HIGH COURT RULING (CUSTOMS) - Taxindiaonline.comtaxindiaonline.com/RC2/pdfdocs/headnotes_index/Index_jan_aug_2015… · HIGH COURT RULING (CUSTOMS) 2015-TIOL-1991-HC-DEL-CUS CC Vs

HIGH COURT RULING (CUSTOMS) 2015-TIOL-1991-HC-DEL-CUS

CC Vs Orion Enterprises (Dated: August 25, 2015) Cus - Once there is a report of the Agmark Laboratory clearly stating that the samples did not conform to the requirements of the Basmati Rules inasmuch as the presence of other rice exceeded the maximum permissible limit of 20%, then the Customs Authority was bound by such report - Tribunal order set aside & Revenue appeal allowed: High Court [para 13, 14, 17, 18]

Also see analysis of the order

2015-TIOL-1986-HC-KAR-CUS

K Abdulla Kunhi Abdul Rahaman Vs Addl CC (Dated: April 22, 2015)

Customs - Confiscation - Show Cause Notice under Section 124 received by the Petitioner after expiry of six months' time limit as prescribed under Section 110(2) - Petition seeking release of gold seized on the ground of delay in issue of Show Cause Notice.

Held: The High Court of Madhya Pradesh in Ram Kumar Aggarwal's case while interpreting Sections 110(2) and 124 of the Act has held issuance of Show Cause Notice by registered post before the expiry of six months from the date of seizure would be sufficient compliance more particularly when the same is received by the addressee though after lapse of six months. It has been further held that neither Section 110(2) nor clause (a) of Section 124 of the Act contemplates service of notice in strict sense should be within a period of six months. Judgment rendered by the High Court of Madhya Pradesh has since been affirmed by the Apex Court - Following the same, it is held that the Petition has no merit. (para 15)


2015-TIOL-1959-HC-MAD-CUS

M/s Vamadev Exports Vs Commissioner (Appeals) (Dated: July 22, 2015)

Customs - EPCG Scheme - Bank guarantee encashed on the ground of non-fulfilment of Export obligation for a block period - Petitioner ultimately discharged export obligation and sough refund of the amount realised through encashment of bank guarantee - Refund rejected on the ground of time bar which is challenged in the Writ Petition - Held: Settled law that the bank guarantee cannot be regarded as equivalent to payment of duty and it is only furnished to safeguard the interest of the revenue in case of non fulfilment of export obligation -Impugned order is set aside - The respondent is directed to refund the amount of within one week from the date of receipt of a copy of this order - However, the petitioner is not entitled to claim the interest in the light of decision in M/s.Areva T&D India Limited's case (Para 9 & 10).


Commissioner of Customs Air Port and Air Cargo Complex Vs M/s Pfizer Products India Pvt Ltd (Dated: August 13, 2015)

Customs - Interest on delayed refund under Section 27A of the Customs Act, 1962 - Revenue in appeal against the order of Tribunal granting interest after expiry of three months from the date of claim - Contention of revenue is that interest is payable only after expiry of three months from the date of Supreme Court order in favour of the assessee.

Held: From plain reading of Section 27A, it is clear, that interest would be payable if the amount is not refunded within three months from the date of the application. The rate of interest would vary from 5% to 30% per annum, as may be fixed by the Central Government by Notification from time to time. Explanation immediately after the proviso in the said Section only means that the liability to pay the amount would arise after the order of refund of the amount is finalized, either in appeal or by the Commissioner, Tribunal or the Court, but such liability would be from three months after the date of application. The same cannot be interpreted that the liability to pay interest would be from the date of the order of the Tribunal or the Court, which may be passed in appeal. (para 11)

While considering a similar case under the Central Excise Act, the Apex Court in Ranbaxy Laboratories Ltd., - 2011-TIOL-105-SC-CX has interpreted under Section 11BB as well as the Explanation of the said Section in the same manner as has been held by the Tribunal. The provisions of Section 11BB of the Central Excise Act, 1944 and Section 27A of the Customs Act are parimateria. (para 12)

No substantial question of law arises in this appeal for determination - Appeal dismissed - Appellant directed that besides the payment of interest from 24.03.1999 (which is three months after the date of application for refund of customs duty filed by the respondent) till the actual date of the payment, which shall be at such rates notified from time to time, the appellant shall further be liable to pay additional interest at the rate of 9% per annum (besides the notified interest) on the amount which is found liable for payment as on 13.04.2011, till its actual payment. (para 15)


2015-TIOL-1936-HC-P&H-NDPS

Zile Singh Vs State Of Haryana (Dated: May 29, 2015)

NDPS -Based on intelligence that appellant Zile Singh was habitual seller ofcharas and was present near the watercourse, a police party apprehended him in the presence of a civil gazette officer and detected 500g of charas in his pocket - the material was seized; sample sent to forensic lab confirmed it to be charas - After completion of required formalities and finding a prima facie case for the offence punishable under Section 20(b) of NDPS Act, the appellant was charge-sheeted; statement under Section 313 CrPC recorded; to which he pleaded not guilty and claimed trial-contentions that (i) the prosecution case suffers from material discrepancies;(ii) SI Ram Chander being complainant, was not entitled to investigate the case;(iii) no independent witness was joined during investigation of the case; and(iv) the provisions of Section 50 NDPS Act were not complied and the offer of search given to the appellant suffered from material discrepancy to the effect that he was not apprised to get himself searched before a Magistrate; discarded by trail Court - appellant convicted for the offence punishable under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985; sentenced to undergo rigorous imprisonment for five years; pay a fine of `40,000, and in default thereof, to undergo further imprisonment for a period of two years - Trial Court ruling is agitated herein.



Senior Intelligence Officer Vs K P Karunamoorthy (Dated: June 18, 2015)

Customs - EPCG Scheme - Export Obligation Discharge Certificates obtained by fraudulent methods - Petition filed by the department against the anticipatory bail granted by the Principal District and Sessions Judge.

Held: The dictum laid down by the Supreme Court would clearly show that once anticipatory bail is granted, the same cannot be cancelled in a mechanical manner. Only if there is any abuse of concession granted to the accused, then only the court can cancel the anticipatory bail. In the instant case, even according to the revenue, it is not the case of the petitioner that the respondent is abusing the concession granted to him. On the other hand, it is the submission is that the reasons assigned by the Court below for granting anticipatory bail to the respondent are factually incorrect. The said submission will not serve as a ground for cancellation of anticipatory bail granted to the respondent - Petitioner has not made out any case to cancel the anticipatory bail. (para 10)

2015-TIOL-1934-HC-MAD-CX

Kovaai Silicates Vs CESTAT (Dated: July 23, 2015)

Central Excise -Non prosecution - duty demand on Sodium Silicates cleared on job work basis confirmed with interest and penalty in adjudication, upheld by Commissioner (Appeals) and agitated before the Tribunal, who dismissed their appeal for non prosecution - impugned Tribunal order agitated herein.

Held: considering the number of adjournments already granted in the case and the number of occasions on which the case was adjourned at the instance of the appellant/assessee and having regard to the different reasons, which were compelling in nature for which the adjournment were sought for, the Tribunal ought not to have dismissed the appeal for non-prosecution and ought to have considered granting one more opportunity to the appellant/assessee to prosecute its case - no reason to arrive at a conclusion that the assessee was not interested in prosecuting the appeal, depriving the assessee of its right to prosecute the appeal on merits - impugned order set aside and the matter is remanded back for fresh disposal on merits and in accordance with law - The appellant/assessee is directed to co-operate with the Tribunal for earlier disposal of the appeal, without seeking further adjournments [Para 4, 5]


CCE Vs M/s Super Spinning Mills Ltd (Dated: June 26, 2015)

Customs - 100% EOU - Demand of duty on Cotton imported under Notification No 53/97 Cus dated 03.06.97 on the ground that the wastage was more than the prescribed norms - Appeal by revenue against the order of Tribunal confirming lower authority's finding on limitation under Section 28 of the Customs Act, 1962 - Contention that the demand was made under Section 72 and mentioning wrong provision of law will not invalidate the Show Cause Notice.

Held: It is not the case of the Department that the provision has been wrongly quoted. Factually, there is no allegation or material to support the invocation of Section 72 of the Customs Act. The claim of the Department to demand duty was not in terms of Section 72 of Customs Act. The entire exercise of the Department was on the question of invoking the extended period of limitation. A passing reference to Section 72 will not cure the defect because the assessee or the importer was not put

on notice in respect of the charge or demand for duty in terms of Section 72 of the Customs Act. ( para 11)

Assuming that Section 72(1 )( d) of the Customs Act would apply, there is no material to support such a plea in the show cause notice. As the exact nature of the contravention for invoking Section 72 is absent, on facts, the Original Authority, the Appellate Authority as well as the Tribunal have correctly come to the conclusion that the allegation of the Department against the first respondent/importer is only in respect of willful suppression, which has been found against the Department and in favour of the assessee - No reason to interfere with the order of the Tribunal (para 13 & 14).

2015-TIOL-1909-HC-MP-CUS

M/s Shivam Marketing Vs UoI (Dated: August 13, 2015)

Cus - Mere existence of power of confiscation not sufficient to justify harsh conditions unless case for confiscation is shown -Order to retain 25% of value of goods (seized) as security in lieu of Bank Guarantee is highly onerous condition which makes relief of provisional release nugatory -order stayed to the said extent - Application allowed: High Court [para 14, 15]


2015-TIOL-1889-HC-DEL-NDPS

Annastancia Bhule Ndlovu Vs Narcotics Control Bureau (Dated: August 3, 2015)

Whether leniency can be shown to the assessee, in case it is admitted position that the controlled substance was being carried by him in a secret compartment of her luggage - NO: HC


Superintendent of Customs Vs Smt Sareebdeen Juwairiya (Dated: July 29, 2015)

Customs - Petition by the department challenging the order of Additional Chief Metropolitan Magistrate declining to remand the accused on the ground of lack of jurisdiction.

Held: An identical issue came for consideration way back in the year 1992 itself and has been settled by the High Court in Senior Intelligence Officer, Directorate of Revenue Vs. M.G. Ranganathan - After discussing various provisions of Code of Criminal Procedure, it is held that the Officer arresting the accused has to produce the accused to the Judicial Magistrate nearest to the place of arrest and not the Magistrate nearest to the place of the commission of the offence, irrespective of the fact whether that Magistrate has jurisdiction to try the offence or not - The Magistrate ought not to have refused to remand the accused to custody. If the Additional Chief Metropolitan Magistrate is of the opinion that the trial will be before the Judicial Magistrate, Alandur, then it is open for him to direct the Jail Authorities to cause production of the accused on the expiry of the 15 day period before the Judicial

Magistrate, Alandur and in the meantime, he should transmit the records there. In future, the Magistrate is directed to adhere to the law laid down in the above said Judgment of this Court. (para 3 & 5).


CC Vs Chettinad Cement Corporation Ltd (Dated: August 6, 2015)

Customs - Classification of Coal imported - Whether Steam Coal or Bituminous Coal - Appeal by revenue against the order of Tribunal referring the matter to the Larger Bench on the ground that there was no conflict of opinion.

Held: The scheme of the Act makes it clear that the provisions for a first appeal to the Commissioner (Appeals) and a further appeal to the Appellate Tribunal are intended for the benefit of persons aggrieved. After the dismissal of the appeal by the Tribunal, there are two alternatives open to an aggrieved person. One is under Section 130 where an appeal is maintainable to the High Court and another is under Section 130-E where an appeal would lie to the Supreme Court. It is clear that unless a person is aggrieved by an order of the Tribunal, an appeal cannot be maintained. A reference made by one Bench of a Tribunal to a Larger Bench, on the ground that two Benches of coordinate jurisdiction had come to different conclusions on the same issue, is not a decision, on which one or the other party can be stated to be aggrieved. (Para 16 & 17)

Contention of revenue that there was no conflict of opinion and no reference was warranted - The question as to whether there was a conflict or not and the question as to whether the situation warranted a reference or not, are questions that could be answered very well by the Larger Bench. When the issue is still left open for the Larger Bench to come to a conclusion as to whether there is a conflict of opinion and whether it warranted a reference, it is not open to the High Court, in an appeal under Section 130(1), to pre -empt a decision on those issues. The right of appeal under Section 130(1) is restricted only on a substantial question of law. The question as to whether one Bench of the Tribunal was right in making a reference of certain issues to a Larger Bench cannot even be considered as a substantial question of law. (Para 18)

Appeal against waiver of pre-deposit - In these appeals, the Tribunal has proceeded to follow its own precedents, where, whenever a reference is made to a Larger Bench, they have granted a total waiver. The exercise of discretion by the Tribunal need not be interfered with. The second question of law is answered in favour of the assessees. (Para 24)

Revenue appeals dismissed - Tribunal directed to constitute Larger Bench and decide the issue within two months.


2015-TIOL-1872-HC-MUM-CUS

CC Vs Nitin Aminchand Shah (Dated: August 3, 2015)

Cus - We do not see why there should be a difference of opinion on factual matters - By some meaningful discussion, continuous dialogue and by not demonstrating unnecessary haste, disagreements and dissents can be avoided - Instead of taking up the matters on merits, our time will not be wasted in ensuring that the Tribunal resolves the cases in accordance with law: High Court [para 15, 16]



M/s Nitish Tools Pvt Ltd Vs C, CE & ST (Dated: August 7, 2015)

Customs - Writ Petition challenging the order passed by the Settlement Commission rejecting the application filed by the Petitioner - Settlement Commission had rejected the application and sent the case back for adjudication holding that was no full and true disclosure of duty liability.

Held: As rightly held by the Commission, the petitioners have not only failed to make true and full disclosure of their duty liability in their applications, but have also failed to provide the required co -operation to the Bench to settle the case in a true spirit of settlement. Therefore, considering the facts and circumstances of the case and more particularly, the lack of co -operation on the part of the petitioners for settlement of their case, the Commission has rightly held that it is a fit case for sending it back to the original authority for disposal in accordance with law. Section 127-I of the Act, the Settlement Commission is empowered to send back the matter to the proper officer where it finds that the applicant is not cooperating with it. Accordingly, the Settlement Commission, by virtue of Section 127- I( 1) of the Act, has sent the case back to the Commissioner of Customs for adjudication in accordance with the provisions of Act. The order of the Commission impugned is a well-reasoned order, which requires no interference (para 11 & 12)

2015-TIOL-1850-HC-MUM-COFEPOSA

Ansar Ebrahim Sayed Vs State Of Maharashtra (Dated: July 9, 2015) COFEPOSA Act, 1974 - Writ Petition challenging the preventive detention order passed under sub-section (1) of Section 3 of the COFEPOSA Act on the ground of unexplained delay in passing the order.

Held: The petitioner is justified in submission that the impugned order of detention is vitiated by an unexplained and inordinate delay in making the detention order. The detenu was apprehended on 11th May 2014 on which day he came to be arrested and was sent to judicial custody by an order passed by the Additional Chief Metropolitan Magistrate, Mumbai and was granted bail by the said Court on 1st July 2014. A decision was taken by the COFEPOSA screening committee in its meeting held on 17th June 2014 approving the detention proposal - There is no explanation as regards the delay from 26th June 2014 to 4th August 2014 as also the affidavit is completely silent on the effect of the so called further generated documents being forwarded to the detaining authority. (para 11)

A careful analysis of the statements as made in the reply affidavit of the sponsoring authority as also the detaining authority show that this can hardly be an explanation much less reasonable and acceptable to justify the delay in passing the detention order. The manner in which the proposal was being handled in the Office of the detaining authority as also reasons as stated in the affidavit in reply do not inspire any confidence, so as not to accept the case of the petitioner that there is an unexplained delay in passing the detention order. On the face of the averments, as made in the affidavits would clearly indicate that the delay of about 7 months from the date of the arrest till the date of the passing of the detention order is not satisfactorily explained and the same is unsubstantiated. (para 12)

The explanation which has been rendered by the respondents is not a satisfactory explanation. The authorities cannot play with the liberty of a citizen in such a casual manner. The authorities also have no 'carte blanche' to be not diligent and casual in dealing with issues concerning of curtailment of liberty of a person and pass a belated

order preventively detaining a person. (para 13)

It is a settled principle of law that if there in an undue and long delay between the prejudicial activities and the passing of a detention order then in that case, the Court would undertake a scrutiny as to whether the detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation for the cause of such a delay. Applying these principles in the facts of the present case, it is quite clear that the live link between the prejudicial activities and the purpose of detention is snapped on account of the long delay in passing the detention order - Impugned order quashed (para 14)


KK Shipping & Transport Services Vs Addl CC (Dated: June 16, 2015)

Customs -Seizure - Vehicle seized by the officials of the Customs Department on the ground that it was used for conveyance of the prohibited goods viz., the alleged smuggling of one metal idol and one stone idol which is said to be stuffed into a container - the petitioner claims to have provided the vehicle only to transport coconut and that he was not aware of the prohibited goods were stuffed in the container and therefore, he is in no way connected with the idols said to have been stuffed in the container; culm inatingin the instant writ petition.

