cestat ruling (customs) -...

CESTAT RULING (CUSTOMS)

2016-TIOL-348-CESTAT -AHM

Rawmin Mining And Industries Pvt Ltd Vs CC (Dated: January 08, 2016)

Cus - Refund - Whether assessee is eligible for refund of duty claimed to have been paid in excess on basis of Dry Metric Tons (DMT) of goods, though in concerned shipping bills it is not mentioned whether quantity exported is in DMT or Wet Metric Tons (WMT) - Assessee had cleared goods by filing shipping bills pertaining to period from March 2013 to January 2014 - They were covered under Self Assessment Scheme and had filed shipping bills, assessed it and paid duty mentioned in shipping bills, on their own - They also did not claim provisional assessment, nor had they specifically brought it to notice of Customs Officers that as per contract terms goods are to be valued on DMT quantity basis - Shipping bill was assessed finally on basis of information declared by assessee themselves and since assessments had become final, assessee's claim for refund on basis of quantity of goods as per DMT is not sustainable - No reason to interfere with impugned orders: CESTAT

2016-TIOL-347-CESTAT -DEL

Jmd Oils Pvt Ltd Vs CC (Dated: January 14, 2016)

Cus - General evidence in form of statement of indenting agents indicating landed price of fatty acids is not relatable to the import made by the appellant - No admission that the goods imported by the appellant were invoiced on the lower side - no evidence recording any extra payment to the supplier - no investigations made by the Revenue at the suppliers' end - therefore, no cause for enhancement of AV - Appeals allowed: CESTAT by Majority [para 35, 36]

Also see analysis of the order

2016-TIOL-339-CESTAT -MUM

Vikash Globalone Ltd Vs CC (Dated: December 22, 2015) Cus - Refund - In the first round of proceedings, Tribunal while remanding matter directing adjudicating authority to consider bar of unjust enrichment - Adjudicating authority asking appellant to submit evidence of non-availment of CENVAT credit and evidence of non-passing of duty burden to the buyers - appellant submitting a Xerox copy of sales invoice on which a stamp was put stating ‘Not for CENVAT/no goods for input tax credit' and also a CA certificate stating that appellant had not passed on the burden of additional duty to customers - Refund claim rejected on the ground that evidence of non-availment of CENVAT credit has not been submitted and that refund claim filed is incomplete - Commissioner (A) upholding order, so appeal to CESTAT. Held: B/E are dated 26.09.2005 and 08.08.2005 and if amount of duty paid at that time was not recovered then same should appear in Balance sheet of 2005-06 as receivable but which is not the case - further, invoice produced by appellant shows that the appellant had indeed passed on the burden of duty to the buyers - appellant is a registered dealer and the invoice issued by him clearly shows that the amount of duty is being passed on - not only has he taken credit but also passed on the same to the buyers - in this view of the matter, no refund can be sanctioned to the appellant - appeal dismissed: CESTAT [para 4, 5]

2016-TIOL-335-CESTAT -MAD

Em Pee Bee International Vs CC (Dated: September 29, 2015) Customs - Appeal - Restoration Application - Appeal dismissed for non-prosecution - Appellant submits that on the date when appeal was dismissed there was representation for adjournment by Junior counsel on the ground that the counsel on record was on pilgrimage and the non-appearance on that date was neither willful nor wanton and pleads for restoration of their appeal - In view of the precedent which held that CESTAT could not dismiss appeal for absence of appellant but to decide the appeal on merits by relying on Rule 20 of CESTAT (Procedure) Rules, 1982, appeals are restored to its original number - Application for restoration of appeal is allowed. (paras 2, 3)


CC Vs Birla Furukawa Fiber Optics Ltd (Dated: December 22, 2015) Cus - Refund of SAD - A right given under any notification cannot be taken away by issue of a Circular - There is no condition in Notification 102/2007-Cus that SAD should initially be paid in cash - Commissioner (A) has rightly allowed the re-credit - Order upheld and appeals filed by Revenue are dismissed: CESTAT [para 7]


Radhy Shyam Ratanlal Vs CC (Dated: December 23, 2015) Cus – Import of Desiccated coconut (fine grade) from Sri Lanka at a declared value of US$ 600 PMT CIF – AC rejecting the same and enhancing it to US$ 815 PMT CIF which order upheld by Commissioner (A) – appeal to CESTAT.

Held: Appellant has produced evidence of contemporaneous import at the same rate at which they had declared in their Bills of Entry – Rule 5(3) of Customs Valuation Rules, 1988 clearly prescribes that when there are more than one contemporaneous imports then the lower of such value can be used – Revenue has not produced any evidence to show that the contemporaneous imports shown by the appellant have been challenged by the Revenue in any way – so called intelligence received in respect of such import has not been shared with the appellant a nd, therefore, cannot be used in any manner against the appellant – Order set aside and appeal allowed: CESTAT [para 5]


Imran Ahmed Shabbir Ahmed Vs CC (Dated: December 22, 2015) Cus - Seizure of Indian currency - Appellant is a repeat offender and two cases have already been booked against him - appellant has also repeatedly changed his stand regarding ownership of currency - so also, proceedings in respect of Sabir who had apparently given cash to appellant and Hazi Shaikh to whom the money was to be delivered in Dubai are still in abeyance - it is improper to allow redemption of seized currency - Penalty correctly imposed - Appeal dismissed: CESTAT [para 4, 5, 6]



Air India Ltd Vs CC (Dated: December 22,2015)

Cus - Appellant exported certain items under free shipping bills and later requested for conversion of these two free shipping bills to drawback shipping bills by claiming that the goods exported under these two free shipping bills were the same goods which were imported by them - Asstt. Commr. rejecting request u/s 149 & s. 154 of CA, 1962 and by relying on Board Circular 4/2004 - Commissioner (A) upholding the rejection, therefore, appellant before CESTAT - Appellant submitting that the Circular has been modified by Circular 36/2010 and which acknowledges the conversion on a case to case basis on merits upon satisfaction by the Commissioner of Customs. He ld: Appeal is partially allowed insofar as it is clarified that Revenue has the power for conversion of free shipping bill to drawback shipping bill subject to establishment of identity - conditions laid down in the Circulars regarding time limits are waived - Order is set aside and matter remanded to original authority: CESTAT [para 5]

2016-TIOL-314-CESTAT -KOL

M/s Chemsilk Commerce Pvt Ltd Vs CC (Dated: December 15, 2015) Cus - Amendment of BOE - Case of Revenue is that application for amendment was not made on 03.11.2014 but was received only on 10.11.2014 - An e-mail dated 03.11.2014 was received by assessee - Amendment was sought only as per e-mail dated 03.11.2014 received from supplier of goods which was not actual description found on examination - Accordingly, Tribunal views that oral request for amendment was made on 03.11.2014 and assessee was not aware of exact description of goods at time of filing BOE that a part of goods will be fabrics of CTH 5801 - Reasoning of Adjudicating authority for rejection, that amendment application was filed after receipt of DRI intelligence, is not correct.

Classification - Samples of goods were drawn and sent for test, who confirmed the same to be 'warp cut Pile' fabrics - It is the case of Revenue that all categories of 'velvet' fabrics has to be classified under CTH 58013711 irrespective of fact whether Pile yarn is cu t or uncut - Goods imported by assessee are warp cut pile fabrics whereas velvet effect can be obtained both by "uncut pile" as well as "warp cut fabrics" - Stand of Adjudicating authority that all categories of 'velvet' fabrics will invariably fall under 5801 3711, is not correct and is rejected - Classification of goods will be under 5801 3720.

Exemption from CVD under Notfn 30/2004-CE - No CENVAT Credit used in manufacture of imported goods could have been taken as same were not manufactured in India - Assessee is entitled to CVD exemption under said Notfn.

Confiscation and penalty - Assessee came to know about discrepancy and mix up in some of imported goods as per e -mail dated 03.11.2014 from supplier - Assessee made a BOE amendment request as per changed description given by supplier of goods - No evidence on record that assessee had prior knowledge of exact description of goods - Conclusions drawn by Adjudicating authority are based on presumptions and surmises - Confiscation of goods and imposition of penalties upon assessee are not justified and are set aside: CESTAT


M/s Saraf Impex Vs CC (Dated: December 16, 2015) Cus - Appeal filed by assessee as a result of order 26/11/2014 passed by Calcutta High Court in WP No. 1059 of 2014 - Period of disposal of case was further extended up to 31/12/2015 by subsequent orders of High Court - Last personal hearing was fixed by Adjudicating authority on 24/6/2014 - Assessee made a written request for adjournment as that day was being observed as a protest day by Bar Council of West Bengal - Assessee have now been supplied with all relied upon documents only after

issue of OIO dt 23/7/2014 and after order dt 26/11/2014 passed by Calcutta High Court - Matter remanded to Adjudicating authority to decide issue again after giving an opportunity of effective personal hearing to assessee: CESTAT


Sanctum Workwear Pvt Ltd Vs CC (Dated: January 6, 2016)

Cus - As per notes to the Drawback schedule, drawback is allowed on an 'ensemble' i.e a set of garments comprising of upper and lower part - therefore, exporter's claim of drawback separately on Jackets & Pants is an error but malafide intention cannot be ascribed to invoke penalty or order confiscation - Appeal allowed: CESTAT [para 4]



CC Vs Kwang Sung Brake India Pvt Ltd (Date of Decision: 22.9.2015)

Customs - Valuation -Related Persons - As the respondent-importer and principal supplier are related persons, the issue of valuation of imported goods was referred to Special Valuation Branch (SVB) which held them to be related persons but accepted the invoice price as transaction value - Commissioner (A) in the impugned order rejected revenue's appeal and upheld the OIO passed by SVB


M/s Orange Overseas Pvt Ltd Vs CCE (Dated: December 03, 2015)

Cus - Refund of SAD in terms of Notfn 102/07-CUS - It is alleged that there is mis -match between description of goods indicated in Bills of Entry and sales invoices issued by assessee - Commissioner (A) has categorically observed that conditions of said notfn have been duly complied with by assessee - Since, conditions laid down in said notfn and circulars for claiming refund have been duly complied with by assessee, mere change in description of goods in domestic invoice which may be due to various reasons, cannot be a defensible ground to deny benefit of refund to which assessee is legally entitled to - Impugned order set aside and appeal allowed: CESTAT

2016-TIOL-296-CESTAT -HYD

Gayatri Timber Pvt Ltd Vs CC (Dated: December 4, 2015)

Customs - Refund of Additional duty of customs (SAD) under Notification No 102/2007 Cus dated 14.09.2007 - Refund of SAD paid on timber logs imported and sold as cut sizes on payment of VAT - Refund denied on the ground that the logs were sold as cut sizes and timber logs fall under CTH 44.03 whereas the goods sold after sawing and cutting would fall under Customs Tariff heading 44.07 as also clarified in CBEC Circular No 15/2010 Cus dated 29.06.2010.

