CESTAT RULING (CUSTOMS)

2015-TIOL-1820-CESTAT-MUM

Gupta Coal India Pvt Ltd Vs CC (Dated: April 29, 2015)

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

2015-TIOL-1817-CESTAT-MUM

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

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

2015-TIOL-1816-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1804-CESTAT-HYD

Divis Laboratories Ltd Vs CCE (Dated: June 25, 2015)

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

2015-TIOL-1794-CESTAT-BANG

CC Vs M/s Dozco (India) Pvt Ltd (Dated: May 22, 2015)

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

2015-TIOL-1793-CESTAT-MAD

CC Vs M/s Pioneer Power Corporation Ltd (Dated: June 3, 2015)

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

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

2015-TIOL-1786-CESTAT-HYD

Microsoft India (R & D) Pvt Ltd Vs CC & CE (Dated: May 25, 2015)

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

2015-TIOL-1785-CESTAT-MUM

M/s Paramount Exports Vs CC (Dated: May 15, 2015)

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

CESTAT.

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

2015-TIOL-1769-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1766-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1765-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1754-CESTAT-MAD

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

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

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

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

2015-TIOL-1753-CESTAT-AHM

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

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

2015-TIOL-1734-CESTAT-AHM

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

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

2015-TIOL-1711-CESTAT-MUM

Rakesh Kumar Vs CC (Dated: July 22, 2015)

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

Also see analysis of the order

2015-TIOL-1705-CESTAT-AHM

Jay Agro Organics Ltd Vs CC (Dated: June 23, 2015)

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

2015-TIOL-1700-CESTAT-MAD

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

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

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

2015-TIOL-1689-CESTAT-AHM

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

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

2015-TIOL-1688-CESTAT-MAD

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

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

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

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

2015-TIOL-1673-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1645-CESTAT-MAD

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

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

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

2015-TIOL-1633-CESTAT-DEL

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

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

2015-TIOL-1623-CESTAT-AHM

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

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

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

2015-TIOL-1613-CESTAT-MAD

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

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

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

2015-TIOL-1612-CESTAT-MAD

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

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

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

2015-TIOL-1594-CESTAT-MUM

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

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

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

Also see analysis of the order

2015-TIOL-1590-CESTAT-MUM

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

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

2015-TIOL-1574-CESTAT-DEL

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

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

2015-TIOL-1562-CESTAT-MUM

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

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

2015-TIOL-1551-CESTAT-MUM

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

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

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

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

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

2015-TIOL-1544-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1524-CESTAT-DEL

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

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

2015-TIOL-1522-CESTAT-MUM

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

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

2015-TIOL-1510-CESTAT-MAD

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

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

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

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

2015-TIOL-1507-CESTAT-HYD

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

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

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

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

2015-TIOL-1506-CESTAT-MAD

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

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

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

2015-TIOL-1505-CESTAT-MUM

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

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

2015-TIOL-1499-CESTAT-AHM

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

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

2015-TIOL-1479-CESTAT-AHM

Haberdashery Products Pvt Ltd Vs CC (Dated: December 17, 2014)

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

2015-TIOL-1475-CESTAT-DEL

Shri Virender Bansal Vs CC (Dated: January 7, 2015)

Cus - Imports has been made duty free and goods have been diverted into domestic market which were not required so by importer - It was found that all these goods were purchased by Shri Vinod Kumar Garg and the imports made through Shri Vinod

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

2015-TIOL-1465-CESTAT-AHM

CC Vs Ceat Ltd (Dated: June 12, 2015)

Cus - Penalty cannot be imposed upon importer for some misdeeds of employee of their clearing agent during customs clearance of their imported goods - As per Super Chemicals Ltd , appeal filed by Revenue is rejected: CESTAT

2015-TIOL-1443-CESTAT-MAD

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

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

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

2015-TIOL-1428-CESTAT-KOL

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

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

2015-TIOL-1419-CESTAT-MAD

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

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

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

2015-TIOL-1408-CESTAT-MAD

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

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

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

2015-TIOL-1405-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1403-CESTAT-MAD

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

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

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

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

2015-TIOL-1461-CESTAT-BANG

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

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

2015-TIOL-1391-CESTAT-BANG

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

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

2015-TIOL-1378-CESTAT-DEL

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

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

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

2015-TIOL-1377-CESTAT-MAD

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

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

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

2015-TIOL-1375-CESTAT-MAD

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

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

2015-TIOL-1367-CESTAT-MAD

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

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

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

2015-TIOL-1366-CESTAT-MAD

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

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

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

2015-TIOL-1363-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1352-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1351-CESTAT-KOL

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

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

Appeal allowed: CESTAT [para 5]

2015-TIOL-1336-CESTAT-DEL

CC Vs A S Imports (Dated: May 6, 2015)

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

2015-TIOL-1335-CESTAT-BANG

JJ Exporters Ltd Vs CC & ST (Dated: March 2, 2015)

Customs -100% EOU - Eligibility ofinput credit -Expenses like bank charges, CA services, CHA services, Cargo Services - Qualify as input services required and in relation to manufacture and clearance of final products as no contrary evidence produced - Credit is admissible.(Para 4)

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

2015-TIOL-1305-CESTAT-MUM

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

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

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

2015-TIOL-1320-CESTAT-MUM

Ramesh Dalmia Vs CC (Dated: April 27, 2015)

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

2015-TIOL-1305-CESTAT-MUM

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

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

2015-TIOL-1304-CESTAT-MUM

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

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

2015-TIOL-1292-CESTAT-MUM

Halliburton Offshore Services Inc Vs CC (Dated: May 11, 2015)

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

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

2015-TIOL-1272-CESTAT-MUM

CC Vs Bhushan Steel & Strips Ltd (Dated: May 27, 2015)

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

2015-TIOL-1271-CESTAT-MUM

Bhatia Global Trading Ltd Vs CC (Dated: April 28, 2015)

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

2015-TIOL-1262-CESTAT-MAD

Peak Scientific Instruments (india) Pvt Ltd Vs CC (Dated: May 14, 2015)

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

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

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

2015-TIOL-1261-CESTAT-MAD

Miraj Marketing Vs CC (Dated: January 16, 2015)

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

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

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

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

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

2015-TIOL-1253-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1252-CESTAT-KOL

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

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

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

2015-TIOL-1239-CESTAT-DEL

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

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

Also see analysis of the order

2015-TIOL-1238-CESTAT-DEL

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

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

Also see analysis of the order

2015-TIOL-1224-CESTAT-MUM

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

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

Also see analysis of the order

2015-TIOL-1203-CESTAT-MUM

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

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

Also see analysis of the Order

2015-TIOL-1190-CESTAT-MUM

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

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

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

2015-TIOL-1186-CESTAT-MUM

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

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

Also see analysis of the Order

2015-TIOL-1181-CESTAT-MUM

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

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

2015-TIOL-1171-CESTAT-KOL

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

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

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

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

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

2015-TIOL-1166-CESTAT-DEL

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

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

2015-TIOL-1163-CESTAT-MUM

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

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

2015-TIOL-1150-CESTAT-BANG

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

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

2015-TIOL-1136-CESTAT-MUM

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

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

2015-TIOL-1135-CESTAT-BANG

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

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

2015-TIOL-1123-CESTAT-MAD

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

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

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

2015-TIOL-1121-CESTAT-MUM

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

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

Also see analysis of the Order

2015-TIOL-1116-CESTAT-MUM

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

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

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

2015-TIOL-1105-CESTAT-DEL

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

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

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

2015-TIOL-1104-CESTAT-MAD

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

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

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

2015-TIOL-1094-CESTAT-MUM

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

Cus - Enhancement in value by Customs Valuation Branch - Commissioner(A) dismissing appeal on the ground of being time barred and that in view of Board Circular 29/2012-Cus the appeal should be filed before the jurisdictional Commissioner (Appeals), New Delhi. Held: Commissioner(A) has misread the provisions of the law as well as the Board Circular referred - Any appeal against assessment order passed by Customs at JNCH will lie to the jurisdictional Commissioner(A), Nhava Sheva - matter is, therefore, remanded for fresh adjudication - DGOV is requested to direct the adjudicating in Delhi to decide the case expeditiously in the interest of justice as well as interest of Revenue - only after the case is decided by SVB Delhi, will the Commissioner(A), Nhava Sheva be able to take a view - further, it is directed that no additional EDD will be payable by apellant and only a PD will be submitted as per instructions in Board Circular 11/2001 - Appeals disposed of: CESTAT [para 6, 7, 8]

2015-TIOL-1084-CESTAT-MUM

Schlumberger Asia Services Ltd Vs CC (Dated: March 23, 2015)

Cus - ROM - Tribunal vide order dated 19.08.2014 referred the matter to the President for assigning the difference of opinion to a third Member for a majority decision - appellant filing a ROM application against the said order. Held: In the ROM application which runs into 14 pages, the applicant has listed out a large number of points and on going through the same, Bench does not find any obvious and patent mistake on facts - the applicant by using the process of ROM wants the Tribunal to re- appreciate various evidences and come to a different conclusion and which cannot be allowed - Application rejected: CESTAT [para 4, 6]

2015-TIOL-1080-CESTAT-MUM

CC Vs National Shipping Agency (Dated: May 18, 2015)

Cus - Tribunal does not have any powers under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 to take action or even to recommend or give any directions to the Commissioner regarding action against the errant officers – Miscellaneous application for rectification filed by Revenue allowed: CESTAT [para 5, 6]

Also see analysis of the Order

2015-TIOL-1079-CESTAT-MAD

M/s Indian Oil Corporation Ltd Vs CC (Dated: March 26, 2015)

Customs - Refund - appellant imported furnace oil, LSD/HSD and opted for provisional assessment as the price was not finalized - Subsequently, the same were finalized and the appellants were eligible for refund of excess CVD and BCD paid - The adjudicating authority sanctioned the amount but credited the same to the Consumer Welfare Fund on the ground that the appellants have not crossed the bar of unjust enrichment - same upheld by Commissioner (Appeals) and agitated herein.

Held: Finalization of provisional assessment under Customs law is governed under Section 18(5)(a) of Customs Act, 1962 - Sub-section (3), (4) and (5) of Section 18 was inserted with effect from 13.7.2006 - In the present case the finalization of

provisional assessment was completed in the year 1999 much before the insertion of sub-section (5) to Section 18 of Customs Act [Para 6, 7]

Delhi HC in appellant's own case considered the Apex Court ruling in the Bussa Overseas case, Allied Photographics case, Oriental Exports case and TVS Suzuki case and held inter alia that the unjust enrichment clause shall not apply for finalization of the provisional assessment for the cases prior to 13.7.2006 - Following the same, the appellants are eligible for refund of CVD and BCD and is not covered by unjust enrichment clause as the period involved is prior to 13.7.2006 - impugned order is set aside [Para 8, 9]

2015-TIOL-1067-CESTAT-DEL-LB

Rajhoo Barot Vs CC (Dated: September 12, 2013)

Cus - Conflict assumed in the order of reference is misconceived and there is no warrant for the Larger bench to resolve a non-existent conflict - Reference rejected and appeal remitted to Division Bench: CESTAT LB [para 6, 7, 8, 9, 11]

Also see analysis of the Order

2015-TIOL-1066-CESTAT-BANG

Laxmi Electronic Moulds & Precision Engineering Pvt Ltd Vs CCE, C & ST (Dated: January 27, 2015)

Customs - Appeal - Bar of limitation - Non-receipt of Order in Original - Letter issued by Postal authority - When cannot be relied upon - Order in Orig inal dispatched to appellant's address with acknowledgment due - Acknowledgement card produced by department clearly shows the reference Number, date of order-in-original and the fact that it relates to EPCG - Enquiry made with postal department with wrong reference number resulting in a favorable report from postal authority - Said letter issued by postal authority thus cannot be relied upon to justify non-receipt of order in original since reference number enquired does not relate to the acknowledgment delivered - Appeal was rightly dismissed as time barred. (Para 5)

Customs - Appeal barred by limitation - Recommendation of the lower authorities to decide the appeal on merits without considering the time bar in view of submission of all the information pertaining to licenses in question - Held is not binding on the Commissioner (A) in as much as the Commissioner (A) could not have condoned the delay in filing the appeal and therefore cannot go into merits of the case - Decision of the Commissioner (Appeals) thus cannot be faulted with - Appeal rightly dismissed. (Para 6)

2015-TIOL-1056-CESTAT-MUM

M/s Scope Amra Logistics (I) Pvt Ltd Vs CCE, C & ST (Dated: March 20, 2015)

Cus - Smuggling of Red Sanders - Penalties imposed on appellants u/s 114(i) of the Customs Act, 1962 on the ground that they have not complied the KYC norms and this act of commission on the part of the appellants lead to the smuggling of prohibited goods. Held: From the facts involved it is clear that the appellants were not involved in the smuggling of Red Sanders for the reason that the containers were stuffed and sealed with corrugated boxes at ICD, Waluj under physical supervision of customs officers, thereafter the custodian got control of the container; that tampering of seal, change of the goods i.e loading and concealment of prohibited goods took place in transit from ICD to the Nhava Sheva port - however, appellants have, although aware

about the Public Notice 17/2012, not complied with KYC norms, therefore, they have made themselves liable for imposition of penalty - nonetheless, imposition of penalties on companies as well as employees is not correct - it is not established from records that the employees have deliberately for their vested interest committed an act to make goods liable for confiscation - therefore penalties on employees not warranted - as the lapse is confined to non-compliance of KYC and not involvement in smuggling of Red Sanders, quantum of penalties is on the higher side and deserves reduction - penalties reduced from Rs.15 lakhs to Rs.5 lakhs: CESTAT [para 5, 5.1]

2015-TIOL-1053-CESTAT-MUM

M/s Ruchi Soya Industries Ltd Vs CC (Dated: February 09, 2015)

Cus - Refund - Liquid cargo import - Shore tank quantity received is less than the Bill of Lading quantity - therefore, the duty paid by appellant on the Bill of Lading quantity is in excess of duty actually payable on the quantity imported - inasmuch as shore tank receipt quantity should have been taken into account for calculation of duty in terms of Board Circular 96/2002 - refund claim filed by appellant rejected on the ground that Board Circular was further amended by Circular 6/2006 according to which assessment was to be done on the invoice price when duty is payable on ad valorem basis and was to be done on shore tank quantity received when duty is payable on specific rate basis - appeal to CESTAT. Held: Reliance on Circular of 2006 is not correct - Valuation aspect should not be confused with the aspect of duty payable on goods - what is important is to see that the value of the goods imported and duty has to be charged on goods actually imported as per apex court decision in Nocil - it is held by the Supreme Court in the case of Garden Silk Mills 2002-TIOL-19- SC-CUS that import of goods is completed when the goods become part of the mass of goods within the country, the taxable event being reached at the time when the goods reach the customs barriers - same view has been reaffirmed in the case of Ruchi Infrastructure and General Foods - law as it exists clearly lays down that the value on which duty is payable will be the value of goods actually imported into the shore tanks - Order set aside and appeal allowed with consequential relief: CESTAT [para 6.3, 6.4, 7]

2015-TIOL-1051-CESTAT-MUM

M/s Dsm Sinochem Pharmaceuticals India Pvt Ltd Vs CC (Dated: January 23, 2015)

Cus - Notification 102/2007-Cus - Refund of SAD - There is no limitation for refund of SAD prescribed under section 27 of the Customs Act, 1962 - Limitation period cannot be started before the claim has crystallised - appellant entitled to refund of SAD - appeal allowed - Adjudicating authority to grant refund with interest within period of six weeks: CESTAT [para 5]

2015-TIOL-1038-CESTAT-BANG

Bharat Tissues Pvt Ltd Vs CCE, C & ST (Dated: March 6, 2015)

Customs - Bonded Warehouse - Warehoused goods not removed within the time provided for storage in the warehouse - Request for extension of time rejected on justifiable ground - Consequential duties and penalty sustainable. (Para 3)

2015-TIOL-1037-CESTAT-BANG

M/s Travancore Titanium Products Ltd Vs CC (Dated: January 5, 2015)

Customs - Installation of capital goods imported under Notification No. 97/2004 - Extension of time - Limitation - Installation in six months provided in Notification is merely procedural in nature - Notification does not restrict itself to the period for which extension can be granted by competent authority - The genuineness and bona fide of delay is required to be assessed by authority from various circumstances available in a particular case - Appellant is a Government Undertaking and is primarily depended upon the funds to be provided by the Government and apparently delay occasioned due to lack of funds - More over, the Pollution Control Project is a huge one requiring time beyond normal period for installation of capital goods - On facts, request for extension of time till December 2015 allowed and seeking further extension on genuine reasons may be considered by the Commissioner - Impugned order declining extension of time set aside - Appeal allowed. (Para 6)

2015-TIOL-1027-CESTAT-MAD

Radice Ispat (India) Ltd Vs CC (Dated: November 21, 2014)

Customs - Penalty - appellants imported MS Re-rollable scrap through high sea sale basis, which, on examination, were found to be seconds/defective/billets - The adjudicating authority confiscated the goods with an option to redeem the goods by imposing a redemption fine; a penalty under Section 112 (a) on the firm and on the High Sea Seller - Commissioner (Appeals) in the impugned order upheld the demand and confiscation and reduced the fine and penalty; agitated herein.