Held: As admitted by the petitioner, the vehicle stands in the name of the fourth respondent and it has not been transferred in his name for want of clearance of loan amount availed from the fourth respondent - It is also not in dispute that the vehicle was used to transport one metal idol and one stone idol in the container; that petitioner is not aware of the above fact; and that the vehicle has been given only to transport coconut - Since the vehicle has been seized by the officials of the Customs Department and as the petitioner is not the owner of the vehicle, the relief sought by the petitioner is devoid of merit and cannot be granted. [Para 6]


CC & ST Vs M/s Sdv International Logistics Ltd (Dated: June 24, 2015)

Customs - CHALR 2004 - Respondent was initially granted a Customs House Agent Licence under the provisions of the Customs House Agents Licensing Regulations, 2004, which were substituted by the Customs Brokers Licensing Regulations, 2013 - the respondent submitted an application for renewal of its licence as a Customs Broker, providing requisite declarations under Regulations 5 and 9(2) as well as the Public Notice No.2/2014 (CUS) - the Commissioner of Customs, Bengaluru rejected the application for renewal of the licence which was challenged in the CESTAT, South Zonal Bench, Bengaluru, who allowed the appeal, now agitated by Revenue herein.

Held: At Item Sl.No.15 of the application for renewal, a categorical statement is made by respondent that there was no judicial/quasi judicial cases pending against it - An attempt has been made to justify the said declaration as the criminal case against respondent was pending in Kolkata and it has been stated, declaration made was with regard to pendency of any criminal case in Bengaluru alone - Such explanation does not deserve to be accepted as the respondent has been in the business of Custom Clearance Agent since the year 1999 and has been operating in atleast 12 ports in the Country and thus, it cannot be said that he was required to give declaration only with regard to pendency of any criminal case against it in Bengaluru and not anywhere else - it was a ve ry clever way of circumventing the making of a full and proper declaration by stating that there was no judicial or quasi judicial case pending against it in Bengaluru (even though a criminal case relating to offence with regard to its working as Customs Broker was pending at Kolkata) and yet very wisely concealing the

information of pendency of a criminal proceeding against it in a Court of law and thereby not furnishing a declaration as required under Regulation 5(d) of the Regulations of 2013. Respondent is clearly guilty of "suppresioverisuggestiofalsi" and this would be sufficient reason for rejecting the application for renewal - Authorities who are entitled to consider an application for renewal are empowered to call upon such applicants to furnish all relevant material before them so as to arrive at a rational conclusion to the effect that the applicant is either entitled for renewal of the licence or not - Substantial questions of law are answered in favour of the revenue and against the respondent. [Para 13, 17]


M/s Gamesa Wind Turbines Pvt Ltd Vs DCC (Dated: June 30, 2015)

Customs - Valuation - petitioner is a subsidiary of M/s Gamesa Corporation having its registered office at Spain in Europe, engaged in the manufacture of wind energy generators, setting up of wind farms and offering various such services relating to the business of wind energy; related in terms of Rule 3(3)(a) of the Customs Valuation Rules, 2007 - The principal of the petitioner company has diversified into solar energy installations and imports by the subsidiary from the related principal were provisionally assessed - subsequently, the assessing officer, on examination of the documents and statements, held that the petitioner is related to the foreign suppliers under Rule 3(3)(a) of the Customs Valuation Rules, 2007, and that no additions to the transaction value are warranted under Rule 10(1)(c) of Customs Valuation Rules, 2007 - Commissioner (Appeals) allowed the departmental appeal; now agitated by the appellant-importer herein.

Held: Commissioner (Appeals) upheld demand proposals on the sole ground that the agreement copy submitted to the department does not lend any scope to the assessing officer to conclude that royalty has no nexus with the imported goods, more particularly, when it can be seen that factually there is a nexus between the royalty and the imported goods and the existence of conditions of sale conclusions have to be drawn based on that - He came to a definite conclusion against the petitioner that they have not produced the corresponding annexures without which the agreement cannot be said to be complete or implementable - While dealing with the balance sheet which shows the flow back in the year 2010-11 to the related supplier in the name of fees for shared services, the appellate authority has given a finding that the petitioner has not produced any agreement in this regard, on this basis, the assessing officer has been directed to redetermine the value in terms of the Customs Valuation Rules, 2007 with a further finding that the declared value cannot be accepted in terms of Rule 3(3)(a) / 3(3)(b) of the Customs Valuation Rules, 2007 - The certified true copy of the Technical Transfer Agreement has been filed before the Court with supporting affidavit sworn to by one of the two signatories to it, stating that the original of the Technical Transfer Agreement executed by him as an authorised signatory of Gamesa Innovation and Technology, S.L, Spain is not traceable despite diligent search, however, as per the established internal practice of the company, as soon as an agreement is executed, the original is scanned and the scanned copy is archived and the attached copy of the agreement initialed by him is print out of the original agreement so scanned and archived - Impugned order is set aside and the matter is remanded back to Commissioner (Appeals) for fresh consideration of the appeal on merits and also on the basis of the certified true copy of the Technology Transfer Agreement, after giving personal hearing to the petitioner, within a period of ten weeks from the date of receipt of a copy of this order. [Para 7, 8]


Sangita Sajjan Jindal Vs UoI (Dated: July 27, 2015) Cus – s.77 of Customs Act, 1962 - no declaration of value of the goods carried by the

passenger – subjecting baggage to detailed examination resulted in gold jewellery recovery valued at Rs.38,99,000/-, imported ladies purses and goods valued at Rs.9,16,634/- and silver items valued at Rs.12,01,634/- - goods confiscated and fine & penalty imposed – Revision order of GoI challenged before High Court. Held : Being a responsible citizen of India, knowing fully well the procedures which have to be followed and complied with while travelling abroad, in addition, being a frequent traveller, it was expected of the petitioner not to have acted in the manner done - order did not suffer from any error of law apparent on the face of record - Imposition of penalty does not visit the petitioner with any stigma or casts a slur as complained – Petition is devoid of merits, hence dismissed: High Court


2015-TIOL-1799-HC-KERALA-CUS

A B Agencies Vs CESTAT (Dated: July 17, 2015) Customs - CHALR 2004 - investigation revealed that Sri.Vipin Kumar, the 'G' card holder of the appellant had submitted forged certificate of the Port Health Officer to clear the impugned goods; that the signature of the proprietor of the appellant was forged in the Bill of Entry; and that he had submitted forged application for 'H' card and 'G' card - CHA license issued to the appellant suspended and subsequently revoked under Regulation 20(1) of the Custom House Agents Licensing Regulations, 2004 and the Security deposited by the appellant ordered to be forfeited in adjudication, upheld by the Tribunal and agitated herein.

Held:Clause 19 of the Regulations regulates 'Employment of Persons' and under Clause 19(8), it is the responsibility of the Customs House Agent to exercise such supervision as is necessary to ensure the proper conduct of his employees in the transaction of his business as agent - Clause 19(8) further provides that the agent shall be held responsible for all acts or omissions of his employees in regard to their employment and the consequence of its breach is provided in Regulation 20 - It was while working in the capacity of CHA's employee that Sri Vipin Kumar has forged the signature of the proprietor of the appellant on the Bill of Entry, in the applications for issue of 'H' card and 'G' card and various other documents submitted to the Customs Department - He was enabled to do all the forgeries and derive the benefit thereof only because of his employment under the appellant and obviously on account of the failure of the appellant in effectively supervising the activities of his employees to ensure that they conduct themselves properly in the transaction of his business as a Customs House Agent - Therefore, the appellant cannot be absolved of his lapse of supervision attracting Clause 19 of the Regulations warranting action against him under Regulation 20. [Para 10, 11]

Findings of the Commissioner shows that the entire misconducts have been committed by Sri.Vipin Kumar, the employee of the appellant, and Sri.Kannan and Anilkumar Alex who were employed by Sri.Vipin Kumar, on the strength of the 'H' and 'G' cards obtained on the strength of the documents fabricated by Sri.Vipin Kumar himself - Original order does not anywhere show that the appellant was even remotely connected with the misconducts of Sri.Vipin Kumar and his team or that the appellant was even aware of what was being done by Sri.Vipin Kumar and two others mentioned above - Department does not also have a case that on any previous occasion, the appellant was proceeded against on the allegation of breach of the provisions of the Regulations - Although the appellant functioned as a Customs Office of Agent on the basis of the license that was issued under the Regulations and was liable to be proceeded against under Clauses 19 and 20 of the Regulations penalty to be levied on the appellant should certainly be proportionate to the gravity of the breach proved to have been committed by him - The fact that the appellant did not have any role in what was done by Sri.Vipin Kumar and his team and that the lapse found is supervisory lapse assumes importance - the absence of any previous misconduct on the part of the appellant, and that the license issued to the appellant

remained suspended and later terminated has to be considered - for the misconduct of his workers, for which the appellant is also responsible, it has suffered the penalty of being kept out of business from 18.10.2012, which is hars h and disproportionate in terms of the principles laid down in the Delhi High Court ruling in the case of Ashiana Cargo Services - original adjudication order to the extent the license of the appellant is revoked is set aside and these orders to the extent security is forfeited is confirmed. [Para 13, 14, 15]


Accel Transmatic Ltd Vs JCCE (Dated : July 10, 2015 ) Customs -Pre deposit -Appellant, a 100% EOU did not achieve the export obligation, proceedings were initiated and an order was passed by the Director, STPI - Based on it, customs authorities initiated proceedings and confirmed Customs and Excise duty demands which were agita ted before the Tribunal - Stay order requiring the appellant to deposit the duty demanded was passed, but the amount was not deposited and the case was dismissed - Meanwhile the order requiring deposit was set aside by the Court and taking note of the dire ction in the judgment to re -consider the order passed on the application for waiver of pre -deposit, the Tribunal restored the appeal and passed the denovo order which is impugned in this appeal.

Held: It is settled position of law that in deciding an application for waiver of pre -deposit, the relevant considerations which should weigh with the Tribunal are whether the appellant has made out a prima facie case and whether any financial hardship has been established - In so far as the question of prima facie case is concerned, Tribunal has taken note of the fact that the Director, STPI has passed an order against the appellant and that though a writ petition has been filed against the said order, no interlocutory orders was passed by the Court - Tribunal has rightly held that the order passed by the Director, STPI binds the authorities under the Customs Act and that in view of the said order of the Director, the appellant could not make out a prima facie case in their favour - In so far as financial hardship is concerned, the Tribunal has held that appellant has no documentary evidence to show that they are having financial difficulties andthat the Unit has huge accumulated losses - the appellant having failed to produce such records before the Tribunal on both the occasions when the application was heard and in the absence of any explanation for such failure, the Court will not be justified in entertaining the request made - no merit in appeal and it fails. [Para 5, 6]


Reliance Communications Ltd Vs UoI (Dated: July 30, 2015)

Cus/FTP - When the Court passes orders and issues directions to the competent authority to decide petitioner's application by a particular date, it expects the competent authority to take a decision and which decision must be an order assigning reasons - merely because the matter did not appear on board does not mean that the direction is in anyway modified or diluted leave alone vacated or set aside - No endeavour has been made to seek an extension and for passing an order or taking a decision in terms of the order of this Court - DGFT to pay costs of Rs.1 lakh to petitioner: High Court [para 3, 5]



M/s Acer India Pvt Ltd Vs UoI (Dated: April 8, 2015)

Customs - Drawback on various electronic items imported from China and exported to Bangladesh - Condonation of delay - Delay ranging from 6 months to 13 months as against time limit of three months prescribed under Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 - Writ Petition challenging order denying condonation of delay.

Held: In the instant case, reasons assigned by petitioner for filing applications beyond the period prescribed is on account of its inability to collect the documents at a time and file the same before authorities. Reasons have been explained or cause has been shown in the representations/applications filed ( para 9)

In view of the fact that first respondent having amended Rule 5 of the Rules, 1995 and extended the period from 6 months to 9 months and the power available under Rule 7A to the Central Government to relax in relation to export of any goods if the Central Government is satisfied that reasons assigned by the exporters or his authorized agent for belatedly filing an application for duty drawback, it is empowered to relax the time limit or in other words, it is empowered to condone the delay. ( para 10)

In the instant case, undisputedly petitioner having carried out exportation after making value addition of imported goods and has earned foreign exchange for the Country, dicta laid down by High Court of Kolkata that the claim should be considered liberally and drawback cannot be denied on mere technicalities or by adopting narrow and pedantic approach is squarely applicable to the facts of the present case (para 12)

Impugned order is set aside and matter is remitted to first respondent with a direction to consider the applications filed by the petitioner.


M/s Pernod Ricard India Pvt Ltd Vs UoI (Dated: July 28, 2015)

Cus/FSSAI - Tartaric Acid and Ascorbic Acid are food additives that are permitted to be added to alcoholic wines under the FSSR, 2011 - Statutory authorities should act in a manner that is fair, transparent and with a proper application of mind, so that it encourages foreign investment which ultimately leads to the economic growth of the country - Writ Petition is granted in terms of prayer clauses (a) and (b) : High Court



Vijaydeep Hotels Pvt Ltd Vs UoI (Dated: July 27, 2015 ) Whether conditional order of depositing part of the tax demanded with department before case is decided on merits be passed where appellate authority has dismissed the appeal for want of compliance with the requirement of deposit of penal amount without noticing that stay application has already been filed - YES: HC

2015-TIOL-1709-HC-DEL-CUS

UoI Vs Alstom India Ltd (Dated: July 28, 2015)

Refund of TED - It is a well-settled principle of law that the Court cannot direct the statutory authority to exercise the discretion in a particular manner - Single Judge ought not to have directed DGFT to pass an order keeping in mind the observations made therein - Orders passed by Single Judge set aside along with order passed by DGFT - DGFT will now consider the application of the writ petitioner for refund in terms of the provisions of the FTP, 2009-2014 and pass an appropriate order in accordance with law: High Court [para 16, 17, 20, 21]



CC Vs Shri M Renganathan (Dated: July 2, 2015)

Customs - Penalty under Section 114 of the Customs Act, 1962 on CHA for allegedly filing shipping bill for export of red sanders in the guise of natural slate stone - Revenue in appeal against the order of Tribunal setting aside penalty.

Held: The finding of the Tribunal is that there was no material evidence or finding by the Adjudicating Authority to come to the conclusion that the first respondent was having knowledge of the export of the goods improperly. The Tribunal further holds that there is no evidence to indicate that the first respondent had knowledge of export of red sanders in the consignment in the guise of natural slate stone and that provisions of Sec.114 of the Customs Act is not attracted. No reason to interfere with the order of the Tribunal (para 6 & 7)


Foods Fats And Fertilisers Ltd Vs DCC (Dated: June 4, 2015)

Customs - Tariff Value - Effective date of Notification No 36/2001-Cus (NT) dated 03.08.2001 fixing tariff value for RBD Palmolein edible oil - Contention that it was notified in the official gazette to the public only on 06.08.2001 and hence is not applicable for the imports made on 03.08.2001 and 04.08.2001.

Held: Issue stands decided by the Karnataka High Court in case of Param Industries Ltd., Vs. Union of India holding that the impugned Notification dated 03.08.2001 was notified in the official gazette to the public only on 06.08.2001, the duty becomes payable only from the date it is notified in the official gazette, hence, the impugned demand is set aside and the writ petition is allowed - The petitioner is entitled to refund of the duty paid under protest. (para 5)

2015-TIOL-1694-HC-RAJ-NDPS

Jugat Singh Vs UoI (Dated: May 8, 2015)

Whether, when during search assessee was caught with charas, then does it amount to breach of Customs Act or only NDPS Act


Veetrag Enterprises Vs CC (Dated : June 1, 2015)

Customs - Principles of natural justice - Denial of cross examination of witnesses on the ground that the same is unnecessary, as it would result in avoidable delay and would not serve the purpose of justice.

