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Customs - Case Laws
Showing 261 to 280 of 663 Records
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2012 (9) TMI 921
Import of pulses (Toor Whole) - unsafe or sub-standard food - Held that:- When import of sub-standard materials is prohibited testing is required to be done at the point of entry into India. Any certificate of a prior date is of no consequence. It is possible that the said consignment was in perfect condition on the date on which samples were drawn for analysis by SGS Myanmar Limited but subsequently deteriorated in course of transit. Even in such circumstances, this Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot issue mandatory orders for clearance of a consignment that is found sub-standard when the same landed in India.
Instructions contained in the circular of the Senior Inspecting Officer of the Food Authority cannot, in my view, be enforced by initiation of proceedings under Article 226 of the Constitution of India. The circular has been issued in response to representations for relaxation of standards. The prayer for relaxation of prescribed standards was apparently turned down having regard to the object of ensuring the mandate of safe food imports into India.
An importer can be allowed facilities for improving the quality of foodgrains, at the sole discretion of the Authorized Officer of Food Authority who is required to ensure that clearing/sorting of food grains can be done by the importer strictly under the supervision of the Customs in customs bonded area. - Decided against the petitioner.
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2012 (9) TMI 915
Exemption under Notification 64/88-Cus - Assessee did not provide free treatment to 40% OPD patients during the years 1995 and 1996 - notice gives the ground that “they have not disclosed the details and addresses of the patients treated free in OPD” - Difference of opinion - Majority order - Held that:- Appellant while replying to the notice was very much aware that percentages of patients treated free of cost had to be furnished to prove that the condition in the notification was satisfied and the same was furnished in reply. The defence replies furnished on 5-12-2000 and gist of submissions made on 19-1-2005 make this position very clear. However the appellants in replies to the adjudicating officer have furnished replies with reference to position up to 1994 only and not later.
The certificates issued by DGHS at the time of import of the goods are not taken on record. - The letter dated 2-8-2000 addressed by the appellant to DGHS has not been taken on record and the letter dated 3-11-2000 from DGHS stating that the CDECs have been cancelled is not furnished to the appellant. - The issue as to the point of time up to which the continuing obligation shall continue is not examined with reference to the nature of goods imported and the decisions of various Courts on the issue - In the event of the exemption under Notification 64/88-Cus. being denied to them there is a need to examine whether the appellants were eligible for exemption under Notification 65/86 or any other alternate exemption as would have been available and where the eligibility can be determined with reasonable certainty at this point of time.
Case should not be remitted back for making enquiries with the police station or for cross-examination of any official from DGHS at this late point of time because it is not the view of any individual officer that matters in such issues but of the organization as reflected in records. The case should be decided on evidence as disclosed by records. - treating 40% of the outdoor patients was a condition not possible to be complied with because adequate number of poor patients did not turn up. The argument is repugnant to common sense. Further the notification did not say that 40% of the patients should be poor and they should be treated free of cost. The condition was only that 40% of the outdoor patients (without mentioning any criterion) should have been treated free of cost. There is no impossibility in complying with this condition. Further it is strange that the appellant hospital did not face such problem before the import of goods but states that they found this condition impossible to be complied with after import of the goods. - Matter remanded back - Decided in favour of assessee.
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2012 (9) TMI 824
Non-declaration of gold in the baggage of the passenger - appeal to tribunal rejected on lack of jurisdiction - Held that:- When the goods are brought into India from a place outside India (in this case, baggage) till they are cleared for home consumption, they are considered as imported goods. In this case, before the clearance has taken place from the airport, the goods have been seized. The definition of the importer also provides that the person is considered to be importer till the goods are cleared for home consumption and when he holds himself to be an importer or the owner of the goods. In terms of above provisions, it becomes quite clear that in this case, whatever is brought by a passenger from abroad is considered as baggage and the passenger is required to make a declaration under Section 77 and till the goods are declared and cleared from Customs area (airport) after declaration, the goods remain imported goods and the person remains the importer. Going by this analogy also, the goods in this case can be considered as imported goods only and as already mentioned earlier, Section 129A provides that the Tribunal has no jurisdiction in respect of any goods imported or exported as baggage - the appeal has to be rejected as not maintainable on the Tribunal having no jurisdiction and since the jurisdiction lies with Government of India Registry is directed to transfer the file to GOI for necessary action.
