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Customs - Case Laws
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2024 (5) TMI 879 - SC ORDER
Project Import - demand of differential duty - delay in passing the assessment - department has not been able to explain this delay - Tribunal held that unreasonable delay in adjudication / finalization of assessment the show cause notice itself is liable to be quashed - thus it is found that the demand of differential duty the order for confiscation of goods, imposition of Redemption Fine and penalties imposed on M/s. PPN cannot sustain and requires to be set aside - Appeals are allowed - HELD THAT:- Having considered the facts and circumstances of the case(s), we are of the opinion that the Customs Excise And Service Tax Appellate Tribunal has not committed any error in law or fact.
The Civil Appeals are accordingly dismissed.
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2024 (5) TMI 874 - MADRAS HIGH COURT
Seeking certified copy of the order in original - export proceeds - duty draw back - condition that export proceeds are realized within the prescribed time limit - HELD THAT:- The relief prayed for is limited to a direction to provide a certified copy of the order in original. Even if the respondent had previously served the certified copy on the petitioner, it is always open to the respondents to state that the certified copy was served on the petitioner earlier and provide evidence thereof. This will not stand in the way of the respondents providing another copy thereof to the petitioner.
Therefore, W.P. is disposed of by directing the respondents to provide a certified copy of the order in original dated 26.12.2022 to the petitioner within thirty days from the date of receipt of a copy of this order. No costs.
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2024 (5) TMI 873 - MADRAS HIGH COURT
Import of second hand digital multifunction printing and copying machines - HELD THAT:- Both learned counsel for the petitioner and learned senior standing counsel for the Customs Department submit that a batch of writ petitions pertaining to the same product were disposed of by order dated 23.11.2023 in W.P. Nos. 29673 of 2023 batch.
Thus, W.P. are disposed of on the same lines. Consequently, W.M.P. are closed.
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2024 (5) TMI 870 - SC ORDER
Seeking an interim relief or for final disposal of the matter - Seizure of areca nut - perishable commodity - HELD THAT:- We dispose of this Special Leave Petition reserving liberty to the petitioner herein to seek an early hearing/advance the case/writ petition either for the purpose of seeking an interim relief or for final disposal of the matter.
It is needless to observe that if the petitioner seeks urgent hearing for consideration of the interim prayers, the same shall be considered at the earliest, having regard to the nature of the commodity involved in the writ petition so as to save it from perishing as such.
Thus, the Special Leave Petition is disposed of.
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2024 (5) TMI 861 - DELHI HIGH COURT
Applicability of duty element in determining the threshold limit for filing an appeal - Monetary limit prescribed by the Board for filing an appeal before the High Court - HELD THAT:- In the instant case, the determinative factor being the duty element is Rs. 86,34,821/-. Thus, the appeal is clearly covered by the circulars prescribing minimum monetary limit for filing an appeal. The example cited in the circulars as noticed clearly negates the argument of learned counsel for the appellant that cumulatively the amount being more than the threshold limit, the appeal would be maintainable. Hence the same has no merit and cannot be accepted.
For the purposes of determining the threshold limit, it would only be the duty element which would be taken into account and the same could not be clubbed with penalty and redemption fine.
In cases involving duty, fine, penalty and interest, the decisive element would only be duty. However, in cases where duty is not in issue and only fine and penalty are in issue then they would cumulatively be the decisive factor for determining the applicability of threshold limit.
Since the duty element involved in the subject appeal is less than the threshold limit, we are of the view that the appeal would not lie in view of the said instructions. The same is accordingly dismissed on the ground of low tax effect.
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2024 (5) TMI 858 - GUJARAT HIGH COURT
Wavier of demurrage/storage charges - Detention of the goods - Seeking release the goods for export - re-export of party quantity of “Denatured Ethyl Alcohol” - Penalty - HELD THAT:- From record, it is clear that the CESTAT has allowed the appeal of the petitioner by setting aside the detention order/seizure order as well as the levy of penalty and fine in lieu of confiscation of the goods. The CESTAT has also passed an order with all consequential reliefs. Therefore, the detention of the goods in question was not valid and legal from the day of detention/seizure of the subject goods.
