CESTAT RULING (CUSTOMS)...Cus - Goods imported by assessee was expecting grant of EPCG Licence in...

CESTAT RULING (CUSTOMS)

2017-TIOL-2785-CESTAT-MAD

Green Leaf Tobacco Threshers Ltd Vs CC (Dated: February 9, 2017)

Cus - Goods imported by assessee was expecting grant of EPCG Licence in theirfavour and also to be governed by EPCG Scheme - However, such licence was issuedon 18.04.2000 - Goods came to India on import was covered by Bill of Entry filed on25.04.2000 which was assessed on 05.05.2000 - Revenue says that there is no doubtthat para-2(1) is applicable to EPCG goods but on the relevant date of presentation ofBill of Entry, notfn 49/2000-Cus, had not seen the light of day - Accordingly, assesseecannot get the benefit under that notfn - Law is well settled that grant of a notfn iseffective from the date of its issue as has been held by Apex Court in Sunwin Technosolution Pvt. Ltd. - 2010-TIOL-108-SC-ST - Therefore, assessee is not entitled to getthe benefit of said notfn 49/2000-Cus which was not in force at the time of filing ofBill of Entry - In absence of any materials to show that EPCG licence was amended byauthority, there is no scope to intervene to the findings of Adjudicating authority:CESTAT

2017-TIOL-2784-CESTAT-DEL

CC Vs Sunrise Freight Forwarders Pvt Ltd (Dated: January 18, 2017)

Cus - Suspension of CHA license - It is the contention of assessee that suspension ofCHA stand revoked by Commissioner in terms of powers conferred under theRegulation 20(3) of CHALR, 2004 - CHALR, 2004 is a complete code of Regulation byitself and are not being governed by general provisions of Customs Act - Right toprefer an appeal to Tribunal under Sec. 129A of Customs Act, 1962 against an orderpassed under Regulation 21 or 23 is available only to the CHA - Revenue's appealsrejected as not maintainable: CESTAT

2017-TIOL-2776-CESTAT-BANG

S Ajay Vs CC (Dated: March 21, 2017)

Cus - Assessee imported vehicle through CHA declared as " one unit Splinter 315 CDI4.5 V8 " - The CHA filed a Bill of Entry on behalf of assessee for the clearance ofvehicle - Adjudicating Authority issued an order confiscating the vehicle forcontravening provisions of FTP and Customs Act - An option for redeeming the vehicleon payment of an R.F was granted - A personal penalty was also imposed on assessee- Vehicle imported is a brand new vehicle and assessee has produced a certificatefrom dealer that said vehicle conforms to EC Emission Regulation and further, in viewof judgment of Kerala High Court in Ankineedu Manganti , imposition of fine andpenalty is not justified and therefore, impugned order set aside by allowing the appealof assessee: CESTAT


Saral Communication Vs CC (Dated: February 15, 2017)

Cus - COD of more than 470 days - Assessee submitted that they were not aware ofimpugned order till recovery proceedings were initiated - Impugned order was sent toofficial, declared address of assessee and the same was returned by postal authoritieswith remark "no such firm" - Inquiry conducted by Department revealed that assesseeclaim for said address was fictitious and misleading - Assessee attitude of mis-

declaring the address is intended for non-bonafide reason - Revenue has takenadequate action to serve impugned order - Said order was displayed in notice board -Hence, Tribunal is not persuaded to accept that order was not served in terms ofSection 153 of Customs Act, 1962 - No reasonable cause for such delay has beenexplained by assessee: CESTAT


A Rajkumari Vs CC (Dated: May 8, 2017)

Cus - Assessee is an importer of aluminium scrap - It stated the description of Cargoas STC Aluminium scrap Tread net weight 22.096 MT with Ankit Metals as consigneeunder bill of lading dated 10.11.2015 - Trans Asian Shipping Services Pvt. Ltd.requested an amendment in IGM i.e change of "Aluminium Scrap Tread 22.096MT" to"Aluminium Scrap Tread 7.552 MT & Copper Berry/Clove 14.544 MT" on the basis ofNOC letter of M/s. Ankit Metals which was turned down by the Assistant CommissionerCustoms - It is a case of mis-declaration by the assessee with intention to evadeCustoms duty - However penalty imposed is reduced u/s 112(a) and the penalty u/s114AA is reduced Rs.2 lacs - Further, redemption fine is reduced Rs.2 lacs - Goods aredirected to be released on payment of modified penalty and fine along with thedifferential duty subject to verification of duty already paid: CESTAT

2017-TIOL-2760-CESTAT-ALL

Ankit Metals Vs CC, CE & ST (Dated: December 16, 2016)

Cus - Assessee is an importer of aluminium scrap - It stated the description of Cargoas STC Aluminium scrap Tread net weight 22.096 MT with Ankit Metals as consigneeunder bill of lading dated 10.11.2015 - Trans Asian Shipping Services Pvt. Ltd.requested an amendment in IGM i.e change of "Aluminium Scrap Tread 22.096MT" to"Aluminium Scrap Tread 7.552 MT & Copper Berry/Clove 14.544 MT" on the basis ofNOC letter of M/s. Ankit Metals which was turned down by the Assistant CommissionerCustoms - It is a case of mis-declaration by the assessee with intention to evadeCustoms duty - However penalty imposed is reduced u/s 112(a) and the penalty u/s114AA is reduced Rs.2 lacs - Further, redemption fine is reduced Rs.2 lacs - Goods aredirected to be released on payment of modified penalty and fine along with thedifferential duty subject to verification of duty already paid: CESTAT


Korigen Enterprises Vs CC & ST (Dated: May 24, 2017)

Cus - Assessee had imported raw silk and cleared the same under Into-Bond Bill ofEntry and warehoused the goods - Subsequently, said warehoused goods werecleared under Ex-bond Bill of Entry for home consumption, at which time the value ofgoods was enhanced resulting in excess payment of duty - Assessee cleared thegoods on enhanced value without any protest and subsequently sought refund ofdifferential duty paid due to enhancement or to issue a speaking order giving reasonsfor enhancement - Lower authority held that assessment is final due to the fact thatassessee did not protest the enhancement during assessment but at a later date videhis letters, after assessment was over as well as did not prefer any appeal to appellateauthority - There is no infirmity in impugned order, as assessee are not entitled toclaim refund unless they challenge the assessment order which has not been done:CESTAT


CC Vs Hindustan Organic Chemicals Ltd (Dated: March 7, 2017)

Cus - Assessee filed a refund claim for amount said to be duty paid in excess on theground that there was change in price due to change in port of discharge andresultant freight reduction which were not considered during assessment - Thoughoriginal authority has sanctioned the refund but credited the same to consumerwelfare fund on the ground that assessee has not proved that incidence of duty hasnot been passed on to buyer - Commissioner (A) by relying upon judgment of HighCourt in Karnataka State Agro Corporation Ltd - 2006-TIOL-288-HC-KAR-CX, hascome to the conclusion that bar of unjust enrichment is not applicable - Moreover,assessee has already produced the certificate of CA which is only to prove thatincidence of duty has not been passed on to the buyer - No merit found in appeal ofRevenue and same is hereby dismissed: CESTAT


Baburam Premchand Vs CCE (Dated: March 8, 2017)

Cus - In course of investigation, Customs found Tins Sheets in custody of assesseeout of past imports made through three Bills of Entry misdeclaring that to besecondary and defective - Those were seized and confiscated - Live consignmentcomprised Tin Sheet/Coils imported misdeclaring that as TFSSD - Physicalexamination resulted that live consignments was misdeclared as to description ofgoods and value thereof - Assessee has no evidence to discard the allegations andphysical examination result as well as NML test result - Once the goods weresubjected to be confiscation by aforesaid act, that became smuggled goods undersection 2 (39) of Customs Act, 1962 - There is no possibility at all to grant any reliefto assessee or to intervene to adjudication finding: CESTAT

2017-TIOL-2737-CESTAT-MUM

Susheel Mohla Vs CC (Dated: February 7, 2017)

Cus - Penalty - It is alleged that assessee's G-Card holder filed shipping bills on behalfof exporter in respect of goods which were of nil value, showing the same to be ofcommercial value - However, G-Card holder has nowhere accepted that shipping billswere filed by him - As per finding of appellate authority himself, there is no roleplayed by CHA - If that be so, penalty under section 114 cannot be imposed on him:CESTAT


Great Eastern Shipping Company Ltd Vs CC (Dated: June 13, 2017)

Cus - Assessee's vessel "Jag Palak" was converted to coastal status at Cochin andentire quantity of consumables i.e. furnace oil, diesel oil, lube oil and provisions wereestimated to be consumed by vessel during its coastal run - Concerned assessingofficer had charged additional duty of customs @ 4% advalorem on furnace oil -Further as per Sl No 2 of Notfn 20/2006, furnace oil is exempted from payment ofadditional duty of customs - Department directed the company to file an appealchallenging original assessment for claiming refund of excess duty paid as perprovisions of circular 24/2004-Cus - Issue is no more resintegra and has been settledin favour of Revenue by decision of Supreme Court in case of Priya Blue Industries Ltdand Flock India Pvt ltd - Assessee is not entitled to refund without challengingassessment made by competent officer - There is no infirmity in impugned order andtherefore impugned order is upheld: CESTAT


Scorpian International Vs CC, CCE & ST (Dated: May 9, 2017)

Cus - Assessee imported subject goods from China and filed bills of entry alongwithpacking list for clearances on said goods - During course of physical verification,goods were not found as declared - Assessee contends that it is an inadvertentmistake of supplier of goods while revenue has alleged that it is an afterthought -Malafide intention of assessee is missing - As assessee has placed order to foreignsupplier and he has filed bills of entry as per packing list and declaration made bysupplier in invoices - Assessee has declared description, quantity and value of goodsas per the invoice/ packing list, therefore, benefit of doubt goes in favour of assesseethat it is an inadvertent mistake of supplier by non supplying the goods as perinvoice/order/ packing list - Goods cannot be held liable for confiscation andconsequently, penalty is not imposable on assessee - It is brought on record byAdjudicating authority, some market survey has been conducted - Report of marketsurvey is required to provide to assessee in interest of justice for adjudication:CESTAT


CC Vs Agarwal Associates (Dated: June 7, 2017)

Customs - Respondent filed 31 shipping bills for the export of Iron Ore Fines -Assessment for valuation of export goods was provisional and finalized later -Assistant Commissioner was of the opinion that freight charges should be includedwhich was contested by the respondent stating that they have already included freightfor transportation of export goods and that they had purchased export goods onprincipal to principal basis and the cost of transportation from mines to Gorakhpurwas already included in the price that was charged - Yet, the respondent was chargedfor freight and directed to pay differential export duty within a period of 7 days - Onappeal, Commissioner (A) set aside the impugned order - Hence, the present appealby Revenue.

Held: Commissioner (A) held that "M/s Gallant Ispat Ltd., Gorakhpur had purchasedIron Ore/ Iron Ore Fines as input and Iron Ore Fines were sold to respondent and thatthe report by C.A. indicated that freight charges incurred to transport Iron Ore fromOrissa to Gorakhpur was taken into account of M/s Gallant Ispat Ltd., Gorakhpur andshown in Balance Sheet while calculating profit or loss in the Profit & Loss Account -respondent was an independent buyer of Iron Ore Fines from M/s Gallant Ispat Ltd.,Gorakhpur - principal to principal basis - the freight would not form part of transactionvalue of the export goods by the respondent” - Revenue has not bought forward anyground to contest the above finding - No merit in the appeal filed - No grounds tointerfere with the value of export goods - Appeal dismissed - (Para 2, & 5).


Elgin Electronics Vs CC (Dated: June 12, 2017)

Customs - Preliminary plea that the show cause notice in the instant case was issuedby the Directorate of Revenue Intelligence (DRI) - the request is being made to setaside the present proceedings where the notice was issued by the DRI.

Held: Preliminary issue emerges in the present appeal is regarding the jurisdiction ofthe DRI Officers to issue the show cause notice under the Customs Act - The ApexCourt in its decision in the case of CC Vs. Sayed Ali = 2011-TIOL-20-SC-CUS heldthat DRI officers were not proper officers in terms of Section 2(34) of the Customs,Act, 1962 but later on the provisions were amended – to overcome the sayed ali

judgement Notification No.44/2011-Cus (NT) , was issued by the CBEC, assigning thefunctions of the proper officer to various officers (including Additional DirectorGeneral, DRI) mentioned in the notification for the purposes of Section 28 of the Act -ADG-DRI has been empowered to issue demand notice under Section 28 – Same issueof DRI officers having the proper jurisdiction to issue the SCN came up before theHon'ble Delhi High Court in the case of Mangali Impex Vs. UOI = 2016-TIOL-877-HC-DEL-CUS - Hon'ble Delhi High Court is in favour of the assessee and against theRevenue and the decision stands stayed by the Hon'ble Supreme Court – Hence, itshows that there are two views holding the field and the matter now stand before theHon'ble Supreme Court - deemed fit to set aside the impugned orders and remand thematters to the original adjudicating authority to first decide the issue of jurisdiction,after the availability of Supreme Court decision in the case of Mangali Impex – Appealallowed by way of remand – (Para 7-13).


Mammed Koya Abdul Riyaz Vs CC & CE (Dated: May 2, 2017)

Cus - Assessee was a passenger who arrived at Calicut Airport by flight from Dubai -At the arrival hall of airport, he was intercepted and his baggage was searched whichwas found to contain various types of memory storage devices for cellphones - Goodswere seized on reasonable belief that same were smuggled into India and were incommercial quantity and not a bona fide baggage and hence liable to confiscationunder Customs Act, 1962 - Assessee has made a true and complete declaration ofcontents of bags to intelligence officers when questioned - He was arrested byCustoms authorities and at the time of consideration of bail application, AdditionalChief Judicial Magistrate, in his order has accepted the plea of assessee that he wasnot given an opportunity to make a declaration of dutiable articles brought by himfrom abroad - He has also observed that it is not the case of customs that accusedhad made a false declaration before customs authorities - Accordingly, he hasreleased the passenger on bail - Conditions of Section 77 and 80 have been satisfied -Hence, assessee may be permitted to re-export the goods - Under suchcircumstances, penalty imposed under Section 112(a) is set aside: CESTAT


Mahamaya Overseas Pvt Ltd Vs CC (Dated: June 21, 2017)

Customs - the notice has been issued by the Commissioner of Customs (Prev)/JointCommissioner of Customs (Prev) which resulted in the impugned orders - similarissues have been dealt with in various cases by the Tribunal recently - It is held thatthe matters have to be remanded back to the original authority for a decision after thelegal issue is settled by the Hon'ble Supreme Court.

Held: The decision of the Tribunal in one such case vide Final Order No. 53941-53942of 2017 dated 12/06/2017 held that “The Apex Court in its decision in the case of CCVs. Sayed Ali = 2011-TIOL-20-SC-CUS held that DRI officers were not properofficers in terms of Section 2(34) of the Customs, Act, 1962 but later on theprovisions were amended – to overcome the sayed ali judgement NotificationNo.44/2011-Cus (NT) , was issued by the CBEC, assigning the functions of the properofficer to various officers (including Additional Director General, DRI) mentioned in thenotification for the purposes of Section 28 of the Act - ADG-DRI has been empoweredto issue demand notice under Section 28 – Same issue of DRI officers having theproper jurisdiction to issue the SCN came up before the Hon'ble Delhi High Court inthe case of Mangali Impex Vs. UOI = 2016-TIOL-877-HC-DEL-CUS - Hon'ble DelhiHigh Court is in favour of the assessee and against the Revenue and the decisionstands stayed by the Hon'ble Supreme Court – Hence, it shows that there are twoviews holding the field and the matter now stand before the Hon'ble Supreme Court -deemed fit to set aside the impugned orders and remand the matters to the original

adjudicating authority to first decide the issue of jurisdiction, after the availability ofSupreme Court decision in the case of Mangali Impex – Appeal allowed by way ofremand” – Hence, the matters are remanded. ( para 3 & 4).


Manish Gupta Vs CC (Dated: June 28, 2017)

Cus - COD - It is found that impugned order dated 13.05.2015 was dispatched on18.05.2015 and during material time, assessee was out of Country - Finally on hisreturn from abroad, he approached the Department for a certified copy of impugnedorder and on receipt of said order on 09.02.2017, he has filed appeal before Tribunalon 24.04.2017 - On perusal of written note and available documents, it is found thatthere is no delay in filing the appeal before Tribunal inasmuch as, same was filedwithin stipulated time from date of receipt of certified copy of impugned order -Accordingly, COD application is disposed of - Appeal to come up for hearing on07.08.2017: CESTAT


Raj Television Network Ltd Vs CC (Dated: April 28, 2017)

Cus - Assessee had filed Bill of Entry for import of two items namely ComputerSystem with model VTP 560 SAMS workstation classifying the goods under CTH847150 and CETH 847100 with BCD 15%, CVD 16%, and SAD 4% and " IT softwareCA " and SAM software with 2000 pieces of " Smart Cards " classifying the goodsunder CTH 852499 and CETH 852420 and claimed NIL rate of duty under CustomsNotfn 21/02 - Imported goods were intended to be used as an integrated solution tomanage subscribers and dealers access rights - Documents accompanying importedgoods in title clearly states that software is loaded along with machine and has alsocertified that only Raj TV can make use of software exclusively, as evident from theletter of foreign supplier M/s. Nagra Vision - It is not in dispute that at the time ofimport, assessee have claimed CTH 8471 only for hardware and for software portionthey claimed CTH 852499 - It is evident that software was very much part ofhardware imported - It appears to reason that software has been embedded alongwith hardware - Assessee have not been able to prove otherwise - Nevertheless,adjudicating authority has arrived at a reasoned finding, more or less in keeping withassessee's own declaration - However, only difference being that the software oughtto be cleared under a separate heading has also been brought together with computersystem, as a composite unit classifiable under Chapter 8471 - Following the ratio ofTribunal's Larger Bench decision in case of Bhagyanagar Metals Ltd ., no merit foundin appeal filed by assessee, for which reason, same is dismissed: CESTAT

2017-TIOL-2684-CESTAT-HYD

TATA Chemicals Ltd Vs CC (Dated: June 22, 2017)

Cus - Whether assessee is required to discharge Anti dumping duty on Soda Ashimported as per Sl 21 of Notfn 34/2012-Cus or as per Sl 22 of same Notfn - Assesseeis a manufacturer of soda ash in India and also has manufacturing facility abroad -One of sister concern namely Tata Chemicals, Kenya are engaged in manufacture ofvarious grades of soda ash and assessee imports, stores, markets and sells this sodaash manufactured by their subsidiary companies in Kenya - It is found from specimentypical bill of lading of Maersk, which indicates that goods are loaded for export byTata Chemicals Magada Ltd., Kenya but it clearly says " on behalf of " Tata Chemicals,Singapore; it also indicates that party to be notified about shipments is Tata

Chemicals, Singapore - Sl 22 of Notfn 34/2012-Cus is for import of higher ADD inrespect of goods produced in Kenya but cleared from Kenya another exporter - Thereis no dispute as to the fact that exporter is Tata Chemicals, Singapore and TataChemicals, Kenya is a manufacturer and has loaded the goods from Kenya - Findingsof first appellate authority on this point are very correct and in consonance of law -Even if exporter is situated at any other place other than place of loading, he can beconsidered as exporter, and it is to be held that the exporter in these cases is TataChemicals, Singapore - Impugned orders are correct and legal and does not sufferfrom any infirmity, hence require no interference: CESTAT


BBL Foods Pvt Ltd Vs CCE & C (Dated: April 12, 2017)

Customs – Import of consignment of second hand machines – DRI examined theconsignment and alleged undervaluation and the goods were seized – Appellantvoluntarily paid a certain amount towards differential customs duty in respect of themachines imported – SCN issued proposing rejection of declared assessable values inrespect of machines and redetermination thereof, demand of differential customsduties, confiscation of the seized machines, imposition of penalty under Sections 114Aand 112 of the Customs Act, 1962 - original authority vide impugned order interaliaordered redetermination of transaction value and also demanded differential dutyunder proviso to Section 28(1) of the Customs Act, 1962, confiscated the goods,however allowed redemption of the same on payment of fine - Penalty was alsoimposed on BBL under Section 114 of the Act subject to payment of reduced penaltywithin 30 days of date of communication of the order.

Held: the appellant has alleged that the adjudicating authority has not followedprocedure stipulated in Customs Valuation Rules, 1988 - These contentions of theappellant are misconceived - the adjudicating authority has applied his mind and hascogently analysed the matter as required under the Customs Valuation Rules, whilearriving at redetermined values of the imported goods - there were no majorprocedure irregularities in arriving at the assessable value of the impugned goods -pertinent to note that on the one hand, the appellants have preferred to importmachineries of around 20 years old with very little life remaining working life, whichfact they have not declared in any of the two Bills of Entry filed by them and havegrossly undervalued the assessable values of the imported items - the originalauthority has worked out the assessable value on the basis of manufacturer's valuesuggested by local Chartered Engineer and applied principles of depreciation as laiddown by CBEC and arrived at the derived total value – No reason or purpose tointerfere with the above assessable value arrived at by the original authority – Bothappeals are dismissed – (Para 8-11).


CC Vs Rajan Virji & Co. (Dated: May 31, 2017)

Cus – Unaccompanied baggage - Truthfulness of the result of inquiry is in doubt -inquiry report is not only cryptic but also depicts failure of duty – CC to conduct aninquiry as to the reason why such casual exercise has been made by the authoritiesbelow – When there is denial of passengers as to the appointment of CHA, thebaggage should not have been handed over to anybody - officers having casualapproach in discharge of their duty should be well alarmed and warned not tofrustrate the object of the statute - Revenue appeal dismissed: CESTAT [para 1, 2, 4]

Also see analysis of the order


Ashok Aggarwal Proprietor Vs CC (Dated: June 20, 2017)

Customs - the show cause notice in the instant case was issued by the Directorate ofRevenue Intelligence (DRI) - request is being made to set aside the presentproceedings where the notice was issued by the DRI.

Held: the preliminary issue emerges in the present appeal is regarding the jurisdictionof the DRI Officers to issue the show cause notice under the Customs Act - The ApexCourt in its decision in the case of CC Vs. Sayed Ali = 2011-TIOL-20-SC-CUS heldthat DRI officers were not proper officers in terms of Section 2(34) of the Customs,Act, 1962 but later on the provisions were amended – to overcome the sayed alijudgement Notification No.44/2011-Cus (NT) , was issued by the CBEC, assigning thefunctions of the proper officer to various officers (including Additional DirectorGeneral, DRI) mentioned in the notification for the purposes of Section 28 of the Act -ADG-DRI has been empowered to issue demand notice under Section 28 – Same issueof DRI officers having the proper jurisdiction to issue the SCN came up before theHon'ble Delhi High Court in the case of Mangali Impex Vs. UOI = 2016-TIOL-877-HC-DEL-CUS - Hon'ble Delhi High Court is in favour of the assessee and against theRevenue and the decision stands stayed by the Hon'ble Supreme Court – Hence, itshows that there are two views holding the field and the matter now stand before theHon'ble Supreme Court - deemed fit to set aside the impugned orders and remand thematters to the original adjudicating authority to first decide the issue of jurisdiction,after the availability of Supreme Court decision in the case of Mangali Impex – Appealallowed by way of remand – (Para 7-14).


Tina Enterprises Vs CC (Dated: May 22, 2017)

Cus - Notification nos.6/2006 and 10/2006 - sun glasses and goggles - exemptionfrom additional duty of customs not granted - appeal to CESTAT.

Held: There is no cogent evidence brought on record by the appellant to contradictconcurrent findings of both the authorities below - lower authorities are correct to holdthat sun glasses are not used for vision correction and goggles do not includesunglasses - no scope to interfere with the order - appeal rejected : CESTAT [para 4]


CC Vs Vikas Trading Company (Dated: May 24, 2017)

Cus - Imposition of interest - Sub-section (3) to section 18 of the Customs Act, 1962was not existing during the period of import i.e. January-February 2006 to which theadjudication relates - Therefore, Revenue's prayer to direct for payment of interest isuntenable - Revenue appeal is dismissed: CESTAT [para 2]


Mohd Habib Shaikh Imam Vs CC (Dated: June 12, 2017)

Cus - Appellants had imported motor vehicles under the facility extended to returningnon-residents by which many of the conditions of import applicable to second-handvehicles under public notice no.3/97 dated 31.3.1997 of the FTP were waived - thecars were found to have been violative of the condition of having been in thepossession of importer while abroad for at least one year for cars with engine capacityof over 1600 cc and the value declared was also found to be inconsistent with that

generally adopted for vehicles of the declared year of manufacture - accordingly, thebills of entry filed by appellants were subjected to enhancement of value andadjudicated for violating the condition of possession; the cars were confiscated andpermitted to be redeemed on payment of fine under section 125 of Customs Act, 1962- subsequent investigations led to the discovery that the year of manufacture of thesevehicles had also been incorrectly declared, that these were not as old as they wereclaimed to be and, consequently, were subject to adjudication for recovery of thedifferential duty under section 28 of the Act, the interest thereon, and penaltyimposed under section 114A of the Act - the first appellate authority rejected theappeals of the three importers, therefore, appeal before CESTAT.

