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Customs - Case Laws
Showing 441 to 460 of 663 Records
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2012 (7) TMI 201
Alleged wrong classification and wrong availment of benefit of Notification - Lichi juice imported by assessee contended not to be fruit drinks - Held that:- It is undisputed that appellants have declared the goods as Lichi Juice, which has been declared in Packing list, and confirmed by Test report. Commissioner(appeals) has brushed aside the test report only on the ground that it does not confirm to the standard of PFA Rules, 1955. Revenue sought to classify the product on the basis of the ingredients declared on the bottle and on the ground that the goods are known in the market as per the contents mentioned on the bottle. However, no evidence has been produced by the department that these goods were sold as other than fruit juice. Also, department has not challenged the test report of the Regional Food Laboratory. In these circumstances the same is set aside with consequential relief - Decided in favor of assessee.
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2012 (7) TMI 171
Non inclusion of cost of bagging charges in the Bills of Entry - the appellant had imported Di-Ammonium Phosphate and carried out the bagging of the same inside the port area - Held that:- Non-inclusion of the bagging charges in the value of Potash imported as the bagging has been done before out of charge in the Customs area - decided in favour of assessee relying on Garden Silk Mills Vs. UoI [1999 (9) TMI 88 (SC)]
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2012 (7) TMI 167
Import of Zircon - Whether Zircon is "Ore" - Zircon Ore and Concentrate - Permission to clear goods in question without payment of CVD till appeal is disposed of by Tribunal –assessee contested that some other persons similarly placed with the petitioner are not required to pay by virtue of the decisions of the authority situated in a different State on interpretation of the selfsame provisions of law- Held that:- Division Bench of this court in the past allowed the petitioner to release the goods on payment of 25% of the duty and on execution of a bond to pay the assessed amount if their appeal before the Commissioner (Appeals) failed with a direction to file such an appeal within a specified time - since a further appeal has been filed before the Tribunal by the petitioners and there is no decision on the above point by any Tribunal of this State the petitioners should be permitted to get the order of release of the similar goods during the pendency of the appeal before the Tribunal on the selfsame conditions imposed earlier by a Division Bench of this court which will abide by the decision of the Tribunal - direction to Tribunal to dispose of the appeal pending within a period of three months from date of Order.
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2012 (7) TMI 144
Penalty on directors of company – M/s. Evergreen Exim Pvt. Limited, being 100%EOU trading unit could not have sold the goods under advance license as per the provisions of Para 9.21 of the Export Import Policy - appellants had cleared the consignments of goods imported without payment of duty by executing B-17 Bond - bond clearly indicates that the Deputy Commissioner of Customs & Central Excise had permitted the appellant Company to remove the goods to another EOUSEZ Unit against the advance license or specific duty free entitlements – Held that:- According to CBEC Circular No. 49/2000-Cus EOU trading units were allowed to supply the goods to other EOU/STP units against valid advance license or specific customs entitlements - M/s. Evergreen Exim Pvt. Limited had cleared the goods imported by them on which the customs duty was foregone to advance license holders EOU - there cannot be any duty liability on the said M/s. Evergreen Exim Pvt. Limited. In the absence of any duty liability on the main Company, the provisions of Section 112 and 117 for imposition of penalties on the Directors cannot be invoked - order to that extent it imposes penalty on the appellants herein, is liable to be set-aside
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2012 (7) TMI 115
Denial of claim of concessional duty under Notification No.02/95-CE dated 4.1.95 for not achieving NFEP as has been undertaken by assessee - Held that:- Considering EXIM Policy 1997-2002 about calculation of NFEP annually and cumulatively for a period of five years from the commencement of commercial production based upon the formula whereas the case in hand, it is undisputed that five years have not been completed after the start of commercial production by the appellant.
Even in the event of failure to make or continue exports, the Development Commissioner's recommendation is required before duty demands can be confirmed by the Customs authorities. In this case, there is no definite conclusion arrived at by the concerned authority namely the Development Commissioner. On the other hand, the Development Commissioner has vide its letter dated 22-12-1998 extended the period of validity for a further period upto 31-3-1999 and the importers have further requested for further extension. Therefore, in the present case, the duty demand is premature and we see no option but to set aside the impugned order - in favour of assessee.