The Rule Section 6 (1) (L) of the Regulation 2009 provides for issuance of waiver of certificate by the customs authorities subject to any other law for the time being prohibiting such charging of any rent or demurrage on the goods seized or detained or confiscated by the [Superintendent of Customs or Appraiser of Inspector of Customs or Preventive officer or examining officer, as the case may be] Therefore, when the goods were not required to be detained and the same has continued till today, no demurrage or other charges would be chargeable as per regulations 6 (1) (L) of the Regulations 2009.
Thus, no cause of action will survive so far as Special Civil Application is concerned. Accordingly, both the petition stand disposed of.
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2024 (5) TMI 855 - CESTAT AHMEDABAD
Exemption from Customs Duty - Import of HDPE - mixing of minor quantity of Hexane - Notification 21/2002 and subsequently Notifications denied by the revenue, only on the ground that the HDPE imported by the appellant is chemically modified and the exemption is available only for the compounded HDPE - HELD THAT:- Following the order of Tribunal in Vikram Plasticizers [2023 (7) TMI 1068 - CESTAT AHMEDABAD], it can be seen that the very identical issue has been considered by this Tribunal and came to conclusion that by mere addition of small quantity of other chemical in the HDPE, the characteristic of HDPE does not get altered and the same remained as HDPE only. Once the product is HDPE even though the modified with miniscule quantity of other chemical it clearly falls under the exemption entry provided under Notification No. 12/2012-Cus dated 17.03.2012, therefore, in our considered view, the appellants import of HDPE even though modified clearly covered under the exemption notification No. 12/2012-Cus dated 17.03.2012 and other analogous notifications. Therefore, the impugned orders are set aside and appeals are allowed.
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2024 (5) TMI 846 - CESTAT CHANDIGARH
Customs House Agent - Revocation of License - forfeiture of security deposit - Penalty - Subletting of licence - Smuggling of red sanders - Show-Cause Notice - Non-grant of opportunity to cross examine - Violation of various provisions of Regulations of CBLR, 2018 - HELD THAT:- We find that there is evidence to show that the appellant was very casual in his approach in transacting the work related to custom broker. We find that there are some inadequacies in the working of the appellant as far as the work of custom broker is concerned. We find that the custom broker vide his statement dated 04.04.2022 has accepted his fault. It is evident that the customs broker neither conducted the business personally nor through an authorized representative duly approved by customs; the custom broker shared his password with unauthorized persons and sublet his license for pecuniary benefit; he accepted that Shri Manish Kumar Shrivastav uploaded the documents in the icegate and that he has not authorized anyone; during his meeting with Shri Manjeet Singh he was offered many clients in lieu of the license; Shri Manish Kumar Shrivastav assured him to pay Rs. 20,000/- per month; Shri Manjeet Singh in fact paid Rs. 15,000/- for the renewal of the license; the custom broker got two lakhs for allowing four persons to represent his firm; he received all the payments from AS clearing belonging to Shri Manjeet Singh.
We find that the appellant custom broker has allowed his license to be used by unauthorized persons for pecuniary gains. We find that such a casual behavior by the appellant is certainly breach of the trust reposed on the custom broker by the department. Any continuation of the license would have been detrimental to the interest of the revenue and the exporters. Therefore, we hold that the revocation of license has been correctly done. However, having said so we are of the considered opinion that the penalty imposed should be commensurate with the omission or commission. We find that revocation of license itself is enough punishment in such cases. As the security deposit is ordered to be forfeited imposition of penalty of Rs. 50,000/- is not warranted. We are inclined to reduce the same to Rs. 10,000/-.
Thus, the appeal is partly allowed to the extent of reducing the penalty, imposed under regulation 18 read with regulation 14 [of CBLR, 2018, to Rs. 10,000/-; revocation of license and forfeiture of security deposit is however upheld.
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2024 (5) TMI 838 - CESTAT MUMBAI
Benefit of exemption - Duty Free Import Authorisations - DFIA scheme - Import of ‘saffron’/ ‘saffron pushali B’ - ‘food flavour’ and ‘food colour’ in edible goods - actual use condition and disclosure - HELD THAT:- No clarification emerges from that order to impact any of the other ‘authorizations’ impugned in this appeal. It is pertinent to note that reliance on this development strikes at the very pillar on which the impugned proceedings have been erected as none of the other ‘authorizations’ were similarly proceeded against and must be deemed, for want of similar outcome, as validated. In the light of importer being a transferee of ‘authorizations’ invalidated subsequent to its use, the detriment, flowing thereby from processing subsequent to transfer by the two entities who were issued with it, is hit by the bar of limitation in the absence of any finding that the ‘person liable to pay duty’ had been involved in obtaining of ‘authorization’ or in the exports that enabled transfer. There is no such finding and the consequence of invalidation is not only restricted to imports effected against those ‘authorizations’ but also barred from being deployed for recovery by lapse of normal period of limitation.