HELD - It is clear from the records and submissions that some eligible importers hadbeen persuaded to procure vehicles for resale in India and, thereby, overcome therestrictions that are placed on import of new and second-hand vehicles by Indianresidents - the existence of records pertaining to manufacture of vehicles are noteasily discredited; there seems to be no such challenge made on behalf of theappellants - there is no reason to doubt the veracity and authenticity of the pricecertificates issued for the three vehicles - there has been a mis-declaration of the yearof manufacture leading to undue benefit in the duty that is to be levied on the vehicles- the invoking of the extended period in section 28 of the Act cannot be faulted - theappellants also challenge the imposition of penalty without the pre-requisite ofconfiscation of the vehicles - it is found that the adjudicating authority has invokedsection 114A of the Act and the ingredients that warrant the invoking of this section isidentical to that for invoking the extended period - consequently, the imposition ofpenalty under section 114A of the Act also cannot be faulted - the appeals are withoutmerit and are dismissed : CESTAT [para 8, 9, 11]


Shri Ram Enterprises Vs CC (Dated: June 1, 2017)

Cus -Redemption fine of Rs.2.65 lakh imposed against the consignment covered byshipping bill dated 16.2.1999 - goods were provisionally allowed to be cleared forexport following the ratio laid down by the Supreme Court in the case of WesternComponents Ltd.- appellant submitting that when goods were not cleared under Bond,there shall not be redemption fine - appeal to CESTAT.

HELD - Goods were cleared provisionally noticing over-valuation thereof made byappellant to get undue benefit of DEPB - finality of adjudication resulted in finding ofover-valuation -once the case is of confiscability, imposition of redemption fine is sinequa non - claim of DEPB is dependent upon unconditional clearance - provisionalclearance being conditional, there is bond or obligation attached to the clearance -here execution of a bond in paper is a mere formality, but an obligation attached tothe clearance is a bond - therefore, the imposition of redemption fine is confirmed andappeal is dismissed : CESTAT [para 7]


Somani Cotsynth Ltd Vs CC (Dated: March 30, 2017)

Cus -Proceedings were initiated against the appellants and others for havingattempted to export sub-standard fabric which were claimed to be 'processed man-made fabric' - it was alleged in the SCN that the goods were highly overvalued, thatthe quantity was mis-declared in the export documents and that the intent had beento claim undue credit under the DEPB scheme,- vide impugned order, the originalauthority has rendered a finding that the goods were manufactured out of inferiorpolyester filament yarn, measuring less than half the declared quantity and inflated byabout ten times the actual market value - he imposed penalties of Rs.5 lakh each onthe appellant-individuals and Rs.10 lakhs on the appellant-exporter besides

confiscating the export goods which were allowed to be redeemed on payment of fineof Rs.20 lakhs and, by re-determining the value as Rs.60.98 lakhs instead of thedeclared Rs.5.70 crore, reduced the entitlement of DEPB credit to Rs.7.92 lakh insteadof the claimed Rs.74.13 lakh - appellants are in appeal before the CESTAT andcontend that the value declared is correct, that the adopted value has no relation withthe value at which they procured the goods, that the goods having been subject toexamination were found to be in order by customs authorities, and that the forgeddocuments had been inserted by the clearing agent who has a past record of suchmisdemeanours.

HELD - Regarding appropriateness of invoking section 113(d) of Customs Act, 1962[Act], there is ample evidence that the quantity stated to have been exported is amisrepresentation -investigations have also revealed that ARE-1s submitted to thecustoms authorities were not authentic -an attempt has been made to portray theagent as the villain of the piece; this fails to impress as there is no conceivable motivefor the agent to indulge in such misdemeanous when the appellant-exporter,admittedly, would derive the benefit of higher credit entitlement - the decision in re :Vittessee Export Import [ 2007-TIOL-2352-CESTAT-MUM ] cited on behalf of theappellant, would not come to their assistance as the declarations, as well as thesupporting documents, are shown to be erroneous -the Supreme Court has, in thecase of Suresh Jhunjhunwala [ 2006-TIOL-131-SC-CUS ] held that the definition ofprohibited goods is a broad one - the said provision not only brings within its sweepan import or export of goods which is subject to any prohibition under the said Act;but also any other law for the time being in force, thereby firmly placing the seal ofapproval on action that is liable to be initiated against offending export goods when anattempt has been made to take advantage of schemes enshrined in the Foreign TradePolicy -in the light of this, the contention of the appellants that the confiscation ofgoods is without authority of law does not find sustenance - on the plea that the re-determination of value in the impugned order lacks authority of law, the decision ofthe Tribunal in the case of Abhishek Exports [ 2007-TIOL-26-CESTAT-BANG ] makes itabundantly clear that in cases where the export value is not correctly stated but thereis intentional over-invoicing for some other purpose, that is to say not mentioning truesale consideration of the goods, then it would amount to violation of the conditions forimport/export of the goods - the purpose may be money laundering or some otherpurpose, but it would certainly amount to illegal/unauthorized money transaction - inany case, over-invoicing of the export goods would result in illegal/irregulartransactions in foreign currency - t hat the two directors of the exporter company canalso be proceeded against has been decided by this Tribunal in Ramesh Jain- therigour prescribed in the case of Unimac (I) Ltd. would be relevant in the context of astatutory procedure inherent in recourse to Customs and Central Excise (Drawback)Rules, 1995 which the present export, admittedly, is not - that the 'present marketvalue' declared in the shipping bill is subject to scrutiny and action thereon isestablished by the decision of the Tribunal in Asian Exports [ 2008-TIOL-2803-CESTAT-MUM ] - the appellant claims, with reference to the decision of Larger Benchof the Tribunal in Arvind Export (P) Ltd. [ 2002-TIOL-141-CESTAT-DEL-LB ], that afresh determination of assessment without review and appeal is not correct in law-inthis regard Bench views that a re-determination for the purpose of establishingeligibility of export incentive does not stand on the same footing as an assessmentwhich is a statutory pre-requisite for levy of duties -therefore, the findings of theadjudicating authority are not in any way compromised by the ruling of the Tribunal inthe case of Arvind Export (P) Ltd. - considering the factual matrix emerging from theanalysis supra, it would appear that the appellants have not been able to furnishadequate justification for their appeal to sustain -in the circumstances, no reasonfound to interfere with the impugned order -appeals are, consequently, rejected :CESTAT [para 4, 5, 6, 7, 8, 10]]


Unicorn Industries Vs CC (Dated: May 2, 2017)

Cus - Raw material imported using Advance licences were not used in manufacture ofexport product but diverted into open market - no factory in existence - appellant did

not fulfill the export obligation - appellant violated EXIM Policy as well as customs lawand no foreign exchange came to India due to no use of imported goods inmanufacture to discharge export obligation - Object of notification was given burialdeath by the contumacious conduct of the appellant - appellant detained underCOFEPOSA for his criminality - in view of the above no considerable ground to lookinto the appeal further - appeal dismissed: CESTAT [para 1 to 4]



Rita Salil Shah Vs CC (Dated: April 10, 2017)

Cus - Import of Liquid level gauge (glass gauge) - appellant claimed classificationunder CTH 9026 9000 while Customs alleged that the products are righly classifiableunder CTH 7017 9090 - appeal to CESTATand appellant contends that the goodsimported were earlier classified under CTH 9026:

HELD - It is surprising how the department disturbed the classification withoutdischarging its burden of proof and without issuance of a SCN - that has deprived theappellant from the process of justice and there appears no foundation to disturb theclassification - taking into account the normal rules of classification that specific entryexcludes general description and the appellants' goods appears to be glass gauges,there is no justification to disturb the consistently followed classification in past -accordingly, appeal is allowed : CESTAT [para 4, 5]

2017-TIOL-2657-CESTAT-AHM

Neelkamal Global Resources Pvt Ltd Vs CC (Dated: June 30, 2017)

Cus - Assessee had filed refund claims in terms of Notfn 102/2007 claiming refund of4% SAD paid at the time of import - Adjudicating Authority rejected the amount partlyas refund claim was filed after one year from date of import of goods - Similarly,refund claims in other cases were also rejected on grounds of limitation - Refundclaims in all appeals pertain to period after 01.08.2008 - Therefore, as rightly pointedout by Revenue, principle of law laid down by Bombay High Court in Sony India Pvt.Ltd. 2014-TIOL-532-HC-DEL-CUS cannot be made applicable to the present case - Onthe other hand, judgement of Gujarat High Court in case of Indian Oil Corporation Ltd.is squarely applicable whereunder it is held that limitation prescribed for refundcannot be extended: CESTAT


Punj Lloyd Ltd Vs CC (Dated: March 10, 2017)

Cus - Appellant was awarded a contract by Bharat Petroleum Corporation Ltd. [BPCL]for laying of the pipeline for Mumbai-Manmad pipeline project for which pipes weresupplied by BPCL as free issue items – said project was notified by CentralGovernment under CH 98.01 OF CTA and by notification no.160/95-Cus – onrecommendation of BPCL, Ministry of Petroleum and Natural Gas issued EssentialityCertificate dated 6.3.1997 along with list of items to appellant for import for the saidproject – department registered their contract for import of goods at concessional rateof duty –subsequently, appellant imported field joint coating material, weldingelectrodes, magnetic ribbon and welding material and filed bills of entry – the lowerauthorities issued SCN to appellant asking to show cause as to why the provisionalregistration of the contract should not be finalised by assessing the goods imported asconsumables on merits and not as capital goods – demand of differential dutyconfirmed, penalties imposed, goods confiscated with an option to redeem the sameon payment of redemption fine – appeal to CESTAT.

HELD - The findings of the adjudicating authority in not extending the concessionalrate of duty to the appellant on these materials is only on the ground that the itemsare consumables and the imports are made by two separate importers i.e. BPCL aswell as the appellant herein - the adjudicating authority has lost sight of the fact thatthe Central Government of India has issued notification no.160/95 for Mumbai-Manmad pipeline project to be considered for project imports -for the said project,BPCL was the implementing authority who awarded the contract to the appellantfollowing requisite procedures - BPCL themselves imported pipes for such project andhanded over the same to appellant for laying the same in designated area; appellantimported other materials required for laying the said pipeline project -it is the findingof the adjudicating authority that every project is an independent standalone projectcontract which must satisfy all conditions of Heading 98.01 and in the case in hand,having not satisfied so, the differential duty needs to be confirmed on the appellantwhich, is totally wrong - if the project is registered by the department in the name ofBPCL as well as in the name of the appellant, today it cannot be said that theappellant is ineligible to avail the benefit of the said project import - the EssentialityCertificate specifically recommended the appellant's name for availing the benefit ofproject imports for the concessional customs duty as per the notification and theitems to be imported were also annexed to the said permission wherein the importeditems which are in dispute in this appeal are indicated -on the face of such EssentialityCertificate which has been given by the Government of India, Ministry of Petroleumand Natural Gases, the adjudicating authority coming to the conclusion that theproject imports facility cannot be extended to the appellant is totally incorrect findingand also not in consonance with the law as has been laid down by the Supreme Courtin the case of Zuari Industries Ltd. [ 2007-TIOL-55-SC-CUS ]– similar is the viewexpressed by the Apex Court in the case of Tullow India Operations Ltd. [ 2005-TIOL-134-SC-CUS ] wherein the Apex Court has categorically laid down the law that oncean Essentiality Certificate is produced, it should be treated as proof of fact thatimporters have fulfilled the conditions enabling them to obtain the benefit underexemption notification - the law laid down by the apex court in both the decisions ascited above would cover the issue in hand squarely, inasmuch that the sponsoringMinistry i.e. Ministry of Petroleum and Natural Gases has issued an EssentialityCertificate to the appellant along with the list of items that could be imported by theappellant, which included the items which are imported and the benefit ofconcessional rate of duty under project import was sought - in view of the facts andcircumstances of this case and the authoritative judicial pronouncements on thesimilar/identical issue, the impugned order is unsustainable andliable to be set aside -the impugned order is set aside and the appeal is allowed, directing the lowerauthorities to finalise the assessment as per the Project Import Regulations : CESTAT[para 7, 8, 9, 10, 11]


Repro India Ltd Vs CC (Dated: April 10, 2017)

Cus - Rectification of Mistake [ROM] - Appellant filed ROM in Tribunal's Order dated17.6.2016 on the following grounds : (i) appellant urged that under Heading 85.24,customs duty is leviable on media alone, but the Tribunal in the Final Order has notgiven findings on this submission (ii) valuation under rule 8 of Customs ValuationRules [CVR] has been wrongly ordered and valuation has to be in terms of rule 7 (iii)the extended period is not applicable (iv) confiscation of goods is not possible, penaltyis not imposable.

HELD - (i) submission of appellant is not tenable - it is the value of the software thathas to be considered which includes the royalty for the purpose of levy of duty -ultimately it is M/s.Microsoft who is creator of the media and it cannot be operatedunless the royalty is paid - the adjudicating authority has given findings at lengthwhich was also accepted by the Bench - therefore, no merit found in the contention ofthe appellant (ii) when the price list of same goods of M/s.Esys InformationTechnology and M/s.Inagram Micro is on record, that price list will be used asbenchmark and necessary deduction will be made - in such case there is no ground tovalue the goods in terms of rule 7 of CVR as quantifiable data for greatest aggregate

quantity is not available - further, goods in this case were sold only to the personswho were having agreement with the owner of licence i.e. M/s Microsoft - hence, insuch case the value can be determined under rule 8 by giving reasonable flexibilitytowards expenses, taxes and profit margins - thus, rule 7 has got no application - allthese aspects have already been looked into while passing the final order (iii) it is onlyafter detailed investigation by the department that the arrangement of paymentsmade in complex manner was unearthed - since the facts were suppressed andwrongful declaration was made consequentially, the extended period has been rightlyinvoked (iv) the goods were imported by wrongful declaration - the facts wereconcealed from the department - moreover, out of 49 consignments only 4 werecleared provisionally and rest of the 45 consignments were finally assessed - in suchcase the confiscation of the goods and imposition of penalty cannot be found faultedwith - no reason found to set aside redemption fine and penalty - no reason found tomaintain the ROM application, hence, the same is dismissed : CESTAT [para 4, 5, 6,7, 8]


CC Vs Gupta Agro Industries (Dated: April 18, 2017)

Cus - By the FA, 2008, w.e.f 10.05.2008, Explanation was inserted in section 2(d) ofthe CEA, 1944 to mandate that "goods" includes any article, material or substancewhich is capable of being bought and sold for a consideration as being deemed to bemarketable - imports were made of Zinc dross and Zinc skimming prior to this datewhen such goods were not recognized by law as excisable goods as held by theSupreme Court in the case of Tata Iron & Steel Co. Ltd. - 2003-TIOL-94-SC-CUS -when there was no manufacture of excisable goods, impugned imports are not liableto CVD - Revenue appeals dismissed: CESTAT [para 1, 2]



MD Shipping Agency Vs CC (Dated: May 22, 2017)

Cus - Applicant praying for implementation of order of Tribunal dated 31.5.2016 bywhich the suspension of Customs Broker Licence was held as unsustainable - applicantalso seeking to restrain Commissioner from conducting any enquiry. Held: Law beingwell settled that when the order of a lower Court is not stayed by any higher Court inappeal, the order of the lower Court holds the field - therefore, Commissioner isexpected to implement the order of the Tribunal without flouting the same and payingdue regard to the Apex Court judgment in Kamalakshi Finance Corporation Ltd. - non-implementation of order would result in disregard to law and invite contemptproceeding - Commissioner should restrain himself from inviting such action -application(s) disposed of: CESTAT [para 3, 4]

2017-TIOL-2632-CESTAT-MUM-LB

Omprakash Jhunjhunwala Vs CC (Dated: June 9, 2017)

Cus – Under Section 125 of the Customs Act, 1962, unless the importation orexportation of goods is expressly "prohibited" the Adjudication Authority would beobliged to offer to the Owner the goods an option to pay fine in lieu of confiscation -Foreign currency is liable for confiscation but can be allowed to be redeemed onpayment of redemption fine: CESTAT by Majority



Advanced Spectra Tek Pvt Ltd Vs CC (Dated: June 12, 2017)

Cus -Appellant imported ‘Danload 6000 electronic preset metering equipment, partsthereof and configuration software' - the proper officer of Customs decided to classifythe equipment heading 9032 of CTA while the importer sought classification underheading 9026 - differential duty confirmed, penalties imposed- appeal to CESTAT:HELD - Original authority has given very elaborate findings for arriving at the decisionthat the imported goods are ‘automatic regulating/controlling instruments orapparatus' and not ‘instrument/apparatus for measuring and checking variousparameters' - In view of the decision of the Supreme Court in the case of Moorco(India) Ltd. [1994 (74) ELT 5 (SC)], the Bench holds that the classification of theimported goods is in accordance with law and there is no reason for the Bench tointerfere in the matter-Specific entry would supersede the general entry - accordingly,the appeal is dismissed : CESTAT [para 4]


Ambuja Metal Industries Pvt Ltd Vs CC (Dated: May 25, 2017)

Cus -Appellant says that mere visual examination of the goods shall not make thesame as dutiable - appeal filed before CESTAT. Held: When the appellant did notchallenge the report of the National Metallurgical Laboratory against it on technicaltest of the said laboratory and requested to waive the show-cause notice, it is difficultfor the Tribunal to set aside the order of the lower adjudicating authority which wasbased on laboratory's report - in the case cited by appellant, the examination donewas by an officer of Steel Authority of India, which is not an expert body, therefore,the case law cannot be relied upon - appeal dismissed: CESTAT [para 2, 3]


Atul Ltd Vs CC (Dated: February 23, 2017)

Cus –Vide impugned order, goods covered by 150 shipping bills for export of'synthetic organic dyes' also described as '16 -17 dimethoxy diben-zanthrone' underthe DEPB scheme were confiscated –the goods had claimed higher credit by virtue oflatter description – goods on being tested was found to be 'synthetic dyes' – DGFTclarified the eligibility to be limited to 4% - while confiscating the export goods, theadjudicating authority made special mention that these are not available andclearance was not covered by any BG/bond with intent to enforce penaltycommensurately – entitlement to DEPB credit limited, exporter directed to paydifference of DEPB credit allowed with applicable interest under section 28 of theCustoms Act, 1962 besides imposing penalty of Rs.1 crore on the exporter undersection 114 of the Act – exporter is aggrieved by the imposition of penalties and therecovery of amount under section 28 of the Act – revenue is aggrieved by the failureto impose a fine under section 125 of the Act – appeal to CESTAT.

HELD - The quid pro quo for deposit of the fine is the transfer of possession of thegoods; without the goods being available such transaction is legally and physicallyimpossible - the decision of the High Court of Bombay in Finesse Creation Inc [2009-TIOL-655-HC-MUM-CUS], affirmed by Hon'ble Supreme Court, should leave no furtherdoubt on this score -the appeal of Revenue is not sustainable [para 6]

Customs Duty recovery - Section 28 of the Act empowers the proper officer to recoverduty that has been short-paid, not paid or erroneously granted refund – credit underthe DEPB scheme, by no stretch or imagination, is either duty or refund - the amountthat has been quantified for recovery is the difference between the credit that wasgranted and the credit that was held to be eligible - there is no evidence or any

material particular on record in the impugned order to conclude that the allegedlyineligible credit had been made use of for any import - in the absence of any suchmaterial, the recovery ordered under section 28 of the Act is without legal authority:CESTAT [para 7]

Confiscation, Penalty - It is admitted in the impugned order that the exporter hadprovided two descriptions in the shipping bills, one describing the goods as 'syntheticdye' and the other by the technical name of a primary input of the dye – the DEPBcredit was allowed on the basis of the description of the key input – that the goods inquestion is 'synthetic dye' was not suppressed – the adjudicating authority hasunambiguously asserted that 'synthetic dye' and 'dimethoxy diben-zanthrone' are twodistinct items – if that be so, the two descriptions in each of the shipping bills shouldhave alerted the proper officer as to the ineligibility for higher credit on account of thegoods being 'synthetic dye' – in these circumstances, th Bench cannot come to theconclusion that the goods had been mis-declared and, therefore, confiscation undersection 113 of the Act with consequent imposition of penalty under section 114 of theAct is not justifiable: CESTAT[para 8]

Conclusion: Appeal of Revenue is dismissed andthat of exporter is allowed: CESTAT[para 9]


East India Hotels Ltd Vs CC (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byCommissioner (Preventive) which resulted in impugned order - Issue relates to showcause notice issued by Directorate of Revenue Intelligence (DRI) - Similar issues havebeen dealt in various cases by Tribunal recently and it is held that matters have to beremanded back to Original Authority for a decision after the legal issue is settled bySupreme Court: CESTAT


Paramount Cargo And Logistic Solutions Vs CC (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byDRI which resulted in impugned order - Issue relates to show cause notice issued byDRI - Similar issues have been dealt in various cases by Tribunal recently and it isheld that matters have to be remanded back to Original Authority for a decision afterthe legal issue is settled by Supreme Court in the case of Mangali Impex Ltd: CESTAT


Supro Overseas Pvt Ltd Vs CC (Dated: June 6, 2017)

Cus - When an appeal is admitted by apex Court, whether the order appealed isstayed or not makes no difference to law since the order appealed is under challengeand the Tribunal should not overreach the jurisdiction of the apex Court - Matterremanded to original authority: CESTAT [para 3, 4]



Crompton Greaves Ltd Vs CC (Dated: May 19, 2017)

Cus –Appellant exported certain goods during 29.12.1999 to 4.4.2000 throughdifferent shipping bills under drawback scheme – after more than 5 years i.e. on12.9.2005, appellant requested Customs for amendment of the shipping bills statingthat the shipments may be converted into DEEC scheme – request rejected, henceappeal to CESTAT.

HELD - Due to failure of the appellant to file proper documents claiming DEEC benefitsat the time of export, amendment of the shipping bills under section 149 of theCustoms Act, 1962 became difficult without good reason stated by appellant –appellant also failed to satisfy the requirement and condition of section 149 of the Act– appellant should have pointed out to the authority with reason and without delaystating that on the basis of the documentary evidence filed at the time of shipment asavailable on record, the benefit of DEEC scheme was available to it – but the appellantfailed to do so – A vigilant has only right to seek amendment without unreasonabledelay but an indolent fails to seek relief under law with lapse of time - appellant hasno right to cause prejudice to other side by a belated claim – accordingly, the appealis dismissed : CESTAT [para 4]


Bharat Petroleum Corporation Ltd Vs CC (Dated: June 12, 2017)

Cus –Proceedings were initiated against the appellant for alleged suppression of a partof 'canalising commission' paid to M/s.Indian Oil Corporation Ltd on nineconsignments of imported 'liquefied petroleum gas' that had been procured on 'highsea sale' in accordance with the agreement between the importer and the canalisingagency – Issue for determination in these appeals against the impugned order is thelegality and propriety of invoking the proviso to section 28 of Customs Act, 1962inrelation to adjudication upon finalization of provisional assessment in accordance withsection 18 of the Act – by the impugned order, differential duty of Rs.15.03 lakh wasdemanded, the goods held liable for confiscation but, owing to non-availabilitysubjected to redemption fine of Rs.10 lakh in lieu of confiscation besides imposition ofpenalty under section 114A on the importer and under section 112 against twoemployees of the importing company – appeal to CESTAT.