Held: - It is incumbent upon the Commissioner to decide the request for cross-examination of the petitioner before finally deciding the case on merits as held by the High Court in Vulcan Industrial Engineering Co. Ltd. v. Union of India - 2013-TIOL-911-HC-AHM-CX . (para 7)

In the present case, neither any speaking order has been passed nor the respondent justified in not permitting the petitioner to cross-examine the eight witnesses. Such attitude of the respondent shows that the petitioner was not given fair opportunity to defend their case, therefore, not providing an opportunity to cross-examine the eight witnesses, would violate the principles of natural justice. Accordingly, the impugned order is set aside and the respondent is directed to permit the petitioner to cross-examine the eight witnesses and pass appropriate orders on merits and in accordance with law. (para 8)


Lanvin Synthetics Pvt Ltd Vs UoI (Dated: July 15, 2015)

Cus - High Court expresses pain and anguish - Quashes SCN lying un-adjudicated for 17 years -Respondents prohibited from passing any adjudication order in furtherance thereof - Petitioner can apply for refund of Rs.2.07 crores, deposited under protest in May 1996, with interest - If delay on the part of the department results in loss to the exchequer and as directed presently no recovery can be made of the sums demanded, then, it is for the Superiors to initiate all steps and measures - Our order should not be taken as relieving officials concerned of their duties and obligations in terms of the law including the departmental rules and circulars -Secretary in MF to initiate departmental and other legal proceedings so that all guilty of causing loss to public exchequer are brought to book: HC [para 14, 15, 16]



MGM International Exports Vs CC (Dated: June 22, 2015)

Customs - Non-implementation of the orders of High Court relating to assessment of goods imported by the Petitioner - Petitio ner is before the High Court seeking implementation of the earlier two orders of the High Court.

Held: It is clear that the petitioner has been made to fight a long battle resulting in physical and mental harassment apart from financial implications - The Court deems it

fit to impose exemplary costs of Rs.1,00,000/- (Rupees one lakh) on the respondent-department and, out of such amount, Rs.50,000/- shall be paid to the petitioner towards the litigation fees and the balance amount of Rs.50,000/- shall be paid to the Tamil Nadu Mediation and Conciliation Centre, Chennai, for wasting the precious time of the Court - The respondents are directed to complete the exercise within a period of four weeks from the date of receipt of a copy of the order - Department is at liberty to recover the said amount from those persons who are responsible for non-implementation of the orders passed by High Court. (para 10)



Rattanindia Power Ltd Vs UoI (Dated: July 20, 2015)

Refund - Petitioner averred that refund claims have been filed on 26.08.2014 but have not been processed by Additional Director General of Foreign Trade - Counsel for Revenue submits that the Additional Director has instructed that adjournment be sought.

Held: Request declined - Court would have been very happy if the Additional Director General of Foreign Trade had instructed Counsel for Revenue to state before the Court that the refund applications would be processed expeditiously and an order will be passed thereon so also communicated to the petitioners - Instead, such instructions result in more delay and which is detrimental to either parties' interests - Directions issued to process the refund applications and as expeditiously as possible within eight weeks: High Court [para 4, 5]


CC Vs Chettinad Cement Corporation Ltd (Dated: June 25, 2015)

Customs - Classification of Coal imported - Revenue in appeal against the order of Tribunal referring the matter to Larger Bench.

Held: Prima facie , there is no need for the Tribunal to refer the matter to the Larger Bench in the light of the two decisions referred to by the Tribunal in the impugned order - Hence, there will be an order of interim stay of reference to the Larger Bench. (para 4)



DRI Vs Guo Zhisheng And Anr (Dated: July 10, 2015)

Whether where foreign nationals are found engaged in smuggling items whose import is restricted in India, the seized goods are liable for confiscation & penalty and are liable to be dealt under Customs Act - YES: HC

Whether mere granting of bail would mean that assessees have been discharged by the trial court from a case - NO: HC

Whether grant of bail to the said foreign nationals can be denied, in case no steps have been taken by the Department to find out the linkage of assessees to any Indian national for smuggling purposes - NO: HC


M/s Rajesh Exports Ltd Vs Chairman Central Board of Excise and Customs (Dated: July 10, 2015)

Customs - Territorial jurisdiction of High Court under Article 226 - Imports made at Delhi and Petition filed before the High Court of Karnataka dismissed by the Single judge for want of jurisdiction - Appeal against the order of Single judge.

Held : The consignments were received by the writ petitioner at Delhi air cargo complex. They were cleared by the authorities at Delhi, after obta ining clarification from the Board of Customs. The consignments were cleared for home consumption upon acceptance of the duties as mentioned in the said notification without any demur. The writ petitioner dispatched those gold dore bars to Uttarakhand. The shipments were refined and the refined gold bars were brought back from Uttarakhand to Bengaluru for sale and manufacture of gold jewellery. In respect of such concluded assessment, the notices dated May 29, 2013 and June 18, 2013 were issued to the writ petitioner in the Bengaluru address. The jurisdiction under Article 226 of the Constitution of India can be invoked if even a fraction of the cause of action arises within the territorial jurisdiction of the High Court. It is difficult to uphold the view taken by the single Judge that this court had no territorial jurisdiction to entertain the writ petition - Impugned order set aside and the Petition is restored.



Bittu Choith Harchandani Vs State of Maharashtra (Dated: July 3, 2015)

COFEPOSA - One word or sentence from the detention order cannot be picked up and read in isolation or torn out of context - subjective satisfaction is based on the detaining authority's opinion that it is necessary to detain the detenu so as to prevent him from indulging in smuggling activities in future - Petition dismissed: HC



Sarda Agro Oils Ltd Vs UoI (Dated: June 29, 2015)

Cus - When there is Court's order and which directs the Authority to decide the case within a particular time frame, then, it is his bounden duty to adhere to it - not complying with the Court's order and in time will result in visit with personal costs and consequences such as entering displeasure of this Court in their service record – because of the explanation given on affidavit, contempt proceedings dropped but Dy. Commr. cautioned & warned – no costs imposed: High Court [para 3, 4, 5]



CC Vs M/s N T Rama Rao (Dated: June 18, 2015)

Customs - CHA Licence - Appeal by revenue against the order of Tribunal rejecting revenue's appeal on the ground that the issue pertains to renewal of CHA licence which is an administrative action.

Held: The Revenue has rightly raised the questions of law in this appeal - A perusal of the order of the Tribunal reveals that the Tribunal on the wrong premise passed an order that an appeal is not maintainable in a case of renewal of CHA licence, which is not a case on hand. The issue on hand is with regard to the cancellation of licence issued to the first respondent, whereas the Tribunal held that the order of the Adjudicating Authority is with regard to renewal of licence, which is administrative in nature. Hence, the Tribunal on the wrong premise dismissed the appeal filed by the Revenue - Order of Tribunal is set aside and the matter is remanded to the Tribunal for fresh consideration. (para 6).


Quasim Ali Vs ACC (Dated: June 30, 2015)

Cus - Smuggling of Gold - Additional Chief Metropolitan Magistrate held the petitioner guilty for the offence punishable under Section 132/135(1)(a) of the Customs Act and convicted him for the said offences - Additional Sessions Judge upheld the conviction and sentence awarded to the petitioner - Revision petition filed before Delhi High Court.


Mangirish Logistix Llp Vs UoI (Dated: June 30, 2015)

Customs Broker Licence - Very purpose of inserting a requirement of passing a written as well as oral examination is defeated, if, within a reasonable time from the candidate being successful thereat, a licence is not issued to him - these are matters of somebody's livelihood and authorities are expected to be careful and sensitive - Respondent directed to complete the requisite steps and measures within a period of six weeks and communicate to the Petitioner their decision on the application seeking licence in terms of the CBLR, 2013 : High Court [para 5, 6, 7]



Karnataka Power Corporation Ltd Vs Assistant Commissioner of Customs (Dated : June 11, 2015) Customs - Appeal by State Government undertakings - Appeal filed in 2004 dismissed in 2011 for want of COD clearance - Assessee filed restoration application in the light of Supreme Court decision in ECIL case, dispensing with COD procedure - Restoration application dismissed by the Tribunal as at the material period, ONGC order was in operation - Order of Tribunal challenged by the assessee.

Held: In the case of Electronics Corporation of India Vs. UOI, 2011-TIOL-18-SC-CX-CB it was held that by another order dated 20.7.2007, the Court extended the concept of dispute resolution by High-Powered Committee to amicably resolve the disputes involving State Government and their instrumentalities. The appeal in this case was filed on 25.09.2004 and therefore, prima facie the appellant is justified in saying that there was no requirement for clearance by the High Powered Committee. (para 7)

The Tribunal was at error in dismissing the appeal at the first instance. Even otherwise, subsequent to the decision of the Supreme Court in the case of Electronics Corporation of India Vs. UOI, 2011-TIOL-18-SC-CX-CB , the restoration application has been filed on 30.5.2011. The law as it stands on and after 17.2.2011 is that there is no requirement of getting clearance from the COD. The Tribunal had failed to note the decision of the Supreme Court and therefore, the order of the Tribunal is erroneous. (para 7)



Sanco Trans Ltd Vs CC (Dated : June 11, 2015) Customs - Revoking licence of Customs Broker under Customs Broker Licencing Regulations 2013 - Show cause notice for revoking licence challenged on the ground that the same was issued beyond 90 days stipulated under Regulation 20(1).

Held : From Regulation 22, it is explicit that the show cause notice under Regulation 20(1) is required to be issued within 90 days from the date of receipt of the offence report as prescribed under Regulation 22. In the present case, the offence report was received on 29.08.2012 and the show cause notice was issued on 05.03.2015, by which, it is clearly revealed that it was issued beyond the period stipulated in Regulation 22(1). Therefore, when the impugned show cause notice has been issued beyond the statutory period, the same cannot be sustained for want of jurisdiction. ( para 14)

In similar circumstances, this Court in M/s. MKS Shipping Agencies Pvt. Ltd., has considered the same issue and held that, issuing show cause notice beyond the period of 90 days as prescribed under Regulation 22(1) cannot be sustained. ( para 15)

Impugned Show Cause Notice set aside and the Writ Petitions allowed.



CC Vs M/s Bses Kerala Power Ltd (Dated : June 11, 2015) Customs - Appeal - Maintainability of appeal under Section 130 of the Customs Act,

1962 - The issue pertains to rate of duty that is payable by the respondent - In view of the Section 130, which exempts appeal to be entertained by the High Court in relation to rate of duty, the objection as raised by the respondent on maintainability of the appeal is liable to be sustained in view of the decision of the Supreme Court Navin Chemicals case, which decision has been followed in Commissioner of Central Excise - Vs - Vadapalani Press - 2014-TIOL-2208-HC-MAD-CX . (para 6)


M/s HRB Boarding And Lodging Pvt Ltd Vs UoI (Dated: June 11, 2015)

Customs - Policy for import of marbles and granites - Petition seeking to quash the Notification No.65(RE-2010)/2009-2014 dated 04.08.2011 issued by the Director General of Foreign Trade (DGFT) on the ground that the DGFT has no power to amend the Policy.

Held: In the present case, the DGFT has not resorted to change of categorization of items, i.e. from the category of "free export" to category of "restricted export", but as a sequel to earl ier notification No.18, which fixed the floor price of US $ 50 per square meter, the present impugned Notification has been issued - There is no illegality or irregularity in the impugned notification in order to interfere with the same. (para 20)

When the DGFT Notification dated 04.08.2011 allowed free import of marble blocks/tiles provided the CIF value is US $ 60 and above per sq. mt., the petitioners were expected to declare the same, however, contrary to the same, they have declared below the US $ 60 and thereby, the authority has rightly confiscated the same and therefore, confiscation of the goods is justified. (para 21)


M/s RPS Global Courier Services Vs CCE, C & ST (Dated: June 1, 2015)

Customs - Courier Imports and Exports (Clearance) Regulations, 1998 - Proceedings initiated against the appellants on the ground that the courier agencies authorised to act as couriers were importing unaccompanied baggages of passengers and goods intended for trade or business in the guise of bona fide gifts in order to illegitimately avail the benefit of duty free provisions granted for bona fide gifts under Notification No.171/1993-Cus. dated 16.9.1993 read with CIECR - Appeal against the order of Tribunal remanding the matter to the assessing authority limiting the demands to one year period.

Held: Contention that under regulation 11 the maximum liability is only Rs.5,00,000/- and therefore, it was not legal and proper on the part of the assessing authority to impose the duty that payable by the consignees on the appellants cannot be sustained. (para 10)

As per regulation 12 the appellants are bound to furnish the bond and security as specified under regulation 11 which renders the appellants liable to pay the customs duty, if any, not levied or short levied, with interest, if applicable, on any goods taken clearance by the authorised courier if in the opinion of statutory authorities the same cannot be recovered from the importer or the exporter. The finding of the Appellate Tribunal cannot be found fault with. (para 10 & 11)

Maintainability of appeal - Contention by the respondent that the appeals are not maintainable under law since any appeal involving questions with regard to duty of customs or to the value of goods for purposes as contemplated under Section 130(E)(b) of the Customs Act, 1962 has to be filed before the Supreme Court - The subject matter of the case is relating to the alleged illegalities committed by the appellants while transacting the business as couriers carried on by them as per the regulations and therefore such a contention raised by the respondent is untenable and hence it is held that these appeals are maintainable before this Court. (para 13)

2015-TIOL-1477-HC-MUM-VAT

Kanchan Motors Vs CST (Dated: June 09, 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]

2015-TIOL-1476-HC-KOL-CUS

M/s Nepa Agency Co Pvt Ltd Vs UoI (Dated: May 13, 2015)

Cus - Suspension of Customs broker licence - redressal as provided in regulation 21 of the CBLR, 2013 by way of filing an appeal before CESTAT is an efficacious alternative remedy available to an aggrieved broker - In view of existence of such remedy, Court ought not to exercise its extraordinary power under Article 226 of the Constitution of India - Writ Petition dismissed: High Court [para 16 to 20]



Edward Khimani Kamau Vs Narcotics Control Bureau (Dated : May 28, 2015)

NDPS - Illegal export of Heroin - Order of Trial Court sentencing the appellant to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs one lakh challenged on several grounds.

Held: Defective sampling method adopted by the officers - Transferring the powder of all 9 packets into one polythene and then taking out two samples and sending one sample to CRCL causes serious prejudice to the appellant as it cannot be ascertained whether all the 9 packets were containing heroin or not - In similar factual matrix, the single judge of the High Court of Delhi held that a wrong process of taking samples was adopted by the police - In addition, the prosecution case suffers from a lot of discrepancies and contradictions regarding the colour, smell and texture of the contraband allegedly recovered from the appella nt in the testimony of the witnesses - Order of Trial Court set aside and appeal allowed. (para 8,9,10 & 12)

Also see analysis of the Order

2015-TIOL-1446-HC-ALL-CUS

M/s M Z Handicrafts Vs UoI (Dated: May 07, 2015)

Customs - Freezing of Bank account of the Petitioner by DRI during investigations by invoking provisions of Section 110 of the Customs Act, 1962 - Petitioner challenges the action of the officers of DRI in Writ Petition.

Held : A Division Bench of the Gujrat High Court in Am Overseas case held that the provisions of Section 110 of the Act cannot restrict the petitioner from operating the Bank account - The Division Bench of the Karnataka High Court in Multitek Engineers case also observed that Section 110 of the Act does not enable an Investigating Officer to attach the Bank account - Following the same, it is held that held that the power under section 110 of the Act could not have been exercised for passing an order that the petitioners should not be permitted to make any withdrawal from the account - In such circumstances, the respondents cannot insist that the petitioners should furnish adequate security bond - Impugned order of the Senior Intelligence Officer of DRI cannot be sustained and is set aside.


The State Trading Corporation Of India Ltd Vs CC (Dated: May 8, 2015)

Customs – Writ Appeal (intra court) against the order of dismissal of application seeking restoration of Writ Petition in the light of Supreme Court decision in case of Electronics Corporation of India, dispensing with the procedure of Committee on Disputes in respect of appeals by Public Sector undertakings - Application dismissed by the single judge on the ground that the same cannot be restored or re -heard once again on the basis of subsequent pronouncements of law on the subject.

Held: From the earlier order of the High Court, it is evident that the said writ petition was dismissed on the ground of availability of alternative remedy. The decision was taken on merits. It was not a case of dismissal for want of prosecution - Thereafter, the appellant, had not taken any step to approach the High Powered Committee till the Supreme Court had taken a decision in Electronics Corporation of India - The disposed of writ petition cannot be revived or restored to its file – Petition dismissed. ( para 7 & 8)


Terumo Penpol Ltd Vs CC (Dated: April 29, 2015)

Customs - Writ Petition against order of Commissioner (Appeals) remanding the matter to the original authority with a direction to deposit 5% of the assessable value - Contention that the Commissioner (Appeals) had no authority to direct pre -deposit while remanding the matter.

Held: The impugned order is not maintainable for the reason that when the matter is remanded back to the file of the Original authority, all the issues are to be adjudicated afresh, without being influenced by any of the observations. While so, viewing the impugned order, direction given to pay EDD equivalent to 5% of the Assessable value, against the petitioner, will prejudice the mind of the original authority while deciding the issue. Portion of the order directing the petitioner to pay deposit equivalent to 5% of the Assessable value is deleted. (para 4)



TNT India Private Limited Vs UoI (Dated: May 06, 2015)

Customs - Courier Imports - Show Cause Notice issued to the Courier for imposing penalty under Section 112(a) of the Customs Act, 1962 and for action under Courier Imports and Exports (Electronic Declaration And Processing) Regulations, 2010 - Commissioner vide order dated 18.11.2013 imposed penalty under Section 112(a) of the Customs Act, 1962 and did not proceed to impose any penalty in terms of the Courier Imports and Exports (Electronic Declaration And Processing) Regulations, 2010 - After two months, the Commissioner passed another order dated 10.01.2014 with regard to violations of Courier Import Regulations, which is impugned in the Writ Petition.

