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Customs - Case Laws
Showing 241 to 260 of 38399 Records
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2024 (4) TMI 378 - CESTAT NEW DELHI
Classification of imported goods - Narrow Woven Fabric Webbing - to be classified under Customs Tariff Item (CTI) or under CTI 58063200? - suppression of facts or not - extended period of limitation - Levy of penalty u/s 112 (a)(i) and u/s 114AA of CA.
Extended period of Limitation - first grievance of the Revenue is that the Commissioner had confirmed the demand invoking the extended period of limitation along with interest but had not imposed the mandatory penalty under section 114A - HELD THAT:- It needs to be pointed out at this stage that section 28 of the Customs Act is not the charging section. The charge of customs duty comes from section 12 according to which duties of customs shall be paid on the goods imported into or exported from India. However, if the duty which should have been paid was either not paid or was short paid, the remedy to recover such duties is available to the Revenue under section 28. This section also has an inbuilt limitation. Beyond the period of limitation although the charge would continue, Revenue will no longer have the remedy to recover the duties short paid. In the normal course, the limitation is of one year - In this case, although the Commissioner found that there was no collusion or willful mis-statement or suppression of facts, the respondent had fairly conceded the charge of duty and agreed to pay the same along with interest. It is for this reason, that the demand was confirmed for the extended period and not because any evidence that these factors were present. Insofar as section114A is concerned, it pertains to penalty and not a charge. Therefore, penalty cannot be imposed when it has been explicitly recorded that there was no collusion or willful mis-statement or suppression of facts which are essential to impose penalty under section 114A.
Confiscation of the goods under section 111(m) - HELD THAT:- The respondent did not contest the imposition of penalty and has already been paid the same. There are no ground to order confiscation of the goods which were not available. Holding that the goods were liable for confiscation under section 111(m) at this stage will be nothing more than a academic exercise as the penalty which would flow from such statement has already been imposed and has not been contested by the respondent.
Penalty under section 114AA - HELD THAT:- The background in which section 114AA was introduced. Nothing in the section indicates that it does not apply to import. It will apply to both imports and exports and the recommendation of the Committee was that it should be applied with due diligence and care so as to avoid any undue harassment to trade. The Commissioner did not impose any penalty under section 114AA because it can be imposed only if there is evidence that the person has not knowingly or intentionally made, signed or used or causes to be used, any declaration, statement or document which is false or incorrect. The Commissioner has also recorded that the goods which were imported by the respondent were examined and assessed by the department before allowing clearance - there are no reason to disagree with this finding of the Commissioner. Therefore, there is no case to impose penalty under section 114AA.
The impugned order is upheld and the appeal filed by the Revenue is dismissed.
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2024 (4) TMI 377 - CESTAT NEW DELHI
Confiscation - imported four Mercedes Benz cars - Failure to comply with provisions of Para 2 of Import Licensing Note of Chapter 87 - restricted goods or not - HELD THAT:- It is an admitted fact that the imported vehicles have been registered and have got certified by the Transport Department of Government of NCT of Delhi as complying with all the provisions of CMVR. Not only this, All India Tourist Permit & Certificates of Fitness have been issued by Delhi Government stating that the vehicle complies with all provision of CMV Act and Rules including Rule 126A of CMVR. These certificates by Government authorities of importer’s country amounts to substantive compliance of the impugned Import Licensing Note 2. The Note is therefore held to have been wrongly invoked and so is wrongly invoked the provisions of Foreign Trade Policy for ordering confiscation of imported cars.
It is also observed that it has been acknowledged in the Order-in- Original itself that there is no mis-declaration neither of description nor of classification nor even of quantity and value except the violation of procedural condition of policy. Confiscation of imported vehicle is ordered only because said violation is admitted. But it is opined that substantial benefit of duty exemption shall not be denied on account of mere procedural lapse. As already discussed, the intent of the policy condition as is held to have been violated stands fulfilled in view of the certificate issued by Transport Authority.