Held: The invoices show that some of the logs were sold as such whereas some logs were cut into sizes. The question is whether mere cutting and sawing of the goods for

facilitating transportation would render the goods ineligible for refund of SAD has been considered and decided in favour of the importers by the Tribunal in the case of M/s. Agarwalla Timbers Pvt. Ltd. Vs. CC, Kandla & M/s. Variety Lumbers Pvt. Ltd. Vs. CC, Kandla and upheld by the Gujarat High Court. Though revenue filed an SLP before the Supreme Court, as there is no stay against the order passed by the High Court, the same is binding - Following the same, it is held that the appellants are eligible for refund - Appeals allowed. (para 4)



Narender S Chahar Vs CC (Dated: September 23, 2015)

Cus - Assessee is a G-cardholder of M/s. Quick Clear Agency (a CHA) and partner of M/s. P.H. Logistics and directly and actively participated in smuggling as is evident from impugned order - Bill of Entry was filed with G card of assessee, papers relating to goods were handed over to assessee to get them cleared from Customs, he was aware that goods were not mutilated rags, and he got "good" amount for getting consignment cleared - Assessee in his statement narrated modus operandi followed to hoodwink customs and confessed that even earlier he got complete garments cleared in guise of premutilated rags and that he was aware that duty on premutilated rags was lower than duty on garments - Therefore, he is clearly liable to penalty under Section 112 of Customs Act, 1962: CESTAT


Shri Jayesh S Shah Vs CC (Dated: November 27, 2015)

Cus - Import of branded diapers, cosmetics and toiletries mis-declared as unbranded Baby Diapers - Branded Diapers were stocked in front portion of container so as to conceal toiletries which were kept behind - There is no dispute that mis-declared goods have been imported under name of proprietorship firm of Shri Bipin J Shah - He has also filed Bill of Entry and pre-deposited Rs 25 lacs towards differential duty for all 11 consignments of impugned goods during investigation - Therefore, Shri Bipin J Shah cannot escape from mischief of importation of mis -decla red goods - Duty demanded from his proprietorship firm, under impugned Order in Original, alongwith interest, is upheld.

Penalty - Revenue has filed an appeal praying that equivalent penalty under section 114A should be imposed on proprietorship firm - It is settled law that no penalty can be imposed on both proprietorship firm and proprietor - Even if penalty was confirmed under Section 114A, it would have been to tune of an amount of Rs 17,51,707/- only whereas Adjudicating Authority has imposed a penalty of Rs 10 lacs on Shri Bipin J Shah - No reason to interfere with said order of Adjudicating Authority: CESTAT


CC Vs Sharada Industries (Dated: November 3, 2015)

Customs - Exemption - advance authorizations was given to the respondent to import raw material duty-free for use in manufacture and export the manufactured goods in terms of para 7.3 of the EXIM Policy 1997 - 2002 - The respondent imported the goods and cleared the same duty free on execution of End use bond - Investigation found that there was diversion of material - in absence of inextricable link between the import till export of finished goods, Revenue concluded that there was violation of

conditions of Notification; confirmed demands in adjudication, set aside by Commissioner (Appeals), and agitated by Revenue herein.

Held: There is a condition in the EXIM Policy that the imported goods should be utilized for the purpose of manufacture of goods and the goods so manufactured should be exported to earn foreign exchange - mere earning of the foreign exchange shall not ipso facto establish a case of compliance to the condition of EXIM Policy when export of the goods manufactured using imported raw material is not established - it is necessity of law that the raw materials which were imported duty free should only result in export of finished goods manufacture out of such raw materials making value addition to the imported goods, which is absent in the present case - Investigation found the goods were diverted to market; there was no pleading of the respondent to defend such allegation before the appellate authority - Its bonafide was questioned when the stainless steel coil bearing a mark was discovered by investigation not agreeing with the specification appearing in Invoice - discrepancy establishes a case of violation of import condition for which the respondent was not entitled to any relief before Commissio ner (Appeals); the adjudication order is restored and the appellate order is set aside [Para 4.1, 4.2, 4.3]


Teletube Electronics Ltd Vs CC (Dated: December 30, 2015)

Cus - Assessee, an EOU executed necessary general bond and following required procedures under scheme - While re -importing 200 pieces of tubes, they have filed Bill of entry and undertaken to follow conditions for claiming exemption under notfn 158/95 - Out of these goods 178 pieces could not be re -exported within 6 months, though they were later exported - Impugned re-import will fall even in general duty-free import allowed for EOU under notfn 52/2003 - All the conditions for such exemption have been satisfied - Assessee cannot be denied such exemption only on ground that they claimed and followed another exemption notfn: CESTAT


B K Freight Forwarders Pvt Ltd Vs CC (Dated: January 1, 2016)

Cus - Penalty on CHA - Adjudicating authority has only directed reclassification of the goods imported under the description of 'powder of natural diamonds' and accepted the declared value, which is the transaction value, and assessed the same on the same value - adjudicating authority has also not held the goods liable to confiscation for mis -declaration - In absence of such findings, penalty imposed u/s 117 of the Customs Act, 1962 is not sustainable - Appeal allowed to the extent it is contested: CESTAT [para 4]


CC Vs M/s Nagarjuna Oil Corporation Ltd (Dated: November 11, 2015)

Customs - Valuation - Imports - Second hand Machinery - Appellant imported a second hand plant and machinery for setting up of refinery plant through various Bills of entry at 4 different ports which were provisionally assessed - On finalization of assessment of warehoused consignments, declared value was rejected by all the four jurisdictional authorities and value was enhanced as per Rule 8 and 9 and cost of dismantling, marking and packing were also added in terms of Section 14 to some of the consignments - From the perusal of the contract entered with the foreign supplier, no doubt that the agreement is for supply of one entire refinery equipment from the existing mobile refinery abroad on 'as is where is condition' and includes dismantling,

packing, freight, shifting, delivery charges etc., - Total consideration for supply of second hand refinery equipment was around 220 million DM which was subsequently enhanced through amendment and another agreement was entered into for dismantling and packing of refinery equipments for 10.1 million EURO - No doubt that the second hand machinery covered in all the four appeals had originated from a single place and single supplier and belongs to a single plant, however appellant cleared each shipment as independent import under specific invoice with description of item and invoice price for each equipment accompanied by the Load Port CE Certificate - When all the shipments were completed in 2009, Chennai Customs initiated finalization of assessment of 5 B/Es - In-spite of existence of Load Port CE Certificate, department engaged a local CE for determining the value and the CE after examining the goods of one B/E submitted report, based on which LA, rejected the declared price - LAA set aside the order of LA and directed him to re-determine the value, by virtue of which, the B/Es filed at Chennai are still pending for finalization of assessment - It is pertinent to note that after finalization of B/Es at Chennai Customs, jurisdictional authorities at Pondicherry, Cuddalore and Nagapattinum have taken up finalization of assessment of the respective B/Es and loaded the value by simply relying on the Chennai Customs order and have clearly failed to determine the value in accordance with Customs Valuation Rules read with Board's Circular - No independent findings were given for rejecting the transaction value by them - In appeal, while Commissioner (A) Trichy upheld the loading of price, in contrary LAA, Chennai set aside the OIO of the AC, Puducherry, resulting in both the assesse and Revenue before the Tribunal -In view of the peculiar nature and circumstances of the case, and assessee's request to remand the matter for de novo adjudication to one single authority so as to avoid further litigation and confusion as all the 123 consignments belong to one single refinery and in view of Revenue's acceptance to the remand proposal, all the four appeals are remanded to original authority for de novo proceedings - Issue needs to be re -examined in denovo by one single authority - In view of the quantum and value of the imports, Government/ Board shall consider the proposal and appoint a higher authority at the level of the Commissioner of Customs, as a common adjudicating authority who shall take note of all the issues and finalize the assessment of all the B/Es within a period of three months from the date of receipt of the order - Customs Act, 1962 - Customs Valuation Rules, 1988. (paras 12, 14, 15, 16, 17, 18, 19)


M/s Wind World India Ltd Vs CC (Dated: June 23, 2015)

Cus - DGFT directing appellant to pay customs duty with interest for the shortfall of export obligation - Payment of excess interest was due to clerical error or due to mistake as to rate of interest applicable - unjust enrichment is not attracted as the excess payment made is in the nature of deposit - although the test of unjust enrichment is not required in the facts and circumstances of the case, the appellant have still met the provisions of unjust enrichment and accordingly, they are entitled to refund of Rs.11,97,673/- - adjudicating authority to disburse the refund within a period of 20 days from the date of receipt or service of a copy of this order - appeal is allowed with consequential relief: CESTAT [para 7]


Ajay Exports Vs CC (Dated: October 28, 2015) Cus - Commissioner of Customs (Import), Mumbai and Nhava Sheva rejecting the transaction value of the imported poppy seeds from Turkey and thereby confirming demand and imposing penalties on importing firms and individuals - Revenue relied upon copies of export invoices and declarations submitted by the suppliers/the exporters before the Turkish authorities. Held: It is a settled law that in order to be admissible as evidence, the copies of foreign documents are required to be attested and signed by the Turkish Customs authorities which they were not - Further the documents must bear the signature of the officers making the enquiries and be certified as true copies - It is noted that the originals have not been made available

even to the Tribunal and unauthenticated and unsigned documents were relied upon, which could not be used, even if they may have been forwarded by 'authorities' to the investigating agency through official channels - it is also well settled law that insurance documents as well as entries from Comtrade and UK public ledger and other journals cannot be used to doubt or reject the transaction value - adjudicating authority has refused to look at other contemporaneous imports on the ground that there was gross undervaluation being done by the trade - if the value of contemporaneous imports were accepted and the transaction value in those case are not doubted by the revenue in the assessment orders, it is not understandable why the said values could not have been used in the instant case - moreover, Department has to first reject the transaction value and then follow the rules as laid down from rule 5 to 9 of the valuation rules in order to arrive at the value for discharge of Customs duty which has not been done - statements have been retracted and, therefore, hold no evidentiary value and may not help the Revenue's case any further as there is paucity of other evidences also - since orders are set aside, penalties are also not imposable - Appeals allowed with consequential relief: CESTAT [para 10, 10.1 to 10.4, 11]


