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Customs - Case Laws
Showing 421 to 440 of 663 Records
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2012 (7) TMI 900
Issues Involved:
The issue involved in this case is whether relief under Section 129E was impermissible and if the circular relied upon was in conflict with the CENVAT and duty drawback scheme and provisions of the Act and Rules applicable.
Judgment Details:
Issue 1: Relief under Section 129E and Interpretation of Circular
The appellant, a merchant exporter, claimed benefit under a circular for relief of set off of the duty component available through the prevalent duty drawback scheme. The Tribunal held that the circular was contrary to the statute and relief could only be granted to the extent of drawback on customs, not excise duty. The appellant argued that the Tribunal erred in not giving primacy to the circular and that the order was contrary to the circular, causing financial hardship. The Court noted that the appellant had arranged its affairs based on the circular and had not evaded duty payment. The Court found the Tribunal's view plausible but favored the appellant due to the circular's interpretation. Considering past favorable decisions and to serve justice, the Court ordered the appellant to deposit 30% of the duty payable instead of the 100% directed by the Tribunal, with adjustment of the amount already paid.
Issue 2: Payment of Duty and Security
The Court partially allowed the appeal, directing the appellant to deposit 30% of the duty payable within 6 weeks, excluding interest and duty, while furnishing security to the Assessing Officer to the satisfaction, excluding a bank guarantee.
This judgment addressed the conflict between the circular providing relief under Section 129E and the Tribunal's interpretation, ultimately granting partial relief to the appellant based on the circumstances and past favorable decisions.
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2012 (7) TMI 888
Issues involved:
The appeal against the order of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) raises the substantial question of law regarding the amendment of 191 shipping bills by deletion of the EPCG licence number and issuing FMS scripts to the exporter.
Amendment of Shipping Bills:
The appellant argued that a positive direction to amend the shipping bills by deleting the EPCG licence number was ordered while remitting the matter to the adjudicating authority. The appeal was filed on the grounds that if this direction is allowed to stand, the question of considering whether the amendment is necessary may not arise for the authorities below.
Satisfaction for Amendment:
The learned counsel for the first respondent acknowledged that the amendment should only be made if the authorities are satisfied that the 191 shipping bills have not been used to fulfill the export obligation under the EPCG licence number prior to the deletion.
Decision and Clarification:
The High Court disposed of the civil miscellaneous appeal by clarifying that the adjudicating authority, in reconsidering the matter as directed by CESTAT, must first ensure that the 191 shipping bills were not utilized for meeting the export obligation under the EPCG licence number before deletion. Only upon satisfaction, the authority can proceed with the amendment and the case. No costs were awarded, and the connected M.P. was closed.
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2012 (7) TMI 885
Bail Application - Held that:- after rejection order was passed, Honble the Supreme Court [2011 (9) TMI 65 - SUPREME COURT OF INDIA] has given a verdict holding the offences under the Customs Act, 1962 to be bailable. - it a fit case for releasing the applicant on bail. - Appellant to furnish bond - Decided conditionally in favour of assessee.
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2012 (7) TMI 883
Detention of goods - Import of flat bed/circular knitting machines - mis-declaration of value and other particulars - arbitration conditions imposed by the department to release the goods - Held that:- Mere dispute of classification or valuation could not justify power of confiscation and imposing of condition of furnishing of bank guarantee equal to 25% of the value of the goods.
Revenue directed to immediate provisional release of goods on conditions mentioned in the order of provisional release except the requirement of declaration that the petitioner will not dispute the value of goods and will furnish bank guarantee.
The submission made by the counsel for the respondents that an appeal would lie to the Commissioner (Appeals) against the said orders and this Court should not exercise its jurisdiction under Articles 226 & 227 of the Constitution of India, is not acceptable in view of the fact that the detention of the goods has been made since 1-7-2011 onwards and the conditions imposed by the Joint Commissioner are in violation of the directions issued by this Court in Amit Enterprises [2011 (5) TMI 375 - PUNJAB & HARYANA HIGH COURT] & Era International [2011 (8) TMI 885 - Punjab and Haryana High Court]. Therefore, in our opinion, the alternative remedy is not an efficacious remedy to which the petitioner can be relegated to.
Decided in favor of assessee.
