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CESTAT RULING (CUSTOMS)

2015-TIOL-1820-CESTAT-MUM

Gupta Coal India Pvt Ltd Vs CC (Dated: April 29, 2015) Cus - Classification of Coal & benefit of notification 12/2012-Cus (sl. No. 123) - Whether as Steam Coal under CTH 27011920 as contended by the importers or as Bituminous Coal under CTH 27011200 as contended by the Revenue - issue of classification & eligibility of notification is referred to the Larger Bench in case of Tamil Nadu Generation and Distribution Corporation Ltd. - 2014-TIOL-2503-CESTAT -MAD - Vide order 20369/2015 dated 04.02.2015 unconditional stay has been granted by Coordinate Bench on identica l issue - as a convention, when matter is referred to Larger Bench, waiver of pre-deposit & Stay from recovery is granted - Application allowed: CESTAT [para 3]


M/s Global Vectra Helicorp Ltd Vs CC (Dated: May 25, 2015)

Cus - Tribunal has vide Final order dated 29.04.2015 - 2015-TIOL-968-CESTAT -MUM held that appellant is entitled to exemption in terms of Notfn. 21/2002-Cus in respect of Helicopter imported by them in view of the clarification offered by the DGCA that the services provided by the importer are in the nature of non-scheduled passenger service - Since the appeal filed by the appellant has already been allowed by the Bench, the Bank Guarantees which have been executed by M/s. Global Vectra Helicorp Ltd. needs to be discharged - Ordered accordingly - Application allowed: CESTAT [para 4]


CC Vs Lorenzo Bestonso (Dated: July 20, 2015)

Cus - Refund of pre-deposit - Commissioner avers that there was no intention of not complying with the orders of the CESTAT - language used in affidavit was only a manner of drafting - Explanation accepted: CESTAT [para 2]

Also see analysis of the order

2015-TIOL-1804-CESTAT-HYD

Divis Laboratories Ltd Vs CCE (Dated: June 25, 2015) Customs - Classification of imported coal - Bituminous or steam coal - Issue already referred to and pending decision on reference by Larger Bench before the Supreme Court - Matter remanded to original authority for the limited purpose of considering the eligibility of the appellant for the benefit of Notifications No.12/2012-Cus., dated 17.3.2012 for import of coal from Indonesia. (Para 4)

2015-TIOL-1794-CESTAT-BANG

CC Vs M/s Dozco (India) Pvt Ltd (Dated: May 22, 2015) Customs - Refund claim of Special Additional Duty (SAD) - Limitation applicability - SAD refund claim filed beyond one year relating to the period prior to the date of issue of amending Notification No. 93/2008 dated 1.8.2008 - Following Delhi High Court ruling in Sony India Pvt Ltd , held is not barred by limitation - Revenue appeal has no merit hence was rejected. (Para 5, 6, 7)

2015-TIOL-1793-CESTAT-MAD

CC Vs M/s Pioneer Power Corporation Ltd (Dated: June 3, 2015) Customs - Refund - respondents are registered for import of capital goods under project import and made a cash security deposit at the time of registration of the project - On finalisation of project imports, the adjudicating authoritysanctioned the refund, which was credited to the Consumer Welfare Fund by holding that it attracts bar of unjust enrichment - Commissioner (Appeals) has allowed the appeal with consequential relief, agitated by Revenue herein.

Held:Board's circular dated 09.08.95 stipulates the requirement of cash security deposit of 2% when registering the project - Revenue's only contention is that the cash security deposit made by the respondent under project imports is nothing but customs duty and pleaded the bar of unjust enrichment is applicable - case law relied upon by Revenue distinguished - Madras High Court examined identical issue in Cable Corporation case and held that the bar of unjust enrichment is inapplicable to security deposit - ratio squarely applicable to the instant dispute - appellants are eligible for refund of cash security deposit and there is no infirmity in the order of the Commissioner (Appeals) which is upheld [Para 5, 6]


Microsoft India (R & D) Pvt Ltd Vs CC & CE (Dated: May 25, 2015) Customs - Duty exemption availed without fulfilling conditions stipulated in Notification No. 52/2003-Ownership of subsidiary is a condition precedent for sharing of assets - Holding company merely having effective control over subsidiary does not per se amount to ownership of holding company over the subsidiary - Sharing of common facilities/assets constitutes breach of conditions stipulated in Notification No.52/2003 - Confirmation of the duty demand on the appellant is thus unassailable and warrants no appellate interference - Duty on the valuation must reckonfrom the date of commencement of sharing of the assets - Impugned order suffers from no infirmity and requires no interference - Assessee appeal has no merits hence is dismissed.(Para 4 - 7)


M/s Paramount Exports Vs CC (Dated: May 15, 2015) Cus - Appellant filed Shipping Bill for export of tobacco product - In view of CBEC letter dated 30.08.2011 tobacco product in plastic pouches were no longer permissible for export, goods held liable for absolute confiscation and exporter held liable for penalty on the ground that goods have been entered for exportation in contravention of the provisions of Plastic Waste (Management and Handling) Rules, 2011 - appeal to

CESTAT.

Held : Supreme Court in the case of Baba Global Ltd. had directed that the petitioner 100% EOU will be exempted from the operation of the Rules, 2011 - issue is, therefore, no longer res integra - in view of the amendment in the mode of packing made by the MoEF vide notification dated 2.7.2011, there was confusion as to the applicability and subsequent clarification by the apex court - held that there was no contumacious conduct on part of the appellant in carting the tobacco product for export packed in plastic sachet - order of confiscation and penalty set aside - appeal shall be entitled to take the goods back to town if the same are still in good condition and usable - appellant will also be entitled to refund of fine and penalty already deposited in pursuance of order of lower authority along with interest - Appeal allowed: CESTAT [para 5]


Madan Lalwani Vs CC (Dated: July 20, 2015)

Cus - Pre -deposit - Board Circular 984 dated 16/09/2014 applies to appeals filed after the amendment of section 129E of the Custom Act on 6.8.2014 - Tribunal is not inclined to review own Order: CESTAT [para 3, 4]



M/s Oracle India Pvt Ltd Vs CC (Dated: July 29, 2015)

Cus - Electronically downloaded software is not liable to customs duty - in respect of commercial imports of media packs, the licence fee remitted by OIPL to Oracle USA is includible in the assessable value - Demand hit by limitation - Penalty not imposable - Confiscation set aside - To raise a pure interpretational disagreement regarding valuation to the status of an offence case of evasion alleging suppression, etc. does not augur well for the image of taxation department and negatively impacts the ease-of-doing-business environment of the country: CESTAT



M/s New Drug And Chemical Co Vs CC (Dated: July 20, 2015)

Cus - Fine cannot be imposed as goods are not available for confiscation -As the appeal has been restored after the amendment of Section 129E of Customs Act, 1962, in August 2014, appellant directed to pay 7.5% of the penalty within two weeks from the date of this order in compliance to the provisions of section 129E of the Customs Act: CESTAT [para 2]

Also see analysis of the order 2015-TIOL-1754-CESTAT-MAD

CCE Vs M/s Baxter India Pvt Ltd (Dated: June 5, 2015)

Customs - Classification - The short issue involved in this case relates to import of

"Extraneal Peritoneal Dialysis Solution with 7.5% Icodestrin" (CAPD) - The appellants classified the goods under CTH 9018 9099 whereas Revenue classified the goods under CTH 3004, as medicaments consists of mixed or non-mixed products, chargeable to different rates of duty as applicable - Commissioner (Appeals) in the impugned order held that CAPD is rightly classified under C TH 9018 against which the Revenue preferred the present appeal.

Held: the issue stands settled by the Apex Court in the appellant's own case CC, Delhi Vs. Baxter India - CPAD is rightly classifiable under Chapter heading 9018 by the lower appellate authority - the impugned order is upheld [Para 5]

2015-TIOL-1753-CESTAT-AHM

M/s Global Exim Vs CC (Dated: April 9, 2015)

Cus - Assessee filed Bill of Entry in respect of import of Edible Lactose 100 Mesh (Milk Sugar) claiming benefit of Notfn 98/2009-CUS - Said notfn exempted materials imported into India against the Duty Free Import Authorization (DFIA) issued in terms of Para 4.2.1 an 4.2.2 of Foreign Trade Policy (FTP), from whole of duty of customs leviable thereon subject to fulfilment of condition - DFIA was originally issued to M/s Excel Crop Care Ltd - Said DFIA was transferred to assessee by the Licensing Authority - Item Sugar covers Lactose as against export of "Metamitron" SION A 2059, for which there is no separate condition notified in norms - Sugar is a specific entry mentioned in DIFA Licence and 'Lactose' is covered under scope and ambit of permissible item 'Sugar' - So, the DGFT Notfn 31 dated 1.8.2013 with Public Notice No 35 cannot be applicable - Once the license was endorsed for transferability by licensing authority, the nexus between imported product and the use in export goods is not required to be established: CESTAT


Shri Bajrang Rajaram Gupta Vs CC (Dated: June 12, 2015)

Cus - Import of goods through baggage - As per preamble to OIA dated 26.8.2013, passed by First Appellate Authority, appeal against such orders lies to Under Secretary, Govt. of India, Ministry of Finance, Dept. of Revenue, New Delhi as per Section 129A(1) of Customs Act 1962: CESTAT


