that duty drawback was restricted, excluding duty credit availed, in the case of manufacturers who also got their job work done. Exporters of goods purchased from the market were to be treated as having availed Modvat facility. Thus the exports had been finalized and duty drawback paid as long back as in 2006-2007, the attempt to reopening the entire issue by the petitioner was clearly unwarranted - in favour of assessee.
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2012 (10) TMI 78
Reduction of penalty equal to 25% – clandestine removal - appellant is not disputing the fact that there is clandestine removal – contention of assessee is that benefit of provisions of sub Section 1A and two provisos of sub-section (2) of Section 11A of the Central Excise Act, was not given to the appellant at the time of issuance of show cause notice – Held that:- Once the option is made known to the person by explicitly stating in the notice and the person still does not take advantage of the scheme, it would be entirely to his own peril. But if the option is explicitly not stated in the notice with proper quantification of particular amount of duty and interest, the failure on the part of person to pay duty, interest and penalty amount equivalent to 25% of duty, within 30 days of the notice, under Section 11A of the Central Excise Act, 1944/Section 28 of Customs Act, 1962, it cannot be held against the person and he shall get option of the said beneficiary scheme even on payment within 30 days of subsequent communication, with proper quantification and particular amount of duty and interest - benefit of provisions of sub-Section (1A) and two provisos of sub-section (2) of Section 11A of the Central Excise Act, 1944 to extended to the assessee – in favor of assessee
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2012 (10) TMI 77
Jurisdiction – reduction of redemption fine to 50% of what was imposed by the Commissioner of Customs – Held that:- Tribunal has the jurisdiction to reduce the redemption fine if he thinks it is just and proper - order passed by the Tribunal is just and equitable
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9911796707