HELD - Resort to the proviso in section 28 appears to have been prompted by thefailure to undertake review of the order of the original authority within the prescribedtime limit - it is very clear that the tax authorities cannot claim lack of knowledge ofthe canalising fee that is now proposed to be incorporated in the assessable value -consequently, invoking of the extended period fails - with that, the imposition ofpenalty under section 114A also fails - the purpose of imposing a redemption fine ongoods that are neither in the custody of the tax authorities nor capable of beingredeemed on payment of the prescribed fine does not appear very clear - section 125of the Act makes it abundantly clear that on confiscation, goods would vest with theadjudicating authority - it is that custodianship of the confiscated goods that enablesthe adjudicating authority to permit its redemption on payment of the prescribed fine- without the wherewithal to return the goods on fulfillment of the condition of fine,the imposition of redemption fine is an exercise in futility - the option to redeem isone that has to be exercised by the person to whom that offer has been extended -theimposition of fine in the impugned order is, therefore, set aside - it surprises that theadjudicating authority has considered it fit to impose personal penalties on officers ofthe appellant-company -their acts of omission or commission contributing to thecontravention that led to confiscation of the goods has not been convincingly broughtout in the impugned order - these are employees of a public sector enterprise andwho would not have derived any benefit personally from an act of 'smuggling' of'liquefied petroleum gas' –Bench, therefore, considers appropriate to set aside thepenalties imposed on the two officers - the impugned order is set aside in its entirety -appeals are allowed : CESAT [para 7, 8, 9, 10, 11]


CC Vs Esys Information Technologies Ltd (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byDRI which resulted in impugned order - Issue relates to show cause notice issued byDRI - Similar issues have been dealt in various cases by Tribunal recently and it isheld that matters have to be remanded back to Original Authority for a decision afterthe legal issue is settled by Supreme Court: CESTAT


CC Vs Craftex India (Dated: April 6, 2017)

Customs – Classification - New Trim Cutting Synthetic Waste – respondents classifiedthe goods under CTH 63109040 and claimed the benefit of CVD at nil rate in terms ofnotification No. 12/2012 Cus . - goods were found to be synthetic strip / felt inrunning length packed in prime packing - original authority on the basis ofexamination report, concluded that the impugned goods will not be classifiable as "Trim cutting synthetic waste " under 6310 and classified the same under 5603 assynthetic strip /felt in running length – On appeal, Commissioner (A) upheld theclassification claimed by the importer – Hence, revenue is in appeal.

Held: The importer is an exporter of handmade rugs - The examination report of theimported goods indicates that these are in the form of synthetic strips in runninglength - Fabric with the width of 2.6 inches to 4 inches even if it is in running lengthcannot be considered as synthetic strip classifiable under CTH 5603 - The CTH 6310covers "used or new rags, scrap twine, cordage, rope and cables and worn out articlesof twine, cordage, rope or cables, of textile materials" - Circular No. 20/2011 Cusissued by CBEC has clarified that the import of Trim Cutting waste or fibre trim ofcontinuous length with width upto 10" fall under CTH 6310 required for themanufacture of Chindi rugs will be allowed for clearance without any import license -imported goods are in the nature of waste used for manufacture of rugs and hencewill be rightly classifiable under CTH 6310 – Revenues appeal rejected – (Para 5, 6, &7).


Reliance Transport and Travels Ltd Vs CC (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byCommissioner (Preventive) which resulted in impugned order - Issue relates to showcause notice issued by Directorate of Revenue Intelligence (DRI) - Similar issues havebeen dealt in various cases by Tribunal recently and it is held that matters have to beremanded back to Original Authority for a decision after the legal issue is settled bySupreme Court: CESTAT


Ford India Pvt Ltd Vs CC (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byDRI which resulted in impugned order - Issue relates to show cause notice issued byDRI - Similar issues have been dealt in various cases by Tribunal recently and it isheld that matters have to be remanded back to Original Authority for a decision afterthe legal issue is settled by Supreme Court in the case of Mangali Impex Ltd : CESTAT


Electrotherm India Ltd Vs CC (Dated: May 19, 2017)

Cus - Issue raised in these appeals, inter alia, involve a substantial question of law ofclassification of Steam Coal and Bituminous Coal and same was referred to LargerBench as conflicting opinions have been expressed by various benches of Tribunal -When matter was heard before Larger Bench, taking note of fact that issue hasalready been taken up and pending before Supreme Court, Larger Bench relegatedthese appeals to respective Benches to dispose the same in light of observations ofLarger Bench in its order dt.16.01.2017 - In said order, liberty is granted to allassesses to come again before Tribunal after receiving the final verdict from ApexCourt within prescribed time, if advised so - Thus, appeals are disposed of with libertyto assessees to approach Tribunal after final verdict on issue of classification of SteamCoal and Bituminous Coal from Apex Court - Status quo should be maintained i.e. norecovery nor any refund of amounts involved in these appeals would be processedduring this period: CESTAT


MMTC Ltd Vs CC & ST (Dated: June 13, 2017)

Cus - Assessee's consignment of iron-ore fines which was exported by filing shippingbill were found to have 61.52% of Fe-content when presented for assessment, basedupon analytical report of authorised testing laboratory of customs department - Basedupon such analytical analysis of Fe-content, assessee discharged the export duty onconsignment @ Rs.50 PMT - Department's case is that assessee had receivedadditional payment from buyers of iron-ore fines, based upon analytical report atdischarge port which indicated Fe-content as 62.08% - That assessee has suppressedthe fact from department and they should have discharged duty @ Rs. 300/- PMThaving found out that iron-ore fines consignment was having Fe-content more than62% - It is a situation wherein an exporter discharges export duty based upon Fe-content which is noticed as more than 62%, applies for a refund claim of export dutypaid when discharge port analysis report indicates Fe-content as less than 62%,Revenue will not entertain such a claim on the ground that export duty liabilitycorrectly discharged as and when goods are presented for examination - Similarsituation came up before Tribunal in case of Hira Steels Ltd. wherein it is held thatonce the goods left the territorial waters of India, assessment made on shipping billhas to be held final - Impugned order is unsustainable and same is set aside: CESTAT


Mahindra and Mahindra Ltd Vs CC (Dated: June 20, 2017)

Cus - Issue relates to show cause notice issued by DRI - Similar issues have beendealt in various cases by Tribunal recently and it is held that matters have to beremanded back to Original Authority for a decision after the legal issue is settled bySupreme Court in the case of Mangali Impex Ltd : CESTAT


Esys Information Technologies Ltd Vs CC (Dated: May 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byDRI which resulted in impugned order - Issue relates to show cause notice issued byDRI - Similar issues have been dealt in various cases by Tribunal recently and it isheld that matters have to be remanded back to Original Authority for a decision afterthe legal issue is settled by Supreme Court in the case of Mangali Impex Ltd : CESTAT


CC Vs Microqual Techno Pvt Ltd (Dated: May 24, 2017)

Cus - A specific entry in tariff excludes other goods embraced by different tariff entriesand even may be under the same chapter - "Electric conductors 7/8" (fortelecommunication purpose)" are co-axial cables and rightly classifiable under CTH8544 2010 as held by the AA and not under CTH 8544 4190 as ordered by theCommissioner (A) - Impugned order set aside and Revenue appeal allowed: CESTAT[para 4, 5]



Hindustan Petroleum Corporation Ltd Vs CC & ST (Dated: June 12, 2017)

Cus - Issue is two-fold, one is regarding demand of NCCD and cess thereon andutilisation of advance licence is available to appellant or otherwise and second issue iswhether the appellant has short paid customs duty on account of short landing ofgoods by valuing the goods at shore quantity - Bench in appellant's own case by FinalOrder dt. 09/11/2017 has held that NCCD is payable by appellant - Quantity of crudeoil actually received in to a shore tank in a port in India should alone be the basis forpayment of custom duty: CESTAT


Equinox Solution Ltd Vs CC (Dated: June 30, 2017)

Cus - Assessee had filed refund claims of 4% SAD paid at the time of import of goods,as per Notfn 102/2007-Cus - They were issued with SCNs proposing rejection of thesame - Appellant had imported Drinks Dispenser & Accessories, and filed necessarybills of entry indicating details of machine and accessories therewith - While importedgoods i.e the machines were sold with accessories, commercial invoices do not reflectdescription of accessories in detail but enclosed therewith packing list and its valueincluded in machine/kit - In CA's Certificate a specific declaration has been madeindicating that value of accessories, which are sold alongwith main machine, sufferedVAT/CST, even though VAT amount was not shown separately against each of saidaccessory/items - No contrary evidence has been recorded by Commissioner (A) - Asregards to unjust enrichment, once a certificate from CA, who is also statutoryauditor, if filed by assessee, then there is no need for insisting on production ofaudited Balance Sheet and Profit and Loss Account - Observation of Commissioner(A), that assessee is including refund amount as expenses in their profit and lossaccount and hence the burden must have been passed on to their customers iswithout any corroborative evidence, hence, untenable in law - Thus, bar of unjustenrichment is attracted: CESTAT


CC Vs Zulash Clearing & Shipping Agency (Dated: May 23, 2017)

Cus - CHA committed serious breach of law - appellant's persons were involved in theforgery of signature of Customs officer - Commissioner dropping proceedings on theground that penalty imposed under Customs Act, 1962 was set aside by CESTAT -proceedings under CHALR, 2004 and Customs Act, 1962 are different andconsequences thereof follow according to the provisions of law laid down therein - it isnecessary for the Chief Commissioner of Customs to keep track of this CHA so that he

is desisted from causing mischief to Revenue and the interest of Customs is notjeopardized - Customs law is not for mere collection of Revenue but also thesafeguard the interest of the country - matter remanded: CESTAT [para 2 to 5]



Phoenix Overseas Pvt Ltd Vs CCE (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byAdditional Director General (DGCEI) which resulted in impugned order - Issue relatesto show cause notice issued by DGCEI - Similar issues have been dealt in variouscases by Tribunal recently and it is held that matters have to be remanded back toOriginal Authority for a decision after the legal issue is settled by Supreme Court inthe case of Mangali Impex Ltd : CESTAT


Lakshman Sindhi Vs CCE & ST (Dated: June 20, 2017)

Cus - Issue emerges is regarding jurisdiction of DRI Officers to issue SCN underCustoms Act, 1962 - High Court of Delhi in case of Mangli Impex 2016-TIOL-877-HC-DEL-CUS has observed that DRI is not competent to issue SCN - Said issue was alsosubject matter of Mumbai High Court in case of Sunil Gupta 2014-TIOL-1949-HC-MUM-CUS as also of High Court of Telangana and Andhra Pradesh in case ofVuppalamritha Magnetic Components Ltd. 2016-TIOL-2789-HC-AP-CUS , taking aview contrary to the one taken by Delhi High Court - Being conflicting decisions ofvarious High Courts, finally the matter reached to Supreme Court who granted thestay of operation of judgment passed by High Court of Delhi - Thus the issue issubjudice before Supreme Court - Matter remanded to original adjudicating authorityto first decide the issue of jurisdiction after availability of Supreme Court decision incase of Mangli Impex and then on merits of case but by providing an opportunity toassessee of being heard: CESTAT


Novus International Vs CC (Dated: June 20, 2017)

Cus - Issue relates to show cause notice issued by Officers of SIIB - Similar issueshave been dealt in various cases by Tribunal on many earlier occasions also and it isheld that matters have to be remanded back to Original Authority for a decision afterthe legal issue is settled by Supreme Court: CESTAT


Phoenix Overseas Pvt Ltd Vs CCE (Dated: June 19, 2017)

Cus - During course of hearing both the sides agreed that notice has been issued byAdditional Director General (DGCEI) which resulted in impugned order - Issue relatesto show cause notice issued by DGCEI - Similar issues have been dealt in variouscases by Tribunal recently and it is held that matters have to be remanded back toOriginal Authority for a decision after the legal issue is settled by Supreme Court inthe case of Mangali Impex Ltd : CESTAT


CC Vs Ventkateshwara Leather Exports (Dated: January 31, 2017)

Cus - Assessee filed Shipping Bill through their CHA for export of Goat Upper FinishedLeather with Finishing Coat to France declaring FOB value - This is a case wheredispute has arisen on account of divergent opinions of CLRI as in first report dated08.09.2014, the leather was found as satisfactory whereas in second report dated09.01.2015 the same has been found not satisfactory - In the entire order there is nofinding that impugned leather was not finished leather or was semi-finished leatherand only finding is that does not satisfy the norms and conditions for the type offinished leather as declared - There is no other evidence to suggest any contumaciousconduct or deliberate mis-declaration - No reason found to interfere with theimpugned order and same is hereby sustained: CESTAT


International Lease Finance Corporation Vs CC (Dated: June 23 ,2017)

Cus -M/s.Kingfisher Airlines Ltd. [KFA] filed a bill of entry for import of an aircraftengine and claimed exemption under notification no.12/2012-Cus and 12/2012-CE,both dated 17.3.2012 -admittedly, the said engine is owned by the appellant and thesaid engine was imported into India only for the purpose of fitting into the aircraftleased by the appellant to KFA to make it air worthy and to fly it out of India, oncancellation of lease arrangement -though the bill of entry was initially filed by KFA,later, on further developments including the proceedings in the Delhi High Court, theappellant was allowed to be substituted as importer of the said goods -the final orderwas issued confirming customs duty liabilities on the appellant as the importer of thesaid engine - the imported engine was ordered to be confiscated in terms of section111 (o) of the Customs Act, 1962 [Act] with an option to the appellant to redeem thesame on payment of fine of Rs.3.37 crore -a penalty of Rs.2.50 crore each wasimposed on the appellant and KFA in terms of section 112 (a) of the Act

HELD -On detailed examination of the procedure for registration, terms of leaseagreement and the provisions of notification no.12/2012-Cus, the Original Authorityconcluded that the aircraft engine is not eligible for exemption under the saidnotification - the purpose of exemption is specific and categorical - the aircraft engineshould have been for servicing, repair or maintenance of aircraft which is used foroperating scheduled air transport service - in the present case, the aircraft to whichthe engine was intended to be fitted is not to be used for operating scheduled airtransport service - all the parties to the dispute categorically admitted that the importof engine is only for the purpose of making the aircraft air worthy and to take it back,out of India -this certainly does not meet the requirement of exemption in terms ofthe said notification - no hesitation to uphold the findings of the Original Authorityregarding the ineligibility of the impugned aircraft engine for the said exemption -similarly, the appellant's claim for exemption under notification no.12/2012-CE wasalso disallowed by the original authority -in terms of sl. no.448 of notificationno.12/2012-Cus, condition no.73 has been imposed for availment of exemption - thiscondition will also be applicable for availing exemption under sl. no.305 of notificationno.12/2012-CE - exemption under this notification has been denied on valid groundsby the original authority - KFA is not an MRO unit - the eligibility for exemption undercustoms notification no.12/2012-Cus is relevant and applicable to claim exemptionunder central excise notification - the Bench is in agreement with the originalauthority regarding denial of exemption to the imported aircraft engine[para 10, 11,12]

Confiscation. HELD - The original authority invoked the provisions of section 111(o) ofthe Act to order confiscation of the imported engine - a plain reading of the above

provision will indicate that same is applicable in respect of any goods which wereexempted subject to certain condition and upon violation of such condition, the saidgoods shall be liable for confiscation - in the present case, the bill of entry was filedclaiming certain exemption -the exemption claimed has been denied to the appellantand, hence, there is no question of violation of conditions of exemption - the enginewas intended to be fitted in an aircraft to be flown out of India as the lease agreementfor the aircraft has already been terminated -in such situation, there is no scope toapply the provisions of section 111 (o) for confiscation of the engine -there is noconcessional import with condition and there is no violation of such conditionattracting provisions of section 111 (o) - as such, the confiscation of the importedengine is not legally sustainable[para 14, 15]

Limitation: HELD - Regarding the question of limitation raised by the appellant withreference to demand of customs duty, section 28 of the Act has been rightly invokedin the present case -the bill of entry was assessed on 6.12.2012 by denying theexemption claimed by the importer (KFA) - SCN was issued on 28.11.2013, within oneyear of the assessment - no infirmity found in the proceedings for confirmation ofdemand for customs duty as ordered by the original authority [para 16]

Penalty: HELD - The original authority imposed a penalty of Rs.2.50 crore on theappellant under section 112(a) of the Act - a plain reading of the above provision willindicate that penalty under the said section can be imposed for an act or omissionwhich would render the goods liable to confiscation under section 111 of the Act - asalready recorded earlier, the confiscation of goods is not legally sustainable - hence,the penalty in terms of section 112(a) of the Act will also become untenable -accordingly, penalty imposed on the appellant set aside [para 18, 19]

Conclusion: In sum, denial of exemption on the imported aircraft engine as ordered bythe original authority upheld - however, confiscation of the engine and the penaltyimposed on the appellant are not sustainable - the same are set aside - appeal partlyallowed, as above.[para 21]


Indian Airlines Ltd Vs CC (Dated: June 12, 2017)

Customs - Preliminary plea that the show cause notice in the instant case was issuedby the Directorate of Revenue Intelligence (DRI) - the request is being made to setaside the present proceedings where the notice was issued by the DRI.

Held: Preliminary issue emerges in the present appeal is regarding the jurisdiction ofthe DRI Officers to issue the show cause notice under the Customs Act - The ApexCourt in its decision in the case of CC Vs. Sayed Ali = 2011-TIOL-20-SC-CUS heldthat DRI officers were not proper officers in terms of Section 2(34) of the Customs,Act, 1962 but later on the provisions were amended - to overcome the sayed alijudgement Notification No.44/2011-Cus (NT) , was issued by the CBEC, assigning thefunctions of the proper officer to various officers (including Additional DirectorGeneral, DRI) mentioned in the notification for the purposes of Section 28 of the Act -ADG-DRI has been empowered to issue demand notice under Section 28 - Same issueof DRI officers having the proper jurisdiction to issue the SCN came up before theHon'ble Delhi High Court in the case of Mangali Impex Vs. UOI = 2016-TIOL-877-HC-DEL-CUS - Hon'ble Delhi High Court is in favour of the assessee and against theRevenue and the decision stands stayed by the Hon'ble Supreme Court - Hence, itshows that there are two views holding the field and the matter now stand before theHon'ble Supreme Court - deemed fit to set aside the impugned orders and remand thematters to the original adjudicating authority to first decide the issue of jurisdiction,after the availability of Supreme Court decision in the case of Mangali Impex. (para 7-12)


Saharsh Distributors Pvt Ltd Vs CC (Dated: May 31, 2017)

Customs - Demand - the appellant imported 'Electro Refined Copper Cathode' andclaimed the benefit of Notification No.21/2012-Cus dated 17.03.2012 - The bills ofentry were provisionally assessed and pending finalization, proceedings under Section28 of the Customs Act, 1962 were initiated for denying the benefits under NotificationNo.21/2012- CU dated 17.03.2012; for confiscation of goods; confirmation of SpecialAdditional Duty of Customs (SAD) and for imposition of penalties - The noticeproposals were confirmed in the impugned order, culminating in the instant appeal.

Held: The bills of entry were provisionally assessed and before their finalization, theDepartment initiated show cause proceedings under Section 28 - in order to invokethis provision, two things must be satisfied, i.e. non-levy of duty or short levy of duty- In the present case, since the assessment is provisional, the duty liability has notbeen determined by the Department, hence, there is no question of short levy or non-levy - Thus, proceedings initiation under Section 28, which culminated in theimpugned order is not sustainable and will not stand for judicial scrutiny - SupremeCourt in the case of ITC Ltd. held that proceedings under Section 11A cannot beinitiated without completing the assessment proceedings - Section 11A of CentralExcise Act, 1944 is pari materia with Section 28 of the Customs Act 1962 - Since thepresent proceedings were initiated under Section 28 before finalization of theassessment, the same is not maintainable at this juncture; but the Department is atliberty to take appropriate measures after finalization of the bills of entry in question -impugned order set aside[Para 6-8]


Texport Fashion Vs CC (Dated: June 22, 2017)

Cus - Assessee imported and cleared various items under advance licence in terms ofNotfn 43/2003-CUS without payment of Customs Duty - The time limit to fulfill exportobligation expired on 28/04/2004 - Assessee could not produce Export ObligationDischarged Certificate (EODC) duly issued by DGFT as Licencing Authority - It is clearthat appeal filed in 2009 was relating to a matter of licence issued in 2002 - Assesseemade specific submission that they have applied for Amnesty Scheme with DGFT andare awaiting approval while there is nothing on record to indicate that there is anypending proceedings before Licencing Authority which is under active consideration - Inspite of specific advice, assessee could not produce any such evidence - Request forrepeated adjournments is not acceptable in a matter, which is more than a decade old:CESTAT


CC, CE & ST Vs Navayuga Engineeering Company Ltd (Dated: June 7, 2017)

Cus - Whether assessee had mis-declared the imported spares along with clearance ofdredger claiming NIL rate of duty, claiming benefit under Notfn 21/2002 consequently,non-payment of SAD by Notfn 20/2006 - During course of examination of cargo, it wasnoticed that certain spares were imported and were carried in imported dredger ittallied with list of inventory of spares enclosed to Bill of Entry tilted as 'MandatorySpare Parts for Engines as per OEM' without any invoice; a separate invoice in IGM filewas however found for spare parts along with an inventory list - Adjudicating authorityafter extending an opportunity of personal hearing to assessee, accepted theexplanations put forth by importer, decided that goods are not imported in violation ofprovisions of Customs Act, 1962 and were also not attempted to be imported/broughtin India in contravention of provisions of Customs Act, 1962 with an intention to evadeCustoms duty and consequently ordering that no penalties were imposable - Spareswhich were found on dredger were not sought to be cleared as individual items butwere considered by assessee as mandatory spares - Revenue has not been able tocontrovert satisfactorily, factual findings recorded by Adjudicating authority -

Adjudicating authority was correct in vacating the seizure of spares in respect of goodsimported by assessee: CESTAT


Ashok Kharey Vs CC (Dated: May 24, 2017)

Customs - Undervaluation - Business of Furniture - allegation is that the importer hasundervalued the furniture imported from China and the notice proposed to demand thedifferential duty from the importer - SCN prosed to demand customs duty and penaltyon other co- noticees - Issue that arose is regarding the jurisdiction of the DRI officersto issue show-cause notice under the Customs Act.

Held: The Apex Court in its decision in the case of CC Vs. Sayed Ali = 2011-TIOL-20-SC-CUS held that DRI officers were not proper officers in terms of Section 2(34) of theCustoms, Act, 1962 but later on the provisions were amended - to overcome the sayedali judgement Notification No.44/2011-Cus (NT) , was issued by the CBEC, assigningthe functions of the proper officer to various officers (including Additional DirectorGeneral, DRI) mentioned in the notification for the purposes of Section 28 of the Act -ADG-DRI has been empowered to issue demand notice under Section 28 - Same issueof DRI officers having the proper jurisdiction to issue the SCN came up before theHon'ble Delhi High Court in the case of Mangali Impex Vs. UOI = 2016-TIOL-877-HC-DEL-CUS - Hon'ble Delhi High Court is in favour of the assessee and against theRevenue and the decision stands stayed by the Hon'ble Supreme Court - Hence, itshows that there are two views holding the field and the matter now stand before theHon'ble Supreme Court - deemed fit to set aside the impugned orders and remand thematters to the original adjudicating authority to first decide the issue of jurisdiction,after the availability of Supreme Court decision in the case of Mangali Impex - Appealsallowed by way of remand - (Para 7, 8, 9, & 10).


Devinder Pramod Vs CC (Dated: June 13, 2017)

Customs - Show cause notice in the instant case was issued by the Directorate ofRevenue Intelligence (DRI) - request is being made to set aside the presentproceedings where the notice was issued by the DRI

Held: The Apex Court in its decision in the case of CC Vs. Sayed Ali = 2011-TIOL-20-SC-CUS held that DRI officers were not proper officers in terms of Section 2(34) of theCustoms, Act, 1962 but later on the provisions were amended – to overcome thesayed ali judgement Notification No.44/2011-Cus (NT) , was issued by the CBEC,assigning the functions of the proper officer to various officers (including AdditionalDirector General, DRI) mentioned in the notification for the purposes of Section 28 ofthe Act - ADG-DRI has been empowered to issue demand notice under Section 28 –Same issue of DRI officers having the proper jurisdiction to issue the SCN came upbefore the Hon'ble Delhi High Court in the case of Mangali Impex Vs. UOI = 2016-TIOL-877-HC-DEL-CUS - Hon'ble Delhi High Court is in favour of the assessee andagainst the Revenue and the decision stands stayed by the Hon'ble Supreme Court –Hence, it shows that there are two views holding the field and the matter now standbefore the Hon'ble Supreme Court - deemed fit to set aside the impugned orders andremand the matters to the original adjudicating authority to first decide the issue ofjurisdiction, after the availability of Supreme Court decision in the case of MangaliImpex – Appeal allowed by way of remand – (Para 7- 13).