Held: Dispute in the instant case is on the question of classification and valuation whether goods are MS re-rollable scrap or defects - The Bills of Entry were ordered by Appraising Group for first check examination and on examination, the goods were found to be seconds and defectives and the value was enhanced - admitted fact that appellants have not imported their goods directly but purchased on High Sea Sale - Appellants being a manufacturer imported the goods under actual user for their own consumption for manufacture of final goods; penalty imposed by the adjudicating authority on the High Seas seller was set aside by the lower appellate authority - considering overall facts and circumstances of the case, redemption fine reduced from Rs.1 lakh to Rs.50,000/- (Rupees Fifty thousand only) and the penalty is reduced from Rs.25,000/- to Rs.10,000/- (Rupees ten thousand only); impugned order is modified accordingly [Para 5, 6]

2015-TIOL-1014-CESTAT-MAD

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

Customs - Offence - Based on a specific intelligence export container was detained by DRI who found 'Ketamine Hydrochloride' valued at Rs. 70,00,000/-, were stuffed in plastic packets resembling onion in size - consignment absolutely confiscated; and penalties imposed on firms (exporter and CHA) and individuals; agitated by the individuals herein.

Held : By virtue of limitation provided under Section 117 adjudicating authority has no power to impose more than the limit specified under the section 117 of the Act - imposition of penalty of Rs. 10,00,000/- and Rs.5,00,000/- on the appellants exceeding Rs.1,00,000/- is beyond the powers vested under Section 117 of the Customs Act - the investigating agency deliberately invoked penal provisions under Section 117 of the Customs Act and not invoked Section 114, and the same was upheld by the adjudicating authority - The reason for not invoking Section 114 or any other section is best known to the investigating agency who issued the show cause notice and to the adjudicating authority; the lower authorities having chosen to invoke only Section 117 penalty on the appellant and the adjudicating authority can impose maximum penalty of Rs.1,00,000 - impugned order is modified to that extent of reduction in penalty [Para 8, 9, 10]

Also see analysis of the Order

2015-TIOL-994-CESTAT -MAD

M/s Salzer Electronics Ltd Vs CCE & C (Dated: October 24, 2014)

Customs - Stay / dispensation of pre deposit - Exemption - applicants were engaged in the manufacture of Modular Switches and parts thereof; imported parts of Switches and paid concessional rate of duty under exemption notification No. 25/09-Cus dated 28.02.1999 - Revenue viewed that the applicant has filed to fulfil the condition of the exemption notification as they have not followed the procedures set-out in the Customs (Import of Goods at Concessional Rate of Duty for manufacture of Excisable Goods) Rules, 1996 - duty demand with interest and penalty adjudicated, upheld by Commissioner (Appeals), and agitated herein.

Held: As per the condition of the exemption Notification, the imported goods would be used in the registered premises of the applicant - In the present case, the applicant failed to comply with the condition of the Notification as they have sent the imported goods to their other unit in Una, which is not registered for the purpose of the availment of concessional rate of duty under the Notification - applicant failed to make out a prima-facie case for waiver of pre -deposit of entire amount of duty along with interest and penalty; they are directed to make a pre -deposit of further amount of Rs. 4,00,000/- (Rupees four lakhs only) within a period of eight weeks. [Para 3]

2015-TIOL-993-CESTAT -MAD

Sanket Praful Tolia Vs CC (Dated: February 3, 2015)

Customs - Stay / dispensation of pre deposit - Imports against DFRC License - Revenue investigated the impugned imports and concluded that the importer- appellant in connivance with the brokers and the employee of the CHA, fabricated TRAs without mentioning the GSM therein and caused duty evasion which was discovered during investigation - demands adjudicated with penalties on firm and individuals, agitated herein.

Held: Revenue's submission that GSM decides the duty liability is appreciable - Prima facie, all the appellants acted hand in glove to cause loss to Revenue without mentioning the GSM in TRAs when DFRC specifically mentioned GSM with appropriate description of the goods and the TRAs fabricated without GSM mentioned therein were used to cause evasion of duty - balance of convenience tilts in favor of Revenue - pre deposits merited. [Para 6]

2015-TIOL-991-CESTAT -KOL

Sesa Goa Ltd Vs CC ( Dated: March 18, 2015)

Cus - Assessee filed refund claim on the ground that they have paid excess export duty as there was short shipment of export goods which was rejected on time bar - Commissioner(A) has recorded a categorical finding in relation to plea of assessee that what have been collected from them satisfy the definition of 'duty' as prescribed under Section 2(15) of Customs Act, 1962, hence refund of same is governed by provisions of Customs Act, 1962 - He has observed that since it is not a case of collection of duty under provision of law declared later as ultra vires, hence provisions of Section 27 of the Act is applicable to present refund claims in view of principle of law settled by Supreme Court in Mafatlal Industries Ltd. 2002-TIOL-54-SC-CX-CB - Assessee's

appeal being devoid of merit is dismissed: CESTAT [Para 4, 5]

2015-TIOL-979-CESTAT -DEL

M/s German Garden Ltd Vs CCE (Dated: May 5, 2015)

Cus - Notfns 126/1994-Cus and 136/1994-CE - Assessee, 100% EOU were issued LOP for production and export of roses and other kinds of flowers - Demand confirmed of CE duty and Customs duty foregone on the ground that assessee failed to fulfil conditions of said notfns under which full duty exemption was availed of and also failed to fulfil conditions of said LOP by not utilising the goods procured duty free for producing and exporting flowers as require d and not achieving positive NFE - In said Notfns, there was no provision to recover only proportionate duty foregone, therefore, the fact that they had made some exports, is immaterial for purpose of assessee's duty liability because in spite of those exports, they remained in clear violation of conditions of exemption under said notfns, so, assessee were rendered ineligible for exemption there-under and entire duty foregone became recoverable - Duty free imported goods were clearly rendered liable to confiscation as they were cleared duty free under Notfn 126/94-Cus. but condition of exemption was not fulfilled by them - No disability found in Rule 173 Q which makes it inapplicable to 100% EOU - Assessee's contention of double jeopardy on the ground that they have already been penalised under FTDR Act, 1992 is totally invalid as ingredients of offences under FTDR Act and Customs Act, 1962/CEA, 1944 are different - No clandestine removal of goods involved or any wilful mis-statement or suppression of facts and even appellate body of DGFT in given circumstances had taken a lenient view with regard to imposition of penalty for violation of provisions of Foreign Trade Development and Regulation Act - Impugned order upheld except to extent of penalties which are reduced to Rs. One lakh under Section 112 of Customs Act, 1962 and Rs.12 lakhs under Rule 173Q of CER, 1944/ Rule 25 of CER, 2002: CESTAT

2015-TIOL-977-CESTAT -MAD

CC Vs M/s DCW Ltd (Dated: March 13, 2015)

Customs - Exemption - Revenue's contention that education cess is payable on determinable basic duty even when basic customs duty is exempt subject to debit in DEPB, culminated in the instant departmental appeal, agitating Commissioner (Appeals)'s order.

Held: Issue covered by the Madras HC ruling in the DCW case and the Gujarat HC ruling in the Pasupati Acrylon case in favor of respondent; the Gujarat HC ruling subsequently upheld by the Apex Court.

2015-TIOL-976-CESTAT -MUM

M/s Goldfinch Hotels Pvt Ltd Vs CC (Dated: March 27, 2015)

Cus - Notfn. 103/2009-Cus - Import of Rolls Royce Ghost - If the Central Govt. in its wisdom introduces a beneficial scheme under the FTDR Act the benefit of such legislation is to be made available by the Customs department - Commerce Ministry is responsible for the issuance of the FTP and has the final say – no violation of any condition of the EPCG license, FTP or the Customs Notification - Benefit of notification available - Assessee appeals allowed, Revenue appeal dismissed: CESTAT

Also see analysis of the Order

2015-TIOL-969-CESTAT -MUM

Goan Hotels And Clubs Pvt Ltd Vs CC (Dated: April 21, 2014)

Cus - Adjudicating authority held that 'calcareous stone' imported by appellantunder EPCG scheme would be classifiable under CTH 6802 2900, however, denied benefit of exemption Not. 103/2009-Cus, ordered confiscation of goods with option to redeem the same on payment of fine, also imposed penalty - in the first round of litigation, Tribunal allowed the appeal of importer -Bombay High Court set aside the order and remanded the matter to Tribunal for denovo consideration: HELD - The EXIM classification of the export and import items were aligned with Customs Tariff w.e.f. 1.4.2002, in terms of notification issued by the Department of Commerce and Industry under the EXIM Policy - from the provisions of the Policy, it is evident that the classification under Indian Customs Tariff and the ITC (HS) have been aligned completely with each other effective from 1.4.2002 - if that be so, Customs cannot classify the goods under different entry other than 6802 2900 in r/o goods under importation - it is clear that there cannot be two classifications, one under entry 6802 29 00 for customs duty purpose and another under 6802 22 00 for ITC (HS) purpose - adjudicating authority overlooked the fact that entry 6802 22 00 had been omitted from ITC (HS) Policy effective from 2.3.2009 - inasmuch as there is no restriction on the import of goods under ITC (HS) in r/o goods falling under entry 6802 29 00, the question of denying benefit of Not. 103/2009-Cus would not arise at all - further, as the goods were freely importable, the question of the goods being liable to confiscation u/s 111(d) also would not arise - appeal allowed : CESTAT [para 5, 5.1, 5.2, 5.3, 5.4, 6]

2015-TIOL-968-CESTAT -MUM

M/s Global Vectra Helicorp Ltd Vs CC (Dated: April 29, 2015)

Cus - Notfn. 21/2002-Cus - Import of helicopter - DGCA being the appropriate licensing authority is the best judge to decide as to whether the activity of the importer comes within the ambit of the license issued by it - services provided by the importer are in the nature of non-scheduled passenger service as clarified by DGCA - Exemption available - Appeal allowed: CESTAT [para 7, 7.1, 8]

Also see analysis of the Order

2015-TIOL-967-CESTAT -AHM

M/s G S Sales Corporation Vs CC (Dated: January 1, 2015)

Cus - Provisional release of seized goods was allowed by commissioner only on execution of a Bond and also imposed conditions by executing bonds of an amount equivalent to the value of goods with 25% of Bond value as Bank guarantee - It is ordered that provisional release of seized goods should be allowed on basis of execution of a Bonds equivalent to the amount of value of seized goods, without insisting for any bank guarantee/cash security, as it is a case of export and foreign exchange earning - Appeal allowed: CESTAT [Para 5, 6]

2015-TIOL-958-CESTAT -MUM

Ajay Clearing Enterprise Vs CC (Dated: October 22, 2014)

Cus -Export of Red Sanders under the guise of "furniture wood" - Commissioner revoked the CHA licence for contravention of Regulations 13(a), 13(d) and 13(e) of CHALR, 2004 - appeal to CESTAT.

HELD -The inquiry officer's report gives all the details of the enquiry proceedings, copy

of which was given to the appellant for their comments - no merit in the contention of appellant that inquiry proceedings were not conducted in proper manner -the evidences produced by investigation clearly establish the fact that exports were in a fictitious name - export goods on examination found to be "red sanders wood" which is a banned item -thus the contravention of Regulation 13(a) stands clearly established - appellant had not met the client at all, therefore, the question of advising the client would not arise at all, hence the contravention of Regulation 13(d) is also established - if the appellant does not know who his client is, he cannot exercise any diligence in ascertaining the correctness of the information furnished, hence the contravention of Regulation 13(e) also stand clearly established -no reason found to interfere with the findings and decision of the Licensing authority - appeal dismissed: CESTAT [para 5.1, 5.2, 5.3, 5.4, 5.5, 5.6]

2015-TIOL-948-CESTAT -KOL

M/s Baid Organization Pvt Ltd Vs CC (Dated: April 8, 2015)

Customs - Customs House Agents Licence - Licence revoked for CHA's role in fraudulent import of cars. No charge against the CHA proved except the charge of exercising due diligence - CHA was not aware of the fraudulent attitude of the importers and the operators who engaged themselves in fraudulent import of high end cars/SUVs. The CHA has already suffered for over four years on account of revocation of license. CHA Licence restored. Forfeiture of security deposit upheld.

Also see analysis of the Order

2015-TIOL-947-CESTAT -KOL

M/s Ansun Systems Consulting Pvt Ltd Vs CC (Dated: January 30, 2015)

Customs - Illicit import - Appellant firm imported goods declared as "..., Silicon Electrical Steel Strips/Scrap originated from old and used, dismantled, transformer" under Tariff Item 72044900 - Revenue viewed the same did not conform to the definition of scrap as per section notes 8(a) of the Section 15 of Customs Tariff Act, 1975 read with explanatory notes of HSN; that the said goods are not in the nature of scraps but "old and used Silicon Electrical Steel Strips"; and that their import is not permitted under para 2.17 of the Foreign Trade (2009-2014) Policy and CBEC instruction dated 9.7.2014 read with Steel and Steel Products Quality Control Order, 2012 and 2014 - confiscation with RF option and penalties on importer / CHA firms and individual (chartered engineer) adjudicated and agitated herein.