Held: The Commissioner of Customs became functus officio upon passing the order of adjudication dated 18.11.2013. It is not disputed by the counsel for respondent no.2 that the said respondent could have filed an appeal against the adjudication order, if it was dissatisfied or aggrieved by the order passed by the Commissioner of Customs. It appears that, respondent no.2, has not preferred an appeal - Impugned order dated 10.01.2014 is set aside - Copy of the order is marked to the CBEC.



M/s Aquamall Water Solutions Ltd Vs CC (Dated: May 27, 2015)

Customs - Additional duty of customs (CVD) on Reverse Osmosis (RO) membrane element – Petitioner paid duty at 10% and seeking re-assessment as the duty payable is only 6% - Respondents are directed to dispose of the representations of the petitioners in the light of order passed by the Division Bench in case of in Mohit Overseas's case. (para 5)


Sanjay Maheshwari Vs CC (Dated: April 20, 2015) Customs - Smuggling of Chinese Silk - Appeal against the order of Tribunal confirming penalty imposed on the appellant - Held: Whether the appellant was aware of the fact that he was involved in contraband goods, or was an innocent agent of the real culprit is a matter of fact, appreciation of which has been undertaken by two adjudicating authorities. - The conclusions were based not only on the retracted confessional statement but also based on the seizure -which was witnessed by the appellant's father, who recorded a statement - There was no material adduced by the appellant to substantiate the legitimate source of these seized goods; had they been purchased through acceptable channels, some support in the form of invoices, receipts etc. would have invariably found their way into the record. The comple te absence of such material or documents negates the appellant's arguments - Appeal is meritless.


Mohit Overseas Vs CC (Dated: February 06, 2015) Customs - Additional duty of Customs on imported goods paid at 7.5% though effective rate is only 1% by virtue of exemption under Notification No 152/2009 Cus dated 31.12.2009 - Application filed for re-assessing the Bill of Entry and to refund excess duty paid - Held: The petitioner is seeking an amendment of the Bill of Entry which is permissible under Section 149 of the Customs Act, 1962 even after the goods

have been cleared for home consumption provided the said amendment is based on documentary evidence which was in existence at the time when the goods were cleared. According to the petitioner, the said notification was in existence at that point of time - This is a clear case where the petitioner could avail of the provisions of Section 149 of the Customs Act, 1962 - Petitioner is directed to move an application before the proper officer and the proper officer shall examine the said application and shall pass an order in accordance with law.

2015-TIOL-1364-HC-RAJ-CUS

M/s Arjun Industries Ltd Vs CC (Dated: May 19, 2015)

Cus/CX - CESTAT dismissing appeal for not complying with order of Pre -deposit of 50% - Thereafter restoring appeal but allowing Revenue to initiate recovery - Appeal to High Court - Section 35F amendment cannot be restricted only for appeals filed after 06.08.2014 - Appellant directed to deposit 10% of duty confirmed: High Court [para 7, 9]



M/s Sudersan Impex Vs CC (Dated: April 29, 2015)

Customs – Refund of SAD under Notification No 102/2007 Cus dated 14.09.2007 – Non-refund of SAD in spite of favourable order from Commissioner (Appeals) – Petition seeking direction to give effect to the order of the Commissioner (Appeals).

Held: The petitioner had preferred appeals against the Order-in-Original and the Commissioner (Appeals) allowed the appeals filed by the petitioner. Pursuant thereto, the petitioner has made a request for refund of the SAD amount - Recording the submission of the counsel for the respondents, if no further appeal is filed, the Deputy Commissioner is hereby directed to refund the SAD amount within a period of six weeks from the date of receipt of a copy of this order.


M/s Mars Shipping Services Vs CC (Dated: April 30, 2015)

Customs - Custom House Agent - Petition against the order of continued suspension of CHA licence and the Notice issued under Regulation 20(1) of the CBLR 2013.

Held: The alleged contravention took place as early as between January 2008 and September 2009 and the goods were assessed and cleared by the customs authorities by accepting the documents submitted by the importer and the petitioner being the Customs Broker, on behalf of the importer, presented the same. Only in the year 2014, i.e. after lapse of more than five years, the proceedings of suspension were initiated. As could be seen from the Regulation 19(1), it is clear that only in appropriate cases where immedia te action is necessary against the customs broker, the licence of the broker has to be suspended. It is pertinent to note that except the irregularities alleged to have been committed by the petitioner in the year 2008, there were no adverse report against the petitioner that the petitioner has repeatedly involved in such irregularities between 2009 to 2014. On a careful scrutiny of the entire facts and in view of the fact that even the respondent herself initiated the proceedings that too after a lapse of five years and also the fact that the petitioner

was allowed to act as a licensed Broker till 2014, in the present case, immediate action is not required so as to invoke the Regulation in order to suspend the licence (para 14)

Validity of Show Cause Notice - A perusal of the Show Cause Notice makes it clear that the respondent has categorically come to the conclusion that the Customs Broker failed to fulfill the obligation cast upon them under the regulations mentioned to therein and committed professional misconduct, while acting as custom broker. In the present case, the emphasized portion contained in the impugned show cause notice, would clearly indicate that the respondent has predetermined the issue. Having followed the judgments of the Supreme Court as well as this Court is of the view that the impugned show cause notice, wherein, the usage of the words, viz., "it was concluded that the Customs Broker failed to" would clearly indicate predetermination by the respondent regarding the failure on the part of the petitioner in respect of the obligations cast upon them under the Regulations as well as committal of professional mis-conduct by the petitioner and therefore, on this ground, the impugned show cause is liable to be set aside. (para 17&22)



CC Vs M/s Billiards Point (Dated : April 30, 2015)

Customs - Import of secondhand capital goods without licence - Penalty under Section 112(a) and redemption fine under Section 125 - Revenue in appeal against the order of Tribunal setting aside penalty and reducing redemption fine.

Held: The Tribunal, having upheld the contravention of Section 111(d) of the Customs Act, had merely referred to the decision in the case of Soni Ispat Ltd. Vs. Commissioner of Customs (Import) and reduced the redemption fine from Rs.3.00 lakhs to Rs.50,000/- and set aside the entire penalty. There is no reason why the Tribunal had reduced the fine and set aside the entire penalty - The Tribunal has not passed a speaking order justifying the reduction of fine and setting aside the penalty. Hence, there is no other option except to remand the matter back to the Tribunal to reconsider the issue afresh - Matter remanded.


M/s Chalissery Kirana Merchant Vs UoI (Dated: March 09, 2015)

Customs - Import of Areca Nuts under concessional rate of duty by claiming country of origin as Sri Lanka under Notification No 26/2000 dated 01.03.2000- Goods detained by the customs on the suspicion that the country of original was not Sri Lanka and proceedings initiated to have provisional assessment under Section 18 of the Customs Act, 1962 with liberty to release the goods on payment of 35% of the differential duty as cash deposit, challenged in the Writ Petition.

Held: The antecedents of the petitioners, with reference to the earlier case, show that there was every reason for the respondent Customs Department to have doubted or raised some suspicion as to the place of origin and the transaction concerned. As such, it is not merely with reference to the ongoing enquiry with reference to some other trader, that provisional assessment is ordered imposing condition, but also with reference to the ongoing enquiry, pertaining to the transaction/import done by the petitioners 1 and 2. This being the position, the matter requires to be considered in detail and there is absolutely nothing wrong on the part of the respondents in having pursued the course under Section 18 (1) (c), ordering provisional assessment - Duty deposit reduced to 20% of the differential duty instead of 35%. ( para 14&15)

2015-TIOL-1266-HC-AHM-CUS

Ry Midas Metacast Pvt Ltd Vs UoI ( Dated: April 20, 2015)

Customs – Exemption under Notification No 12/2012 CE dated 17.03.2012 for aluminium waste and scrap imported and used in the manufacture of aluminium circles – Order of Commissioner (Appeals) allowing the exemption attained finality – Revenue denies exemption for subsequent imports alleging new facts came on record.

Held: There was no new fact which came into light on the basis of which the Commissioner of Customs (Appeals), Ahmedabad jumped to the conclusion that new facts are emerged and the petitioner is manufacturing circles. When there were already six orders in favour of petitioner passed by the Commissioner of Customs (Appeals), Ahmedabad as well as by the Assessing Officer, in such situation the Commissioner of Customs (Appeals), Ahmedabad was not justified in holding that new fact has come into existence over-looking the finding of fact recorded in its earlier judgments – The impugned order passed by the Commissioner of Customs (Appeals), Ahmedabad cannot be maintained – Petition allowed. ( para 5)


Sangeetha Kirti Patel Vs R A Rajeev (Dated : April 28, 2015)

Whether continued detention of the detenu along with unexplained delay in deciding representation before the concerned authority, is violative of the constitutional mandate of Article 22(5) of the Constitution of India - YES: HC

Whether such illegal detention in breach of Article 22(5), is liable to be treated as vitiated - YES: HC


M/s S S Automotive Pvt Ltd Vs Addl.CC (Dated : April 28, 2015)

Cus - Petitioner seeking release of bank guarantee furnished as condition for provisional release of goods since export proceeds have been received and duty drawback claimed by petitioner, along with interest, has been returned - also SCN issued alleging over-valuation of goods exported has not been adjudicated although interim reply filed.

Held: Respondent is directed to adjudicate upon the show cause notice as expeditiously as possible within four weeks - While doing so, the concerned authority will also take a decision on the plea with regard to release of the bank guarantee in issue - Petition disposed of: High Court.


Srikant Bagla Vs CC (Dated : April 20, 2015)

Cus-Demurrage charges-What actually the writ petitioner seeks is damages in tort from the Customs for wrongful detention of their goods-Delay was due to lack of testing centres to test an unusual import of hazardous materials-Petitioner had a substantial contribution to make towards the delay & is not entitled to any remedy: High Court



CC Vs M/s Ace Designers (Dated : March 20, 2015)

Customs - Re-import of goods exported by claiming exemption under Notification No 94/96 Cus - Claim for refund of Special Additional Duty rejected by the original authority and allowed by the Tribunal - Order of Tribunal challenged by Revenue.

Held: Refund claim without challenging the assessment - In Karnataka Power Corporation Ltd . case - 2002 142 ELT 482 (SC) relied on by the Tribunal, a formal application for re -assessment of duty was made together with a refund of a part of the duty paid on the ground that the classification has to be correctly done. In that case, it is clear from the order that the appellant had sought for amendment before the Assistant Commissioner of Customs and in that view of the matter, refund was claimed. However, in the case on hand, such is not the case, as the order of assessment has not been challenged and the assessment has reached finality. (para 13)

The assessment made in the Bill of entry is totally a different claim from the one made in the refund application. It is therefore held that the 1st respondent, having not challenged the order of assessment, cannot at a belated stage, claim refund by pressing into service another Notification and, therefore, the rejection of the refund claim by the Assessing Officer and rightly held by the Commissioner (Appeals) is clearly sustainable. The Tribunal, without discussing the decisions, has, by a cryptic order, allowed the appeal of the 1st respondent following the decision of the Supreme Court in Karnataka Power Corporation Ltd. case, which decision, is clearly distinguishable on facts - Revenue appeal allowe d.



M/s Page Industries Ltd Vs CC (Dated : April 29, 2015)

Customs – Writ Petition against order passed by the Commissioner on the ground that the order is not a speaking order as per Section 17(5) of the Customs Act, 1962 – The argument of the petitioner cannot be a basis to circumvent the appeal remedy available for the petitioner as per Section 129(A) of the Customs Act, 1962, for, the said Section provides an efficacious alternative remedy before the Appellate Tribunal against the order or the decision passed by the Commissioner – Petition dismissed. (para 3)


M/s Mankhanching Tombing Vs Directorate of Revenue Intelligence (Dated : April 28, 2015)

NDPS - Appellant intercepted at domestic airport - Seizure of 1.459 kgs of heroin from personal luggage - Special Judge (NDPS) convicted appellant for offence under Section 21(c) of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1 lakh, in default of payment of fine to undergo simple imprisonment for six months - Appeal to High Court.

Held: Since in the instant case the secret information was regarding carrying of contraband articles in the baggage, therefore, since the person of the accused was not required to be searched, therefore, compliance of Section 50 of the Act was not mandatory - That being so, even if there is any defect in the notice, same is inconsequential: High Court [ para 7]

Submissions that there are several contradictions in the testimony of the prosecution witnesses which create doubt in the prosecution story, the same is without substance inasmuch as it has to be kept in view that in every case some or other discrepancy is likely to occur - In case discrepancy does not materially affect the case of the prosecution, it has to be ignored - Minor discrepancies are bound to occur in the testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there are minor discrepancies or contradictions: High Court [para 12]

Plea that Statement recorded under Section 67 of NDPS Act was subsequently retracted was not voluntary statement and, therefore, the same cannot be considered.

Held : There is no evidence that the appellant was beaten, tortured or subjected to any third degree method - Had she been subjected to torture and use of third degree method, she would have complained to the Magistrate at the time when she was produced before him for the first time - Besides the confessional statement of the appellant, there was ample evidence on record to prove the case of prosecution - finding of Trial Court does not call for any interference: High Court [para 13, 14]

Quantum of sentence - counsel for the appellant urging that out of 10 years sentence awarded to the appellant she has already served more than 9 years, she is not involved in any other case as such, liberal view be taken.

Held : Sentence awarded to the appellant and the fine imposed upon her is the minimum sentence prescribed under that section 21(c) of NDPS Act - There is no enabling provision to Court for reduction of sentence by giving special or adequate reasons, hence, plea as to reduction of sentence would not be tenable - the appellant has already served a sentence of 9 years 6 months 24 days leaving behind the unexpired portion of sentence of 5 months and 6 days - No previous involvement has been reported, her conduct has been reported to be satisfactory - Under the circumstances, while maintaining the quantum of fine of Rs.1 lakh the default sentence of six months is reduced to one month simple imprisonment - Excepting this modification, the appeal is dismissed: High Court [para 17]


M/s Masumi Overseas Pvt Ltd Vs DGFT (Dated : April 15, 2015)

FTP - Whether petitioner can be put on the Denied Entity list merely on the say of a contracting party such as State Trading Corporation of India - Petitioner submits that they do not fall within the ambit of Rule 7 of the Foreign Trade (Regulation) Rules, 1993 and hence cannot be put on DEL - Petitioner submits that they have in hand two export orders amounting in all to USD 180 million. Held: Petitioner entitled to make exports with reference to the two orders, however, proceeds derived from exports will be kept in a designated account, the details of which will be filed with this court and there shall be no withdrawal of any amount from the said account, till such time, the orders are passed by the court - Respondent free to proceed with the adjudication of the SCN subject to the petitioner being given further four weeks to file a reply -

further, it is made clear that orders, if any, passed will not be given effect to till further orders of the Court: High Court [para 13, 14, 16]


XYZ Vs UoI (Dated: April 27, 2015)

Cus – Reward guidelines are framed by Govt. to be followed by the Officers in its proper spirit and not to be violated at their whims and fancies - Respondents cannot be allowed to frustrate the same by giving the informer only an assurance of reward - if the payment of reward is not made to the informers within a stipulated period and as per the guidelines prescribed by the reward policy dated 16th April, 2004, the informers will not come forward with information - discretion as mentioned in paragraph 5 of the said policy, given to the Reward Committee, cannot be treated as an unfettered power with the authority competent to grant rewards, which may lead to frustrate the basic intention of the Government behind framing the policy – Respondent directed to pay the reward to the petitioner within a period of three months – Petition allowed: High Court



Manish Karia Alias Vs CC (Dated: May 5, 2015)

Cus - Against order passed by Tribunal, appellant had approached Bombay High Court and the Division Bench had directed the appellant to make a deposit of Rs.1 crore in cash and furnishing a bank guarantee of like amount within six weeks - deposit of Rs.1 crore made within time but BG furnished with a delay, which was condoned by the same Bench - since the order has been complied with and the Appellants undertake to renew the bank guarantee from time to time till final decision of the appeal, Tribunal directed to decide appeal on merits as expeditiously as possible: High Court [para 6]


Dream Yachts Pvt Ltd Vs UoI (Dated: April 28, 2015)

Customs - Settlement Commission - Order passed without providing a copy of the Customs Commissioner's report to the petitioner - the impugned order is in utter violation of the principles of natural justice. On the short ground, the Petition deserves to be allowed. Impugned order set aside and matter remanded to the Settlement Commission.