Sri Balaji Enterprises Vs CC (Dated: September 23, 2016)

Customs - Imported Multi Function Digital Photocopying machines (MFD) - Confiscationabsent import license - Sustainability - Restriction of import for MFD is with effect from05/06/2012 only and goods in question imported prior to 05/06/2012 - Import of these

machines did not require import license - Moreover the classification description as wellas the certificate of the Chartered Engineer shows that the impugned goods are notper se photocopiers - Confiscation on the ground that the goods are restricted iswithout any legal or factual basis - Consequently redemption fine and penalty imposedare unsustainable hence set aside. (Para 5, 6)


Escorts Ltd Vs CCE (Dated: May 15, 2017)

Cus - Dispute relates to import of helicopter by assessee under claim of dutyexemption under notfn 21/2002-Cus sl. No. 347 at nil rate of duty - Vide impugned O-I-O, helicopter was confiscated and allowed for redemption on payment of fine - At thetime of consideration of stay application filed by assessee, Tribunal, vide order dated12.08.2011 allowed the stay against demands made in impugned O-I-O subject tocondition that assessee keeps the bond and bank guarantee alive to safeguardcustoms duty involved in case - Assessee submitted that subsequent to issue of saidorder by bank assessee has deposited full customs duty and redemption fine as well aspenalty demanded in impugned O-I-O - Helicopter involved in case has also beenreleased by customs - They prayed that since all the dues have been paid throughchallan, bank guarantee and bond executed by assessee in terms of said order mayplease be released - Miscellaneous application is allowed: CESTAT


Euro Cubic Creations Pvt Ltd Vs CC (Dated: April 21, 2017)

Cus - Assessee filed Bill of Entry for import of Branded cut and polished cubic zirconiaof PRECIOSA Brand packed in 01 packet and declared value - Goods imported byassessee stand described in invoice as 'MCC cubic zirconia round white' - Samedescription stand reflected by assessee in Bill of Entries - As a result of communicationbetween assessee and exporter of goods, order of confirmation was arrived atindicating total value of goods - Revenue, on entertaining the doubt that value ofgoods is on lower side, had drawn samples and sent the same to Gems testinglaboratory, which indicated the weight, colour, type of cut etc., along with dimensions -It is from the type of cut i.e. round brilliant, that Commissioner (A) has come to afinding that goods are of 'Star' quality - Accordingly, price list of 'star' grade ofexporter was procured and value reflected therein was adopted - Opinion ofDepartment's Empanelled Valuer was also taken by Revenue showing the maximumsale value of goods - The Assistant Commissioner after deducting local tax, margin ofprofit, duty element and other expenses concluded that value of goods should bearound Rs.3,64,636/- whereas importer has declared the value as Rs.3,57,494/- andas such there is no difference between two values - Appellate authority has nowherediscussed said Valuation report of Empanelled Valuer of Revenue and has not rejectedthe same - Enhancement of value by Commissioner (A) cannot be held to bejustifiable, in absence of any findings to contrary: CESTAT


CC Vs Star Exports (Dated: February 8, 2017)

Cus - Revenue pleads that value of airconditioners imported by assessee beingmisdeclared, that has caused prejudice to interest of Customs - When Japanese originAir-Conditioner of "O" General Brand came through Bills to India under Singaporeinvoices, Customs noticed that there was undervaluation of goods as well - It issurprising to notice that Commissioner did not apply his mind to understand the pithand substance as well as gravity of investigation result to appreciate that Japan originair-conditioner although invoiced from Singapore should not be of so low value as wasdeclared by assessee, when assessee could not discard the evidence gathered byinvestigation against it - Authority was totally sympathetic to assessee as is apparentfrom his order when he did not enquire into origin of goods, manufacturer's price, costof transportation, value addition done by assembly - He heavily leaned on irrelevantbills of entry placed by assessee - Adjudicating Authority had misplaced sympathy onassessee and caused serious prejudice to interest of Revenue - It is noticed that goods

came through Bill of Entry dt. 17.4.2000 was under DEPB scheme - Commissioner didnot examine at all that DEPB clearance whether was proper and in accordance with lawand against proper DEPB scrips: CESTAT


Actis Technologies Pvt Ltd Vs CC (Dated: May 24, 2017)

Cus - Commissioner (A) while disposing the appeal filed by Revenue, observed that allthe records of refund claim under acknowledgment be forwarded to concernedauthority under written intimation to assessee for further disposal of case, specificallyindicating the date of receipt of refund claim in his office - Since the refund claim hasbeen directed to be transferred to jurisdictional authority, therefore, Commissioner (A)has not dealt with the issue of eligibility of interest and refund claim - No error found inobservation of Commissioner (A), in as much as, refund papers were directed to betransferred to concerned Asstt Commissioner (Customs), Mumbai, with a direction toconsider the refund, and also the issue of interest - Since the matter has already beendelayed for substantial period, it is expected that direction issued by commissioner (A)be carried out at the earliest - Impugned order is upheld and appeal being devoid ofmerit, accordingly rejected: CESTAT


Royal Carbon Black Pvt Ltd Vs CCE (Dated: May 22, 2017)

Cus - Law is well settled that a vigilant only deserves consideration of condonation ofdelay without an indolent being considered - Applicant stating that filing of appeal wasdelayed due to oversight - applicant does not have a good cause of delay - Tribunalcannot entertain the application as it will only give shelter to spurious appeals - CODApplication rejected and Appeal dismissed: CESTAT [para 3, 4, 6]



HM Printer Vs CC (Dated: May 24, 2017)

Cus - Commissioner had misplaced sympathy on appellant to exonerate them fromcharge against previous consignment of claim of undue DEPB credit - ChiefCommissioner to conduct enquiry and do needful - Appellants overvalued goods forclaiming undue DEBP credit - Appellant had oblique motive to defraud Revenue in thematter by using fake and fabricated invoices - appellants are perpetrators of fraudagainst Customs causing outflow of public revenue at the cost of this country -contumacious conduct of appellants - appeals dismissed: CESTAT [para 5 to 9]



Rattan Papers Pvt Ltd Vs CC (Dated: May 2, 2017)

Cus - Assessee had imported three consignments of raw materials under AdvanceAuthorization claiming exemption under Notfn 93/2004-Cus without payment ofcustoms duty - On their failure to produce Export Obligation Discharge Certificate(EODC) from DGFT, proceedings were initiated against assessee - At the time ofpassing the order by Commissioner (A), assessee were in possession of order of DGFTwhich was not brought to notice of Commissioner (A) - Tribunal is not able to discernany reason for such non-disclosure by assessee - Whole case before lower authoritiesis with reference to compliance of conditions of license issued by DGFT for non-payment of customs duty - However, customs duty has been paid in terms of directiongiven by licensing authority and same has been taken note of by licensing authority toclose the matter - In such situation, no further issue remains to be decided -Fulfillment of licensing condition or other related matter cannot be again reexaminedas same has been settled by competent authority: CESTAT


Sabic Innovative Plastics India Pvt Ltd Vs CC (Dated: May 24, 2017)

Cus - Assessee filed refund claim under Notfn 104/2007-CUS for an amount of Rs.3,15,082/- & Rs. 47,374/-, respectively - In first case, Adjudicating Authority thoughsanctioned the refund amount of Rs. 3,15,082/-, but directed it to credit to ConsumerWelfare Fund - On appeal, Commissioner (A), rejected their appeal - In second case,Asstt. Commissioner, sanctioned the refund however, Revenue filed an appeal beforeCommissioner (A) raising the issue of unjust enrichment, which was decided in favourof Revenue - Commissioner (A) has interpreted certain entries made in balance sheetfor respective financial years, which assessee could not get a chance to rebut/explainthe same with material particulars - CA submits that even though part of refundamount has been shown in Profit and Loss Account, but, it cannot be considered as anexpenditure of traded goods and accordingly be assumed as recovered from customers- Assessee be given fair chance to explain their position with regard to treatment ofrefund amount in their balance sheets of respective years: CESTAT


Sangam International Vs CC (Dated: May 15, 2017)

Cus - Assessee is a SEZ Unit and licensed by Development Commissioner to operatewithin NOIDA Special Economic Zone (NSEZ) - During course of routine check at NSEZGate No.1, a vehicle was intercepted and it was detected that 12 pieces of Yellowmetal, which appeared to be gold bars of .995 purity was concealed in polythene coverand was kept inside the Car - Customs Department seized the goods and proceedingswere initiated against assessee - Tribunal in case of Meenakshi International - 2017-TIOL-01-CESTAT-DEL , has allowed the appeal in favour of assessee holding thatCustoms did not have jurisdiction within SEZ area and accordingly, proceedings cannotbe initiated for confirmation of adjudged demand - Since seized goods wereintercepted and taken possession at gate No.1 within SEZ area, on this ground also,the proceedings initiated by Customs will not hold good for confiscation of goods andimposition of penalties - Impugned order set aside to the extent of confiscation of goldbars, gold jewellery, vehicle and imposition of redemption fine and penalties onassessee: CESTAT


CC Vs Sun Grace Indus (Dated: February 7, 2017)

Cus - Assessee was importing rubber compound from USA as well as from South Africa- Department has raised the duty demand for differential price shown by assessee vis-a-vis in emails of Md. Munna of M/s Bombay Rubber but the same was dropped byimpugned order - Except for these emails, no other evidence was collected byDepartment before demanding duty - Statement of Shri Vijay Thukral was retractedimmediately and it was not supported by any corroborative evidence - The rubbercompound imported from M/s GGP Services is only about 3% of total imports, but dutywas demanded on total consignments - In SCN, no comparative study of identicalgoods was provided - In case of Sounds N Images - 2002-TIOL-37-SC-CUS , it wasobserved that under-valuation must be established through proper methods under thelaw and that burden cannot be shifted to importer - Since no evidence has beenadduced to corroborate the statement of Shri Vijay Thukral or emails of a third party,impugned order found reasonable: CESTAT


Alberto Bestonso Vs CC (Dated: June 29, 2017)

Cus – Whether, when case of main assessee is settled by the Settlement Commission,other co-noticees are also entitled for waiver of penalty – Question goes to LargerBench: CESTAT [para 4]



Naresh Chandan Vs CC (Dated: June 09, 2017)

Cus - Issue emerges is regarding jurisdiction of DRI Officers to issue SCN underCustoms Act, 1962 - High Court of Delhi in case of Mangli Impex 2016-TIOL-877-HC-DEL-CUS has observed that DRI is not competent to issue SCN - Said issue was alsosubject matter of Mumbai High Court in case of Sunil Gupta 2014-TIOL-1949-HC-MUM-CUS as also of High Court of Telangana and Andhra Pradesh in case of VuppalamrithaMagnetic Components Ltd. 2016-TIOL-2789-HC-AP-CUS , taking a view contrary to theone taken by Delhi High Court - Being conflicting decisions of various High Courts,finally the matter reached to Supreme Court who granted the stay of operation ofjudgment passed by High Court of Delhi - Thus the issue is subjudice before SupremeCourt - Matter remanded to original adjudicating authority to first decide the issue ofjurisdiction after availability of Supreme Court decision in case of Mangli Impex andthen on merits of case but by providing an opportunity to assessee of being heard:CESTAT


Sarda Agro Oil Ltd Vs CC (Dated: June 9, 2017)

Cus - Applicant, not being an aggrieved party, does not have any locus standi to beimpleaded in the Customs Appeal filed by some other person - Application filed as anintervener is not maintainable, hence dismissed: CESTAT [para 4]



Ashok Gramodhyog Sansthan Vs CC (Dated: June 6, 2017)

Cus - Issue emerges is regarding jurisdiction of DRI Officers to issue SCN underCustoms Act, 1962 - High Court of Delhi in case of Mangli Impex - 2016-TIOL-877-HC-DEL-CUS has observed that DRI is not competent to issue SCN - Said issue was alsosubject matter of Mumbai High Court in case of Sunil Gupta - 2014-TIOL-1949-HC-MUM-CUS as also of High Court of Telangana and Andhra Pradesh in case ofVuppalamritha Magnetic Components Ltd.- 2016-TIOL-2789-HC-AP-CUS , taking aview contrary to the one taken by Delhi High Court - Being conflicting decisions ofvarious High Courts, finally the matter reached to Supreme Court who granted the stayof operation of judgment passed by High Court of Delhi - Thus the issue is subjudicebefore Supreme Court - Matter remanded to original adjudicating authority to firstdecide the issue of jurisdiction after availability of Supreme Court decision in case ofMangli Impex and then on merits of case but by providing an opportunity to assesseeof being heard: CESTAT


Ace Finepack Pvt Ltd Vs CC (Dated: May 15, 2017)

Customs - Freight fraud - Alleged facilitation of evasion of duty on the freightcomponent in the value of the goods imported by M/s. Ace Fine Pack Pvt. Ltd.,resulting in considerable loss of revenue to the department - wilfully manipulatedHouse Bills of Lading showing the terms of import as " freight pre-paid " against theactual terms of " freight collect " - importer paid the differential duty along withinterest and penalty equal to 25% of the duty as per Section 28 (6) of the CustomsAct, 1962 - a penalty was imposed on the appellant vide order dated 21.7.2015 for hiswillful involvement in the evasion of duty by fabrication of import documents.

Held: Circular No.11/2016 dated 15.3.2016, the Board has clarified that if the duty ispaid along with interest and penalty equal to 25% of the duty specified in the notice,then the proceedings against the importer as well as against the co-noticee shall standconcluded - Appeal allowed - penalty imposed on the appellant is set aside - (Para 5).


RD Extrusion Pvt Ltd Vs CC (Dated: May 23, 2017)

Customs – Conversion of SB - appellants filed 33 shipping bills for export of forgedmachine parts, factory stuffed in containers under the supervision of jurisdictionalCentral Excise authorities - However, instead of filing the shipping bills for DEPBbenefits, the appellants filed free shipping bills before Customs authorities;subsequently, on realization of mistake, requested conversion of free shipping bills toDPEB shipping bills - matter was adjudicated by the Commissioner vide impugnedorder denying the request for conversion of shipping bills; agitated herein.

Held: The fact is not in dispute that the goods in question were exported by theappellant and same were sealed and certified at the factory in the presence ofjurisdictional Central Excise authorities - the condition of receipt of foreign inwardremittance certificate in respect of payment in support of exportation of goods has alsonot been disputed - in terms of Circular dated 16.1.2004, he should have examinedthe case on merits and thereafter to order conversion of free shipping bills into drawback shipping bills (All Industry Rates) - power conferred in Circular No. 4/2004-Cushas not been exercised by the Commissioners, hence the matter should go back to theCommissioner of Customs for re-consideration of the request of appellant forconversion of free shipping bills into draw back shipping bills (All Industry Rates) - theimpugned order is set aside, the matter is remanded to the Commissioner for passingnecessary/ appropriate orders with regard to the request of appellant for suchconversion, after granting an opportunity of personal hearing - In the interest ofjustice, it is expected that matter should be decided within a period of 3 months fromthe date of receipt of this order; and the appellant shall also co-operate in adjudicationof the matter afresh. [Para 5, 6]

2017-TIOL-2397-CESTAT-CHD

Golden Enterprises Vs CC (Dated: April 18, 2017)

Cus - Invoices, bill of lading, packaging slip and bills of entry are in name of assessee -Moreover, there is no evidence on record that assessee has purchased these goods onhigh seas sales basis - During the course of drawn of samples, Sh. P. K. Suri proprietorof assessee was present and samples were drawn under his signature only - Inimpugned order, Adjudicating authority relied upon the statement of Sh. GhanshayamSharma who in his reply stated that he has not dealt with consignment of assessee andhe does not know Mr. P.K.Suri - He is neither CHA nor H Card holder nor G card holderso he has no authority to enter Customs area - Therefore, statement of Sh. GhansyamSharma have no relevance to impugned goods - As there is no other claimant ofgoods, assessee is actual owner of said impugned goods - As assessee has alreadypaid duty in terms of order wherein, issue of mis-declaration and under valuations ofgoods has already been decided by this Tribunal in favour of assessee, impugned orderis set aside: CESTAT


Bilal Salim Saiyed Vs CC (Dated: April 18, 2017)

Customs – Restoration of appeals – On the date of hearing, the case was adjourned toanother date, on which it was adjourned again as a letter was faxed by the appellantsseeking adjournment stating that " Counsel is engaged in CESTAT, Ahmedabad " -

Tribunal was inclined to consider this request for adjournment and the appeals wereposted for hearing finally to 3.10.2016, on which there was neither appearance norrequest for adjournment – the appellant filed the present restoration on the groundthat the miscellaneous order adjourning the case to 03.10.2016 was not received bythe Counsel and it was received on 05.10.2016 - That for this reason the Counselcould not appear for hearing on 03.10.2016.


Whirlpool Of India Ltd Vs CC (Dated: June 12, 2017)

Cus - Transfer of ownership or re-location of the project after installation and meetingwith the project objectives would not erase the classification and assessment thatprevailed at the time of import - Benefit of concessional rate of duty under ProjectImports is admissible - impugned order confirming duty demand and imposingredemption fine, penalty set aside - Appeal allowed: CESTAT [para 9 to 11]



Jay Polychem India Ltd Vs CC (Dated: May 19, 2017)

Cus - Assessee imported Mixed Xylene and requested classification of said goods underCH 29029090 while revenue classified said goods in CTH 2704 - Department based onCustoms Lab Test Report, where percentage of Xylene Isomers is shown as 40.60%,says that as per Explanatory Notes, when subject goods do not contain 95%percentage or more by weight of Xylene Isomers, present goods Xylene being of lowerpurity is excluded from CTH 2909 and fall under Chapter 2707 attracting customs duty@10% - Importer did not agree with classification of Mixed Xylene under CTH27073000 and requested to assess Bill of entry under CTH 29024400 provisionally -Department thereafter gave personal hearing to importer and vide O-I-O dated03.08.2007 passed by Assistant Commissioner stated that percentage of Xylene is only40.60%; therefore, item is to be classified under CTH 2704 as per test report oflaboratory - Matter is covered by Tribunal's decision in case of Addisons Paints &Chemicals Ltd. - Subject goods deserve classification under CTH 27073000: CESTAT


CST Vs International Sos Services (Dated: March 3, 2017)

ST - Assessee engaged in providing services namely, 'Online information and DataBase access or retrieval service, management consultant service' to foreign party infield of health care management - Department views that same is subject to ST -Identical issue has come up before this Tribunal in case of Paul Merchants Ltd. whereinappeal allowed in favour of assessee - Similar views were expressed in case ofMicrosoft Corporation (I) (P) Ltd. 2014-TIOL-1964-CESTAT-DEL - Following the ratiolaid down by Tribunal, no reason found to interfere in impugned order, same is upheld:CESTAT


Chandna Impex Pvt Ltd Vs CC (Dated: June 6, 2017)

Cus - Issue emerges is regarding jurisdiction of DRI Officers to issue SCN underCustoms Act, 1962 - High Court of Delhi in case of Mangli Impex 2016-TIOL-877-HC-DEL-CUS has observed that DRI is not competent to issue SCN - Said issue was alsosubject matter of Mumbai High Court in case of Sunil Gupta 2014-TIOL-1949-HC-MUM-CUS as also of High Court of Telangana and Andhra Pradesh in case of VuppalamrithaMagnetic Components Ltd. 2016-TIOL-2789-HC-AP-CUS , taking a view contrary to theone taken by Delhi High Court - Being conflicting decisions of various High Courts,

finally the matter reached to Supreme Court who granted the stay of operation ofjudgment passed by High Court of Delhi - Thus the issue is subjudice before SupremeCourt - Matter remanded to original adjudicating authority to first decide the issue ofjurisdiction after availability of Supreme Court decision in case of Mangli Impex andthen on merits of case but by providing an opportunity to assessee of being heard:CESTAT


Universal Petrochemicals Ltd Vs CC (Dated: June 29, 2017)

Cus - Section 129D(4) of the Customs Act, 1962 clearly extends the facility of filing ofcross objection by respondent assessee in Revenue appeal before Commissioner(A) -ROM application allowed - Matter remanded to Commissioner(A) to decide afresh afterconsidering the argument raised by applicant/appellant in cross objection: CESTAT[para 5]



BK Pabri Vs CC (Dated: May 12, 2017)

Cus - Issue involved is relating to liability of both assessees for penalty under CustomsAct, 1962 - Assessee as officers of Customs were involved in processing of exportgoods, and alleged to have abetted an improper transaction which will render goodsliable for confiscation - Such action of abetting was held to be proved against bothassessees by Original Authority who imposed penalty on assessees under Section 114(iii) of Customs Act, 1962 - Only point for decision is liability of assessee for penaltyunder Section 114 (iii) of Customs Act for their act/omission during course of theirperformance as customs officers, dealing with export cargo - Original Authority hasrecorded that documents which are central part of proceedings were not available, tobe supplied to assessee - In absence of documents based on which allegations weremade, whole proceedings against assessee become seriously jeopardized - In case ofShri Rajiv Kumar Meharwal, Department itself found him as not indulging in anypunishable activity in terms of CCS (Conduct) Rules - There is no sustainable ground toimpose penalties under Section 114 on assessee: CESTAT


Seven Seas Petroleum Pvt Ltd Vs CC (Dated: May 26, 2017)

Cus - Assessee had imported a consignment of Base Oil SN 500 and Base Oil SN 150 atCochin and warehoused the goods under cover of bond bill of entry - They filedAnnexure for EDI ex-bond clearance of Base Oil SN 150 through their custom houseagents, but the print out of bill of entry showed the description as base oil SN500 -Issue is of cancellation of Bill of Entry - On 24/02/2005, assessee requested forcancellation of Bill of entry on the ground that they had inadvertently filed Bill of Entryfor Base Oil of grade SN 500 whereas it should have been SN 150 - There was achange of duty, however, there is no reason why request should not be granted ifthere is a change in rate of duty - The basic requirement under Section 149 was thatgoods were not cleared for home consumption before amendment - However, questionhere is of cancellation - Tribunal do not think that cancellation could be taken assynonymous to amendment - Therefore, Section 149 is not the right remedy forcancellation: CESTAT


Piramal Enterprises Ltd Vs CCE (Dated: March 30, 2017)

Cus - Assessee has come in appeal against a letter of an Additional Commissioner ofCX dated 08-07-2005 conveying that their request for extension of warehousing periodhas been rejected by Commissioner - It is no way a decision or order passed by said

Commissioner as an Adjudicating Authority or by Commissioner (A) under Section129A of Customs Act, 1962 - Tribunal is a creature of statute and has therefore to actclearly within its bounds - Hence an appeal against impugned letter that is notrecognized vide provisions of Section 129A ibid cannot be entertained by Tribunal -Appeal is therefore dismissed as not maintainable: CESTAT


Bharat Petroleum Corporation Ltd Vs CCE (Dated: May 5, 2017)

Cus - Appeal filed against impugned order wherein Commissioner (A) has dismissed allappeals for non-compliance with condition of pre-deposit as provided for under Section129E of Customs Act, 1962 - Assessee filed an Into-bond Bill of Entry and a continuitybond was executed - Assessments pertaining to imports affected during said periodwere kept provisional pending availability of figures relating to freight paid to eachvessel - On receipt of final figures, assessee submitted the same to department forfinalization of assessment and in meantime they had made substantial paymenttowards duty on quantity of crude imported as determined by shore tank receiptfigures but department took a stand that assessee is liable to pay duty on basis of Billof Lading quantity - Apex court in case of Mangalore Refinery & Petrochemicals Ltd.2015-TIOL-199-SC-CUS has held that quantity actually received into shore tank in portin India should be the basis for payment of customs duty - Since in impugned order,Commissioner (A) has not decided the appeals on merit, all these cases are remandedto Commissioner (A) for deciding the same on merits: CESTAT


Bharat Petroleum Corporation Ltd Vs CCE (Dated: May 4, 2017)

Cus - Assessee filed into-bond Bills of Entry for import of petroleum crude oil on thebasis of Bill of Lading quantity - Goods were provisionally assessed on execution ofbond and allowed to be warehoused in bonded tanks at importers premises - Later, ex-bond clearance were also allowed on provisional assessment and on receipt of finalfigure relating to payment of cost, freight, insurance and canalizing commission on thecrude oil imported, assessee submitted the same before department for finalization ofassessment - Department, however, took a stand that insofar as the figures wererelatable to Bill of Lading quantity and said amount has been paid by assessee to theforeign supplier/vessel, said amount had to be taken into account while determiningthe transaction value of imported goods for purpose of payment of custom duty -Impugned order is not sustainable in law as same has been passed by misconstruingthe interpretation of Section 14 of Customs Act, 1962 - Goods which are not importedinto India on account of their not being received in shore tanks of importer cannot beconsidered for purposes of valuation of imported goods under Customs Act - Issue isno more res integra and has been settled in favour of assessee by Apex court in caseof Mangalore Refinery & Petrochemicals Ltd. 2015-TIOL-199-SC-CUS wherein Apexcourt has held that quantity actually received into shore tank in port in India should bethe basis for payment of customs duty - Further, Apex court has also settled the issueof demurrage charges in Mangalore Refinery & Petrochemicals Ltd. 2015-TIOL-306-SC-CUS wherein Apex court has held that demurrage charges are admittedly incurred aftergoods reached at Indian ports and, therefore, it is a post-importation event - Suchcharges, therefore, cannot form part of transaction value: CESTAT