Rakesh Kumar Vs CC (Dated: July 22, 2015) Cus - Extension of time granted by High Court for payment of pre-deposit ordered by Tribunal not adhered to - consequently appeal dismissed by CESTAT - after six months, applicant making pre-deposit and filing application for Restoration of appeal - whether doctrine of merger applies & whether Tribunal has become functus officio and has no jurisdiction to entertain the application for ROA when the condition ordered by High Court of pre -deposit by 12.6.2014 is violated by the appellant - Difference of opinion: CESTAT



Jay Agro Organics Ltd Vs CC (Dated: June 23, 2015) Cus - Penalty - It is the case of assessee that oil cake meal can be made by 100% solvent extraction or partly by physical extraction and partly by solvent extraction - That 100% oil extraction from oil seed is not possible by physical expression of seeds - No evidence produced by Revenue that oil cake meal has been prepared only by solvent extraction - No doubt that oil was extracted by a combination of both by expelling process and by solvent extraction - If an incorrect exemption is claimed by assessee, as a matter of belief then it cannot be considered as a declaration intentionally made to evade customs duty - As assessee was holding a bonafide belief that so long as majority of oil is extracted by expelling process, resultant meal will continue to be classified as expeller variety of oil cake meal - No justification for imposing penalty upon assessee under Section 114AA of Customs Act, 1962: CESTAT


M/s Indiport Footwear Pvt Ltd Vs CC (Dated: May 29, 2015)

Customs - RF and penalty - Penalty imposed by original authority enhanced by Commissioner (Appeals) without notice; RF reduced; and both agitated herein.

Held: Record reveals that principles of natural justice violated in respect of enhancement of penalty - section 114 (ii) of the Customs Act, 1962 gives wide latitude to the Customs officer in respect of levy of penalty, who imposed penalty of Rs.50,000 - Commissioner (Appeals) did not advance any reason to discard the quantum of penalty, hence order on this count does not sustain and Penalty is reduced to Rs.50,000what that was imposed in adjudication - no material from the appellant to suggest that redemption fine should not have been imposed - no reason to intervene to the quantum of redemption fine determined by Commissioner (Appeals) [Para 2, 3]


M/s India Medtronics Pvt Ltd Vs CC (Dated: June 11, 2015)

Cus - Revenue issued SCN on same items in earlier period within normal period - So, Revenue was aware of import of these items - It is noticed that assessee claimed exemption benefit in respect of entire consignment and out of that about Rs 68 lacs, Adjudicating Authority dropped the demand - Hence, findings of Adjudicating authority on suppression of fact in respect of balance amount cannot be sustained - It is a case of claim of exemption notfn - Demand of duty alongwith interest is set aside, as barred by limitation - Penalties imposed on both assessees are also set aside: CESTAT


T V Shanmugam Vs CC (Dated: June 15, 2015)

Customs - CHA - Penalty - based on the intelligence, DRI officials intercepted the export cargo covered under the impugned shipping bill filed in the name of M/s.Win Exports - On examination of the container, it was found to contain Red Sander Logs instead of declared goods "Natural Slate Stones" and rivet points in the lock handle of the container were tampered - the red sanders was seized; investigation launched, and statements of individuals recorded - On completion of the investigation, DRI issued show cause notice to the exporters as well as to other co-noticees including the appellants for imposition of penalty; same adjudicated in the impugned order confirming absolute confiscation of red sander logs and penalty on the various individuals and firms under Section 114 of Customs Act; two of whom agitated the impugned order herein.

Held: In respect of the individual, the adjudicating authority has clearly discussed the modus operandi and held that persons who masterminded the entire operation are Shri Chitti Raja and K.Shanmugam in connivance with Bhaskaran - the only allegation made against appellant was that the CHA signed the shipping documents for the third party CHA - separate proceedings already initiated against the appellant under CHALR 2004 - The adjudicating viewed that the appellant by omission had abetted and rendered the goods liable for confiscation - But for this finding no other evidence is on record to establish the active collusion by the appellant with the main persons involved in the smuggling of the red sanders - The original authority concluded that Sri TV Shanmugam has failed to discharge the functions as a CHA - no evidences brought out by the adjudicating authority to establish the role of the appellant in the attempt of smuggling of red sanders - Ratio of High Court ruling in the Sahaya Edin Prabhu case squarely applicable - penalty imposed under Section 114 of the Customs Act is not sustainable - penalty imposed on Sri TV Shanmugam set aside. [Para 11, 11.1]

In respect of the firm, being a CFS as custodian they are responsible for the receipt, storage and clearance of import and export cargo in their CFS and equally responsible for safety and security of the cargo transshipped from CFS to the gateway port - established beyond doubt that the sealed containers were tampered in transit and the goods were replaced with Red Sanders before the container reached the gateway port - being custodian of the cargo as CFS, the appellant had failed from their primary responsibility entrusted for safe transport of the sealed container to the gateway port - role of CFS as custodia n of cargo cannot be equated with the role of Custom House Agent and the CFS obligations and roles are entirely different from the role of CHA - Adjudicating authority had rightly imposed penalty under Section 114 of the Customs Act - However, considering overall facts and circumstances of the case, the penalty is reduced from Rs.5 lakhs to Rs.2,50,000/- (Rupees Two lakhs fifty thousand only) and the impugned order stands modified to this extent. [Para 13, 13.1]


CC Vs Mr Nitin Pherwani (Dated: June 05, 2015)

Cus - Committee passes Review order beyond the period of three months from date of receipt of o-in-o - Tribunal is not empowered to condone the delay in passing of review order - in absence of a 'legal review order' under s.129D(3) of the CA, 1962, the appeal is time barred - Revenue appeal dismissed: CESTAT



M/s Sree Ayyanar Spinning Mills And Weaving Mills Ltd Vs CC (Dated: January 20, 2015)

Customs - Conversion of export scheme in Shipping Bill - appellants exported cotton yarn of various counts under various shipping bills and towards fulfillment of obligations of EPCG scheme and Advance License Numbers have to be mentioned in those shipping bills - they have inadvertently failed to mention the Advance License Numbers in seven shipping bills; in two other shipping bills DGFT has denied the benefit under DEPB scheme and appellants sought to claim alternative export benefit under advance license scheme - they sought for amendment in the shipping bills under Advance License Scheme under Section 149 of the Customs Act; denied in adjudication; and agitated herein.

Held: The description given in the shipping bill is 100% cotton open end yarn grey for weaving; same were cleared from the factory of manufacture through ARE-1 - Appellant declared in the ARE-1 that "the export is in discharge of the export obligation under a Quantity base Advance License" and Part B of ARE-1 was duly certified by the customs officer at the time of allowing export (let export) - ARE-1 cross verified by Superintendent in charge of the factory which was again verified by the customs officer -it is confirmed that the said goods mentioned under these shipping bills were exported under Advance License Scheme and these documents were in existence before export of the goods - Section 149 of the Customs Act read with Circular No. 4/2004 dated 16.10.04, clearly envisages amendment to be considered between one scheme to another scheme where the documentary evidence was in existence before the export - In the present case, ARE-1 clearly shows that the goods were exported under Ad vance License Scheme, which is counter signed by the proper officer of Customs, who allowed the let export and mentioned the shipping bill number in Part B of ARE1 - On identical issue the Tribunal in Final Order No. 40864/2014 dated 10.09.2014 already allowed the amendment of the shipping bills - appellants are eligible for conversion of all the nine shipping bills from DEPB scheme to Advance License Scheme - Impugned order is set aside. [Para 4]

2015-TIOL-1633-CESTAT-DEL

Shri Rajendra M Purohit Vs CC (Dated: March 11, 2015)

Cus - Revocation of CHA License - There are some lapses on the part of assessee themselves and for that appellant is liable to be penalized - As the assessee is out of business for more than 3.5 years and is not in business since 13.10.2011, therefore, for the lapse admitted by assessee, the punishment is already suffered by him - Impugned order is modified to the extent that order of revocation of CHA License is set aside and becomes operative with immediate effect: CESTAT [Para 6, 7]


M/s International Steel Corporation Vs CC (Dated: May 11, 2015)

Cus - M/s Madhav Industrial Corporation, entered into agreement with foreign seller by MoA dated 26.4.2001 to purchase old Vessel for a consideration of US $ 9,54,044/- - After importation of goods, foreign seller sold the goods to assessee as per MoA dtd 3.5.2001 and value was reduced to US $ 8,54,044/- - Value was available at the time

of importation is US $ 9,54,044/- as per MoA dtd 26.4.2001 - No reason a vailable for reduction of price in subsequent MoA dtd 3.5.2001 - Transaction value would be, as declared at time of importation of goods - Hence, Adjudicating Authority rightly determined the value of US $ 9,54,044/- as per first MoA - Appeal rejected: CESTAT


M/s Vardariya Exporters Vs CC (Dated: April 22, 2015)

Customs - Advance license - Thirteen licenses issued to appellant firm for import of stainless steel coils - In the first round of litigation, demands adjudicated on the ground that the conditions of the 13 licenses were violated which was agitated before the Tribunal who ordered for pre deposit by Order No.19 to 28/2009, dated 13.01.2009 - This stay order was agitated before the Madras High Court who in turn reduced the quantum of deposit and directed to make pre -deposit thereof within time prescribed by order dated 21.02.2007 - Since this was not complied with, the Tribunal dismissed the importer's appeal - Meanwhile, subsequent proceedings initiated, alleging violation of license condition in respect of one of the licenses covered by earlier proceedings, agitated herein on the ground that multiple proceedings cannot be initiated on the same set of facts.