M/s Advance Netways Marketing Pvt Ltd Vs CC (Dated: April 13, 2015)

Cus -Fraudulent DEPB credit -Tribunal has taken into consideration all the three factors i.e. prima facie case, undue hardship and interest of the Revenue while ordering pre -deposit -Tribunal has not rejected the application in toto but out of total duty payable, only 50% has been directed to be deposited, so also out of penalty

payable only 10% penalty has been directed to be deposited -it cannot be said that the discretion exercised by the Tribunal is in a perverse or impossible manner -Appeals dismissed: High Court [ para 12, 19, 20]


M/s New Drug And Chemical Co Vs UoI (Dated: March 23, 2015)

Cus - Order allegedly served by speed post - since Registered post and not Speed-Post is mentioned u/s 37-C of the CEA , 1944/s. 153 of Customs Act, 1962, service of notice by Speed-Post is not valid in law - even according to the Respondent Revenue, the order was sought to be served by Speed-Post and since there is not even an acknowledgement in token of service by the Speed-Post, there was no valid service in law - since the service of the o-in-o was not in accordance with law, the Tribunal was not justified in dismissing the application for condonation of delay - recourse to clause (b) of Section 153 would be permissible only in the event it is not possible to serve the order by the mode prescribed in clause (a) of the said Section - Order of Tribunal quashed and set aside - application for COD before Tribunal stands allowed: High Court [ para 9, 10, 11]


M/s Uniexcel Polychem Pvt Ltd Vs Deputy Commissioner of Customs (Dated: April 24,2015)

Cus - Assessment of Bills of entry pending since 2011-2014 - petitioners' grievance is that the respondents have taken no steps for provisional assessment of bills of entries resulting in exposing them to an imminent possibility of levy of detention and demurrage charges - respondents cannot but concede that officers charged with an obligation to perform statutory duties are not only required to discharge such obligations cast on them but are also required to act with utmost expedition -Delay in performance of statutory duties, often renders the remedy provided by the statute illusory - steps to be taken to process the same with due expedition, though not later than th ree weeks - A copy of this order to be sent to the CBEC with a request to inquire into the matter as to why there is a delay at the level of the Commissioners in processing such like cases - A report be generated and placed on the record of the court - If any action is required to be taken qua the concerned officers the same should also be indicated - Writ Petitions & applications are disposed of: High Court [ para 5, 6.1, 7]


Mr Stephen Rosario Vs CC (Dated: April 21, 2015)

Customs - Confiscation of export consignment declared as Industrial salt - In first round of litigation, Tribunal remanded the matter and in de novo order, the Commissioner directed permanent confiscation of the goods and imposed a penalty of Rs.20 lakhs under Section 114( i ) and Rs.2 lakhs under Section 114(AA) of the Act - On appeal Tribunal directed the appellant to deposit Rs 10 lakhs , which is now under challenge.

Held : In first adjudication order, the goods were allowed to be redeemed on payment of fine and in the de novo order, they were absolutely confiscated - Today, the appellant is worse off and the Department is better off with an order directing permanent confiscation of the goods worth Rs.82,83,633/-. Therefore, the question of hardship that could be caused to the appellant has not been examined in the proper

perspective by the Tribunal in the impugned order. In such circumstances, order of the Tribunal could be modified, so that the scales are kept at even - Pre -deposit modified to Rs 5 lakhs . ( para 8)


Mohammed Fariz And Co Vs CC (Dated: March 10, 2015)

Customs - Concessional rate of duty under Indo Srilanka Free Trade Agreement (ISFTA) for betel nuts imported by the Petitioner - Writ Petition against communication from the respondents to pay the differential duty as a condition for clearance of goods since the genuineness of the documents is doubted.

Held: Mere existence of an investigation in respect of other persons cannot be the basis for a detention of goods that have been imported by the petitioners, more so, in a case where the respondent authorities have not been able to identify any irregularity in the imports effected by the petitioners - However, in view of the fact that, the investigation that is currently underway is essentially one that is undertaken to determine whether there is any irregularity in the certificates issued by the Government of Srilanka, to support the contention of the importers that they are entitled to the benefit of the concessional rate of duty, Petitioner is permitted to clear the goods on furnishing Bank Guarantee for 20% of the (para 7)


Canbo Electronics Pvt Ltd Vs CC & CE (Dated: April 15, 2015)

Customs - Quantum of redemption fine - Writ Appeal against the order of single judge on the ground that no market survey was conducted as contemplated under Section 125 of the Customs Act, 1962.

Held: It is the requirement of law that the amount of redemption fine should not exceed the market price of the goods confiscated and the same can be obtained only on market survey, which, in the instant case, has not been done -Since the Single Judge has already remitted back the matter to the Settlement Commission in respect of imposition of penalty, the Settlement Officer, while re -considering the imposition of penalty, shall also examine the imposition of redemption fine, following due process of law, as observed by the Supreme Court in Commissioner of Customs, Mumbai vs. Mansi Impex 2011-TIOL-78-SC-CUS in accordance with Section 125 of the Act.


Aban Exim Pvt Ltd Vs Principal Commissioner of Customs (Dated: April 22, 2015)

Cus -Provisional Release of Aircraft -Differential duty leviable is Rs.44.40 lakhs -Value of bank guarantee stipulated is Rs.77 ,70,795 /-which is 1.75 times the differential rate of duty -This condition is clearly onerous and burdensome when seen in the light of the conclusions arrived at in Zest Aviation Pvt. Ltd. v. Union of India 2013-TIOL-132-HC-DEL-CUS & Navshakti Industries Ltd. Civil Appeal 3940 of 2011 -Order of provisional release modified to the limited extent that it will now provide an obligation on the part of the petitioner to furnish a BG of the sum equivalent to 30% of the differential duty -BG to have an auto-renewal clause -upon compliance, goods to be released provisionally -Petition disposed of: High Court [4.1, 5, 7]


CC Vs Kodak India Ltd (Dated: March 30, 2015)

Cus - Refund - in Revenue appeal, Tribunal holding that it is crystal clear that neither customs duty nor the CVD has been passed on by the respondent importer and refund has been correctly allowed after considering the element of unjust enrichment in right perspective; that where the balance sheet shows amount of refund claim as receivable along with the CA certificate certifying that the duty has not been passed on, unjust enrichment was not attracted; Tribunal rejecting Revenue appeal and hence Revenue filed an appeal before High Court. Held - Finding of fact arrived by Commissioner (Appeals) is confirmed by the CESTAT and, therefore the present appeal only arises out of the concurrent finding of fact as recorded by three authorities and as such no substantial question of law arises for consideration - Revenue Appeal rejected. Para 8]


M/s Johnson Watch Company Pvt Ltd Vs Directorate of Revenue Intelligence (Dated: April 23, 2015)

Cus - Appellant cannot pick a line here and a line there, out of context and impute a motive, which a reading of the whole document does not disclose – A reading of the whole of the notice dated 21st November 2014 shows that the purport thereof is to seek information from the appellant qua the doubts entertained by the Customs Authorities and for eliciting the response, the doubts entertained have necessarily to be stated - Appeal dismissed: High Court [para 8, 10]



M/s Sea Breeze Courier Vs CCE, C & ST (Dated: March 13, 2015)

Customs – Compliance with mandatory pre-deposit of 7.5% of the demand - Inasmuch as the lis commenced prior to the introduction of the amendment of 2014, the petitioner would not be required to deposit an amount of 7.5% as required, pursuant to the 2014 amendment to the Customs Act. He would, therefore, have an efficacious alternate remedy before the Appellate Tribunal, where he can file the appeal, together with an application for waiver of pre-deposit and stay of recovery of the amounts confirmed against him. (para 5)


M/s Novel Digital Electronics Vs CC (Dated: March 13, 2015)

Customs - Penalty - appellant imported toys, viz., "Talking Parrot" classifying the goods under CTH 950380.01 as 'other toys and models incorporating motor'; and contended that though restricted, are allowed to be cleared under Special Import Licence - Revenue viewed that specific import licence should be obtained for the impugned import; that they are restricted items / consumer goods and not permitted to be imported without special import licence in accordance with the Public Notice issued - confiscation adjudged under Section 111 (d) of the Customs Act 1962 read with Section 3 (3) of the Foreign Trade (Development & Regulation) Act, 1992 with RF option under Section 125 of the Customs Act and penalty under Section 112 ibidem - same set aside by Commissioner (Appeals) and agitated by Revenue before the Tribunal, who upheld the adjudication order in terms of the Larger bench ruling in the Novel Digital Electronics case; now agitated by assessee herein.

Held : Dispute restricted to penalty alone and hence the decision is restricted to

penalty alone - evident that during the entire proceedings the assessee/importer was trying to prove the classification of goods imported in its favour - While the Commissioner (Appeals) differed with the finding of the adjudicating authority, the Tribunal also, initially, on its part, was not clear, as there were two different views and, therefore, the matter was referred to a Larger Bench, which came to decide the issue once and for all - clear that the assessee was all along pursuing the matter diligently under the bona fide belief that their classification is correct. [Para 9, 12, 13]

Apex Court held in Akbar Badruddin case that penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct, or acts in conscious disregard of its obligation; but not, in cases where there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute - assessee in the instant case was pursuing the matter under the bona fide belief that the classification offered by it is correct; it cannot be said that the act of the assessee was wilful, deliberate and dishonest, in that he wanted to avoid payment of duty - Akbar Badruddin ruling squarely applicable - penalty not justified in the facts of the present case, which the Tribunal failed to set aside; to that extent the order passed by the Tribunal is liable to be modified. [Para 14, 15]


M/s Royal Pluz Courier Vs UoI (Dated: March 27, 2015)

Customs - Courier Imports - petitioners are authorised couriers and are in possession of valid courier licenses issued by the 2nd respondent under the Courier Import and Export (Clearance) Regulations, 1998, operating in the Thiruvananthapuram International Airport - The licenses were revoked by the 2nd respondent and huge liabilities were sought to be mulcted, which was successfully challenged, resulting in favourable orders issued by various authorities including this Court as well as the Chief Commissioner of Customs - The licenses were restored; however, the respondents are not permitting the petitioners to function at Thiruvananthapuram Airport; they are arbitrarily denied their right to carry on their trade; No facilities which were earlier enjoyed by the petitioners prior to their revocation are now offered by the respondents - same agitated in this writ.

Held : Central Board of Excise and Customs have issued several instructions to the effect that no new customs facilities shall be operationalised without proper sanction of posts on cost recovery basis - The definite stand taken by respondents 1 and 2 is that cost recovery charges is a mandatory requirement to be fulfilled by the third respondent under Handling of Cargo in Customs Area Regulations, 2009 unless specifically exempted by an order of the Ministry of Finance, Government of India - the present stalemate is only because of the communication gap between the third respondent and the first respondent regarding cost recovery charges and the petitioners are penalised on account of the same - Though it is imperative that the third respondent should comply with the mandatory conditions prescribed under Regulation 5 of the Handling of Cargo in Customs Area Regulations 2009, respondents 1 and 2 should not have prevented the petitioners from conducting their operations; therefore, the writ petition is allowed - Respondents 1 and 2 are directed to issue necessary notification within a period of two weeks from the date of receipt of a copy of this judgment permitting the petitioners to resume their courier operations in the Thiruvananthapuram International Airport and provide all necessary facilities on the basis the undertaking given by the third respondent - third respondent shall give an undertaking in respect of cost recovery charges, as early as possible, and respondents 1 and 2 shall issue notification as above on the basis of the same; and if the third respondent was specifically exempted by an order of Ministry of Finance, the same shall be produced by the third respondent before respondents 1 and 2 without much delay. [Para 14, 15]


Neelam Imports Vs UoI (Dated: April 16, 2015)

Cus - Goods viz. LED lights and Christmas lights were imported by the petitioners, who were the Import Export Code (IEC) holders and the petitioners had also filed the bills of entry - Goods detained by the customs authority on the ground that the goods belong to one Mr Amarnath Jindal and that the petitioners allegedly have an agreement with him for which they get a fixed amount for the imports - Inasmuch as the allegation is that the imports are being made by the said Mr Amarnath Jindal using the Import Export Code (IEC) of the petitioners - Respondent department contends that the goods are prohibited - Writ Petition before High Court. Petitioners submit that goods are not in the category of "prohibited goods"; that goods are freely importable on payment of customs duty and whatever customs duty is payable, the petitioners are ready and willing to pay the same.

Held: There is no reason as to why the provisional clearance should not be granted by the Customs authorities in respect of the impugned goods - Commissioner of Customs, ICD, Tughlakhabad directed to provisionally clear the said goods subject to conditions that he may impose in accordance with law - Petitions allowed: High Court [para 2, 5]


M/s Chalissery Kirana Merchant Vs UoI (Dated: February 2, 2015)

Customs - Import of Arecants from Pakistan under concessional rate of duty applicable to imports effected under SAFTA - Benefit of concession denied on the suspicion that the goods were not of Pakistani origin, but of Indonesian origin - conditions imposed for provisional release of the goods challenged.

Held: There is merit in the contention of the petitioner, that the imports in question were effected after complying with the procedural requirements of the SAFTA notification, which enabled the petitioner to claim clearance of the goods at concessional rate of duty. The relevant documents, such as the certificate of origin issued by the Karachi Chamber of Commerce and Industry/Trade Development Authority of Pakistan, and the invoice that accompanied the consignment, clearly indicated that the goods were of Pakistani origin. As against this, the only material relied upon by the Customs authorities, to doubt the correctness of the aforesaid certificates and invoices, is the detection of certain gunny bags in the containers that held the imported goods, which gave rise to a suspicion that the goods could have been sourced from Indonesia - Goods can be permitted a provisional clearance on the petitioner executing a bond for the assessable value, paying duty on the consignment in terms of the SAFTA notification, and paying 35% of the differential duty (on tariff rate) in respect of the consignment that has been imported.

2015-TIOL-935-HC-P&H-CUS

CCE Vs M/s P T Impex (Dated: April 6, 2015)

Cus - Prior to 07.04.2006, sandalwood could be imported against an open general licence (OGL) - Question is whether a concluded contract had been arrived at between the respondent and the foreign supplier prior to 07.04.2006 - Tribunal concluded that the respondent had entered into a valid and binding contract for the purchase of sandalwood from their foreign supplier on 30.03.2006 and for coming to this conclusion relied upon the invoice dated 30.03.2006 and the fact that the appellant had paid the supplier a sum of USD 38000 in respect of the said goods and due to a

short supply, supplier had refunded USD 4921 - Tribunal's conclusion is justified and in any event cannot be said to be absurd or perverse - Appeal does not raise any substantial question of law - Revenue appeal dismissed: High Court [ para 3, 4]


Saji Mohan Vs Narcotics Control Bureau (Dated: March 2, 2015)

NDPS Act, 1985 - Pilferage of 10 kg Heroin from malkhana of NCB at Chandigarh by the officers of NCB - Sentence awarded by the trial court under Sections 21(C), Section 29 and Section 32 of the NDPS Act challenged in various grounds.



Department of Customs Vs Sharad Gandhi (Dated: March 27, 2015)

Cus - It is a settled law that Section 4 of the Antiquities Act, 1947 made all the provisions of the Customs Act, 1962 applicable to an offence committed under Section 3 of the 1947 Act - An amendment was brought into force vide Section 4 of the Act of 1972 vide which the Legislature omitted the applicability of all the provisions of the Customs Act - Provisions of the Customs Act are now applicable only for confiscation and not for prosecution - Section 25 of the Antiquities Act stipulates that if any person contravenes the provision of Section 3, he shall be liable for punishment without prejudice to the action of confiscation or penalty for which he has rendered himself liable under the Customs Act - A reading of Section 25 shows that confiscation and penalty has to be under the Customs Act, whereas the punishment and prosecution has to be under the Antiquities Act for breach of Section 3 of the Antiquities Act - There is no force in the argument of the petitioner that once the confiscation is done under the Customs Act, all the provisions of the Customs Act would come into operation and the Customs department would get power to launch prosecution against the respondent - Section 25 of the Antiquities Act clearly creates a bar with regard to the prosecution under the Customs Act – Order passed by the Additional CMM dismissing the complaint and discharging the respondent is upheld and revision petition filed by Department of Customs dismissed: High Court [ para 10, 12, 13]


Pet Plastics Ltd And 1 Vs UoI (Dated: April 9, 2015)

SEZ - Whether an assessee can emphasize on a Letter of permission to be issued from the Grievance Redressal Committee, without deposit of outstanding dues levied against it.