The order under challenge is not sustainable - Appeal allowed.
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2024 (4) TMI 340 - MEGHALAYA HIGH COURT
Seeking release/return of gold bangle to the petitioner under the provisions of Section 110(2) read with Section 124 of the Customs Act, 1962 - SCN issued after mandatory period - HELD THAT:- In the instant case, it is not disputed that the seizure was made on 04.04.2023, which meant that the notice should have been issued prior to 03.10.2023, which however, was not the case, as the show cause notice was sent by speed post on 05.10.2023, after the mandatory period as per Section 110(2) had lapsed. The proviso allowing for extension of time was also not resorted to by the respondents. Section 124 as can be seen from above, prohibits the confiscation of any goods or imposing any penalty unless the owner of the goods or such person is given a notice and an opportunity of making a representation and also of being heard. The issuance of a show cause on time therefore, being fundamental in such matters, and the same having not been complied with by the respondents, is thus hit by Section 110(2) of the Act.
The relevance of the judgment PURUSHOTTAM JAJODIA, AMIT KUMAR, KM. UDYOG VERSUS DIRECTORATE OF REVENUE INTELLIGENCE AND ANOTHER [2014 (8) TMI 771 - DELHI HIGH COURT], cited by the petitioner is noted, as it essentially covers the case with regard to the sanctity of the 6(six) month period of show cause, and as such, no further discussion is required on the same.
The respondents are directed to release the gold bangle seized from the petitioner forthwith - Petition allowed.
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2024 (4) TMI 339 - DELHI HIGH COURT
Validity of criminal complaint and related summons issued by the ACMM, New Delhi - Liability to pay differential customs duty with penalty - Violation of principles of natural justice - grievance of the petitioners is that without taking the cognizance or passing any specific orders for issuance of the summons and without taking into consideration the order passed by Principal Commissioner of Customs (Import), ICD, the petitioners have been wrongly summoned - HELD THAT:- Prima facie, the contentions raised by the learned counsel for the petitioners, on the basis of orders placed on record, appear to be of considerable merit. Considering the facts and circumstances of the case, it shall be appropriate that the aforesaid factual position is brought to the notice of the learned ACMM by the petitioners for consideration as the summons could not have been issued without any specific orders/directions for summoning the petitioners. However, in case the learned ACMM is of the opinion that the summons have been issued in accordance with law, petitioners shall be at liberty to file the proceedings afresh, challenging the summoning order in view of order dated 15.09.2023 passed by Principal Commissioner of Customs (Import), ICD. Learned ACMM shall also be at liberty to consider the order dated 15.09.2023 passed by Principal Commissioner of Customs (Import), ICD, which has been brought to the notice of this Court.
Also, the presence of the petitioners be exempted before the learned ACMM for 08.04.2024 on an application being preferred in this regard through counsel.
Petition disposed off.
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2024 (4) TMI 338 - CESTAT HYDERABAD
Denial of relinquishment of title of part (balance) goods lying in the warehouse - HELD THAT:- The Commissioner (Appeals) have erred by not taking notice of the subsequent amendments made in section 68 wherein proviso was inserted by Finance Act 2003 w.e.f. 14.05.2003 - The words of “rent, interest, other charges and penalties” appearing in the aforementioned proviso, before ‘penalties’ were omitted by Finance Act 2016 dt.14.05.2016.
Upon careful reading of section 68, as amended by the provision for relinquishment of title to warehoused goods inserted w.e.f. 14.05.2003 and the subsequent amendment made in the year 2016 to remove other charges and fees from its provisions, it is clear that the said proviso has extended the time available to the owner/importer of warehoused goods for relinquishment of title till or before an order for clearance of such goods for home consumption, as mentioned in clause (c) of section 68, has been made by the proper officer.