According to the adjudicating authority, ‘actual use’ attaches to the inputs, covered by the norms, at the time of export which is to mirrored even after the export obligation has been fulfilled and licence endorsed for transfer. Thus, it is the case of the adjudicating authority that the ‘pre-export’ entitlement remains unaltered ‘post-export’ and even after fulfillment of export obligation; impliedly, the incentive is nothing more or less than that would entitle as drawback. We have set out supra that the generality of description in ‘standard input output norms (SION)’ is intended to assist the policy objective of providing incremental incentive for export and, while that may not be entirely impossible in ‘pre-export’ importation, such possibility of alternative product being cleared in ‘post-export’ importation is not exactly not remote. The rigour of the expression ‘actual use’, to the extent inferred by the adjudicating authority, does not rule out such possibility
It is the case of the adjudicating authority that only the first aspect may be varied though neither the Foreign Trade Policy (FTP) nor the corresponding exemption notification contain anything that may suggest such limited perspective of ‘actual use’ which, with fulfillment of export obligation, implicitly and literally, does not continue to insist that the importer must deploy it in production or that it should be deployed in the very product that is specified in the authorization for domestic sale instead of being exported. There is no percentage in such insistence on one aspect of ‘actual use’, and conveniently selected, when such is not sanctioned either by the Foreign Trade Policy (FTP) or in the exemption notification without insisting on the other two aspects.
The adjudicatory jurisdiction should not have been extended beyond the contents of the authorizations which were themselves to be evaluated only in terms of claim of the appellant that ‘saffron’ is capable of use as ‘food flavour’ and ‘food colour’ which were the descriptions in the impugned authorizations. These are not disputed in the proceedings and the test of commercial viability, adopted in the impugned order, is not conceptually intrinsic to export promotion schemes in the Foreign Trade Policy (FTP) and, thus, undoing the foundation of both confiscation and recovery of duty in the impugned order.
Thus, the impugned order is set aside to allow the appeals.
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2024 (5) TMI 835 - BOMBAY HIGH COURT
Export Policy of Non-basmati white rice under HS Code 1006 30 90 is amended from “Free” to “Prohibited” - Notification No. 20/2023 - Prospective Or Retrospective effect of the Notification - Non application of mind or arbitrary exercise - Violation of the principles of natural justice - Denial of benefit of the transitional arrangement - FTP 2023 - burden upon the exporter to complete the obligation of fulfilling a complete contract - HELD THAT:- The reason for converting the policy for export of Basmati Rice from free to prohibited as per contention of Mr. Deshpande, learned DSGI is the domestic food security situation in India, which as claimed to be at risk and the need for price stabilization of food items, as is indicated, from para-3 of the reply of the respondent No. 2 (Pg.138). For this it is contended, that there was due consultation with the nodal Departments such as Departments of Agriculture and Farmers Welfare, Department of Food and Public Distribution and Department of Consumer Affairs and it is stated that the consultation process had taken into account all data relating to production and export of non-basmati rice. It is however material to note that except for a plain statement in this regard which is contained in Paras-3 and 4 (Pg.138 and 139) of the reply of the respondent No. 2, there is nothing else therein in the nature of what was the form of consultation, what data was collected and considered, in spite of the fact, that by amendment to the petition by inserting ground L (Pg.36-A), a specific plea was raised regarding absence of any such material, to indicate any food security threat or any need for price stabilization of food items, so as to demonstrate the reasonability of the restriction placed by way of the impugned notification on export of non-basmati rice.