Held: Heading 72.04 of HSN excludes articles which can be reused for their former purposes or can be adopted for other uses with or without repair or renovation; evident that usability as such/after processing is an important criterion to arrive at the conclusion whether the goods are scrap - both examination report of the Dock Officers and the Chartered Engineer's report neither has considered the above aspect nor disclose the details of the examination report in respect of the impugned goods mentioning length, width, physical conditions to determine the nature/condition of the goods, whether they are usable as such/after re-processing - examination reports are inconclusive and the issue requires fresh adjudication - representative sample of the imported goods should be re -examined in presence of the importer's representative and the experts dealing in the relevant field to ascertain whether the items were usable as such or after their processing to arrive at the conclusion that the imported items are scrap or otherwise - impugned order set aside and matter remanded for disposal within one month from the date of re -examination to be conducted within 15 days of receipt of this order [Para 8-12]

2015-TIOL-939-CESTAT -MUM

Shri Nandu Raghunath Shinde Vs CC (Dated: November 21, 2014)

Cus - Attempt to smuggle Red Sandalwood - Consignment was seized and same was duly confiscated being a banned item for export - Appellant undertaking work as an employee of other CHA and at same time being paid for using pass issued by CHA, itself raises reasonable doubt that he was carrying on business in contravention of Section 146 of Customs Act - Second appellant agreed that it was incorrect on his part to have allowed the use of CHA License and for not obtaining authorization under Rule 13(a) of CHALR – Appellant miserably failed in his duties as a CHA agent and omission resulted in grave consequence of smuggling of prohibited goods - mens rea is not a necessary ingredient and there is no scope for any discretion in imposition of any penalty - Penalty correctly imposed: CESTAT [Para 6, 7, 8]

2015-TIOL-936-CESTAT -DEL

M/s S N K Trading & Exports Vs CC (Dated: March 9, 2015)

Cus - Assessee is an exporter of pneumatic tools and Manganese steel case articles - Benefit of DEPB was denied which was utilized for export of goods against shipping bills in question - But by impugned order or SCN in question, assessees were directed to reimburse the amount of DEPB which have already been utilized - Therefore, SCN has been issued correctly to appellant - In report placed before Tribunal vide invoice No. R I 102 dated 11.2.11, price is shown as 23.2 per piece and said goods have been exported in shipping bill No. 500172 to 500176 dated 15.2.11 wherein export price of goods has been shown as Rs.471.22 per piece - Presumption of Revenue is prima facie correct that assessee is having modus operandi to inflate value of goods to avail excess DEPB benefit - Assessee is dire cted to pre -deposit 20% of Rs.32,48,655/- plus Rs.6,11,736/- of amount of DEPB benefit denied by impugned order: CESTAT [Para 6, 7]

2015-TIOL-927-CESTAT -MAD

Ramacharan Petro Oils Vs CC (Dated: February 19, 2015)

Customs - Refund - appellant filed refund of customs duty paid on import of Zinc Oxide from Srilanka, under Notification No. 26/2000-Cus dated 01.03.2000 preferential rate of duty - claim rejected in adjudication on the ground of non- production of certificate of country of origin; rejection upheld by Commissioner (Appeals) and agitated herein.

Held: It is mandatory for importer to claim the notification benefit at the time of importation and before clearance of the goods - appellant claiming preferential rate of duty under notification No. 26/2000 for the goods imported for from Srilanka origin ought to have claimed the notification at the time of import and before cleara nce of goods - conditions stipulated in the said notification specific and mandatory, to be met before clearance of the goods - once Bill of Entry assessed and duty paid and appellants cleared the goods the assessment becomes final and the appellant did not contest or file appeal against the assessment order - Therefore, in view of the Apex Court judgment in the case of Priya Blue Industries the appellants are not eligible to claim the notification benefit by way of filing refund - no infirmity in the impugned order [Para 4]

2015-TIOL-925-CESTAT -MAD

M/s Kely Exports & Imports Vs CC (Dated: September 12, 2014)

Customs - Demand - Appellant 1 filed BE for importation of used tyres - Consignment was examined and Revenue viewed that the used tyres are restricted for import as per para 2.17 of the Foreign Trade Policy 2009 - 14, requiring specific licence; that BIS Certificate is required for the imported goods under Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control Order), 2009; and that the used tyres are to be categorized as waste tyres - Notice proposing rejection of the declared value of the imported goods; redetermination of the value under Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962; and confiscation of the goods under Section 111(d) and 111(m) of the Customs Act, 1962 with penalty - proposals confirmed in adjudication; impugned goods ordered to be re-exported under Rule 17(2) Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008; penalties imposed on both appellants; all upheld by Commissioner (Appeals) and agitated herein.

Held: Question of fact as to whether the impugned goods are "used" or "waste" remains unaddressed - appropriate to remand this matter to the adjudicating authority to decide afresh in the light of the decision of the Tribunal in the case of Al Noor Exports & Imports - impugned order set aside and matter remanded to the adjudicating authority to decide afresh after giving a reasonable opportunity of hearing to the appellants. [Para 7]

2015-TIOL-918-CESTAT -MUM

M/s C And M Farming Ltd Vs CC (Dated: March 23, 2015)

Cus - Appellant seeks extension of stay on the ground that their appeal has not come up for disposal for no fault of theirs - As per Venkateswara Filaments Pvt. Ltd. & Ors. - 2014-TIOL-2388-CESTAT-AHM, since stay was in force beyond 07.08.2014, same would continue till the disposal of appeal - Application allowed: CESTAT [Para 3, 4]

2015-TIOL-909-CESTAT -MUM

India Tourism Development Corporation Vs CC (Dated: April 6, 2015)

Cus - Condonation of delay of 1862 days in filing appeal against O -in-A-Remission of duty and relinquishment of title of the goods which were destroyed during floods on 26/07/2005 - appellant had filed two Writ Petitions before Bombay High Court and High Court vide order dated 14/03/2013 directed appellant to file appeal before CESTAT and declined to entertain W.P. Held: Since the appellant was seeking remedy before the higher judicial forum as was advised to them, the delay is suitably justified - delay condoned and application allowed: CESTAT [para 2]

2015-TIOL-908-CESTAT -MAD

CC Vs M/s Shubham Construction (Dated: January 22, 2015)

Customs - RF and penalty - respondents imported ‘Digital Multifunction Printing and Photocopying Machines' which are restricted goods - confiscation under Section 111 (d) with RF option and penalty under Se ction 112 of the Customs Act, 1962 adjudged; partial relief granted on quantum of RF and penalty by Commissioner (Appeals); agitated by Revenue herein.

Held: Lower appellate authority has not considered the facts of repetitive offence committed by the respondent while reducing the redemption fine and penalty - Respondents cleared identical goods repetitively and the impugned import is the third one; question of restriction prior to 28.02.2013 settled by the High Court of Madras Final Order dated 14.03.2013 in the case of CC Vs. City Office Equipments & Others

holding that the Digital Multifunction printing and photocopying machines are restricted items as per amended para 2.17 of the Foreign Trade Policy only w.e.f. 28.03.2013 - impugned import was made on 05.08.2009 and in view of the High Court ruling, the impugned order reducing the redemption fine and penalty is set aside and the matter is remanded to the lower appellate authority, with the direction to re-determine the redemption fine and penalty in the light of the HC judgment. [Para 4]

2015-TIOL-907-CESTAT -DEL

M/s Gopal Agarwal Vs CC (Dated: January 14, 2015)

Cus - Import of goods in the name of IEC holder - No bar under Customs Act to import goods in the name of IEC holder and there is no offence for lending of IEC code - No allegation of any misdeclaration, mis -representation or under-valuation of goods - Merely IEC holder lending the IEC to a third party is not an offence under the Act - Penalty for violation of Section 7 of Foreign Trade Development and Regulation Act 1992 cannot be imposed under Customs Act - Appeal allowed: CESTAT [Para 2, 6]

2015-TIOL-905-CESTAT -DEL

M/s R P S Clothing & Linen (P) Ltd Vs CC (Dated: March 20, 2015)

Cus - export is not liable to duty but misdeclaration of higher value to claim higher drawback is breach of law and is one of the modality of hawala transactions -violation of provisions of section 113 of Customs Act, 1962 proved -redemption fine imposable: CESTAT [ para 6, 7, 8]

Also see analysis of the Order

2015-TIOL-888-CESTAT -MUM

M J Bio-Pharm Pvt Ltd Vs CCE (Dated: April 17, 2015)

Cus - Notfn. 21/2002-Cus - Manufacturing of medicines as per Drugs and Cosmetics Act and Rules made thereunder cannot be undertaken unless the raw materials are tested for which sampling is undertaken - quality control test is very much part of manufacturing process and integral to it - withdrawal of 5 gms of raw material from each consignment for testing purpose does not mean that entire raw materials were not used for intended purpose viz. manufacture of final product so as to demand Customs duty by alleging non-compliance of notfn. 21/2002-Cus - Orders passed by lower authorities is totally incorrect - Orders set aside and appeals allowed: CESTAT

Also see analysis of the Order

2015-TIOL-870-CESTAT -MUM

Millenium Steel (I) Pvt Ltd Vs CCE (Dated: March 10, 2015)

Cus - Modification application or Review - If the points now urged are taken note of and the order is modified, it would amount to a review of Tribunal's order and which is not permissible - no merit in the modification application and hence same is rejected - however, in the interest of justice, appellant is given two weeks more time to comply with pre -deposit order and report compliance: CESTAT [para 3]

Cus - Classification of Coal - whether classifiable as Steam Coal as claimed by appellant importer or as Bituminous Coal as alleged by department - Tribunal while deciding stay application vide order dated 18.11.2014 directed appellant to make a pre -deposit of the entire amount of Customs duty demand of Rs.1,00,55,335/- - Appellant filing a modification application and submitting that in an identical matter, the co -ordinate Bench at Chennai in the case of TANGEDCO - 2014-TIOL-2503- CESTAT -MAD on 18/11/2014 had referred the matter for consideration by the Larger Bench and waived the pre -deposit of duty along with interest and penalty till disposal of appeal by LB; that in two other identical cases also the Circuit Bench at Hyderabad had granted stay; that, therefore, impugned order be modified and the direction to make pre-deposit be withdrawn and waiver be granted. Held: Tribunal had taken into account the final order of the Bangalore Bench in the case of Coastal Energy Pvt. Ltd. - 2014-TIOL-1157-CESTAT-BANG wherein it was held that the coal imported having volatile matter content exceeding 15% and gross calorific value limit exceeding 5833 cal/kg would merit classification as "bituminous coal" - subsequent orders of the Tribunal, either by the Madras Bench or by the Circuit bench at Hyderabad are only interim orders whereas the decision relied upon by the Tribunal while passing the stay order is based on a final order - it is a settled position of law that interim orders passed by the co -ordinate benches do not have any binding value - also interim order relied upon is subsequent to the passing of the order by the Bench in the appellant's case and, therefore, cannot be said to have any precedential value: CESTAT [para 2]

2015-TIOL-859-CESTAT -MUM

M/s Elephanta Oil & Vanaspati Industries Ltd Vs CC (Dated: February 11, 2015)

Cus - Appeal filed in 2004 against O-in-O dated 18.11.2003 passed by Commissioner of Customs (Imports) confirming duty of Rs.55.77 lakhs; confiscation of seized SS drums, imposition of penalty etc. - During pendency of appeal, appellant company went into liquidation as per order dated 10.10.2013 passed by Delhi High Court - since Directors of company have become functus officio and company has been taken charge by Official Liquidator - notices issued to Official Liquidator, however, they have failed to respond or communicate in this matter. Held: Inaction and/or non- appearance on part of Official Liquidator is viewed seriously and notice issued by way of last chance failing which Tribunal shall go for ex parte disposal of appeal which is pending for more than 10 years - Registry directed to serve copy of this order by Fax/Email on the Official Liquidator: CESTAT [para 3, 4]

2015-TIOL-849-CESTAT -DEL

Shri Krishna Woollen Mills Vs CC (Dated: December 10, 2014)

Customs - Provisional Release - Export consignment of carpets seized on grounds of misdeclaration and overvaluation with intent to claim higher drawback - conditions imposed in adjudication for provisional release; of providing BG of 25% FOB Value of seized goods inter alia - BG condition reduced to 15% by Commissioner (Appeals), and agitated herein for further reduction.

Held: Overvaluation of 500% has been alleged; no provisional assessment is resorted to; appellant have not been co-operating with the department and have been avoiding summons and have not provided necessary information required to process the case -

Once attempt to export is made after gross overvaluation and later appellant have come forward to withdraw consignments, intention to defraud revenue are prima facie indicated - Commissioner (Appeals) has already taken excessive lenient view and has reduced bank guarantee; no justification to consider any further modification relating to furnishing of Bank Guarantee - In the circumstances when consignment has been allowed to be withdrawn, reduction in bank guarantee was not justified - Since over valuation of attempted export is alleged, sufficient security has to be ensured for imposition of sufficient fine an penalty to discourage this type of attempt - no force in the plea for further modification [Para 13, 15]

2015-TIOL-848-CESTAT -MUM

M/s Milliard Logistics Pvt Ltd Vs CC (Dated: March 27, 2015)

Cus - NOCs presented before Customs authorities & allegedly issued by FSSAI were found to be forged/bogus - Goods released provisionally on payment of duty, BG and bond as well as production of fresh NOC issued by FSSAI - there is no serious charge against appellant or loss of revenue requiring prohibition of Customs broker from carrying on his business - Appeal allowed: CESTAT [para 5]

Also see analysis of the Order

2015-TIOL-846-CESTAT -MUM

M/s Paras Industries Ltd Vs CC (Dated: December 30, 2014)

Cus - s.27, 28D of Customs Act, 1962 - Refund of excess fine and penalty paid by appellant - Lower authorities rejected the claim on the ground of unjust enrichment - As per United Spirits Ltd. 2009-TIOL-316-HC-MUM-CUS, principle of unjust enrichment would not apply to refund of fine and penalty - In absence of any legal provision, principle of unjust enrichment cannot be applied to fine and penalty - Appeal allowed: CESTAT [Para 2, 5]

2015-TIOL-833-CESTAT -MAD

CC Vs M/s Lap Ross Engineering Ltd (Dated: February 25, 2015)

Customs - Condonation power - dispute is whether or not appeal can be filed by Revenue beyond one-month time prescribed by Section 129D (4) read with first proviso to Section 128 of the Customs Act, 1962.