Held:It is established fact that self-same licence has been dealt by two adjudication orders in respect of self-same cause, which is not permissible in law - Tax was not being multiple taxation law, impugned order passed against first appellant is unsustainable and set aside - All other appeals having emanated from the cause involved in appeal nos.C/00211/2008 and that appeal having been decided with the result aforesaid, the consequence of adjudication in these appeals are also set aside. [Para 6, 7]


CC Vs M/s Hine Hydraulies India Pvt Ltd (Dated: April 28, 2015)

Cus - Exemption from ACD - Revenue is in appeal against the order passed by Commissioner (Appeals) granting relief against demand of 'Additional Customs Duty' (ACD) holding that the same is not leviable on importe d parts for manufacture of hydraulic systems which are used in the windmills - agitated on the ground that exemption covered by Sl.No. 21 under list 8 to the Notification No. 12/12-CE dated 17/03/12 applies to parts which are consumed if manufactured in the factory and not if imported.

Held: Entry under Sl.No. 13 under list 8 of the Notification specifies that non-conventional energy devices itself is exempt from ACD, as also systems specified under list 8 appended to that notification - What is called sys tems is elaborated in Sl.No.13 under list 8, covering wind operated electricity generator with its components and parts thereof including rotor and wind turbine controller - Not only a complete system is exempt but also the components and parts thereof are equally entitled to exemption from ACD - respondents are covered by the basic items of Sl. No.13 under list 8; hence the order of Commissioner (Appeals) which had granted relief to the respondent taking shelter of Sl.No. 21 under list 8 stands modified since it is not necessary to be dealt with under Sl.No.21 when the primary condition under Sl.No.13 is satisfied. [Para 6, 7]


Krishna Trading Co Vs CC (Dated: June 29, 2015)

Cus - s.129B(2) of Customs Act, 1962 - There is no provision for filing ROM application against the order of the Tribunal deciding a ROM application - Application not maintainable, hence dismissed: CESTAT [para 5]

Cus - ROM order was passed on 29/09/2014 - As per the provisions of Section 129B(2), ROM application can be filed within six months from the date of the order - in the present case, ROM application has been filed on 01.06.2015 - Thus, the application has been filed beyond the period of six months stipulated under section 129B(2) - On this ground also the ROM application needs to be dismissed: CESTAT [para 6]



M/s Vishay Components India Pvt Ltd Vs CC (Dated: July 6 2015)

Cus - Maintainability of appeal - s.129A(6) of Customs Act, 1962 - Impugned order relates to classification only and there is no order confirming duty, interest or penalty - therefore, in view of Larger Bench decision in Glyph International - 2013-TIOL-1103-CESTAT -DEL-LB it is held that no appeal fee is payable - accordingly, appeal is maintainable: CESTAT [para 1]


Manoj Kumar Vs CC (Dated: January 21, 2015)

Cus - Import of vegetable fatty acid - Allegation of mis -declaration of value and description - Adjudicating authority has recorded that the goods were found to be odorless, off-white in colour and goods were not of Oman Origin although there is no basis whatsoever cited for recording such findings - None of the laboratory reports stated that the goods were odorless and off-white in colour - Adjudication Order suffers from severe inadequacy with regard to the quasi-judicial analysis of the evidence and the appellants' contentions - Order not sustainable, therefore, appeal allowed: CESTAT [ para 4, 5]


SSS Sai Shipping Services Pvt Ltd Vs CC (Dated: April 24, 2015)

Cus - Customs Broker licence - Suspension thereof in relation to imports which had taken place during September 2011 to May 2013 - on the basis of investigations the Chief Commissioner forwarded an offence report to the Commissioner on 24.07.2014 regarding violation of CBLR, 2013 by appellant - vide order dated 30.07.2014 licence suspended by Commissioner of Customs - appeal to CESTAT.


Hindustan Coca-Cola Beverages Pvt Ltd Vs CC (Dated: March 20, 2015)

Cus - Diet Coke Beverage Base imported by appellant - Department alleging violation of the Food Safety and Standards Act (FSS Act) and imposing redemption fine and penalty u/ss 125 & 112 of CA, 1962 respectively - appeal to CESTAT.

+ Appellant submitting that since the goods imported was not for sale but was a raw material for making Non-Alcoholic Beverage Base (NABB), same did not come within the scope of the FSS Act - that although they had specifically requested for despatch of fresh production, foreign supplier had sent shipments which were few weeks old; that for the mistake committed by the foreign supplier they should not be penalised; that they had taken up the matter with the foreign supplier and he had agreed to take back the goods and, therefore, imposition of redemption fine/penalty was not warranted.

+ AR submitting that when the FSS authorities have declined to give no objection certificate for the import of goods on the ground that they did not conform to the shelf life prescribed and since that decision was not challenged it proved that the appellant had mis-declared the material particulars and hence RF and penalty were correctly imposed.

Held: Inasmuch as the appellant had not challenged the decision of the FSS authorities, the Customs cannot overlook or ignore the same - appellant had not declared the shelf life of the product in the B/E whereas on testing the goods were found to be wanting in their shelf life as per the prescribed FSS norms - therefore, it is a case of mis -declaration or non-declaration and liability to confiscation u/s 111 would arise - however, since the foreign supplier has not ensured the fulfilment of request made by importer in the purchase order, in the absence of mens rea and also considering that goods have been exported back, imposition of penalty u/s 112 is not warranted - penalty imposed set aside & since goods have been allowed to be exported, only a nominal redemption fine is required to be imposed so that appellant does not resort to similar violations in future - RF reduced from Rs.5 lakhs to Rs.80,000/- - Appeal disposed of: CESTAT [para 4.1, 5]


Nitco Tiles Ltd Vs CC (Dated: November 27, 2014)

Cus - Re-labelling of boxes of Vitrified and Glazed tiles with higher MRP consequent to import - Provisions of Section 3(2) of the Customs Tariff Act, will not become ineffective in the absence of Section 4(A)(4) of CEA, 1944 for the import made prior to 14.05.2003 - ABB decision does not apply - Differential CVD duty demand upheld: CESTAT by Majority



M/s Global Associates Vs CC (Dated: May 13, 2015)

Cus - Assessee had imported 320 MT of what it declared to be DEHP, but filed BOE for only 80 MT - It is alleged that they had mis-declared Di-Octyl Pthalate (DOP) as DEHP and thereby undervalued the goods - Adjudicating authority has come to a finding that DEHP and DOP are same product and therefore declared assessable in BOE is liable to be rejected - If DEHP and DOP are same product in opinion of adjudicating authority, it does not follow therefrom that assessee had mis -declared the goods as DEHP in place of DOP and if there is no mis-declaration, then very ground for rejecting transaction value disappears - To hold assessee guilty of mis-declaration on ground that it did not mention in BOE all synomys of impugned goods is completely devoid of logic, reason, rationale and legal basis - Impugned order set aside and appeal allowed: CESTAT


CC Vs M/s Kruti Stainless Steel Pvt Ltd (Dated: March 5, 2015)

Cus - Dy. Commr(Appraising) enhancing value of imported goods after examining the same on first check basis - no speaking order passed u/s 17(5) of CA, 1962 - Commissioner(A) ordering that in view of s.17(6) proper officer is required to audit the self-assessment done - Revenue in appeal. Held: Section 17(6) of the Customs Act, 1962 is only an enabling statutory provision which allows the department to audit the assessment of duty of imported goods at the office or premises of the exporter/importer - this provision does not prevent the assessee from seeking a justifiable right to get the speaking order - Matter remanded to the adjudicating authority to pass an order on merits: CESTAT [para 4]


M/s K G Denim Ltd Vs CC (Dated: April 16, 2015)

Customs - Drawback - Appellant imported raw materials both duty paid and duty free; used the same in manufacture of exportable goods; also procured raw materials paying excise duty from DTA, which were used in such manufacture - However, a fraction of duty free imported goods were used in the process of manufacture for dyeing of the goods whereupon the said input lost its identity - Revenue viewed that a part of the material imported duty-free being used in dyeing and such material having lost its existence in finished goods appellant is liable to repay back the entire drawback claimed by it - demands adjudicated and agitated herein.

Held: It is an admitted fact that in the course of manufacture, certain inputs used have suffered excise duty and also imported duty free - Customs duty paid inputs were also used in the finished good - when drawback rate was declared it has taken into consideration the composition of goods with exempted inputs and dutiable inputs

and industrial behavior in the economy - once a drawback rate is prescribed at a particular rate for an industry and the appellant has manufactured the goods using dutiable input procured from the domestic market as well as global market paying duty, it is not exposable to any adversity - Law does not permit drawback claim only when export is made using duty free goods - no such allegation by Revenue - Appellant being governed by the basic provision of Rule 3 of the drawback rules, Revenue's plea fails. [Para 5.2, 5.4]


Ultratech Cements Ltd Vs CC (Dated: May 25, 2015)

Customs - Stay/Dispensation of pre-deposit - Classification of Coal imported - Whether the Coal imported is Bituminous Coal or Steam Coal - Plea for waiver of pre-deposit in view of the order of Chennai Bench of the Tribunal referring the matter to Larger Bench.