Since the goods under seizure are rough as well as cut and polished diamonds, they would be correctly classifiable under Heading No. 71.02 of the Customs Tariff for the purpose of levy and we hold accordingly.
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2012 (9) TMI 823
Penalty - smuggling of foreign currency or gold biscuits into India. - confiscation of gold biscuits – Held that:- Appellant from whose possession the gold biscuits were seized is the person physically associated with the contraband - There is preponderance of evidence on record to indicate that Haris was carrying the gold biscuits at the instance of the appellant for a monetary consideration - appellant also could not adduce evidence of licit nature of the goods. Hence he can be held to have rendered the goods liable to confiscation under Section 111(d) of the Act - quantum of penalty can be reduced
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2012 (9) TMI 822
Whether the quantity of coke lost in transit or by handling should be charged to differential duty of Customs or to Anti-Dumping duty – exemption from payment of Anti-Dumping duty and also claiming the benefit of concessional rate of duty - The benefit was availed subject to the condition that the imported material should be used in the manufacture of excisable goods falling under Chapter 72 - Held that:- It could not be said that any portion of the imported LAM Coke had not been imported for the intended purpose - percentage of handling losses/ground losses, when taken together, appeared to be well within reasonable limits and hence liable to be ignored
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2012 (9) TMI 785
Non production of end use certificate from the concerned jurisdictional Central Excise authority - demand of differential duty - stay filed for waiver of pre-deposit - Held that:- That the appellant imported Midsole Insole material availing the benefit of Notification No.224/85-Cus, dt.9.7.85 which grants benefit of concessional rate of duty subject to the condition that the goods are used in the leather industry and the said notification does not have any condition of giving the end use certificate from the Central Excise authorities. It can also been seen that the said notification also does not include any condition of executing a bond by the importer of the goods.
As the contemporaneous evidences which have been shown by the appellant are enough to hold that the goods which were imported were consumed for the manufacture of leather goods which were finally exported and that the Chartered Accountant's certificate coupled with the affidavit of the partner (who is now deceased) is considered as enough evidence to hold that the appellant had consumed the goods imported in the manufacture of leather goods - thus benefit of notification is to be given to assessee which does not have any condition of giving the end use certificate from the Central Excise authorities - in favour of assessee.
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2012 (9) TMI 784
Second-hand goods - Enhancement of value of goods - Revenue wants to enhance the value of the monitors from US$ 13 to US$ 20 as suggested by the dock staff – Held that:- There is no data or evidence produced by the Revenue regarding the price of comparable goods - in case of second-hand goods there cannot be a price for comparable goods - appeal is dismissed
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2012 (9) TMI 783
Classification - Assemblies and evaporator assemblies - heat exchangers - classification claimed by the appellants in respect of these items under Heading 8419.50 - under the sub-heading 84.19 only those machinery which are other than machinery or plant of a kind used for domestic purposes are included - heat exchanger unit covered under sub-heading 8419.50 can only include a heat exchanger unit which is not used for domestic purposes - goods can be classified under Heading 84.19 is not acceptable as the same are not for purposes other than air-conditioning machinery used for domestic purposes - appellants have described the goods differently as heat exchangers to claim assessment under Heading 8419.50 at a lower rate which is not permissible – appeal rejected
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2012 (9) TMI 746
Writ petition - For restraining the respondent-authorities to auction the confiscated items under the provision of Customs Act - to destroy the aforementioned betel nut – alleged that smuggling of betel nuts in collusion with Patna Custom Authorities - petitioner further submitted that in these circumstances the Central Government through Chief Commissioner, Customs (Preventive), directed the Central Board of Excise & Customs not to sell such confiscated items in public auction as they were sensitive commodities prone to smuggling and to offer it to Kendriya Bhandar and NCCF only – Held that:- There is no Kendriya Bhandar in Patna and hence earlier such betel nuts were provided to NCCF for selling it in retail to Co-operative Societies under the authorities, but subsequently started selling it to big concerns like the Kanpur Manufacturers, which were preparing hazardous and harmful items like Paan Masala and Gutka etc. - petitioner has been unable to substantiate and validly show from the statements made in the writ petition that his interest had suffered or any right has been taken away or he had been affected in any manner whatsoever by the impugned action of the respondent-authorities. He has also failed to prove by any valid material that he had ever been purchaser of betel nuts from Kendriya Bhandar or NCCF - writ petition dismissed.