The relief which is being sought is for enabling the petitioners to complete the concluded contracts, which they have with foreign traders for supply of basmati rice. In this context, it would be material to note, that in case the petitioners establish concluded contracts, for supply of non-basmati rice, to foreign traders, for which they have established ICLC and the petitioners have already procured the goods, this would be an action, relatable to the Policy prior to the impugned notification, which indicated that the export was free. If this is the case, then the petitioners, would have legitimate expectation, of fulfilling of their contracts, which they had entered into on the basis of the free policy, with foreign traders. IT is also necessary to note that non-fulfilling the concluded contract would also make the petitioners open to litigation on account of breach of contract and consequently damages. Thus, the expectation of fulfilling an existing concluded contract, on the basis of the existing policy could be said to be legitimately available to the petitioners.
Testing the impugned notification on the anvil of the principle of legitimate expectation, vis-à-vis Article 14 of the Constitution, we find that no reasons are forthcoming from the respondents, for denial of the benefit of the transitional arrangements, in the FTP, 2023, to the petitioners, and, though the same has been granted, in the case of wheat, as indicated, in a similar circumstance, denial of the same, in the impugned notification, is not justified.
Retrospectivity - Though it is contended, that it is retrospective in operation, the notification, does not indicate, that is to take effect, from any earlier date. However, clauses 2 (i) to (iv) in their effect, indicate, that past transactions, which have been entered and concluded, but which are yet to be performed, are also being taken in its sweep, which position is substantiated by the fact that clause 2 of the impugned notification indicates that the transitional arrangement in para-1.05 of the FTP, 2023, which saved concluded contracts, indicated by an irrevocable ICLC, was not applicable.
We find that the restriction imposed vide clause 2 of the impugned notification dated 20/07/2023, denying the benefit of para 1.05 of the Foreign Trade Policy 2023 regarding transitional arrangement to the petitioners, is clearly not justified, in absence of any reasons in that regard, forthcoming from the respondents, specifically in view of the fact, that it is not disputed that the FTP 2023, is applicable to the petitioners. We therefore, hold and declare, that the impugned notification, dated 20/07/2023, insofar as it denies the benefit of the transitional arrangement as contained in para-1.05 of the FTP 2023, is bad-in-law and the benefit of this transitional arrangement would be available to the petitioners, in case the requirements, as indicated in clause (b) therein are complied by the petitioners. The petition is accordingly allowed in the above terms and to the above extent. Rule is made absolute in the above terms. Thus, there shall be no order as to costs.
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2024 (5) TMI 834 - CESTAT ALLAHABAD
Smuggling - seizure of foreign origin gold bars - Confiscation - Penalty - No document regarding sale purchase/transportation - Violation of the provisions of Section 7 (1) (c), Section 11, Section 46 of the Act, read with the Section 123 - burden or onus to establish the smuggled nature of gold - HELD THAT:- We find that the impugned gold intercepted, initially taken possession by the officer of GRP and then handed over to Customs. Admittedly, the gold did not have any tell-tale foreign marking and it was merely accused that the markings were removed to hoodwink investigation. The place of seizure is not in Customs area. Hon’ble Supreme Court in the case of Gian Chand & Ors 2013 (7) TMI 1155 - SUPREME COURT, wherein in case of seizure by the Police and thereafter the possession was shifted to the Customs Officer, held that the pre-requisite of seizure is not satisfied.
Accordingly, it is held that the circumstances as required under the Customs Act are not satisfied and consequentially the whole burden or onus to establish the smuggled nature of gold is on the Revenue. In addition to the above, fact remains that the gold did not have any foreign marking; Department under established that the same has been smuggled. The situation would certainly create reasons to believe that the impugned gold could be smuggled one, necessitated further prove. It does not constitute reasonable belief to seize the gold u/s 123 of the Act.
Thus, we do not find any reasons to interfere with the impugned Order-in-Appeal passed by the learned Commissioner (Appeals) and accordingly, the same is sustained. The appeals filed by the Department are thus dismissed.
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2024 (5) TMI 818 - CESTAT HYDERABAD
Valuation of export goods - Iron Ore Fines - transaction value - FOB price - Export duty - contemporaneous exports - corroborative evidence - HELD THAT:- Only when the Revenue doubts the transaction value and then follows the Valuation Rules sequentially before adopting the contemporaneous value, we can take the view that Department has the correct approach. In this case, such a situation has not arisen.