Held: It becomes difficult to accept the contention of the appellants that what has been determined and reported by the laboratories (Load Port Report) is residual moisture even though laboratories specifically mentioned moisture content as inherent moisture. Reports of laboratories are expected to follow international standard and in these cases, the appellants are disowning the reports on the basis of which they have purchased coal and have used test reports for the purpose of determination of quality, price etc. (para 9)

It can be seen that there is a High Court decision, two final orders of the Tribunal and the decisions of the Mumbai Bench ordering pre -deposit and also observations in paragraph 7.3 of the order of Chennai Bench based on standard text which show residual moisture as well as inherent moisture are determined and only difference is in temperature and both are different. What is required to be arrived at GCV (moist mineral free) and this moisture mentioned in GCV is apparently inherent moisture - Appellants directed to deposit 50% of the duty along with proportionate interest (para 11& 12).


Gem Granites Vs CCE (Dated: April 16, 2015)

Customs - Exemption - Benefit denied in adjudication on the ground that the intention of the notification is to manufacture articles of granites for exports whereas Appellant simply exported the granite blocks - Commissioner (Appeals) ordered pre deposit of 50% of duty demanded, same agitated herein.

Held: Appellant is directed to make a predeposit of Rs.1,00,00,000/- (Rupees One Crore only) in five equal monthly instalments of Rs.20 lakhs each by 30th of each month, beginning 30.05.2015 - Consequent upon the deposit of all the instalments, appellant shall move an application to Commissioner (Appeals) to fix the hearing, upon receipt of which, verifying the deposits, the authority shall hear the appellant both on facts and law and pass a reasoned and speaking order. [Para 3, 4]


Rashid Yakub Shaikh Vs CC (Dated: March 20, 2015)

Cus - Adjudicating authority held that the importer had mis-declared the goods as to the value and quantity of smuggling - appellant is not a Partner of the CHA firm - in his statement, CEO stated that the appellant used to bring business to them and the documents of the present importer were also brought to them by appellant - Adjudicating authority holding appellant liable to penalty of Rs.1 lakhs u/ss 112 & 114AA of Customs Act - appeal to CESTAT. Held: There is no finding against the appellant of having aided and abetted smuggling, save and except preparation of the purported letter on beahlf of the Shipper on his computer - following the Division Bench decision in Pradeep Mehta - 2009-TIOL-127-CESTAT-MUM composite penalty imposed on appellant set aside - Appeal allowed: CESTAT [para 5]


CC Vs M/s Luna Infraprop Pvt Ltd (Dated: May 7, 2015)

Cus - Assessee entered into an agreement with GIPL for supply of certain equipments and materials for power plant - Assessee claimed refund paid by them as 4% SAD (CVD) on imported goods at Mundra in terms of Notfn 102/2007-Cus, as amended by Notfn 93/2008-Cus - Assessee passed the title of goods and certificates to project authority by raising invoices - Sales tax authorities accepted the sale of goods on the basis of invoices and confirmed payment of CST - Title of goods was transferred to M/s GIPL as soon as invoices were raised to M/s GIPL - Finance arranged by M/s GIPL cannot be the basis to hold that there was no sale of goods - Arrangement of finance is within the domain of sale and purchase of two parties, which are common in nature - Benefit of exemption notfn cannot be denied - Customs authority cannot go beyond sale transactions by disputing nature of sales - No reason to interfere orders of both authorities below - Appeal rejected: CESTAT


Haberdashery Products Pvt Ltd Vs CC (Dated: December 17, 2014) Cus - Assessee had imported machines for manufacture of Slide Fasteners against EPCG Licence - SCNs were issued for demand of duty as assessee failed to discharge export obligation - Assessee admitted that they have exported goods worth of only Rs 50.68 lacs, which is not more than 5% as per licence - Assessee in their appeal contended that they have fulfilled export obligation partly - Even though, there was a short fall of fulfilment of export obligation - Said fact was not placed before lower authorities - No reason to interfere order of Commissioner (A) - Accordingly, appeal filed by assessee is rejected: CESTAT


Shri Virender Bansal Vs CC (Dated: January 7, 2015) Cus - Imports has been made duty free and goods have been diverted into domestic market which were not required so by importer - It was found that all these goods were purchased by Shri Vinod Kumar Garg and the imports made through Shri Vinod

Kumar Bansal - It is an admitted case of fraud played by importers - For the imports made through ICD, TKD, penalties on appellants are not imposable as purchasers of imported goods approached Settlement Commission and settled the case there, therefore, proceedings against all co noticees come to an end - Appellants were not the parties to imports made through Mumbai port - As appellants were not the parties to SCN, therefore, question of imposing penalty do not arise - Impugned order qua imposing penalty on appellants is set aside and appeal allowed: CESTAT [Para 7, 8, 10, 12]


CC Vs Ceat Ltd (Dated: June 12, 2015) Cus - Penalty cannot be imposed upon importer for some misdeeds of employee of their clearing agent during customs clearance of their imported goods - As per Super Chemicals Ltd , appeal filed by Revenue is rejected: CESTAT


M/s Bumi Hiway India Pvt Ltd Vs CC (Dated: May 14, 2015)

Cus - Restoration of Appeal - Appeal dismissed for non prosecution vide Tribunal's Final Order No. 522/2011 dated 08.04.2011; ROA petition filed on the ground that the appeal should have been considered on merits in spite of non appearance in terms of the High Court ruling in the Viral Laminates case and the Apex Court ruling in the Balaji Laminates case.

Held: Considering the Apex Court ruling in the Balaji Laminates case, appeal restored to its original number.

2015-TIOL-1428-CESTAT-KOL

M/s Universal Clearing And Forwarding Agency Vs CC (Dated: May 14, 2015)

Cus - Suspension of license - Classification of "Silicon Electrical Steel Strips/scrap originated from old and used dismantled transformer" - Assessee filed in all BOEs for clearance of goods for importer-describing said goods as "Silicon Electrical Steel Strips/scrap originated from old and used dismantled transformer" under Tariff item 72044900 of first schedule of CTA, 1975 - Clearance of said goods was sought as scrap - Department views that impugned goods are used silicon electrical steel strips, being cleared under guise of scrap - Only upon establishing/determining whether impugned goods are steel strips or metal scraps, violation of Regulation 11 (d) of CBLR, 2013 on part of assessee CHA could be ascertained; a somewhat similar view was held by Calcutta High Court - Assessee is suffering as his livelihood is affected by not allowing him to operate his business as Customs broker, since his license was suspended on 19/11/2014 and confirmed on 04/12/2014 - Order of suspension stayed: CESTAT


Suj Impex Vs CC (Dated: April 15, 2015)

Customs - Valuation - CRGO Electrical steel sheet cuttings/strips imported by appellant alleged to be mis -declared and undervalued - investigation launched by DRI, statement recorded under Sec 108 of Customs Act 1962; undervaluation alleged in notice; demands confirmed and agitated herein.

Held:Settled law that Customs Officers are not Police Officers hence statement recorded under Sec 108 cannot be discarded - Duty liability undisturbed - lower authorities failed to make market survey to find out the sale value of the goods to ascertain quantum of profit possible to be made out of the consig nments; hence RF reduced to Rs.1,50,000 - the law casts obligation on the importer to make truthful declaration of description as well as value of goods imported - Any untruthful declaration renders the goods to be confiscated which was rightly done - imposition of penalty not considered to be unreasonable for which that is confirmed [Para 5.2, 6, 7, 8]


CC Vs M/s Sri Priya Graphics (Dated: April 18, 2014)

Customs - Valuation - Printing machine imported and declared value not accepted; first valuation report viewed unreliable and second report from Chartered Engineer obtained - confiscation, differential duty demand adjudicated, modified by Commissioner (Appeals) who upheld confiscation but reduced RF; now agitated by Revenue herein.

Held: Although there was no separate rule for valuation of import during the impugned period, Apex Court in the Siddachalam Exports case, held that the 1988 Valuation Rules shall also be applicable even to imports; hence Rule 10A was invoked, following of sequence of Rule 5 to 8 of 1988 Valuation Rules, 1988 - Materials on record indicates Commissioner (Appeals) has rightly appreciated the Rule relating to valuation of import; no material to suggest that the reduction of redemption fine and penalty was unreasonable when neither contemporaneous evidence was gathered by Revenue nor deliberate suppression of value was patent - no necessity to intervene in the impugned order. [Para 5, 6, 7]


M/s Raj Shipping Agencies Ltd Vs CC (Dated: June 15, 2015)

Cus - Merely having a winch does not lead to conclusion that the vessel is a tug - Supply and passenger ships can also have a winch - Certificate of Indian Registry and the clarification given by the Ministry of Shipping can by no means be discarded – 'Offshore Hunte r' is correctly classifiable under CTH 8901 & exempted under Not 21/2002-Cus r/w 20/2006-Cus – Appeals allowed: CESTAT [para 6.5, 6.7, 7]



K2 Machine Tools Pvt Ltd Vs CC (Dated: May 08, 2015)

Customs - Amendment to appeal memorandum - Impugned imports seized on reasonable belief that the appellant imported full injection moulding machinein the guise of parts with intent to avoid payment of Anti Dumping Duty (ADD) in terms of Notification No.47/2009 dated 12.05.2009 - Demand of ADD with penalty on the firm and Director under Sections 114A and 112(a) of the Customs Act 1962 adjudicated - Commissioner (Appeals) set aside the demands which was agitated by Revenue whereupon Tribunal remanded the matter to the original authority for de novo consideration; affirmed by Chennai HC in the first round of litigation -Original authority reconfirmed the demands for ADD and penalties in the second round; demand for ADD upheld by taking into consideration of amended Notification No. 39/2010 dated 20.03.2010; penalty/fine set aside by Commissioner (Appeals); and agitated in the present appeal both by Appellant and Revenue on corresponding portions - MA moved for amendment to allow re-export of the impugned goods and examined herein.