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2012 (7) TMI 86
Import of Crude Palm Sterin - Classification - Chapter Heading 15.11 or 38.23. - benefit of Notification No.21/2002-Cus, dt.1.3.2002. - differential duty - Board s circular dt.26.7.2011 - held that:- pre deposit ordered - matter remanded back to decide afresh in view of the Board's circular dt.26.7.2011 and Hon'ble Supreme Court's judgment in the case of Jocil Ltd (2010 (12) TMI 24 (SC))
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2012 (7) TMI 6
Exemption under Notification No. 64/88-Cus – pre-condition – Held that:- Appellant during 1995 and 1996 have failed to meet their obligation of treating at least 40% OPD patients free - obligation to treat at least 40% OPD patients and all indoor poor patients free and reserving at least 10% of the beds for this purpose is a continuing obligation and an integral part of the condition subject to which the exemption under Notification No. 64/88-Cus had been granted, the appellant, on account of their failure to treat at least 40% OPD patients free during 1995 and 1996 have become ineligible for the exemption - exemption notifications have to be construed strictly and non- fulfilment of the condition, whether intentional or unintentional will result in denial of the same
Post import obligation - limitation – Held that:- Provisions of Section 28 are not applicable for recovery of duty for violation of post-import conditions. Therefore, the duty demand has been correctly confirmed.
SCN - Allegations without any basis - does not state as to which category the appellant's hospitals belongs - allegation aforesaid in the SCN cannot be considered to have brought out allegations in clear terms to grant fair opportunity to the appellant to defend – Held that:- Without ascertaining the status of the appellant hospital, the Authority reached to abrupt conclusion on the allegation of not furnishing of details made in the SCN which was not the requirement of any disclosure by hospitals in terms of the Notification unless otherwise called for by Authorities under law - principles of natural justice is not followed matter to be remanded to the original authority
Difference of opinion between members – regarding exemption notification No.64/88-Cus and whether basis of allegation was disclosed to assessee – Held that:- Matter referred to 3rd member for consideration of following question
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2012 (6) TMI 920
Issues involved: Justification of directing the assessee to make predeposit for entertaining the appeal against the order-in-original dated 30th September 2009.
Summary:
1. The High Court considered whether the CESTAT was justified in directing the assessee to make a predeposit of Rs.1.5 crores for entertaining the appeal against the order-in-original dated 30th September 2009.
2. The duty amounting to Rs.33.64 crores was confirmed based on the audit report, where the assessee had imported consumables valued at Rs.1,21,73,788 in addition to imports valued at Rs.5.69 crores. The CESTAT directed the assessee to make a predeposit of Rs.1.5 crores, leading to the present appeal being filed.
3. The appellant argued that the Commissioner of Central Excise, Thane - I had stated in a letter that the objections raised by the audit party were erroneous. Even though this letter was presented to the CESTAT, it was not considered due to the demand being confirmed after the letter was issued.
4. The High Court opined that if the Commissioner's representation to the CBEC regarding the audit party's objections being erroneous was not proven to be false, the demands confirmed based on the audit report could not be upheld. Therefore, it was deemed appropriate to hear the appeal before CESTAT without requiring any predeposit.
5. Consequently, the High Court quashed the impugned order passed by the CESTAT and directed the CESTAT to hear the appeal on merits without insisting on any predeposit. The CESTAT was instructed to make its decision without being influenced by the High Court's observations. The appeal was disposed of with no order as to costs.
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2012 (6) TMI 863
Issues involved: Appeal against custom duty confirmation, redemption fine, and penalty under Customs Act, 1962. Appeals by co-appellants against penalty imposition under various provisions of the Customs Act, 1962.
Summary:
The appeal was filed against the order confirming custom duty under Section 28 AA of the Customs Act, 1962, and imposing a redemption fine and penalty under Sections 112(a), (b), and 114(i) of the said Act. Other co-appellants also filed appeals against penalty imposition under different provisions of the Customs Act, 1962. All appeals arising from a common order and common offense were disposed of collectively.
The case involved the interception of an auto rickshaw carrying undeclared electronic goods from a warehouse. Subsequent investigations revealed discrepancies in stock of diamonds and gold, with allegations of diverting imported diamonds and substituting them with local ones. The impugned order confirmed confiscation of diamonds, demanded duty, and imposed penalties on all appellants.
The appellant's counsel argued discrepancies in the investigation process, lack of consideration of evidence, and violation of principles of natural justice. They contended that the adjudicating authority failed to consider statements and evidence provided by the appellants, leading to an unjust decision.