Pet Plastics Ltd And 1 Vs UoI (Dated: April 9, 2015)



M/s Saboo Cement Industries Vs ACTO (Dated: January 9, 2015)



M M Hartmann Vs CC (Dated: March 31, 2015)

Customs - Writ Petition against order in original passed by Additional Commissioner - When an alternative remedy is available, more particularly, in the cases of fiscal nature, invoking of the jurisdiction under Article 226 of the Constitution of India, is not permissible - Petition dismissed. ( para 6)

2015-TIOL-846-HC-AP-CUS

M/s Resolute Electronics Pvt Ltd Vs Union of India Ministry of Finance (Dated: January 29, 2015)

Customs - Commissioner (Appeals) dismissed the appeal as the same was filed beyond condonable period - Tribunal also upheld the order of Commissioner (Appeals) - Once the period is allowed to expire intentionally or unintentionally, then remedy is absolutely barred and no Court of law can entertain the matter - Writ Petition is not maintainable. ( para 6)


CC Vs M/s Patel Engineering Ltd (Dated: March 20, 2015)

Customs – Penalty under Section 112 – Appeal by revenue against the order of Tribunal setting aside penalty under Section 112 while upholding confiscation of goods.

Held: A plain reading of Section 112 of the Customs Act makes it clear that once confiscation is ordered, levy of penalty is automatic. In the case of IVRCL Infrastructures and Projects Ltd. V. Commissioner of Customs 2004-TIOL-233-CESTAT-DEL , relied on by the Tribunal, penalty has been set aside only on the ground that no adequate evidence was found, which render the goods liable for confiscation. Since there was no proper finding, the penalty was set aside. (para 8)

In the present case, since the respondent has misdeclared the goods as hot mix plant, the Commissioner came to the conclusion to confiscate the goods. Once confiscation is ordered, penalty is automatic - the correspondences between the respondent/importer, the supplier and the local representative clearly show that the importer was aware that the goods were only components and not entire plant. (para 9&10)

The question of law is answered in favour of the Revenue and against the respondent/importer - The order of the Tribunal is set aside and the order of the Commissioner is restored. (para 12)



M/s Hindustan Apparel Industries Vs A CC (EPCG ) (Dated: March 18, 2015)

Customs - Appeal filed before the Commissioner (Appeals) beyond the condonable period dismissed – Wirt Petitions filed challenging the order in original.

Held: The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections thereof, it is very clear that it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. Therefore, the Customs Act, 1962 is a complete code and the provisions of Section 128 (1) clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condensation of delay or to entertain the appeal itself – Delay beyond the statutory period of limitation cannot be condoned. ( para 9)


Mahindra & Mahindra Ltd Vs UoI (Dated: March 27, 2015)

Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Rule 17(1)

Keywords - anti-dumping duty - extension of investigation period - ex-post facto investigation - final finding - import of cast aluminium & opportunity of hearing

Whether a n anti-dumping investigation initiated under Rule 17(1) would lapse or terminate, in case the Designated Authority fails to submit the Final Finding to the Central Government within one year from date of initiation of investigation - YES: HC

Whether at the end of the initial period or an extended period, if the period of eighteen months has not expired, the investigation will only be suspended till it is revived by an ex post facto extension within the overall period of eighteen months - YES: HC

Whether ex post facto extension of the investigation period granted by the Central Government will be valid, if the same is granted within the stipulated period provided under the proviso to Rule 17 - YES: HC

Whether the DA is obliged to comply the requirement of affording a reasonable opportunity of hearing to the interested parties before submitting his Final Finding in the context of anti-dumping investigations - YES: HC


Mahender Jain Vs CC (Dated: March 20, 2015)

Customs Act, 1962 - Sections 108, 111& 112(b).

Keywords: prohibited articles - textile traders - evidence - custom officers - smuggling.

Whether, in view of the fact that the order of the Revenue authority has noted exhaustively the dates and time of conversation between assessee and the foreign nationals, it can be said that the findings of guilt recorded by the Commissioner against the assessees were given in the absence of sufficient evidence No, holds High Court.


ROYAL IMPEX Vs CC (Dated: February 26, 2015)

Customs - False declaration of weight and quantity - Revenue appeal against the order of Tribunal setting aside confiscation of goods under Sections 111(f) and 111(i) and setting aside penalty on the importer under Section 112(a) of the Customs Act, 1962 on the ground that no Bill of Entry was filed by the importer.

Held: In the order of the Commissioner, there is a clear finding that the dutiable goods, without being mentioned properly in the import manifest, were found concealed with an intention to evade payment of duty. When the conduct of the assessee is to evade payment of duty, the provisions of Section 111(f) and 111(i) of the Customs Act get attracted even prior to the filing of Bill of Entry. It is not necessary that the Bill of Entry should be filed and that is a precondition for proceeding against a person, who is an importer, as defined under Section 2(26) of the Customs Act, 1962. Once, the respondent falls within the scope of definition of importer and there is a violation of Section 111(f) and 111(i), the proceedings are justified and the order of the Commissioner, is in order. (para 15)

The Tribunal erred in holding that since no Bill of Entry is filed to clear the subject import, there is no case of mis -declaration. The commissioner has not proceeded on the basis of Section 111(d) of the Customs Act. The Tribunal, however, misconstrued the appeal as one filed by the respondent in a case falling under section 111(d) which is not correct. It is a case of confiscation by invoking the provisions of Sections 111(f) and 111(i). Enormous material has been culled out by the Commissioner to justify invocation of Sections 111(f) and 111(i). The reasons given by the Commissioner on the basis of the admitted fact/statements and the documents established a case that the importers have, in fact, involved themselves in such an import which renders the goods liable for confiscation under sections 111(f) and 111(i) of the Customs Act. The Tribunal misdirected itself by holding that there is no question of mis -declaration as contemplated under Section 111(d), when the Commissioner has not proceeded with the matter in terms of Section 111(d) of the Customs Act. Hence, the Tribunal order is erroneous.(para 16)

Penalty - Since the goods are attempted to be improperly imported and that has been admitted by the importer, the consequence by way of penalty would follow. The Tribunal fell into error by stating that merely because the goods have been abandoned and bill of entry has not been filed, it is not a case for imposition of penalty. The right of a person to abandon the goods and seek exemption from payment of duty is under Section 23(2) of the act, but that does not absolve him of his liability to be proceeded against under the provisions of the act for any violation which renders the goods improperly imported and liable for confiscation. The penalty under Section 112(a) of the act is in relation to such conduct of improper importation of goods .(para 18)

Section 112 of the Act stands clearly attracted to the case of improper importation of goods by any person. The key words of Section 112(a) of the act are that in relation to any goods, if any person does or omits to do any act which act or omission would

render such goods liable to confiscation under Section 111 of the Act, he shall be liable to pay penalty. In this case, the importer did not make a proper declaration in respect of the goods with an intent to evade payment of customs duty and, therefore, the consequence of penalty will flow automatically. The Commissioner was justified in imposing penalty.(para 21)



CC Vs M/s Cargil India Pvt Ltd (Dated: March 19, 2015)

Customs - Conversion of free shipping bills into Drawback shipping bills - Whether the Tribunal was justified in directing the Commissioner to allow the conversion of free shipping bills into Drawback shipping bills without taking into consideration the provisions of Rule 12(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 and Circular No.4 of 2004 dated 16.1.2004.

Held: The order of the Tribunal remanding the matter to the Commissioner directing conversion of free shipping bill into drawback shipping bill without giving the Commissioner the power to examine the issue would not be justified - Since the Tribunal remanded the matter to the Commissioner, on remand, the jurisdictional Commissioner is empowered to consider the claim for drawback in accordance with Circular No.4 of 2004 dated 16.1.2004. (para 9)


M/s Blue Breeze Enterprises Vs Asst Commissioner of Customs (Dated: March 9, 2015)

Customs – Amendment of Shipping Bill – Speaking order - Opportunity was not given to the petitioner before passing orders and there is no speaking order at all, it is only a correspondence between the parties - The respondent ought not to have passed an order, without hearing the petitioner and he could have given an opportunity of hearing to the petitioner, before passing any order - Impugned order is set aside and the matter is remanded to the original authority. ( para 6).


CC Vs Sayonara Exports Pvt Ltd (Dated: March 6, 2015)

Customs - Refund of Extra duty deposit made at the time of provisional assessment - Revenue in appeal against the order of Tribunal holding that excess amount of duty to be refunded on finalization of provisional assessment.

Held: The contention of the Department that the provisions of Explanation II to Section 27 of the Act would apply, as is stated in the original order, does not arise in a case of refund, which is the case on hand, as the claim in the present case arose prior to 13.7.06 - The entire case of claim for refund arose earlier to the amendment and the first situation envisaged in para -104 of the judgment of the Supreme Court in Mafatlal Industries case apply on all fours to the case on hand - Appeal dismissed. ( para 7&8)


CC Vs S Janarthanan (Dated: February 27, 2015)

Customs - Export - Penalty - Attempting to export sandalwood by concealing under roofing tiles - Penalty on under Section 114 of the Customs Act, 1962 imposed on the respondent set aside by the Tribunal on the ground that the omission found against the appellant is non-disclosure, to the Department, of attempted export of sandalwood by others. Such an omission, however, has not been shown to have rendered the goods liable for confiscation under Section 113 - Revenue in appeal against the order of Tribunal.


Alstom India Ltd Vs UoI ( Dated: March 11, 2015)

Refund of TED - Not paying heed to the orders of the superior courts - Foreign Trade Development Officer should be counseled appropriately - TED to be refunded within two weeks - Cost imposed of Rs.10 ,000 /- : High Court [para 7, 7.1, 7.2]



Dinesh Kumar Goyal Vs Air Customs Superintendent (Dated: February 26, 2015)

Cus - s.79 of Customs Act, 1962 - Baggage Rules, 1998 - TV sets as baggage - Claim for free allowance by a passenger cannot be made by pooling the free allowance of any other passenger even if they are family members - Petition dismissed: High Court [ para 10 to 15]


2015-TIOL-686-HC-DEL-COFEPOSA

Golam Biswas Vs UoI (Dated: March 4, 2015)

COFEPOSA - Writ Petition under Article 226 of the Constitution of India for quashing of the detention order passed under Section 3(1) of the COFEPOSA Act 1974 on various grounds.

Held: The first detention order dated 27th May, 2014, was passed after examining the relevant facts when the petitioner was not in detention. Bail granted by the trial Court had been cancelled, but the petitioner had not surrendered or arrested. Subsequently, the petitioner surrendered on 11th June, 2014 and till then the detention order had not been served. Thus, the Sponsoring Authority deemed it appropriate to intimate the said factual position to the Detaining Authority to ascertain whether they should execute the said order. The Detaining Authority after examining the relevant facts, passed an additional detention order in continuation of the earlier order dated 27th May, 2014, elucidating reasons why the detention order dated 27th May, 2014, should still be served and executed. The letter/ order dated 13th June, 2014, which purports to provide additional grounds of detention cannot stand on its own. It is not by itself a separate and independent detention order. It is necessarily an adjunct and a corollary to the earlier order dated 27th May, 2014.


M/s Wunderhommz Enterprises Pvt Ltd Vs UoI (Dated: March 4, 2015)

Cus – Petitioner challenging holding of fifth auction of goods on the ground that in the fourth auction they were the highest bidder and they should have been given the goods - Circular 50/2005 referred by petitioner pertains to auctions by the custodians and in the present case Circular applicable is 12/2006 as auction is by the customs directly – Petition dismissed: High Court [para 4, 5]



M/s Mangalore Refinery And Petrochemicals Ltd Vs CC (Dated: January 29, 2015)

Customs - Refund - Unjust enrichment - Refund arising out of finalization of provisional assessment under Section 18 of the Customs Act, 1962 before the amendment made on 13.07.2006 - Held: If for a claim under Section 18 of the Act, if an assessee has to put forth a claim under Section 27 of the Act, there was no necessity for the parliament to introduce Sub-section (2) of Section 27 of the Act by way of Sub-Section (5) of Section 18 of the Act. It only demonstrates Sections 18 and 27 are mutually exclusive. To claim refund under Section 18 of the Act, the assessee was not expected to invoke Section 27 of the Act. Refund under Section 18 of the Act is independent of refund under Section 27 of the Act - Prior to the amendment, this doctrine of unjust enrichment was not attracted to refund claim under Section 18 of the Act. (para 10)

The Gujarat High Court in the case of Commissioner of Customs vs Hindalco Industries Ltd., 2008-TIOL-477-HC-AHM-CUS has taken a similar view and these judgments are not referred to or looked into by the authorities. They are carried away by the judgment of the Apex Court in Mafatlal case which was not dealing with the provisional assessment at all and by wrongly applying the ratio laid down in that case to the facts of this case, committed an illegality in denying the lawful refund, the assessee was entitled to under Section 18 of the Act for the period anterior to the amendment of 2006. (para 12)


CCE Vs M/s K T V Oil Mills (Dated: March 5, 2015)

Customs - Appeal by revenue - Maintainability of - The issue that arises for consideration is whether the benefit of concessional rate of duty in terms of Notification No.20/99 - Cus. dated 28.2.1999 as amended by Notification No.139/99- Cus. dated 30.12.1999 is available to the assessee on import of crude sunflower oil and what will be the rate of duty that is payable by the respondent, but for the notification in question - High Court has no jurisdiction to decide the appeal - Appeal dismissed as not maintainable.


Balaji Marbles Vs UoI (Dated: March 2, 2015)

Cus – s.153 of Customs Act, 1962 - It is only when the service is not possible in the manner provided in clause (a) that affixation of the order, decision, summons or notice on the notice board of the customs house is permitted – Tribunal's order is vitiated by total non-application of mind - Tribunal is in error in dismissing the application for condonation of delay and, therefore, writ petition is allowed by setting aside Tribunal's order – COD application allowed & Tribunal directed to hear petitioner's appeal in accordance with law : High Court



M/s Ujwal International Ltd Vs CC (Dated: January 16, 2015)

Customs - Prohibition of Customs Broker Licence under Regulation 23 of the Customs Brokers Licensing Regulations, 2013 without affording an opportunity of hearing challenged in Writ Petition.

Held: When the regulation is silent with regard to compliance, principles of natural justice have to be read into. However, in the matter of paramount emergent situation, particularly in public interest, it may not always be necessary to grant 'pre -decisional hearing' with regard to the proceedings under Regulation No. 21 / 23 and that such action however has to be restricted to be in operation for a limited period, to safe guard the interest of the parties concerned. (para 12)

The course pursued by the respondent Commissioner is not liable to be branded as arbitrary or illegal. However, it is to be made clear that operation of the said order has to be limited for a definite period, in view of the observations of Apex Court a nd the Division Bench of the Mumbai High Court – Operation of the order passed by the respondent is limited to be in force for a period of 'six weeks'. The petitioner is set at liberty to file objection, if any, also producing copy of the relevant documents within two weeks and the matter shall be finalized, taking appropriate steps and pass necessary orders in tune with relevant provisions of law, after hearing, within one month thereafter. The right of the petitioner to continue to operate will depend upon the orders to be passed by the respondent. (para 15)



CC Vs Veejay Lakshmi Engineering Works Ltd (Dated: February 27, 2015)

Customs – Appeal before High Court – Maintainability of – Revenue in appeal against the order of Tribunal on the issue relating to the question whether Special Additional duty of Customs is attracted on the goods imported - Issue relates to question of determination of rate of duty – High Court has no jurisdiction to entertain the appeal as per Section 130 of the Customs Act, 1962 – Appeal dismissed. (para 7)


Manoj Kumar Vs Director of Revenue Intelligence (Dated: March 3, 2015)

Narcotic Drugs and Psychotropic Substances Act (NDPS Act) - Section 37

Keywords - Bail application - Controlled Substance - Custody.

Whether bail application should be allowed where accused is in custody for very long time and delay in trial is not caused by him.


M/s Binny Ltd Vs CC (Dated: March 4, 2015)

Customs - Petition seeking re -export goods lying in warehouse for more than 15 years - Section 61 and 72 of the Customs Act, 1962 - Mere seeking for extension of the period does not serve the purpose and there should be a reasonable cause has to be shown for such extension. In this case, the petitioner company, right from the inception, has been seeking for extension of the warehousing period from time to time though citing reasons that the company was declared sick, etc., but there was no genuineness in its attempt in clearing the goods even after expiry of extended period. Keep on seeking for extension of the warehousing period without sufficient reasons thereof, would only establish that the petitioner company has been dragging on the proceedings in order to frustrate the attempt of the respondents in recovering the duty by stalling the proceedings - Petition has no merit. (para 7)


M/s Nidhi Textiles Vs CC (Dated: February 25, 2015)

Cus - We wonder if the Tribunal has passed a lengthy order (of 66 pages) at the interlocutory stage, when will it get time to take up Appeals for final disposal - Appeal partly allowed: High Court [ para 7, 8, 9]



Sajjan Kumar Vs UoI (Dated: February 11, 2015)

Customs – Provisional attachment of property – Petition seeking return of title documents.