Held: Section 129D (4) read with first proviso to Section 128 of the Customs Act empowers the Commissioner (Appeals) to condone the delay - No reason recorded for not exercising his power to invoke first proviso to Section 128 of the Act and he has proceeded as if he is not empowered under the law - disposal of appeal at the threshold on the ground of limitation without looking to the substance of law causes jeopardy to Revenue, which should be avoided in future - appeal is remitted to Commissioner (Appeals) for for denovo consideration granting fair opportunity of hearing to both sides [Para 1, 2]

2015-TIOL-832-CESTAT -DEL

M/s Sanjeev Woollen Mills Vs CC (Dated: February 20, 2015)

Cus - Assessee seeking rectification/ review of Final Order dated 01.11.2013 after

dismissal of civil appeals against same order by Supreme Court - Relevant principles are no longer res integra - Issue is settled by judgement of Supreme Court in Kunhayammed and Others 2002-TIOL-50-SC-LMT-LB - Jurisdiction of Tribunal to entertain the review application on its merits is eclipsed in view of merger of Final Order dated 01.11.2013 in the order of Supreme Court dated 03.07.2014, dismissing Civil Appeal - Application rejected as not maintainable: CESTAT [Para 5, 6, 7, 8]

2015-TIOL-820-CESTAT -MAD

Om Prakash Vs CC (Dated: November 19, 2014)

Customs - Stay / dispensation of pre deposit - offence - applicant filed shipping bills for export of household materials; examination revealed that Ketamine Hydrocholoride, a restricted item was concealed therein - penalties imposed on the firm and individual under Sec 114 of the Customs Act 1962, agitated herein.

Held : No dispute that the exporter concealed Ketamine Hydrocholoride in their export consignment and declared the same as household items; that they had not obtained "no objection certificate" - CHA M/s. Fairdeal Enterprises Pvt. Ltd., was involved in all these illegal exports - Both the applicants failed to make out a strong prima facie case for waiver of pre-deposit of the penalty - individual directed to pre -deposit Rs.10,00,000/- (Rupees Ten Lakhs only) and firm to pre -deposit Rs.1,00,000/- within a period of eight weeks. [Para 4, 5]

2015-TIOL-818-CESTAT -AHM

M/s Saheli Synthetics Pvt Ltd Vs CC (Dated: December 12, 2014)

Cus - Refund of sale proceeds of auctioned goods - Goods were confiscated by Commissioner of Customs and option was given to appellant to redeem the same on payment of Redemption fine of Rs. 20 Lakh within 15 days - Fine so imposed by adjudicating authority was reduced to Rs. 7.5 Lakh as a result of CESTAT's order - Auction of goods was done after giving a notice to appellants - Confiscated goods were not redeemed, within stipulated time either after Adjudication order or its modification by CESTAT - In absence of any contest and also not taking redemption of the goods, appellant has no case: CESTAT [Para 5, 5.1, 6]

2015-TIOL-811-CESTAT -MUM

Benudhar Samal Vs CC (Dated: March 28, 2015)

Cus - Appeal dismissed by Commissioner(A) on the ground that the same was filed after 63 days and which is more than 60 days being the prescribed period of limitation and in the absence of any application for condonation of delay - appeal before Tribunal. Held: The last day for filing appeal fell on a Saturday - appeal was, therefore, filed on the following working day viz. Monday - in terms of the provisions of section 10 of the General Clauses Act, 1897 and S.4 of Indian Limitation Act, 1963, when the compliance date falls on a holiday, assessee can make compliance on the following working day - in the interest of justice, o-in-a set aside and matter remanded to Commissioner(A) to decide appeal on merits: CESTAT [para 4]

2015-TIOL-809-CESTAT -MUM

M/s Puja Enterprises Vs CC (Dated: February 25, 2015)

Cus - Refund - Unjust enrichment - Consequent to High Court's direction, an amount

of Rs. 6,13,139/- was paid as duty even though the Bill of Entry was assessed provisionally - goods were released accordingly - When the amount has been paid as duty, test of unjust enrichment will have to be applied - Appellant failed to submit an invoice to justify his stand and, therefore, has not been able to clear presumption under Section 28D of Customs Act, 1962 - Simply stating that goods were sold at a loss does not establish that duty incidence was not passed - C.A. certificate dated 19.11.2010 clearly states that amount of duty has been added to cost of material purchased in balance -sheet - This establishes that burden of duty was passed to customers - Appeal rejected: CESTAT [Para 5, 5.1, 6]

2015-TIOL-808-CESTAT -MUM

M/s Permionics Membranes Pvt Ltd Vs CC (Dated: August 18, 2014)

Cus - Penalty - Goods exported by appellant were loaded on vessel by Shipping line before the "Let Export Order" was passed by proper officer of customs - No allegation nor any evidence in Notice that appellant was aware of loading of goods before "Let export order" - Appellant has no control over goods or their loading once the goods are carted into the port and the responsibility to ensure that goods are not loaded on vessel before Shipping Bill is passed is squarely cast on the person in charge of conveyance under Section 40 of Customs Act, 1962 - Shipping agent has been duly penalized and there is no warrant for imposition of penalty on appellant who is in no way responsible for contravention by Shipping agent - Order set aside and appeal allowed: CESTAT [Para 5]

2015-TIOL-807-CESTAT -AHM

Hindalco Industries Ltd Vs CC (Dated: March 12, 2015)

Cus - Eligibility for benefit of Notfn 24/2011-cus - Import of copper concentrates availing benefit of notfn - As per said notfn, an assay certificate from mining company is required to be furnished for getting deduction of value of gold & silver content contained in copper concentrate - In case of Import directly from mining company, final certificate given by mining company is considered for finalization of value and also the benefit of notfn is extended while when the import is made through trader, final certificate given by trader is not given effect as notfn talks of only assay certificate given by mining company - Said notfn does not contemplate an option to be given by an importer to either stick to provisional assay certificate percentage or final assay report - It will be unfair if appellant is disallowed exemption when final assay certificate is given by an agency other than mining company, but Notfn does not provide for such acceptance - Revenue could have also got the contents in copper concentrate determined by getting samples tested either from central Revenue Laboratory or any other approved testing agency - It will be appropriate to take the value content of gold & silver, either in provisional assay certificate or in final assay certificate produced by appellant, which ever is less, for allowing benefit of Notfn when final assay certificate is given by an agency other than mining company - Appeal filed by the appellant is modified partly: CESTAT

2015-TIOL-804-CESTAT -DEL

J P Overseas Ltd Vs CC (Dated: December 12, 2014)

Customs - Anti Dumping - PVC imported from China, claimed to be falling under Sl.No.19 of Notification No.11/2008-Cus dated 23.1.2009 while Revenue viewed ADD applicable under Sl.No.23 ibidem, leading to demands agitated herein.

Held by Mem(J) : As per bill of entry, export of subject goods was made from China by the producer and the goods were manufactured in China - Amending Notification

No.38/Cus-2008 dated 24.3.2008 brought out name of the manufacturer to column No.8 of the original Notification dated 23.1.2008 implying that if the producer also exports subject goods, that shall be liable to anti-dumping duty under serial No. 19 - The curative measure prescribed by the notification is to be construed as effective from 23.1.2008 so as to ensure no escapement of duty if producer also exports subject goods manufactured in China - amending notification is to be read in the manner that advances the object of extending scope of levy to gather Revenue without escapement of a manufacturer from levy under Sl. No.l9 of the Notification, made to protect interest of Revenue - Amending notification had its intention making clear that apart from the exporter specified in column 8 of S.No.19, if the producer named under that serial number also exports subject goods, such goods shall be liable to anti-dumping duty - It is well settled law that generality excludes specific; therefore, impugned imports fall under the purview of SI.No.19 of the Notification dated 23.1.2008 since country of origin producer and exporter belong to China and levy of anti-dumping duty was goods specific and country specific - This being most specific case than the generalization prescribed by sl. No.23 of the Notification, case of the appellant is not possible to be excluded from Sl .No. 19 from levy of anti- dumping duty on imports; Accordingly amount of anti-dumping duty prescribed in column No.9 of the Notification against SI.No.19 thereof shall apply to the impugned import [Para 6, 7]

Held by Mem(T) : The amending Notification does not specifically provide for retrospective inclusion of the name of Chinese firm at Sr. No. 19 from the date of imposition of anti-dumping duty - in the absence of any indication that the supplier's name was included at Column 8 of entry at Sr. No.19 effective from 23.01.2008, the import made by the Appellant was covered by Sr. No.23 till the amending Notification was issued on 24.03.2008 - amending Notification is not a corrigendum to the initial Notification and there is nothing in it to show that amendment to entry at Sr. No.19 was to be given retrospective effect - impugned goods in the instant case liable to anti-dumping duty in terms of entry at Sr. No. 23- In Goyal Traders case, Gujarat High Court held that in the absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such statutory provision, same cannot be given retrospective effect - classification of imported product will be rightly under Sr.No.23 of notification dated 23.1.2008; and after amendment, the classification will be under Sr.No.19 of notification dt.24.3.2008 [Para 11.1, 11.2, 12, 14]

Point of difference: Whether amending notification no. 38/2008-Cus dated 24.3.2008 making amendment in SI. No. 19 of the Notification No. 11/2008-Cus dated 23.01.2008 shall have retrospective effect being curative in nature for the purpose of determination of anti-dumping duty or prospective effect.

Also see analysis of the Order

2015-TIOL-791-CESTAT -DEL

M/s Aricent Technologies Holdings Ltd Vs CC (Dated: March 11, 2015)

Cus - Applicant, a 100% EOU importing equipment for testing of software for telecom purpose - license obtained through a liasing company M/s Alliance Strategies Ltd. from DOT for import of these equipments was found to be forged - Penalties imposed on applicant and liaising company - appeal before Tribunal. Held: Director of M/s. Alliance Strategies Ltd. himself has admitted that these licenses are forged one and, therefore, they have prima facie failed to make out a case of waiver of pre deposit - further, applicant is the principal of M/s. Alliance Strategies Ltd., although they are bonafide to say that it was not in their knowledge that these licenses have been forged by M/s. Alliance Strategies Ltd. but they are in possession of the impugned goods which have been imported against these licenses - Applicant directed to make a pre -deposit of 10% of penalty imposed whereas Alliance Strategies Ltd. to make a

pre -deposit of 20% of penalty imposed and report compliance for obtaining stay of balance amounts: CESTAT [ para 8, 9, 10]

2015-TIOL-790-CESTAT -MAD

M/s DHL Logistics Pvt Ltd Vs CC (Dated: January 30, 2015)

Customs - Penalty - Appellant acted as a console agent for consignments of pharma products, detained by Customs as there was no NOC from Drug Controller Office - goods confiscated in adjudication, allowed to be re -exported on payment of RF, and penalties imposed on firm and individual under Sec 112(a) of the Customs Act 1962; penalty on individual agitated herein.

Held: No allegation in the notice that the console agent has made any false declaration, statement or document - merely filing bill of entry before SEZ with revised documents furnished by the supplier is not sufficient enough to impose penalty on them under Section 114AA of the Act; which is dropped in adjudication - Considering the findings of the adjudicating authority that there is no false declaration by the console agent and they have only filed the bill of entry and dropped the penalty under Section 114 AA of the Act, there is no justification for imposition of penalty under Section 112(a), same is not sustainable and set aside to that extent. [Para 6]

2015-TIOL-789-CESTAT -MUM

M/s Nava Bharat Enterprises Ltd Vs CC (Dated: February 9, 2015)

Cus - Penalty - s.114A of Customs Act, 1962 - No penalty can be imposed on appellant who is not the importer but only a transferor of Advance licence - Order set aside - appeal is allowed: CESTAT [para 4]

2015-TIOL-779-CESTAT -DEL

Maqsood Alam Vs CC (Dated: February 18, 2015)

Cus - Smuggling - Betel nuts are not notified under Section 123 of Customs Act, 1962 - Consequently, onus to prove that goods are of foreign original and are smuggled is squarely on Revenue and this onus cannot be discharged merely on the basis of suspicion - Adjudicating authority has essentially relied on visual opinion of customs authorities that goods are similar to the goods which are smuggled from Nepal and statements of cooperative society and NCCF personnel given after visual examination of impugned goods that they are not those sold by them - In any case, an opinion based on visual examination of betel nuts cannot be accorded a legal force to sustain allegation of smuggling as has been held by various judicial pronouncements - Thus, opinions that the goods are of foreign origin based on visual examination are totally insufficient to quasi judicially arrive at a finding that the goods are of foreign origin - Further being of foreign origin in itself does not mean that goods are smuggled for which positive evidence is to be produced by Customs authorities to establish smuggled nature of goods - As regards marking "Triveni, Kolkata in transit to Nepal" found on few bags, mere suspicion based on circumstances is not sufficient to sustain allegation of smuggling - Customs have failed to establish that goods were smuggled - Once allegation of smuggling is held to be unsustainable, no penalties and redemption fine survive - Appeal allowed: CESTAT [Para 4, 5, 6]

2015-TIOL-759-CESTAT -DEL

Jai Export Vs CC (Dated: October 13, 2014)

Cus - Valuation - Assessee, merchant exporters exported hand tools under DEPB claim - All the exports were made to Dubai and total declared FOB value of consignments was Rs. 18.37 crores and DEPB claim was Rs.2,92,91,117/- at the rate of 13% to 16% - Revenue views that the value of export consignments had been mis -declared - Though the Commissioner by invoking section 9D(1) (a) read with Section 9D(2) of CEA, 1944 has relied upon the statements of suppliers which did not turn up for cross examination - No finding given on the point as to whether the two witnesses, who did not turn up for cross examination are dead or cannot be found or are incapable of giving evidence or are being kept out of the way by assessee or their presence cannot be obtained without an amount of delay or expense , which is unreasonable - Just because the witnesses did not appear for cross examination, their statements cannot be used against assesssee by invoking section 9D(2) read with section 9D(1) (a) - Impugned order set aside and matter remanded to Commissioner for de novo adjudication: CESTAT [Para 7.1, 9]

2015-TIOL-758-CESTAT -MAD

M/s Toyota Kirloskar Motor Pvt Ltd Vs CC (Dated: January 23, 2015)

Customs - Refund - appellant is an automobile manufacturer and imported parts, components, raw materials and capital goods from their supplie r, assessed provisionally under sec 18 of the Customs Act 1962 - Subsequently, the appellant filed refund claims on the ground that the unit FOB value of the subject goods was mentioned as USD 16. 00 per piece as against the FOB price of USD 0.01 per piece - same rejected in adjudication as unsubstantiated since the appellants had not produced the documents called for by the department in support of the claim in spite of providing reasonable opportunity and also not appeared for hearing - Commissioner (Appeals) held the claim premature in terms of the Apex Court ruling in the Priya Blue case; agitated herein.

Held: Original authority has rejected the refund claim only on the ground that the appellant had not produced any documents to substantiate their claim for refund before the Adjudicating authority whereas Commissioner (Appeals) held that the bill of entries were only provisionally assessed and are still pending before the department and relied on the Priya Blue case - subject bill of entries which were provisionally assessed not yet finalized; as such, they could not furnish the bill of entry before the assessing authority and also the appeal was pending before Tribunal - Except for producing copy of the Certificate of Foreign Inward Remittances, the appellant failed to produce any other evidences in support of their claim for erroneous pricing - appellant's claim for refund is premature, no infirmity in the impugned order. [Para 7]

2015-TIOL-749-CESTAT -DEL

Shri Rakesh Bakshi Vs CC (Dated: February 18, 2015)

Customs - Penalty - AKJ (Firm) exported goods under claim for drawback; investigation showed misdeclaration of quantity and value of exports - Overvaluation adjudicated with penalties under Section 114 and 117 of the Customs Act 1962 on the firm and individuals (CHA, G-Card holders); agitated herein.