In the facts of the present case, the relinquishment of title was made by the appellant well in time, as permitted by the Statute as no order for clearance of goods for home consumption was made till that date - the issuance of SCN under section 72(1)(b) for warehoused goods cannot stop the time running and available to the owner to relinquish the title before the order for clearance of such goods for home consumption, as stipulated in section 77 read with section 68, is made.
The appellant has rightly relinquished the title to the goods during the pendency of the proceedings under section 72(1)(b) of the Act. It is further found that on the date of such relinquishment, no case of any offence committed by the appellant under this Act or any other Act for the time being in force is made out in the facts and circumstances - the appellant is entitled to the benefit of relinquishment of title as provided under section 68 of the Customs Act read with proviso. It is further found that appellant has already been imposed penalty of Rs.20,000/- under section 117 of the Act and the same has already been deposited vide CM No.109 dt.06.09.2019.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 337 - CESTAT HYDERABAD
Seeking clearance of imported goods - (second hand/used) viz., Puritan Bennett 7200 series ventilator, Drager Medical Babylag 2000 Neonatal Ventilator, Fresenius Medical 5008 Cordiax Dialysis Machines and Taema Alys Ventilator - prohibited goods or not - e-waste/hazardous waste - HELD THAT:- Admittedly, the goods, used medical devices, were found to be in good working condition having minimum residual life of 5 years or more as certified by the Chartered Engineer. Accordingly, in view of such admitted facts, the goods under import do not qualify in the definition of ‘waste’ as defined under Rule 3(38) of Hazardous and Other Waste Management Rules, 2016. It is further found that the impugned order is vitiated for lack of jurisdiction, which is a primary requirement and it is held that the Adjudicating Authority lacks jurisdiction to pass the order, as admittedly no SCN was served in accordance with section 124 of the Customs Act.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 309 - BOMBAY HIGH COURT
Writ Petition - Invoking and encashing a bank guarantee - Demerger of business - bank guarantee for fulfillment of the duty amount - whether there is any obligation/liability of the petitioner to extend the Bank Guarantee which was furnished by the petitioner in regard to the imports - HELD THAT:- In our opinion, the jurisdiction of this Court under Article 226 of the Constitution is limited. We cannot delve on any issue in regard to the terms and conditions of the demerger and the inter se liability between the petitioner and respondent no. 2-KLL on the demerged business, including on the issues of the inter se liability on the imports in question, for which the bank guarantee was furnished. Equally there cannot be an exercise of jurisdiction to injunct the invocation of the bank guarantee, as it is a settled principle of law that the bank guarantee constitutes an independent contract between the bank and the party in whose favour the bank guarantee is furnished.
An injunction restraining the invocation of the bank guarantee can be granted in appropriate proceedings dealing with such contractual issues. Such reliefs can be granted applying the well-settled principles which need to weigh with the Court in injuncting the invocation of a bank guarantee. Certainly in the present facts, it is difficult for a writ court to consider the issues on invocation of bank guarantee and to record a finding of fact in that regard inter se between the petitioner and KLL.
Be that as it may, insofar the present proceedings are concerned, it appears that the adjudication proceedings now stands remanded to the Original Authority/ Assistant Commissioner, who is seized of the matter in pursuance of the order passed by the Appellate Authority, and who is now called upon to decide on the remanded issues including on the issue of the party required to furnish the bank guarantee. In such circumstances, in our opinion, it would be appropriate that in this regard we keep open all contentions of the parties, to be urged before the Assistant Commissioner/Original Authority, before whom the proceedings are pending including on the issue of extension of bank guarantee either by the petitioner or respondent no. 2-KLL. We may also observe that unless the Assistant Commissioner so decides, the bank guarantee needs to be renewed for a reasonable time.
Thus, we dispose of this petition by the following order: Let the bank guarantee in question be extended by the petitioner for a period of one month from today.
Petition stands disposed of in the aforesaid terms.
