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Showing 61 to 80 of 38392 Records
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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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2024 (5) TMI 730 - CALCUTTA HIGH COURT
Seizure of gold of foreign origin, silver granules and Indian currency notes - confiscation u/s 111 (b),111 (d) and 121 - Penalty u/s 112 (a) and/or 112 (b) and 117 - Smuggling - Burden to prove on co-noticees - Sale proceeds of smuggled gold and silver - huge amount of cash of Indian currency - Reliance on the statement - Presumptions of innocence - Retracted confession - whether the respondent and other co-noticees were able to establish the stand taken by them that the gold was obtained by them by purchasing old gold jewellery - HELD THAT:- Though the respondent took a plea that the gold bars was made out of old gold jewellery purchased in cash it was a very faint plea which was raised by the respondent and the co-noticees. Assuming such a plea was required to be considered, the onus is on the respondent and the co-noticees to establish with documents that the gold which was seized was from and out of the old gold jewellery purchased by cash. This aspect of the matter was never established by the respondent and the co notices.
Therefore, the learned tribunal erroneously shifted the burden on the department stating that the same has not been denied. The question of denial will come only if the onus is discharged by the respondent and the co-noticees as required u/s 123 of the Act. Thus, without any document placed by the respondent and the co-noticees, the tribunal could not have come to the conclusion that the department did not establish the same by cogent evidence. This finding is absolutely perverse and contrary to the scheme of Section 123 of the Act.
The respondent and the other co-noticees would contend that the purity of the gold not been 99.9%, it is established that it is not smuggled gold. Such conclusion cannot be arrived at in the absence of any proof to show that the gold was from and out of the gold jewellery which was purchased for cash. That apart, merely because the statement is said to have been retracted, it cannot be regarded as involuntary or unlawfully obtained.
In this regard, the revenue has rightly placed reliance on the decision of the Hon’ble Supreme Court in Vinod Solanki Versus Union of India and Others 2008 (12) TMI 31 - SUPREME COURT. If the learned tribunal was of the view that the statement recorded under Section 108 of the Act was not admissible on account of the retraction, that by itself cannot render the statement as involuntary. It is the duty casts upon the court to examine the correctness of the validity of the retraction, the point of time at which the retraction was made whether the retraction was consistent and whether it was merely a ruse. These aspects have not been examined by the learned tribunal resulting in perversity. The mobile phones which were recovered and the call details record which were obtained have all been elaborately discussed by the adjudicating authority. This aspect has not been dealt with by the learned tribunal.
The seizure cannot be denied by the respondent since the seizure list was drawn in the presence of two independent witnesses and the DRI officers and copy of which was handed over to the respondent and the other two co-noticees. Further we find there was nothing on record before the learned tribunal to hold that mere melting of old gold jewellery will yield gold of less purity and considering the quantity which has been seized, it can never be the case of the respondent or the other two co-noticees that they have done the melting process at their residence as such melting requires expertise and also use of several chemicals. Thus, the observations of the tribunal have to be held to be without any basis or foundational facts or documents.
Thus, we find that the order passed by the tribunal suffers from perversity and calls for interference.
In the result, the appeal is allowed and the order passed by the learned tribunal is set aside and the order passed by the adjudicating authority as affirmed by the appellate authority is restored. The substantial questions of law are answered in favour of the revenue.
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2024 (5) TMI 684 - SUPREME COURT
Levy of Penalty while waiver of customs duty - While the rehabilitation scheme sanctioned by BIFR provided for a waiver of customs duty and interest, the penalty was specifically imposed under Section 11(2) of the FT Act for non-fulfillment of export obligations - Import of capital equipment at a concessional rate - demand notice - HELD THAT:- The Order-in-Original records that Karnataka Biotics did not comply with the export obligation under the license granted under the FT Act. Therefore, the penalty was imposed specifically u/s 11(2). Thus, the waiver granted under the rehabilitation scheme is of no assistance to the appellant as it was only of the customs duty.
There is no allegation made by the respondents against the appellant's predecessor of making or attempting to make any export or import in contravention of the FT Act, any Rules or orders made thereunder, or the foreign trade policy. Under the license granted to the appellant’s predecessor, there was an obligation to export finished goods by earning foreign exchange equivalent to USD 2,59,948 within a period of five years. The allegation is of the failure to abide by the obligation to export the finished goods within a period of five years. So, there is no allegation of attempting to make an export or import, which is covered by Section 11 (2). Section 11 (2) is a penal provision. It must be strictly construed.
