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Customs - Case Laws
Showing 501 to 520 of 663 Records
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2012 (5) TMI 572
Classification of drawback claim - SI No. 630202 or Sl. No. 630207 - Held that:- There is no whisper about the difference between the goods falling under entries i.e. 630202 and 630207. But the Department was of the view that the goods would fall under entry 630207 which deals with other category of goods blended with cotton and man-made fibre. Justification should have been brought out clearly to show how the goods exported were of ‘other’ type of goods. In absence of any enquiry done in that regard to bring the goods to other category, there is no scope to agree with DR - goods exported does not belong to other category as is envisaged by the Entry 630207 - Decided in favour of Revenue.
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2012 (5) TMI 571
Issues Involved: Assessment of goods based on transaction value, rejection of transaction value for substandard goods, reliance on Customs Valuation Rules, evidence for increased value, comparison with contemporaneous imports.
Assessment of Goods Based on Transaction Value:
The respondent filed two bills of entry in August 2007 at ICD Tughlakabad, Delhi, with the declared value for the goods being increased by the Revenue. The Commissioner (Appeals) found that the Revenue failed to provide sufficient evidence for rejecting the transaction value and for supporting the increased value. The respondent, in opposition to the Revenue's stance, argued that the prices for off cuts goods are negotiated for each consignment, and there cannot be a standard price. The Tribunal concurred with the respondent, emphasizing that the value of substandard goods is subject to market forces, leading to substantial variations. The Tribunal noted that the declaration of goods as substandard was unchallenged by the Revenue, making it difficult to ascertain the extent of substandard nature and compare with other goods. As the Revenue did not present evidence of any additional payment to the supplier abroad, the appeals filed by the Revenue were deemed to lack merit, and thus, rejected.
Rejection of Transaction Value for Substandard Goods:
The Revenue contended that for goods described as "Off grade/substandard goods," the transaction value cannot be accepted for assessment. They invoked Rule 10 of Customs Valuation Rules, highlighting the absence of the manufacturer's price list provided by the importer. Additionally, the Revenue submitted data on contemporaneous imports from September 2007 to December 2007. In response, the respondent referenced a previous Tribunal decision where a similar appeal involving substandard goods was dismissed. The respondent argued that for items like off cuts, prices are negotiated per consignment and based on business opportunities. Ultimately, the Tribunal disagreed with the Revenue's assertion that transaction value should be routinely rejected for substandard items, emphasizing the influence of market forces on the value of such goods and the lack of evidence supporting the Revenue's position.
Reliance on Customs Valuation Rules:
The Revenue's argument centered on the application of Rule 10 of Customs Valuation Rules, which necessitates the submission of the manufacturer's price list for assessment purposes. Due to the importer's failure to produce this document, the Revenue justified the increase in value for assessment. However, the Tribunal found this argument insufficient, as the determination of value for substandard goods is influenced by market dynamics, making it challenging to establish a standard price. The absence of evidence regarding any additional payments to the supplier abroad further weakened the Revenue's case, leading to the rejection of their appeals.
Evidence for Increased Value and Comparison with Contemporaneous Imports:
The Revenue's appeal was based on the premise that the value declared by the importers should be increased for assessment due to the nature of the goods and the absence of supporting documentation like the manufacturer's price list. They also presented data on contemporaneous imports to bolster their case. In contrast, the respondent relied on the uniqueness of each consignment's pricing and the market-driven variability in the value of substandard goods. The Tribunal found the Revenue's arguments lacking in merit, particularly due to the absence of evidence regarding any additional payments made to the supplier abroad, leading to the dismissal of the Revenue's appeals.
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2012 (5) TMI 570
Issues:
The issues involved in the judgment are whether a Single Member Bench can hear and decide the appeal, the validity of penalties imposed on various individuals, and the consideration of CBI investigation report in the adjudication process.
Single Member Bench Jurisdiction:
The learned counsel raised a question regarding the jurisdiction of a Single Member Bench to hear the appeal, which was earlier heard by a Division Bench. The Single Member Bench was found to have the authority to decide the case as per Section 129C(4)(c) of the Customs Act, given that the penalty involved did not exceed the prescribed limit. The case fell within the competence of the Single Member Bench, despite previous hearings by a Division Bench.
Penalties Imposed:
The case involved detention of containers with smuggled goods, leading to penalties imposed on multiple individuals. The jurisdictional Commissioner had confiscated impugned goods, imposed penalties on several individuals, and held past consignments liable for confiscation. The appellant was also penalized, along with other individuals involved in the attempted smuggling. The appellant contested involvement in the smuggling, which was opposed by the adjudicating Commissioner.