Haren Choksey Vs CC (Dated: January 1, 2016) Cus - Bill of entry was finally assessed on 29/04/2003 for car which was imported and the Customs duty was paid on the same day - Though there is an allegation of suppression of facts and mis-statement with intention to evade payment of duty, the SCN was issued on 23/08/2010, which is beyond the period of five years as mandated under section 28 of the Customs Act, 1962 - In view of the same, penalty imposed u/s 112(a) cannot be sustained for the simple reason that demand of duty and the confiscation of the vehicle is not sustainable under the provisions of the Customs Act, 1962 – Appeal allowed: CESTAT [para 7, 8]


M/s Modern Dairies Ltd Vs CC (Dated: January 14, 2016)

Cus - Appellant taking a stand that 'cheese curd' is an intermediate for manufacturing Mozzarella cheese & not 'food' as defined u/s 3(j) of FSS Act and since there are no standards provided, therefore, question of failing the quality test under the said Act does not arise - Commissioner(A) does not deal with these issues, hence order is not a speaking one - Matter remanded: CESTAT [para 5]



Smt Meera Devi Vs CC (Dated: October 16, 2015) Cus - Confiscation of chinese garlic bearing marks as 'sun-king' & 'Sun Power' - Whether assessees had prior knowledge of Smuggled nature of seized garlic - It is case of assessee that drivers have done clandestine activity of transportation of garlic of foreign origin without their knowledge and that their trucks can not be confiscated - Drivers of vehicles definitely had knowledge of contraband and smuggled nature of garlic, that is why drivers ran away and never came forward during investigation - There is thus nothing irregular regarding confiscation of said vehicles & their release on payment of redemption fine: CESTAT

Cus - Penalty - Though no section has been quoted in order portion by adjudicating

authority but Sec 112 (b) of Customs Act 1962 has been discussed - Availability of duplicate number plates from trucks further gives an impression that said vehicles were being used for clandestine transportation of goods - No registration papers or driving license copies were found in vehicles - For more than six months from date of seizure & interception none of owners made any attempt to locate their trucks when same were in possession of department - No interference is called for in adjudication order: CESTAT


CC Vs IAL India Ltd (Dated: January 1, 2016)

Cus - Adjudicating authority imposing penalty of Rs.5 lakhs but same set aside by Commissioner (A) - Revenue in appeal before CESTAT. Held: In vie w of the new litigation policy of the Government communicated vide F.No.390/Misc./163/2010-JC dated 17/12/2015, Government has decided not to litigate any matter wherein the monetary limit is less than Rs.10 lakhs in case of appeals lying before Tribunal - in view of the same, Revenue appeal dismissed by keeping the larger issue open: CESTAT [para 2]


Dinkar Y Ghanekar Vs CC (Dated: January 8, 2016)

Cus - If the appellant had nothing to hide, his action of producing some other person as Phirozebhai, whom the appellant knew very well, before the investigating authorities itself indicates that he had something to hide - by not co-operating with the authorities to ascertain the mis -declaration of the value as well as description of goods and shielding Phirozebhai, the appellant has made himself liable for penalty u/s 112 of Customs Act, 1962 - Penalty rightly imposed - Appeal rejected: CESTAT [para 8.1, 8.2, 9]



Shri Sanjay Kashikar Vs CC (Dated: May 1, 2015)

Cus - Issue is settled by the main party, before Settlement Commission - Therefore, in view of the Majority decision of Tribunal in the case of S.K.Colombowala [ 2007-TIOL-1130-CESTAT-MUM ] Penalty is not imposable on the appellant CHA as the dispute is settle d by the main-noticee before Settlement Commission - Order imposing penalty of Rs. 2 lakhs on the appellant u/s 112(a) & 114AA of the Customs Act, 1962 set aside & appeal allowed with consequential benefits: CESTAT [para 5, 5.1]


M/s V R A Cotton Mills Pvt Ltd Vs Principal Commissioner Customs Commissionerate (Dated: September 22, 2015)

Cus - Conversion of Bill of Exports from DFIA to Drawback - If Commissioner is of opinion that there is improper declaration on shipping bills by which assessee could not be able to claim DFIA benefit, then Commissioner ought to have mentioned clearly as to what are deficiencies in these shipping bills - Assessee pointed out that in assessee's own case, on same issue, CESTAT by final order No. A/11457/2014 dated 1/8/2014 has held in favour of assessee - Provisions of Rule 12 (1) of custom and

Central Excise Duties Drawback Rule, 1995 empowers Commissioner to condone non-observance of provisions of Rule 12 and allow Drawback - This is nothing but an amendment or conversion of shipping bill filed - Circular issued by Board goes beyond Rules as section 149 of Customs Act clearly permits amendment of shipping bills without any such time limit even after export of goods - Rejection of request for conversion of DFIA shipping bills to Drawback was not justified: CESTAT


J P Overseas Ltd Vs CC (Dated: December 30, 2015)

Cus - Anti-dumping duty on PVC imported from China imposed under Notification No 11/2008-Cus - It is well settled that a notification always has prospective effect unless a contrary intention is evident from the language thereof - language of amending Notification No. 38/2008-Cus. does not contain even a hint or an indication that it was intended to have retrospective effect - Notification 38/2008-Cus dt. 24.03.2008 is not a corrigendum to Notification No. 11/2008-Cus. dated 23.01.2008 either by express mention to that effect or even by implication - ADD to be discharged in terms of Sl. No. 23 to Notifcation 11/2008-Cus during the impugned period prior to 24.03.2008 - Appeal rejected: CESTAT by Majority [para 19, 20]



M/s PNP Polytex Pvt Ltd Vs CC (Dated: October 16, 2015)

Cus - PVC cloth of 68D, classified under CTH 5903.10 and is mentioned in the first schedule to Additional Duties of Excise (GSI) Act, 1957, hence is leviable to additional duty - as AED on product falling under CTH 5903.10 is exempted under notification 7/2003 - (sr. no. 21) - contention of appellant is that even though it is exempted, but is chargeable under the Act, therefore, sub-section (5) to section 3A of Customs Tariff Act is applicable is not convincing since the terms 'levied' and 'chargeable' are separately used and which clearly show that though additional duty is levied under 3A(1) of the Act, but by virtue of notification it is not chargeable, therefore, appellant will not get shelter of sub-section (5) from levy of SAD - since appellant's goods is not chargeable to additional duty (GSI) due to exemption notification, SAD under section 3A(1) is correctly and legally payable by the appellant - impugned order rejecting the appeals is upheld and appeals are dismissed: CESTAT [para 6]


M/s Top Victory Investments Pvt Ltd Vs CC (Dated: December 10, 2015)

Cus - Whether assessment of imported monitors LCD/LED is under Section 3(2) (b) r/w Section 4A of CEA, 1944 under MRP basis or under normal transaction value for purpose of CVD - Assessee imports LCD/LED Monitors and Television sets of various sizes falling under CTH 85285100 of CTA, 1975 and claimed full exemption from BCD under Notfn 24/2004-Cus and indicated MRP/RSP on packages - Bill of Entries were assessed for CVD @ 12% on MRP based assessment claiming 35% abatement in terms of Section 3(2) of CTA r/w Section 4A, and notfn issued there under - They have been regularly importing said items prior to 2003 and clearing goods on payment of CVD as per transaction value - From 24.12.2008 to 10.05.2012, department continued assessment and same was accepted under MRP and CVD was paid and the goods were cleared without any dispute on MRP assessment - Customs raised the objection on MRP assessment only from 10.05.2012, when abatement percentage was increased from 20% to 35% on said goods - Held: Once the goods are covered under LMA, as a packaged commodity, they are required to be cleared on retail sale price on packages as per provisions of Section 4A, assessment shall be on

MRP basis - Monitors with brand name meant for sale to brand owners are eligible for assessment under Section 3 (2) (b) of Customs Act r/w Section 4A and notfn issued there under MRP/RSP based assessment and eligible for abatement as per notfn - Accordingly, impugned orders demanding differential duty is liable to be set aside: CESTAT


2016-TIOL-205-CESTAT-DEL

M/s Richemont India Pvt Ltd Vs CC (Dated: November 4, 2015)

Cus - Imports were made by assessee under a Distributorship Agreement with Richemont Dubai - Assessee has conceded that they and supplier being related persons and Revenue was justified in having reason to doubt truth or accuracy of value declared - Transaction value has been loaded by 12.5% in terms of Rule 4 of CVR, 2007, therefore, it is not necessary or relevant to dwell on aspect whether expenses on advertisement and sales promotion incurred by assessee are includible in assessable value in terms of Rule 10 because Adjudicating authority has not invoked Rule 10 for loading declared value - Assessee has been able to demonstrate that as a distributor its imports were at a different commercial level and in much larger quantity compared to imports made by individual retailers - Prices were compared only for two models of watches and simple extrapolation thereof to all other models of watches for purpose of revising their values upwards does not have any legal basis for sustainability - Even in limited comparison for purpose of loading value by 12.5% there is complete disregard of requirement of adjustment to be made for differences in commercial levels as well as in quantity of goods imported and therefore, Tribunal do not find loading of 12.5% to be in conformity with requirements of Rule 4 of CVR - Loading of 12.5% is not sustainable in terms of Rule 4 of CVR, 2007: CESTAT


M/s Arya International Vs CC (Dated: November 26, 2015)

Cus - Basmati Rice exported by assessee and claiming benefit of Notfn 55 (RE-2008)/2004-2009 as modified by Notfn 57/2009-2014 under Sr. No 45AA of said Notfn - Conditions specified as nature of restriction of said Notfn are dimensions of length, ratio of length and breadth of grain - The grain they have exported undoubtedly satisfies the same as per test report - Goods are described in Customs Notfns as "Basmati Rice", and therefore Customs Authorities are fully justified to verify impugned goods - No illegality found in orders of lower authorities in said respect.