Thus, the demand for penalty cannot be sustained. Hence, we set aside the impugned judgments and orders of the learned Single Judge and Division Bench. We also set aside the Order-in-Original by which the impugned penalty was imposed.
Accordingly, the appeal is allowed with no orders as to costs.
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2024 (5) TMI 683 - CESTAT KOLKATA
Maintainability of the impugned order - Anti-Dumping Duty - Undervaluation of imported Flax yarn from sister companies / concerns - re-determined assessable value - Demand of duty - Penalty - Liability to pay differential Anti-Dumping Duty in respect of the 7 Bills-of-Entry - imposition of ADD - genuineness of the invoices - Whether the values declared by the appellants in all the 26 Bills-of-Entry is liable to be rejected and the values re-determined by the ld. adjudicating authority in the impugned order based on the price available of similar goods in the NIDB data is acceptable in the facts and circumstances of the case or not -
HELD THAT:- We do not agree with the submission of the Ld. DR that adjudication of the case by an officer senior to proper officer would amount to granting of deemed extension. We observe that the proviso to Section 28(9) clearly stipulates that in case the adjudication is not done within the time limit stipulated, then the Officer senior in rank to the Proper Officer must grant extension in such cases. Even if an Officer senior to the Proper Officer adjudicates the case, a formal extension must be obtained as mandated in Section 28(9) of the Act, which has not been done in the instant case.
Accordingly, we find merit in the contention of the appellants that the impugned order is liable to be set aside on this ground alone.
Differential Anti-Dumping Duty - Since the letter dated 29.03.2019 contains information on invoices issued in the months of September 2019 and November 2019, we agree with the contention raised by the appellants that there is suspicion about the genuineness and veracity of the said letter. Accordingly, we hold that the demand cannot be raised on the basis of the letter dated 29.03.2019 or the documents said to have been attached along with the said letter.
When there is a confirmation about the genuineness of invoices from the representative of the manufacturer, there is no reason to reject the same. Accordingly, we hold that the invoices filed by the appellant along with the 5 Bills-of-Entry are genuine. Hence, the ADD paid by them in respect of the 5 Bills-of-Entry at the rate of 0.50 USD per kg. is in order.
Thus, we hold that the differential ADD confirmed in respect of the 5 Bills-of-Entry in the impugned order is not sustainable.
In respect of the remaining 2 Bills-of-Entry - The demand, if any, for the short-paid ADD could have been issued within a period of one year from the date of payment of ADD. However, in this case, the Notice has been issued on 22.11.2021 which is much beyond the normal period of limitation. As no suppression of fact with intent to evade payment of duty exists in this case, we hold that the demand of ADD by invoking the extended period of limitation is not sustainable.
Accordingly, we hold that the ADD demanded in respect of the 2 Bills-of-Entry is also not sustainable, on the ground of limitation. Thus, we hold that the differential ADD confirmed in the impugned order in respect of all the 7 Bills of Entry are not sustainable and accordingly, we set aside the same. Since the demand of differential ADD is not sustainable, the question of demanding interest and imposing penalty on the same does not arise.
Whether the values declared by the appellants in all the 26 Bills-of-Entry is liable to be rejected and the values re-determined by the ld. adjudicating authority in the impugned order based on the price available of similar goods in the NIDB data is acceptable in the facts and circumstances of the case or not - We observe that the said email is dated 20th May, 2019 and the details of the two invoices pertain to the dates 26th July and 27th September, 2019 are furnished therein. This clearly establish that the e-mail was not sent on 20th May. The appellants submit that they asked for the IP address from where the e-mail has been sent, but it was not furnished. Thus, we observe that there is merit in the contention of the appellants that the emails are fabricated. Accordingly, we hold that the attachments therein cannot be relied upon to reject the value declared by the appellants in the Bills-of-Entry.
Accordingly, we hold that the allegation of undervaluation in respect of all the 26 Bills of Entry are not established. Hence, the demand of differential customs duty confirmed in the impugned order on account of undervaluation is not sustainable and hence we set aside the same.
There is no evidence available on the record to reject the genuineness of the invoices submitted by the appellants. The value declared by the importers in other Bills-of-Entry are not comparable as the quantity of goods or quality of goods imported cannot be ascertained to conclude as to whether the comparable import qualifies as identical goods or not.