Held: Exercise of power under Section 28BA of the Customs Act, 1962 has been circumscribed by the legislature, with necessary safeguards, which includes the right of the person whose property is sought to be provisionally attached, to be served with a notice under Sub-Section (1) of Section 28 in accordance with the Rules framed in that behalf, under Section 142 of the Customs Act. The proper officer cannot exercise the power of provisional attachment except with the previous approval of the Commissioner of Customs, by an order in writing. A provisional attachment effected, albeit after due approval, ceases to have effect after the expiry of period of six months from the date of the order made under Sub-Section (1) of Section 28BA. The Chief Commissioner of Customs, can extend the said period by such further period or periods as he may deem fit, up to a maximum of two (2) years for reasons to be recorded in writing. (para 11)

In the present case, none of the prerequisites, referred to in Section 28BA, have been adhered to by the respondents - The respondents sought to defend their actions by alluding to the provisions of Section 110(3) of the Customs Act. In the counter affidavit, the respondents have not traced the source of their power to the provisions of Section 110(3) of the Customs Act – In the counter affidavit, the respondents seem to indicate that at some point in time, in future, they would take recourse to the

provisions of Section 28BA of the Customs Act. (para 11.1)

Dehors, the failure of the respondents to advert to the provisions of Section 110(3) of the Customs Act, what is noticeable, clearly, is the absence of any material which would show that the proper officer had formed an opinion that seizure of title documents would be useful for or relevant to the proceedings under the Act. (para 12)

Respondents directed to release the title documents of the properties.


Sudhir Sharma Vs CC (Dated: February 27, 2015)

Cus - Olga Kazireva case - smuggling of Chinese silk - Customs officers do not get any reprieve from High Court



Filatex India Ltd Vs UoI (Dated: February 16, 2015)

Cus - Petitioners desired a facility where the goods intended for export are stuffed in their own factory at Silvasa - However, the permission for stuffing of the goods at the factory at Silvasa has been denied or not renewed in this case on account of pendency of proceedings under the law applicable to the exports or activities of the Petitioners in relation thereto - Range Superintendent and the AC, CEX at Silvasa had in the past conveyed their no objection to grant of this facility, provided the Petitioners allow the officers access to the containers or the stuffed export goods for supervision by them in the light of the agreement of the Revenue to consider the applications afresh on their own merits and in accordance with law, without being influenced by earlier rejections, Writ Petition disposed of accordingly: High Court [ para 8, 9]

2015-TIOL-500-HC-MAD-NDPS

R Daniel Raj Vs Superintendent Of Customs (Dated: February 12, 2015)

NDPS - Central Processing Units (CPUs), Mobile Phones seized from the office premises of the Petitioners - Petition seeking release of the CPUs and Mobile Phones as the same were subjected to analysis by the Central Forensic Science Laboratory and data was retrieved - Return of the articles allowed subject to conditions - Order of the Principal Special Court for EC & NDPS Act Cases, Madurai is set aside. ( para 7 & 8)


M/s Sea Breeze Courier Vs CCE, C & ST (Dated : February 18, 2015)

Customs – Mandatory pre-deposit from 06.08.2014 challenged on the ground that the said condition is an onerous one and effectively deprives the assessee of the right of appeal granted by the statute.

Held: The right of appeal granted by the statute is a conditional one and the conditions are not so onerous as to deprive the petitioner of an effective right of appeal. This is more so, because what is required to be deposited by the petitioner, as

a condition for maintaining the appeal, is only a small percentage of the duty/penalty amount confirmed against him, and the said amount has to be refunded to the petitioner in the event of his succeeding in the appeal before the Appellate Tribunal. There is no reason to interfere with the direction requiring the petitioner to pre-deposit 7.5% of the duty confirmed against him, as a condition for maintaining the appeal before the Appellate Tribunal. Petitioner granted time up to 20th March, 2015, for effecting the pre-deposit directed. (para 3)



Hindustan Platinum Pvt Ltd Vs UoI (Dated: February 23, 2015)

Cus - Export of goods - if the Department has evolved a mechanism which would enable clearance of goods and on provisional basis in cases at least of export, then, we hope that whatever may be the powers that the authorities intend to exercise in terms of their own mechanism, they should release the goods or the consignments early - Counsel for Revenue makes a statement that on or before 27th February, 2015, the order of provisional assessment would be passed - We would highly appreciate if the investigations stated to be ongoing and continuing are concluded expeditiously and further steps are taken by the Revenue: High Court [ para 6, 7]


Jindal Drugs Ltd Vs CC (Dated: February 23, 2015 )

Cus - Whether Menthol Crystals are subject to Spice Cess under the Spice Cess Act, 1986 - Tribunal holding so and, therefore, assesse in appeal before High Court. Held: Instead of this Court being required to go into all the details and depriving parties of a valuable right of appeal, we are of the opinion that the impugned order deserves to be quashed and set aside and the matter remitted and restored to the file of the Tribunal for a decision afresh on merits and in accordance with law: High Court [para 14, 15]


CC Vs M/s Star Entertainment Pvt Ltd (Dated : February 20, 2015)

Cus - CESTAT by Majority holding that Royalties/ licence fees paid for the import of beta/ digi -beta tapes containing films are includable in the assessable value of the said tapes but demand is hit by limitation and thereby allowing appeals - Revenue in appeal before High Court.


Lupin Ltd Vs UoI (Dated : February 23, 2015)

Cus - Petitioner has been earning valuable foreign exchange for the country - Merely because a show cause notice is issued the benefits of SHIS Scheme and the Zero duty EPCG Scheme should not be denied and continued as such - Counsel for Revenue appearing on behalf of the respondent Nos. 1, 2 and 3 stated that despite the pending show cause notice and proceedings in pursuance thereof these respondents would clear the consignments of the petitioner provided the petitioner produces either SHIS or EPCG licences which are valid - WP can be disposed of by accepting the statements of the Revenue counsel as undertakings given to the Court - it is expected that the authorities abide by these statements - equally, in future cases and particularly of the petitioner, the consignments would be cleared in terms of the applicable policies and

on production of licences - Matter disposed of. [ para 5, 7, 9]

2015-TIOL-481-HC-RAJ-CUS

Chhagan Bhai Vs UoI (Dated: January 22, 2015)

Cus - Seizure of Gold biscuits - CEGAT was required to assess, compute and issue directions for any consequential benefits, which it had intended to be paid, in the order - High Court does not act as an executing court for any consequential directions - If no specific orders we re passed by CEGAT with regard to consequential directions, the petitioner should approach appropriate authorities for its assessment/quantification and payment - Petition dismissed: High Court [ para 7]



Navbharat Enterprises Ltd Vs CC (Dated: February 16, 2015)

Condonation of Delay - Even Tribunal does not refer to the delay as being more than 12 years as claimed by the Revenue - Information obtained under the Right to Information Act by appellant reveals that the copy of the adjudication order was served not when it was passed or within a reasonable time thereafter but in April 2011 - if there was any doubt, Tribunal should have condoned the delay in all fairness and in the interest of justice - if the assessee cannot be faulted for being negligent or reckless in pursuing the remedy, then the delay could have been condoned by compensation of payment of costs - in the circumstances, appeal is allowed - Order of Tribunal is quashed and the delay of 266 days is condoned in the peculiar facts and circumstances but by directing appellant to pay costs quantified at Rs.25,000 /- - upon production of proof, Tribunal to restore appeal and dispose of the same on merits: High Court [ para 8, 9]


Parimal Ray Vs CC (Dated: February 17, 2015)

Customs - Refund of duty paid by mistake on Tunnel Boring Machine imported - Whether the claim for refund is hit by limitation under Section 27 of the Customs Act, 1962 as contended by revenue.

Held: A person to whom money has been paid by mistake by another person, becomes at common law a trustee for that other person with an obligation to repay the sum received. This is the equitable principle on which Section 72 of the Contract Act, 1872 has been enacted. Therefore, the person who is entitled to the money is the beneficiary or cesti qui trust. When the sum of Rs.360.46 lakhs was paid by mistake by the petitioner to the government of India, the latter instantly became a trustee to repay that amount to the petitioner. The obligation was a continuing obligation. When a wrong is continuing there is no limita tion for instituting a suit complaining about it. (para 17)



Smt Rekha Umesh Shetty Vs CC (Dated: February 13, 2015)

Cus - Penalty imposed on Umesh Rangayya Shetty is sought to be recovered from his widow Rekha Umesh Shetty - provisions of section 147 of the Customs Act, 1962 do not enable the respondent Commissioner of Customs (I) to recover penalty from legal heirs - Writ petition to this extent succeeds: High Court [ para 4, 5]

Cus - Duty - Liability of all those and to pay such amounts as are liable to be paid and recoverable from equally those succeeding to the estate of the deceased can still be recovered and in accordance with law - All other remedies and which have been or may be instituted insofar as recovery of the duty amount pursuant to the liability in relation thereto of the deceased can continue and uninfluenced by this order - Petition is disposed: High Court [ para 5]


CC Vs M/s Gammon India Ltd (Dated: February 11, 2015)

Cus - Notfn . 21/2002- Cus - Equipments /Rig and Machines imported for use in a Road project - for a brief period, they were sent to Delhi Metro Rail Corporation and at the Metro rail site for testing - CESTAT holding that merely because after servicing and overhauling Rig was tested by boring 4-5 holes at Delhi Metro Rail premises it would be unfair to deny the benefit of exemption notification 21/2002- Cus & allowing appeal - Revenue filing appeal before High Court. Held: Findings of fact are consistent with materials placed on record; they cannot be termed as perverse or vitiated by any error of law apparent on record - appeals are devoid of merit as they do not raise any substantial question of law - Revenue appeals dismissed: High Court [para 1, 2]


B Khokhani & Co Vs CC (Dated: January 21, 2015)

Customs - Re-export - Denial of permission to re -export "Progesterone" alleged to be spurious - Writ Petition challenging rejection of permission to re -export.

Held: Impugned order is a non-speaking order - It is not known on what grounds, the second respondent has taken the decision to deny the permission sought for by the petitioner for re -exporting the consignment. No reasons have been assigned in the impugned communication to enable the petitioner to workout his further remedy if any or atleast to know for his satisfaction as to why the decision has gone against him - It is well settled law that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak and it must not be like the inscrutable face of a sphinx. Recording of reasons operates as a valid restra int on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power and it re -assures that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. ( para 18 & 20)

Counter affidavit cannot substitute the order passed by Statutory Authority - The respondents have given reasons in the counter affidavit, by enclosing the proceedings of the Deputy Drugs Controller (India), CDSCO, South Zone - The circumstances pointed out in the counter-affidavit cannot be held to be substitute for the reasons which the second respondent must be held to have arrived at a decision - The second respondent who passed the impugned order cannot be permitted to support his order relying on or on the basis of the statements made in the counter affidavit. Therefore, whenever an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the

record. (para 18)

Rule 41(1) of the Drugs and Cosmetics Rules, 1945 - A perusal of Rule 41(1), it is clear that the re -export of the material can be made based on the declaration of the Director of testing Lab that the said drugs are not of substandard. In the present case, the Deputy Drugs Controller was of the view that the material itself is 'spurious drugs' since it has been imported by the petitioner without adequate registration and import licence and the documents furnished by the petitioner are forged and fake. For the risk of repetition, this Court reiterates that this Court cannot venture upon the issues, viz., whether the petitioner has imported the consignment based on the forged and fake documents from unregistered source contrary to the provisions of the Act and whether the detained material is a 'spurious', etc., since these are the allegations levelled against the petitioner, are the disputed questions of fact and are subject matter of the prosecution already launched against the petitioner. Therefore, it is not appropriate for the Deputy Drugs Controller to pre -determine that the drugs are 'spurious' now itself in order to reject the claim of the petitioner for re-exporting of the consignment.



CC Vs J M Baxi and Co (Dated: February 9, 2015)

Cus-Whether the Tribunal was correct in holding that a Bill of Entry was required to be filed and duty was payable on the Foreign flag vessel in question which had been brought into Indian waters temporarily, only for undertaking a specific salvage operation?

Whether a Foreign flag vessel, that is otherwise designed to carry cargo and/or passengers, but, enters the Indian waters in Ballast, is to be regarded as 'goods' liable to Customs duty, and not 'conveyance'? Appeals of importer admitted on the aforesaid substantial questions of law: High Court [ para 3]

Whether the CESTAT is right in law in holding that drawback of 95% of the duty paid on the vessel Posh Giant I, Smit Lumba , Salvaree Salvage Tug would be available to Respondent No.1 under section 74 of the Customs Act, 1962 since the vessel had gone back after salvage operation within a period of 3 months from the date of its import? Appeals of Revenue on the said substantial question of law admitted: High Court [ para 4]


M/s Suguna Foods Ltd Vs CC (Dated: January 8, 2015)

Customs - Appeal against order of pre -deposit by the Tribunal - Appellant imported Poultry Feed Premix by availing benefit of exemption under Notification No 26/2000 Cus dated 01.03.2000 by claiming the country of origin as Sri Lanka - Case of DRI is that the appellant had not fulfilled the conditions specified in the Customs Tariff (Determination of Origin of Goods under the Free Trade Agreement between the Democratic Socialistic Republic of Sri Lanka and Republic of India), Rules, 2000 - Tribunal ordered approximately 25% of the duty as pre -deposit - No reason to interfere with the order of the Tribunal - Pre-deposit allowed to be deposited in two instalments. (para 10, 11)


M/s Rank International Vs CC (Dated: January 8, 2015)

Customs - Condonation of delay – Appeal against the order of Tribunal declining to condone delay.

Held: The reason for non-appearance of the appellant/importer before the Tribunal has been explained stating that as the appellant/importer was on Haj pilgrimage in November, 2010, the affairs of the company was left at the hands of the staff, who had mismanaged the same and, therefore, the appellant/importer was in a quandary – As per the materials available on record, there is some justification in the explanation given by the appellant/importer, he being the sole proprietor - The appellant has been pursuing the matter from the stage of show cause notice, adjudication, appeal before the Commissioner, further appeal before the Commissioner (Appeals) and, thereafter, before the Tribunal in the first round and also in second round - As pleaded by the appellant/importer, there appears to be some mismanagement of the affairs on the part of the staff in not pursuing the matter, consequent upon which delay occurred – Delay is condoned and the matter is remanded to the Tribunal. ( para 9)

2015-TIOL-369-HC-MUM-CX

CCE Vs M/s Asian Paints India Ltd (Dated: February 5, 2015)

CENVAT – Inputs used in manufacture of finished goods destroyed in fire – Rule 57A of CER , 1944 does not mandate that the credit of duty can be claimed only if there is emergence of a final product or that the manufacture of the final product is complete – Credit admissible – Revenue appeal dismissed: High Court

2015-TIOL-368-HC-MUM-CX

Bharat Petroleum Corporation Ltd Vs CCE (Dated: February 9, 2015)

CE - Substantial questions of law - Whether Cenvat credit of BHGO & Naphtha used in or in relation to generation of electricity which is in turn used administrative building & canteen situated within factory premises is admissible - whether Central Excise duty is payable in respect of BHGO and Naphtha used in the manufacture of electricity, which in turn had been consumed in the administrative / canteen building etc.

Held: Appeal of another assessee has already been admitted, interest of justice would be served if the Authority to which the matter has been remanded does not proceed in furtherance of the impugned order of the Tribunal and hear the matter as apprehended either afresh or for recomputation - appeals to be heard along with Central Excise Appeal No.118 of 2012 - Appeals admitted: High Court

2015-TIOL-367-HC-MAD-CX

CCE Vs M/s Allied Industries (Dated: January 29, 2015)

Central Excise - Penalty - Appeal by revenue against the order of Tribunal reducing penalty imposed under 96ZP(3) of the Central Excise Rules.

Held: The issue stands covered by the decision of the Supreme Court in Commissioner of Customs & Central Excise, Coimbatore - Vs - Kannapiran Steel Re-Rolling Mills, wherein the Supreme Court has considered identical question of reduction of penalty imposed under Rule 96 ZP (3) of the Central Excise Rules, and held that there is no discretion to reduce the penalty - Order of Tribunal set aside and appeal by revenue is allo wed. (para 5)


M/s Fugro Survey (India) Pvt Ltd Vs UoI (Dated: January 20, 2015)

Cus - Refund - s.27 of Customs Act, 1962 - Appeal allowed by CESTAT in favour of petitioner - Refund claim of Rs.12 lakhs paid as deposit filed by petitioner allowed by Assistant Commissioner but amount directed to be credited to the Consumer Welfare Fund - only contention raised by petitioner is that the Revenue has appealed to the Supreme Court against the order of the CESTAT allowing the petitioner's appeal and where it is pending and no interim order is passed.