The Learned AR relies on the case law Obulapuram Mining Company Pvt Ltd., Vs CCCE & ST, Guntur 2018 (10) TMI 223 - CESTAT HYDERABAD also goes into these aspects. In that case, the Tribunal has held that after rejecting the value under Rule 8 the Adjudicating Authority is required to go through the Rules 4 to 6 in a sequential manner which was not done and hence the matter was remanded.
On the other hand, in this present case, the Adjudicating Authority has not rejected the transaction value and infact has taken the view that it has correctly reflected as per the documentary evidence placed. The Department was not agitated by the findings of the Adjudicating Authority and no further Appeal was filed by the Revenue. Hence the issue of transaction value being correct has reached finality.
Thus, we allow the appeal with consequential reliefs, if any, as per law.
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2024 (5) TMI 817 - ALLAHABAD HIGH COURT
Application For grant of Bail - offence punishable under Sections 135 - smuggling - cigarettes of foreign origin - HELD THAT:- Considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned counsel for the Customs that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
In case of breach of any of the conditions, it shall be a ground for cancellation of bail.
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2024 (5) TMI 812 - CESTAT BANGALORE
Detention of imported item - restricted goods - import of Multi-Function Devices (Digital Photocopiers and Printers) - violation of the Foreign Trade Policy, 2015-2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules - Absolute Confiscation - Penalty - HELD THAT:- We find that the issue is no more res-integra. The issue regarding confiscation of used Digital Multifunctional machine was considered by various authorities including the Hon’ble Supreme Court in the matter of Commissioner of Customs Vs. M/s Atul Automation Pvt. Ltd. 2019 (1) TMI 1324 - SUPREME COURT and Digital Express 2020 (10) TMI 184 - KARNATAKA HIGH COURT.
In the absence of any evidence regarding margin of profit, it is settled that, such goods can be allowed to be redeemed on payment of redemption fine of 10% of enhanced value and penalty of 15% of the enhanced value. Thus, there is no infirmity in the order of allowing release of goods subject to payment of fine and penalty as held by Appellate authority.
It was not the case of Commissioner (appeals) that goods in the case were not liable for confiscation, since they are imported in violations of various non-tariff provisions of Customs Act and other Statutory provisions.
Thus, appeals are partially allowed and upheld the order of confiscation. However adjudicating authority is directed to release the goods imported under Bill of Entry No. 3626892 dated 16.10.2017 to respondent on payment of appropriate Customs duty on enhanced value and on payment of redemption fine of Rs. 3,70,000/- and penalty of Rs. 1,85,000/-. Similarly, adjudicating authority is directed to release the goods imported under Bill of Entry No. 3504084 dated 05.10.2017 to respondent on payment of appropriate Customs duty on enhanced value and on payment of redemption fine of Rs. 3,00,000/- and penalty of Rs. 1,50,000/-.
In the result the appeals are allowed partially subject to the above conditions.
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2024 (5) TMI 806 - GUJARAT HIGH COURT
Implementation of the Resolution Plan and change in management and control - demand for period prior to the approval of the Resolution Plan by the NCLT - HELD THAT:- It was submitted that similar facts were recorded by this Court vide order dated 25th August 2022 passed in R/Tax Appeal No.32 of 2019, holding that the said R/Tax Appeal No.32 of 2019 is required to be disposed of as having become infructuous and abated with regard to any liability of any nature whatsoever having extinguished in view of the implementation of the Resolution Plan and change in management and control of the assessee in view of the provisions of Sections 31 and 32A of the IBC as per the decision of the Hon’ble Apex Court referred to therein.
Applying the ratio laid down in the case of Ghanashyam Mishra and Sons v. Edelweiss Asset Reconstruction 2021 (4) TMI 613 - SUPREME COURT, as the facts are identical, these Tax Appeals are disposed of as abated and the proposed questions are, accordingly, not answered.
In view of disposal of the Tax Appeals, Civil Applications would not survive and are, accordingly, disposed of.