Accordingly, we hold that the transaction value declared by other importers cannot be treated as the correct transaction value in respect of the goods imported by the appellants herein. The transaction value declared by the appellants cannot be rejected on the basis of a mere allegation by a third-party on the ground that the format of the invoice is not similar to theirs or other invoices issued by the manufacturer. Hence, we hold that the transaction value declared by the appellants in respect of the 26 Bills-of-Entry cannot be rejected and the assessable value re-determined by the Department in the impugned order is not based on any documentary evidence.
Thus, we hold that the assessable values declared by the appellants in the 26 Bills of Entry cannot be rejected. Accordingly, we hold that the differential duty confirmed on the basis of the re-determined assessable value is not sustainable.
Penalty - Since the demand of ADD and Differential customs duty is not sustainable, the question of demanding interest or imposing penalty on the appellant importers does not arise.
Penalty on the common Director - We observe that his involvement in the alleged offence was established on the basis of the statement given by him on 9th July, 2019. We observe that he has retracted his statement dated 9th July by letter dated 10th July 2019 which was not responded to by the authorities concerned. As the department has not responded to the retraction made by Mr. Aditya Sarda on 10th July 2019 addressed to the Director General of DRI, Delhi, the purported statement dated 9th July 2019 cannot be relied upon to penalize him. Further, as discussed, the alleged offence of short payment of ADD and short payment of customs duty on account of undervaluation has not been established. Accordingly, we hold that the penalty imposed on the Director Shri. Aditya Sarda is not sustainable.
In the result, the appeals filed by all the four appellants are allowed, with consequential relief, if any, as per law.
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2024 (5) TMI 632 - CESTAT HYDERABAD
Levy of Social Welfare Surcharge (SWS) where basic Customs duty (BCD) is Nil - Exemption Notification No. 24/2015-Cus - appellants submitted that since EDI system was not allowing them to clear the goods without the payment of SWS they had to pay 10% of Basic Customs Duty as SWS to get their goods cleared - Revenue submitted that BCD is not nil or exempted but is payable and is debited in the MEIS scrip - HELD THAT:- We find that this issue was considered in very detailed manner in the case of Emami Agro Tech Ltd., Vs CC, Customs [2024 (3) TMI 86 - CESTAT HYDERABAD] The conditions 8 and 9 of Notification No. 24/2015 being cited, are also considered in this decision.
Therefore, we find that the decisions in La Tim Metal & Industries Ltd. [2022 (11) TMI 1099 - BOMBAY HIGH COURT] are squarely applicable to the facts of the present case. So far as the issued raised by the AR is concerned, the same have been addressed in detail vide this Bench’s decision in the case of Emami Agro Tech Ltd [2024 (3) TMI 86 - CESTAT HYDERABAD] For the sake of brevity, they are not being repeated here.
Accordingly, we set aside the impugned order and allow the appeal with consequential benefits, including recredit/refund of SWS paid along with the interest as per law.
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2024 (5) TMI 631 - CESTAT AHMEDABAD
Classification of ‘PVC resin Impact Modifier ‘Kane ACE B 22’ - change of classification from 3902 to 3906 - Interpretation of sub-heading note - exemption from basic custom duty under notification 46/2011-Cus - HELD THAT:- From the record, it is apparent that for choosing the heading within the chapter, the chapter note 4 is relevant and for choosing sub-heading within heading, has to be done in terms of sub-heading notes. From the composition of material mentioned in para 2 above, it is seen that the Butadiene content is almost 50% whereas Methyl Methylacrylate content is 15-20% only. Thus in terms of Chapter note 4, the goods will fall under the heading relevant to Butadiene which is heading 3902. Once the classification is decided under 3902, the sub heading notes becomes relevant for classification within the heading 3902. In these circumstances, question of change of classification from 3902 to 3906 on the strength of sub-heading note does not arise.
Thus, we do not find any merit in the impugned order, the same is set aside and appeals are allowed.
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2024 (5) TMI 630 - CESTAT AHMEDABAD
Penalty u/s 114(i) on CHA - Export of "Carbon Black" - Obligation of CHA for the unauthorized loading of the container without LEO (Let Export Order) - breach of prohibition laid down u/s 34, 40 read with 51 of the Customs Act, 1962 - HELD THAT:- Considered, it is well settled including by the decision of Hon’ble Gujarat High Court in Anchor Logistics v/s. C.C.[2013 (6) TMI 589 - GUJARAT HIGH COURT] that invoking section 114 and its various clauses prior knowledge about the offending goods, as well as mensrea is required. Penalty, therefore cannot be imposed.