As regards confiscation, consequent action resulting from test result cannot assailed on ground that goods have already been cleared and therefore same is not liable for confiscation, in case goods are otherwise liable to confiscation as per provisions of law - Amount of redemption fine is only Rs. 3 lacs whereas value of goods is Rs 30,96,207/- which is considerate and appropriate - Therefore, same is upheld.

As regards penalty, provisions of Section 114AA is not intended to penalize such type of exports - Contention of Revenue that separate penalty should be imposed under 114AA cannot be sustained - Matter remanded to Adjudicating authority for deciding issue of separate penalties under 114(1) and 114AA: CESTAT


M/s Sayani & Sons Vs CC (Dated: December 23, 2015)

Cus - Question of limitation has neither been raised during original proceeding before adjudicating authority nor has it been incorporated as a ground of appeal nor has it been sought to be included by miscellaneous application - Findings cannot be given without giving an opportunity to Revenue - matter remanded: CESTAT [para 4]



M/s S Narendra Vs CC (Dated: November 24, 2015)

Cus - Appellant importing "CNC based Laser Drilling machine" and claiming benefit of OGL appendix 6, list 1, item No. 95 which reads "Ultrasound/ laser drilling machinery" and also claiming benefit of Notification No. 159/86-Cus dated 01/03/86 - Duty demand was confirmed by the Commissioner denying benefit of OGL as well as the notification - appeal to CESTAT. Held: Reasons for denying the benefit of OGL is that it is not merely a drilling machine but a multifunction machine - What needs to be appreciated is that laser is "Light amplification through stimulated emission of radiation" - light is concentrated and syn chronized so that a large amount of energy is focused on a single point - laser can pierce through the material - same piercing process can also be used for cutting, sawing, etc. & essentially laser operates by drilling only - In these circumstances and in view of DGFT letter dated 03/01/89, the machine is clearly covered under OGL, therefore, the objection regarding Exim policy is not sustained - as regards exemption under notfn. 159/86-CE, notification gives exemption to "ultrasonic or laser drilling mach ine" whereas the appellant have imported "CNC ultrasonic or drilling machine" - AR submission is that had the intention been to cover CNC based machine the notification would have described it that way like it did in case of entry No. 96 of the same notification which read "CNC or microprocessor laser faceting machine" - this argument is misplaced as the generic description covers all the variants whereas a specific description covers only specific machine - While entry No. 94 would cover all ultrasound or laser drilling machines the entry No. 96 would cover only the CNC types - intention of entry No. 96 is to restrict benefit while that of entry No. 94 is not to restrict - notification covers the machine imported by the appellants - appeal allowed on both counts: CESTAT [para 2, 3, 4]


Kishorebhai R Zaveri Vs CC (Dated: November 10, 2015)

Cus - Confiscation of car under Section 111(d) of Customs Act, 1962 r/w Public Notice for violation of post import condition of no sale - Assessee had bought the car from M/s. HFCL who bought same car from importer - When SCN demanded duty both from importer as well as assessee under Section 28 of Customs Act, 1962, can liability to duty be fixed by Adjudicating authority only on owner in terms of Section 125(2) of Customs Act - It is well accepted principle that duty has to be demanded from importer - Provisions of Section 125(2) are only an enabling provision which allow duty to be demanded if it has escaped payment at initial stage - Provisions of Section 125(2) of Act cannot substitute for provisions of Section 28 - Therefore, duty cannot be demanded from owner because the details of import are established and importer is known and duty was correctly demanded from importer in SCN

Whether with passing of first adjudication order, principle of res-judicata will apply and prevent second adjudication of case - Case could not be re -opened on same issue of valuation only because department comes up with fresh evidence regarding true year of manufacture and price - It was open to Revenue to verify details of car imported either from market or from Chassis/ Engine Number which normally bear year of manufacture - Apparently, no such enquiry was made and value was determined on basis of price listed in "Blue Book" - Because of inadequate enquiries, a

bonafide 3rd party, purchaser cannot not be fixed with duty liability and car confiscated - Adjudicating Authority failed to arrive at correct assessable value - This inaction on his part does not permit reopening of matter on same issue of valuation: CESTAT


CC Vs Vestas Wind Technology India Pvt Ltd (Dated: November 05, 2015)

Cus - Refund of SAD - Revenue contends that impugned invoices were issued on earlier dates than dates of Bill of Entry - Invoices mentions Bill of Entry Number and date of Bill of Entry - Assessee contends that this obviously means that invoice is issued after date of Bill of Entry - He further submits that invoice contains description, packing number and other particulars of goods, which are tallied with Bill of Entry - No evidence on record that invoice has been issued prior to Bill of Entry and payment of duty - Impugned order upheld: CESTAT


Hari Om Traders Vs CC (Dated: November 27, 2015)

Cus - Quantum of penalty - Assessee imported certain consignments of fire crackers by mis -declaring the same - In Appeal Nos. C/53266, 53267, 53451 and 53452/2015, adjudicating authority on identical facts and almost similar quantum of value of goods has imposed penalty of Rs.8 lakh, Rs. 5 lakhs under section 112A and 114 AA of Act which is highly excessive as compared to penalty imposed on assessee in Appeal No. C/58383/2015 - Therefore, quantum of penalty imposed on assessee is reduced to Rs. 2 lakh and Rs.One lakh under sections 112A and 114AA of the Act: CESTAT


Bhagwati Components Mfg Co Vs CC (Dated: September 04, 2015)

Cus - Jurisdiction of DRI to initiate proceedings - CESTAT is not competent to look into aspect of constitutional validity of any provisions of Customs Act of which it is a creature - DRI officers who issued SCN were appointed as officers of Customs under sub-section 1 of Section 4 before 6.7.2011, therefore in terms of Section 28(11) said notice cannot be said to have been issued by officers not authorized to do so - Purpose of Section 28(11) was to validate SCN which had been issued by DRI and Preventive Commissionerates and that is the reason it was given retrospective effect - In wake of Section 28(11) ibid, SCN issued by DRI do not suffer from any jurisdictional infirmities and therefore, proceedings relating to SCN issued by DRI need not be kept pending to await disposal of challenge to Section 28(11) pending before Delhi High Court: CESTAT


M/s Krishna Knitwear Technologies Ltd Vs CCE & ST (Dated: September 7, 2015)

Cus - Assessee being a 100% EOU engaged in manufacture of cotton yarn - They had imported 144 Nos. of Secondhand Textile Machinery as capital goods, by availing exemption Notfn 53/97-Cus, as amended by Notfn 52/2003-Cus - Assessee failed to install 31 Nos. of Secondhand Textile Machinery within stipulated period of one year nor could they install the same up to 30.06.2006, the extension of time limit granted

for installation of same as per provisions of notfn - It is settled law that exemption notfns have to be construed strictly and non-observance of conditions of notfn would undoubtedly result in denial of benefit of subject notfn - No reason to interfere with impugned order of Adjudicating authority confirming demand of duty along with interest - Confiscation of goods, and consequent redemption fine, along with imposition of penalty are set-aside: CESTAT


M/s MTNL Vs CC (Dated: September 10, 2015)

Cus - Refund - it was the duty of the assessing authority to allow the benefit of Notification No. 23/02-Cus, though erroneously not claimed by appellant in the bill of entry - the object of sec. 27 is to cover those cases where the duty is paid by a person without an order of adjudication, as in the present case where the appellant paid excess duty in ignorance of the Notification, which allows it to pay concessional rate of duty, merely after filing a bill of entry - appeal allowed with consequential benefits - refund to be granted within 60 days: CESTAT [para 7, 8]

2016-TIOL-158-CESTAT -BANG

Ozurt Systems Pvt Ltd Vs CC (Dated: October 21, 2015)

Customs - Valuation - Appellant imported plastic chairs and CD holders from Taiwan, which were provisionally cleared under PD Bond on enhancement of value - Revenue viewed that the manufacturer's value declared on a shipping bill recovered during a search, which was higher than the value on which the Bill of Entry was provisionally assessed, was appropriate for final assessment - demand for differential duty adjudicated, upheld by Commissioner (Appeals), and agitated herein.

Held: The only evidence relied upon by the Revenue is a document retrieved from the CD found in the appellant's premises, which is addressed to an individual who has not been examined at all - It is not proved on record that the supplier has procured the goods at that price shown in the said printout - it is only an export declaration made at Taiwan and cannot be adopted as a true value of the goods inasmuch as an exporter can enhance the value of the goods for the purpose of his own benefits which might have been available to them under the export laws of that country - There is no further evidence on record showing that the importer had paid extra amount to the supplier of the goods - The import is duly supported by a contract sale document, which has not been held to be bogus by the customs or does not stand rebutted by producing sufficient evidence - Apex Court, in the Mirah Exports case, held that the burden of proving undervaluation is on the Revenue; and in the Eicher Tractors case, held that transaction value has to be determined based upon the three conditions of time, place and absence of special circumstances - Transaction value is confined to the particular transaction and in the absence of any other evidence, same has to be adopted as the assessable value - reference to the contemporaneous import distinguished on facts - no reasons to doubt the transaction value declared by the appellant; its enhancement based upon the some extraneous documents is neither justified nor warranted - impugned order set aside. [Para 3.3]


Atharva Global Logistics Vs CC (Dated: October 23, 2015)

Cus - Revocation of License - DRI has intimated to Commissioner regarding offence vide their letter dated 7.10.2013 which was received in office of Commissioner on 8.10.2013 - Furthermore, a SCN was also issued to assessee by DRI under Customs

Act, 1962 on 31.10.2013 and SCN under Regulation 20(1) has been issued on 17.6.2014 which is admittedly beyond a period of 90 days prescribed under Regulation 20(1) of CBLR, 2013 - Proceedings against assessee are not sustainable being time-barred - Order of revocation of CHA Custom Broker License and forfeiture of security deposit is set aside by making custom broker licence operative with immediate effect: CESTAT