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2024 (4) TMI 252 - SC ORDER
Classification of imported goods - goods declared as “Nylon knitted fabric” Or “Net fabrics” - Tribunal found that the goods have been found to be not Knitted fabric but is “Net fabric” - imposition of redemption fine for this consignment u/s 125 of the CA, 1962 is upheld - mis-declaration was not willful with intention to evade customs duty - Penalty imposed on the appellant was also reduced - HELD THAT:- On perusal of the Office Report, it is noted that nobody has entered appearance on behalf of the appellant, despite service of notice on the appellant on discharge of the appellant’s counsel.
Thus, the appeal is dismissed for non-prosecution.
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2024 (4) TMI 251 - BOMBAY HIGH COURT
Seeking clearance of the goods - High Seas Sale agreement stands cancelled - default on the part of respondent No. 6 in making payments - It is contended that the petitioner has now stepped into the shoes of respondent No. 6 and has become entitled to seek amendment of the bill of entry and/ or to file a fresh bill of entry to clear the goods - HELD THAT:- On a query made by us, Mr. Nankani has submitted that there are no transactions of the petitioner with respondent No. 6, except the present High Seas Sale which too stands cancelled. It is submitted that except for this contract, the petitioner has never dealt with respondent No. 6. Respondent No. 6 who is represented by Mr. Gohil, learned counsel states that respondent No. 6 has no objection whatsoever for the goods being cleared by the petitioner.
Thus, in our opinion, considering the request which is made by the petitioner by its letter dated 15 December, 2023 addressed to the Deputy Commissioner of Customs (Imports), JNCH, Nhava Sheva (supra), it is appropriate that the application of the petitioner for clearance of the goods either by permitting amendment of bill of entry or by filing of a fresh bill of entry as the law may permit, needs to be decided by the concerned designated officer.
We accordingly permit the petitioner to place on record of the designated Customs Officer, a proper application raising all contentions as may be permissible in law which the petitioner state would be filed within two days from today.
The petition stands disposed of in the aforesaid terms.
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2024 (4) TMI 250 - GUJARAT HIGH COURT
Maintainability of petition - alternative remedy of appeal - Validity Of show-cause notice - No opportunity of personal hearing - violation of principles of natural justice - diverting cut and polished diamonds - without following the procedure prescribed under the Special Economic Zone Act, 2005 (‘the SEZ Act’) - HELD THAT:- We are of the opinion that though the petition is maintainable under Article 226 of the Constitution of India, the petitioner is unable to point out as to whether the notices were served upon him by the respondent-Assessing Officer. In the impugned order, it is categorically mentioned that though the notices were served upon the petitioner, the petitioner neither attended the hearing nor submitted any request letter for adjournments on four occasions whereas, in the memo of the petition, it is stated that no such notices were served upon the petitioner. Thus, it involves disputed questions of facts as to whether the notices were served upon the petitioner or not by the respondent-authority which can be considered by the appellate authority while examining the record. We would therefore not like to entertain this petition on ground of not providing opportunity of hearing to the petitioner.
We therefore do not entertain this petition as there is alternative efficacious remedy available under the provisions of the Customs Act to be availed by the petitioner and accordingly, without entering into the merits of the matter, the petitioner is relegated to avail such alternative efficacious remedy with a liberty to raise all the contentions which are raised in this petition before the appellate authority.
We make is clear that the time spent by the petitioner before this Court in pursuing this petition may be considered as bona fide by the appellate authority in case of any delay which may be considered by the appellate authority to condone the delay, if any, in preferring the appeal by the petitioner within a reasonable time from today. The petition is accordingly dismissed.
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2024 (4) TMI 249 - MADRAS HIGH COURT
Import of Baggage - opportunity to declare the contents of their baggage to the proper officer - Challenged the Order passed for Confiscation and detention - Period of limitation for presenting statutory appeals - HELD THAT:- On examining the orders impugned herein, I find that the dispute turns on questions of fact. Moreover, it appears that the detentions and confiscation challenged herein relate to action taken against a group of about 148 persons. Therefore, it is appropriate that the respective petitioner files a statutory appeal. Since these writ petitions were filed within the period of limitation, the time taken in prosecuting these petitions is liable to be excluded for purposes of computing the period of limitation for presenting statutory appeals.