Appeal is therefore liable to be accepted. Same is allowed with consequential relief.
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2024 (5) TMI 629 - CESTAT HYDERABAD
Valuation of Export of Iron Ore fines - payment of customs duty under protest - contemporaneous export - HELD THAT:- We find that the transaction value has not been rejected nor its correctness doubted, as is evident from the orders of the court below. We further find that resorting to the contemporaneous prices is vague and further, there is no consideration as to the quantity, etc. We also find that the copy of such material with regard to contemporaneous export prices was not made available to the assessee, which has been relied upon for making the final assessment. In this view of the matter, we find that reliance on such contemporaneous export data is hit by the ruling of Hon’ble Supreme Court in the case of Dhakeswari Cotton Mills vs Commissioner of Income Tax [1954 (10) TMI 12 - SUPREME COURT].
Accordingly , we hold that such contemporaneous prices cannot be adopted for the purpose of finalisation of assessment. Accordingly , we set aside the impugned order and remand the matter to the Original Adjudicating Authority, who is directed to hear the appellant and pass a reasoned order in accordance with law.
Accordingly , we allow this appeal by way of remand.
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2024 (5) TMI 579 - DELHI HIGH COURT
Maintainability of Appeal - monetary limit for appeal to the High Court - Notification/Instructions amending the monetary limit - Redemption of fine u/s 125 - Penalty - HELD THAT:- By Instructions dated 20.10.2010, the Central Board of Indirect Taxes had fixed a monetary limit below which appeals were not to be filed by the department before the Tribunal, High Court or the Supreme Court, as the case may be. The monetary limit has undergone increase from time to time. The latest Instructions dated 02.11.2023 prescribes a monetary limit of Rs. 1 crore for appeals to the High Court. The Instructions further state that process has to be initiated for withdrawal of pending cases which are below the monetary limit.
Thus, the issue involved is with regard to redemption fine of Rs. 40 lakhs and penalty of Rs. 20 lakhs which cumulatively is below the threshold limit. Consequently, we are of the view that the appeal being below the monetary limit as prescribed by the Instructions is not maintainable and is accordingly dismissed on the ground of low tax effect.
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2024 (5) TMI 578 - DELHI HIGH COURT
Condonation Of delay in filing appeals - service through publication - Proper officer - Jurisdiction to issue Show Cause Notice - HELD THAT:- The Coordinate Bench of this court has disposed of several appeals, finding that the orders passed by CESTAT to the aforesaid effect were not justified and further directing the CESTAT to decide the appeals on merit, including the question of jurisdiction, uninfluenced by the decision of this case of Mangali Impex Ltd. [2016 (5) TMI 225 - DELHI HIGH COURT] as the operation in the said order has been stayed by the Supreme Court in [2016 (8) TMI 1181 - SC ORDER].
The delay in filing these appeals are condoned. Thus, we consider it apposite to also dispose of the appeals in similar terms. The impugned orders are set aside. The appeals are restored before the CESTAT.
The appeals are disposed of in the aforesaid terms.
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2024 (5) TMI 577 - CESTAT ALLAHABAD
Refund of SAD - Notification No.102 of 2007 Customs - Unjust enrichment - HELD THAT:- No dispute about the fact that these refund claims have been filed fulfilling the conditions of the said notification and the conditions as prescribed by the above circular. The Notification and circular lay down the manner in which the refund claims are to be examined and allowed. It is provided that a certificate from an independent chartered accountant shall suffice to establish that the burden of SAD has not been passed on and the refund claim shall not be hit by the principles of unjust enrichment. Thus we find that adjudicating authority has while sanctioning the refund have followed the guidelines issued by board in this regard.
As the issue is settled in favour of the respondent by various decisions of the Tribunal we do not find any merit in this appeal. However, before closing we would like to point out the decision in case of Commissioner of Central Excise, Madras V/s Addison & Company Ltd. [2016 (8) TMI 1071 - SUPREME COURT] is not in respect of the case where the refund of SAD has been claimed in terms of the Notification No.102/2007 which provides for the refund subject to fulfillment of this condition. In such cases payment of VAT is the only condition for refund to the dealer who has paid the SAD at the rate of 4% and that burden of the same has not been passed on to the buyer is certified by the independent chartered accountant.