Held: Appellant has not made plea for re-export either before the adjudicating authority or before the appellate authority - since the period of five years were lapsed from the date of first import under the Bill of Entry, there is merit in the appellant's plea as very purpose for which they have imported the goods has not been served and hence they sought to amend their prayer to allow them to re-export the imported goods - Delhi High Court ruling in the case of ZTE Corporation and Tribunal's order in the case of Wrigley India not directly related to ADD whereas High Court has allowed to re-export in the above cases where the original importer has abandoned the goods and the supplier came forward to re -export - application for amendment is allowed; it is clarified that this amendment is subject to final outcome of their main appeal. [Para 9]

As regards the stay applications filed by the Revenue, since the goods are already under the custody of the customs and appellant undertakes that they will not clear the goods, there is no question of stay of operation of the impugned order. [Para 10]


CCE, C & ST Vs B Suresh Vasudev Baliga (Dated: January 13, 2015)

Customs - Section 114A - Non-payment of duty - Penalty - Enhancement - Scope of section - Section is applicable to a person who is liable to pay the duty ‘Or' interest so determined - Held the expression used is "or", which is disjunctive between duty or interest - Further use of expression "as the case may be" clearly suggests that the said section is referring to two different persons and situations namely, one who may be liable to duty and the other who may be liable to interest only and provides that in both the situations, the person liable to duty would be liable to penalty equal to duty and the person liable to interest would be liable to penalty equal to interest - Consequently, there is no warrant to read "or' as "and" - No infirmity in the order of Commissioner (A) - Revenue appeal hence rejected. (Para 3, 4)


M/s Sinosteel India Pvt Ltd Vs CC & ST (Dated: January 6, 2015)

Customs - Exporter of iron ore - Finalization of provisional assessment based on total FOB value - Bank realization certificate in error reflected the CFR value as FOB value - Addendum issued by the bank reflecting duty to be paid based on FOB was rejected by Commissioner for being undated - Held on facts that since the issue relates to verification of the documentary evidence, matter is remanded to the original adjudicating authority to examine the evidence placed by the appellant - Appeal allowed. (Para 5)


CCE & ST Vs M/s W G Impex (Dated: November 24, 2014)

Customs - Classification - Respondent imported "pop pop party snappers" , and claimed classification under CTH 9505 which covers festive, carnival or other entertainment articles, conjuring articles and novelty jokes - Revenue viewed the same classifiable under CTH 36041000 as fire crackers restricted for import as per F.T.P. 2009-14 and prohibited under Rule 7 & Rule 8 of the Explosive Rules 2008 and hence requiring for the import thereof permission/authorization from the DGFT and the Explosives Department - demands adjudicated, set aside by Commissioner (Appeals) and agitated by Revenue herein.

Held : Neither the CRCL nor the Controller of Explosives has given an opinion whether the impugned goods would fa ll in the category of explosives subject to various restrictions relating to explosives - original adjudicating authority has clearly erred in stating that his basis of classification of the impugned goods under CTH 36041000 is the CRCL report and the finding of Jt. Chief Controller of the explosives Faridabad - Commissioner (Appeals) concluded that the impugned goods would not fall under the category of fireworks without any test report to that effect and merely on the ground that the impugned goods contain very small quantity of silver fulminates and therefore would not be covered under the scope of explosives - This cannot be held to be a sustainable basis to so conclude specially in respect of goods which contain material covered under the Explosive Act, 1884 and in the absence of any yard stick referred to by Commissioner (Appeals) as to how small a quantity of fulminates of silver is adequately small to take the impugned goods outside the purview of explosives - whether the impugned goods would be covered in the category explosives or not can only be determined on the basis of (chemical) test by a competent authority - matter remitted to original authority with time bound directions to seek re -test by Explosives Department, share the result with the respondent and pass de novo order after hearing the respondent; customs authority to consider request for de-stuffing container. [Para 5, 7]


M/s Thameema Trading Corporation Vs CC (Dated: March 10, 2015)

Customs - Misdeclaration - maps, clocks and photo frames were imported under the guise of toys; confiscation and penalty adjudicated and agitated herein.

Held: Material fact established the goods to be smuggled goods under section 2 (39) of the Customs Act, 1962; confiscation upheld - appellant lost its entire right to ask Customs to adopt the value suggested by it when it smuggled the goods into India; Reasonable value adopted by Customs, not rebutted with evidence by appellant - considering reasonable margin in the trade of plastic toys, the redemption fine is reduced to Rs.1,00,000/- Misdeclaration being patent upon concealment and deliberate misdeclaration of description and value of the goods, the amount of penalty imposed by Authority below is justified since interest of Revenue is prejudiced; same left untouched by this order [Para 5.1, 5.2, 6, 7]


M Rajamani Vs CC (Dated: October 21, 2014)

Customs – Confiscation – Customs officers searched the appellant's premises and recovered unaccounted Indian currency, stated to be proceeds from the sale of smuggled gold - By the impugned order, the adjudicating authority absolutely confiscated the Indian currency under Section 121 of the Customs Act, 1962 holding that they represent the sale proceeds of contraband gold; and imposed penalty on the appellant amongst others; agitated herein.


CC Vs Akbar Knitting Company (Dated: April 10, 2015)

Cus - Interest - respondent, a regular exporter of cotton garments had imported Polyurethane Spandex Yarn/Lycra Spandex Yarn under 2 DEEC Advance licences and claimed duty free exemption under Notification No.204/92 dt. 19.5.92 - duty demand with interest and penalty adjudicated on the ground that there is short fall in the export obligation - Issue reached Tribunal, who remanded to the original authority for re-computation of duty and penalty - adjudicating authority in the de novo proceedings re -worked out the shortage quantity; re-determined the duty and also demanded interest along with penalty - Commissioner (Appeals) set aside the interest, agitated by Revenue herein.

Held: When the adjudicating authority had discussed the issue of non-fulfilment of obligation in detail in the OIO, whereas LAA has not brought out any clear findings but merely said that in the absence of any provision in the said notification, interest is not demandable - no dispute on the facts that the respondent imported goods and cleared duty free and violated the conditions of DEEC Advance licence and the conditions of Notification No.204/92 - In the case of Pratibha Syntext Ltd. Vs UOI, High Court of Bombay held that customs authorities are entitled to recover customs duty and interest for the breach of Notification No.204/92 - Supreme Court in the case of Rexnord Electronics and Controls Ltd. clearly held that interest payable under bond is not interest payable under the Act - the demand of interest for non-fulfilment of condition under Notfn. No.204/92 has attained finality with these rulings - demand for interest confirmed by original authority restored. [Para 7, 8, 9]


Shri K Natarajan Vs CC (Dated: March 20, 2015)

Customs - Stay / dispensation of pre deposit - Penalty under Sec 117 of the Customs Act 1962 on CHA contested on the ground that separate action initiated under CHALR and adjudicating authority cannot invoke Sec 117 which is residuary provision.

Held: In the case of valuation of export goods, role of CHA is not involved under the provisions of CHALR - this is the case where Section 114 of the Customs Act has not being invoked against the appellants for imposition of penalty for fraudulent exports or any provision under Section 113 of the Customs Act - Both in the show cause notice and in order-in-original, the adjudicating authority has not invoked Section 114 of the Customs Act but imposed penalty under Section 117 of the Act - Prima facie, the appellants have made out a case for waiver of pre-deposit of penalty; Accordingly, in both the appeals pre-deposit of penalty is waived and its recovery sta yed till the disposal of the appeals [Para 4]


M/s HCL Infosystems Ltd Vs CC (Dated: June 16, 2015)

Cus - Refund of SAD - Notfn. 102/2007-Cus - Merely because the sales contract with Western Railway mentions that the same includes all taxes and freight, it cannot be said that SAD has been recovered from WR when the fact remains that the CA certificate shows the amount as re ceivable from Customs in Balance sheet - Importer not unjustly enriched - refund to be granted within a period of 60 days from the date of receipt of a copy of this order along with interest - Appeal allowed with consequential relief: CESTAT [para 5, 5.1]



M/s Threestar Solutions & Services Pvt Ltd Vs CC (Dated: June 26, 2015)

Cus - Rejection of application for grant of Customs Broker's licence - only Customs broker can file appeal u/s 129A of the CA, 1962 before CESTAT against order of suspension or revocation of licence - Applicants are not Customs brokers - prima facie appeal against rejection of application for grant of Customs Broker's Licence does not lie before Tribunal: CESTAT [para 2, 2.1]



M/s OTA Falloons Forwarders Pvt Ltd Vs CC (Dated: March 13, 2015)

Cus - Penalty on CHA - s.112 of the Customs Act, 1962 - There is no evidence on record to show that the Appellants were aware of the fact that the Licence was tampered and the status of the importer was changed to manufacturer/exporter - The goods were cleared and after clearance of the goods, the same were handed over to the transporter as per instructions of the importer - In the absence of any evidence having knowledge of tampering of the Licence or the role of the Appellants in diversion of the goods in the local market, imposition of penalty is not substantiated -