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2024 (5) TMI 801 - CESTAT HYDERABAD
Cancellation of warehouse licenses - Penalty u/s 117 - fake insurance policies and port allotment letters - violations of Rules made - appellant submits that there is no provision for submission of NOC from the Port; there was a mistake on the part of the employee of the appellant in submitting not genuine/ fake insurance policies; genuine insurance policies were available for license - HELD THAT:- The appellants are alleged to have submitted fake insurance policies in respect of some licenses; though, the appellants argue that the submissions of licenses within the renewal period was not required and at best can be termed as superfluous and the same would not have any bearing on the licenses; it is evident that the management of the appellant were not aware of the fact of submission of such fake licenses which was done by an employee. I find that this will not absolve the appellant of the commission of the offence, if any. There is no mention of any criminal complaint was registered against the employees of the appellant and if so, what was the outcome of the same. Though, the same is not relevant to see the veracity of the licenses, it could throw light on the mala fides of the appellant, if any.
Revocation of licenses - Revenue is free to take action against the licenses which are obtained by fraud or mis-representation, such an action cannot be excessive and needs to be commensurate to the commission of offence, more so, looking into the fact that the Adjudicating Authority has allowed continuation of warehousing operations for a period of three months to enable the clearance of cargo. It is also seen that the Adjudicating Authority categorically holds that the appellants have paid the applicable dues to the Vishakhapatnam Port Authorities in respect of all the warehouses which was not disproved in the investigation.
This gives an indication that the Adjudicating Authority had an idea at the back of his mind that the license can be continued notwithstanding the submission of fake/ nongenuine insurance policies in respect of some licenses. Thus, it would have been in the fitness of things if the two licenses Nos.16/2020, 24/2018, for which genuine insurance policy was available, were not cancelled. Similarly, I find that the appellant’s argument that mere possession of fake NOCs has no bearing on the case as the NOCs were not even required to be submitted.
Penalty on the Director - Revenue has not brought out any violation committed by Shri Venugopal for being liable for penalty under Section 117 of the Customs Act, 1962. I am of the opinion that unless there is a specific provision in the Rules/ Regulations to impose penalty under such Rules/ Regulations, recourse cannot be taken to the general provisions unless provided for. Further, learned Adjudicating Authority merely avers that mens rea is not required for imposition of penalty ibid. The issue of mens rea comes when any of the violations have been highlighted. In the absence of the same, the imposition of penalty on Shri Venugopal under this Section is not legally sustainable.
Thus, Appeal is partly allowed by setting aside the cancellation of license and imposition of penalty on Shri M. Venugopal, Director of the appellant. Accordingly, Appeal stands allowed.
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2024 (5) TMI 794 - CESTAT AHMEDABAD
Determination of effective date and time of implementation of Notification No. 5/2012-Cus - Whether the appeal is liable to pay safeguard duty on electrical insulators of glass which is imposed by Notification No. 5/2012-Cus (Safeguard), or otherwise - HELD THAT:- It can be seen that various courts and Tribunal has taken a consistent view that the date of effect of Notification shall be from the date of publication of the Notification in the Official Gazette and not merely from the date of Notification. In the present case, it is admitted fact that the publication of the Notification was made on 24.02.2013 whereas the entry inward of the import goods was allowed on 24.12.2012, therefore on that date the Notification had not come into force, accordingly on the import in the present case, the safeguard duty under Notification No. 5/2012-Cus dated 20.12.2012 cannot be demanded. Accordingly, the impugned order is set aside and appeal is allowed. Since the entire duty demand is not sustainable as discussed above, penalty on the co-appellant M/s Velji P Sons which is consequential to the demand of duty will also not sustain. Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief, if any, as per law.
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2024 (5) TMI 754 - CESTAT KOLKATA
Seeking reduction in penalty u/s 112 - Improper importation of gold bars of foreign origin - confiscation - burden to prove - prohibited goods or not - Whether the seized gold was correctly confiscated? - HELD THAT:- In the case of Sunny KakkarI [2023 (2) TMI 243 - CESTAT NEW DELHI], this Tribunal found that the gold in question has been confiscated and the said fact had not been denied by the appellant. In this case also, the appellants have not disputed the absolute confiscation of the goods, therefore, relying on the said decision, we hold that penalties imposed on the appellant cannot be equated with the case of Gopal Shah [2016 (5) TMI 83 - CALCUTTA HIGH COURT].
We find that the penalties are imposable on the appellants but the same are on higher side, therefore we reduce the penalties imposed on the appellant to Rs.10, 00,000/- (Ten Lacs only) each.
Accordingly, the appeals filed by the appellants are disposed of.