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2012 (9) TMI 745
Penalty - misdeclaration – alleged that misdeclaration of age of machinery so as to get import benefit in the Bills of entry – Held that:- Import of machinery after obtaining the requisite permission and observing the formalities - approval given by the Government of India, the certificate issued by the Chartered Engineer and what is mentioned in the bill of entry are all identical. At the time the machinery was removed from Mysore to Bangalore, the said Mr. Vinaya Chandra was not in office - Under these circumstances, holding him liable for misdescription on the statement of the co-noticee and the officials of the department, was not proper – penalty set aside
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2012 (9) TMI 712
Undervaluation of imported consignments - department seeking enhancement of penalty imposed u/s 114A equivalent to the duty demanded plus the corresponding interest accrued u/s 28AB - assessee contested against ADG DRI's power having no jurisdiction to issue the impugned show-cause notices - Held that:- The ADG DRI was competent to issue the impugned show-cause notices as ADG DRI has been appointed as Collector by Notification No. 19/90-Cus (NT) dated 26.4.90. We also note that the ADG DRI has been specifically empowered by the Board vide Circular No. 4/99-Cus dated 15.2.1999 to issue show-cause notices in respect of cases investigated by them. This circular has not been shown to have been rescinded. Further, subsequently, by Notification No 44/2011-Cus (NT) dated 6-7-2011 issued in exercise of powers conferred by Section 2(34), DRI officers including ADG DRI were appointed as proper officers for the purposes of Section 17 and Section 28.
The appellants had entered into 3 contracts which all had bearing on the value of the goods imported by them. At the time of filing declaration for the purpose of claiming the benefit of project import regulation scheme, they had mentioned only about the supply Agreement and not about the other Agreements relating to Basic Engineering Design undertaken by the licensor and Extended Basic Engineering Design undertaken by FEC who were also the suppliers. It is not the case of the assessee that the department knew the fact of the appellant having made payments under the other two Agreements. There was no justification for the appellant to entertain a belief that the payments under the two Agreements with the Licensor and FEC were towards buyers assist. As already noted, the notice inviting tender was dated 25.6.97 and the specifications for procuring equipments must have been known before inviting tender. Even otherwise we have held that the amounts paid under these two agreements are too high to be considered as towards buyers assist. As all the Bills of Entry except three were provisionally assessed as required under Project Import Regulations and the same were finalized/directed to be finalized by the impugned order. In view of the above, it is to be held that the invocation of extended period of limitation and imposition of penalties on the assessee are justified.
As the show-cause notices specifically indicated only amounts of duty proposed to be demanded but did not indicate the quantum of interest proposed to be demanded. Apparently, the duty demand itself was to be determined subject to the outer limit of amounts mentioned in the show-cause notices. The interest payable depends not only on the duty so determined but also the actual date of payment of the duty so determined. Only then, the actual interest payable will be ascertainable. Obviously, in the present cases, the Commissioner at the time of adjudication of the case could not have determined the actual amounts of interest to be included in penalties under Section 114A. Further Section 114A envisages penalty on the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section 8 of Section 28 . The Commissioner was not in a position to determine the interest amount at the time of passing the impugned order. Therefore, his imposing penalties equal to the duty determined is in order.