Appeal allowed: CESTAT [para 5]


CC Vs A S Imports (Dated: May 6, 2015) Cus - Valuation - O-in-O mentions ‘I find merit in the contentions of the Department that the value of the goods "appeared to be low"' - There is no basis as how the adjudicating authority found merit in the contentions of the Department and in any case he only stated that the value "appeared very low" - case has travelled upto Commissioner (Appeals) twice and even the second time, the adjudicating authority failed the requirement of passing a speaking order complying with the directions of the Commissioner (Appeals) passed in the first round - In these circumstances, the impugned Order-in-Appeal suffers from no such infirmity - Revenue appeal rejected: CESTAT [para 4] 2015-TIOL-1335-CESTAT-BANG

JJ Exporters Ltd Vs CC & ST (Dated: March 2, 2015) Customs -100% EOU - Eligibility ofinput credit -Expenses like bank charges, CA services, CHA services, Cargo Services - Qualify as input services required and in relation to manufacture and clearance of final products as no contrary evidence produced - Credit is admissible.(Para 4)

Customs - Denial of refund -Claim allegedly based on improper bills - Appellant has taken credit on the basis of invoices issued by Input Service Distributor (ISD) - Adjudicating authority has to examine eligibility of input credit based on correctness and details contained in ISD invoice - Invoices listed the name of the Input Service Distributor, address and the Unit particulars, the details of credit passed on with the details of service providers and the credit - Said invoices appear to fulfill the requirement of the law - In the circumstances, denial of the credit and the refund on the ground that the bill is not in the name of the unit is unsustainable - Since there is no discussion at all about ISD invoice and the correctness thereof, the original authority is directed to consider whether ISD invoice is in accordance with law or not - Appellant is also directed to produce evidence demonstrating what kind of expenses were incurred and what kind of services were received and how they are related to the final product by giving the brief note - Appeal allowed by way of remand to original authority to determine claim of refund afresh based on the evidence furnished. (Para 4)


CC Vs M/s Genuine Trade International (Dated: May 29, 2015)

Cus - Adjudicating authority held against the assessee and ordered that the valuation of the goods imported for CVD purpose is put u/s 4A of CEA, 1944 since the imported consignment is classifiable under CTH 3506 9190, goods confiscated, Redemption fine imposed along with penalty - Commissioner(A) holding that a perusal of the packing list reveals that goods are in bulk packing of 20 kgs but not in retail packing such as 3 gms/50 gms/100 gms/500 gms etc. and hence goods are not covered under SWAM Act, 1976; in view of Board Circular 625 goods are to be assessed as per s.4 of CEA, 1944 and not as per s.4A of CEA, 1944 - Revenue in appeal. Held: as regards factual finding recorded by the lower appellate authority Revenue's grounds of appeal does

not have any controverting evidence - besides mentioning that there is a statutory requirement to declare retail price under the PCR, 1977, there are no other grounds of appeal urged - order is correct and legal and is upheld - Revenue appeal rejected: CESTAT [para 4, 5]


Ramesh Dalmia Vs CC (Dated: April 27, 2015) Cus/CEA - s.129E, 129B of CA, 1962 - s.35F, s.35C(2A) of CEA, 1944 - Any stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeal and there is no need for filing any further applications for extension - Tribunal decision in Venketeshwara Filaments - 2014-TIOL-2388-CESTAT -AHM followed - Application allowed: CESTAT [para 2, 3]


CC Vs M/s Genuine Trade International (Dated: May 29, 2015) Cus - Adjudicating authority held against the assessee and ordered that the valuation of the goods imported for CVD purpose is put u/s 4A of CEA, 1944 since the imported consignment is classifiable under CTH 3506 9190, goods confiscated, Redemption fine imposed along with penalty - Commissioner(A) holding that a perusal of the packing list reveals that goods are in bulk packing of 20 kgs but not in retail packing such as 3 gms/50 gms/100 gms/500 gms etc. and hence goods are not covered under SWAM Act, 1976; in view of Board Circular 625 goods are to be assessed as per s.4 of CEA, 1944 and not as per s.4A of CEA, 1944 - Revenue in appeal. Held: as regards factual finding recorded by the lower appellate authority Revenue's grounds of appeal does not have any controverting evidence - besides mentioning that there is a statutory requirement to declare retail price under the PCR, 1977, there are no other grounds of appeal urged - order is correct and legal and is upheld - Revenue appeal rejected: CESTAT [para 4, 5]


CC Vs M/s Liberty Impex (Dated: April 9, 2015)

Cus - Reduction of redemption fine and penalties imposed by adjudicating authority - Revenue in appeal against order of Commissioner(A). Held: Lower appella te authority has followed the Tribunal decision in the case of Garment India Corpn. dated 05.01.2006 wherein while dealing with the quantum of fine and penalty to be imposed in case of import of old and used garments has taken the fine and penalty amount a t 25% and 5% of the value respectively - no contrary view has been brought to notice by AR - Revenue appeal devoid of merits, hence rejected: CESTAT [para 6, 7]


Halliburton Offshore Services Inc Vs CC (Dated: May 11, 2015) Cus/CE - s.35F, s.35C(2A) of CEA, 1944 - s. 129E, s.129B(2A) of Customs Act, 1962 - Any stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeal and there is no need for filing any further applications for extension - Tribunal decision in Venketeshwara Filaments - 2014-

TIOL-2388-CESTAT-AHM followed - Application allowed: CESTAT [para 2, 3]


CC Vs Bhushan Steel & Strips Ltd (Dated: May 27, 2015) Cus - Whether Education Cess @2% is leviable on goods imported under Target Plus Scheme - It is not disputed that the customs duty liability has been debited in Target Plus licence issued - Goods imported under the Target Plus scheme is exempted from Basic and Additional Customs duty as per notification 32/2005-Cus - Circular no. 5/2005 relied upon by Revenue for imposition of Education Cess has been struck down as null and void by Gujarat High Court in Gujarat Ambuja Exports Ltd. 2012-TIOL-546-HC-AHM-CUS and this judgment was followed in case of Pasupati Acrylon and the SLP filed by Revenue was dismissed - Also as per clarification dt. 10.08.2004 of Board if the goods are fully exempted from customs & excise duty and chargeable to nil duty there is no collection of duty and no education cess is chargeable - no reason to interfere with the order passed by Commissioner(A) - Order upheld and Revenue appeal rejected: CESTAT [para 6, 6.1]


Bhatia Global Trading Ltd Vs CC (Dated: April 28, 2015) Cus - Classification of coal - Whether under "bituminous coal" falling under CTH 2701 1200 as claimed by the department or "steam coal" under CTH 2701 1920 as claimed by importer – Differential customs duty demand. Held: In the case of Mohit Minerals Pvt. Ltd. [order dt. 28.04.2015], Bench has taken a view that once the issue has been referred to the Larger Bench, as a convention, waiver of pre -deposit of amount involved needs to be allowed – Application for waiver of pre -deposit allowed and stay granted from recovery – Both sides at liberty to mention the matter as and when the LB comes to a conclusion on the issue: CESTAT [para 4]


Peak Scientific Instruments (india) Pvt Ltd Vs CC (Dated: May 14, 2015) Customs - Valuation - appellant is a 100% subsidiary of Peak Scientific Instruments Ltd. UK and imported spares for laboratory gas generators for their U.K Company - Special Valuation Branch, Customs House, Chennai ordered for provisional assessment of the goods as both the parties are related in terms of Rule 2 (2) (i) (ii) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - Adjudicating authority rejected the declared value; ordered for enhancement of invoice value to 39%; and directed finalization of assessment accordingly - appeal against the said SVB order rejected by Commissioner (Appeals) in the impugned order, who enhanced the percentage of loading from 39% to 65.125%; agitated herein.

Held: Appellant's main contention before the lower appellate authority (LAA) is to set aside the loading of 39% ordered by adjudicating authority whereas the LAA enhanced the percentage from 30% to 65.125% - appellants have submitted entire records of third party invoice which has not been taken into consideration - Revenue's contention that Section 128A inapplicable is not acceptable since Section 128(A) empowers Commissioner (Appeals) to confirm, modify or annul the order subject to the first and second proviso therein - If the LAA wants to enhance the penalty, fine or demand any duty such order shall be passed only after the appellant is given notice - In the present case even though there is no demand of customs duty but by enhancing the percentage of loading which has extra duty liability on the appellants and the enhancement had direct bearing on the increase of duty - it is mandatory on the LAA

to follow principles of natural justice before proposing for enhancement of value which the LAA has not followed - impugned order is set aside and the matter is remanded to Commissioner (Appeals) with a direction to decide the issue on merits after giving sufficient opportunity to the appellant, who is directed to co-operate with the proceedings and produce all the relevant documents before LAA - LAA shall pass appropriate orders on merit within a period of 6 months from the date of this order [Para 4]


Miraj Marketing Vs CC (Dated: January 16, 2015) Customs - illicit import of broadcasting / telecasting equipment of foreign origin - based on DRI investigations, proceedings initiated for seizure of 16 items of equipment; confiscation of the same adjudicated with redemption fine option under Section 125, and penalties imposed under Section 112 of the Customs Act on the main appellant, firms and individuals; some of whom agitated the OIO herein.

