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Customs - Case Laws
Showing 301 to 320 of 663 Records
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2012 (9) TMI 349
Petition for contempt - impugned seizure and detention order quashed - deliberate and willful non-compliance and violation of order non release the truck and the betel nuts loaded - Held that:- From the scheme of the procedure of the seizure, investigation and confiscation it is quite apparent that there is no scope for continuance of the investigation after the seizure and detention of the goods had been quashed by the court of law after considering the merits or otherwise of the claim of the respective parties based on their pleadings and materials. Hence the plea raised on behalf of the opposite parties with respect to investigation and confiscation is absolutely frivolous and ridiculous, to say the least, and had obviously been raised by their counsel merely to save them from the punishment of contempt, which they have clearly committed and continued committing it merely to punish the petitioner for his fault of approaching this Court.
As clear from the records that till date the opposite parties are giving effect to the show cause notice dated 18.11.2011 and are not releasing the goods, which is in direct confrontation with the judicial order of this Court dated 14.11.2011 passed which remained in force at least till 25.04.2012 when order of stay was passed in L.P.A. No. 131 of 2012 i.e. for more than five months, although the direction was for immediate release of goods. However, in any view of the matter order of the Assistant Commissioner, Customs dated 18.11.2011 was clearly in the teeth of and in violation of the said order dated 14.11.2011 passed by this Court.
Thus Court has no option but to hold the the Assistant/Deputy Commissioner, Customs (Prevention) Division, Forbisganj, District Kishanganj contemner guilty of contempt and punish him with simple imprisonment of three months, which must start within 30 days from the date of passing of this order and also with fine of Rs.2,000.00 which must be paid within 30 days from date of this order in favour of Patna High Court Legal Aid Society as he has orchestrated the things and misconstrued the provisions of law to the detriment of the petitioner merely with the purpose to overreach the order of this Court dated 14.11.2011 passed in C.W.J.C. No. 12197 of 2011 - in favour of assessee.
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2012 (9) TMI 347
Drawback claim - conversion of shipping bill from DEPB scheme to Duty Drawback Scheme - Assistant Commissioner, rejected the claim of the petitioner treating the same as a claim for conversion from DEPB scheme to draw back scheme, on the ground that the petitioner’s claim for DEPB scheme has not been denied, which is a condition precedent for conversion of the claim under the DEPB scheme to one under the Drawback scheme – Held that:- Power to consider the claim under the proviso to Rule 12 is squarely on the Commissioner of Customs. As such, the Assistant Commissioner of Customs was bound to place the matter before the Commissioner of Customs for an order under the proviso to Rule 12(1) of the Drawback Rules - Assistant Commissioner had not done that - 3rd respondent directed to consider the claim of the petitioner for benefits under the drawback scheme by exercising his discretion under the proviso to Rule 12(1)
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2012 (9) TMI 313
Rent or demurrage charges on goods detained or confiscated - goods not kept in Bonded warehouse - Held that:- As the assessee were advised to shift the goods to bonded warehouse and in compliance to it he approached the bonded warehouse but as there was no space in the bonded warehouse, same was intimated to the department - as per Notification No.26/09-Cus. (N.T.) dt. 17.3.2009 clearly explicit that if the goods are seized or detained by the proper officer, the assessee shall not be charged with any rent or demurrage on the goods. Therefore, the first appellate authority has rightly held in the impugned order that respondents are not liable to pay detention and demurrage charges - in favour of assessee.
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2012 (9) TMI 312
Penalty - respondents sought to file the bills of entry after a lapse of more than thirty days from the date of unloading of the imported goods – Held that:- Section 48 stipulates that, if the imported goods are not cleared for home consumption or warehoused or transshipped within 30 days from the date of unloading thereof at a customs station or within such other and with the permission of the proper officer he sold by the custodian. Thus, Section 48 of the Customs Act empowers the proper officer either to grant further time for clearance of imported goods or to permit the custodian to sell off such goods. The Section does not contain any penal consequences in the event a bill of entry is not filed or goods are not cleared within the time stipulated - appeal filed by the Revenue dismissed
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2012 (9) TMI 311
Refund - burden of proof – Held that:- Where a person claims refund of fine or penalty, there can be no presumption that he has passed on this incidence to any other person - If the department seeks to deny cash refund to such a person on the ground of unjust enrichment, the burden is on them to show that the incidence of fine/penalty has been passed on by the claimant to any other person - refund is not hit by the bar of unjust enrichment – In favor of assessee
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2012 (9) TMI 280
Confirmation of demand and imposition of penalties by invoking extended period - Held that:- Directions to stay the orders depositing a sum of ₹ 209 crores plus a sum of ₹ 9 crores and ten lacs, within six weeks' time from date of order as well as the demand notice issued for payment of penalty under Section 114-A of the Customs Act as directed in 2012 (7) TMI 233 - CESTAT, BANGALORE.