ITC Ltd Vs CCE (Dated: October 7, 2015)

Customs - Benefit of Exemption - Mis -declaration - Appellant imported and cleared 'Mixed Waste Paper' availing concessional rate of duty from 2002-2004 for home consumption - Out of the total 52 Bills of Entry 23 were cleared under DEEC advance authorization scheme availing Notification No.203/92-Cus. dt. 19.5.92 and others under Notification No.21/2002-Cus. dt. 1.3.2002 - On examination of 2 live consignments, it was found that the cargo declared as paper waste contained plastic waste and scrap, metallic scrap and cloth rags also to 8% of the total quantity - As they were not declared and the benefit is not available to them, duty was demanded on them and consignments were seized and redemption fine and penalty was imposed - Appellant contends that the imports may usually contain certain mix other than waste paper which was not known to them at the time of import; that they are eligible for the benefit as the imports were used by them as per Notifications and; 'Mixed Waste Paper' is rightly classifiable under 47079000 which covers 'unsorted waste and scrap' - Notification No.21/2002-Cus prescribes concessional rate of duty to all goods falling under Chapter 47.07 with condition that they are used in manufacture of paper and paper board, hence it is not an unconditional one but a conditional exemption - It was established that the imported goods contained 2468.057 MTs of Plastic Waste/Scrap, 360.35 MTs of Metallic Waste and 103.280 MTs of Cloth Waste (Rags) which were not declared by appellant - As per the condition of the Notification, appellant themselves executed an undertaking before clearance of goods, binding themselves that the goods shall be used for manufacture of paper and paper board and also undertook that in the event of non-compliance they shall pay customs duty on such quantity - Very fact that appellant knew very well that the goods cannot be used in manufacture of final product without sorting out the fibre contents and non-fibre contraries and sent the contraries directly to job-worker for sorting out, confirms that appellant has not fulfilled the mandatory condition of the notification to the extent of quantity of plastic waste, metallic waste and cloth waste (rags), since other contraries were not covered under Sl.No.152 of the notification and as they were not used in manufacture of paper and paper board - From the description on the Bills of Entry, it is seen that appellant used different description of the goods and declared that all the goods are classifiable under CTH 47079000 to claim concessional rate of duty - Condition in the other notification no. 203/92 is also similar and the other imported waste are not covered by advance license scheme also - Appellant's contention that the Ministry of Environment & Forests permitted upto 8% of recyclable material in waste paper imports, is not tenable since the letter was issued in 2006 whereas the imports were from 2002-2004 and it was issued in the context of pollution control measures - Appellant's reliance on precedents to show that the word 'use' can be taken broadly is not applicable, since in the case, it is mandatory condition and as per Supreme Court's decision, the condition must be obeyed/fulfilled as exactly stated in the notification - Appellant's contention based on classification that CTH 47079000 covers 'unsorted waste and scrap' and as per HSN Explanatory Notes, other contraries cannot be classified separately and what is imported is 'Mixed Waste Paper' which is rightly classifiable under CTH 4707 as the percentage of other contraries is negligible and so imports are eligible for the benefit granted to CTH 4707, has no merit - From the perusal of CTH 4707, it is clear that the word 'unsorted waste and scrap' only relates to unsorted waste paper of headings 4707 10, 4707 20, 4707 30, wh ich are mixed and unsorted but does not cover 'unsorted waste paper mixed with other materials' such as plastics, metallic waste and rags - Hence, other waste are rightly classifiable under appropriate headings - Other waste imported in the guise of waste paper are not eligible for exemption under both the notifications and appropriate customs duty is to be paid on them, under respective classifications

of the items - Customs duty demand raised on proportionate quantity of other waste imported by denying the benefit of exemption to them, is upheld - (paras 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32)



CC Vs Alpharma (Belgium) Bvba (Dated: June 11, 2015) Cus - Classification - adjudicating authority and the appellate authority have discussed the classification issue at length and rightly held that the goods are Animal Feed Supplement and classifiable under Chapter 23 of CTA - respondents themselves in their appeal before Commissioner (Appeals) have accepted the reclassification of the goods ordered with OIO and also paid the differential duty - having accepted the classification before Commissioner (Appeals), Bench does not find any merit in the respondents contention on classification of imported goods in their cross objection: CESTAT [para 5]

Cus - Branch Manager in his statement has voluntarily admitted that nowhere in the invoice the goods were described as Medicaments but they have added and inserted the words medicaments while describing the description of the goods in the B/E and claimed classification under Chapter 30 to evade payment of appropriate duty of customs - It is evident that respondents claimed classification of goods as medicament under Chapter 30 with intention to avail exemption of CVD at NIL rate under Central Excise notification No.3/2005-C.Ex Sl.No.29 - Therefore, intention of the respondent is established & the contravention under Section 111 for confiscation is fully justified: CESTAT [para 6]

Cus - Once the goods are not available for confiscation, the question of imposition of redemption fine on the past clearances does not arise and RF is applicable only on the seized goods pertaining to live Bill of Entry - redemption fine reduced to Rs.1 lakh - correspondingly, penalty u/s 112(a) is reduced to Rs.50,000/- : CESTAT [para 7]


V V Minerals Vs CC (Dated: October 14, 2015)

Customs - Classification - 100% EOU - Export duty - Appellant-manufacturer of 'Ilmenite', sought classification under CTH 26140020 as 'Ilmenite upgraded (processed)' and paid duty @ 5% - Department classified it under CTH 26140010 as 'Ilmenite unprocessed' -Revenue's ground for classifying it under CTH 26140010 is that the ore has undergone only physical and mechanical processes but not roasting or chemical treatment and so cannot be considered as 'Ilmenite Beneficiated', is not appreciable - Under the chapter there are only two related sub headings, (i)'Ilmenite Unprocessed' and (ii)'Ilmenite upgraded' which is quantified with the words Beneficiated Ilmenite - As there is no definition of Beneficiation in the chapter, definition provided in the Rule 3(d) of the Rules which states that anyone or the 3 processes, i.e., (i) regulating the size of desired produce (ii) removing unwanted materials (iii) improving quality, purity of the product, carried out on the ore/mineral is known as 'Beneficiation',is relevant - Flow chart of various process of appellant's beneficiation plant duly approved by Ministry of Mines & Department of Atomic Energy and accepted by department, confirms that appellant is carrying out the activities stipulated under Rule 3(d), by which unprocessed ore becomes 'upgraded Ilmenite' - Supreme Court's precedent decision which states that 'beneficiation' process are only related to physical separation is clearly applicable to appellant as the principle of beneficiation process is same for all - Clarification given in Board's circular dt. 17.2.2012 that 'by beneficiation process the end product of ore is concentrate or upgraded ore', covers Chapter 2614 under which the goods falls - Precedents relied on

by Department are in the case of excisability of product but not on classification or beneficiation - Definition of 'beneficiation' given in the Rules is more authentic than the one in website literature of another company relied on by department to show that the ores should undergo chemical treatment-While classifying goods for import/export, descriptions used in chapter headings and subheadings are to be literally applied and no other assumption can be made - CTH 26140020 only describes Ilmenite upgraded (beneficiated Ilmenite) without any specification - Certificate issued by Department of Geology & Mines, Govt. of Tamil Nadu, confirms that appellants are licensed to export processed/upgraded Ilmenite - In view of the process undergone, precedents and Circular, impugned goods are rightly classifiable under CTH 26140020 as they are beneficiated - OIO was passed only on classification and finalized all the 85 shipping bills without any demand of export duty - Revenue's objection that appellant themselves classified it under CTH 26140010 is not tenable since Ilmenite was made taxable only w.e.f 1.3.2013 which prompted appellant to reclassify them and rightly pay less duty i.e., at 5% rather than at 10% under CTH 26140010 -Impugned order set aside - Appeal allowed- Rule 3 (d) of Mineral Conservation and Development Rules 1988. (paras 8, 9, 10, 11, 12)



Unique Line Vs CC (Dated: October 28, 2015) Customs - Customs Broker License - Revocation - On the allegation that the CHA-appellant signed Bill of entry on behalf of the importer against whom proceedings for mis-declaration of value and description were confirmed, appellant's customs broker license was revoked and security deposit was ordered to be forfeited - Major allegations are that the appellant have signed blank documents and Bill of entry without knowing the identity of the importer and without authorization from the importer, which were admitted by appellant himself in his statement- Appellant's contention that the entire proceedings against the importer were dropped and only a nominal penalty was imposed is not correct, since from the perusal of the OIO passed against the importer, it is clear that no proceedings were dropped against importer whereas goods were confiscated, value was enhanced and redemption fine and penalty was imposed - However, it is seen that there is no allegation nor any notice was issued against appellant on the ground that he abetted or contravened any provision of Customs Act in the import of goods - As per the precedent the punishment to CHA should be commensurate with gravity of the offence and punishment of revocation of license should be invoked as a extreme and harsh measure - Moreover, appellant's license remains suspended for more than four years - In view of the precedent and facts of the case, no justification for extreme penal action of revocation of license and forfeiture of deposit which appears to be very harsh when compared to the nature of lapse and are set aside - However, penalty of Rs. 10,000 is imposed, subject to payment of which license and forfeiture of security deposit are to be restored - Appeal disposed of - Regulation 20 (7) of Customs Broker License Regulations (CBLR), 2013. (paras 5, 6, 7)


J M Baxi And Company Vs CC (Dated: November 10, 2015) Cus - Prohibition of Customs Brokers - Assessee was prohibited from working as Customs Broker on ground that importer had not correctly classified goods imported by them and they had not properly advised in this regard - When Customs officers had initially assessed Bill of Entry provisionally and had examined the goods, and also subsequently finalised assessment, assessee cannot be penalised, that too by a "Prohibition" from working in Customs Station which is a stringent measure, on mere ground that they have not advised their client properly - Impugned order set aside and appeal allowed: CESTAT