Held by Mem(J): The penalties stand imposed on all the appellants is not on the ground that they were aware of the fraudulent exports of the exporter but on the technical ground that one Shri Dinesh Singh who was the front person and committed all the offences, was appointed by Shri Rakesh Bhakshi without verifying his antecedents - Shri Roshan Sharma was penalized on the sole ground that he recommended the appointment of Shri Dinesh Singh - adjudicating authority has himself observed that there is no mens-rea on the part of said appellants; penalty entails in its ambit the fact of mens rea and is required to be imposed on the persons with malafide intention - in the present case, there is not even a technical or

procedural violation by the said appellants in preparing and presenting the export documents - no dispute about the description of the goods and only allegation is are as regards quantity and value of the same - CHA and the freight forwarders are not expected to verify the correctness of the value declared by the exporters; Customs officer accepted the said declaration and allowed the clearance and it was only subsequently on investigation by SIIB that mis -declaration as regards the value of exported goods came to surface - in the absence of any evidence indicating any direct role played by the said appellants for the fraudulent over valued export by M/s. AKJ Enterprises, no reason to impose penalties under the provisions of Customs Act - If any technical or procedural offence about the working of 'G' card holders on behalf of CHA has been found by the Revenue, the action should have been taken under the Customs House License Regulation Act and the said factor cannot be taken into consideration for imposing penalties in terms of Customs Act on account of aiding and abetting the exporters, in the absence of any evidence to that effect - penalties set aside. [Para 7, 8]

Held by Mem(T): Role of the appellants recorded at para 52 of adjudication order holding them guilty; confiscation with RF option and denial of drawback adjudged - Revenue interests only been technically jeopardized without revenue suffering monetary loss and considering that penalties on appellant being on higher sides, no disagreement with dropping penalties against the appellants but Appellants should be appropria tely dealt under Customs House Agents Regulations to curb the mischief and impose the appropriate penalty to prevent the re occurrence of mischievous tendencies. [Para 9]

Terms of Reference to Third Member: Whether the last lines in para 9 of the order recorded by Member (Technical) starting from "But I order that...... mischievous tendencies" are required to be a part of the order of the Tribunal as held by Member (Technical). [Para 14]

Held by Third Member: No dispute that the question of taking a ppropriate action under the Customs House Agents Regulations against the appellants was not part of the impugned order-in-original which was only on question of imposition of penalty on the appellants under Section 114 and 117 of the Customs Act, 1962 - no proposal in SCN for action against appellants under Customs House Agents Regulations - When action under Customs House Agents Regulations was not part of the show cause notice or the adjudication order or the appeals filed against the impugned order, not at all correct for the Tribunal to go into the question of taking action against the appellant under Customs House Agents Regulations - Adjudicating Authority and Appellate Authority cannot travel beyond the allegations made in the show cause notice. [Para 16]

Held by majority: The penalties imposed on the appellants are set aside; the directions of Member (Technical) in his separately recorded order, for taking action against the appellants under the provisions of Customs House Agency Regulation Acts are held not to be a part of the present order of the Tribunal.

2015-TIOL-748-CESTAT -MUM

Gupta Coal India Pvt Ltd Vs CC (Dated: February 25, 2015)

Cus - Classification of coal - Whether under "bituminous coal" falling under CTH 27011200 as claimed by the department or "steam coal" under CTH 27011920 as claimed by importer - Tribunal had directed appellants to make pre deposit of Rs.3.78 Crore and Rs.73 lakhs respectively for normal period of limitation - modification application filed on the ground that subsequent to passing of stay order, an identical matter came up before co-ordinate bench at Chennai in case of TANGEDCO - 2014- TIOL-2503-CESTAT-MAD and the matter was referred to the LB after waiving pre - deposit of adjudged dues; that in view of the same, the orders be modified by withdrawing the order to make pre-deposit. Held: It is a settled position of law that

interim orders passed by the co-ordinate benches do not have any binding value - Further, interim order relied upon is subsequent to the passing of the order by the bench in the appellants' cases and therefore, they cannot be said to have any precedential value - financial hardship was not pleaded while passing stay order and, therefore, the same cannot be raised now - if the points now urged are taken note of and order is modified, it would amount to review of order which is not permissible - Modification application rejected: CESTAT [para 2, 3, 4]

2015-TIOL-737-CESTAT -DEL

CCE Vs M/s R K G International (Dated: February 18, 2015)

Cus - Assessee had filed Bill of Entry declaring goods as heavy melting steel scrap and steel slabs - Revenue views that what was declared to be heavy melting scrap was actually re-rolling scrap and therefore not eligible for concessional rate of duty under Notfn 21/2002-Cus (Sl. No. 20) - Documentary evidences as mentioned earlier, including pre-shipment inspection certificate which clearly certified the goods to be heavy melting steel scrap and there being no expert opinion to conclude against assessee, benefit extended to assessee - D enial of mutilation was held to be unsustainable - No merit in Revenue's appeal, same is therefore dismissed: CESTAT [Para 6, 7]

2015-TIOL-734-CESTAT -MUM

M/s Panasonic Energy India Co Ltd Vs CC (Dated: February 20, 2015)

Cus - Refund of SAD - Claim filed within statutory time limit but before wrong authority - As per Polyglass Acrycle Mfg. Co. Pvt. Ltd - 2014-TIOL-2369-CESTAT-MUM , refund is allowed - In other 2 BOE in which refund claim was filed beyond the period of 1 year, refund is rejected in view of statutory time limit - Appeal partly allowed: CESTAT [Para 3, 4, 5]

2015-TIOL-729-CESTAT -BANG

Integral Traders Vs CC, ST & CE (Dated: September 29, 2014)

Customs - Import of Betel nuts - Evasion of duty - Undervaluation of consignment, recovery of incriminating documents including Bills of Lading allegedly manipulated to circumvent the port restrictions imposed by the DGFT - Department amply demonstrated that payments made for the consignments received to the exporter abroad were more than what was declared and excess amounts were transferred by other means - Evidence can not be 100% accurate - Applying principles of preponderance of probability it is conclusive that the transaction value was more than what was declared - Merely that there was no evidence to show that exporter had received money or the methodology followed for transfer of money, does not mean that appellant had not paid excess amount in addition to what was declared to the department - Revenue made out a strong case - However, considering the financial difficulty plea raised by appellant, directed to deposit an amount of Rs.50 lakhs to hear the appeal - Pre-deposit of balance due is waived. (Para 6)

2015-TIOL-721-CESTAT -MUM

King Kaveri Trading Co Vs CC (Dated: March 30, 2015)

Cus - Action of Customs to seek Bank Guarantee for clearances now when the matter was settled in 2011 is unwarranted and amounts to harassment - Action is also contrary to the policy and spirit of the National Litigation Policy which aims at reducing

litigation - Commissioner stating that the matter has been referred to the CBEC is not an acceptable reason for not implementing the order of the CESTAT - Commissioner of Customs, JNCH to immediately implement the CESTAT Order, allow clearance of the consignments without insisting on a Bank Guarantee and report compliance: CESTAT [para 4, 4.1]

Also see analysis of the Order

2015-TIOL-720-CESTAT -DEL

Delphi Automotive Systems Pvt Ltd Vs CC (Dated: February 9, 2015)

Cus - Assessee imported goods from supplier located outside India - As per terms of agreement goods were to be delivered ex-work - All the charges paid by assessee were shown in invoice as well as in Bill of Entry and document were furnished at the time of assessment of Bill of Entry - Out of total demand of Rs.25,53,896/-, the assessee has already paid a sum of Rs.2,40,139/ - Requirement of pre deposit of balance amount of duty, interest and penalty on the main applicant and penalty on the co -applicants waived - Stay granted: CESTAT [Para 2, 4]

2015-TIOL-706-CESTAT -MUM

M/s Marks International Vs CC (Dated: January 6, 2015)

Cus - Revenue points out that against the same impugned order, their appeal has been decided by Tribunal by way of remand to the adjudicating authority - For the sake of consistency, this appeal by importer is also allowed by way of remand: CESTAT [Para 2, 3]

2015-TIOL-699-CESTAT -MUM

CC Vs Shreenath Enterprises (Dated: January 12, 2015)

Cus - Assessee imported goods in February 2008 describing them as mixed lot of self- Adhesive Paper in different thicknesses, size and colors – Revenue alleged that assessee had mis -described the goods and had undervalued the same - Commissioner (Appeals) in his order has rejected the loading done by Revenue, on the ground that contemporaneous prices of other importers are available - Revenue in appeal. Held: No mis-declaration as far as the description of goods is concerned as it matches with description under Tariff Item 4811 4900 in Customs Tariff Act - SCN clearly says that common supplier in all cases manufactures only Retro Reflective Self Adhesive Paper and this indicates that goods imported under all six bills of entries pertaining to assessee as well as to other contemporaneous importers are same – since contemporaneous import prices in the case of the other importers have not been challenged by Revenue, there is no ground for granting stay of the order of Commissioner (Appeals) – Stay applications filed by Revenue rejected: CESTAT [Para 5]

2015-TIOL-692-CESTAT -MUM

Nippon Leakless Talbros Pvt Ltd Vs CC (Dated: December 17, 2014)

Cus - Refund - Claim filed in respect of Revenue deposit made during provisional assessment of bill of entry - refund arises out of final assessment of bill of entry and correctly governed by Section 18 of Customs Act, 1962 - Any refund which is arising out of final assessment of bill of entry, either of revenue deposit or excess payment of duty, bar of unjust enrichment is applicable - As per Hindalco Industries Ltd - 2008- TIOL-477-HC-AHM-CUS , bar of unjust enrichment is applicable to refund of revenue deposit also by virtue of subsection 5 of Section 18 after 12/7/2006 - On going through a copy of balance sheet, an amount of Rs.13,42,143/- is shown under head of ‘loan and advances' which needs to be verified with other account ledgers for the period from date of deposit till disposal of refund - Matter remanded to original adjudicating authority: CESTAT [para 5, 5.1, 6]

2015-TIOL-691-CESTAT -DEL

M/s Rathi Enterprises Vs CC, CE & ST (Dated: January 19, 2015)

Cus - Import of 'Calcite Powder' or 'Chalk' or 'Natural Calcium Carbonate' - Samples were drawn and sent to CRCL laboratories which has no equipment to test the represented samples of assessee - Therefore, test report given by CRCL is in doubt - Assessee is having a right to ask retest of samples from any other laboratory other than CRCL when the CRCL is not having equipments to examine required product - Adjudicating authority is directed to get the samples retested from any laboratory other than CRCL - Matter remanded: CESTAT

2015-TIOL-680-CESTAT -MAD

M/s Nippon Sea Freight Systems Vs CC (Dated: February 3, 2015)

Customs - Classification - Stay / dispensation of pre deposit - Alkyl Ketene Dimer (AKD wax), inputs for manufacture of paper sizing chemicals previously imported under CTH 2914 1990, suddenly sought to be reclassified under CTH 3404 9090 by Revenue, and agitated herein.

Held: It is proper that the appeals should be disposed expeditiously waiving pre deposit because of diversity in the classification in different customs jurisdiction - pre deposit waived under the circumstances and also looking into the interest of justice as well as hardship to both sides by re -classification of the goods, which were imported during several years in the past and change of classification has been sought at present in the impugned exports only.

2015-TIOL-679-CESTAT -MUM

Farokh S Todywalla Vs CC (Dated: December 30, 2014)

Cus - Classification - Appellant imported assorted silver coins of Indian or foreign origin, assorted gold coins of British India, assorted silver/copper/bronze medallion of Indian and Foreign origin and assorted silver ware/table ware - many over 100 years old goods - As regards gold and silver coins, appellant claimed that they are specifically covered under CTH 71.18 - copper/brass coins merit classification under CTH 7419 and if the goods are of more than 100 years age, they might merit classification under CTH 9706 as ‘antiques' - As regards gold/silver/copper/brass medals/medallions, and other metal ware, they are appropriately classifiable under CTH 71.14 or 74.19 as articles of precious metals or copper of brass - Lower appellate authority has upheld the order of the adjudicating authority wherein he had classified the goods imported by the appellant under CTH 97050090 and has confiscated the same under the provisions of section 111(d) of the Customs Act, 1962 with an option to redeem the same and also imposed penalty – Appeal before CESTAT.

2015-TIOL-668-CESTAT -MAD

CC Vs M/s Fortune Marketing Pvt Ltd (Dated: November 10, 2014)

Customs - Stay / dispensation of pre deposit - respondents imported external Hard Disc Drives and claimed benefit of Notification No. 12/12-CE dated 01.03.2012 (S. No. 255) for TI 84717020 - Revenue viewed the respondents ineligible for the same and adjudicated demands; same set aside by Commissioner (Appeals) and agitate d by Revenue herein.

Held: Respondents have paid duty under protest and have not filed refund claim - Ratio of Tribunal ruling in IBM India case followed - Revenue's application for stay of impugned order rejected. [Para 3, 4]

2015-TIOL-661-CESTAT -MAD

M/s Senthil Textile Vs CC (Dated: September 18, 2014)

Customs – Appellate jurisdiction - adjudicating authority rejected the claim of interest on the draw-back sanctioned under Section 75A of the Customs Act, 1962, which was upheld by the Commissioner (Appeals), under challenge herein – Revenue contested the appeal with preliminary objection that as per the first proviso to Section 129A (1) of the Customs Act, 1962, no appeal shall lie to the appellate Tribunal.

Held: In the present case, the claim of interest against the payment of drawback was rejected by the Assistant Commissioner of Customs, which was upheld by the Commissioner (Appeals) and the appeal is filed before the Tribunal - On a plain reading of Section 75A of the said Act, it is clear that the payment of interest is arising from the drawback payable to a claimant under Section 74 or Section 75, which was not paid within the stipulated period – During the material period, the drawback rate was fixed by the Under Secretary (drawback), Ministry of Finance, Department of Revenue and subsequently, the power was delegated to the Commissioner - In the present case, the Under Secretary (Drawback) had not fixed the brand rate of draw back; by Order of the Bombay High Court and the Supreme Court, the Commissioner fixed the value of brand rate of drawback and the payment of drawback was made to the appellants - Hence, the claim of interest is arising out of payment of drawback under Section 75 of the Act - in the present case, the payment of interest is related to the order of the Commissioner (Appeals), which was arising out of the drawback claim and therefore, the appeal is not maintainable before the Tribunal. [Para 6]

2015-TIOL-659-CESTAT -KOL

RSI Pvt Ltd Vs CC (Dated: November 13, 2014)

Cus - It is alleged that some of inputs imported duty free, were diverted to the domestic market - Export obligation period (EOP) granted to assessee is extended upto 31/03/2009 which is further extended to another six months - In the meantime, company became sick and got registered with BIFR and their application for further extension of EOP is pending before DGFT - As these facts were not before Commissioner and plea of assessee that entire fact was in the knowledge of DGFT and it is not necessary to meet the export obligation out of inputs procured against the license issued to them, require verification and further deliberation - Case remanded to Adjudicating Commissioner: CESTAT

2015-TIOL-658-CESTAT -MUM

M/s Bhatia Global Trading Ltd Vs CC (Dated: March 16, 2015)

Cus–s. 129E of Customs Act, 1962 - Tribunal is barred from entertaining any appeal unless mandatory pre-deposit is made - as appellants have now prepared Demand Drafts of 7.5% of duty demanded, it is just and proper to allow restoration applications, subject to the applicants tendering the amount now offered to the Revenue and filing compliance report – Appeals to be restored to their original numbers: CESTAT [para 4]

Also see analysis of the Order

2015-TIOL-652-CESTAT -MUM

M/s Prabhu Steel Traders Pvt Ltd Vs CC (Dated: February 22, 2015)

Cus - Notfn. 102/2007-Cus - Refund of SAD - Findings of Commissioner(A) is very strange and totally unwarranted - there is no requirement in the statutory provisions that the agreement between the importer and the consignment agent should bear the signature of witness - in fact, notification does not require that the importer should submit a copy of the agreement - Order set aside and appeal allowed with consequential relief: CESTAT [para 4.1, 5]

Also see analysis of the Order

2015-TIOL-648-CESTAT -DEL

CC Vs M/s Best Mega International (Dated: January 7, 2015)

Customs - FTP - respondents imported old and used digital multifunction printing and copying machines during the material period without obtaining proper license - Revenue viewed the same illicit as the goods have been imported without valid licence under Foreign Trade Policy ITCHS and HBC 6 read with provisions of Customs Act, 1962; and that the respondents have suppressed the value of the goods - proceedings were initiated; demands adjudicated against the respondents; Commissioner (Appeals) set aside the demands holding that the impugned machines were freely importable as per para 2.1.7 of the Foreign Trade Policy 2004-09 - Now agitated by Revenue herein.