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2024 (5) TMI 743 - CALCUTTA HIGH COURT
Entitlement to interest on the delayed refund of pre-deposit - Rate of interest - seizure of cash - Whether the Learned Tribunal is justified in law in not allowing the interest at the rate of 12 per cent per annum on the refund amount of pre-deposit? - HELD THAT:- It remains undisputed that the seized cash of Rs. 9,93,200/- was made pre-deposit by order of the CESTAT dated 22.04.2000 u/s 129E of the Customs Act, 1962. Admittedly, neither there was any provision nor any notification providing for rate of interest on delayed refund of pre-deposit. The pre-deposit made on 22.04.2000 was refunded to the appellant on 05.01.2006.
It is pursuant to the judgment of Hon’ble Supreme Court in ITC Limited. 2004 (12) TMI 90 - SUPREME COURT that the Central Board of Excise and Customs issued the circular dated 08.12.2004 allowing payment of interest on delayed refund, but this circular also does not provide rate of interest. Hon’ble Supreme Court in the case of ITC Limited, pursuant to which the aforesaid circular was issued by CBEC, directed for payment of interest @ 12% on delayed refund of pre deposit u/s 35F of the Central Excise Act, 1944, which is pari materia with the provision of Section 129E of the Customs Act.
The rate of interest on delayed refund of pre-deposit shall be governed by the law laid down by Hon'ble Supreme Court in ITC Limited (supra) as well as a coordinate Bench of this Court in Madura Coats Private Limited [2012 (7) TMI 512 - CALCUTTA HIGH COURT] till a statutory provision in the Act was enacted and a notification was issued thereunder providing for rate of interest on delayed refund of pre-deposit. With effect from the date on which the provision came in the statute, it shall hold the field and the rate of interest shall be governed by it. Since the period in question is prior to the notification providing for rate of interest on delayed refund of pre-deposit, issued under the Act, therefore, the case of the appellant shall be governed by the law laid down by the coordinate Bench of this Court in Madura Coats Private Limited (supra).
Thus, the appeal is allowed, the impugned order Shri Rajendra Kumar Jain v. Commissioner of Customs (Port), Kolkata - 2014 (2) TMI 167 - CESTAT KOLKATA passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata is hereby set aside and it is held that the appellant is entitled for payment of interest @ 12% on the delayed refund of the amount of pre-deposit, which shall be paid by the respondents to the appellant within one month from the date of production of a certified copy of this order. The substantial question of law is answered in negative i.e. in favour of the appellant and against the respondents.
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2024 (5) TMI 739 - CALCUTTA HIGH COURT
Jurisdiction of Preventive officer to initiate any proceeding including proceeding u/s 110 (1) - Show Cause Notice for seized goods - issuance of inventory/seizure - bags of areca nuts believed to be of foreign origin which had been detained - non-disclosure of the satisfaction - HELD THAT:- Since, the contention of the parties is with regard to the authority and jurisdiction of the Preventive Officer to assume jurisdiction over an area which falls with the said Airport, it would be relevant to consider the Notification dated 24th August, 2017 which has been issued in exercise of power conferred u/s 4 (1) of the said Act, in suppression of the previous notifications on the subject.
The very nature of making separate entries for the Port and Airport areas, makes it explicitly clear that sole jurisdiction has been conferred on the Principal Commissioner of Customs (Port), Kolkata and Principal Commissioner of Customs (Airport and Air Cargo Complex), Kolkata to decide all violations in respect of, inter alia, Netaji Subhash Chandra International Airport as identified in column 1 under serial No.10 read with column 3 of Table 2 of the aforesaid Notification. As such I am unable to accept the contention of Mr. Maiti that Commissioner of Customs (Preventive) enjoy concurrent jurisdiction with the Principal Commissioner of Customs (Port), Kolkata and Principal Commissioner of Customs (Airport and Air Cargo Complex), Kolkata.
Accordingly, the notice/order of detention dated 5th February, 2024, including the order of seizure cum inventory list dated 6th February, 2024, stand quashed. The respondent nos. 2 to 5 are directed to return the goods to the petitioner. The aforesaid order, however, shall not stand in the way of the respondent nos. 2 to 5 from initiating appropriate proceeding against the petitioner by appropriate authority, in accordance with law.
Accordingly, the writ petition is disposed of.
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