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2012 (7) TMI 786
Condonation of delay - the signatory was not in charge of day-to-day activities - He was living in Coimbatore which is 450 kms. from the factory. - held that:- No one has preemptory right to get the delay condoned on one plea or the other. We are conscious that there cannot be presumption of deliberate delay on account of culpable negligence or malafide. But when the appellant as a Managing Director did not visualize that he may run in risk when SCN resulted in adjudication of demand and penal consequences, he became a silent spectator. Present application is abuse of process of law for no reasonable cause advanced. Condonation of delay of unexplained nature shall be premium to the lapse. There is no sufficient cause to condone the delay of 603 days made in the present case to seek appeal remedy.
Just because the Tribunal is vested with the discretion to condone the delay, exercise of such discretion is not meant to grant premium to the default of delay when neither cogent nor believable reason exist.
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2012 (7) TMI 751
Application for condonation of delay - delay of 697 days - no good reason to condone delay Held that:- Order was passed on 18/12/2008 and the said order has to be reviewed by the Commissioners of Customs within 90 days from the communication of the order. Same has not been done - delay cannot be condoned - application for condonation of delay is dismissed
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2012 (7) TMI 750
Valuation of the goods redetermination of value Held that:- determination of value has not been done either under Rule 7 or Rule 8 as proposed in the show-cause notice but on the basis of transaction value of similar goods under Rule 5 - imports in this case have been made in March, 2010. The value adopted for comparison relates to bill of entry no. 809005 dated 10.7.2009. The import made in July, 2009 cannot be said to be contemporaneous to the imports made in March, 2010 - importer has given details of 10 bills of entry wherein polyester corduroy fabrics have been imported at prices ranging from US $0.32/mtr to US $0.51/mtr - There is no other evidence adduced by the department to show that the value of US$0.65/mtr declared by the importer in the import documents is incorrect - redetermination of value as proposed in the impugned order set aside.
Penalty - Confiscation of the goods Held that:- Merely because the appellant had claimed a wrong classification, it cannot be held that the appellant has misdeclared the goods, as it is for the customs authorities to assess the bill of entry and correctly classify the imported goods - description given in the bill of entry is in conformity with those given in the various import documents, namely invoice, packing list and bill of lading. Therefore, it cannot be held that the appellant tried to mislead the department - no misdeclaration on the part of the appellant attracting the provisions of Section 111 (m) of the Customs Act - confiscation and fine of penalties imposed on the appellant set aside
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2012 (7) TMI 679
Recovery of Education Cess - petitioners have been availing of the DEPB scheme - Held that:- As goods imported under the DEPB scheme by assessee by virtue of exemption notification No.45/2002, carry 'nil' rate of customs duty and additional duty they are also not liable to pay education cess at the prescribed rate - from the nature of DEPB scheme and the exemption granted to imports made under such scheme, it can be seen that the very purpose is to neutralise the import duty component on the imported goods used for production of export items. Such object is achieved through the DEPB scheme under which the exporter is given the facility of utilising the credits in the DEPB scrips for the purpose of adjustment against the customs duty liability on the goods imported for the ultimate purpose of export on value addition.
Merely because the conditions provided for adjustment of credit in the DEPB scrips, it cannot be stated that either there was no exemption from payment of customs duty or that the Central Government was levying and collecting customs duty from the importers in form of adjustment of credit in the DEPB scrips.Thus through such adjustments on the DEPB scrips at the time of further imports, customs duty component is sought to be neutralised.
Circular dated 8-7-2004, the Ministry of Finance, in a question whether goods that are fully exempt from excise/customs duty or are cleared without payment of such duty would be subject to education cess, clarified that the education cess is leviable at the rate of 2% of the aggregate of the duties of excise/customs levied and collected. If goods are fully exempted from excise duty or customs duty or are chargeable to nil rate of duty or are cleared without payment of duty under specified procedure such as clearance bond, there is no collection of duty and, therefore, no education cess would be leviable on such clearances- .
Duty demands, were even otherwise made without issuing any show-cause notice or adjudication. Even on such grounds, the notices are liable to be quashed - in favour of assessee.