Held: Contention that ADG, DRI is not competent to issue SCN no longer in dispute consequent on retrospective amendment introduced to Section 28 of Customs Act wherein sub-section (11) has been inserted w.e.f 16.9.2011; hence the SCN is legally valid [Para 16]

The term "prohibited goods" defined under the Customs Act is not necessarily to mean the absolute prohibition of the import but it is to be considered as "prohibited goods" if the prescribed conditions under the Customs Act or any other law were not complied for importation of the goods - Even if the goods are not notified under section 123 of the Act, the goods are liable for confiscation if they have contravened any of the provisions of the section under Customs Act, as settled by the Apex Court in the case of Om Prakash Bhatia Vs CC Delhi [Para 19]

Department has carried out extensive verification and elaborate investigations on each and every transaction based on the purchase documents/bills produced by the appellants - abundantly clear that the department had pursued the trail from the last person who purchased the goods to the immediate seller - department had discharged its burden with so much evidence on record to prove that the impugned goods which are in possession of the appellants are illicitly imported without payment of duty; the onus is now on the appellants - goods are liable for confiscation and the adjudicating authority has rightly ordered for confiscation of the said goods under Section 111 (d) of Customs Act; same is upheld. [Para 21]

Taking into consideration that the impugned items are purchased or hired by the appellants and these were meant for their own use for rendering TV and broadcasting service and not for sale, the redemption fine imposed merits reduction - once it is held that the appellants contravened the provisions of the Act and the goods are liable for confiscation, the appellants are liable for penalty - As seen from the trail leading to involvement of 3 to 4 persons before the first appellant purchased/acquired on hire of these items, each person is unable to prove the licit nature of imports - appellants are liable for penalty under Section 112 of the Act; however, by taking overall facts and circumstances of the case and the submissions of each appellants, a lenient view is warranted for reduction in penalty - Quantum of fine a nd penalties reduced [Para 22, 23]


M/s Unison Clearing Pvt Ltd Vs CC (Dated: June 5, 2015)

Cus - CHALR - Time lines laid down in Regulation 22 are meant to quicken the enquiry proceedings and deliver speedy justice - they are to be considered 'directory' in nature since if they are considered 'mandatory' and the matter is closed on this basis, the purpose of the Regulations would get defeated and so would the intent of the Legislature - charge of subletting of license is not proved and it cannot be said that the license was transferred - It has not been established that persons other than the CHA pass holders of the appellant were working in the Custom House on behalf of the appellant - charge of violation of Regulation 22(n) which requires the CHA to be efficient is not on a strong footing and cannot be sustained - Except for a statement regarding undervaluation no concrete evidence is forthcoming against the CHA - Revenue has not been able to establish with any reasonable degree of certainty the violation of the Regulations for which they have charged the appellant - Circumstances do not call for revocation of the Licence which will deprive the CHA and his employees of the source of their livelihood - Revocation of licence as well as the forfeiture of the security deposit set aside & appeal allowed : CESTAT [para 4.2, 4.3, 5, 5.1, 5.2, 6]



M/s A R Overseas Tradecom Pvt Ltd Vs CC (Dated: February 13, 2015)

Customs - Misdeclaration - Appellant imported polyester and viscose knitted fabric from China - based on DRI alert, impugned imports were examined and excess quantity of viscose knitted fabric detected - goods confiscated in adjudication, under Sections 111(m) and 119 of the Customs Act 1962, with RF option; and penalty imposed under Section 112 (a); agitated herein.

Held:The quantity of the imported fabric was mentioned in the packing list as 20912 kgs and in the invoices as 20212 kgs and the importer had declared the quantity of imported fabrics in the Bill of Entry as per invoice - Commissioner has not examined as to whether the variation in weight of the imported fabrics was on account of moisture content or otherwise - there is no justification for not acceding to the importer's request for weighment of the imported fabrics before assessment - Commissioner has not considered the various issues raised by the Appellant, that is the issue of concealment, variation in weight on account of moisture, and request for weighment of the goods before assessment of the imported goods - He has not referred any evidence before discarding the transaction value and consequently, its enhancement - impugned order is cryptic and not speaking one; same set aside and remanded to Commissioner - in view of the request of the importer to weigh the goods before assessment, the said goods should be taken up for weighment in the presence of importer's representative, within 15 days from the date of receipt of this order and a copy thereof, should be provided to them - Commissioner is directed to address all the issues raised by both the parties and pass a fresh order after hearing them within one month from the date of weighment [Para 5, 6, 7]


M/s ITC Ltd Vs CC (Dated: May 14, 2015)

CX/CUS/ST - Sub-section 35C(2A) of CEA, 1944 did not give any power to grant stay; it only sought to put fetters on the power of the Tribunal to grant stay beyond a certain period - with the abolition of Section 35C(2A) w.e.f 06.08.2014, the power of the Tribunal with regard to grant of stay in no way got attenuated - Stay extended: CESTAT [para 3]



M/s International Cargo Services Vs CC (Dated: April 1, 2015)

Cus – Penalty on CHA u/s 114 of CA, 1962 - Appellant CHA has obtained proper authorization which is required under regulation 13 of the CHALR 2004 from the exporter, also verified the details of the exporter and also verified the IEC obtained by the exporter from DGFT - These are the three primary documents which are supposed to be verified on 1st instance while dealing with the new client - In the law it is nowhere required that before dealing with the new client the CHA is required to meet the client personally, but to verify the antecedents of the exporter which appellant has done in this case by verifying bank account, IEC and by obtaining proper authorization - Therefore, appellant has taken due care for knowing the antecedent of exporter - From the records it is not coming out that appellant was having any knowledge that the exporter was fraudulent and their shipping bill have been filed to claim undue drawback by overvalue of the exported goods - appellant has not violated the provisions of Customs Act or any other law for the time being in force – penalty imposed set aside – appeal allowed with consequential relief: CESTAT [para 7, 8]



Ruchika International Vs CC(Dated: June 4, 2015)

Cus - s. 114 of CA, 1962 - Over-valuation of export goods to claim higher DEPB - documents produced before Departmental officers were indicating the prices, which they felt were correct, and being recently posted may have lacked in training in clearance of export goods - violation to perform the duty of scrutinizing or examining, non-drawing of samples, at the best can be held as dereliction of duty which can be proceeded in terms of CCS Rules, 1965 - charge of abetment is not proved - Appeals allowed: CESTAT [para 6.5, 7]



Leelaram Arjandas Asudani Vs CC (Dated: June 04, 2015)

Cus - Import of Memory cards by post parcels - Order of the Commissioner does not elaborate as to how the goods were prohibited - show cause notice has not brought out any discrepancy in the declared quantity of the goods - confiscation does not sustain, penalties set aside - Appeals allowed: CESTAT [para 7, 9]

Also see analysis of the Order


Shri Nand Kishore Sharma Vs CC (Dated: February 25, 2015)

Cus - s.129A of Customs Act, 1962 amended by FA, 2014 - Pre -deposit fixed under

the statute @7.5% of the penalty imposed is mandatorily required to be paid by appellant - Tribunal cannot condone the amount fixed - Miscellaneous application is dismissed, however, appellant allowed more time to make pre -deposit of 7.5% and report compliance: CESTAT [para 3]


Mr Pankaj Kumar Das Vs CC (Dated: May 18, 2015)

Cus - Department has reopened the matter on a different issue of valuation after the Settlement Commission had passed its final order - In terms of s. 127J of Customs Act, 1962 every order of the Settlement Commission is conclusive and no matter covered by such order shall be reopened in any proceedings under the Customs Act or under any other law for the time being in force - Therefore, the decision of Customs authorities in re-opening the case is questionable - Matter remanded to Commissioner(A) who is to hear the appeal on merits without insisting for any pre -deposit: CESTAT [para 3, 4]



M/s Sun Clearing And Forwarding Services Pvt Ltd Vs CC (Dated: April 1, 2015)

Cus - Restoration of CHA Licence - Application by CHA for implementation of earlier order of Tribunal - Revenue has filed a report from Commissioner concerned wherein it is stated that Revenue being aggrieved by order of Tribunal has filed Customs Appeal before Bombay High Court - in view of Bombay High Court order in West End Shipping Agency 2015-TIOL-83-HC-MUM-CUS, Commissioner is directed to implement the order of Tribunal with immediate effect within 3 days of service of a copy of this order subject to final outcome of appeal of Revenue before High Court - Application allowed: CESTAT [Para 3, 4, 5]


CC Vs M/s Sesa Goa Ltd (Dated: April 18, 2015)

Customs -Valuation -issues agitated by Revenue herein are whether (1) the impugned export goods viz. Iron Ore Fines, are to be assessed by adopting the FOB price as assessable value or treating the said price as cum duty value, for goods exported by the Respondent for the period after 01.01.2009; (2) duty be calculated on 'Wet Weight' basis, under which the Assessee/Respondent agreed to supply the goods to the overseas purchaser or on the transaction value of the goods on 'Dry Weight' basis for the period after 13.06.2008; and (3) goods be assessed by adopting the transaction value or on the basis of Bench -Marked Price published by the China Chamber of Commerce of Metals, Minerals and Chemicals (CCCMMC).