Earlier CESTAT has decided the issue against the appellant involving various issues i.e. Jurisdiction, classification and valuation etc. relating to import of hardware, software and telecom equipment system
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2012 (9) TMI 279
Export of the goods - claim of duty drawback - Confiscation of goods & imposition of Fine and Penalty – classification – Held that:- Mere allegation of wrong classification without proving intentional mala fide cannot lead to imposition of penalty - goods in question are round metallic item with circular threaded inner surface and rough/embossed out surface and as per dictionary meaning it is a female screw - goods in question is better classifiable as similar articles of screw and should not fall under description of brass builder Hardware. Under such circumstances it merits classifiable under 7415 and not under 8302, as claimed by the applicant - importer declared the complete description of goods and there is no suppression/mis-declaration and hence, action on the part of lower authorities regarding confiscation and imposition of fine and penalty liable to be set aside
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2012 (9) TMI 278
Writ of Prohibition - directing the 1st and 2nd Respondents that all adjudication proceedings, to ensure that there are no divergent orders – Held that:- Department has been issuing Notification/Order under Sub-section (1) of the Section 4 and Sub-section (1) of Section 5 of the Customs Act, 1962 to appoint an officer of Customs to act as a common adjudicating authority to exercise the powers and discharge the duties conferred or imposed on the officer for the purpose of adjudicating matters relating to Show Cause Notice issued by the concerned Commissionerates/Sponsoring Authorities on the basis of their recommendation to appoint a common adjudicating authority - request from Petitioner has been received by the Board on the subject. The request is under examination - writ petition is disposed of with the direction to the respondent to decide the request of the petitioner
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2012 (9) TMI 248
Entitled for promotion to the post of Senior Hindi Translator with effect from the date of her Junior has been promoted - Held that:- As Central Administrative Tribunal had time and again clarified the position that there is no question of any vacancy in a specific region and it has to be based on all India basis concluding to absence of a sanctioned post in the Cochin Customs, i.e., Senior Hindi Translator and as the department was unable to understand the implications and the directions given in the order dated 13.11.2006 and have erroneously adopted a shortcut method to consolidate the seniority list of Junior Hindi Translators of various regions and arranged them in chronological order based on their promotion to the post of Senior Hindi Translator. This was rightly held as a shortcut method adopted by the department without actually implementing the directions issued in the order dated 13.11.200.
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2012 (9) TMI 247
CHA licence - order of prohibition requires – Held that:- Signing of blank shipping bills for monetary consideration - appellant’s licence would require to be revoked - Regulation 21 does not provide for any notice of hearing to be given before issuing an order of prohibition and hence the impugned order cannot be faulted on that count nor the same requires to be stayed - stay application filed by the appellant is rejected.
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2012 (9) TMI 246
Refund of customs duty - Held that:- Higher quantum of duty was paid by the appellant without their being dispute on the rate of duty or otherwise - higher rate was paid in ignorance of notification which allowed him payment of concessional rate of duty - payment of higher rate before clearance of goods from the warehouse - Bills of Entry filed prior to the date of revision in tariff value and rate of duty cannot be held to be involving any dispute inasmuch as at that point of time, the lower tariff value or lower rate of duty was not holding the field and was not available - there was no notification in the field and no dispute on the same – refund allowed
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2012 (9) TMI 214
Suspension of CHA license - illegal import of OPC and illegal export of goods which are prohibited goods - Held that:- The Commissioner while exercising his power vested in him under Regulation 20 (2) of CHALR, 2004, has suspended the CHA license by recording the reason for which he has come to the conclusion for the said suspension with immediate effect. He has also ordered for the proceeding for revocation of license under Regulation 20 (2) of CHALR, 2004.
Net result of suspension or revocation of the license is to stop/end the operation and that the Commissioner has ordered for revocation of license under Regulation 20 (2) of CHALR, 2004 and the Department has already been issued the show-cause notice under Regulation 22 of CHALR, 2004, it can be find that the proceedings for revocation of license are on and are likely to be completed. Therefore, revoking the suspension at this stage would clearly give relief to the appellant for interim period while the proceedings for revocation of license is already on. In these circumstances no reason to interfere with the impugned Order-in-Original and the same is upheld and the appeal is dismissed - against assessee.