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2012 (7) TMI 640
Duty confirmed u/s 28(2) and penalty imposed u/s 114A - claim of exemption under Notification No.32/2005-Cus. dt. 08/04/2005 under the Target Plus Scheme - c.c. copper rods imported by the assessee - Held that:- For claiming the benefit of exemption under Notification No.32/2005-Cus. dt. 08/04/2005 under the Target Plus Scheme, it was not necessary for the assessee-appellants to establish that the goods imported as input by them were usable in the manufacture of the goods exported by them as it was enough for them to establish a broad nexus between the imported input and the exported products with reference to the respective Export Product Groups - that M/s. Gimpex Ltd. were not eligible for exemption under Notification No.32/2005-Cus. in respect of the c.c. copper rods imported by them inasmuch as there existed no nexus between the said goods and the exported products of Chemical & Allied Products Group whereas M/s. Sree Enterprises were eligible for exemption as they could establish a broad nexus between the said goods and the exported products.
Challenge the extended period of limitation - Held that:- The extended period of limitation under the proviso to Section 28(1) was not invokable as duty credit certificates used by the assessee under the TPS to secure duty-free clearance of the imported goods, the assessee can hardly be said to have done so with any intent to evade payment of duty and non-production of copies of Shipping Bills, which documents were already in the Department's possession, cannot amount to suppression of the documents by the assessee - consequently, the demands of duty on GL and SE are entirely time-barred.
Consequent to demand being quashed the penalties imposed on GL and SE u/s 114A are liable to be set aside and that the penalties imposed on other appellants u/s 112 are also liable to be set aside.
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2012 (7) TMI 575
Penalty - Red Sander logs, prohibited for export under the Foreign Trade Policy, were being smuggled out of India Held that:- Appellant had hatched a fraud against the department by creating a web of intermediaries to smuggle prohibited red sander logs under garb of granite cobble stones - mis-declaration of description of goods as well as consequent mis-declaration of value etc - appellant is liable to penal action under Section 114 of the Customs Act, 1962 - goods valued at Rs. 23 lakhs in the Indian market have been absolutely confiscated. In cases of absolute confiscation, where the entire value of the goods is lost to the importer/exporter, a lower penalty would meet the ends of justice - penalty imposed on the appellant is reduced
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2012 (7) TMI 514
Power or authority - Commissioner of Customs Custom House Agents Licensing Regulations, 2004 - disagreement with the report of the Inquiry Officer - Held that:- No dispute that the rank of the Commissioner of Customs is higher than the rank of Assistant Commissioner of Customs / Deputy Commissioner of Customs. Under Regulation 22(1), it is the Commissioner who is empowered to issue notice to the CHA setting out the grounds on the basis of which he proposes to suspend or revoke the CHA license and require the CHA to submit his written statement of defense to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by the Commissioner of Customs - the Commissioner is empowered to direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are disputed by the CHA - Regulation 22(3) to Regulation 22(5) set out the mode and the manner in which the inquiry is to be conducted by the inquiry officer and submit the report to the Commissioner.
It is the Commissioner who is empowered to pass 'such orders as he deems fit' after considering the inquiry report and the representation of the CHA, if any - , whether the inquiry report is in favour of the CHA or not, it is the Commissioner who has to pass the final order as he deems fit on the showcause notice issued by the Commissioner - . The argument that under Regulation 22(6), the CHA is required to make representation only to the extent the findings in the inquiry report that are against the CHA cannot be accepted - the Commissioner is empowered to disagree with the findings recorded in the inquiry report and pass such orders as he deems fit and if the CHA is aggrieved by the order of the Commissioner, he is entitled to challenge the said order by filing an appeal.