Held: Madras HC, in Shrishti Digital Solutions case, dealt with identical dispute and held that for the import of the above machines during the period in dispute, there is no requirement of license - relying on the same, held in the instant case that the respondents have correctly imported the goods without obtaining the license - No infirmity with the impugned orders, which are upheld. [Para 4]

2015-TIOL-643-CESTAT -MUM

M/s Pushpanjali Floriculture Pvt Ltd Vs CC (Dated: March 16, 2015)

Cus - Only the licensing authorities can permit revalidation of freely transferable DFIAs - Denial of benefit under the scheme only because of expiry of Licenses due to refusal by Customs to allow import of such goods under the Licenses and their resultant non-utilisation, would amount to denial of substantial benefits – Appeal allowed: CESTAT [para 6, 7, 9, 11]

Also see analysis of the Order

2015-TIOL-639-CESTAT -DEL

M/s Varbros India Pvt Ltd Vs CC (Dated: March 27, 2014)

Customs - Exemption - appellant imported PVC electrical tape and wire harness for use in the manufacture of inductors, under notification No.25/99-Cus dated 28.02.1999 - Customs found that the goods so imported were not used by the appellant in manufacture of inductors but were used in manufacture of degaussing coil - notification benefit denied, demand adjudicated and agitated herein.

Held: Entry No.107 of the notification deals with the wire as a raw material for manufacture of the goods enumerated in column No.4 of the Notification, but Sl.No.56 deals with insulating material which was the goods imported by the appellant - Wire and insulating material are virtually and materially different hence invoking of entry 107 of the notification is ruled out when the goods imported was insulated material, totally different from wire - the question for consideration is whether specific grant of the notification can be interpreted to expand the scope of the grant when duty exemption is granted at the public cost - Both goods being distinct by their character and utility and recognised by two different entries at different serial numbers of the notification, to serve their different purpose, one is not substitute of the other - Once a benefit is confined to a particular grant, that cannot be interpreted to be meant for any other purpose for which the legislature did not extend such grant - the inductor specified in column 4 under Sl. No. 56 of the notification is confirmed to use of the raw-material mentioned in column 3 thereof; hence grant of Sl. No.56 is not extendable to any other goods under any fiction which otherwise shall result in abuse of the public grant - Authorities below therefore rightly concludeddenial of benefit of the notification. [Para 5, 6]

2015-TIOL-632-CESTAT -MAD

CC Vs M/s Sterlite Industries (India) Ltd (Dated: October 28, 2014)

Customs - Exemption - Respondents are engaged in the manufacture of Copper Anode, Copper Cathode, Continuous Cast Copper Wire Rod and regularly importing Copper Concentrate for use in their manufacturing activities - The respondents requested for provisional assessment under Section 18 as they were unable to produce the final invoice and the original assay certificate for the purpose of determination of value and quantity - assessments finalized in the impugned orders wherein the benefit of exemption under Notification Nos. 101/2007 and 46/2011 denied on the ground that the certificates of origin presented by the respondents are not in conformity with Notification No.189/2009-Cus. (NT) dated 31.12.2009 in respect of import from Indonesia and No. 84/2007-Cus. (NT) dated 17.8.2007 in respect of import from Chile - Commissioner (Appeals) by the impugned orders, modified the orders of the lower authority to the extent of allowing the benefit of exemption Notifications; now agitated by Revenue herein.

Held: Rules 2007 for determining the origin of goods prescribed particular procedure for verifying the genuineness of the Certificate of Origin; Section IV of the Rules 2007 provides control and verification of the Certificate of Origin - On harmonious reading of Rule 17 to Rule 36, it is clear that if the proper officer of cu stoms has reasonable doubt about the certificate or the information contained therein, he should spell out in writing the reasons for such doubt and forward the same through the designated officers in the two Governments for due discharge and in the meanwh ile allow clearance of the goods by securing the interest of revenue - It has also framed the time for verification of the Certificate of Origin; and on receipt of the clarification, the guarantee should be released - In the present case, the goods were imported during the period 2007-2012; provisional assessments were resorted to in respect of valuation and quantity as the Buyer's assay certificate, Final assay certificate,

statement of facts given by the master of the vessel, Final Invoice etc. were not available; nothing in the adjudication order that either any proceeding was initiated as per the said Rules, 2007 in respect of verification of the Certificate of Origin or provisional assessment was resorted to for want of Certificate of Origin - In this context, Commissioner (Appeals) had given detail findings in the impugned orders; categorically observed that the Country of Origin certificate has been produced at the time of provisional assessment and therefore it was not mentioned as a required document in respect of finalization of the provisional assessment - facts were not disputed by the Revenue in the grounds of appeals; no substance in the appeals filed by the Revenue - impugned order upheld.

2015-TIOL-631-CESTAT -KOL

M/s Titagarh Wagons Ltd Vs CC (Dated: January 21, 2015)

Cus - Assessee imported goods duty free against advance licenses - As per conditions of license, they are required to produce EODC certificate from DGFT - They could not procure the documents from DGFT and still correspondences are continuing with the office of DGFT, Kolkata - Customs Authorities are also of view that DGFT is the final authority as per Chapter 4 of Foreign Trade Policy to issue Export Obligation Discharge Certificate (EODC) after verification of relevant documents submitted by license holder - Matter has been pending for many years, for want of EODC clearance from DGFT - Assessee is directed to take necessary steps in procuring EODC Certificates from DGFT and place the same before adjudicating authority - Matter remanded: CESTAT [Para 2, 5]

2015-TIOL-625-CESTAT -MUM

Alok Industries Ltd Vs CC (Dated: January 17, 2015)

Cus - Goods were exported without 'Let Export Order' - Vessel sailed on 26/08/2007 whereas LEO was granted by proper officer on 27/08/2007 - The date on which container was loaded on vessel was a Sunday, a holiday for exporter - It is not transpired whether the loading of container and sailing of vessel without LEO is with any mala fide intention or motive of exporter - In the case of loading of container on vessel and sailing of vessel without obtaining LEO, shipping line alone can be held liable for penalty and not the exporter - Appellant should not have been imposed any penalty, particularly when shipping line was imposed with a penalty in same case – Appeal allowed: CESTAT [Para 2, 6.6, 7, 8]

2015-TIOL-624-CESTAT -MAD

CC Vs M/s Go Fashion (I) Pvt Ltd (Dated: September 11, 2014)

Customs - Classification - Respondent filed BE for import of leggings declared under CTH 6115 - Textile Committee reported that the description of the goods is Knitted Ladies Trousers classified under CTH 6104.69 and 6104.63 depending upon the composition of the material - Imports assessed under CTH 6104; set aside by Commissioner (Appeals) and agitated by Revenue herein.

Held: There is no delicate difference between 'tights' and 'leggings' - Tights are thin, semi-transparent piece of clothing often worn under dresses, skirts or shorts; generally thinner compared to leggings - Leggings look similar to tights, but it is thicker mostly opaque, used for jogging, aerobics, yoga and other exercise -"trousers" are an item of clothing worn on the lower part of the body, covering both legs separately, worn at the hips or waist and may be held up by their own fastenings, a belt or suspenders - On a plain reading of the Tariff description, the Dictionary

meanings and website "leggings" are worn by women and girls, which are tight fitting clinging to the body while "Trouser" is a loose fitting dress - No indication in the Tariff that sub-heading 6115 would cover only the inner garments, hence "leggings" are akin to "tights" and covered under sub-heading 6115 - Govt of India held in the Meridian Apparels case that leggings would be classifiable as "tights" as they are more akin to "tights" and hence classifiable under CTH 6115 - impugned order upheld. [Para 4.2, 4.3, 5]

2015-TIOL-614-CESTAT -MUM

Ispat Industries Ltd Vs CC (Dated: March 4, 2015)

Cus - Refund - Unjust enrichment - Whether duty incidence has been passed or not is a question of fact and such fact has to be established based on the records maintained as per the accounting standards - If the duty incidence had not been passed on, the same should have been recorded as amounts due from the department in the receivables account - Claim hit by the bar of unjust enrichment - Appeal dismissed: CESTAT by Majority

Also see analysis of the Order

2015-TIOL-606-CESTAT -MUM

M/s Supreme Petrochem Ltd Vs CC (Dated: February 20, 2015)

Cus - Notfn. 102/2007-Cus - Refund of SAD - Part clearances of hazardous bulk cargo allowed by Customs and final out-of-charge given for entire consignment - Commissioner (Appeals) has gone on a tangent and held that the appellant could not have sold the goods which were not in his possession - his finding is totally fallacious and contradictory to the Public Notice issued - Refund admissible: CESTAT [para 4, 5]

Also see analysis of the Order

2015-TIOL-605-CESTAT -DEL

M/s Barco Electronic Systems Pvt Ltd Vs CC, CE & ST (Dated: February 12, 2015)

Cus /CX - Inputs, either imported free of customs duty or procured domestically free of central excise duty have not been used for manufacture of goods, and had been scrapped/written off - duty liability in terms of notifications 52/2003- Cus & 22/2003- CE would arise only when the goods have been cleared by the EOU into DTA - there is no allegation in the SCN that the inputs written off had been cleared by the appellant company into DTA - In our view, therefore, duty cannot be demanded - The question of payment of duty would arise only when the goods are cleared into DTA or EOU is allowed to be debonded and is converted into DTA unit, at the time of which, the EOU is required to pay duty on the entire stock of duty free raw materials and capital goods and the stock of finished goods, but this is not the case here - Appellant have prima facie case in their favour - requirement of pre -deposit of adjudged dues is waived and stay granted: CESTAT [ para 8]

Cus /CX - A 100% EOU is a bonded area, in respect of which a private bonded licence is issued - Thus a 100% EOU is bonded warehouse and in respect of the goods stored in the bonded warehouse, the duty liability would arise only when the goods have been cleared from the warehouse: CESTAT [ para 8]

2015-TIOL-601-CESTAT -MUM

Shri Nalin Choksey Vs CC (Dated: March 16, 2015)

Cus - Appellant helping importer in clearance of car through Customs – There are no multiple causes of action and the total action of sale is a indivisible act - Once a case has been decided in respect of the importer by the Settlement Commission, it is not open to Revenue to proceed against other co-noticees – Appeal allowed: CESTAT [para 6]

Also see analysis of the Order

2015-TIOL-592-CESTAT -DEL

Marque Enterprises Vs CC (Dated: February 18, 2015)

Cus-Merely on the basis of Chartered Engineer's report, which is based on the enquiry conducted behind the appellant's back and which had not even been supplied to the appellant, the declared transaction value cannot be rejected: CESTAT by Majority

Also see analysis of the Order

2015-TIOL-591-CESTAT -MUM

M/s Can-Pack India Pvt Ltd Vs CC (Dated: September 17, 2014)

Cus - Notfn 102/2007-Cus - Refund of 4% additional duty of Customs (SAD) upon sale of goods imported under Bills of Entry - Said claim of appellant was rejected as not admissible and not maintainable on the ground of partial claim, as per Sl. No. 11 of Public Notice 74/2008-Cus read with Circular No. 16/2008-Cus - As per Sandur Micro Circuits Ltd. - 2008-TIOL-148-SC -CX , CBEC circular cannot curtail the scope of benefit available under Notfn - Second part of refund claim in question is entertainable for refund of SAD within provisions of Se ction 3(5) of Customs Tariff Act read with said notfn: CESTAT [Para 2, 7]

2015-TIOL-585-CESTAT -DEL

CC Vs M/s Asian Copiers (Dated: February 18, 2015)

Cus-Multifunction machines are different and distinct from photocopying machines and, therefore, during the period prior to amendment of FTP 2009-2014 w.e.f 5.6.2012, import of these goods did not require any import licence-If the word 'photocopier machines' also covered the "Digital Multifunction Print and copying machines", there would have been no necessity for the DGFT to specifically include the second hand multifunction machines in para 2.17 of the Exim Policy – Revenue appeals rejected : CESTAT by Majority

Also see analysis of the Order

2015-TIOL-582-CESTAT -DEL

Ms Omex International Vs CC (Dated: February 18, 2015)

Cus - Import of old photocopier - for determining the value of old and used capital goods, the NIDB data is not relevant at all as no two consignments of second hand

goods and that too of obsolete models would be comparable - enhancement of value rejected - CESTAT by Majority

Also see analysis of the Order

2015-TIOL-575-CESTAT -MUM

BMM Ispat Ltd Vs CC&CE (Dated: January 23, 2015)

Cus - ROM - Application filed against order of Tribunal wherein appellant was directed to make a pre-deposit - In said order, a prima facie view was taken that the coal imported by a ppellant merits classification as "?bituminous coal" and not as "?steam coal" - Appellant stated that in a similar matter pertaining to M/s TANGEDCO Ltd & Others, Chennai Bench of Tribunal had referred the classification matter to Larger Bench of Tribunal and had granted stay by waiving differential duty demand on account of re -classification of coal as "?bituminous coal" - In Chennai case, Gross calorific value [GCV] given in load port test report is on residual moisture basis and not on inherent moisture basis while in this case, GCV on air-dry basis (ADB) is based on inherent moisture and not on Residual Moisture - Therefore, decision of Chennai Bench appears to be on a totally different footing - Moisture on ADB approximates to Inherent Moisture while moisture on ARB corresponds to Total Moisture, therefore, Parr formula adopted by Revenue for computing GCV on a moist mineral free basis has a logic to it and cannot be faulted - In identical matters in Gupta Coal India Pvt. Ltd. 2015-TIOL-334-CESTAT -MUM , Tribunal ordered for pre -deposit of duty demand confirmed for normal period of limitation - Therefore, different view cannot be taken in present case - No merit in modification application, same is rejected - However, in interest of justice, time limit for compliance of pre -deposit is extended up to 19/02/2015: CESTAT [Para 2, 3, 3.1, 3.2, 4]

2015-TIOL-574-CESTAT -DEL

M/s Hyundai Merchant Marine (I) Pvt Ltd Vs CC (Dated: January 30, 2015)

Cus - Appellant is a Shipping agency - While agreeing to request of CHA to transport the imported containers to a particular CFS, they demanded a security deposit from CHA/importer - case is primarily a dispute between two private parties - Revenue alleged contravention of Handling of Cargo in Customs Areas Regulations, 2009 by violating Facility Notice No. 69/2011 and imposing penalty on appellant - Held: Regulation 5(5) requires the Shipping Agency to comply with Rules, Regulations, Notifications and Orders - Facility Notice is not an order issued under provisions of Customs Act, so, it cannot bind the shipping line to move containers to a particular CFS at the behest of CHA - Order set aside and appeal allowed: CESTAT [Para 4, 5, 6]

2015-TIOL-569-CESTAT -MAD

M/s Motor Industries Co Ltd Vs CC (Dated: January 19, 2015)

Customs - Valuation - appellant imported Mini Relays, paid customs duty as per the invoice price and cleared the goods - Subsequently, they filed refund claim on the ground that the invoice price in BE wrongly stated as USD 22.80 instead of correct price of USD 2.88 - Claim rejected in adjudication and by Commissioner (Appeals), now agitated herein.