Subham Enterprises Vs CC (Dated: Octobet 16, 2015) Customs Anti-Dumping Duty Fine & Penalty Appellant imported Mulberry Raw Silk from China and declared the Grade as 4A Based on the test report which certified the goods as of Grade 2A, ADD was demanded along with redemption fine and penalty, since anti-dumping duty is leviable on raw silk of any Grade 2A and below as per Notification No.106/2003 dt. 10.7.2003 No merit in appellant's contention that that they had not been provided with test report, since personal hearing was attended by the importer himself and he was aware of the test report and only pleaded for leniency Appellant's submission that bonafide inspection certificate and quarantine certificate issued by China should be accepted as per the Circular and that that they had declared the goods as Grade 4A based on the invoice and packing list,is not tenable as it is confirmed by the test report that the goods were of Grade 2A After receiving test report and after following principles of natural justice, adjudicating authority rightly adjudicated the case and has rightly held that Anti dumping duty is chargeable and appellant had mis -declared the Grade to evade anti-dumping duty However, as per the precedents fine and penalty were set aside while anti dumping duty is upheld as there is no provision for fine and penalty on ADD as per Supreme Court's precedent decision Hence, impugned order is upheld but for waiver of fine and penalty Appeal disposed of. (Paras 1, 3, 5)


Fidesta Logistics Pvt Ltd Vs CC (Dated: November 10, 2015)

Cus - Customs Broker Licence - Statute u/s 146(2)(f) limits the scope of appeals only in case of suspension or revocation of a licence - appellant had failed to appoint a Regulation 8/9 qualified employee before the expiry of the licence - As the licence had already expired, it did not remain an issue of being non-operative, it was a matter of licence becoming non est - Appeal rejected as not maintainable: CESTAT [para 4, 4.1, 5]



Sri Vasavi Gold & Bullion Pvt Ltd Vs CC (Dated: October 15, 2015)

Customs - Benefit of Exemption - Unbranded Jewellery - Appellant imported 'unbranded jewellery' by assessing Bill of Entry under Notification No.2/2011-CE dt. 1.3.2011 (as amended) and paid CVD at 6% - Subsequently, preferred appeal against Bill of Entry claiming CVD under the Notification No. 12/2012-CE chargeable @ 1% - Commissioner (A) denied benefit holding that it is a conditional Notification and the condition that no Cenvat Credit should have been taken, was not fulfilled at the time of imports - Appellant submits that they are only traders and not manufacturers and as such no Cenvat credit could have been taken by them at all - Revenue contends that appellant they themselves paid CVD @ 6% under Notification No. 2/2011-CE and never disputed either assessment or rate of duty nor paid the duty under protest whereas claimed benefit of the notification only before Commissioner (A) - Admittedly, no CENVAT credit is availed by appellant - No such credit is admissible to appellant under Cenvat Rules, hence CEGAT came to conclusion that whenthe credit is not admissible under the Rules, question of fulfilling the condition does not arise - CEGAT's reasoning that only those conditions could be satisfied which were possible of satisfaction and the condition which was not possible of satisfaction had to be treated as not satisfied, is no longer good law after the judgment of the Tribunal in 'Thermax Private Limited' case which was considered by Supreme Court in it's decision -

Revenue's contention that a review petition is pending against Supreme Court's decision, is not tenable as there is no stay granted on the case - Moreover, when there are two notifications, it is open to appellant to claim the exemption which is beneficial to them - If they have not claimed the benefit before assessing officer, there is no bar in claiming before appellate authority and have rightly claimed so, since Bill of Entry itself is an assessment order - In view of the precedents, appellant is eligible for CVD @ 1% under the Notification - Impugned order set aside - Appeal allowed - Notification No. 12/2012-CE dt. 17.3.2012. (paras 4, 5, 6, 7, 8) 2016-TIOL-123-CESTAT -MUM

Mafatlal Industries Ltd Vs CC (Dated: December 30, 2015)

Cus - Whether appellant is entitled to the concession of duty in terms of notification 21/2002-Cus in respect of "Weft Straightener Type MDC Machine" imported by them? - Notification 21/2002-Cus, Sr. no. 250 described the goods as "Weft Straightener and Calendaring Machine" Held: Appellant submits that there is no combined machine for "Weft Straightener and Calendaring" as these two processes occurred at different stages of textile processing - that reading the notification as covering only a combination of machine would render the entry nugatory as no such combined machine exists and benefit will not be available to the textile industry - in view of the above facts the appellants are entitled for the concession of duty in terms of notification 21/2002-Cus - Order set aside and appeal is allowed: CESTAT [para 5.1, 5.2]


Vijay Marine Services Vs CCE & C (Dated: December 22, 2015) Cus - In sofar as the issue of recovery of supervision charges is concerned, it is a matter where the CESTAT has jurisdiction as such charges are collected in exercise of powers under Customs Act, however, in respect of rate at which the charges are to be recovered, it is an administrative decision against which the appeal before CESTAT is not maintainable - when there was no officer specifically posted on cost recovery basis, no cost recovery can be done: CESTAT [para 3]

Cus - As regards the rate at which cost recovery is made is concerned, the same being an administrative decision, CESTAT has no jurisdiction - appeal to that extent is not maintainable: CESTAT [para 4]


CC Vs Steel Authority Of India Ltd (Dated: November 30, 2015)

Cus - Respondent filing application for early hearing on the ground that on account of order passed by Commissioner (A) they are entitled for refund of duty and the amount involved is substantial; that Revenue appeal is pending for more than six years in Tribunal & that issue in dispute is covered by decisions viz. Aman Medical Products Ltd. - 2009-TIOL-566-HC-Del-Cus & Cipla Ltd. - 2015-TIOL-201-CESTAT -MUM - applicant has prima facie case for early hearing - registry to list matter on 25.01.2016 - applicant allowed: CESTAT [para 2]

2016-TIOL-99-CESTAT-MAD

Ansaldo Sts Transportation Systems India Pvt Ltd Vs CC (Dated: October 16, 2015)

Customs - Valuation - Related Persons - Appellant is engaged in supply, installation and commissioning of Railway Signaling Equipments and imported various related parts and components from their related supplier and its 100% subsidiaries - On the ground that appellant firm is a subsidiary of principal foreign company which holds 100% equity, importer and supplier are held to be related persons in terms of Rule 2(2) of the Rules; discounts were disallowed; transaction value was rejected under rule 4(3)(a) and was loaded and determined under Rule 8; lumpsum payments made as roya lty, technical knowhow fee, etc., were added - As regards the issue that whether the importer and supplier are related persons, Revenue submits that the fact was found only on investigation and appellant they themselves did not disclose that they are related persons at the time of imports and such declaration is mandatory - Appellant submits that they have not only imported the goods from principalfirm but there are other independent transactions with other group companies - From perusal of records, no dispute on the fact that appellant is a 100% subsidiary of the principal firm which is evident from appellant's own letter addressed to DC Customs (SVB) stating that the principal firm have acquired 7 companies under consolidation process - After consolidation process, principal firm became a single market leader worldwide holding patent for the concerned technology - Appellant's only customer in India is Indian Railways - Appellant also confirmed that these products cannot be used by any other customer in India - From 1999 onwards appellant imported various goods from 7 overseas companies and admittedly, majority of them are from the group companies in USA and France and imports from other group companies are minimal - Appellant also confirmed that principal company decides the corporate policy and all other matters - In such corporate background, it is clear that appellant and all 7 group companies are fully owned and controlled by principal firm and all the imports are made only from the said group companies a nd that there is no outside transaction - Hence, transaction between supplier and appellants cannot be a normal transaction and Lower authorities holding that the appellant and foreign supplier are ‘related persons', is correct - Impugned order is upheld - Customs Valuation Rules, 1988. (paras 10, 11, 13, 14)


2016-TIOL-98-CESTAT-HYD

Suvarna Aqua Farms And Exports Ltd Vs CC, CE & ST (Dated: December 15, 2015)

Customs - Appeal - Delay in filing appeal - condonation - appellant filed no application for extension of time, pleading financial distress. The appellant took its own time to predeposit the amount ordered, at its own convenience without any intimation to the Tribunal. - para 3 However, with a view to provide the appellant an opportunity to pursue its appeal on merits, Tribunal inclined to restore the appeal but on terms as to costs. Accordingly, on condition that appellant remits costs of Rs.5000/- (Rupees five thousand only) to the credit of Revenue within two weeks from today, the considerable delay in predeposit is condoned and the Final Order dt. 26/08/2013 dismissing the appeal is recalled. - para 4

2016-TIOL-97-CESTAT-BANG

Tirumala Bearings Pvt Ltd Vs CCE & C (Dated: October 14, 2015)

Customs - Refund - appellant imported bearings under the declared value, which was enhanced in adjudication, resulting in differential duty - On an appeal filed before the CESTAT, the differential duty was set aside with consequential relief admissible to the appellant in accordance with law - They filed a refund claim with the original adjudicating authority, which was credited to the Welfare Fund on the ground of

unjust enrichment - The same was upheld by Commissioner (Appeals), and agitated herein. Held: The appellants submitted a Chartered Accountant (CA) certificate indicating that duty element has not been received by them from their buyers - In terms of the majority ruling in the case of Business Overseas Corporation, the production of a CA certificate shifts the burden to the Revenue to prove recovery of extra duty collected from the customers by producing positive evidence - As the Revenue failed to advance any evidence to rebut the CA certificate, the allegation of unjust enrichment cannot be upheld - in the case of Deepak International, it was observed that CA certificate is to be given due evidentiary value - Tribunal in the case of CCE & ST, Jalandhar Vs. Shankar Printing Mills observed that as long as the amounts were shown in the balance sheet as recoverable and certified by the CA, the assessee can safely be held to have fulfilled principles of unjust enrichment - the CA certificate is a good evidence to show that the disputed duty amounts have not been collected from the customers and the same cannot be sidelined lightly without production of any other evidence - denial of the refund, which has arisen as a consequence of prolonged litigation by the appellant and the ultimate order of the Tribunal in their favour, on the ground of unjust enrichment is not justified; the impugned order is set aside.