After reviewing the records, the Tribunal found shortcomings in the adjudicating authority's assessment, particularly regarding the substitution of diamonds and shortage in stock. The Tribunal concluded that a fresh adjudication was necessary, directing the matter to be remanded back to the adjudicating authority for proper consideration of all defenses raised by the appellants.
The Tribunal set aside the impugned order and instructed the adjudicating authority to reexamine the matter within 60 days. The confiscated diamonds were to remain in the custody of the department during this process. All other issues were left open for further consideration. The appeals were disposed of by way of remand.
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2012 (6) TMI 852
Issues Involved:
1. Authority to Issue Summons
2. Retrospective Amendment and Creation of Offence
3. Competency of Officer and Validity of Summons
4. Continuing Offence and Procedural Defect
Summary:
1. Authority to Issue Summons:
The Petitioner challenged the order dated 15th January 2008, summoning them for offences u/s 174/175 IPC, and sought quashing of the criminal complaint. The Petitioner contended that the summons issued u/s 108 of the Customs Act from 13th July 2006 to 10th July 2007 were not issued by a person duly authorized by the Central Government. The authorization was given only on 20th February 2008, and thus, the Petitioner argued that no offence u/s 174/175 IPC was made out.
2. Retrospective Amendment and Creation of Offence:
The Petitioner argued that the retrospective amendment to Section 108(1) of the Customs Act could not create an offence with retrospective effect, violating Article 20 of the Constitution of India. The Respondent countered that the amendment in the Finance Act, 2008, retrospectively amending Section 108(1) of the Act, empowered the officer to issue summons, and thus, the Petitioner could be prosecuted for non-compliance.
3. Competency of Officer and Validity of Summons:
The Court noted that when the summons were issued, the officer was not authorized to do so. The retrospective amendment could not create an offence for non-compliance of summons issued by an unauthorized officer. The Court cited precedents, including Shiam Lal Vs. Emperor and Khota Ram and Ors. Vs. Emperor, to emphasize that an act or omission is not punishable unless it was an offence at the time it was committed.
4. Continuing Offence and Procedural Defect:
The Respondent argued that the offence was a continuing one, as the Petitioner had not complied with the summons till date. The Court rejected this, stating that a summon to appear is issued for a particular date and is not a continuous mandate. The Court also held that a procedural defect could not be cured retrospectively to create a substantive offence.
Conclusion:
The Court quashed the criminal complaint No. 8/1 of 2008 u/s 174/175 IPC and the order dated 15th January 2008 summoning the Petitioner, as the officer was not authorized to issue the summons at the relevant time. The Petition was disposed of accordingly.
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2012 (6) TMI 844
Issues involved: Challenge to detention order u/s 3(1) of COFEPOSA Act based on subjective satisfaction and consideration of passport custody.
The judgment by the Bombay High Court pertained to a writ petition challenging a detention order u/s 3(1) of the COFEPOSA Act, aimed at preventing the detenue from smuggling goods in the future. The detaining authority's subjective satisfaction was questioned, as it was based on a solitary instance and did not consider the fact that the detenue's passport was already in custody, hindering any future smuggling activities. The petitioner relied on the precedent set by the Apex Court in Gimik Piotr's case to support their arguments.
The Court noted that the detention order was solely based on the subjective satisfaction regarding future smuggling activities u/s 3(1)(i) of the Act. The detaining authority did not consider other grounds for issuing the detention order. The petitioner's argument, supported by the Apex Court's decision in Gimik Piotr's case, was found to be valid, emphasizing that the detaining authority's satisfaction was flawed due to overlooking the passport custody situation.
The Court allowed the petition, emphasizing that the detaining authority's subjective satisfaction was not adequately reasoned and did not consider all relevant factors. The reliance on the detenue's statements and the passport custody alone was insufficient to justify the detention order. The judgment highlighted the importance of proper consideration of all grounds before issuing a detention order u/s 3(1) of the COFEPOSA Act.
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2012 (6) TMI 832
Issues involved: Suspension of petitioner u/s Regulations 13(e) and 13(f) of the Customs House Agent Licensing Regulations, 2004.
The High Court of Calcutta, in the case at hand, addressed the issue of the suspension of the petitioner under Regulations 13(e) and 13(f) of the Customs House Agent Licensing Regulations, 2004. The court allowed the petitioners to file a statutory appeal against the suspension order, keeping all questions open for further discussion in the appeal process. The petitioner was alleged to have violated Regulations 13(e) and 13(f) which pertain to exercising due diligence in providing accurate information to clients and not withholding relevant information related to cargo or baggage clearance. However, the court found that the allegations did not establish any contravention of these regulations by the petitioner. As a result, the court ordered a stay on the operation of the suspension order for a period of 3 weeks. The petitioners were also granted the opportunity to seek a renewal of their prayer for stay before the Appellant Authority. Additionally, the court directed the urgent issuance of a certified copy of the order to the parties upon application, subject to necessary formalities.