Universal Petrochemicals Ltd Vs CC (Dated: March 22, 2017)

Cus - Provisional assessment finalized by Assistant Commissioner and duty short paidwas demanded - order challenged by Revenue on the ground that interest was notdemanded - Commissioner(A) rejecting appeal - Assessee had filed cross objectionschallenging the quantification in the appeal filed by Revenue, however, no findingswere rendered thereon by Commissioner(A) - Assessee in appeal before CESTAT - ARsubmitting that assessee should have no grievance as it was Revenue appeal that wasdismissed. Held: Section 128 of the Customs Act, pertaining to appeals to

Commissioner (Appeals), does not provide for filing of cross objection - CustomsAppeal Rules, 1982 prescribes filing of cross objection only before the Tribunal - Inthese circumstances, if the appellants were aggrieved by the order of the AssistantCommissioner, they should have filed an appeal before the Commissioner (Appeals) -Appeal dismissed: CESTAT [para 5]


Essel International Vs CC

Cus - Assessee imported Digital Set Top Boxes and viewing card (STB) and filed bills ofentry for clearance through Customs. - Dispute relates to value to be adopted forimported goods for purpose of payment of additional duty in terms of Notfn 49/08-CE(NT) - Assessee imported impugned items with a declared MRP printed at Rs. 1,000/-per piece and sold the said items to M/s. Dish T.V. India Ltd. for Rs.2,100/- per piece -Proceedings were initiated against assessee to demand differential duty by takingRs.2,100/- as RSP for impugned goods based on sale price of assessee to M/s. DishT.V. - While rejection of RSP declared by assessee is prima-facie supported byevidences as recorded by Authority to arrive at correct RSP, reasoning has to berecorded - While declared price is rejected, fixing the correct value is to be done withclear reasons and supporting evidence - It is apparent that assessee have to providetheir side on defence with supporting evidence as MRP declared on import package is,prima-facie, found to be not acceptable - However, correct assessable value in termsof Section 4 A of CEA, 1944 has to be arrived at, afresh by original authority -Admittedly, assessee sold in bulk and also M/s. Dish T.V. India Ltd. cannot beconsidered as retail consumer of said set top boxes - This aspect requiresreconsideration by original authority: CESTAT


Hr Electronics Vs CCE (Dated: June 6, 2017)

Cus - Issue emerges is regarding jurisdiction of DRI Officers to issue SCN underCustoms Act, 1962 - High Court of Delhi in case of Mangli Impex 2016-TIOL-877-HC-DEL-CUS has observed that DRI is not competent to issue SCN - Said issue was alsosubject matter of Mumbai High Court in case of Sunil Gupta 2014-TIOL-1949-HC-MUM-CUS as also of High Court of Telangana and Andhra Pradesh in case of VuppalamrithaMagnetic Components Ltd. 2016-TIOL-2789-HC-AP-CUS , taking a view contrary to theone taken by Delhi High Court - Being conflicting decisions of various High Courts,finally the matter reached to Supreme Court who granted the stay of operation ofjudgment passed by High Court of Delhi - Thus the issue is subjudice before SupremeCourt - Matter remanded to original adjudicating authority to first decide the issue ofjurisdiction after availability of Supreme Court decision in case of Mangli Impex andthen on merits of case but by providing an opportunity to assessee of being heard:CESTAT


KVS Exports Pvt Ltd Vs CCE (Dated: April 5, 2017)

CUS - Assessees were issued SCN prior to amendment of section 28 of Customs Act,1962 by DRI officers - Assessees challenged the SCN on the ground that for periodprior to amendment of Section 28, DRI officers were not proper officers and were notempowered to issue SCN - Assessees further mentioned that as per Notfn 44/2011-Cus. (N.T), Government assigned the functions of proper officer to various officersincluding Additional Director General(ADG) DRI w.e.f July 6, 2011 prospectively for thepurpose of Section 28 of Customs Act and was empowered to issue demand notice -However the present issue relates to the issuance of SCN prior to the period ofamendment in the Section 28 of Customs Act - The issue related to the jurisdiction ofthe DRI officer whether empowered to issue SCN is still pending with the SupremeCourt in the case of Mangali Impex - Therefore, matter was remanded back to theadjudicating authority to wait for the decision of the Apex Court and once the decision

will be given then by applying the ratio of the decision this issue of jurisdiction shall bedecided by giving the assessees fair opportunity of hearing: CESTAT(1,2,3,4,14.8,15.3,15.4)


Premax Logistics Vs CC (Dated:March 30 , 2017)

Cus - Penalty - Section 112(a) and Section 114AA of Customs Act, 1962 - DRI stoppedtwo import consignments and found it to contain wooden doors - It was also found tocontain foreign brand cigarettes and other high valued goods such as branded LED TVsand cosmetics - It appeared to department that one Shri P.Mahivannan was the mainperson behind said import using IEC of Sri Sai Enterprises owned by Shri Dilli Babu, incollusion with one Shri Akbar of Malaysia - There is no reasoned analysis as to whatwas the part played by assessee and how that has resulted in " acts of omission andcommission " - No basis found for imposition of penalty of high quantum imposed -Viewed in this context, it is but obvious that the adjudicating authority has beenunjudicious and peremptory in imposition of impugned penalty under section 114AA,since, unless it is proved that the person to be penalized, has knowingly orintentionally implicated himself in use of false and incorrect materials, there can be nojustification for penalty under that section - This requirement has not beensatisfactorily met either in notice or in impugned order and hence same is set aside -In an exercise involving import spanning 20 consignments, assessee as CHA cannotclaim that they had no inkling of what was going on - No proof is adduced anywherethat he actively involved in fabrication of false material, nonetheless the very fact thathe was connected with main player involved will definitely indicate some level ofknowledge of modus operandi, even though it may be to a smaller extent - Penaltyunder section 112 (a) is therefore imposable but same is reduced: CESTAT


Indo Oversees Vs CCE & ST(Dated: May 17, 2017)

Cus - Assessee engaged in import of Colour TV and filed bill of entry through theircustom broker for clearance of imported Samsung/Sony LED TV panels - Revenueinvestigated the consignment and alleged that assessee mis-declared the importedgoods with regard to description, parts, models, specifications and also the value inorder to evade duty - To ascertain the price of imported goods, revenue requestedsony/samsung to provide the price details of products imported by assessee - Goodswere confiscated by the revenue - Revenue issued SCN to assessee demanding dutywith interest & imposed penalty - Its worth to mention here that samsung & sony werethe competitors of assessee and these companies were not the approved governmentlabs or valuer to provide the exact value of the goods imported - Further no test reportobtained by revenue from the approved laboratory or government laboratory and insuch a circumstances the revaluation of the imported goods appeared to be untenable- Therefore, matter was remanded back to the adjudicating authority to allow theassessee to redeem the goods by submitting appropriate bond and bank guarantee -Further necessary samples should be kept to ascertain the value of the goods throughGovernment Lab/Chartered Engineer and further assessee should be given fairopportunity for filing their objections: CESTAT (2,3,4,5,13)


Mach Aero Components Pvt Ltd Vs CC & ST (Dated: February 28, 2017)

Cus - Assessee, a 100% EOU registered with Department for manufacture of bearingequipments and critical high precision mechanical parts of aero engines - They hadfiled a refund claim under Notfn 05/2006-CE being unutilized credit of ST paid onRoyalty charges paid to a foreign service provider under Reverse Charge mechanismbasis under category of 'Scientific and Technical Consultancy' - Same was rejected bylower authority - Assessee have made a full disclosure of cenvat credit availed andsame has been shown in ST-3 Returns - Since assessee is into an export ofmanufactured goods, therefore he has shown cenvat credit in ST-3 Returns and not

disclosed credit in ER-2 Return which is only a procedural requirement and does notdisentitle him for refund - ST paid on royalty to service provider on Reverse Chargebasis on basis of agreement, said service falls in definition of 'input service' under Rule2(1) of CCR, 2004 as the same is related to business of assessee: CESTAT


Shivam Enterprises Vs CC (Dated: April 24, 2017)

Customs - Appeal filed by the appellant against the order wherein the CHA licence wasrevoked and security deposit furnished by the CHA was forfeited.

Held: SCN was issued to the appellant and the enquiry report submitted was beyondthe period of 90 days from the date of the show cause notice - Thus Condition No. (5)in Regulation 20 of CBLR, 2013 has not been followed by the Department for revokingthe licence - the Hon'ble Delhi High Court in the case of Impexnet Logistic vs. CC(General) = 2016-TIOL-1069-HC-DEL-CUS held that the time limits prescribed inCBLR, 2013 are sacrosanct and mandatory, which and to be strictly followed - Hence,revocation of licence and forfeiture of security deposit are not proper and justified -(Para 3, & 4).


Bharat Petroleum Corporation Ltd Vs CC (Dated: April 6, 2017)

Cus - Assessee had imported few consignments of motor spirit and high speed dieseland cleared the same through Kandla Port - They had filed into-Bond Bills of Entry andimported consignments were stored in warehouse without payment of duty u/s 58 ofCustoms Act, 1962 - In view of decision in case of Mangalore Refinery &Petrochemicals Ltd. 2015-TIOL-199-SC-CUS , quantity of crude oil actually receivedinto a shore tank in a port in India should be the basis for payment of customs duty -Additional duty of customs levied @Rs.2/- per litre is required to be added to the basiccustoms duty for computation of CVD payable - However, to ascertain the correctamount of CVD, matter needs to be remanded to original authority: CESTAT


Chander Prakash Verma Vs CC (Dated: May 16, 2017)

Customs - Allegation of smuggling of gold - By the impugned orders, a penalty of Rs.50 lakhs were imposed on Chander Prakash Verma for his involvement in the allegedsmuggling of the gold - Hence, the present appeal.

Held: The appellant is running the proprietorship firm under the name of G. P.Jewellers where he was supposed to adjust the gold - he appellant was living in thenearby area at Ansari Road so he was well acquainted with the Darya Ganj area fromwhere the gold was recovered - In these circumstances, the appellant cannotdisassociate himself from the recovered gold stating that he was an innocent bystanderand was a curious lookers - In these circumstances, it is evident that the appellant hascommitted the crime of smuggling - no reason to interfere with the impugned orderwhere the penalty of Rs. 50 lakhs were rightly imposed on the appellant - Appealdismissed - (Para 5, & 6)


CC Vs Chandan Exports (Dated: May 8, 2017)

Cus - Assessee filed a Bill of Entry for clearance of Aluminum Plates of variousthicknesses and classified the goods under CTH 76061190 - Revenue views thatsubject goods are classifiable under CTH 76109090 - Though impugned order mentionsthat subject goods are simple Aluminum plates/sheets/strips, they actually areAluminum Composite Plates bonded with polyethylene and are coated with differenttypes of protective layers - Constitution of goods in question and their use has not

been fully appreciated in impugned order by first Appellate Authority - Departmentstates that their view has always been that subject items are specially meant forstructures - Therefore, impugned order on this count is set aside - Issue of valuationalso would require fresh determination as findings on valuation based on classification,which Tribunla is remanding, cannot be sustained: CESTAT


Premier Cotton Textiles Vs CCE (Dated: March 3, 2017)

Cus - Appellant says that raw material imported by it have undergone the process ofmanufacture and resultant goods have been exported in fulfillment of condition ofNotfn 53/97-Cus.and appropriate quantum of foreign exchange have been realized -Percentage of wastage occurred in manufacturing process to the extent 25.93 forperiod from October 1999 to March 2011 and 28.70% for period from April 2001 toMarch 2002 was not acceptable to Revenue - Prima facie, it does not appeal tocommon sense as to how without SION fixed by EXIM Policy which governed theassessee for purpose of import and export and also the Notfn governing assessee,having no mention about any SION or percentage of wastage, assessee shall bearbitrarily dealt - Department has not made any case to show that there wasdeliberate pilferage of the raw material by assessee or diverted the same - Therefore,arbitrary adjudication is not permissible: CESTAT


Aban Exim Pvt Ltd Vs CC (Dated: April 7, 2017)

Cus - Assessee filed Bill of Entry for clearance of goods declared as 'New Passenger CarRadial Tyres' of mixed sixes, stuffed in three containers - The goods were subject to100% examination on first check basis with the instruction to verify make, model,type, sizes and BIS certification/requirement - On examination, it was found that therewere total 2529 nos. of tubeless tyres as per Invoice & Packing List of mixed brandslike Nexen, Hankook Dunlop and Good Year of different sizes and different country oforigin like Korea, China, Japan - So far the tyres of other brands are concerned,assessee urged that it nowhere have come in report of Customs Officers that suchtyres are not of good quality on first check or visual examination - For these tyres,Adjudicating Authority shall obtain a test report from a scientist of Central Institute ofRoad transport (CIRT) or some other lab, as acceptable to both the Revenue andassessee, and if those tyres are found to be of acceptable quality as per the testreports so, obtained, then Adjudicating Authority shall allow the same to be cleared forhome consumption - So far redemption fine is concerned, same shall be re-determined@ 20% ADV of tyres found not of acceptable quality as directed above, which shall beavailable for re-export on payment of redemption fine so determined: CESTAT


CC Vs Akasaki Technology Pvt Ltd (Dated: May 8, 2017)

Cus - Assessee filed a bill of entry for clearance of imported items - On perusal ofimpugned order, it is found that said order upheld the findings of original orderregarding mis-declaration of imported goods in quantity as well as value - There werecounterfeit goods with name of well known brands - Mis-declared value is onlyRs.10,51,137/-, which was enhanced to Rs.1,10,62,837/- - This excluded the value ofcounterfeit branded goods - This revision of value is made basically in terms of revisedinvoice produced by importers themselves during course of examination of goods -There is no reason at all recorded for such reduction - Redemption fine imposed byOriginal Authority, can by no means, be called excessive or arbitrary - Accordingly,reduction of redemption fine, is not legally sustainable or justified - Similarly,considering the magnitude of offence, such reduction is neither justifiable nor legallysustainable - Based on evidences on record, Directors' action of filing mis-declareddocuments with customs will attract penal consequences as rightly held by Original

Authority - Provisions of Section 112(b) is correctly invoked for penalties on theseDirectors: CESTAT


Beetel Teletech Ltd Vs CC (Dated:March 8, 2017)

Customs - Dispute relates to the limitation period - the original adjudicating authorityallowed certain amount of refund claim and rejected the rest of refund claim on theground of limitation, by holding that the same stand filed after the permissible periodof one year.

Held: The department wrote a letter on 2.9.08 to VAT department seeking clarificationon factual position, as regards the appellants claim of payment of VAT - unless there isapplication for refund of SAD, Revenue would not make general inquiry about theassessee's payment of VAT - whether there was refund application prior to the presentrefund application, the appellants stand has to be appreciated and examined - thematter remanded to the original adjudicating authority for verifying the appellantsstand. (Para 5).


Suzlon Energy Ltd Vs CC AND ST (Dated:March 24, 2017)

Cus - Assessee filed applications beyond the stipulated period of 60 days from LetExport Data (LED) for fixation of brand rate of duty drawback, under Rule 6 and 7 ofCustoms, Central Excise Duties and Service Tax Drawback Rules, 1995 - Theyexplained the delay in their applications stating that they could not received relevantshipping documents from CHA and also data involved in case was received late andclaim was to be worked out on the basis of relevant data - Since assessee explainedthe delay which are reasonable and bonafide, delay in submitting applications, which isless than 30 days, deserves to be condoned: CESTAT


Global Alliance Inc Vs CC (Dated: April 21, 2017)

Cus - Issue is regarding jurisdiction of DRI Officers to issue SCN under Customs Act,1962 - Assessee pleads that in case of Mangali Impex - 2016-TIOL-877-HC-DEL-CUS,High Court observed that SCN issued by DRI is not proper - There are two viewsholding the field and matter now stand before Supreme Court - In an earlier case,Supreme Court in case of Chandna Impex - 2011-TIOL-61-SC-CUS had remanded thematter to Tribunal with a direction to examine issue of jurisdiction afresh in light ofdecision in Sayed Ali - Entire issue is once again before Apex Court, in view of contrarydecision of various High Courts - It deems fit to remand the matter to originaladjudicating authority to first decide the issue of jurisdiction, after availability ofSupreme Court decision in case of Mangali Impex and then the merits of case: CESTAT


Leadage Alloys India Ltd Vs CCE, ST & C (Dated: May 19, 2017)

Cus - Redemption fine and penalty - Assessee engaged in manufacture of lead andlead alloys ingots and said goods are used as inputs by manufacturer of batteries -During investigation, a conclusion was reached by department that assessee hadimported lead scrap in unshredded, compressed or loose form vide two Bills of Entry incontravention of import regulation - Commissioner of Customs, Bangalore videimpugned order held that assessee has mis-declared the scrap imported by them as"lead strippings" as a result of which scrap was liable to be confiscated and penaltyunder Section 112(a) of Customs Act, 1962 liable to be imposed - Impugned orderholding the goods as liable to confiscation without goods being actually seized is notsustainable in law - Confiscation cannot be ordered in absence of seizure of goods and

therefore, imposition of redemption fine is not sustainable in law - Once theredemption fine is not imposable, consequently penalty under Section 112(a) alsocannot be imposed since there was no seizure of goods in first place: CESTAT


Global Infotech Vs CC (Dated: March 9, 2017)

Cus - Assessee imported certain items and filed bill of entry declaring various itemsimported by them along with value of same - Revenue enhanced the value of samebased upon NIDB data - Apart from said items, consignment was also found to contain40 boxes of Glass Chattons, which were not declared by assessee - Apart from NIDBData, there is virtually no other evidence on record to reflect upon under valuation ofsaid declared items - There is also no discrepancy about description of same and assuch, enhancement of value, without any evidence on record except NIDB Data,cannot be upheld - As regards Glass Chatons, it stands fairly admitted that same werenot declared by importer - As such, such undeclared items are liable to confiscationand importer is also liable to penalty - For the limited purpose of classification of GlassChatons, matter remanded to Original Adjudicating Authority for fresh decision - Merepresence of declared and undeclared items in import consignment would not ipso-factolead to conclusion that declared items were brought only with intention of concealingundeclared items - As such, confiscation is not called for, same is accordingly set-aside: CESTAT


Bangalore Fluid Systems Components Pvt Ltd Vs CC (Dated: August 28, 2017)

Customs – ROM – Date of final assessment was wrongly mentioned as 01/06/2009,whereas the bills of entry relevant to the claims were only finally assessed inDecember, 2009 - there is an error in the finding of the Tribunal to the effect that therefund applications were not filed within the limitation period of final assessment, asdecided by the Hon'ble Jurisdictional High Court.

Held: The final order dealt with the legal issue about the time limit applicable toconsider the claims for refund - the date of final assessment was not presentedcorrectly during the course of argument and also in the appeal papers - Uponverification, it is seen that the date of final assessment should be the date ofassessment of bills of entry finally - Accordingly, while the legal principles as held inthe final order are correct, the error in dates are to be corrected and consequentialbenefit, if any, are to be granted to the appellant – ROM applications allowed – (Para3).

2017-TIOL-2251-CESTAT-DEL-LB

Manali Petrochemicals Ltd Vs Designated Authority (Dated: May 16, 2017)

Anti-Dumping Duty - Appellant engaged in manufacture of Flexible Slabstock Polyol inIndia and is recognised as Domestic Industry (DI) and filed application under Rule 5 ofAD Rules for initiation of investigation with reference to import of subject goods fromspecified countries, for imposing AD duty - Appellants are mainly focusing onmethodology adopted by DA in determining normal value in Singapore - Points raisedby appellant against the method followed by DA - DA has recorded that net exportprice for export made from Singapore has been determined on the basis of informationavailable on record - Due adjustment on account of commission, credit cost, bankcharges, inland freight and port handling charges in order to arrive at net export priceat ex-factory level has been made - Having so arrived at export price at ex-factorylevel, dumping margin was arrived at by DA - DA examined the import volume andmarket share of subject goods, price effect and evolution prices over the period - Ondetailed examination of various parameters, DA concluded that the profitability of DIhas declined clearly showing injurious impact of dumped imports from subject

countries on price of DA - DA concluded that domestic countries has suffered materialinjury during period of investigation - The magnitude of injury margin is arrived at bycomparing non-injurious price of subject goods produced by DI with landed value ofexport from subject countries and thereafter injury margin has been arrived at inpercentage terms - Final recommendation of imposition of definitive AD Duty on importof subject goods of subject country has been arrived at after due consideration of allrelevant factors - Final findings of DA cannot be interfered with: CESTAT


Maya Overseas Vs CC (Dated: February 9, 2017)

Cus - Assessee imported accessories, batteries for mobile phones/ laptop and filed billof entry and said goods were examined and declared value was enhanced and finallyassessed, accordingly, assessee paid the duty on 02.05.2013 - However, on06.05.2013 goods were re-examined again - Revenue views that battery bank and carcharger were with brand name 'ROMOS' which was not declared and classification andvaluation of imported items were to be re-determined - Original order is cryptic andnot addressing the issues in its entirety in as much as comprehensive finding in respectof issues have not been recorded - Many judgments / decisions have been relied byimporter and none of them are discussed - No discussion was found regardingcomparability of NIBD data both in quality, and quantity, level of transaction ofcomparable goods - It simply records that when there is evidence of highercontemporaneous import value of similar goods, it is difficult to accept the declaredvalue - Various issues raised by assessee were not dealt with in proper prospective -Accordingly, matter remanded to original authority to decide the issue afresh: CESTAT


S Hariharan Vs CC & ST (Dated: May 3, 2017)

Cus - Assessee engaged in the import of parts for manufacturing medical equipments -It was alleged that assessee imported various components, parts, spares such asrelays, capacitors and other items for manufacturing of D.C Defibrillators byfraudulently claiming duty exemptions under Customs Notfn. No.11/97, No.23/1998 &No.20/99 - After investigation DRI issued SCN stating goods confiscated anddemanded Customs duty & imposed penalty however assessee challenged the SCNreason being DRI officers were not empowered to issue SCN - Held - Since the similarissue arose earlier in the case of Mangali Impex wherein Delhi High Court stated thatSection 28(11) of Customs Act didn't empower officers of DRI and DGCEI to adjudicateSCN issued by them however Supreme Court stayed the decision of the High Court -Therefore, the impugned order set-aside and the matter being further remanded to theoriginal adjudicating authority to first decide the issue of jurisdiction of DRI officer aftergetting the decision in the case of Mangali Impex and then decide this case on merits:CESTAT


Subham Enterprises Vs CC (Dated: February 14, 2017)

Cus - Assessees in present case include several sellers of imported goods, an importerof such goods and a carrier - Goods belonging to the sellers were seized & dutydemand with interest & penalty was imposed - Tribunal subsequently upheld dutydemand but set aside the penalty - Thereby, the sellers challenge their liability underthe Act while revenue seeks imposition of penalty as well - Issue at hand is whetherreadjudication is maintainable when jurisdiction of the D.R.I to issue SCN is challengedand whether the readjudication was made adopting finding of the original adjudicationorder as is apparent from paras-36 & 20 of the impugned order - Held - w.r.t. thesecond issue at hand, readjudication ought to have been made by AdjudicatingAuthority independently on the basis of the materials on record, evidence and lawapplicable to the given facts and circumstances of the case, applying direction of theTribunal, without adopting the original adjudication findings - Therefore impugnedorder remanded for fresh adjudication making independent enquiry - Adjudicating

Authority should note that not only past consignment were cleared on the basis of fakeand fraudulent advance authorization filed by assessees, but also live consignmentswere attempted to be cleared on that basis and such material fact remainedunrebutted all through and even before Tribunal - Further, w.r.t. the issue ofjurisdiction of DRI officers to issue SCN under the Customs Act, matter remanded backto Adjudicating Authority for determination of the same in light of the Delhi High Court& subsequent Supreme Court judgment in the case of Mangali Impex - Those appealsnot contested, set aside - Revenue appeals seeking imposition of penalty which werenot contested by the assessees, stand allowed - Rest of the appeals remanded:CESTAT (Para 2.1,7.2,12,13,15.11)


M/s Paswara Papers Ltd Vs CC (Dated: May 19, 2017)

Cus - Assessee firm purchased Rubber Process Oil from the main importer - The goodsat the time were pending test results - The assessee classified the goods under aparticular heading - Upon test, the Rubber Process Oil was found to be High SolvencyProcess Oil and based on its Aromatics Mass, revenue alleged that the goods wereclassifiable differently - Held - Following the precedent in the case of Kushal N. Desai2016-TIOL-1624-CESTAT-MUM , since the aromatic constituent of the goods inquestion was higher than that prescribed for classification under Heading 2710, theclassification of revenue was correct - Hence impugned orders upheld: CESTAT (Para2,5)