Since misdeclaration of the value of the imported goods has been upheld, the goods are held liable for confiscation. However, in view of the clear finding of the Commissioner that the said goods are not available for confiscation, imposition of fine under Section 125 is not justified.
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2012 (9) TMI 711
Stay application - interest – seizure of sale proceeds of smuggled goods - Tribunal ordered release of the currency holding that the same is not liable for confiscation under Section 121 of the Customs Act - delay in payment of refund – Held that:- There is no provision in the Customs Act for payment of interest on return of the seized currency or return of the sale proceeds of any seized goods which are ordered to be released - there is absolutely no justification for more than 10 year’s delay in returning the seized currency and the conduct of the officers amounts to defying the Tribunal’s order, the Commissioner (Appeals)’s order sanctioning the interest on the seized currency for the delay in its return is not correct - It is only the High Court, which in exercise of their writ jurisdiction can order the payment of interest by the Department for period of delay in return of the currency - order ordering payment of interest is stayed and the Revenue’s stay application is allowed.
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2012 (9) TMI 710
Rebate claim - manufacture of electrical goods, cables & MCCB - They exported finished goods - department observed that the appellants had taken DFIA Licence – alleged that they availed/claimed the said rebate of duty by availing the double benefit i.e. availment of Cenvat credit of duty paid on inputs – Held that:- No restriction in the Notification No. 40/2006-Cus., on claiming rebate of duty paid on exported goods and availment of Cenvat credit. Since the applicant has complied with all the provisions and procedure as laid down in Rule 18 of Central Excise Rules, 2002 and Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - no dispute about the export of duty paid goods, the rebate claim is admissible to the respondent
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2012 (9) TMI 679
Suspension of CHA licence - interim order of suspension - violation of Regulations 13(a), 13(d) and 13(o) of Customs House Agent Licensing Regulations, 2004 - Held that:- As the offence report is yet to reach to the Commissioner of Customs under Regulation 22(1) and crucial date for counting limitation under Regulation 22 being receipt of offence report by the Commissioner of Customs under Regulation 22(1), that stage has not yet been arrived. Interim suspension order passed is purely an administrative disciplinary measure to prevent CHA to enter into Customs area. Therefore, any intervention to such order of suspension during pendency of investigation shall be detrimental to the process of investigation and shall defeat the object of fair, impartial and independent investigation.
The interim order of suspension of the CHA licence by the Commissioner of Customs should be viewed in the light of the grave and serious allegation of misconduct of the CHA Appellant as appellant appears to have allowed its agent exporter to use its licence irresponsibly and thereby actively involved in the fraudulent act in connivance with the exporter. As a name lender to the exporter it caused prejudice to Revenue, making breach of trust and failed to discharge its responsibility under Regulation 13. Affecting the interest of the country was due to reckless and irresponsible behaviour of the Appellant in the course of acting as a CHA licensee. Accordingly interim order of suspension passed by the leaned Commissioner does not appear to be improper since principles of vicarious liability is applicable to the present case in hand - Thus as the Commissioner of Customs who is well placed to understand the role of the CHA in customs area is responsible for the happenings in that area and for the discipline to be maintained thereat and if he takes a decision necessary in accordance with law as an interim measure, Tribunal would ordinarily not interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or their employees.
Appropriate SCN be issued levelling charges if any, against the CHA within a period of twelve weeks from the date of receipt of this order, failing which the interim order of suspension shall stand revoked and in case of revocation it would be open to learned Commissioner of Customs to initiate appropriate proceeding and take appropriate steps against the Appellant in accordance with law - against assessee.