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2012 (6) TMI 821
Issues involved: Challenge against four orders in original passed by Deputy Commissioner of Customs and a communication demanding payment under threat of recovery action under Customs Act, 1962.
Details of the Judgment:
1. Lack of Show Cause Notice:
The orders claiming duty were based on the petitioners' failure to produce the required end-use certificate within the specified time. The petitioner's counsel argued that the impugned orders were issued without any show-cause notice. It was highlighted that the end-use certificate was eventually issued by the Superintendent (Tech), Central Excise, certifying the proper utilization of the imported goods by the petitioners for manufacturing purposes. Despite a belated appeal with a request for condonation of delay, the appeal was dismissed as time-barred, emphasizing the lack of authority to condone the delay.
2. Alternative Remedy of Appeal:
The petitioners were unable to pursue their alternative remedy of appeal due to the delay in filing. While the existence of an alternative remedy does not always preclude a writ petition, it was noted that the impugned orders seemed to violate principles of natural justice. The imposition of differential duty, which carries adverse civil consequences, should ideally be preceded by notice and a fair hearing, which appeared to be lacking in this case.
3. Stay Order and Further Proceedings:
Considering the presence of the end-use certificate, the court stayed the demand for payment mentioned in the communication dated April 24, 2012, in the interest of justice. The interim order was set to be effective until August 21, 2012, or until further orders were issued, whichever came first. The enforcement of demands from the challenged orders was suspended until August 21, 2012. The court directed the matter to proceed based on affidavits, with the affidavit-in-opposition to be filed within three weeks and the affidavit-in-reply, if any, within one week thereafter. The writ application was scheduled for a hearing on July 17, 2012. All parties were instructed to act based on a signed copy of the order.
This summary captures the key issues and details of the judgment, outlining the arguments presented and the court's decisions regarding the challenges against the customs orders and the demand for payment.
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2012 (6) TMI 818
Issues Involved:1. Whether there is enough evidence to implicate the appellant in the fraudulent export activities of M/s. Megna Impex. 2. Whether the appellant aided and abetted the fraudulent export activities. Summary:Issue 1: Evidence to Implicate the Appellant The primary issue was whether there was sufficient evidence to implicate the appellant in the fraudulent export activities of M/s. Megna Impex. The Revenue's case relied heavily on the statement of Shri Ashok Kumar, who claimed that the appellant was a beneficiary of the illicit gains to the extent of 20%. However, the tribunal noted that apart from Shri Ashok Kumar, no other person, including Shri Gurkirpal Singh or Shri Satbir Singh, corroborated this claim. The appellant himself denied receiving any share of the profits. The tribunal emphasized that the statement of a co-accused requires corroboration from independent sources, which was absent in this case. Therefore, the statement of Shri Ashok Kumar alone could not be the sole basis for implicating the appellant. Issue 2: Aiding and Abetting Fraudulent Activities The second issue was whether the appellant aided and abetted the fraudulent export activities. The tribunal found that the evidence on record only implicated Shri Ashok Kumar and Shri Gurkirpal Singh in the fraudulent activities. Shri Satbir Singh's statements during the investigation indicated that it was Shri Ashok Kumar and Shri Gurkirpal Singh who managed the affairs of M/s. Megna Impex and that the appellant was only involved in the preparation of documents in his professional capacity as a Chartered Accountant. The tribunal also noted that the CBI investigation had given a clean chit to the appellant, stating that no criminal mens rea was substantiated against him. Additionally, the Income Tax assessment order concluded that the real beneficiaries of the fraudulent exports were Shri Ashok Kumar and Shri Gurkirpal Singh, not the appellant. The tribunal concluded that there was no evidence of the appellant's financial involvement in the export of goods or any assistance rendered for the fraudulent exports. The mere fact that the appellant applied for the IE code number and DEPB scrips on behalf of M/s. Megna Impex, or that the proprietor of M/s. Megna Impex was his employee, was not sufficient to hold him liable for aiding and abetting the fraudulent activities. The tribunal emphasized that mere knowledge of illegal activities is not sufficient to invite penal action. Conclusion In view of the foregoing, the tribunal found no justifiable reason to impose penalties upon the appellant. Accordingly, the impugned orders were set aside, and the appeals were allowed with consequential relief to the appellants. Pronounced in the open court on 26.6.2012.