2016-TIOL-96-CESTAT-MUM

Ajay Exports Vs CC (Dated: February 27, 2015)

Cus - Refund - Liability of the assessees was finalized on 7.2.2006 when the demand of duty was finalized and no further appeal was preferred by the parties - Thus refund became due from the end of the three months from such date - Therefore, assessee importers are entitled to the interest on refund after three months from 7.2.2006 till the date of grant of refund i.e from 7.5.2006 to 1.1.2008: CESTAT [para 5] Cus - Refund - Interest - Prayer for commercial interest @18% is rejected as Tribunal cannot grant interest at rate more than the rate prescribed under the statute viz. Section 27A of the Customs Act, 1962 as notified: CESTAT [para 6]


Chawla Trading Company Vs CC (Dated: September 12, 2015)

Cus - Commissioner has erred in issuing addendum to show-cause notice after receipt of the reply to show-cause notice dated 18.12.2009 - addendum is also vitiated on the ground that there is no reference in the show-cause notice of any samples being forwarded for test - findings of Commissioner are vitiated for not following the prescribed procedure of testing -When the law prescribes for a particular thing to be done in a particular manner, the same is to be done in the prescribed manner or not done at all: CESTAT [para 5] Cus - Commissioner has erred in observing that the DGFT Circular No. 33/08, permits only export of Basmati rice - on perusal of the said Circular, it is seen that the export of ‘PUSA 1121' variety is also permitted - Further, the test report brought on record subsequently is also vitiated as prescribed parameter of test i.e . size of length of the grain and the ratio of the length to breadth of the grain, as prescribed, have not been considered and as such the report is not reliable on this ground also - goods (rice under export) is not liable to confiscation - Appeal of exporter allowed & Revenue appeal dismissed: CESTAT [para 5, 6]


Samson Maritime Ltd Vs CC (Dated: October 8, 2015)

Cus - Misdirected and over enthusiasm by Customs leads to harassment - When by general practice the IGM/Bill of Entry was not filed for vessel imported into India when the duty was Nil, the proposition that duty may be levied after 14 years when the B/E

was 'got' filed would lead to an anachronistic situation - Demand of duty and confiscation set aside and so are penalties: CESTAT [para 6.1 to 6.5, 7, 8]


2016-TIOL-89-CESTAT-AHM

The Great Offshore Ltd Vs CC (Dated: October 29, 2015) Cus - Department was aware that vessel had been initially brought into Indian waters by its foreign owners as a foreign going vessel and was converted to coastal run vessel, on temporary basis, under a "leave boat charter" agreement - IGM and Bill of Entry were filed and appropriate duty on stores and bunkers were paid - Vessel was sold on a later date to an Indian entity (assessee) - Assessee should have amended IGM and filed Bill of Entry and paid applicable duty on vessel at that point of time, but they failed to do so - On realisation of same, they approached Department and sought permission to regularize the matter and pay appropriate duty - Department was aware of irregularities committed by assessee at time of first proceedings, wherein assessee were allowed to file Bill of Entry - It also appears that penalty was imposed at that time - Therefore, not amending the IGM amounts to only a technical offence, which calls for token penalty and token fine only - Redemption fine reduced to Rs.1 lakh and penalty to Rs.50,000.00: CESTAT


Sundaram Gems Pvt Ltd Vs CC (dated: December 17, 2015) Cus - Import of rough diamonds - Valuation report given by the panel of GJEPC is not signed by all members & cannot be considered as reliable as there are several discrepancies - moreover, members of expert panel who examined the diamonds are not qualified government approved valuers of diamonds - in the entire investigation, there is not a tip of evidence in support of the DRI allegation that overvaluation of the rough diamonds is for the purpose of money laundering, remittance of money overseas to cover the differential cost of other imports or to park money abroad for other unlawful activities - no misdeclaration of value of rough diamonds, so confiscation set aside - Appeals allowed: CESTAT [para 6.1, 6.2, 6.4, 6.7, 6.9. 6.11]



Mohan Singh Rajpurohit Vs CC (Dated: December 23, 2015)

Cus - Under the garb of rectification it is not appropriate to interfere with the order passed as the same would amount to reviewing the order - nonetheless, penalty cannot be imposed simultaneously on Proprietorship concern and Proprietor - penalty on Proprietor set aside - rest of the order remains intact - Application disposed of: CESTAT [para 5]



Shirpur Gold Refinery Ltd Vs CC (Dated: November 6, 2015)

Cus - Appellant imported gold for industrial use in terms of notification 12/2002-Cus - Wrongly shipped gold dore bar - supplier has accepted their mistake and was ready to take the return delivery of wrongly shipped gold dore bar - no payment made against shipment - Commissioner adjudicated the matter and observed that the appellant had violated the conditions of license issued by the DGFT for import of gold bar and also the condition of Customs Notification No. 12/2012 dated 17.3.2012 - Commissioner confiscating the gold bar and gave importer the option to redeem the goods for re-export on payment of Rs. 7 lakhs - A penalty of Rs. 3.5 lakhs was also imposed under Section 112(a) of the Customs Act - importer in appeal submitting that it was a genuine mistake and they had no intention to evade duty


Daimler Chrysler India Pvt Ltd Vs CC (Dated: September 11, 2015)

Cus - When import of identical cars have been made at lower values which are comparable to the value declared at the time of filing Bill of Entry for sale of the cars imported under Carnet, there is no justification to take the higher value mentioned in the Carnet - no reason to differentiate between the cars imported under Carnet and the cars imported otherwise - Valuation u/s 14 of the Customs Act clearly provides that the value shall be the transaction value where the buyer and seller are not related - In the present case even though buyer and seller are related it is established by the SVB order that the price has not influenced the relationship, therefore, the transaction value cannot be rejected - Carnet Form clearly declares the value to be commercial value in the country of its issue, which is Germany in the present case - Therefore, it is clear that the Carnet value does not constitute assessable value under Section 14 of the Customs Act - Appeal allowed: CESTAT [para 7, 8]

2016-TIOL-66-CESTAT-AHM

Ajanta Manufacturing Ltd Vs CC (Dated: October 12, 2015) Cus - Bills of Entry were filed by assessee wherein goods were described as "Part of CFL (Fluorescent Glass Tubes J5) classifiable under 8539.9010 - Goods were examined in detail by Customs officers in second check examination and were assessed at merit rate of duty and cleared out of Customs charge - Department was aware that goods attracted MPR assessment under Section 4A of CEA - Therefore, before final assessment of Bills of Entry, they should have raised question of proper valuation for assessment of CVD - Since they have not done so, extended period cannot be invoked - Demand beyond normal period of 6 months is set aside - Penalties are also set aside: CESTAT


Akshey Gupta Vs CC (Dated: October 14, 2015) Cus - Revocation of licence - Assessee is a holder of CHA licence - It is alleged that they have failed in discharging their obligations as per Regulation 13 (e) & 13 (o) of CHALR, 2004 - Such failure contributed to contrabands being exported out of country - In one specific case 30 kgs of Ketamine, prohibited under NDPS Act, was found to be exported to Canada - No verification of genuineness/existence of exporters have been made by assessee before accepting work of handling consignment for documentation and clearance through customs - Failure of assessee, apparently, is one of contributing factors in illicit exports: CESTAT

Cus - Though assessee did file electronically the shipping bill, thereafter they did not do any further work relating to export cargo - Revocation of CHA licence is too harsh a

consequence for omission of assessee as they were not involved in any act of entering and presenting cargo and processing document with customs - For failure to cross check KYC papers, forfeiture of bank guarantee of Rs.50,000/- will be sufficient penalty - Case does not warrant revocation of CHA licence: CESTAT


CC Vs Smt Louis Premalatha (Dated: September 30, 2015)

Customs - Investigation - Adjudication - Appeal - Smuggling Racket - No Show Cause Notice issued to respondent; cannot be impleaded at appeal stage : It is surprising that the show cause notice does not reveal any incriminating evidence against respondent. Therefore, in absence of justifiable ground by Revenue in its appeal, it is very difficult at this stage to implead M/s. Carvel Shipping Services Pvt. Ltd. as respondent. Therefore, Revenue's appeal against M/s. Carvel Shipping Services Pvt. Ltd. is dismissed. But it does not mean to say that there was no smuggling racket operate d to occasion export of the smuggled zirconia into India from Malaysia by a premeditated design. - para 7

Total Failure of Investigation :It is certainly a truth that there was a smuggling racket operated to bring cubic zirconium into India. It is also shocking to note that there was a total failure of investigation to conduct proper investigation in India and overseas. When the investigating authority as well as adjudicating authority failed in their duty to bring necessary parties to the fold of law, it is not possible at appellate stage to implead them and press them to undergo trial. M/s. Caravel Shipping Services Pte. Ltd. was neither issued show cause notice nor was adjudicated. There appears lapse on the part of adjudicating authority to keep this concern out of purview of adjudication. No efforts were made by investigation to identify the members of the smuggling racket. - Para 7.4


CC Vs Alufit India Pvt Ltd (Dated: December 11, 2015)

Customs - Appeal by Revenue -Review by Committee of Commissioners - Same order of Appellate Commissioner reviewed by two Committees - Condonation of delay of 947 days: The Revenue seeking to condone the delay of 947 days for the reasons of two Review Committee orders dt. 21.12.2012 and 24.4.2015 is not justified. Section 129A (2) or Section 129D of Customs Act does not empower the Committee of Commissioners to review their own order again and take different view. There is also a time limit to review any order and the section does not empower the Committee to review the order beyond the specified period. The reason for condoning the delay of 947 days is devoid of merit. Accordingly, MA (COD) is rejected. Consequently, the Revenue Appeal along with Miscellaneous Application for stay of the impugned order is also rejected.

Issue brought to the notice of the CBEC to take necessary steps : Issue is brought to the notice of the CBEC [Board] and Chief Commissioner of Customs, Chennai to take necessary steps on the powers of Committee to review the orders under Section 129D and 129A (2) of Customs Act and issue necessary guidelines to the field formations as deem fit. Registry is directed to forward the copy of this order to Chairman, CBEC, New Delhi and Chief Commissioner of Customs, Chennai.