Held: Interest of justice would be served if Writ Petition is disposed of with a direction that subject to final outcome of the proceedings before Supreme Court, the amount as directed in refund claim is released in favour of petitioner within 12 weeks and the bond executed to be kept alive till the conclusion of the proceedings before Supreme Court and for a period of four weeks thereafter - upon this undertaking being placed on record, amount to be released to petitioner: High Court [para 8, 9]


CC Vs National Leather Cloth Manufacturing Company (Dated: February 4, 2015)

Cus - In view of no finding of any bond having been executed or a legal undertaking furnished having been rendered by the adjudicating authority the Tribunal was of the opinion that redemption fine is not imposable - That was also because the goods have not been seized - This view of the Tribunal in the given facts and circumstances and considering the language of sub-section (1) of section 125 also does not suffer from such serious legal infirmity or perversity which would warrant interference in further appellate jurisdiction - Once the export obligation is discharged, then, it is the later part of Section 125 (1) of the Customs Act, 1962 which will be applicable - goods were not available once the export obligation is discharged by the assessee - While clarifying that the Tribunal found that the custody of the goods has not been seized nor the possession taken and they were not available for confiscation, then, the question of redemption fine which is essentially a option to pay in lieu of confiscation would not arise - Section 125 speaks of option to pay a fine in lieu of confiscation - In the light of the seizure being not possible, finding has been rendered by the Tribunal that redemption fine is not imposable - no larger question or wider controversy arising from such a factual finding - appeal does not raise substantial question of law - Revenue Appeal dismissed: High Court [ para 17]


Carestream Health India Pvt Ltd Vs UoI (Dated: February 5, 2015)

Cus - Classification of goods - Petitioner is a subsidiary of a company based in the United States of America and is in the business of import and resale of various electro diagnostic / electro medical instruments & earlier classification/assessments were never disputed - Petitioner avers that there are oral instructions from Dy. Director,

Directorate of Revenue Intelligence calling upon petitioner to deposit alleged differential duty on imported goods - DRI in its affidavit submits that writ petition is nothing but an attempt to avoid investigation, scrutiny and even a reassessment, if permissible in law - in additional affidavit, petitioner submits that the DRI has demanded Rs.5 crore upfront towards differential duty and also threatened seizure of the goods if the petitioner fails to abide by the oral directions.


Om Shivay Enterprises Vs Chief Commissioner of Customs (Dated: February 2, 2015)

Cus-Import of second hand multifunctional copier machines-Petitioner contends that based on an erroneous view taken by the respondents that the goods are in the nature of e -waste and thus qualify as hazardous waste, the goods are not being cleared. Held: the most appropriate course would be to direct respondent no.3 to take into account the judgment of the Madras High Court in City Office Equipments Vs. The Commissioner of Customs (Seaport-Import) - 2014-TIOL-1803-HC-MAD-CUS and determine as to whether or not the goods i.e., the aforementioned machines are hazardous waste, as per the Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008-petition disposed of: High Court [ para 11]


M/s Gaurav Electronics Vs Additional Commissioner of Customs Sahnewal (Dated: January 23, 2015)

Cus - Petitioner asked by Revenue to furnish a bank guarantee of 25% of the differential assessable value to be determined at the time of provisional duty assessment - Petitioner prays for issuance of a writ of certiorari for quashing the direction on the ground that they had already deposited Rs.30 lakhs and undertook to deposit the differential duty as calculated by the Revenue and to furnish such personal bond/ guarantee/undertaking as the Revenue may deem appropriate. Held: Respondents have not pointed out any circumstance that may raise an apprehension that the appellant will not discharge liability qua any amount that may be assessed at the time of final adjudication - demand of a bank guarantee is not only harsh but squeezes the petitioner's business - condition of a bank guarantee should not be imposed mechanically or as to tool to pressurize an assessee - As petitioner has agreed to furnish a bond/personal guarantee/undertaking to discharge the liability, condition requiring the assessee to furnish a bank guarantee quashed and petitioner directed to pay the differential duty as determined and to furnish a personal bond as well as an undertaking that in the eventuality of any other amount being found due, it would discharge its liability without any protest or demure subject however, to its right to file an appeal - Goods if not released, be released within 48 hours of the petitioner complying with the order: High Court [ para 5, 6]


CC Vs M/s Ragini Steels (P) Ltd (Dated: January 8, 2015)

Customs - Redemption fine and penalty - Appeal by revenue against order of CESTAT reducing fine and penalty on the ground that no reason was recorded in support of

such reduction.

Held: A quasi-judicial order is required to assign reasons, preceded by a perceptible process of reasoning - The CESTAT has assigned a reason for reducing penalty namely that the penalty imposed is on the higher side but while doing so, has not supported its findings by a process of reasoning much less a perceptible process of reasoning. The reduction of penalty without disclosing as to how the penalty is on a higher side, must necessarily be held to be arbitrary - The CESTAT has reduced penalty to Rs.12 lacs without assigning any clear and cogent reasons much less reference to any relevant facts or law - Impugned order is set aside and matter remanded to Tribunal.


Shri M P Goenka Vs CC (Dated: January 14, 2015)

Cus - It is not the task of the Court to review or second guess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities, but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the facts or if based on mis -appreciation of law or on non-application of mind: High Court [ para 16, 17, 19, 20]



M/s Yum Restaurants (I) Pvt Ltd Vs UoI (Dated: January 27, 2015)

Foreign Trade (Development and Regulation) Act, 1992 - "Served from India Scheme" - petitioners are companies incorporated under Companies Act, 1956 and have their registered office situated in India - DGFT denied the benefit of SFIS to petitioners on the ground that they were subsidiaries of foreign companies - DGFT would have no power to either amend or alter any provision of FTP - decision of DGFT that Indian subsidiaries of foreign companies were ineligible for benefits under SFIS, is bereft of any reason and without application of mind - "Served from India brand" used in context of accelerating growth of services does not refer or allude to any trade name or trade mark of any individual service provider - It would not be open for DGFT to introduce new conditions and criteria under guise of interpreting the policy as that would, clearly, amount to amending the provision of foreign trade policy - Words used in paragraph 3.12.2 of FTP 2009-14 are "Indian Service Providers" and there is no scope to read into these words the condition that for service providers to be Indian, its shareholders must also be Indian - This, clearly, would amount to introducing an additional eligibility condition which is extraneous to eligibility criteria as spelt out in FTP 2009-14 - Introduction of such condition would, in effect, amount to amending FTP 2009-14 - Conclusion of DGFT that Indian companies having foreign equity cannot be considered as Indian, militates against well established canons of company law - decisions of DGFT/PIC, denying benefit of SFIS to the petitioners reflected in impugned minutes, as well as separate communications sent to petitioners withdrawing/recalling said benefits (i.e. Duty Credit Scrips), are set aside - petitions allowed: High Court


CC Vs I Sahaya Edin Prabhu (Dated: January 8, 2015)

Customs - Smuggling of Red Sanders - Penalty imposed on CHA set aside by the

Tribunal - Revenue in appeal against the order of Tribunal.

Held: The Tribunal has rendered a categorical finding that there is no finding of a positive role of the CHA in the attempt to smuggle out red sander wooden logs - Even in the order of the Original Authority, it is held that the custom house agent has not discharged his duty in the normal course of his service - As rightly observed by the Tribunal, for failure to discharge functions as a Custom House Agent, penalties are provided in the Customs House Agents Licensing Regulations - Imposition of penalty under Section 114(i) of the Customs Act is unwarranted -No reason to differ with the finding of the Tribunal. (para 7)


Dinesh D Bajaj Vs CC (Dated: January 9, 2015)

Customs - Appeal against order of the Tribunal directing pre-deposit - The order of the Tribunal shows that the Tribunal was benevolent in ordering pre -deposit of Rs.45.00 lakhs, which comes to approximately 30% of the total amount demanded - It is seen that the Tribunal is consistently following the procedure of ordering 25% of the total demand in many cases - The grant of waiver of pre-deposit depends on the facts and circumstances of each case and the discretion is vested with the Tribunal to grant the same - Even assuming that the appellant had paid a sum of Rs.27.00 lakhs, the same comes to only 17% of the total demand, which is not a substantial amount - Even the pre -deposit ordered by the Tribunal and the amount paid by the appellant, which comes to approximately Rs.72,00,000/-, do not cover 50% of the total amount demanded - Since the appellant, at the threshold, did not show any documentary evidence showing prima facie case in their favour, much less financial hardship, no need to interfere with the order of the Tribunal - Tribunal is justified in ordering pre -deposit of Rs.45.00 lakhs. (para 9)


CC Vs P A Sawani (Dated: January 19, 2015)

Cus -Maintainability of Appeal -Penalty of Rs.10 ,000 /- set aside by CESTAT - Revenue appeal was admitted by High Court on 22.08.2007 and substantial questions of law were also formulated -However, in view of CBEC instruction dated 17.8.2011, tax appeal below Rs.10 lakhs is not maintainable and this instruction also applies to the pending a ppeal -following the decision of the Division Bench of this Court in the case of Stovec Industries 2013-TIOL-214-HC-AHM-CX, tax appeal is not maintainable -Revenue appeal dismissed: High Court [ para 3, 4]


Additional Director General Directorate General Of Revenue Intelligence Vs M/s J K S Air Travels (Dated: January 5, 2015)

Cus - Without making his appearance before the officer concerned and avoiding the summons issued, filing of Writ Petition by the Respondent/Petitioner is a premature and otiose one - such petition is devoid of merits: High Court [ para 22]



CCE Vs M/s Molex India Ltd (Dated: October 16, 2014)

Customs - Proper officer - Demand of customs duty under Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 - Deputy Commissioner of Central Excise is not proper officer to demand customs duty under Section 28 of the Customs Act, 1962 - No error in the order of Tribunal holding that the Show Cause Notice is invalid.

From a conjoint reading of Section 2(34) and 28 of the Customs Act, it is manifest that only such a customs officer who has been assigned the specific functions in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose. (para 7)

The power of recovery of duty is expressly conferred on the customs officers under Section 28, who is the "proper officer" who should be entrusted with the responsibility, is vested with the Board or Commissioner of Customs under Section 2(34). The Central Government had no power to entrust that responsibility to a person who is not even a Customs Officer. Therefore Rule 8 runs counter to Section 28 read with Section 2(34) of the Act and to that extent, it cannot be enforced. (para 8)

A notification came to be issued subsequently (44/2011-CUSTOMS (N.T.), Dated : July 06, 2011) in exercise of the powers conferred by subsection (34) of Section 2 of the Customs Act, 1962 and the Central Board of Excise and Customs assigned the functions of the proper officer to the Central Excise officers mentioned in column (2) of the Table, for the purposes of section 17 and section 28 of the Act - For the first time, the Board appointed Deputy Commissioners or Assistant Commissioners of Central Excise as proper officers for the purpose of section 17 and section 28 of the Act. Till such time, neither the Board nor the Commissioner of Customs had appointed them as proper officers. (para 10)

There is no error committed by the Tribunal in quashing the show cause notice and holding that the Deputy Commissioner had no jurisdiction to initiate proceedings. The substantial question of law is answered in favour of the assessee and against the Revenue. (para 12)



Manu Khosla Vs UoI (Dated: December 8, 2014)

NDPS - Petition against Detention order - The petitioner is evading the law - His bail was cancelled by this Court on 23.09.2014. In spite of the same, he has not surrendered - Merely because his Special Leave Petition is stated to be pending, he cannot evade arrest - Such conduct of the petitioner, disentitles him from approaching this Court in the exercise of its discretionary writ jurisdiction - The arrest warrants pertain to a criminal case under the NDPS Act - Even otherwise, the court is not inclined to exercise its discretionary jurisdiction in the present matter, at this stage - Petition dismissed. (para 13)


M/s A S Constructions And Lighting Co Vs Addl Director of Revenue Intelligence (Dated: January 6, 2015)

Customs - Writ Petition against Show Cause Notice proposing confiscation of Sandalwood logs attempted to be exported in the guise of handcrafts on the ground that the proposal has been effected on the wrong opinion given by the Deputy Director (Handicrafts) and the petitioners were not given an opportunity to prefer an appeal against such opinion - Held: The impugned proceedings is only a show cause notice and it is well open to the petitioner to submit their reply and contest the matter on merits - No merit in the Petition. ( para 3)

Writ Petition against Show Cause Notice proposing confiscation of Sandalwood lying in the office of the Petitioners - Petition seeking to quash the notice on the ground that the Sandalwood was logs were purchased through proper channel from the Forest Department after complying with all formalities

Held: The area where the petitioners' office premises is situated, falls within the 'specified area' which has been declared as an area vulnerable to smuggling in Tamil Nadu - Sandalwood has been listed as item No.182 in schedule 2 of the Indian Trade Classification (Harmonious System ) as item whose export in any form is prohibited excluding finished handicrafts products of Sandalwood, machine finished Sandalwood products and Sandalwood oil. The respondents were vested with jurisdiction to issue the impugned show cause notice in so far as Sandalwood logs lying in the petitioners' office premises - Writ Petitions devoid of merits. ( para 15 & 16)

2015-TIOL-133-HC-ALL-CUS

M/s Satya Shanti Export Vs CCE (Dated: December 9, 2014)

Cus -S.125 of Customs Act, 1962 - Export of non-basmati rice -Redemption fine imposable in lieu of confiscation is limited by the ceiling of market price of the confiscated goods -Tribunal could not have reduced the value declared and legalized a patent illegality -Appeal dismissed: High Court [ para 8, 9, 10, 12]


2015-TIOL-97-HC-AP-CUS

GMR Hotels And Resorts Ltd Vs UoI (Dated: December 30, 2014)

Foreign Trade Policy - Transfer of Served From India Scheme scrip - Transfer of scrip among group companies - Meaning of Group Company under para 9.28 of the FTP - Petitioner is a 100% subsidiary of GMR Hyderabad International Airport Limited and seeking to transfer the duty credit to holding company - Permission rejected by DGFT.



CC Vs M/s The West End Shipping Agency (Dated: January 5, 2015)

Cus - Tribunal should not pass drastic orders - Tribunal cannot defeat or frustrate the

right of the Revenue or the litigation itself - It should decide on case to case basis and the Revenue should get opportunity to seek a stay of implementation of the orders: High Court [ para 10]



Blue Star Ltd Vs UoI (Dated: January 5, 2015)

Cus - Served from India Scheme - Petitioner selling Air conditioners of an International company in India and providing after sales services - Policy clarification given by Policy Interpretation Committee exercising powers under the Foreign Trade (Development and Regulation) Act, 1992 holds that the services by the petitioner do not qualify for SFIS as it involves sale of goods only - In an order passed by the Bombay High Court in WP 2011 of 2014 - 2014-TIOL-2400-HC-MUM-CUS it is directed that the issue be examined independently by the Secretary, Ministry of Commerce, Govt. of India - Both sides fairly state that this order would also serve the ends of justice - Writ Petition disposed with the same order and directions as in earlier case: High Court [ para 3, 4]


CC (I&G) Vs Navshiv Retails Pvt Ltd (Dated: December 23, 2014)

Cus - Once the IMEI number was mentioned on the mobile handset and was duly declared then there is no possibility or chance of misuse and accordingly no threat to national security -Import of international luxury brand Mobiado embellished phones manufactured by OEM manufacturers is not prohibited under the FTP 2009-2014 - CESTAT order upheld -Revenue appeal dismissed: High Court [ para 6, 7]



CC Vs K V M Arjun (Dated: December 18, 2014)

Cus - s. 129B(2A) of Customs Act, 1962 - Whether CESTAT can grant extension of stay beyond the period of 365 days - issue is no longer res integra - Gujarat High Court in Commissioner vs. Small Industries Development Bank of India - 2014-TIOL-1102-HC-AHM-CX, has clearly held that the Tribunal, in appropriate cases, may extend the stay even beyond 365 days from the date of initial grant of stay - if the stand of the revenue is that such extension was without recording reasons or without passing speaking order as required by the decision of this Court (supra) it would be open for the Department to move a rectification application before the Tribunal - Tax appeal disposed of: High Court [ para 5]


M/s Karur KCP Packagings Ltd Vs CC (Dated: December 3, 2014)

Customs - Drawback - Flexible Intermediate Bulk Container Bags classified by the

Petitioner under CETH 6305 3200 - Department's contention to re -classify under CETH 3923 2990 rejected by the Commissioner (Appeals) and revenue's appeal is pending in CESTAT - Petition seeking directions to release drawback.


M/s Float Glass Centre Vs UoI (Dated: December 12, 2014)

Customs - Anti-dumping duty on Aluminium Alloy wheels - Extension of time period for completing the investigation by the DGAD in terms of first proviso to Rule 17 (1) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Article s and for Determination of Injury) Rules, 1995 - Whether the Government can extend the period of investigation retrospectively after expiry of the last date.

Documents

HIGH COURT RULING (CUSTOMS) - Taxindiaonline.comtaxindiaonline.com/RC2/pdfdocs/headnotes_index/Index_jan_aug_2015… · HIGH COURT RULING (CUSTOMS) 2015-TIOL-1991-HC-DEL-CUS CC Vs