Consequently, these writ petitions are disposed of by granting leave to the respective petitioner to present statutory appeals. If such appeals are presented within a maximum period of ten days from the date of receipt of a copy of this order, the appellate authority is directed to receive and dispose of such appeals on merits without going into the question of limitation. This order will not stand in the way of the respondents proceeding with adjudication pursuant to the detention orders.
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2024 (4) TMI 248 - CESTAT HYDERABAD
Valuation of export goods on which duty has to be paid - iron ores - modification of transaction value between the buyer and seller based on the test report of the chemical examiner of CRCL when the price should be finalised as per the test report of CIQ as per the agreement between the buyer and seller - inclusion of additional consideration for sale.
HELD THAT:- The value for the purpose of determining the duty is the transaction value subject to four conditions (a) that the sale is for delivery at the time and place of exportation; (b) buyer and seller are not related; (c) price is the sole consideration for sale; and (d) subject to other conditions which may be specified by the Rules. The proviso to this section indicates that in case of imported goods, the value of commissions and few other charges have to be included. However, it does not provide for inclusion of commissions in case of exports.
The Customs Export Valuation Rules do not provide for addition of any amount to the negotiated price (Transaction Value) or any reduction from it where the parties are not related and the price is at arm’s length. If the transaction value has to be determined as per the contract based on the test report of CIQ, it has to be determined so. The test report by CRCL is not relevant to determining the transaction value. It is not for the department to substitute the requirement of test report of CIQ in the contract between the importer and its overseas supplier with the test report of CRCL.
The export price is the transaction value subject to adjustment as per the clause in the contract between the parties. It is also found that it is not the case of Revenue that the appellant received anything over and above the transaction value or the amount mentioned in the final invoice on the basis of test report i.e. certification of quantity and quality at the discharge port, on the basis of report of the mutually agreed laboratory.
Reduction of US$16 per MT from the invoice - HELD THAT:- Any compensation paid for any purpose under some other contracts, needless to say, cannot modify the transaction value in this contract. Therefore, the transaction value must be determined without deducting this amount of US$ 16 per MT. Since this compensation has been deducted from the invoice value, it must be added to determine the correct FOB value of the goods.
The impugned order is accordingly modified to the extent that the FOB value shall be the transaction value as finalised between the appellant and its overseas buyer but without deducting the amount of US$ 16 per MT which was the compensation paid by the appellant with respect to some past transactions. Since the invoices have deducted this amount, the same needs to be added so that the correct FOB value is determined - There is no case to impose any penalty on the appellant and accordingly all penalties are set aside.
The matter is remanded to the Adjudicating Authority for the limited purpose of arithmetical calculation of the duty - appeal allowed.
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2024 (4) TMI 247 - CESTAT CHENNAI
Refund claim - Special Additional Duty paid at the time of import of goods under Notification No.102/2007 - Original authorities rejected the refund claim observing that the description of the goods in the bill of entry does not match with the description of goods in the sales invoices - HELD THAT:- The appellant has described the goods as ‘MS Plates’ and ‘HR Sheets’ for the reason that they are known as such in the market on the basis of variation in thickness. I am convinced with the explanation put forward for the variation in the description and is satisfactory. Further, the appellant had produced Chartered Accountant certificate as well as the correlation statements along with the refund claim. In such circumstances the original authority ought not to have denied the refund claim. The Tribunal in the case of Ganesha Impex Vs. Commissioner of Customs (Sea-Import),[2019 (3) TMI 1949 - CESTAT CHENNAI] had occasion to consider a similar issue. The Tribunal held that when the documents established that of the goods imported co-related with the invoices, the refund should not be denied on some minor variation in describing the goods.