Consideration of CBI Investigation Report:
The High Court's order for CBI investigation in the case highlighted the importance of considering the subsequent investigation report. The appellant's innocence claim and lack of reference to the CBI investigation report in the adjudication order raised concerns. The judgment emphasized the necessity for the adjudicating Commissioner to review the CBI investigation report before determining the appellant's role and penal liability. The appellant was entitled to a fair opportunity to access and defend against any new material from the CBI report in the fresh proceeding.
The judgment, pronounced on 3-5-2012, set aside the impugned order and remanded the matter to the jurisdictional Commissioner for a fresh decision, considering the CBI investigation report alongside existing evidence and facts, ensuring the appellant's right to a fair hearing and defense.
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2012 (5) TMI 498
Whether Interest u/s 28AA of Customs Act, 1962 for delay in payment of duty can be levied on demand of duty raised on review of earlier order wherein provisional assessments were finalized - whether Tribunal was justified in dropping demand of interest - Held that:- In present case, Apex court on 14.08.1996 imposed demand of duty by reviewing its earlier order dated 09.09.1991. Assessee discharged such liability, however, Revenue levied interest u/s 28AA on account of delayed payment of duty. Tribunal rightly concluded that finalization of provisional assessments are governed by Section 18 and Section 28AA would have no application as no duty has been determined u/s 28(2). Further, no notice u/s 28(1) to recover any short levy or non levy of duty was issued. Consequently no cause to recover any duty under sub section (2) of Section 28 would arise. Therefore Section 28AA of the said Act would have no application to present facts.
Tribunal has only held that interest is not recoverable under the provisions of the said Act and has not allowed appeal of assessee on the ground that no show cause notice for demand of interest was issued - Appeal dismissed
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2012 (5) TMI 477
Demand of Anti-Dumping Duty in respect of imports of CFL – contention of revenue that the parts imported by the appellants constitute 90% of the total requirement of manufacture of CFL and in terms of provisions of Rule 2(a) of Interpretative Rules to be treated as complete lamps - Held that:- It is not appropriate inasmuch as the provisions of Rule 2(a) of the Interpretative Rules are in the form of a legal fiction created for the limited purpose of classification of incomplete or unfinished article in relation to any reference in a heading to an article in schedule and cannot be used to modify physical identity of an article mentioned in notification imposing a duty on that article, which has to be interpreted strictly - The Directorate General of Anti Dumping and Allied Duties have clarified that anti-dumping duties were not recommended on parts/ components of CFL - the notification No. 138/2002-Cus., dated 10-12-2002 stated that the anti-dumping was recommended only in respect of two types of CFLs (i) Complete, ready to use compact fluorescent lamps wherein choke is integrated within the lamp (ii) Complete, ready to use compact fluorescent lamps wherein choke is external - Admittedly in the present case, the appellants have not imported CFLs, in a ready to use condition but have only imported parts of the same – in favour of assessee.
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2012 (5) TMI 476
Whether Commissioner of Customs (Preventive), has jurisdiction to issue the show-cause notice - Counsel submits that he was not 'proper officer' as defined under Section 2(34) of the Customs Act inasmuch as there is no documentary material to show that the learned Commissioner had been assigned the function of issuing show-cause notice and adjudicating the same in relation to imports – Held that:- no evidence has been brought on record by the respondent to show that the Commissioner of Customs (Preventive) was specifically assigned the function of issuing the show-cause notice and adjudicating the same in relation to the subject imports, lack of jurisdiction for the Commissioner of Customs (Preventive) in this case becomes the common ground for allowing all the three appeals, order is set aside, appeals are allowed
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2012 (5) TMI 456
Rate of CVD in respect of goods where full exemption withdrawn - 1% or 5% - Whether the benefit of Notification No. 1/2011 CE dated 1.3.2011 is available to the impugned goods or not - assessee contested that impugned assessment orders on the impugned Bills of Entry No. 3481711 was passed by Assessing Authority rejecting the appellant's claim of CVD without passing a speaking order in terms of Section 17(5) of Customs Act, 1962 - Held that:- The impugned assessment order is set aside and the concerned authority is directed to pass a speaking order within 15 days of the receipt of this order failing which the appellants appeal shall be treated as allowed - in favour of assessee.