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2012 (9) TMI 678
Import of second hand knitting machine – goods imported under EPCG licence – alleged that appellant had not produced the installation certificate as required – Held that:- When the importer approached for discharge from obligations that he undertook at the time of import the concerned Superintendent has worked out the liability as per terms of Condition 4 - SCN just wants to ignore condition 4 for the reason that installation certificate was not produced and export obligation was not fully discharged. When the importer did not produce installation certificate prompt action should have been taken. If any penalty was required to be imposed it should have been done at least when the importer approached the department for de-bonding - At that time also no action was taken - it was not a violation serious enough to be acted upon - Appeal dismissed.
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2012 (9) TMI 677
Refund claim – unjust enrichment – Held that:- Appellant produced CA’s certificate that which certify that Company has neither debited the amount to Manufacturing, Trading and Profit & Loss Account nor recovered the above said amount from the Parties/Debtors - this is not a case where doctrine of unjust enrichment is applicable - appellant is entitled for the refund sanctioned
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2012 (9) TMI 644
Restriction on import of hazardous waste - Revenue appeal against Commissioner (Appeals)order that the goods have not been physically examined - Held that:- In the impugned order, the Commissioner (Appeals) has set aside the adjudication order therefore the ground taken by the Department that Commissioner (Appeals) has no power to remand the matter back to the adjudicating authority is not sustainable as Commissioner (Appeals) has not remanded the matter but set aside the adjudicating order. Further, as per the directions of the Hon ble High Court, the goods have already been released to the respondents, therefore, the appeals filed by the Revenue has become infructuous.
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2012 (9) TMI 643
Demand of duty – Confiscation - customs procedure – Held that:- Vessel has not been imported by the present petitioners but as aforesaid has been purchased by the petitioners in an auction - said vessel, having been confiscated under S. 126 of the Act therefore, the petitioners are not ‘importer’ consequently, the said vessel cannot be treated as imported goods and hence the petitioners ‘were not amenable to the provisions of the Act and were not required to follow the procedure as prescribed under Section 46 of the Act - vessel was not imported by the petitioners but was sold by respondent no. 5 as a property of the Central Government within the territory of India and, therefore, the respondent authority has wrongly come to the conclusion that the petitioners are required to observe the customs procedure as prescribed under law and file bill of entry as contemplated under Section 46 of the Act - vessel was purchased by the petitioners in an auction as aforesaid and it was neither purchased from a bonded warehouse or nor been imported - petition is allowed
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2012 (9) TMI 642
Import of 30 pieces of gold biscuits - foreign marked gold bars seized – Held that:- No reliable evidence has been led before us to conclude that the baggage receipt pertained to the goods under seizure - gold is a commodity whose value has appreciated substantially over the time period involved in this case and if any redemption is allowed at this juncture, it would lead to an anomalous situation wherein the appellant would make a windfall gain rather than facing penal consequences for their omissions and commissions - goods under seizure are “prohibited goods” as defined under Section 2(33) of the said Customs Act read Section 11 - order of the Commissioner absolutely confiscating 30 gold biscuits of foreign origin under Section 111(d) of the Customs Act, 1962 upheld
Regarding confiscation of Indian Currency – Held that:- These were the sale proceeds of smuggled foreign marked gold biscuits supplied to Shri Ramdas Satpute. Therefore, they are also liable to confiscation under Section 121 of the Customs Act, 1962
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2012 (9) TMI 607
Confiscation of seized betel nuts and to impose penalty - goods are of foreign origin and have been smuggled into the country - Held that:- As betel nuts are not notified items under section 123 of the Customs Act as such, the onus to prove that the same are of foreign origin and were smuggled into the country lies solely on the Revenue. It is the matter of common knowledge that betul nuts grow in west part of the country and are available in abundance, hence there is no affirmative evidence to show that the said betel nuts are of foreign origin apart from the statement of Shri Deepak Kumar, expert of trade opinion which have not been accepted by the Tribunal in various precedent decisions - no reason to uphold the confiscation of the goods - in favour of assessee.
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9911796707