The Hon’ble jurisdiction of High Court in the case of P.P. Products Ltd., Vs. Commissioner of Customs, [2019 (5) TMI 830 - MADRAS HIGH COURT] held that when the CA certificate is produced the same cannot be brushed aside without proper reason. In the present case the adjudicating authority has not put forward any finding as to disregard the CA certificate. In such circumstances the refund claim ought to be allowed. I hold that the appellant is eligible for refund.
The impugned order is set aside. The appeal is allowed with consequential relief if any.
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2024 (4) TMI 246 - CESTAT MUMBAI
Valuation of goods transacted between related persons - Royalty addition - Addition to assessable value to the extent of 5% of ‘net sale price’ of ‘precipitated calcium carbonate’ - remand jurisdiction of appellate authority to issue directions to ‘proper officer’ - No notice issued u/s 28 of Customs Act, 1962 - cross-border trade transaction - HELD THAT:- From the absence of show cause notice, as well as submission on behalf of appellant, it is again clear that such imports that are subject to Special Valuation Branch (SVB) oversight are, invariably, kept provisional for finalization to be undertaken upon completion of ascertainment by Special Valuation Branch (SVB). Therefore, at this stage, the quantification ordered by the first appellate authority pertains to finalization under section 18 of Customs Act, 1962 devolving on ‘proper officer’ that Deputy Commissioner, Special Valuation Branch (SVB) is not. As appeal has not been directed before first appellate authority against order of such ‘proper officer’, it transgresses the remand jurisdiction of such appellate authority to issue directions to ‘proper officer’ who has yet to complete the process of finalization. Direction to the ostensible ‘original authority’ is an exercise in futility and direction to the ‘proper officer’, and the statutorily empowered potential ‘original authority’, is beyond appellate jurisdiction of Commissioner of Customs (Appeals) before whom the order impugned did not challenge a ‘yet to occur’ assessment.
In these circumstances, it behoves us to focus on the competence of the reviewing authority to have gone before the first appellate authority against the opinion of the Deputy Commissioner, Special Valuation Branch (SVB) that there was no need to add the ‘royalty’ to assessable value. Section 128 of Customs Act, 1962 stands on two limbs – decision being that of officer below the rank of Commissioner of Customs and from the decision causing a grievance. The author of the order impugned before the first appellate authority is certainly subordinate to Commissioner of Customs.
However, as pointed out above, that opinion was not even persuasively binding on the ‘proper officer’ who, as assessing authority and obliged to issue speaking order, is required to arrive at assessment uninfluenced, even if not uninformed, by external sources. Therefore, there was no cause for grievance to initiate appellate remedies. Such opportunity would have presented itself after finalization. Implicit in acknowledgement of appellate remedy against ‘advisory’ of Special Valuation Branch (SVB) is another round of appeal through the first appellate authority on the same goods and facts which does not sit well with the principle of comety of courts. The appeal before the first appellate authority was, thus, premature. This aspect of disposal of the appeal within the scheme of Customs Act, 1962 and the role of Deputy Commissioner, Special Valuation Branch (SVB) within it was not evaluated by the Commissioner of Customs (Appeals).
Thus, we set aside the impugned order and restore the appeal to first appellate authority to dispose off the pleas of the appellant- Deputy Commissioner in accordance with the scheme of Customs Act, 1962. Appeal is, thus, allowed by way of remand.
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2024 (4) TMI 245 - CESTAT MUMBAI
Revocation of CHA License - forfeiture of security deposit - Penalty - violation of Regulations 11(a), 11(b), 11(d), 11(n) & 11(j) of the Custom Broker Licensing Regulations, 2013 - appellant failed to verify the address at which the two clients operated and that requirement of ‘know your customer (KYC)’ was entirely different - HELD THAT:- The appellant had, admittedly, filed bills of entry for twenty consignments of ‘diamonds’, valued at ₹ 66.15 crores and ₹ 31.5 crores, imported by the two holders of ‘import export code (IEC)’ that, after clearance, were handed over and, doubtlessly, against authorization of the importers to a service provider. Investigation revealed that these were actually transacted by other persons and it is on record that the appellant had no connection with them. In the course of investigation, it was ascertained that multiple remittances were made overseas against the same goods indicating collusion among the several entities and persons.