Held: (1) Tribunal had already decided the issue of determination of duty of export goods, namely, Iron Ore Fines, and observed that for the period after 01.01.2009, the said goods be assessed to duty adopting the FOB Price - issue is decided in favour of the Revenue and against the Respondent [Para 4]

(2) Dispute on Assessment of export goods whether on 'Dry Weight' or on 'Wet Weight' basis, for the period after 13.06.2008, has been decided by this Tribunal in favour of the Assessee/Respondent, observing that the export goods namely, Iron Ore Fines, be assessed to duty, adopting the criteria of 'Dry Weight', as agreed to between the Assessee/Respondent and the overseas purchasers [Para 5]

(3) Following precedent, for determination of the value, instant case is remanded to the Adjudicating Authority for deciding the issue afresh after supplying the relevant data to the Respondent, after allowing reasonable opportunity; preferably within three months from the date of communication of this Order [Para 6]


M/s Naresh Kumar Meena Vs CC (Dated: May 12, 2015)

Cus - Revocation of CHA licence - It is alleged that assessee has sublet their CHA licence by allowing various G and H card holders to carry out their business - All G and H card holders are employees of assessee - Apart from employment of assessee these G and H card holders are providing certain other services to exporter/importers for that they are provided directly dealing with importer/exporter but for custom clearances they are working as G and H card holder of assessee and in said capacity they are filing documents - Charge of subletting stands not proved - Assessee is out of business from last more than three years and said punishment is sufficient and same view has been taken by Tribunal in case of Peak Agencies - 2015-TIOL- 558-CESTAT -MUM - I mpugned order set aside and appeal allowed: CESTAT [Para 6, 9, 10]


Rajesh Pokharkar Vs CC (Dated: May 8, 2015)

Cus/CEA – s.129E, 129B of CA, 1962 - s.35F, s.35C(2A) of CEA, 1944 - Any stay order passed by the Tribunal, if it is in force beyond 07.08.2014, it would continue till the disposal of the appeal and there is no need for filing any further applications for extension - Tribunal decision in Venketeshwara Filaments - 2014-TIOL-2388-CESTAT -AHM followed - Application allowed: CESTAT [para 2, 3]


Nuance Group (India) Pvt Ltd Vs CCE, C & ST (Dated: February 20, 2015)

Customs - Duty Free shop - Seizure of foreign made liquor bottles from emigration police allegedly delivered without air sealed packs - Held, air sealed packing can only be one of the precautions as such omission is merely procedural in nature - Apparently seller has no control over the international passenger as to what he does with the bottle once sold - More over, there is no allegation that the bottles have been sold to persons who are not entitled to purchase from the duty-free shop - On facts, it cannot be said that appellant has rendered the goods liable to confiscation as such deserves a lenient treatment - Penalty hence set aside. (Para 4)


Malu Paper Mills Ltd Vs CCE (Dated: April 6, 2015)

Cus - s.35C of CEA, 1944 - Extension of stay sought on the ground that appeals have not come up for disposal before the CESTAT for no fault of appellant. Held: In view of Tribunal decision in Venketeshwara Filaments - 2014-TIOL-2388-CESTAT -AHM any stay order passed by the Tribunal, if it is in force beyond 07/08/2014, it would continue till disposal of appeal and there is no need to file any further applications for extension of orders granting stay either fully or partially - Application allowed: CESTAT [para 2, 3]


Foods, Fats And Fertilisers Ltd Vs CCE, ST & C (Dated: January 9, 2015)

Customs - Refund of duty paid on palm oil imports processed and cleared - Differential value between the time bill of entry and time of removal - Sufficiently evidenced by the invoices and certificate issued by Chartered Accountant - Original authority also observed the appellant showed the amount as receivables from customs - More so, since appellants were not selling goods as such but only after processing, on merits also eligible for refund - Impugned order set aside and appeal allowed with consequential relief. (Para 2, 3)


CC Vs M/s Mayfair (Dated: March 23, 2015)

Customs - Demand - issue relates to importation of second-hand photocopiers without licence - Adjudicating authority has enhanced the value, imposed penalty of Rs.4,10,000/- under Section 112 (a) of the Customs Act, 1962 and redemption fine of Rs.4,30,000/- under Section 125 ibidem - the lower appellate authority passed the impugned order by reducing the fine and penalty to Rs.2,70,000/- and Rs.90,000/- respectively, agitated by Revenue herein.

Held: Revenue has come on appeal only against reduction of fine and penalty by lower appellate authority - the only reason put forth by Revenue is that the appellant is an habitual offender and no other ground were put forth to substantiate the same - OIO clearly stated that the offence committed by the respondent is for the first time and accordingly imposed penalty; fact on record has not been disputed by Revenue - lower appellate authority, while reducing the fine and penalty has taken into consideration, the High Court's order in the case of Sai Copiers - no infirmity in the reduction of fine and penalty by the lower appellate authority, which is upheld. [Para 5]


CC, CE & ST Vs M/s Marks International (Dated: May 27, 2015)

Cus - As the adjudicating authority had already passed an order in remand proceedings consequent upon Revenue appeal before the Tribunal, when the appeal of the importer came up before the CESTAT the appellant should have informed the Bench the factual position - Order of CESTAT passed in the matter of appeal by importer is, therefore, non-est in the eyes of law: CESTAT [para 3, 4]



M/s Global Exim Vs CC (Dated: March 23, 2015)

Cus - Revalidation of ‘Duty Free Import Authorisation (DFIA) Licences' - Customs authorities taking a view that only DGFT has proper jurisdiction to revalidate licences. Held: Lower authorities have misread the provisions of law - as per para 2.13.1 of the HoP, only the licensing authorities can permit the revalidation of freely transferable DFIAs - but it should be fairly understood that adequate justification for revalidation has to be made available to DGFT and this information can be made available only by Customs - appellant has merely sought a statement to be issued by Customs to the

DGFT certifying that the admissibility of import of Boric Acid against DFIAs licences remained in litigation - Denial of benefit under the scheme only because of expiry of licence due to refusal by Customs to allow import of such goods under the licences and their resultant non-utilization would amount to denial of substantial benefits - now that the goods have been permitted to be imported against such licences by the Tribunal and the B/E finalised, the applicants must get the favour of revalidation for all licences held by them during the period of litigation - Department directed to issue certificate to DGFT for the purpose of revalidation of licences - Appeal allowed: CESTAT [para 6, 9, 12]


Y S Enterprises Vs CC (Dated: February 9, 2015)

Cus – Classification – Import of Polyester bonded fabrics – Appellant seeking classification under CTH 5907 0099 - adjudicating authority classified the goods under CTH 55151230 and also enhanced the value from US$ 0.025 per meter to US$ 0.55 per meter and as a result confirmed the customs duty demand of Rs.49,85,178/- and also imposed penalty – redemption fine also imposed – Appeal to CESTAT.

Held: CTH 5907 covers textile fabrics which are otherwise "impregnated, coated or covered" - CRCL report clearly brings out the nature of the goods which is woven fabrics of polyester spun ya rn bonded (with adhesive material) with knitted fabric of polyester filament yarn - IIT Delhi report is not at all in disharmony with the CRCL report as far as their applicability for the purpose of classification of the impugned goods is concerned - CRCL report clearly brings out the nature of the goods which is woven fabrics of polyester spun yarn bonded (with adhesive material) with knitted fabric of polyester filament yarn - it is contextually clear that chapter 59 is not to apply to two layers of textile fabrics (that too of the same material) on the ground that woven textile fabrics of polyester is covering knitted textile fabrics of polyester - A material cannot be said to covering itself to be called covered material - it cannot be said that the impugned goods are covered textile fabrics - Once goods are held to be not covered under CTH 59.07, their classification under CTH 55.15 is too obvious to need even a line of discussion - issue of valuation was not raised by them during hearing before CESTAT - adjudicating authority has recorded reasons for enhancing the value which essentially remain unchallenged/uncontested and also do not suffer from any apparent disability – no infirmity in order – Appeal dismissed: CESTAT [para 6, 8, 14, 15]


M/s Arvind Fashions Ltd Vs CC (Dated: February 11, 2015)

Customs - Exemption - Appellant imported leather labels and claimed benefit of notification No. 20/99-Cus. dated 28.2.1999 - Revenue viewed that the exporter was not bonafide, no goods were exported making use of the labels imported; that appellant was disentitled to the exemption - duty demands with interest and penalty adjudicated; dispute reached High Court who remanded it for de novo consideration, herein.

Held: Bonafide character of the exporter is essential to avail the duty exemption under Sl. No. 83 of the Notification - individuals admitted in their statements that majority of the jeans manufactured by appellant using the labels imported were sold in domestic market - When the appellant frustrated the object of the notification without earning foreign exchange for this country it cannot be said that the imports were bonafide - not possible to hold that the imports were made by bonafide exporter; Benefit of the notification is rightly deniable to the appellant. [Para 5.1, 5.2 & 5.3]


Voith Paper Fabrics India Ltd Vs CC (Dated: March 17, 2015)

Cus - Enhancement in value by Customs Valuation Branch - Commissioner(A) dismissing appeal on the ground of being time barred and that in view of Board Circular 29/2012-Cus the appeal should be filed before the jurisdictional Commissioner (Appeals), New Delhi. Held: Commissioner(A) has misread the provisions of the law as well as the Board Circular referred - Any appeal against assessment order passed by Customs at JNCH will lie to the jurisdictional Commissioner(A), Nhava Sheva - matter is, therefore, remanded for f

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