R K Industries Vs CC (Dated: March 31, 2017)

Cus - Assessee engaged in export of Basmati Rice - Consignment exported by assesseewere confiscated & imposed penalty - By applying the ratio decided in case of OrionEnterprises 2015-TIOL-1991-HC-DEL-CUS and as per Notfn. 67/2003 r/w Rule 11 ofExport Rules, it prohibits the export of Basmati Rice if in the export consignment ofBasmati Rice the proportion of 'Non-Basmati Rice' or 'Other' rice exceeds 15% thenexport consignment can be confiscated and penalty u/s 114 (i) and 114 AA held legal -If the consignment material comes out to be false/incorrect and not matching with theexport description therefore liable to a penalty not exceeding five times of the value ofthe goods therefore matter remanded to the Adjudicating authority for those appealsfiled by revenue where penalty imposed by Commr. was less without relevantexplanation - Wherein CHA and it employees participated deliberately in fraud and notperformed their duties lawfully then penalty imposed on them was justified - Alsowherein penalty was not imposed and goods were not confiscated and matters whereCommr. failed to confiscate the goods and to impose redemption fine those matterswere also remanded back to adjudicating authority for proper adjudication: CESTAT(Para 1,2,5,9,10)

2017-TIOL-2215-CESTAT-KOL

Pankaj Surana Vs CC (Dated: January 31, 2017)

Cus - Several Micro SD Cards of Taiwanese origin were seized from the appellant fornot having covering documents to account for the same - Subsequently, the goodswere confiscated & redemption fine with penalty were imposed - Held - Uponproduction of documents by the appellant, the supposed seller of the goods denied anysuch sale, thereby, leaving no doubt that the documents were not genuine - Henceimposition of redemption fine with penalty were justified - Nonetheless redemption finereduced: CESTAT (Para 2,6)


Sakthi Coco Products Vs CC (Dated: May 3, 2017)

CUS - Assessee is an importer of desiccated coconut - Revenue alleged that whenassessee imported the consignment of desiccated coconut from Sri Lanka theydeclared the value of $400 per MT and investigation of DRI revealed the goods valuewas between $930 and $955 per MT - Revenue confiscated the goods and demand forduty was raised along with the penalty - When DRI carried out investigations with SriLankan Customs and procured copies of documents filed by the supplier in Colombo tothe Sri Lankan Customs pertaining to the very same containers imported by assesseerevealed that assessee has not declared the price properly and evade the duty -Revenue was able to prove the guilt of assessee therefore, duty demanded and penaltyimposed was held justified: CESTAT


Service Bureau Vs CC (Dated: April 16, 2017)

Cus - Revocation of license - Assessee is a customs broker with license issued underCHALR, 2004 - They were also granted permission to transact customs clearances workin jurisdiction of Mumbai Customs under Regulation 9 (2) of CHALR, 2004 - They filedBill of Entry in Mumbai for clearance of goods imported by M/s. Chirag Corporationunder DFIA sheme - Mumbai Customs authorities, upon investigating into imports,detected under invoicing of goods and an offence case was booked - Offence report isin form of a letter issued by Mumbai Customs to Delhi Customs which has beenenclosed with SCN issued for alleged customs offence - Since the date of letter is01.12.2014, it is reasonable to presume that same has been received by DelhiCustoms shortly thereafter - Consequently, SCN dated 03.03.2015 cannot be held asissued beyond the time limit specified in Regulation 20 - Matter remanded toadjudicating authority for de novo decision after furnishing copies of relevantdocuments based on which the case has been made against assessee: CESTAT


CC & CE & ST Vs Ultratech Cement Ltd (Dated: February 24, 2017)

Cus - Assessee were engaged in the manufacture of cement, for which the assesseeimported steam coal - During import, assessee paid Basic Customs Duty (BCD) @ 5%with Counter Veiling Duty (CVD) @ 5% & clean energy cess - Assessee availed benefitof Notfn. No. 28/2010 & No. 29/2010 and did not pay Education Cess (EC) andSecondary & Higher Secondary Cess (SHC) - Duty demand was imposed - Assessee'sappeal was subsequently allowed by the Commr.(A), which is now contested byrevenue - Held - Issue at hand already decided in the judgment in Singareni CollieriesCo. Ltd. 2016-TIOL-2858-CESTAT-HYD - Following such precedent, penalty is set aside- However, SCN demand upheld: CESTAT (Para 2,5)


CCE Vs Indian Oil Corporation Ltd (Dated: April 6, 2017)

Customs - Refund - the respondent imported Crude Petroleum & warehoused the sameat Vadinar, Jamnagar after filing into bond Bills of Entry during the material period;subsequently cleared to IOCL Mathura on payment of Customs duty on provisionalbasis for home consumption by filing ex-bond Bills of Entry - the assessments werefinalized, resulting in refund of Customs duty for which the respondent filed 12 claims -the Original Authority rejected all the 12 refund claims, on the grounds of unjustenrichment and non filing of requisite documents, which was agitated before theCommissioner (Appeals), who relied on the Apex Court ruling in the Star Paper Millscase and held that the refund arose as a result of finalization of provisional assessmentand that the provisions related unjust enrichment were not applicable in terms of theApex Court ruling - The OIA is now agitated by Revenue herein.

Held: As per the provisions of Section 18 of Customs Act, 1962, there was no need tofile application for refund since it provided for consequential refund suo-moto by the

Officer assessing finalization of provisional assessment - such a refund order was notpassed on finalization and the respondents were compelled to file refund applicationunder Section 27 of Customs Act, 1962 - Sub-section 3, 4 & 5 of Section 18 ofCustoms Act, 1962 were inserted with effect from 13/07/2006 and all the provisionalassessments in the present case were for the period from 04/05/1998 to 27/01/2001 -High Court of Delhi in the respondent's own case has ruled that when an amountbecomes refundable after a final order is passed, the same has to be refundedimmediately and for such purpose, the assessee is not required to move an applicationunder Section 27 of Customs Act, 1962; and that for the period before 13/07/2006provisions of Sub-section 3, 4 & 5 of Section 18 of Customs Act, 1962, shall not beapplicable - Following the rulings by High Court of Delhi in respondent's own case, theprovisions of unjust enrichment are not applicable in the instant case. [Para 6]


Sunvik Steels Ltd Vs CC (Dated: April 24, 2017)

CUS - Assessee is an importer of Steam Coal - Revenue alleged that assessee shortpaid the customs duty by considering the imported coal as 'Steam Coal' classifiedunder CTH 27011920 however the coal imported by the assessee was 'BituminousCoal' and classified under CTH 2701200 chargeable to basic customs duty of 5 % withCVD at 6% as per the Notfn. No.12/2012-Cus - Demand was raised for the differentialduty with interest & imposed penalty -Held- Since, assessee brought into the noticethat similar issued arised earlier too related to the classification of imported coalwhether can be treated as Bituminous coal or Steam coal in the case of M/s. MarutiIspat and Energy Pvt. Ltd. & Others which is still pending before the Supreme Court -Therefore, liberty granted to the assessee to come again before this tribunal after thefinal adjudication of the pending case within the prescribed time: CESTAT


Landis Gyr Ltd Vs CC, CE & ST (Dated: March 22, 2017)

Cus - Whether exemption from duty free import in terms of Notfn 52/2003- Cus , havebeen rightly disallowed under the fact that assessee were issued a ProcurementCertificate by Jurisdiction Centre Excise Authority for import of Electricity Meter TestEquipment (EMTE) bearing code No. 'ELMA 08303E', whereas EMTE imported byassessee bore the code No. 'ELMA 8303B' instead of 'ELMA 08303E' -Manufacturer/supplier located at Slovakia, have adequately explained that machinesupplied by him, and the one ordered by assessee is one and the same and there ishardly any difference - It is noticed from facts on record, along with the ElectricityMeter Testing Equipment other goods which supplement or complement the ElectricityMeter Testing Equipment were also imported, which have not been objected to byRevenue - Explanation given by machine manufacturer have not been found to bewrong and further there is no adverse test report available on record, justifyingdisallowance of benefit under Notfn 52/2003-Cus: CESTAT


Karnataka Soaps and Detergents Ltd Vs CC (Dated: March 24, 2017)

Cus - Appellant filed two Bills of Entry for clearance of Palm Kernel Fatty Acid Distillate- Goods had been purchased on High Seas basis from M/s.Ruchi Soya Industries Ltd.,second named appellant herein - Bills of Entry were assessed on 'Second Appraisementbasis' with instructions to verify description with reference to Analysis Certificate orTechnical Literature and Original or Bank attested import documents - On inspection,while examining documents accompanying Bills of Entry, Customs noticed apparentmisdeclaration in invoicing - Discernably, elaborate planning has gone into entiremodus operandi right from creation of " High Seas Sale Agreements " betweenM/s.Ruchi Soya and assessee in "Contract " between Ruchi Soya and AavantiIndustries, Singapore and in "Purchase Order" of assessee with Ruchi Soya, the entireexercise culminating in all " invoices " both being issued by Aavanti Industries Pte.Ltd., Singapore for supply of impugned goods at US$ 301 PMT only.

What was certified in accompanying certificates of origin was only in respect of goodssold and invoiced by Kalmart Systems (Malaysia) and M/s. MAMBA SDN BHD(Malaysia) and not by Aavanti Industries (Singapore) - If importer wants the customsauthorities to accept as genuine these certificates of origin as also the Bills of Lading,Packing List etc. certified therein, by implication, invoices of Kalmart Systems(Malaysia) and MAMBA SDN BHD (Malaysia) who stand certified on those documentswill only get credence and be accepted for purpose of determining transactions - Thisbeing the case, Invoice of Kalmart Systems (Malaysia) for unit value of US$ 397.50PMT and Invoice of Mamba Sdn Bhd (Malaysia) for unit value of USD 385.00 will haveto be necessarily taken as correct invoice and transaction value and consequently fordetermination of assessable value in respect of goods covered by B/E - These would bethe correct prices paid or payable for the purposes of Rule 4 (1) of CVR, 1988 - Noreason to interfere with impugned order: CESTAT


Indore Composite Pvt Ltd Vs CCE (Dated: May 16, 2017)

Cus - Assessee engaged in manufacture of Fibre Run Plastic Rods for optical fibrecables and other goods - For manufacture of these goods, they imported certain rawmaterial i.e. Complex and Acrylated Monomer under Notfn 12/2012-Cus - Duringcourse of verification undertaken by Departmental Officers, it was found that assesseehad cleared imported goods to their sister concern situated at Ambarnath(Maharashtra) as stock transfer - Revenue views that assessee have breachedconditions set out in Rules based on which goods were imported without payment ofduty - This charge is also not being contested by assessee - Accordingly, assessee areliable to pay applicable Customs Duty along with interest payable thereon - It is furtheron record that such Customs Duty along with interest has already been paid byassessee - Diversion of goods to their sister concern has not been done with intentionto evade Customs Duty concession - Consequently, there is no justification to imposepenalty on assessee - Consequently, penalties imposed under Section 112 as well as114A of Customs Act, 1962 are set aside - However, duty demand raised in impugnedorder is upheld: CESTAT


Welspun Gujarat Rohren Ltd Vs CC (Dated: May 30, 2017)

Cus – Appellants filed B/E for clearance of HDPE and claimed the benefit undernotification 21/2002-Cus, however, assessment was done at standard rate whereas asper the said notification concessional rate of basic duty @10% was available to theimported goods – goods captively consumed – appellant filed refund claim for excessduty but the same was denied on the ground that the appellant had not challenged theassessment order which became final – in appeal, the appellant claims that since theywere legally entitled for the exemption notification 21/2002-Cus, there is no disputeabout the eligibility and, therefore, there was no lis between the appellant anddepartment and in such an eventuality the refund can be processed withoutchallenging the assessment. Held: In the order of the sanctioning authority as well asin the order of Commissioner(A) there is no dispute raised about the eligibility of theexemption notification and which shows that there is no lis between the departmentand appellants as regards eligibility of concessional rate of duty under notification21/2002-Cus – Even when the appellants filed the refund claim, the AssistantCommissioner could have very well decided the eligibility of notification 21/2002-Cuinstead of returning the refund claim – in view of the legal position as decided in thejudgments cited, refund is not liable to be denied on the basis that the assessment ofBill of Entry was not challenged – since the refund claim was returned by the Asstt.Commr., the same was not processed – matter remanded to the original authority:CESTAT [para 4 to 7]


MU Enterprises Vs CC (Dated: March 2, 2017)

CUS - Assessee engaged in import of sports shoes and sought refund of duty paid in

protest reason being revenue alleged that imported footwear should be classified under6401.19 and liable to Customs duty however assessee mentioned the footwearclassified under Tariff Heading 6401.10 and not liable to duty as price was notexceeding Rs 125 -Held- Retail sale price shall be affixed in terms of the provisions ofLegal Metrology Act, 2009 or Rules made there-under however any declaration by theimporter or invoice details regarding the imported goods will not establish the fact ofretail sale price at the time of import - In the absence of evidence to the effect that theimported goods were actually having retail sale price of below Rs.125/- per pair retailsale price has to be evidenced by declaration of price affixed on the goods and not byany other document: CESTAT


Jitendra Chimanlal Thakkar Vs CC (Dated: May 26, 2017)

Cus - Applicant seeking early hearing as he doesn't want any posthumous pardon fromthe legal system - request granted: CESTAT [para 2]



Om Merchants Exports Pvt Ltd Vs CC (Dated: April 28, 2017)

Customs – Confiscation/RF - on the basis of intelligence, DRI, Lucknow Regional Unitintercepted a consignment of readymade garments at Kanpur, being transported fromKolkata to New Delhi by Train - On preliminary examination, it appeared that the saidconsignment contained readymade garments of foreign origin - a writtencommunication was received by DRI from appellant [M/s Om Merchants Pvt. Ltd., NewDelhi] regarding the ownership of the consignment, without support of any documentsshowing licit import or procurement of the said goods, who was then summoned toappear with all necessary documents in support of their claim - No one appearedbefore the authority; and closer examination revealed that the address of M/s OmMerchants Pvt. Ltd. mentioned on PW Bills were found different from the addressmentioned on the letterhead by the appellant for correspondence with the DRI -Revenue viewed that the said readymade garments of Bangladesh origin was illegallyimported into India from Bangladesh in violation of Notification No. 63/94-CUS (NT)dated 21st November, 1994, as amended, issued under Section 7(1) (c) of theCustoms Act, 1962 and, therefore, was liable to confiscation - the goods were heldliable to confiscation under Section 111 (b) of the Customs Act, 1962 with option toredeem on payment of fine and further penalty imposed upon the appellant underSection 112 (a) of the Customs Act, 1962 in adjudication - Commissioner (Appeals)upheld the order of confiscation and penalty; culminating in the instant appeal.

Held: The readymade garments in question, being not notified goods under Section123 of the Customs Act, 1962, were freely importable - It is well settled that initialburden to prove smuggling of non-notified goods lies on the Department - theappellants have given cogent explanation along with evidence of import of the goods,through licit route and the same have not been found to be untrue - Revenue hasrejected the evidences produced, on flimsy ground which is not tenable; basing itscase on presumptions and no evidence led as to the allegation of smuggling - ifpossessors of non-notified goods are asked to explain possession, distinction betweennotified and non-notified goods gets blurred - mere failure on the part of the appellantto produce some document to the satisfaction of the Customs Authority does not ipso-facto lead to inevitable conclusion that the goods are smuggled; and the Show CauseNotice is unsustainable - the impugned order is set aside; the appellants are entitled toconsequential benefits in accordance with law, including immediate release of theirconfiscated goods within a period of two weeks from the date of service of this order;and in case, the goods have been auction sold in the meantime, the appellant shall beentitled to the sale proceeds of the same, in accordance with law. [Para 6]


CC Vs PTC India Ltd (Dated: February 24, 2017)

Cus - Assessee engaged in manufacturing of excisable goods and have been regularlyimporting steam coal classifiable under heading 2701 which was subject to basiccustoms duty of 5% in terms of Notfn 21/2000-Cus and same has been superseded byNotfn 12/2012-Cus vide which steam coal has been exempted from basic customs dutyand exempted from CVD in excess of 1% - E cess and SHE cess was not paid asassessee had availed exemption of Notfn 28/2010 and 29/2010 - Original authorityconfirmed the demand while Commissioner (A) allowed the appeal of assessee -Identical issue has come up before Tribunal in case of Singareni Collieries Co. Ltd.2016-TIOL-2858-CESTAT-HYD where the issue was decided against assessee -Impugned order set aside - No justification found for levy of penalty, same is setaside: CESTAT


Yogesh Mangaldas Bajaj Vs CC (Dated: October 14, 2016)

Cus –Both appellants had been imposed with penalty of Rs.1 lakh each under section112 (a) and (b) of Customs Act, 1962 [Act] for their alleged role in clearing the cargoof textiles imported by M/s.Nova Scotia Overseas – consequent upon issue of noticedated 14.12.2011, two of the noticees, including the importer, placed themselves inthe jurisdiction of the Customs & Central Excise Settlement Commission leading tocontinuation of proceedings only against the two appellants – against imposition ofpenalty, appeal to CESTAT.

HELD - Impugned order is conspicuously silent on the confiscability of the goods or themanner in which the appellants contributed to the offences leading to confiscation ofthe goods - section 112 of the Act is liable to be invoked only for acts of omission andcommission in relation to goods that are liable to confiscation - it is not an independentprovision in accordance with which penalty may be imposed on individuals - in theabsence of a finding on liability of goods for confiscation, section 112 cannot beinvoked -when the jurisdiction to confiscate was alienated, and not resorted to by theadjudicating authority, the noticees were not heard on the confiscability of the goods -in the absence of such an opportunity, there was no scope for rendering a finding onliability for confiscation -the adjudicating authority rightly desisted from invoking thejurisdiction to confiscate -however, that also eliminated the jurisdiction to invokesection 112 of the Act - consequently, the imposition of penalties on the appellants iswithout sanction of law–moreover, with the main noticee having been accorded thebenefit of a settlement scheme, no further action lies against co-noticees – Impugnedorder set aside and Appeals allowed: CESTAT [para 8, 9, 10, 11, 12]


Sopariwala Exports Vs CC (Dated: March 31, 2017)

Cus - Whether assessees are eligible to refund of cess paid against assessed shippingbills during period April 2005 to February 2006 for export of tobacco and tobaccoproducts - Assessee had paid the cess on export of the tobacco products againstassessed shipping bills which they did not challenge before the appropriate authorityby resorting to appellate procedure - Refund was rejected by Revenue on the groundthat assessee had filed refund claim in April 2007 against assessed shipping bills forgoods exported between April 2005 to February 2006, without challenging assessmentof relevant shipping bills and also the refund is time barred - Issued raised becomeacademic and accordingly not analyzed - Impugned order is upheld and appeal beingdevoid of merit is consequently rejected: CESTAT


Samsung India Electronics Pvt Ltd Vs CC, CE & ST (Dated: February 1, 2017)

Cus - Assessee engaged in the import of Liquid Crystal Devices (LCD) & classified themunder Heading 9013 8010 - However, revenue classified them under CTH 8529 9090

on the ground that these were parts suitable for use solely or principally with LCD TVof CTH 8528 & imposed duty demand - Held - Issue at hand already settled inassessee's own case earlier, by the same Tribunal - Therefore, following the ratio ofSamsung India Electronics Pvt Ltd LCD i were rightly classifiable under CTH 9013 8010by assessee - Impugned Order imposing duty demand set-aside: CESTAT (Para 2,4,5)


CC Vs Shiv Shanti Exim Pvt Ltd (Dated: November 11, 2016)

Cus - Assessee imported undyed and unprinted silk fabrics and claimed exemptionbenefit under Notfn 30/2004 for determining additional customs duty (CVD) - Maincontention of revenue is that where importer does not fulfill the conditions stipulated inexcise notfn, he cannot claim the benefit of same for CVD purpose - Issue is no more'res-integra' in view of various decisions - Assessee were entitled to exemption frompayment of CVD in terms of Notfn 6/2002 - No reason found to interfere with Order ofCommissioner (A) - Accordingly, appeals filed by Revenue are dismissed: CESTAT


Sofiyan Ashraf Rajwani Vs CCE & C (Dated: December 8, 2016)

Cus-Appellant has been considered as the mastermind in floating a 100% EOU, and byutilizing the status of 100% they imported goods which were not used formanufacturing and export of the goods, but were diverted, and cleared finished goodswhich were not manufactured out of the imported raw materials - penalty imposed onthe appellant under rule 26 of the Central Excise Rules, 2002 read with section 112 ofthe Customs Act, 1962 - appeal to CESTAT. HELD: In paragraph 4 of the impugnedorder, the adjudicating authority has recorded a clear finding that one of theemployees of the 100% EOU, in the presence of independent panch witness,categorically stated that he had prepared the invoices and AR-3As on the directions ofthe appellant and only invoices and AR-3As were to be sent/handed to such personsent by appellant, and there was no material movement conducted - on the facts ofsuch a categorical statement of the employee, which is not controverted by theappellant, the arguments put forth in the grounds of appeal by the appellant are of noconsequence - the impugned order that imposes penalty on the appellant is correctand legal and does not suffer from any infirmity - Appeal rejected: CESTAT [para6, 7,8]


Pr CC Vs Sachin Chemical Agency (Dated: June 9, 2017)

Cus - Assessees imported goods, which they declared as Calcite Powder or Chalk-Natural Calcium Carbonate - Samples were drawn for testing to determine the truenature & composition of the goods and verify their declaration - Based on test results,revenue classified the goods differently as classified by assessees - Upon appeal,revenue were directed to re-test the samples - Assessees' application for re-testingwas initially rejected but the Commr.(A) considered the report submitted by CSIR,which had done the testing, and directed re-testing in another laboratory having betterfacilities - The same is challenged by revenue - Held - The impugned O-i-A is a well-reasoned one, whose implementation would not prejudice the revenue in any manner -Hence the O-i-A warrants no interference: CESTAT (Para 2,5)


Pr.CC Vs Sachin Chemical Agency (Dated: June 9, 2017)

Cus - Assessees imported goods, which they declared as Calcite Powder or Chalk-Natural Calcium Carbonate - Samples were drawn for testing to determine the true

nature & composition of the goods and verify their declaration - Based on test results,revenue classified the goods differently as classified by assessees - Upon appeal,revenue were directed to re-test the samples - Assessees' application for re-testingwas initially rejected but the Commr.(A) considered the report submitted by CSIR,which had done the testing, and directed re-testing in another laboratory having betterfacilities - The same is challenged by revenue - Held - The impugned O-i-A is a well-reasoned one, whose implementation would not prejudice the revenue in any manner -Hence the O-i-A warrants no interference: CESTAT (Para 2,5)


CCE Vs DCS International Trading Company Pvt Ltd (Dated: May 2, 2017)

Cus - Whether the Tribunal has the power to entertain the appeal against the orderpassed by the Commissioner (Appeals) relating to the demand of draw back claimed bythe exporter – Revenue in appeal. HELD: Perusal of section 129 (A) of the CustomsAct, 1962 reveals that order passed by the Commissioner (Appeals) u/s 128 withregard to payment of drawback will not lie before the Tribunal as Tribunal is notempowered to decide such issues decided in the order of Commissioner (Appeals) -with regard to the issue whether matter involving both drawback as well asclassification decided by the Commissioner (Appeals) can be appealed against beforethe Tribunal, this Tribunal in the case of Jindal Stainless Ltd. - 2012-TIOL-1785-CESTAT-DEL has held otherwise – Revenue appeal dismissed: CESTAT [para 6, 7, 8]


Prime Metalloys Pvt Ltd Vs CCE (Dated: February 20, 2017)

Cus - Although appeal was required to be filed before Commissioner of Customs (A),New Customs House, but assessee has filed the appeal before Commissioner ofCustoms (A) ICD TKD and same has been received in office of Commissioner (C) ICDTKD within time - Appeal cannot be dismissed by Commissioner (A) New CustomsHouse New Delhi, merely on the ground that appeal has not been filed in time in lightof decision of the High Court of Punjab and Haryana in case of Sonia Overseas Pvt. Ltd.2014-TIOL-1750-HC-P&H-CUS , wherein it is observed that there should be exclusionof time of filing appeal before Commissioner Customs (A) New Customs House NewDelhi in terms of section 14 of Limitation Act, 1963 - Appeal filed by assessee beforeCommissioner (A) is within time: CESTAT


ABB Ltd Vs CCE (Dated: May 16, 2017)