It is not the case of the respondent-Commissioner that the appellant had anything to do with the transactions beyond that of filing of bills of entry and coordinating clearance thereafter. Nonetheless, in the belief that obligations under the Customs Broker Licencing Regulations, 2013 had been breached, impugned proceedings got underway. The facts, as elicited during the inquiry, persuaded dropping of the charges pertaining to handling of imports without authorization from client and of failure to advise client to comply with statutory prescriptions.
The appellant had, no doubt, undertaken ‘know your customer (KYC)’ exercise which did not reveal anything untoward. However, the client claimed to be in the ‘diamond trade’ which has its own peculiarities of confidentiality, of capital adequacy and of operating proximity and equations among its practitioners; all of these warranted a closer look at the antecedents of the client. It is not the defence of the appellant that the client was in the diamond trade and it is on ‘lending of name’, with its consequences, that the impugned transactions came in for adverse notice. It is that lack of diligence which was of significance to the finding in the inquiry report.
The appellant has been found to have failed to verify antecedents and identity of client as well as that operations are carried out at the declared address. This is, probably, the one obligation that specifies action in the context of easily comprehended stipulation and against which failure to undertake those can be ascertained. It is on record that the appellant had not carried out any ascertainment of the premises of the client either directly or through another. That is the most fundamental of obligations and breach thereof jeopardizes the reliability of the broker.
Thus, the charge sustains against the appellant. However, the consequence, insofar as offence under customs law is concerned, is far from clear in the record of proceedings as to immediately conclude that all three detriments in Customs Broker Licencing Regulations, 2013 must necessarily follow. The only breach that survives does not merit such harsh retribution.
We, therefore, set aside the revocation of licence under regulation 18 of Customs Broker Licencing Regulations, 2013 and the penalty imposed under regulation 22 of Customs Broker Licencing Regulations, 2013. The forfeiture of deposit is upheld and, should the appellant, choose to operate the licence, the same shall be subject to fresh deposit being made towards security as prescribed in Customs Broker Licencing Regulations, 2018. Accordingly, the appeal is disposed off on these terms.
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2024 (4) TMI 244 - CESTAT KOLKATA
Levy of penalty u/s 112(a) of the Customs Act - alleging that the appellants have not checked the antecedents before undertaking the responsibility of a CHA for the consignments - Misdeclaration of goods - HELD THAT:- On examination of the goods, it was found that the goods had been mis-declared. However, no allegation against the appellants has been made during the course of investigation to the effect that the appellants were having the details of the goods imported by the importer or having any connivance with the importer for mis-declaration of goods in question.
Moreover, for the allegation with regard to checking of the antecedents of the importer or its representative, proceedings are warranted under the Customs Brokers Licensing Regulations, which proceedings against the appellant have already been dropped. Thus, no penalty is imposable on the appellants as held by this Tribunal in the case of Chandan Chatterjee v. Commissioner of Customs (Port),[2024 (1) TMI 682 - CESTAT KOLKATA].
In view of this, we drop the penalty imposed on the appellants - In the result, the impugned order is set aside and the appeals are allowed with consequential relief, if any.
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2024 (4) TMI 243 - CESTAT NEW DELHI
Valuation of imported goods - demand of differential customs duty due to reassessment of the value of goods - recovery of interest - Penalty - Whether the expenditure incurred by the appellant towards advertising, marketing and promotion of the goods imported by the appellant under the Agreements with the foreign suppliers is liable to be added to the transaction value of the imported goods - HELD THAT:- In the present case, it clearly transpires from the Agreements entered into between the appellant and the foreign suppliers that the foreign suppliers had granted to the appellant the right to import the products for distribution and sale in India but the appellant had to incur, on its own account, the expenditure towards advertising, marketing and promotion of the products. In some of the Agreements the appellant was required to use its best efforts to promote and develop the distribution and sale of the products and the Agreement could be terminated at the discretion of the foreign supplier if the appellant did not spend the amount indicated in the Agreement.