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2012 (7) TMI 477
Confiscation of the goods on the charges of mis-declaration and for imposition of penalty Held that:- Declaration was in accordance with the papers issued by the foreign supplier, the appellant himself came forward indicating presence of rerollable scrap and the appellant's request for mutilation of the same - no justifiable reasons for confiscation of the imported consignment or for imposition of penalty upon the appellant - same is accordingly set aside and appeal is allowed
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2012 (7) TMI 448
Waiver of the demurrage and detention charges - confiscated the goods for the contraventions of misbranding and adulteration under the Prevention of Food Adulteration Act, 1954 - goods are prohibited for importation into India - consignments to be re-exported on payment of redemption fine and penalty Held that:- Demurrage charges and other incidental charges for goods detained in the customs area are required to be paid by the exporter consignor even if such goods were illegally detained - delay in redemption and re-export till date has been entirely caused on account of the appellants filing appeals first before the lower appellate authority and then before the Tribunal against assessee
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2012 (7) TMI 418
Undervaluation of import - levy of penalty and confiscation of goods - higher value was declared by other importers for similar goods - goods imported by the appellants were similar to the comparable import made by other importers Held that:- Once the test report establishes that the goods of the appellant match with the compared goods imported earlier and possess same attributes as is found by the same analytical laboratory, there is no necessity to interfere to the first appellate authority s order. Accordingly, appeal is dismissed.
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2012 (7) TMI 388
Whether the imports made by the respondents, by declaring the same as gold mountings and findings, bangles, necklaces, earrings etc. are entitled to the benefit of Notification No. 62/04 Cus or same have to be considered as gold jewellery liable to customs duty Held that:- Gold mountings and findings being items as jewellery are outside the purview of the Notification No. 62/2004 and the Board s circular No. 40/2004-Cus dated 4.6.2004 and 13/06-Cus dated 29.3.06 clarifying that gold and silver mountings and finding are covered by Notification No. 62/2004-Cus are contrary to the provisions of law and hence have no validity In favor of assessee
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2012 (7) TMI 356
Valuation - Quantity to be considered for the valuation of imported MS/HSD and whether CVD is liable to be paid on such value or not - the assessee contested that the quantity which has been unloaded into the shore tank is only the quantity on which duty liability needs to be discharged and not the bill of lading - Held that:- As the appellant is paying the price indicated in the invoice even if appellant would have received lesser quantity of the goods in the shore tanks, the invoice value charged and paid by the appellant would be the correct value unless there is a clear evidence that they have paid less amount or they have paid the value/price for the quantity received in shore tanks - in against the assessee.
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2012 (7) TMI 325
Non compliance of the order of pre deposit - Held that:- The first appellate authority has dismissed the appeal only on the ground of non compliance of the order of pre-deposit whereas on a specific query the SDR confirmed that the appellant has deposited the said amount on 03.06.2011 - set-aside the impugned order and remand the matter back to the first appellate authority dispose the same on merits.
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2012 (7) TMI 295
Illegal import into India in violating the provisions of Section 11 - lower authority on the basis of bills of entry dropped the proceedings for reason that the goods which were seized are those very which had been imported under the bills of entry - Held that:- The seized goods were synthetic fabric, made wholly or mainly of synthetic yarn, there are goods which are covered by section 123 , the burden of proof is either on the claimant or on the person from whose possession the goods were seized, to show that the goods were not smuggled and that except for forwarding the bills of entry which are for import of viscose knitted fabrics no other evidence has been produced to rebut the presumption under section 123.
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2012 (7) TMI 263
Challenge import of toxic wastes from industrialized countries to India - Writ Petition - Ministry of Environment and Forests permitting import of toxic wastes under the cover of recycling - Held that:- Interim directions given with regard to the handling of hazardous wastes and ship breaking in the various orders passed in the writ petition from time to time and, in particular, the orders dated 13th October, 1997 and 14th October, 2003 to issue a notification to ban the import of such identified hazardous substances - The Central Government is also directed to ban import of all hazardous/toxic wastes which had been identified and declared to be so under the BASEL Convention, aimed and protecting marine biology and countries having coast-lines alongside seas and oceans and its different protocols - The Central Government is also directed to bring the Hazardous Wastes (Management & Handling) Rules, 1989, in line with the BASEL Convention and Articles 21, 47 and 48A of the Constitution - that without adequate protection to the workers and public the aforesaid Rules are violative of the Fundamental Rights of the citizens and are therefore unconstitutional is however rejected in view of what has been discussed.
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2012 (7) TMI 233
Whether ADG DRI was competent to issue the impugned show-cause notices - there is both appointment as Collector/Commissioner and special authorization by the Board to issue show-cause notices in respect of cases investigated by DRI Held that:- All persons appointed as officers of Customs under sub-section (1) of Section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section.