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2012 (9) TMI 213
Import of car - undervaluation – confiscation – redemption fine – Held that:- Bona fide purchaser of a car which is cleared by the Customs Department is not liable to pay redemption fine even if the car was under valued and the original importer is liable to pay the difference in duty - in favour of assessee
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2012 (9) TMI 212
Duty, interest and penalty - irregularities in importing the goods - alleged that the appellant was the person who had master minded the entire activity, right from planning, creation managing and monitoring of all operations of M/s. Suntech with a mala fide intention to evade customs duty – Held that:- This is a case of mis-declaration, non-declaration and over declaration and under valuation of the goods consigned to M/s. Suntech. in respect of consignment received - in favour of the revenue
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2012 (9) TMI 207
Refund claim - unjust enrichment - adjudicating authority sanctioned the refund amounts but credited it to the consumer welfare fund – Held that:- Bar of unjust enrichment is applicable to the facts of this case when the appellants have filed a refund claim of SAD paid by them at the time of import of goods which were cleared by them on payment of VAT. As the appellants have obtained a certificate from Chartered Accountant confirming that the duty liability of SAD has not been passed on the buyers by the appellants, the same is sufficient as per the Board’s Circular No. 18/10-Cus., dated 8-7-2010, to discharge the liability of bar of unjust enrichment and the bar of unjust enrichment is not applicable to the case of the appellants - appellant is entitled for refund
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2012 (9) TMI 206
Withdrawal of permission - Export Processing Zone – import of used diesel engines for the purpose of re-construction and to export - subsequent permission granted was withdrawn by the Development Commissioner – Held that:- Withdrawal retrospectively is not permissible - sale in DTA on payment of duty based on the earlier permission granted to the Appellants, cannot be held to be in violation of the provisions of para 9.10(b).
The term, “Manufacture” in the context of Exim Policy includes activities like re-construction and repair. - The concept of manufacture in the Central Excise law cannot be brought into for the purpose of 100% EOU Undertaking service activities. The finding of the Commissioner that the payment for DTA sale was not from EEFC Account, is clearly beyond the scope of the show cause notice
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2012 (9) TMI 177
Subletting of the customs area to some non-vessel operating cargo carriers - handling both import and export of the goods as custodian (CFS) - penalty u/s 117 on violation of the provisions of Section 45 2(b) - Held that:- As per Section 45 (2) (b) there is no restriction on the appellants not to sublet the premises but is not permitted for the removal of goods the Customs area without the permission of the proper officer.
As there is no allegation against the appellants that they have removed the goods without the permission of the proper officer they have not violated the provisions of Section 45 (2) (b) as alleged in the impugned order and exists no finding on violation of the Handling of Cargo in Customs Area Regulations, 2009 - when there is no specific contravention of the Act which has been violated by the appellant, penalty under Section 117 of the Customs Act is not sustainable - in favour of assessee.
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2012 (9) TMI 176
Interest – territorial jurisdiction – Held that:- High Court situated in the State where the first court is located should be considered to be the appropriate appellate authority - determination of the appellate forum based upon the situs of the Tribunal would lead to a anomalous result - appeal is rejected for want of territorial jurisdiction.
Decision in Ambica Industries v. Commissioner of Central Excise (2007 (5) TMI 21 - SUPREME COURT OF INDIA(S.C.).) followed.
Decision in Canon Steels Pvt. Ltd. v. Commissioner of Customs (Export Promotion) (2007 (11) TMI 17 - SUPREME COURT OF INDIA) distinguished.
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2012 (9) TMI 175
Unjust enrichment - Refund claim of custom duty - refund claim was sanctioned by the adjudicating authority, however, he order to re-credit the claimed amount in the consumer welfare fund on the ground that the respondent failed to prove that the duty burden had not been passed on by them – Held that:- Non-availment of Modvat credit, C.A. certificate to the effect that the duty incidence has not been passed on by the respondent are sufficient supporting documentary evidences for Balance Sheet as main documentary evidence. All such documentary evidences are sufficient to prove that duty incidence has not been passed on by the respondent
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2012 (9) TMI 146
Wrong declaration of imported goods - CARLVO Dual Sim Chinese Cellular Phones under Bill of Entry No.5256566 - Held that:- As the petitioner had paid the entire customs duty payable on the enhanced value of the goods, based on the assessment made by the authorities concerned the respondents are directed to release the goods in question provisionally subject to the adjudication process and the consequential orders that may be passed thereon - As it is not the case of the respondents that the goods in question are prohibited goods, the petitioner is prepared to furnish a personal bond, as required by the authorities concerned, for the release of the goods in question.
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9911796707