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2012 (6) TMI 801
The Gujarat High Court ordered to list the matters on 4.7.2012 for argument by counsel coming from Mumbai. Interim relief extended till then, with a clear instruction not to adjourn the matters on that date.
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2012 (6) TMI 781
The Madras High Court dismissed the Civil Miscellaneous Appeal for non-prosecution after multiple adjournments and lack of representation by the petitioner. No costs were awarded. (2012 (6) TMI 781)
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2012 (6) TMI 776
Denial of the benefit of concessional rate of duty - Notification No. 31/03-Cus. (N.T.), dated 1-3-2003 - Declaration of Gold Jewellery weighing to 8.3 kg - Denial of concessional rate of duty since jewellery studded with stones - Held that:- Passenger is an eligible passenger in terms of said notification who has fulfilled all the conditions of notification. There is no dispute on this aspect. The gold jewellery imported by applicant is claimed to be covered under Sr. No. 2 of table of notification on the grounds that the ornaments i.e. gold bangles are not studded by precious stones, diamonds or pearls but studded with Cubic Zirconia which is a synthetic stone. There is no definition of term “ornaments studded with stones or pearls” in the said notification. So, the definition as given in the exemption notification relating to manufacturing of jewellery by the units of free trade zone, namely Notification No. 3/88-Cus., dated 14-1-1988 Para (xiii)(d), and Notification No. 52/03-Cus., dated 31-3-2003 Para (XV)(c) became quite relevant.
Commissioner (Appeals) has not given any reasoning to counter the various grounds given by adjudicating authority for allowing benefit of Notification No. 31/03-Cus. The definition given in the other notification clearly indicates that the such jewellery studded with Cubic Zirconia (Synthetic Stone) having negligible value is to be treated as plain jewellery. Moreover this eligible passenger has made the declaration of the goods before the Customs Officers and paid duty on the Cubic Zirconia studded in gold bangles on weight basis as gold jewellery whereas its value in very negligible as compared to gold value. The reasoning given by adjudicating authority is logical and merits acceptance. - original adjudicating authority has rightly extended the benefit of concessional rate of duty in this case in terms of Notification No. 31/03-Cus., dated 1-3-2003. Accordingly, the other charges w.r.t. confiscation of goods and imposition of penalty do not sustain - Decided in favour of assessee.
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2012 (6) TMI 773
Revocation of CHA License - Lending of IEC code for undervaluation done by importers - Held that:- CHA licence has been issued by the Commissioner of Customs, Pune. However, in this case the CHA licence has been revoked by the Commissioner of Customs (General), Mumbai, who has no jurisdiction over the CHA - Commissioner who has issued the CHA licence is only having the jurisdiction to revoke the CHA license. In this case, we find that the CHA licence has been issued to the appellant by the Commissioner of Customs, Pune and their licence has been revoked by the Commissioner of Customs (General), Mumbai, who has no jurisdiction to revoke the CHA licence of the appellant. - Decision in the case of N.C. Singha v. Union of India [2010 (2) TMI 613 - CALCUTTA HIGH COURT] - Decided in favour of appellant.
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2012 (6) TMI 699
Writ petitions - Duty Drawback – imported goods re-exported because goods were found to be defective in nature – claim rejected on the ground that petitioner had not submitted the required documents as per the Deficiency Memo - petitioner had furnished the Non-availment of Central Value Added Taxes Certificate to the respondent - Held that:- Petitioner ought to have submitted the required documents as per the Deficiency Memo dated 23.10.2009 within 30 days of its receipt by the petitioner - said memo is said to have been issued by the respondent on 23.10.2009 nothing has been shown on behalf of the respondent as to when it had been received by the petitioner - petitioner had stated that the Central Value Added Taxes Certificate had been submitted by the petitioner to the respondent –Petitioner is entitled for the grant of duty draw back under Section 74 of the Customs Act, 1962. Accordingly, the respondent is directed to grant duty draw back - writ petition stands allowed
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2012 (6) TMI 674
Application for early hearing of the appeal - Held that:- As appeal has been disposed by this Tribunal by way of remand in the year 2004 which shows that the departmental officers are not doing their duty properly before filing this type of application - application is dismissed as infructuous.
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