Whether there is violation of principles of natural justice in not allowing the cross-examination of the group of scientists involved in preparing the CAIR report - There is no absolute right for cross examination of any witness in the adjudication proceedings Held that:- When cross examination was sought for, apparently, not all the members of the Team were available with CAIR. Therefore, the cross examination of the Team from CAIR was not given. Instead, BAL was requested to give a questionnaire, which was answered by the Team-Head, which is part of the adjudication proceedings. Further, the Commissioner has permitted expert opinions of two experts to be were produced by the appellants, and considered the same as well there is no violation of principles of natural justice in this regard.
What are the nature/characteristics of goods imported by the assessee/appellants as hardware and software separately - What is the true nature of transactions involved in such imports - import is of telecom equipment system - They did not disclose preloading of software in the factory in Sweden - comprising both hardware and software units Held that:- Not only the software has been preloaded in flash memory or hard disc but a backup of the same was taken and stored in the hardware imported - What was imported as software separately was lying in original packing condition, without being opened and therefore, without being used for a few years. That does not mean that the hardware was not put into use. Hardware was installed and tested by the officials of EIL and the system was put into operation. They did not find any need for use of the software imported separately - it is not proper to consider the telecom equipments as a specialized computer as claimed by the appellants - decisions in respect of classification/valuation of hardware and software of computers cannot be mechanically applied to hardware and software relating to telecom equipments.
Whether the value of software preloaded at factory in Sweden before shipment took place requires to be excluded from the value of hardware as claimed by the assessees or to be included as held by the department Held that:- Without the preloaded software, the imported equipments cannot get the identity as telecom equipments and cannot serve the purpose - software preloaded in the equipments imported and which is undisputedly essential not only for its functioning but for giving identity to the equipments cannot be treated as presented with the equipments - no justification to pull out or disintegrate the preloaded software from the imported equipment and grant it separate status and to classify it under Chapter sub-heading 85.24 and to exclude its value (which was artificially split from the composite value of the equipment) to arrive at the value of the equipment - it is a case of importing equipments which contained essential software/intrinsic software giving the functional identities to the imported equipments
Whether the decision of the Tribunal in the case of Vodafone is applicable to the facts of the present case or not Held that:- In the case of Vodafone came to the conclusion that the software was contained only in Winchester hard disc and therefore, could not be considered as embedded or etched software - In the present case, software meant for BTS is contained in the flash memory which is a form of EEPROM - facts of the present cases are different from the facts of Vodafone case - software in the form of tapes/CDs having come separately in CDs and Tapes was not embedded or etched - there is fraud in preparation of ODs and CDs and sending them to Sweden and re-importing the same to be dumped as e-waste - It is settled law that fraud nullifies everything - This crucial fact also distinguishes the present case from Vodafone case.
Whether all the imported goods are liable to confiscation or only goods which were seized by the department are liable to confiscation Held that:- Goods are offending in nature and they are liable to confiscation - confiscation under Section 111 applies to any goods in respect of which offences have been established and not necessarily to all goods which have been seized - there is no restriction under Section 124 to issue show-cause notice proposing confiscation of only the seized goods - provisions of Sections 110 and 124 are independent, distinct and exclusive of each other - imported goods are offending in nature due to deliberate misdeclaration of value of the goods, they are liable to confiscation - goods were imported over a long period August 2001 to April 2006 and that the order of confiscation was made in April 2008, and that the goods were meant for the importers own use for rendering services and not for sale, we are of the view that there is some scope for reducing the quanta of redemption fines imposed by the Commissioner
Whether the quantum of duty has been correctly worked out - assessee submitted that the department, instead of valuing the software on the basis of payments made to the supplier, computed the value on a completely notional basis and the same was against the provisions of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 Held that:- Adoption of software value for the full capacity of the imported hardware based on the appellants own documents cannot be held to be erroneous. The appellants claim to rely on value mentioned in corresponding software orders is not acceptable - appellants have deliberately split the value of equipments between hardware and software without any basis.
Whether extended time limit is applicable and whether penalties are liable to be imposed - There is clear evidence of deliberate underdeclaration of value of the imported equipments by the assessee-appellants through a grossly deceptive method with intention to evade payment of duty - invocation of extended period for demand of duty, confiscation of the imported goods, and imposition of penalties on the assessees are justified
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9911796707