Note to rule 3(2)(b) of the Interpretation Notes also needs to be remembered. Though it provides that if the sale or price is subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued, the transaction value shall not be acceptable for customs purposes but it also provides that if the buyer undertakes on his own account, even though by agreement with the seller, activities relating to the marketing of the imported goods, the value of these activities is not part of the value of imported goods nor shall such activities result in rejection of the transaction value.
It cannot, therefore, be urged that the appellant incurred expenditure to satisfy obligation of foreign sellers. Thus, the first requirement of rule 10(1)(e) of the 2007 Valuation Rules is not satisfied. The second requirement of rule 10(1)(e) is that payment should be made by the buyer to a third party to satisfy an obligation of the seller towards the third party. A Division Bench of the Tribunal in Adidas India [2020 (3) TMI 324 - CESTAT NEW DELHI] examined almost similar terms of the Agreements and held that the requirements of rule 10(1)(e) of the 2007 Valuation Rules are not satisfied.
Thus, the second criterion is also not satisfied.
In this view of the matter, the reasoning of the Principal Commissioner in the impugned order that since the appellant was required and obliged to undertake marketing/ advertising in terms of the Agreements with the foreign suppliers, the price of the imported goods cannot be said to be the sole consideration within the meaning of section 14 of the Customs Act and, therefore, the transaction value is liable to be rejected under rule 12 of the 2007 Valuation Rules is clearly contrary to the categorical stipulation in the Interpretative Notes to rule 3 that activities relating to marketing of the imported goods undertaken by the buyer, even though under agreement with the seller, cannot be considered to be additional consideration and cannot form part of the value of the imported goods, nor shall such activities result in rejection of the transaction value.
The impugned order dated 29.05.2020 passed by the Principal Commissioner, therefore, cannot be sustained and is set aside. The appeal is, accordingly, allowed with consequential relief(s).
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2024 (4) TMI 187 - SC ORDER
Classification of imported goods - Quicklime - Tribunal held that the imported goods ‘quicklime’ would be appropriately classifiable under Customs Tariff Item 2522 10 00 and not as ‘other’ under the Customs Tariff Item 2825 90 90, as claimed by Revenue - HELD THAT:- We are not inclined to interfere with the judgment and order passed by the Custom Excise Service Tax Appellate Tribunal, West Zonal Bench at Mumbai on 20-10-2023 in Custom Appeal Nos. 85377/2020 and 86172/2021 in Final Order No.A/87057-87058/2023.
The Civil Appeals are dismissed accordingly.
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2024 (4) TMI 186 - SC ORDER
Application for discharge u/s 245(2) of CrPC - learned Magistrate dismissed the application for discharge - High Court held that in the absence of any material the cognizance taken by the learned Magistrate is impermissible - HELD THAT:- We are not inclined to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (4) TMI 185 - KERALA HIGH COURT
Petition against dismissal order of Learned Single Judge - Appeal filed belatedly after the period of condonation in terms of Section 128 of the Customs Act - HELD THAT:- While the approach of the appellant before this Court itself was more than seven years after the order of appellate authority, the appellant did not even approach the First Appellate Authority within the time permitted under the Customs Act. It is trite that when the statute prescribes a period of limitation for approaching the appellate authority and the assessee does not approach the appellate authority within the time granted under the statute, the scheme of finality accorded to the statutory orders cannot be ignored by the High Court when exercising the jurisdiction under Article 226 of the Constitution of India. That apart this Court cannot also ignore the long delay in approaching this Court under Article 226 of the Constitution of India. Thus in any view of the matter, we see no reason to interfere with the judgment of the Learned Single Judge. The writ appeal fails and is therefore dismissed.
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