Appeal filed by the Revenue is dismissed.
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2024 (5) TMI 576 - CESTAT KOLKATA
Denial of benefit of Notification No.99/2011-CUS - Importation of the goods from Bangladesh - Edible oils - Contemporaneous imports - duty demand - Confiscation - Penalty - Mis-using the provisions of SAFTA (South Asian Free Trade Agreement) with an intent to illegitimately claim Customs duty exemption - syndicate of rouge importing firm - connivance with the exporter suppliers - HELD THAT:- The appellant is an importer and having certain correspondence with the exporter for import of the said goods and nothing incriminating has been mentioned in the e-mails that the supplier shall inflate the value of the imported goods and there is no allegation against the appellant that they have received any kickback in other kinds from the supplier for inflating the value.
It has been alleged that the appellant has exported the machine to the supplier for manufacturing of the goods in question for processing of the goods in question. We find that there is no bar in SAFTA that the appellant cannot export such machinery to a manufacturer located in Bangladesh for manufacturing of the goods in question. Therefore, on the basis of that it cannot be alleged that the appellant has violated any provisions of SAFTA under the Customs Act, 1962.
It is not the case of the Revenue that the exporter in Bangladesh have not processed the goods and cleared as such to the appellant. It is a fact on record that the supplier in Bangladesh has imported crude oil form Malayasia/Indonesia and processed the same and exported to the appellant RBD Refined Palm Olein, therefore, it cannot be alleged that the supplier/exporter has not processed the goods.
We further take note of the fact that it is not the case of the Revenue that the certificate issued by the exporter is not genuine or correct and the verification report given by Deputy Director, EPB, Bangladesh is not correct. The certificate of country of origin and the verification report cannot be doubted unless and until, the same is proved fake by the Revenue. No such allegation in the show cause notice that the certificate of country of origin provided by the exporter and the verification report are fake, in that circumstances, the benefit of exemption Notification cannot be denied to the appellant.
Therefore, we hold that the appellant is entitled for the benefit of exemption Notification No.99/2011-CUS dated 09.11.2011, consequently, the impugned proceedings are not sustainable against the appellant. Accordingly, the same are set aside.
No penalty is imposable on the appellants. Accordingly, we set aside the impugned order and allow all the appeals filed by the appellants with consequential relief.
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2024 (5) TMI 575 - CESTAT AHMEDABAD
Mis-declaration of quantity - Assorted spectacle - Demand of duty - Confiscation of goods - Penalties u/s 112A and 114AA - expensive brands with pricing of finish glasses - HELD THAT:- As against declared quantity of 1056 frames, the actual quantity found was 1075 frames. It is also a fact that the brand imported by the appellant are OSIRIS, ECO and EPI which are very expensive brands with pricing of finish glasses ranging upwards of 180 dollars per piece. In these circumstances, the declared price of USD 1.25 per piece is obviously incorrect. The order in original clearly records that no contemporaneous import data of identical or similar goods was available and therefore adoption of rule 4 or 5 of the customs valuation rules was not possible. The order also records that the show cause notice proposes the deductive value method in terms of rule 7 of the said rules. However, there was issue with respect to said method as well as the market price of complete glasses were available but separate prices of mere frames were not available. In those circumstances, the revenue took assistance of chartered engineer. The appellant was kept in loop after appointment of chartered engineer and the chartered engineer after due study came to conclusion that the value of goods was Rs.11,43,420/-. Thus, there was a mis-declaration of quantity and therefore goods are as it is liable to confiscation under 111 (m) and of the Customs Act, 1962. We find that in this circumstances the imposition of redemption fine of Rs. 1,00,000/- and penalty u/s 112 A of Rs.75,000/- and under 114 AA of Rs. 1,00,00/- is not excessive or unreasonable.
Thus, we do not find any merit in the appeal the same is dismissed.