Held: Both AC (Refunds) and the Commissioner (Appeals) have rightly dismissed the appeal by relying on the Apex Court judgment in the case of Priya Blue and Flock (I), which was discussed in detail in the impugned order - Since the issue was well settled by the Apex Court in the above judgments and followed by various High Courts and

Tribunal rulings, the issue is no longer in dispute - appellants have not contented the assessment of duty made in the impugned Bill of Entry - no infirmity in the impugned order, which is upheld. [Para 4]

2015-TIOL-568-CESTAT -MUM

Sunitidevi Singhania Hospital & Medical Research Centre Vs CC (Dated: January 13, 2015)

Cus - Notification 64/88-Cus - Re-appreciation of evidence on a debatable point cannot be said to rectification of mistake apparent on record - through ROM application, appellant is seeking to take a contrary view on a point of law which was considered and disposed of - Such a course of action is not permissible in law - Application dismissed: CESTAT [para 4.1 to 4.4]

Also see analysis of the Order

2015-TIOL-561-CESTAT -MUM

Buying Overseas Vs CC (Dated: November 27, 2014)

Cus - Valuation - loading has been done based on contemporaneous value of imports made in respect of bills of entry - relevant facts for consideration is quantum of imports involved in transactions and also nature of goods - no comparison done at all with respect of quantum of imports and whether goods are branded or not - In absence of such a comparison, loading cannot be done arbitrarily as Customs Valuation Rules do not provide for arbitrary loading of values - loading done is without any basis hence cannot be sustained - appeal allowed: CESTAT [Para 4.1]

2015-TIOL-558-CESTAT -MUM

Peak Agencies Vs CC (Dated: February 12, 2015)

Cus - Revocation of CHA licence - for a contravention of CHALR, 2004 Regulation 19(8) alone, revocation of CHA licence is not warranted and the punishment suffered by the appellant of not being able to operate as a CHA for the last two years is sufficient - Appeal allowed: CESTAT by Majority

Also see analysis of the Order

2015-TIOL-551-CESTAT -MUM

KCF Impex Pvt Ltd Vs CCE (Dated: January 23, 2015)

Cus - Modification of stay - Approximate quantum of dues adjudged in order of adjudicating authority is of Rs.14 crore - Considering the quantum of dues adjudged against appellant, they were directed to make a pre deposit of Rs.1 crore which by no means can be considered as unreasonable or excessive - Perusal of balance sheet shows that appellant has current assets worth Rs.52 lakhs by way of receivable, inventories and so on and non-current assets by way of loan and advances to extent of Rs.1.62 crore - Therefore, sufficient ways and means available to appellant to make pre deposit of Rs.1 crore - In interest of justice, one more month's time is given to appellant to comply with pre deposit: CESTAT [Para 5.1, 6]

2015-TIOL-547-CESTAT-MUM

CC Vs M/s Asian Pre Lam Industries Pvt Ltd (Dated: February 13, 2015)

Cus - Notfn No. 135/2010 - Appellant entered into a contract with M/s. Trafigura Pte. Ltd ., Singapore, for supply of coal from Indonesia - country of origin furnished by appellant before Customs authorities gives the details of quantity shipped, the vessel in which goods were carried, departure date of vessel and all other relevant particulars - All these details tally with bills of lading submitted by appellant - Therefore, there cannot be any doubt whatsoever from where impugned goods have originated - Even surveyor's report certifying the weight of goods also confirms the country of origin as Indonesia - denial of benefit of said Notfn in respect of goods originating from Indonesia is clearly not sustainable - appellant has made out a strong case for waiver of dues adjudged – stay granted: CESTAT [Para 2, 4.1]

Also see analysis of the Order

2015-TIOL-546-CESTAT -MUM

Gupta Coal (I) Pvt Ltd Vs CC (Dated: September 23, 2014)

Cus - Notfn No. 135/2010 - Appellant entered into a contract with M/s. Trafigura Pte. Ltd ., Singapore, for supply of coal from Indonesia - country of origin furnished by appellant before Customs authorities gives the details of quantity shipped, the vessel in which goods were carried, departure date of vessel and all other relevant particulars - All these details tally with bills of lading submitted by appellant - Therefore, there cannot be any doubt whatsoever from where impugned goods have originated - Even surveyor's report certifying the weight of goods also confirms the country of origin as Indonesia - denial of benefit of said Notfn in respect of goods originating from Indonesia is clearly not sustainable - appellant has made out a strong case for waiver of dues adjudged – stay granted: CESTAT [Para 2, 4.1]

2015-TIOL-537-CESTAT -DEL

CC Vs M/s Kadmabri Worldwide (Dated: January 29, 2015)

Customs - Over-valuation of goods exported to claim excess DEPB - Based on present market value, Adjudicating Authority decided the value of goods - Commissioner (Appeals) allowed the claim of assessee - Revenue in appeal against the order of Commissioner (Appeals).

Held : The impugned order has been passed in a very casual manner - The Commissioner (Appeals) has passed the order totally unaware of the facts and figures involved in the case as pointed out by the Revenue. His finding that there was no significant difference between the maximum market price of Rs.80 per yard and export price of Rs.102 per yard was based on the imaginary figures as the actual figures involved in the present matter are market price of Rs.20-22 per metre and FOB value of Rs.132 per metre . The Commissioner (Appeals) has passed the order based on the wrong facts and figures - Matter remanded to the Commissioner (Appeals) for fresh decision ( para 15)

Also see analysis of the Order

2015-TIOL-536-CESTAT -MAD

M/s Bharat Steel Corporation Vs CC (Dated: December 24, 2014)

Customs - Exemption - appellant engaged in the manufacture and export of "Stainless

Steel Utensils" to various countries, held Advance Licence with actual user condition under which the DGFT allowed duty-free import of SS Coils/Sheets for use in the resultant product S.S.Utensils under Customs Notification Nos.30/97, dated 01.04.1997 and 48/99, dated 29.04.1999 - appellant filed redemption certificate for fulfillment of export obligation issued by the Licensing authority - DRI officers found that the appellant has no manufacturing facilities for that part of the period; demands proposed denying exemption; same set aside by the Tribunal on the ground that the Licensing authority has certified full discharge of export obligation; further agitated by Revenue before the HC, who remanded it to the Tribunal for de novo consideration, now addressed herein.

Held : It was observed by the Adjudicating authority that if the appellant had declared the job workers to the DGFT and got the licences amended to incorporate the job workers and took steps to fulfill the obligation under the Customs notification, he would be eligible to avail the benefit of exemption notification - It is stated that the Licensing authority may have the power to condone the non-fulfilment of condition relating to declaration of job workers not declared in the application - Licensing authority certified the fulfillment of export obligation -stand taken by the appellant that they manufactured the goods through their job worker and permitted by Policy is required to be verified and, thereafter, it should be decided as to whether they are eligible to get benefit under the notification - matter remitted to the Adjudicating authority to examine the contention on the eligibility for job work as per Policy and fulfillment of the condition of notification consideration all the submissions. [Para 5, 6]

2015-TIOL-530-CESTAT -DEL

Beetel Teletech Ltd Vs CC (Dated: January 21, 2015)

Cus - Appellants in their obligation made to DGFT for issuance of EPCG licence have declared that they would be exporting goods produced out of capital goods imported under EPCG Scheme - Goods exported and counted towards fulfilment of export obligation were not manufactured in factory where the capital goods imported under EPCG Scheme were installed - As per exemption notification 110/95-Cus, "export obligation" in relation to importers other than those rendering services, means export to a place outside India of products manufactured with the use of capital goods imported, assembled or manufactured - Condition of said notification has been clearly violated rendering the appellant ineligible for benefit of said notification and as a consequence they become liable to pay differential duty: CESTAT [Para 4, 5]

2015-TIOL-522-CESTAT -MUM

Minaz Imadadali Chevewala Vs CC (Dated: December 23, 2014)

Cus - Appellant, partnership firm imported 'Garlic' declaring as 'Dried Garlic', import of which was freely permitted – Revenue views that it is 'Wet Garlic', which was restricted item and were allowed to be imported under licence - Matter was referred for clarification of DGFT who has clarified what is dried garlic and garlic other than dried garlic – As per Suchitra Components Ltd - 2007-TIOL-09-SC -CX , circular dated 17/9/1999 is prospective and not retrospective therefore, whatever goods imported prior to issuance of this Circular was held to be legal – Since, main proceeding against partnership firm has been dropped, penalty on partner cannot be sustained: CESTAT [Para 1.1, 5]

2015-TIOL-509-CESTAT -MAD

National Institute Of Ocean Technology Vs CC (Dated: December 23, 2014)

Customs - Demand of Additional Duty of Customs - appellant is a public funded research institution covered under Col. 2 of the Notification No. 51/96-Cus. dated 23.7.1996 - Revenue sought deposit of additional duty of customs against certain Bills of Entry; adjudicated demands; upheld by Commissioner (Appeals) and agitated herein.

Held: There is no description of different types of additional duty of customs in the notification, which categorically states that exemption from whole of the additional duty of customs leviable on the goods under Section 3 of the Customs Tariff Act, 1975 is allowed - In absence of any description and nomenclature of additional duty in the notification there cannot be any interpretation otherwise possible to deprive the appellant from exemption of additional duty of customs - In view of the clear mandate of the notification to exempt additional duty of customs, the goods imported are eligible to the exemption from additional duty of customs thereon. [Para 4, 5]

2015-TIOL-501-CESTAT -MAD

Larsen And Toubro Ltd Vs CC (Dated: September 10, 2014)

Customs - Amendment of SB - appellants exported the goods under the impugned Shipping Bill and later sought amendment from DEPB to advance licence - request denied in adjudication and agitated herein.

Held: Sl. No. No.4 of the ARE-1 documenting the consignment covered by the impugned SB clearly indicates that export of the goods is in discharge of export obligation under advance authorization scheme - examination report clearly mentioned the invoice number, same advance licence number and the description, quantity, weight - confirmed that impugned SB has been duly exported under advance authorization scheme before export of the goods - Under section 149 read with Board's circular dt. 16.1.2004, amendment between one scheme to another scheme should be allowed by the field based on the documentary evidence which was in existence at the time when goods were cleared for export - amendment has been allowed by decisions relied upon, as the supporting documents existed at the time of export of goods - Merit in contention that error owing to inadvertence committed by the CHA who has filed the shipping bill under DEPB instead of rightly filing under advance licence - exporter has also filed the declaration before the authority that they will not claim any DEPB benefit against the said shipping bill - appellants are eligible for conversion of impugned SB from DEPB scheme to advance licence scheme; impugned order set aside. [Para 5]

2015-TIOL-498-CESTAT -MAD

CC Vs Adluri Foods (Dated: November 3, 2014)

Customs - Appeal and monetary limits - Appellant imported Fruit Juices, held admissible to exemption from CVD; also trade discount held excludible from transaction value for assessment by original authority; view upheld by Commissioner (Appeals) and agitated by Revenue herein.

Held: Bench decided a similar issue in F.O.No.40480/2014 dt. 15.7.2014 - The Tribunal held that even where appeals were filed prior to issue of the Board circular prescribing monetary limits; for filing the appeals by Revenue, monetary limit would be applicable, in the light of the Karnataka High Court ruling in the Ranka & Ranka case - appeal filed by Revenue not maintainable under proviso to Section 129A (1) of the Customs Act, 1962. [Para 5]

2015-TIOL-493-CESTAT -MAD

M/s Eta General Pvt Ltd Vs CC (Dated: December 23, 2014)

Customs - Classification - Importers sought the classification of evaporator assembly and condenser assembly as "components" whereas the Revenue's contention was that goods were of the characteristics of air conditioner to be rightly classified as 'general brand air conditioner' as exhibited by the invoices - demands confirmed on the ground that the impugned goods were misdeclared.

Held: When the goods came as such, there is no conflict of the classification of the goods - Both the exporter and the importe r had prior knowledge about the goods and nature as well as characteristic thereof - The goods were 'general brand air conditioners' and not components thereof - no scope to intervene in the appellate decision for which the appellate order is upheld. [Para 3]

2015-TIOL-489-CESTAT -MAD

M/s Transport Logistics Vs CC (Dated: December 2, 2014)

Customs - CHALR, 2004 - appellant is a holder of Customs Broker Licence – DRI seized a container revealed on examination to contain Red Sanders (prohibited for export) misdeclared as 'Ragi' for which Customs clearance was obtained by individuals to whom the appellant lent his license - CHA license was suspended under Regulations 20(2) of the CHALR, 2004 and subsequently, continued - On instituting formal enquiry and following the principle of natural justice, the Commissioner of Customs (Import) ordered revocation of the licence and forfeiture of full amount of security deposit under Regulation 20 (7) of the Customs Broker Licensing Regulations (CBLR), 2013 – same agitated herein.