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2012 (5) TMI 455
100% EOU - exported goods for display at Fair Singapore 2006 on returnable basis, claiming clearance without payment of duty – Held that:- goods imported by an EOU is exempt from customs duties vide Notification No. 52/2003-Cus., dated 31-3-2003. I further, find force in the submission of appellant that the imported goods will be finished and re-packed which according to para 9.37 of chapter 9 of the policy is a manufacturing process. Therefore, the imported goods are going to be used for the purpose mentioned in the exemption Notification, Revenue’s appeal is accordingly rejected
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2012 (5) TMI 433
Confiscation of the newsprint seized - Redemption fine - As per the public notice dated 31-9-1993 issued by Ministry of Commerce, Govt, of India, the newsprint can be imported directly by those who hold a certificate of entitlement to import newsprint issued by Registrar of Newspaper, Govt, of India or through Newspaper handling agency authorized by them - redemption fine and penalties on appellants as there is a violation of conditions of import policy, keeping in view the value of the seized goods which were subsequently confiscated, the redemption fine is reduced
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2012 (5) TMI 413
Revision of the value in order to arrive at the Assessable Value – Held that:- it is upto the proper officer of Customs to determine the assessable value and upto the assessee to pay up the duty thereon. This aspect of determination of assessable value and payment of duty thereon is, however, beyond the scope of the show-cause notice and hence beyond the scope of the present proceedings, case remanded to the original authority directing it to pass a speaking order in de novo adjudication of the show-cause notice, appeals are disposed of
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2012 (5) TMI 412
Prayer was to enhance the quantum of penalty imposed – Held that:- Commissioner imposed a penalty of ₹ 10 lakhs under Section 114 (i) of the Act on M/s Trini Impex and a penalty of ₹ 20 lakhs under the same provision on M/s Corum Impex. Considering the value of the goods exported by these parties (Rs 2.09 crores in the case of M/s Trini Impex and ₹ 4.33 crores in respect of M/s Corum Impex), and also considering the totality of the facts and circumstances of their cases, we are of the view that the penalties imposed on these exporters by the learned Commissioner are fair and reasonable, appeals of the Revenue get dismissed
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2012 (5) TMI 411
Refund claims - duty which was claimed to have been paid in excess on a Bill of Entry – Held that:- no material relating to contemporary import prices was disclosed by the original authority. The Orders-in-Assessment/Original merely state that the contemporary import price during the relevant time was verified and it was found that the prices of the goods cleared during the relevant time were at par with the loaded value. The Orders-in-Original do not reveal that the relevant records indicating contemporary import prices were supplied to the assessee, case remanded to the original authority for fresh decision on the refund claims
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2012 (5) TMI 386
Import of brand new vehicle or not - exemption under notification no. 21/2002 CUS dated 1 March 2002 - held that:- Whether a vehicle is or is not new is a pure finding of fact. The facts which have been found by the Settlement Commission indicate that the car was in fact a new car which was transshipped from the manufacturer in Italy to the Ferrari dealer in the U.K. who sold the car to a dealer in the U.K. The Respondent purchased the car from the dealer in the U.K. The Settlement Commission has noted that the registration of the car in the U.K. was only to comply with the requirement of the licensing authorities in the U.K. who require registration even for the purposes of exportation. The car was not used in the U.K. The finding that the vehicle was a new motor vehicle is not perverse or contrary to the evidence. - Decided in favor of assessee.
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2012 (5) TMI 385
Suspension of CHA licence - nearly three years ago contemplating inquiry against the CHA, there is no progress of inquiry against the appellant and, consequently, the appellant remains without livelihood – Held that:- appellant has not been able to carry on the business of CHA for nearly three years on account of the impugned suspension order of the Commissioner. Though an inquiry officer was appointed by the Commissioner in August 2009, it appears, he is yet to initiate action. It is also unfortunate that no post-decisional hearing was given to this party by the learned Commissioner after keeping them under ex parte suspension order for nearly three years, suspension order against the present appellant is liable to be revoked. It is ordered accordingly, appeal is allowed
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2012 (5) TMI 359
Waiver of pre-deposit and stay of recovery – Held that:- appeals filed with the Commissioner (Appeals), the assessee did not mention the date of speed post, nothing stood in the way of the appellate authority verifying the records of the department relating to the above dispatch to find out the correct date of dispatch of the Orders-in-Original. It appears from the impugned order that no attempt was made in this regard. There is yet another infirmity in the appellate Commissioner's order. After holding the appeals to be time-barred, he embarked on discussion on merits and took a view on the substantive issue. If an appeal filed with the Commissioner (Appeals) is really belated beyond the condonable period of limitation prescribed under Sec.128 of the Customs Act, it has only to be rejected on that ground and there shall be no discussion on merits, appeals are allowed by way of remand
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2012 (5) TMI 358
Affixing of MRP on imported goods - sale to institutional consumers - Valuation for the purpose of levy of CVD - Manufacture - meaning to the definition of 'manufacturer' given under Rule 2(h) – Held that:- appellant has given a distorted meaning to the definition of 'manufacturer' given under Rule 2(h) - There is nothing in the definition of 'manufacturer' to show that mere affixture of trade mark would suffice the requirement of the inclusive definition. - Decided against the assessee.