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2024 (5) TMI 574 - CESTAT MUMBAI
Seizure - Burden of proof - Inviolability of section 123 - ‘reasonable belief’ - Onus for proving the goods to be not smuggled - Seizure outside the ‘customs area’ within the territorial frontiers of the country places - Seeking redemption of confiscated goods - HELD THAT:- In appellate proceedings of M/s Vihari Jewels, Ms Vihari Rajesh Sheth and Shri Jiten Sheth, the entirety of burden, as proposed in the show cause notice, was decided, in relation to the very same goods among others, without reference to the status of the appellant herein vis-à-vis the impugned goods. The consequences of the approval of the order of the original authority, which had kept the appellant herein out of its ken and as upheld in entirety against those persons, was set aside by the Tribunal in re Vihari Jewels. Despite that, and notwithstanding the decision of the Tribunal having been rendered before finalisation of the order impugned here, the first appellate authority proceeded to give a different treatment to the goods already impugned before the Tribunal. The impugned order is, thus, in ignorance of essential facts that impinge upon the options available to the first appellate authority at the time deciding the appeal impugned now.
Thus, it would be appropriate to set aside the impugned order and restore the dispute to the first appellate authority to decide the appeal afresh in the light of law – as legislated and judicially determined – after affording fresh opportunity to the appellant herein to make written and oral submissions. The appeal is, thus, disposed off by remand to Commissioner of Customs (Appeals), Mumbai.
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2024 (5) TMI 573 - CESTAT MUMBAI
Classification of goods - Valuation - liability to pay duty - Import of ‘non-alloy steel slabs-seconds and defectives’ - confiscation of ‘alloy steel’ - Penalty - dissonance with description of goods as ‘slabs’, classifiable against tariff item 7207 1990 - HELD THAT:- According to Learned Counsel for appellant, the sole relief sought for in appeal of jurisdictional Commissioner of Customs is levy of differential duty for goods having been, as set out in impugned order, mis-declared, at least, as far as presence of ‘alloy’ is concerned but that, notwithstanding the vigorous defence by Learned AR, the claim for ₹ 22,52,521 was below the threshold prescribed for pursuit of litigation by the Central Government in instruction dated 2nd November 2023 of CBIC from file of Judicial Cell to subordinate offices. Learned AR urged us to disregard this ground as one of the exceptions is an aspect of the appeal.
Though the order impugned did take note of misdeclaration of ‘alloy steel’ articles as those of ‘non-alloy steel’, the appeal of Revenue refers to descriptional deviation solely to reinstate the upward valuation that had been resorted to by the original authority. Thus, we find that the exception in the instructions supra does not guide the handling of this appeal. The appeal of Commissioner of Customs is dismissed for not being in compliance with threshold qualification in the litigation policy of the Central Government.
The finding on confiscability is limited to ‘alloy steel’ articles lying uncleared. That these were liable to confiscation is based on test report of sample which was extrapolated to the entirety of the consignment. The extent of misdeclaration has, thus, not been quantified. It is conceded in the impugned order that the goods are only ‘technically’ offending. It is also clear that the extent of alleged misdeclaration is limited and, with no consequence to value or rate of duty, hardly qualifies to be of relevance in disposal of the declaration u/s 46 of Customs Act, 1962. We see no reason to sustain the confiscation.
Appeal of importer-appellant is allowed. Appeal of Revenue is dismissed.
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2024 (5) TMI 572 - CESTAT MUMBAI
Mis-declaration of the retail Sale Price (RSP) - Evasion of payment of Additional Duty of Customs (CVD) - demand - redemption fine - confiscation - Penalty - Imports goods as “Dove AP Original Whitening, Dove AP Silk Dry Whitening, Dove AP GF Cucumber and Dove AP Grapefruit Anti-perspirants” - Unintentional mistake in declaring the lower RSP in the B/E - HELD THAT:- Though, the appellant’s submission is convincing that there was unintentional mistake in declaring the lower RSP in the B/E, but the statutory provisions have been designed in the way that there is no escape route to avoid confiscation of goods, which do not correspond in respect of the value declared in the Bill of Entry. When the goods are liable for confiscation, imposition of redemption fine and penalty u/s 125 ibid and Section 112(a) ibid respectively are automatic and thus, we do not find any infirmity in the orders passed by the lower authorities in ordering for confirmation of the redemption fine and penalties on the appellant.
The Hon’ble Supreme Court, in the case of Pine Chemical Suppliers [1992 (9) TMI 111 - SUPREME COURT], by upholding the order passed by the Tribunal, has held that mis-declaration of the goods imported by the appellants rendered the same liable to confiscation u/s 111(m) ibid and attracted Section 112 ibid for imposition of penalty for improper importation thereof.
Thus, we do not find any merits in the appeal filed by the appellant and accordingly, the same is dismissed.
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