Cus – Appellant imported goods for supply to Delhi Metro Rail Corporation [DMRCL]and paid SAD at the rate of 4% in terms of notification no.19/2006-Cus dated1.3.2006 - however, at the time supply of these goods to DMRCL, even though taxinvoice was issued, no VAT was charged on these supplies in terms of notificationdated 6.10.2010 issued by Rajasthan Government exempting the goods from paymentof VAT -issue is whether in such circumstances, the appellant will be eligible for refundof SAD under notification no.102/2007-Cus. HELD:In view of the decision of theTribunal in the case of Gazal Overseas - 2015-TIOL-2454-CESTAT-DEL , the presentissue is no more res integra -by following the above decision, the Bench is of the viewthat NIL rate of VAT in terms of the notification issued under Rajasthan VAT Act, 2003is to be considered as appropriate sales tax/VAT -accordingly, the condition prescribedin notification no.102/2007-Cus is satisfied and the appellant will be eligible for therefund of the SAD paid at the time of import – impugned order set aside, appealallowed : CESTAT [para 10]


Rizvi Shipping Agency Vs CC (Dated: April 18, 2017)

Cus - Revocation of Customs Broker License - appeal to CESTAT. Held: Timelinesmandated in CBLR, 2013 are to be complied with - Inordinate delay in completing the

inquiry proceedings has vitiated the detriment visited upon the appellant - Accordingly,the revocation of the license and forfeiture of the security deposit is held to be violativeof the Regulations - following the decision in Maa Krupa Forwarders Pvt Ltd - 2016-TIOL-2899-CESTAT-MUM , impugned order set aside and appeal allowed: CESTAT[para 7, 8]


Swala Agency Vs CC (Dated: May 2, 2017)

CUS - Assessee engaged in import of bamboo mats and PVC mats - Revenue allegedthat assessee misdeclared the import quantity for the present consignment and alsodid the similar activity in the past as well to evade the customs duty for which revenueconfiscated the goods - Demand for the present Customs duty and also for thedifferential duty for earlier consignments was raised and imposed penalty -Held- Afterthe careful consideration of the documents placed on record it was proved beyond thereasonable doubt that assessee intentionally undervalued the goods which wasrevealed by the investigation of revenue - Therefore, assessee was directed to pre-deposit of the entire differential duty held on the present Bill of Entry and also for theprevious imported consignments and if assessee do as directed then stay will begranted on the remaining demand: CESTAT


Seema Intermet Pvt Ltd Vs CC (Dated: March 10, 2017)

Cus - Appellant imported a consignment of "zinc dross shelf" - Arriving at a conclusionthat since the slab is weighing more than 500 kgs., it does not conform to ISRIcondition in respect of weight, the goods were seized and then were releasedprovisionally - lower authorities contended that the goods are classifiable under CTH7902 0090 and are restricted from import - AA upheld the charges leveled and orderedconfiscation of the goods with an option to redeem the same on payment ofRedemption Fine and imposed penalty - appeal to CESTAT. Held: It is not the case ofthe Revenue that the zinc content in the goods imported by the appellant is less than85% - To that extent, the adjudicating authority concedes the factual position - Theonly point picked up by the adjudicating authority to hold that the goods are liable forconfiscation, is that the weight of the slab imported by the appellant is 500 kgs - It canbe seen from the ISRI definition of zinc dross shelf that the zinc scrap can be poured inmoulds or in small moulds weighing 75 kgs each - This definition would clearly indicatethat an importer can import zinc dross shelf poured in moulds, as the said definitionitself indicates that it should be poured in moulds - the goods imported are nothing butingots poured in moulds and on this factual matrix, appellant has made out a case -accordingly, classification of the goods imported would be under 7902 0010 and thereis no violation nor there is misdeclaration in order to hold that the goods are liable forconfiscation - impugned order set aside and appeal allowed: CESTAT [para 7, 9, 10]


Tulip IT Services Ltd Vs CC (Dated: March 14, 2017)

Cus - Both, appellant and Revenue are in appeal - Issue involved is regarding thebenefit of exemption Notification No. 21/2002-Cus (serial No.239) applicable for BaseTrans-receiver Stations. The appellant imported "Witlink 2000 system including IDU2002 S/N PIN 22161 ODU4-1-1-13/ODU 4-1-3-13" with frequency of 13 GHz and onexamination, it was found that the said goods are not eligible for the benefit ofexemption Notification No. 21/2002-Cus (serial No. 239) - AA upheld demand ofdifferential duty with interest, confiscated the goods and allowed redemption onpayment of fine and imposed penalty on importer/individual - appellants are aggrievedwith the order and so is Revenue inasmuch as it is the contention of the Revenue thatthe AA has erred in not confiscating the goods which were imported ‘earlier' and hadnot imposed RF and penalty on such consignments. Held: Goods were subjected toexamination by the Department of Telecommunications, Government of India and vide

letter No. TBVV/F/VAS-GEN/01.TEC/05 dated 31.05.2005 it is specifically stated thatthe goods imported do not seem to be Cellular Repeater or Router and the benefit ofNotification 21/2002-Cus (serial No. 239) is only for Cellular Repeater or Router -appellant has not controverted the above findings and are, therefore, not entitled forbenefit of notification 21/2002-Cus - appeals by importer & individual are, therefore,rejected - As for Revenue appeals, the AA was correct in coming to the conclusion thatsince the goods which were cleared earlier were cleared on final assessment and arenot available, confiscation cannot be ordered - All appeals rejected: CESTAT [para 6,7]


Amit S Momaya Vs CC (Dated: October 20, 2016)

Cus - Principal Commissioner of Customs (General), Mumbai debarred the appellant [aDirector of the Customs Broker firm] from undertaking any customs work in the NewCustoms House, Mumbai - appellant submitting that the action against the appellant isnot in accordance with the law as no SCN was issued to him before debarring and inthe inquiry proceedings before the inquiry officer, he was not charge sheeted.HELD:Bench finds strong force in the contentions raised by the appellant- impugnedorder is unsustainable and same is set aside with direction to the PrincipalCommissioner of Customs that the licence of the appellant be restored and he bepermitted to conduct the activity as a Customs Broker in the New Customs House,Mumbai - appeal disposed of : CESTAT [para 6.1, 6.2, 7]


Sa Dalal And Company Vs CC (Dated: January 11, 2017)

Cus - Commissioner of Customs (General), Mumbairevoked the CHA licence of theappellant - appeal to CESTAT. Held: Impugned order is non est order inasmuch asorder for revocation of licence cannot be in thin air - a CHA licence which is alreadyrevoked, cannot be again revoked subject to it being reinstated by higher authorities -the order of the adjudicating authority is not correct, passed without any application ofmind and needs to be set aside - further, the inordinate delay to complete theproceedings against the CHA is detrimental and the impugned order is liable to be setaside on this ground only - appeal is allowed holding that the O-i-O is non est as it isrevoking an already revoked CHA licence : CESTAT [para 4, 5]


Timezone Entertainment Pvt Ltd Vs CC (Dated: January 19, 2017)

Cus – Appellant imported six coin operated amusement machines from Japan anddeclared the value as indicated in the commercial invoice as U 36 lakhs – it wasdeclared that the supplier had given discount of U 16.50 lakhs for bulk purchase – thesaid declared value was rejected by the adjudicating authority and assessment wasdone on the basis of the full value of U 36 lakhs and duty liability was arrived at –firstappellate authority rejected appeal, so appellant before CESTAT.

HELD - Transaction value as declared is subject to scrutiny of the assessing officer andcan be rejected, but the officer has to follow the provisions of Customs Valuation Rulesto arrive at the correct assessable value – the findings of the lower authority that thegoods are imported from a trader from Japan and not from the manufacturer; that theimporter has not produced any price list to substantiate their claim that the goods didnot involve any abnormal discount or special discount, have no supportive evidence -on the contrary, the appellant had submitted a certificate from the supplier that it is ageneral discount which is being offered by the supplier to all the purchasers of suchcoin operated amusement machines – the finding of the lower authorities that this coinoperated amusement machine is not a bulk purchase and hence it is not a generaldiscount offered to any other importer are not acceptable inasmuch it may be common

business practice that on purchase of six machines a customer may be entitled forspecial discount - the lower authorities have not given any contemporary price andalso did not put any evidence to show that these discounts were special discount - theratio of the decision of the Apex Court in the case of Eicher Tractors Ltd.- 2002-TIOL-06-SC-CUS squarely covers the issue - the impugned orders are unsustainable and setaside - appeal allowed : CESTAT [para 7, 8]


Vaibhav Global Ltd Vs CC (Dated: March 9, 2017)

Cus - Assessee, a 100% EOU engaged in manufacture and export of stone studdedgold jewelry and is goverened by provisions of Notfn 52/2003-Cus as also varioussubsequent notfns r/w circulars vide which he was allowed the duty free imports of rawmaterials along with other goods - It is alleged that assessee have not fulfilled theirexport obligation - Duty stands confirmed against assessee on findings that there isexcess wastage of 938gm generated by assessee, which is in excess of standardwastage of 9% - Inasmuch as there is no findings that said excess wastage has beenutilized by assessee in manufacture of Jewellary, which might not have been exportedby them, and in absence of any such finding, confirmation of demand is neitherwarranted not justifiable - Duty stands confirmed in respect of re-import of jewelry asthe documents proving the re-export of the same, after carrying out repairs could notbe produced by the assessee - Penalties set aside: CESTAT


Subros Ltd Vs CC (Dated: April 27, 2017)

Customs - Classification issue - Order of Commissioner (Appeals) remanding thematter to the original authority challenged on the ground that no Show Cause Noticeunder Sec 28 could be issued without finalizing the provisional assessments.

Held: By following Hon'ble Gujarat High Court's decision in the case of GMVFCL andthe observations made thereunder, it is held that the issuance of show cause noticefor the present facts is legally valid recourse for 'finalisation of assessment' though itthat may be that said wordings may not have been used in the show cause notice. Thesubmission of the appellant in the light of the observations made in the Gujarat HighCourt decision do not have sufficient force. The case laws cited by the appellant arealso not applicable for the present facts. The impugned order-in-appeal mentions thatoriginal authority will have 'a fresh look on the case after due finalisation of theprovisionally assessed Bill of Entry'. But said impugned order does not make clear thatwho will finalise provisionally assessed Bill of Entry. Therefore, it is ordered that theoriginal adjudicating authority will finalise provisionally assessed Bill of Entry duringthe fresh adjudication proceedings, which are being ordered by this order, for whichthe appellant shall be given opportunity of personal hearing and submission ofnecessary documents/evidence as admissible by law.(para 7.5 & 8)


Asif Iqbal Khatri Vs CC (Dated: May 19, 2017)

Cus - Memory cards seized from baggage of appellant absolutely confiscated -allegation is that these goods of commercial nature were attempted to be removedfrom the customs area in the guise of personal baggage - appellant claimed thatconfession was obtained under duress; goods are not prohibited hence cannot beconfiscated and while seeking return of goods also challenges the imposition ofpenalty. Held: That the ‘memory cards' are not entitled for the privilege of clearance asbaggage is not in dispute - it is not in doubt that goods were offending and, therefore,liable to confiscation - admittedly, the goods do not belong to the appellant and he isnot put to any detriment, financially or otherwise, by absolute confiscation - plea thathe be granted the option to redeem the goods is untenable - penalty u/s 112 isimposable as goods have been rendered liable for confiscation - no reasons to interfere

with the impugned order - appeal dismissed: CESTAT [para 4 to 7]


Bharat Petroleum Corpn Ltd Vs CC (Dated: April 24, 2017)

Cus – Appellant submitting that there is no requirement of payment of appeal-fee incase of refund appeals. Held: Submission of appellant is correct in view of LargerBench decision in Glyph International Ltd - 2013-TIOL-1103-CESTAT-DEL-LB –following the same, Registry is directed to scrutinize and register the appeals and iffound in order, to list the same in due course: CESTAT [para 1, 2]


Mondelez India Foods Pvt Ltd Vs CC (Dated: December 14, 2016)

Cus – Appellants entered into an agreement with Cadbury Schweppes Overseas Ltd.,UK for technical assistance and royalty agreement - Dy. Commissioner of Customs,GATT Valuation Cell, passed order holding that (i) the appellants are related to thecollaborator but relationship has not influenced the price and other payments relatedto goods imported (ii) the technical knowhow supplied by the collaborator has nothingto do with the goods imported and the royalty payments – revenue challenged thisorder before the Commissioner (Appeals) - it was argued that the payment on accountof technical knowhow and royalty is related to imported goods as condition of sale ofsuch goods and, therefore, this must be included in the value in terms of rule 9(1)(c)of Customs Valuation Rules, 1988[CVR] – revenue praying for remanding the caseback to the lower authority for de novo consideration and passing a speaking order -Commissioner (Appeals) observed that declared value has not been examined underrule 4(3) of the CVR for acceptance or otherwise in reference to the test value, that theDy. Commissioner should have examined the provisions of the relevant agreement,and allowed the appeal of revenue – appeal to CESTAT by importer.

HELD – O-i-O clearly held that there is no import of capital goods and machinery fromthe foreign collaborator and there are imports of "Neopolitan" chocolates [finishedgoods], cocoa powder and cocoa butter flavour from Cadbury Group Company –"Neopolitan" chocolates is finished goods and is totally unrelated to the collaborationagreement and, therefore, it cannot be a subject matter to the current dispute – O-i-Oclearly held that the appellant and the foreign collaborator are related – however,these imports are not from the foreign collaboratorand thus unless it is held that thesupplier of these goods is related to the appellant, no charge under rule 4(3) of theCVR can be made - this argument regarding purchases not being made from foreigncollaborator equally applies to the import of cocoa powder and cocoa butter flavours -furthermore, revenue has not shown that there is any restrictive clause or condition forimport of cocoa butter and cocoa butter flavor from the foreign collaborator in theagreement - in these circumstances, rule 9(1)(c) of the CVR cannot be invoked –impugned order is set aside and appeal is allowed : CESTAT [para 6, 6.1, 7]


Sanghi Polyester Ltd Vs CC (Dated: November 7, 2016)

Cus– Appellants had obtained an Advance Licence– since they failed to submit proof ofexport obligation within the time period, the bank guarantee [BG] was encashed –afterissuance of EODC by the Jt.DGFT in respect of the Advance Licence underconsideration, appellant made a request for refund of encashed BG, which was rejected- on directions of Commissioner of Customs (Appeals), department sanctioned theencashed BG amount – appellantsasked for interest u/s 27(1) of the CA, 1962 – asboth the lower authorities rejected claim, appeal to CESTAT.

HELD – Appeal merits acceptance for more than one reason – firstly,the encashment ofthe BG by the department on 17.12.1999 despite there being an interim order of theHigh Court not to encash the BG is an illegal step of the department which amounts to

holding back of an amount for which department had no legal sanction and can betermed as an amount retained by the department without authority of law - secondly,the office of the Jt.DGFT had subsequently accepted the contention of appellant andheld that appellant had to only discharge the differential customs duty along withinterest and composition fees, which enables them to get the EODC, which would meanthat the consignment imported duty free are consumed by the appellant for export ofthe goods as agreed upon by them when they procured advance licence - thirdly,averment of the appellant that they have completed the export obligation is notcontested by revenue–appellant, therefore, was well within his legal rights to claim therefund of the BG amount encashed- application filed on 13.10.2001 was correct butwhich remained unprocessed by the revenue till 11.5.2005 and the refund wassanctioned on 13.5.2005 - appellant is entitled to interest in accordance with law afterthree months from 13.10.2001 till 13.05.2005 - impugned order is held asunsustainable and set aside – appeal allowed : CESTAT [para6, 6.1, 6.2, 6.3, 7, 8]


Viraj Impex Pvt Ltd Vs CC (Dated: April 18, 2017)

Cus Appellant claiming interest on the refundable redemption fine lower authoritiestaking a view that there is no provision in section 27A of the Customs Act, 1962 togrant interest, therefore, denied the claim appeal to CESTAT.

Held: Stand taken by the lower authorities is correct apparently, claim of interest ismade under misconception of law Appeal dismissed: CESTAT [para 3]


Hotel Bissau Palace Vs CC (Dated: May 8, 2017)

Cus - Appellant imported "Toyota Land Cruiser Parado Car" under EPCG scheme &Notification No. 49/2000-Cus - appellant claimed that they have fulfilled the exportobligation by earning foreign convertible currency against overall business of the hotel- DGFT issued a EODC certificate and customs cancelled the bond/bank guarantee -later, department issued a SCN alleging that the appellants have not fulfilled theexport obligation inasmuch as the car imported under EPCG was not used for earningforeign exchange, car was registered under private category with RTO, no log bookwas maintained and the earning of hotel from room rent, food charges was shown asexport obligation; not even a single transaction where they had rendered the servicesby the use of imported car for earning convertible foreign exchange was shown -concluding that export obligation condition was not fulfilled, the AA confirmed thedemand of Customs duty, confiscated the car/imposed redemption fine and penalties -appeals to CESTAT.

Held: AA has confirmed the demand jointly and severally against Hotel Bissau Palace ,Sanjay Singh and Dilip Singh Rathore - Tribunal has consistently held in variousjudgements that any demand of duty cannot be confirmed against various persons onjointly and severally basis - impugned order is not sustainable, hence matter isremanded to original adjudicating authority to decide against whom the demand canbe made - all issues are kept open - appeal allowed by way of remand: CESTAT [para4]


Hansraj Pragji & Sons Vs CC (Dated: May 17, 2017)

Cus - Appellant CHA connived with the importer to give shelter to the imported goodstemporarily in his custody and channelized the same to domestic market without usethereof by the importer in manufacture of final products for which licence was issued -CHA was the financier of the goods and was aware that the goods were the subjectmatter for advance licence scheme - Investigation has proved its case very

successfully when the origin and termination of the goods were traced - there is noscope to intervene with the order of adjudication - penalty imposed of Rs.10 lakhs isconfirmed and appeal is dismissed: CESTAT [para 2.1]

Cus - Penalty on Partner - As a partner, he cannot rule out his association from theoffence alleged against the partnership firm - grant of any concession to the appellantshall be a bonus to evasion - penalty of Rs.10 lakhs imposed is confirmed and appeal isdismissed: CESTAT [para 3]

Cus - Penalty on buyer - Appellant was found to be in possession of the offendinggoods - appellant has not denied his role in buying the offending goods when Customsdischarged its burden of proof bringing out that the imported goods were sold to theappellant and he was a buyer thereof - appellant could not detach himself from thedealing of offending goods to prove his innocence - penalty imposed of Rs.10 lakhs isproper - appeal dismissed: CESTAT [para 4]


Freightwings And Travels Ltd Vs CC (Dated: November 10, 2016)

Cus - Appellants are a Customs House Agent and handled the Customs formalities inrelation to exports - impugned orders imposing penalties were the culmination ofproceedings initiated in connection with allegedly fraudulent exports of 'ready madegarments' effected by M/s Quality Apparels Exporters Pvt. Ltd. and M/s QualityExporters - appeal to CESTAT. Held: SCN has not alleged that the appellants wereaware of the contents or of the value - doubtlessly, goods can be subject toconfiscation if value is found to have been mis-declared - Penalty is imposed only if itis established that, in relation to offending goods, some act is committed or is omittedto be done that leads to confiscation - Such act or omission has not been brought onrecord - Mere filing of bills or presentation of goods that were found to be liable toconfiscation does not constitute an act or omission referred to in section 114 becausethese are procedural requirements - none of the statements establish that theappellants were aware or participated in the procurement, packing or transportation ofthe goods - no justification for imposition of penalties on appellants, hence set aside -appeals allowed: CESTAT [para 7, 8, 9]


Economic Packaging Vs CC (Dated: April 6, 2017)

Cus - Assessee had imported certain goods wherein Revenue sought to deny thebenefit of Notfn 76/05 - Demand confirmed by Original Authority, however, firstAppellate Authority had examined the issue of limitation as demand was served to CHAand remanded the matter to Original Authority - Original Adjudicating Authority in itsorder classified the products under heading 57.06 - It seems that heading 57 06 hasbeen mentioned by a clerical error, product described as "Narrow Woven Fabrics" arecovered under CH 58 06 - It seems that CH Heading 57 06 does not exist - Thus, itseems to be a clerical error - Assessee have challenged the power of OriginalAdjudicating Authority as well as Commissioner (A) to change the classification afterassessment has been finalised in Bills of Entry - Issue has not been fully examined byOriginal Authority: CESTAT


Hindustan Coca Cola Beverages Pvt Ltd Vs CC (Dated: February 16, 2017)

Cus - Appellants imported Empty bottle Inspector Morella number Lynott Tronic 735M2 (a machine) and claimed classification under CTH 8422 and benefit of notfn.21/2002-Cus - Revenue viewed that impugned goods are correctly classifiable underCTH 9031 and this stand was upheld by the Adjudicating authority along with

confiscation/option to pay redemption fine and penalties - appeal to CESTAT. Held:Manufacturer and exporter have given a certificate stating that they are manufacturersof bottling line for bottled drinks industry and pioneers in PET bottle inspection unit -use of the machine in the factory of the appellant is not in dispute - manufacturingactivity is that PET bottles are formed, inspected and filled with aerated water, thensealed, packed and cleared and use of the machine is just after the forming of the PETbottle - Explanatory Notes to the HSN, Chapter 84 clearly supports the case of theappellant - moreover, Explanatory note of HSN to Chapter 90 does not support thecase of the Revenue as the said explanatory note talks about standalone test bench orequipment which is not used in conjunction with any machinery - since the machineimported by the appellant is being used on conjunction with form, fill and sealmachine, the same merits classification under CTH 8422 30 00 and is eligible forbenefit of notification 21/2002-Cus - impugned order is unsustainable and set aside -appeal allowed: CESTAT [para 10, 11, 12, 14]


Redington (India) Ltd Vs CC (Dated: April 11, 2017)

Cus – Issue involved is regarding the benefit or otherwise of exemption notification No.6/2006-CE (as amended) in respect of "Hard disc drives" imported by appellant. Held:Bench in final order No. A/86633-86638/17/CB dated 04.04.2017 - 2017-TIOL-1303-CESTAT-MUM came to a conclusion that the Hard Disc Drives are classifiable underHeading 8471 7020 and importers are eligible for a concessional rate of duty ofcustoms claimed by them for the said product under Exemption Notification Nos.6/2011-CE dated 01.03.2011 (Sr. No. 17) as amended from time to time – followingthe same, impugned order is not sustainable, hence set aside – appeal allowed withconsequential relief: CESTAT [para 6.1, 6.2]


Primescan Logistics Pvt Ltd Vs CC (Dated: March 31, 2017)

Cus - Assessee, a CHA had filed few Bills of Entry for clearances of 'Web Camera' onbehalf of an importer M/s. Aqtronics Technologies Pvt. Ltd. classifying the goods underCTH 8471 6090 wherein Basic Customs Duty was shown as 'Nil' as per Notfn 24/2005 -Commissioner has not revoked the CHA license of the appellant. He has only forfeiteda part of the security furnished by the CHA - appellant who acted as a CHA knew thatthe Department had in the past changed the classification from CTH 8471 to CTH 8525and in spite of that they went ahead and changed the classification for subsequentclearances is wrong on their part - IA in his report has found the charge ofcontravention of Regulation 13(d) established whereas contravention of Regulation13(e) is not found to be established - No infirmity found in impugned order which isupheld by dismissing the appeal of assessee: CESTAT


CC Vs Bharat Bharad Ghanshyam (Dated: December 29, 2016)

Cus – Respondents were issued SCN for violation and misuse of DEEC scheme –impugned order confirmed duty demand and imposed equivalent penalty, however, thegoods were not confiscated as the same were not available – revenue in appealseeking confiscation and imposition of redemption fine. HELD:In terms of notfn.no.30/97, the imported goods are released to the respondent on the condition that thesame will be used for the specified purpose and a bond is executed by the appellant -in these circumstances, it cannot be said that the goods are unconditionally released tothe respondent – in view of the above and decision of the Apex Court in the case ofWeston Components Ltd. - 2002-TIOL-176-SC-CUS , it cannot be said that the goodscould not be confiscated -accordingly, the impugned order is set aside and the matteris remanded to the adjudicating authority for determination of redemption fine in lieuof confiscation of the goods : CESTAT [para 4, 5]


A P Traders Vs CC (Dated: May 30, 2017)

Cus - "Nil" rate is also a rate of tax, which is payable on sale, but for the exemption -"Nil" rate should not dis-qualify the phrase "appropriate sales tax or VAT" in theNotification 102/2007-Cus - SAD refund admissible - Appeal allowed: CESTAT [para 4,5]



Samsung India Electronics Pvt Ltd Vs CC, CE & ST (Dated: April 11, 2017)