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2012 (5) TMI 330
Refund of the Coal cess - paid initially at the time of import which subsequently has been clarified to be not payable - unjust enrichment - held that:- the cess amount has been booked under the expenses and therefore, the same forms part of the cost of cement manufactured by the appellants. Hence, this certificate does not support the claim of the appellants that they have not passed on the extra duty to their customers as part of the price of cement manufactured by them. - refund rejected on the ground of unjust enrichment.
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2012 (5) TMI 329
Issues:
1. Condonation of delay in filing the appeal.
2. Challenge to the quantum of fine and penalty imposed.
3. Reduction of redemption fine and penalty for re-exporting hazardous goods.
Analysis:
1. The judgment begins with the consideration of a miscellaneous application for condonation of delay in filing the appeal. The delay is condoned based on the reasons provided in the application and affidavit, allowing the appeal to proceed.
2. The main issue in the appeal is the challenge to the quantum of fine and penalty imposed on the appellants. The appellants express their intention to re-export the impugned goods, with the appeal focusing on the excessive nature of the fine and penalty. The original authority imposed a redemption fine of Rs.1,00,000/-, reduced to Rs.50,000/- by the lower appellate authority. Similarly, the penalty was reduced from Rs.1,50,000/- to Rs.1,00,000/- due to heavy demurrages and other expenses incurred by the appellants. The appellants argue that even the reduced amounts are excessive, hindering their ability to re-export the goods.
3. The judgment addresses the nature of the impugned goods as hazardous, preventing their home consumption. The appellants express their willingness to re-export the goods at their own cost. In light of this, the tribunal decides to further reduce the redemption fine to Rs.40,000/- and the penalty to Rs.25,000/- to facilitate the re-export of the goods. This reduction aims to enable the appellants to proceed with re-exporting the hazardous goods, which are currently held in the CFS due to the excessive fine and penalty amounts.
4. The judgment concludes by partially allowing the appeal through the reduction of fine and penalty amounts, emphasizing the need to enable the re-export of the impugned goods. The decision is dictated and pronounced in open court, providing a resolution to the issues raised in the appeal.
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2012 (5) TMI 328
Target Plus Scheme - Foreign trade policy - entitlement to credit at the rate of 15% of the incremental growth - requirement to indicate the name of the export product - circular dated on 8 May 2007 - actual user condition - sale of goods (almonds) in the open market. - misuse of the Target Plus Scheme - Held that:- there should exist a “broad nexus” between the goods which are imported and the goods which are exported - ‘broad nexus’ would mean goods imported with reference to any of the product groups of the imported goods within the overall value of the entitlement certificate. - the goods imported against the certificate shall not be transferred or sold. - Paragraph 3.7.6 on its plain construction, does not incorporate a requirement that the goods which are imported as inputs must find physical incorporation in the export products in relation to which the benefit of the Target Plus Scheme is claimed.
The Foreign Trade Policy, it is well settled, is referable to the provisions of Sections 4 and 5 of the Foreign Trade Development and Regulation Act, 1992. The policy cannot be amended by an administrative circular. - the circular does not in this case supplement the policy or fill up an interstitial space. - the conditions which were stipulated by the circular dated 8 May 2007 were ultra vires paragraph 3.7.6 of the Foreign Trade Policy and Customs notification dated 8 April 2005 (Customs Notification 32/05).
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2012 (5) TMI 303
Refund - amendment of bill of entry in terms of Section 17 or Section 149 of the Customs Act, 1962 - After clearance they found that the goods were eligible for concessional rate of duty under notification No.25/98-Cus and 69/04. Accordingly, they filed refund claim for the customs duty paid under the aforesaid bill of entry - contention of the Revenue is that the respondent has at no stage challenged the assessment order, therefore, the refund claim was rightly rejected by the lower adjudicating authority – Held that:- in the case of Priya Blue Industries (2004 - TMI - 47045 - SUPREME COURT OF INDIA – Customs), proper course for claiming the benefit of the notification was by way of filing appeal against the assessment order, Commissioner (Appeals)'s order is set aside and Revenue's appeal is allowed
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