Sheel Chand Agrolls Pvt Ltd Vs CC (Dated: September 30, 2015)

Customs - Benefit of Exemption - Benefit of notification providing exemption to imports from Sri Lanka under ISFTA denied to 'RBD Palmolein Mixture' imported by appellant on the ground that as per the test report goods were edible and so are not classifiable under CH 1518 which covers inedible mixtures and so the imports had not undergone a change of classification at the four digit level in Sri Lanka and does not satisfy the condition of Country of Origin - From FDA test report, it is clear that goods conformed to the standards of RBD Palmolein under Item No.A-17.20 read with Item No.A-17.15 of Appendix 'B' of PFA Rules (1955) as refined vegetable oil which means that the goods were edible, hence Commissioner's observation that it does not conform to the standards has no basis - Appellant's contention that the goods were correctly classifiable under CTH 15.17 as edible mixture and not under 15.18, has credibility specially when it is seen that the exporter applied to Sri Lankan Customs Authorities for export of 'RBD Palmolein mixture' under brand name SOGO cooking oil mixture containing 80% imported palmolein and 20% coconut oil mixed in mechanized process and claimed classification under CTH 15.17 which was in accordance with the opinion of Sri Lankan Customs Authorities as is evident from their endorsement dt. 19.5.2004 - Relying on the certification, no doubt that the goods (palmolein oil CTH 1511) imported into Sri Lanka had undergone a change at four digit level which means that the goods exported to India are classifiable under 15.17 - Appellant is able to demonstrate that the classification under CTH 15.18 (instead of 15.17) shown by exporter in the invoice was pure oversight - Even if classification is taken as CTH 15.18 even then the Country of Origin requirements remain satisfied, hence for duty assessment, controversy on classification is not of any consequence - Moreover, since mixtures of 80% Palmolein and 20% coconut oil can conform to the standards of RBD Palmolein, FDA report is in support of appellant's claim on classification - As per the D.O.O. Rules conditions for declaring the goods as of Sri Lankan origin is that (a) processing in Sri Lanka should result in change of classification at 4 digit level (b) third Country goods should not account for more than 65% of the FOB value of the goods and (c) goods should be accompanied by Country of Origin certificate - Revenue acknowledged that the certificate of country of origin was issued by competent Sri Lankan authority certifying that the value of non-originating material is 54.23% which is less than the 65% of FOB value of the goods - Hence it conforms to the Rule 7(b) and appellant is eligible for benefit of exemption - Appeal allowed - D.O.O Rules, 2000 - Notification No.26/2000-Cus, dt. 1.3.2000. (paras1, 2, 5, 6)


M/s Gupta Fast Forwarders Pvt Ltd Vs CC (Dated: October 28, 2015)

Customs - Customs Broker - Revocation of License - Appellant's customs broker license revoked on the ground that the duty amounts relating to some of the Bills of entry handled by him were misappropriated without being deposited to Govt. account and imported goods were cleared on forged challans - Appellant submits that the revocation order is unduly harsh and disproportionate to his role in alleged fraud as it was clearly established that it was the two employees who were responsible for the fraud and that he had made good the entire amount by paying it with interest which shows his innocence - Impugned order has found that the license has been illegally transferred as appellant had allowed the two 'H' card holders untrammelled access to importers through the license, that he has not acted diligently and that the acts of omission and commission are in contravention of Regulations 11 and 18 - It is apparent that the licensing authority has, after careful consideration of investigation into misappropriation and having complied with procedure laid down in the Regulations, invoked penal provisions - There is no challenge in the appeal on this score - The claim of absence of motive and non-involvement seems to be the main thrust of the plea for a lesser penalty - Plea of leniency and of proportionality of punishment does not sit well in the circumstances especially when perpetrators were afforded this opportunity to do so under the cove r of a valid broker's license - Possession of a broker's license brings with it a commensurate responsibility to be true to the source of livelihood i.e. fidelity in matters relating to collection and payment of statutory duties - All precedents relied on by appellant are not applicable to the facts as each revocation has it's own background and set of facts - No reason to

interfere with impugned order - Appeal rejected - Regulation 20(7) of Customs Broker Licensing Regulations, 2013. ( paras 2, 4, 5, 7, 8, 9)


M/s Ess Kay International Vs CC (Dated: November 8, 2015)

Customs - Stay/Dispensation of Pre-deposit - DEEC Scheme - Duty Demand - On the grounds that the raw materials imported duty free against DEEC were diverted into domestic market and were not used in manufacturing of the products to be exported and export obligation was fulfilled by using low quality domestic materials and appellants did not have manufacturing facility at all, demand for customs duty and penalty was raised - On the basis of certain statements recorded during the course of investigation and based on the fact that applicants were not having any manufacturing facility of the resultant product which were required to be exported by them, allegations were made - Appellant's contentions that they have already discharged their export obligation and a s licensing authority has not raised any objection to it and exported goods were duly examined and found to be manufactured and as declared, AA cannot demand duty; in the cases where no manufacturing facility was available, goods can be manufactured by job-worker and was done so; demand of duty jointly or severely is not sustainable in view of the precedents; their inculpatory statements which were retracted at the first available opportunity cannot be the basis for adjudication, can be discussed at the time of final hearing - However, at the stage, appellants failed to make out a case - In view of the precedent, pre deposit of 7.5% of the duty confirmed is ordered. (Paras 4, 5, 12, 13)


M/s UPS Jetair Express Pvt Ltd Vs CC (Dated: December 22, 2015)

Cus - Fact that the weight of consignment was 22 kg and the freight was Rs.25,000/- but the declared value was less than Rs.3000/- should have raised suspicion – Carton contained expensive cameras and memory cards whose value totaled Rs.65 lakhs and which were seized - appellant Courier company should have exercised due diligence in respect of the consignment – in the facts of the case, penalty imposed of Rs.1 lakh u/s 117 of Customs Act, 1962 is excessive, hence reduced to Rs.10,000/- - Appeal partly allowed: CESTAT [para 4]



Rico Gems Corporation Vs CC (Dated: December 14, 2015)

Cus - Valuation - Rules 5 & 6 of Customs Valuation Rules, 1988 - Once value of imported goods has been enhanced applying the contemporaneous value, no further enhancement is permissible - Basis on which the value of the Appellants imports is sought to be 'again' enhanced by the present SCN was already available with the department at the time of assessment of duty made by relying on contemporaneous value - Larger period of limitation not applicable - Appeals allowed: CESTAT [para 10, 11]



Interport Impex Pvt Ltd Vs CC (Dated: April 21, 2015)

Cus - Revoking of CHA License & forfeiture of the entire amount of security deposit - appellant, a CHA, had accepted documents for export clearance of a consignment of Dal husk - When the goods were de stuffed for examination, some of the goods were found to be non-basmati rice (prohibited goods) concealed behind the bags of dal husk - appellant is guilty of violating the CHALR Regulations - serious negligence resulted in an attempt to smuggled prohibited goods - However, the appellant cannot be disabled permanently for the violations as that would deprive him of his source of livelihood as well as deprive his employees of their source of livelihood - It would meet the ends of justice if the License is revoked for limited period - Having already suffered revocation for a year it would be sufficient punishment to continue the revocation till 31.12.015 - From 1.1.2016 the License would become operative on forfeiture of the security deposit - Appeal disposed of: CESTAT [para 9, 10, 11]


Raymond Ltd Vs CC (Dated: November 17, 2015) Cus - A refund claim is not an Appeal proceeding - The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer or for that matter review the same – Refund claim rightly rejected - Appeal dismissed: CESTAT [para 3, 5]



M/s Cosmos Electrodes Pvt Ltd Vs CCE (Dated: November 4, 2015) Cus - Notfn 4/2006-CE - Assessee imported rutile welding grade and claimed benefit of said Notfn for purpose of CVD - Lower adjudicating authorities held that as per Chapter Note-2 of Chapter 26, impugned goods did not qualify to be called "ore" - Held: Notfn 4/2006-CE inter alia unconditionally exempts ores falling under chapter heading 2601 to 2617 - It is nowhere brought out that goods imported were concentrates - If goods were not concentrates and were classified under 2614, they had to be "ore" - It axiomatically follows that there was no basis for lower authorities to deny benefit of said Notfn, when they have themselves classified impugned goods under 2614 and at no stage even hinted that goods were "concentrates" - Appeal allowed: CESTAT


M/s MMTC Ltd Vs CC (Dated: July 13, 2015) Cus - Pre -deposit - s.129E of Customs Act, 1962 - Differential customs duty on goods imported viz. Steam coal - whether Steam Coal classifiable under CTH 27011920 as contended by the importers or Bituminous Coal under CTH 27011200 as contended by the Revenue - issue stands referred to the Larger Bench in the case of Tamil Nadu Generation & Distribution Corporation Ltd. - 2014-TIOL-2503-CESTAT-MAD - Allahabad High Court in Ganesh Yadav - 2015-TIOL-1490-HC-ALL holding that amendment requiring mandatory deposit of 7.5% for hearing appeal is applicable only to those appeals which are filed after 06/08/2014 whereas Rajasthan High Court in case of Arjun Industries - 2015-TIOL-1364-HC-RAJ-CUS holding that effect of amendment could not be restricted only to appeals filed after 06/08/2014. Held: Rajasthan High Court is an interim one whereas Allahabad High Court order is a final order on the issue - following this decision as well as in view of the fact that the issue has been referred to the Larger Bench and Tribunal has granted stay in similar cases, in the present case also pre-deposit waived and stay granted: CESTAT [para 6, 7]


Divine Impex Vs CC (Dated: November 23, 2015) Cus - Condonation of delay of 583 days in filing the appeal - by filing an application under RTI Act, 2005, appellant was informed that the order dated 2.1.2013 passed by the Commissioner (Appeals) was dispatched by Speed Post on 3.1.2013, but the same was returned by Postal authority on 6.1.2013 with the remarks “not known” and when it came to the knowledge of the applicant, he wrote a letter to the office of the Commissioner (Appeals) on 19.8.2014 and thereafter he was supplied with the copy of the impugned order which was received by the applicant on 25.8.2014 and appeal filed - in view of the facts involved, delay condoned: CESTAT [para 3]


Shri Karni International Vs CCE & ST (Dated: September 16, 2015)

Cus - Appellant is not the actual user of the imported goods - It is also a fact that areca nuts/betel nuts were not specifically mentioned in the SION for Entries Nos. G-7 and G-46 pertaining to leather goods against the export of which the said DFIAs were issued - Thus, in terms of Public Notice dated 15.05.2012 the DFIAs produced by the appellant cannot be allowed to be used for the import of Areca nut / Betel nut – Public Notice has been issued statutorily - Order passed by lower authority does not suffer from any infirmity – Appeal dismissed: CESTAT [para 5, 6]

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