Cus - Assessee got themselves registered under Customs Rules, 1966 w.e.f.17/07/2009 and executed bond which was accepted by jurisdictional AssistantCommissioner on 03/02/2011 for import of LCD Panel for use in their factory formanufacture of L.C.D. TVs, at concessional rate of duty under Notfn 21/2002-Cus . asamended - While submitting the details of consumption of goods imported procuredagainst Annexure-III for period April, 2011 to February, 2012, assessee through theirletter submitted that LCD Panels were exported by them - It appeared to Revenue thatassessee failed to comply with conditions laid down under Customs Rules, 1966 andalso violated the provisions of Notfn 21/2002-Cus and thereby evaded payment ofBasic Customs Duty - For the period subsequent to period of SCN, said Rules wereamended wherein it was provided that imported goods which could not be utilized canbe re-exported - Though said provision was not applicable to period for which SCN wasissued, principle involved in said provision should be applicable for all material periods- If goods on importation are re-exported as such then they should be treated as ifthey were never imported - Rule 8 of said Rules will not be applicable: CESTAT


Damani Shipping Pvt Ltd Vs CC (Dated: January 25, 2017)

Cus – Appellant is penalized as a CHA for not advising the importer correctly as to theerror in mentioning Customs Tariff no. in the bill of entry filed by importerThyssenkrupp Industries - appeal to CESTAT. Held : Impugned order has re-classifiedthe goods and demanded differential duty with interest and also imposed penaltybesides confiscating goods and imposition of redemption fine in lieu of confiscation –importer had filed an appeal and which was disposed of by the Bench by final orderdated 19/11/2014 = 2015-TIOL-265-CESTAT-MUM wherein confiscation was set asidealong with penalty imposed on importer – it is, therefore, evident that there was nomalafide intention on the part of the importer and if it is held so, then it cannot be saidthat the CHA acted in a malafide manner – impugned order to the extent it ischallenged by CHA as regards imposition of penalty is set aside and appeal is allowed:CESTAT [para 5, 6, 7]


John Deere Equipment Pvt Ltd Vs CC (Dated: December 22, 2016)

Cus – Alleging that the goods had been imported in violation of Chapter 87 of the ITCHSN appended to the FTP, Commissioner of Customs (Import), Nhava Shevaconfiscated a ‘second-hand tractor' imported by the appellant but allowed redemptionof the same on payment of redemption fine and also imposed penalty – appeal to theCESTAT contending that the tractor had been manufactured by their own facility inGermany and had not been sold or registered before its import into India and isimported for development of new models/parts. Held: It is apparent from the licensingnotes in Chapter 87 that the restrictions therein are intended for vehicles that areimported for use as such on the roads in India; that appellant is a unit that is engagedin the manufacture of tractors and is not a user of the said tractor except in relation toits manufacturing activity and, therefore, the import would not be in violation of the

licensing notes - impugned order has not taken note of the documents pertaining tothe tractor which clearly indicate that these are not used, or owned, prior to its importand has been sourced from the factory of manufacture – confiscation of tractor iswithout authority of law and, therefore, set aside – consequently, penalty is also setaside – Appeal allowed: CESTAT [para 4 to 6]


CC Vs G E Medical Systems (India) Pvt Ltd (Dated: February 23, 2017)

Cus – Notfn 153/94-Cus, 56/95-Cus, 36/96-Cus, 11/97-Cus, 23/98-Cus, 20/99-Cus ,16/2000-Cus - Revenue is in appeal against the said Order-in-Original on the groundthat the authority having held that the goods are liable for confiscation under Section111(o) of the Customs Act, 1962, has not confiscated the goods and has not imposedany penalty on the respondent – appeal before CESTAT. Held: It is not in dispute, thatduring the impugned period 1996-2000, appellant had imported various parts for themanufacture of mobile image intensifiers and claimed benefit in terms of variousnotifications which mandated production of a certificate from the jurisdiction of CentralExcise Authorities that the parts have been used for the manufacture of the specialmedical equipment - It is on record that the parts which have been imported were notused so and diverted for home consumption – SCN was issued for demand of duty byinvoking conditions of bond executed at the time of clearance of the said parts fromthe port – From the condition in the notification, it is apparent that in non-complianceof full or part, differential duty needs to be discharged by the importer and which is theonly requirement and there is no condition or requirement that the adjudicatingauthority should confiscate the goods u/s 111(o) of the Customs Act, 1962 nor is thereany clause for imposition of penalty on the importer – it is not disputed that therespondent has discharged the entire Customs duty on being pointed out by thedepartmental officer and if this be so, the adjudicating authority was correct indropping the proceeding initiated by the SCN for confiscation of goods and impositionof penalty – impugned order is correct and legal and does not require any interferenceto the extent challenged by the Revenue – Appeal is rejected: CESTAT [para 7, 8, 9,11, 12]


MRF Ltd Vs CC (Dated: March 16, 2017)

Cus - Appeal filed against impugned order vide which Commissioner (A) rejected theappeal of assessee on the ground that they cannot claim refund directly withoutchallenging the assessment order, in view of Apex Court decision in case of M/s PriyaBlue Industries Ltd 2004-TIOL-78-SC-CUS - After considering the submission made byboth sides and judgements cited by both the parties, judgment relied upon by counselis not applicable in facts and circumstances of the case and there is no infirmity inimpugned order as assessee are not entitled to claim refund unless they challenge theassessment order which has not been done in present case: CESTAT


Arihant Krupa Traders Vs CC (Dated: April 7, 2017)

CUS - Assessee engaged in selling of goods on which custom duty leviable - Assesseewere held liable for suppression & misdeclaration of goods to avoid customs duty byinvoking extended period of limitation - Demand for duty with interest was raised &imposed penalty -Held- Since, it was seen in most of bill of entries filed by assesseethat invoice value column and invoice number column was left blank or in someinvoices value mentioned was calculated as per the rate approved by Customs whereinleaving the column blank for the invoice value and of invoice number clearly leads tosuppression or misdeclaration of goods to avoid customs duty and extended period oflimitation was rightly invoked - Further assessee should pay penalty at the rate of 25%of duty subject to payment of entire amount of duty along with interest - Penalty

imposed on the buyers of materials was held justified reason being suppression andmisdeclaration on the bills of entry was undoubtedly known to the buyers also whichresulted in evading the actual duty payable by them - No evidence was put on recordregarding the practice of any wrong doing was in the knowledge of employeestherefore penalty imposed set-aside: CESTAT (Para 2, 8,9,10,11 )


Gateway Supports Services Pvt Ltd Vs CC (Dated: April 18, 2017)

Cus - Gazette of India is a public document and the restriction imposed of allowingimport of meat only against a sanitary import permit issued by Department of AnimalHusbandry and dairying was in public domain from 7 th July 2001 - Contending thatsince Trade Notice was issued only on 10.03.2005 and imports were made before thisdate, there is no violation, is untenable - Appellants deliberately imported theoffending goods without the required permit and cleared the same - goods, therefore,became smuggled goods in terms of section 2(39) of the Customs Act, 1962 - Violationof law makes the goods liable for confiscation - Impugned order upheld and appealsdismissed - Chief Commissioner instructed to investigate and take deterrent measuresto prevent such incidences: CESTAT [para 6 to 8]



Aakash Enterprises Vs CC (Dated: April 7, 2017)

Cus - Assessee imported various automobile parts under cover of Bill of Entry ondeclared value - Such goods were cleared from Customs after paying customs duty -Goods imported vide said Bill of Entry was put to seizure on the doubt of undervaluation - Some other goods lying in premises were also seized - Transaction value,declared by importer stand rejected on the sole ground that NIDB data forcontemporaneous imports reflects higher value of identical goods - Proving the valueto be wrong declaration, independent evidence is required and mere reference to NIDBdata is not sufficient - Enhancement of value is not justified.

As regards to other goods seized from premises, assessee deposed that the goodswere purchased by him from the sales representative and sale was not directly fromthe shops - Assessee has also produced sales tax challan along with sales bill on recordwhich establish that goods stand purchased in India only - Inasmuch as enhancementof value and confiscation of goods set aside, imposition of penalty upon assessee is notcalled for, same is also set aside: CESTAT


Hicks Thermometer India Ltd Vs CC (Dated: April 25, 2017)

Cus – Appellant cannot be allowed to keep an advantage which he obtained by fraud –Benefit of exemption notification 21/2002-Cus denied – When no evidence was led byappellant to claim the exemption, that established deliberate mis-declaration toCustoms – goods liable for confiscation - Appeal dismissed: CESTAT [para 3 to 7]



CC & CE Vs Dream Logistics Company India Pvt Ltd (Dated: April 4, 2017)

Cus – Respondent filed shipping bills for export of iron ore claiming FE content as 50%or more based upon load-port analysis report - Subsequently when the iron oreconsignment reached the destination port, test result showed the iron ore content asapproximately 40% to 45% i.e. les than 50% as contracted for - Based on negotiations

the upcountry party reduced the price for the consignment of iron ore which wasexported – respondent exporter filed refund claims for the amounts of excess duty paidby them by calculating duty liability based upon the contractual value for the FEcontent of 50% or more – Adjudicating authority rejecting claim but Commissioner(A)allowed the same - Revenue in appeal against o-in-a wherein Commissioner(A) heldthat value has to be treated which is equivalent to the bank realization certificatereceived for the export consignment. Question is whether the appellate authority iscorrect in holding that invoice price for the goods exported and corroborated by bankrealisation certificate is to be treated as value of the goods exported on which customsduty is payable or whether the value of the goods declared in the shipping bill at thetime of exportation of the goods is to be considered as correct. Held: Issue is settled inthe case of Hira Steel Limited - 2016-TIOL-1692-CESTAT-MUM wherein it is held thatin any transaction, the terms of the agreement need to be given precedence and thevalue at the time and place of export as entered between two parties has to beconsidered for the discharge of duty liability - Revenue appeal, therefore, allowed byholding that the impugned orders are liable to be set aside: CESTAT [para 5, 6]


BPCL Vs CC (Dated: March 8, 2017)

Cus - Penalty - M/s I.O.C.L. imported Superior Kerosene Oil (SKO) under Customsexemption Notfn for ultimate sale through PDS and supplied the materials to assessee- DRI Officers after investigation, found that assessee was selling imported SKO toother than PDS in violation to exemption Notfn - Demand confirmed alongwith penalty- Assessee sold SKO other than PDS, due to utmost emergency to Govt. organization -Case of Department is that it was during investigation by DRI Officers, that non-payment of duty was detected and therefore, equal amount of duty could be imposedas penalty - Assessee in reply to SCN narrated in detail, reasons/conditions of sellingof SKO to Railways/Defence - They have also submitted C.A.'s Report/other documentsto DRI Officers, and no further enquiry was conducted - Conduct of assessee could notshow to invoke ingredients as mentioned under Section 114A of Customs Act, 1962 -Therefore, imposition of penalty is not warranted: CESTAT


Dream Logistics Company India Pvt Ltd Vs CC (Dated: March 14, 2017)

Cus - Assessees have entered into sales contracts with various buyers and exportediron ore fines/lumps under shipping bills on payment of customs duty and cess as perprovisional assessments by proper officer of customs - Customs duty as applicable waspaid on FOB value as assessed by Customs on the basis of export documentssubmitted by exporters and test reports as applicable - In case of appeals filed byexporter, Commissioner (A) has rejected the appeals on the ground that adjudicatingauthority has established that assessees have failed to discharge burden of proof thatsuch excess duty has not been passed on to buyer in terms of Section 27(1) ofCustoms Act, 1962 and that assessees have not produced any evidence that refundamount was shown as " receivable " in their books of accounts during relevant period -Exporters have proved that they have not charged any duty of customs on FOB pricepaid by buyer - From documents produced by assessee, it is clearly proved that he hasnot charged any customs duty from buyer - Export is in accordance with internationallyaccepted commercial terms and a copy of contract has also been brought on recordwhich contain terms and conditions and one of common condition found in all salecontracts is that duty or tax in country of origin or in country of destination to beimposed during continuance of this contract increasing cost of ore to be delivered -Same shall be paid by seller to extent imposed by country of origin and by buyer to theextent imposed by countries of destination - Invoices show the price for export goodsand export duty is paid on price or FOB value of export goods and invoices do notinclude customs duty paid by exporter - Impugned orders are not sustainable in law,same is set aside: CESTAT


Acme Industrial Corporation Vs CC (Dated: March 8, 2017)

Cus - Assessee while importing the goods declared them as " Shima Seiki FullyFashioned High Speed Glove Knitting Machine " while that was ultimately found byTextile Commissioner to be " old and used Shima Seiki Glove Knitting Machines " -Assessee also claimed exemption of additional duty of customs benefit under notfn6/2002-Cus which was denied as condition in notification not satisfied - Misdeclarationof description of goods was apparent when Discharge Port Chartered Engineerphysically examined the goods in presence of assessee - He valued the goodssystematically which remained unrebutted stating any logical reason by assessee -Such material on record proved misdeclaration of goods on both count - There wasundue claim of notfn benefit - Considering the entirety of facts and circumstances ofcase and modus opeandi on all counts, appeal is liable to be dismissed andmisdeclaration of description of goods has also crippled the assessee to get notfnbenefit - Examining the gravity of misdeclaration and attempt to take undue advantageof exemption, that does not appear to be unreasonable - Further, penalty is imposableto deter fraudulent activity - Accordingly, there shall be no intervention even to suchaspect: CESTAT


CC Vs Modipon Fibres Company (Dated: May 16, 2017)

Cus - Revenue alleges in ROM application that the order has been issued beyond theperiod stipulated for issue after conclusion of hearing and without recourse to thecondoning authority of the President - Insubordination by Revenue - Tribunal isaccountable to the citizenry at large and is not required to render an explanation ofconduct to the executive authority - It would do well for executive authorities to limittheir actions to their appropriate stations in the adjudicating hierarchy - Anotherground in the ROM application that the case law has been incorrectly applied, Benchobserved that accepting the contention of the Revenue would tantamount to revisitingthe correctness of its order and which cannot be since it has been rendered functusofficio - CESTAT cannot sit in judgment on its own order: CESTAT [para 4 to 6]



Agarwal Marbles and Industries Pvt Ltd Vs CCE (Dated: April 18, 2017)

Cus - Assessee filed BOE for import of rough marble blocks imported from Turkeyalong with other relevant documents - As regards valuation of goods, it is seen thatRevenue has enhanced value based upon NIDB data as also on weekly average prices,adopted from other relevant ports - It is well settled law that NIDB data cannot beconsidered as reliable source for purpose of enhancement - Issue is no more resintegra and has been settled by umpteen number of decisions of Tribunal - In view offoregone, no justifiable reasons found to enhance the value and hold that transactionvalue declared by assessee be adopted as assessable value for purpose of payment ofCustoms duty - As regards to contravention of licenses, assessee has accepted theviolation of condition of policy, thus confiscation and imposition of penalty upheld butfollowing decision in case of R K Marbles 2009-TIOL-353-CESTAT-DEL , same isreduced to 1 lakh and Rs. 50000 respectively: CESTAT


Coastal Shipping Links India Pvt Ltd Vs CC (Dated: March 31, 2017)

Cus - Assessee engaged in providing shipping services - Revenue alleged that assesseehas brought vessel for dry dock repair in shipyard but after doing investigation onvessel it was found by revenue that assessee imported goods without declaration inorder to smuggle them by evading customs duty - Revenue confiscated the goods andvessel - SCN was issued demanding duty & imposed penalty.

Held - By considering the evidences put on record by revenue the confiscation of vesselwas held justified u/s 111(f,g,h) of Customs Act and also redemption of vessel onpayment of redemption amount u/s 125 of Customs Act was held justified - Nowregarding the duty demanded and redemption amount paid for releasing of goods washeld unjustified as no independent evidence was produced by revenue to prove goodsimported was for smuggling therefore assessee were supposed to pay the duty onexcess quantity which was misdeclared by them in IGM - Regarding the amountdeposited by assessee during course of investigation and another amount pre-deposited by assessee before the Tribunal for early hearing therefore matter remandedto the adjudicating authority to deduct the duty and fine as imposed on assessee fromthe said deposited amount and if any amount left in excess shall be refunded toassessee: CESTAT ( Para 2,4,6,7)


Hindustan Zinc Ltd Vs CC (Dated: March 14, 2017)

Cus – Copper sulphate technical grade is used by the appellant for manufacturing ofzinc concentrate - exemption under Section 38(1)(b) of the Insecticides Act applies,therefore, no requirement of obtaining registration/licence from Central InsecticidesBoard – confiscation set aside and appeal allowed with consequential relief: CESTAT[para 9, 10]

Cus – Copper Sulphate Technical grade classified by appellant under CTH 2833 - mereassertion of the adjudicating authority that the goods are liable for classification underCTH 3808 is of no consequence as no reasoning have been given: CESTAT [para 8]



Anjeny Loys Pvt Ltd Vs CC (Dated: February 20, 2017)

Cus - Appellant imported a consignment of "Pistachio Kernals Oil Stock Feed Grade(not for human consumption) (un-cleaned and unsorted)" – On a suspicion that theconsignment may contain Pistacho Kernals of medium quality and would be meant forhuman consumption, samples were drawn and it was concluded that the appellant hadmis-declared the goods in respect of use in order to escape the NOC from FSSAI asrequired for human consumption – AA held that goods were mis-declared and orderedabsolute confiscation and also imposed penalty – as Commissioner(A) upheld theorder, importer before the CESTAT. Held: Certificate of analysis of the samples drawnindicates that the said consignment is an animal feed and not for human consumptionand, therefore, in the face of such categorical analytical report, lower authorities werein error to hold that there was mis-declaration on the part of the appellant - FSSAIwhich gives Food Import Clearance System has specifically recorded that theconsignment being declared by the appellant since not for human consumption doesnot require any FSSAI certificate and hence does not fall under the purview of FSSAI –consignment, therefore, does not violate any provisions of the law for the time being inforce and there was no mis-declaration on the part of the appellant in respect of thedescription of the goods – DR has also been unable to point out any such prohibitionfor import of Pistachio Kernals oil for Industrial use or for use as animal feed – in theabsence of any such prohibition, adjudicating authority has erred in absolutelyconfiscating the said consignment – impugned order is not in consonance with law and,therefore, set aside – appeal allowed: CESTAT [para 6, 8, 9, 11]


Andhra Sugars Ltd Vs CC & ST (Dated: February 9, 2017)

CUS - Assessee were importers of Bright Yellow Sulphur Crude - They were denied the

refund of customs duty paid in advance and in excess on the goods imported -Held- Asassessee paid duty in advance for the goods imported and later when joint survey wasconducted and statement of facts was prepared it was realized that there was shortageof goods landed as compared to the actual quantity imported - The Joint survey reportstating shortage of goods received in respect of the actual quantity imported wassigned by steamer agent of the assessee and by the master of ship - These documentswere put before the customs officer who issued out of charge order while accepting theduty paid on import - Revenue had not taken any action against the steamer agent ifthey found he submitted unauthentic documents which means strong inference can bedrawn that these documents were proper documents - Therefore in the absence of anyreliable evidence to disprove the refund sought by assessee held justified: CESTAT(Para 1,2,8,9)


Divya Shipping And Clearing Services Pvt Ltd Vs CCE (Dated: March 17, 2017)

Cus - On the basis of an undertaking filed by CHA necessary Form No.6 was preparedby shipping line and container was gated in to port area for export - CHA thereafter,filed shipping bills and other documents with Customs department on 22.11.2006 -However, without having LEO and before completion of assessment of shipping billfiled, container was loaded on vessel and shipped on 23.11.2006 - There is nothing onrecord to indicate involvement of CHA in export of container before assessment ofshipping bill or LEO issued by Custom Department - In Arvind Limited case 2017-TIOL-1380-CESTAT-AHM, Tribunal had already discussed the role of each agencycommencing from the time the export container is gated in till its ultimate export andconcluded that major responsibility rests on shipping line agent - Therefore, in absenceof a positive role of CHA for export of cargo without LEO or before assessment ofshipping bill, penalty cannot be imposed on them under Section 114(iii) of CustomsAct, 1962: CESTAT


Golden Agro Corporation Vs CC (Dated: February 28, 2017)

Cus - Assessee imported glass chatons, cutters and pocket scales - Revenue issuedSCN to assessee for enhancement of values of goods imported after rejection of theirdeclared values - Revenue's case is not based on reliable evidences, which could belegally sustained, their main case is mis-declaration of values by assessee in case of888 brand glass chatons, Unbranded coloured glass chatons and Pocket scale andcutters - Unless manufacturer's price list has got corroboratory evidences which can bein form of contemporary imports or further corroboration from manufacturer's end onprices for India for this much quantity, Revenue's order in appeal for enhancement ofvalue in case of ‘888 brand glass chatons' cannot be sustained legally.

Unbranded coloured glass chatons and Pocket scale and cutters - Revenue has re-determined the value under rule 9 of CVR 2007 on the basis of market enquiry -However, it appears that market enquiry was not scientifically conducted and marketenquiry in absence of any corroboratory evidence cannot become sole basis forsustaining enhancement of value as done by impugned order - Therefore, impugnedorder enhancing the value of these items cannot be legally sustained: CESTAT


Bombay Marine Enterprises Vs CC (Dated: April 7, 2017)

Cus – Imported goods were confiscated, redemption fine of Rs. 2 lakh and penalty ofRs. 20,000/- was imposed on the ground that in the bill of lading and bill of entry thegoods were declared as “MS retrieved Pipes Old, Used, Rusted and unserviceable”,whereas on examination by the customs, it was found that though the goods are oldand used it is ‘serviceable' - contending that there is mis-declaration, impugned orderwas passed – appeal to CESTAT. Held: It is not disputed that no goods different than

that declared in the bill of entry were found – only because in the opinion of theexaminer that the goods are serviceable, it cannot be said that there is mis-declaration- It is also a fact that in the supplier's document whatever description was mentioned,the appellants have declared the same on the bill of entry - Therefore, there is no mis-declaration and hence, goods are not liable for confiscation and importer is notrequired to be imposed with redemption fine and penalty – other issues raised are notrequired to be addressed - appeal is allowed: CESTAT [para 4]


Bharat Garments And Textiles Pvt Ltd Vs CC (Dated: April 17, 2017)

Cus – Appellants were granted advance licence after they had completed the exportobligation – SCN was issued on the presumption that in r/o the goods exported by theappellants, input stage credit was availed and this was in violation of para 126 of theHandbook of Procedures of Exim Policy, 1992-97 – resultantly, demand of Customsduty was confirmed and penalty was imposed in r/o goods imported in terms of notfn.203/92-Cus – appeal to CESTAT. Held: SCN presumes that credit has been availed inrespect of goods exported while fulfilling export obligation, however, no evidencewhatsoever has been produced or stated in the notice – moreover, SCN has beenissued invoking the extended period of limitation – also, office of DGFT has acceptedthe fulfillment of export obligation in respect of the said licence – as there is noevidence to support the allegation of Revenue, on merits as well as limitation,impugned order is set aside and appeal is allowed: CESTAT [para 4, 5]


Container Corporation of India Vs CC (Dated: March 7, 2017)

Cus - An export container has been used to smuggle out red sanders logs - Thecontainer with contraband was railed out of ICD, TKD - However, on basis of specificinformation from DRI, the said container was intercepted and searched - Onexamination of same the contraband was found and seized - During course ofinvestigation undertaken by Customs authorities, nothing has been revealed on recordto indicate any part played by employees of CONCOR in alleged smuggling ofcontraband - A lot force found in submission of CONCOR that no. of containers bookedon daily basis is quite large and it is practically difficult to co-relate the list of let exportorders sent by e-mail by customs with containers booked and subsequent railing out ofcontainers manually - In any case, it has been established that documents indicatinglet export order based on which container was railed out were fraudulent andfabricated - Consequently, the custodian i.e. CONCOR as well as its emplyees cannotbe faulted for allowing such let export of container - Penalties imposed on CONCOR aswell as its employees are set aside: CESTAT


CC Vs Excel Marketing (Dated: April 20, 2017)

Cus - Assessee filed applications for refund of SAD paid by them on commodityimported by them i.e. Thermal Transfer Ribbons (TTR) - Adjudicating authorityrejected the said refund claims only on the ground that there is no co-relation of goodsimported and goods sold in case in hand - On appeal, commissioner (A) set aside theimpugned order and allowed the appeals - Being aggrieved, hence revenue in appeal -First appellate authority clearly records for assessee has produced a CharteredEngineer's certificate, records required to justify that imported goods were clearedsubsequently on payment of applicable local VAT - First appellate authority hassatisfied himself that the records produced establish that importer/respondent hasproduced the domestic sales invoices of details relating to bills of entry under whichthe goods have been imported and SAD have been paid - Impugned order is correctand legal and does not suffer from any infirmity: CESTAT

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