Held: Inquiry report held the following charges as proved against the appella nt (a) The CHA lent his license to other freight forwarders for monetary consideration and even made an agreement with one of such freight forwarders in contravention of the provisions of Regulation 12 of the CHALR, 2004 (now Regulation 10 of the CBLR, 2013); (b) The CHA failed to obtain authorization from the actual exporter, as he was unaware of the actual exporter and thus violated the provisions of Regulation 13(a) of the CHALR, 2004 (now Regulation 11 (a) of the CBLR, 2013); and (c) The CHA did not advise his client to comply with the provisions of the Customs Act, 1962, and thus, violated the provisions of Regulation 13(d) of the CHALR, 2004 (now Regulation 11(d) of the CBLR, 2013. [Para 4]

Impugned shipping bill was filed in the name of the appellant CHA; exported goods were examined in the presence of the Customs officers, stuffed and sealed with one time lock at CFS; containers were taken outside the city and tampered the seal and the red sanders were substituted in the place of Ragi with the connivance of the transporter - export goods were substituted before entering into the port of export; appellant signed the blank customs documents / declarations and lent his license to the fraudster - acts or deeds committed by individuals of other freight forwarders is to construed as if it was done by the appellant himself, as ruled by the Madras High Court in the case of Sri Kamakshi Agency, which has been upheld by the Supreme Court – same squarely applicable to the present case - there is inconsistency between the statement of the appellant before the customs officer and personal hearing record before the Commissioner, where he stated that he knows his customer and the shipper and AD book. [Para 5, 6]

HC ruling in the Venkatesh Shipping case of no help to appellant since the Court held that the ruling cannot be treated as precedent – no reason to interfere with the impugned order, same upheld. [Para 7, 8]

2015-TIOL-485-CESTAT -MUM

Abubaker Haji Qasim Vs CC (Dated: November 14, 2014)

Cus -Smuggling of foreign currency - Seizure of large amount of foreign currency from checked in baggage of appellant which was not declared to Customs - Plea of appellant that currency belongs to his brother in US turns out to be a weak defense as affidavit is dated 1.7.2014 i.e. more than 9 years after date of incidence and cannot be accepted at face value without backing of any legal supporting document in India - It is confessed that he was making trips abroad and indulging in smuggling during these trips - appellant indulged in act of smuggling of foreign currency making it liable to confiscation under Section 113 of Customs Act - Possession of such huge amount of fore ign currency is prohibited under FEMA Regulations and option to redeem the same under Section 125 is not there - Act of smuggling is established through a series of facts and events namely non declaration, detection of currency in a packet contained in a suitcase already checked in, repeated statements of appellant - Option to release goods on payment of redemption fine is not available - Clear active role in act of smuggling also does not deserve mitigation of penalty imposed - OIO is upheld and appeal rejected: CESTAT [Para 6.1, 6.2, 6.3]

2015-TIOL-477-CESTAT -MUM

Abbott Health Care Pvt Ltd Vs CC (Dated: February 6, 2015)

Cus – 'Prosure' is an Instant food mix &is eligible for the benefit of Notf. No. 02/2011- CE dated 01/03/2011 in respect of CVD – ROM application allowed: CESTAT [para 4]

Also see analysis of the Order

2015-TIOL-473-CESTAT -DEL

M/s Ind-Sphinx Prevision Ltd Vs CC (Dated: January 22, 2015)

Cus - Mis declaration of goods - Assessee submits that due to mistake of supplier of goods, excessive quantity has been dispatched - Letter issued by the supplier is undated - Moreover, supplier has issued two invoices by same number on the same date for 25,000 pcs as well as 50,000 pcs - Therefore, mis declaration is on the part of assessee - As goods imported by assessee for their own use and for export of goods, redemption fine is reduced to Rs.35,000/- and penalty to Rs. 10,000/- - Confiscation of goods upheld: CESTAT

2015-TIOL-467-CESTAT -MUM

M/s Aero Enterprises Vs CC (Dated: December 26, 2014)

Cus – Appellant inter alia filed bill of entry for clearance of "Stock of buttons" - On examination, 184 kg of shell buttons were found – B/E was assessed & importer was asked to provide due clearance from Wildlife Crime Control Bureau - Wildlife Crime Control Bureau reported that these buttons are made of sea shell known as "Torches Nilotius" [listed in schedule IV of Wildlife (P) Act 1972] and import thereof is prohibited as per provisions of EXIM Policy and requested Customs authorities to take action – Adjudicating authority ordering confiscation of ‘buttons' and imposing penalty – Appeal before Tribunal. Held: As per provisions of EXIM Policy, import of said shells is prohibited - No infirmity in confiscation but penalty is reduced from Rs. 1 lakh to Rs. 50,000/-: CESTAT [Para 5]

2015-TIOL-460-CESTAT -BANG

Jet Drilling (S) Pvt Ltd Vs CC & ST (Dated: November 25, 2014)

Customs - Import of Marine Gas Oil(HSD) - Notification No. 21/2002-Cus. dated 01.03.2002 - Eligibility for customs duty exemption - Essentiality Certificate issued by DG Hydrocarbons certified the imported goods as ‘fuel' required for petroleum operations - Fuel is a generic term covered under Customs Tariff Heading 2710 of CTA and covers both High Speed Diesel and Light Diesel - Consequently, argument of Revenue that Marine Gas Oil imported is LDO and not HSD as such not eligible for benefit of exemption is irrelevant - Appellant is entitled to benefit of Notification - Impugned order set aside - Appeal allowed with consequential reliefs. (Para 3)

2015-TIOL-452-CESTAT -MAD

CC Vs M/s Cethar Vessels (Dated: October 21, 2014)

Customs - Respondent imported Iron Plates, Sheets, Tubes and Pipes; warehoused the same under-bond in their private bonded warehouse and cleared the goods partially on payment of the rate of 20% Customs duty - Subsequently, they requested department to allow the clearance of the warehoused goods at the concessional rate of 10% vide Notification No.21/2003-Cus. dated 01.03.2002 as amended by Notification No.20/2004-Cus. dated 16.04.2004 – Revenue viewed that the exemption is a conditional one subject to fulfillment of condition of Customs (Import of Goods at Concessional Rate of Duty For rate of Duty for Manufacture of Excisable Goods), Rules, 1996; that the respondent had not opted at the time of assessment of in-bond Bill of Entry for warehousing at the port of import; that the same has to be allowed only as per Rule 5 of the Customs (Import of Goods at Concessional Rate of Duty for manufacture of Excisable Goods), Rules, 1996; and rejected the request; such rejection set aside by Commissioner (Appeals) and agitated by Revenue herein.

Held: Clause (b) of sub-section (1) of Section 15 provides that the rate of duty of the imported goods in which case the goods are cleared from a warehouse under Section 68 on the date on which a bill of entry for home consumption in respect of which goods are presented under that section - As per Section 15(1)(b) of the Act, 1962 the respondent is liable to pay duty at the rate on the date on which the bill of entry is presented for home consumption, which would cover the claim of benefit of exemption notification - no dispute that the appellant would be eligible to avail the benefit of notification subject to fulfillment of condition of the Notification and Rules, 1996 – Expressly clarified that as per Section 15(1)(b) of the Customs Act, 1962, the respondent may claim the benefit of exemption subject to fulfillment of the condition to the Notification. [Para 5, 6]

2015-TIOL-451-CESTAT -BANG

Acer India Pvt Ltd Vs CCE, C & ST (Dated: August 13, 2014)

Customs – Classification – Imported Projectors principally used with automatic data processing machines – Following precedents, held classifiable under Customs Tariff sub-heading 85286100 – Mere existence of additional features like connectivity with a USB port, video compatibility with HDTV does not change the principal features/functional utility of it being a projector – Pre -deposit waived. (Para 4, 5, 6)

2015-TIOL-449-CESTAT -BANG

Zodiac Clothing Company Ltd Vs CC & ST (Dated: November 24, 2014)

Customs - Excess customs duty expensed in year of importation - Rejection of refund claim -Whether refund claim is hit by unjust enrichment -Presumption envisaged under section 27(2) of Customs Act, 1962 is rebuttable by the person claiming refund -No iota of rebuttal evidence forthcoming from appellant that he is not benefited by unjust enrichment - Nor any documentary proof placed to substantiate that imported raw materials have been used exclusively in the making of exported garments and not consumed in domestic sales - On the contrary, statement of accounts categorically manifested that incidence of duty has been passed on to the buyers in the financial year of import of goods in question -Reliance placed on Certificate issued by Chartered Accountantthat excess amount of duty paid was not included in cost of final product - Is inconsequential in absence of evidence substantiating claim in as much as said certificate is merely a piece of evidence acknowledging certain facts and in itself not sufficient to show that duty in relation to refund not passed on to another person - Refund amount thus has been correctly transferred to the Consumer Welfare Fund - No infirmity in the order - Appeal deserves to be rejected.(Para 6, 8, 10, 12, 13, 14)

Customs - Unjust enrichment - Customs, Excise, and Service tax duties constitute indirect taxes - Provisions of Income Tax Act have no applicability to claims for refund of customs duty - Thus findings recorded in the impugned order that showing the amount in the books of accounts for succeeding years as ‘receivable' in terms of Section 41(1) of the Income Tax Act, 1961 is applicable only to Income Tax Act and have no application for refund of Customs duty, perfectly correct. (Para 11)

2015-TIOL-442-CESTAT -BANG

Pfizer Products India Pvt Ltd Vs CC & ST (Dated: May 21, 2014)

Customs - Delayed sanction of refund - Interest - Interest is compensatory in nature, and is payable on delayed sanction of refund - Revenue contention that refund amount was sanctioned within three months from the date of judgment of Hon'ble Supreme Court in dismissing the Special Leave Petition (SLP) filed by the department and the amount was lying with the Consumer Welfare Fund and not with the department, as such no interest is payable, is implausible and is contrary to the statutory provisions - Impugned order set aside - Appeal allowed with consequential reliefs. (Para 10, 11, 13)

2015-TIOL-441-CESTAT -MAD

Cell Code Nutrition India Pvt Ltd Vs CC (Dated: November 27, 2014)

Customs - Stay / dispensation of pre deposit - Classification - First Appellant firm imported Concentrated Mineral Drops (CMD) and Nano CelluSil and declared under Tariff Item 30.04 as pharmaceutical product; same viewed by Revenue as classifiable under Tariff Item 21069099 as "other Food Preparation not elsewhere specified or included" of the Indian Customs Tariff Act, 1975 - Demands adjudicated with interest and penalties on the firms (CHA, Freight Forwarders) as well as individuals; agitated herein.

Held: Adjudicating authority classified the goods on the basis of materials available in the form of brochure, statement, price list and labels which are recovered from the importer's premises; most of the goods are already cleared; hence the importer failed to make a strong prima facie case for waiver of entire amount of duty along with interest and penalty - M/s. Cell Code Nutrition India Pvt. Ltd. directed to make a predeposit of Rs.30,00,000/- (Rupees Thirty lakhs only) and its Managing Director, Shri M. Sivasakthivelu to make a sum of Rs.40,000/- towards predeposit - In view of the suspension of their licenses, predeposit of penalty waived in the case of CHAs

M/s.Sass Global Logistics and M/s. Sri Rajeswari International - Freight forwarding agent, Shri S. Venkatesan prima facie found to be the coordinator of the operations of the misdeclaration of the goods; hence directed to make a predeposit of Rs.25,000/- (Rupees Twenty five thousand only). [Para 9, 10, 11]

2015-TIOL-433-CESTAT -MUM

Somani Cotsynth Ltd Vs CC (Dated: October 27, 2014)

Cus - Extension of stay – in view of LB decision in Haldiram India Pvt. Ltd., - 2014- TIOL-1965-CESTAT-DEL-LB since delay was not on account of any omission or commission on the part of appellants but is due to huge pendency of appeals before the Tribunal, stay extended beyond 365 days till the disposal of appeals: CESTAT [Para 2, 3]

2015-TIOL-429-CESTAT -BANG

Jsw Steel Ltd Vs CC ( Dated: December 3, 2014)

Customs - Imported Coking Coal - Benefit of exemption from customs duty under Notification No. 21/2002-Cus., dated 1-3-2002 disallowed on alleged ground that the sample drawn did not match with required parameters of mean reflection - Inordinate delay in drawing the sample established - Valuable right of assessee to have sample re-tested declined - On facts, impugned order was set aside and matter remanded to original authority to adjudicate afresh - Alternative claim for benefit of Notification need to be considered if the facts are available and records are sufficient to show the eligibility of an importer for exemption. (2)

2015-TIOL-427-CESTAT -DEL

Five Core Electronics Ltd Vs CCE (Dated: January 19, 2015)

Cus - Notification No.52/2003-CUS - CPT and PMC were removed from DTA without carrying out any manufacturing activity because said imported goods were not mentioned to be any raw-material in Bill of Entry as well as invoices of exporter - Degaussing does not amount to manufacture as it does not change the character and nature of input - No permission for carrying out degaussing and alignment of CRT from appropriate authority - Terminology "degaussing" and alignment of CRT and spray painting of plastic moulded cabinets were only nomenclature given by appellant to give an impression that certain processes were carried out on such goods imported and sold in DTA - Benefit of said Notfn claimed is not tenable and plea of excise duty is immaterial - Customs duty is recoverable - Appeal dismissed: CESTAT [Para 5.1, 5.2, 5.3, 6, 9]

2015-TIOL-424-CESTAT -MAD

Bharat Sanchar Nigam Ltd Vs CC (Dated: September 22, 2014)

Customs - Valuation - appellant declared the value as per Highsea Sales Agreement based on tender document; subsequently detected that it was erroneously declared in place of purchase price, resulting in excess duty paid - Appeal filed against the assessment of BE dismissed by Commissioner (Appeals) as filed beyond condonable limit; now agitated herein.

Held: The words "communication to him of such decision or order" in section 128 (1) of the Customs Act make it clear that the communication must be an effective communication under Section 153 of the Customs Act 1962 - Madras High Court in Redington India case held that the petitioner's constructive knowledge about the order is not accepted when order not communicated to them in the manner prescribed in Section 153 of the Act. [Para 4]

In Payal Petropack case, the Tribunal observed that even though the date of out of charge is treated as the date of assessment order, even then appeal has been filed beyond the period of 90 days - In the present case, the appeal was filed within 90 days from the date of out of charge; hence in terms of the High Court ruling, appeal held to be filed before the Commissioner (Appeals) within the condonable period - impugned order set aside; and the matter is remanded to the Commissioner (Appeals) to decide afresh the application for condonation of delay in filing of appeal. [Para 5, 6]

2015-TIOL-422-CESTAT -MUM

Shree Export Vs CC (Dated: January 1, 2015)

Cus - Drawback - Whether goods sought to be exported falls under Entry No. 8538 02 or Entry No. 8538 99 - Brass electrical wiring accessories predominantly consists of brass - It also contained certain metal screws which were made of materials other than brass - In order to fall under Entry No. 8538 02 of drawback schedule, item should be made 'wholly' of brass - Appropriate classification is Entry No. 8538 99 which provides for a drawback of 1% of FOB value of goods exported - Confiscation of goods with an option for redemption and imposition of penalty is clearly unwarranted considering the fact that appellant is a small-scale manufacturer-exporter of brass items - Penalty & fine set aside - Amount of fine and penalty paid to be refunded - Appeal partly allowed: CESTAT [Para 5, 5.1]

2015-TIOL-411-CESTAT -BANG

M/s Bangalore Metro Rail Corporation Ltd Vs CC (Dated: November 17, 2014)

Customs - Refund of duty paid twice because of failure of Department's

ICEGATE - No unjust enrichment : The second payment was made on the advice of department and because of the helplessness of the department to connect payment earlier made to the Bill of entry and make the computer system facilitate clearance of goods. In such a situation, requiring the appellant to prove unjust enrichment is against the spirit of law. Commissioner (Appeals) observed that the assessee has to prove that there was no unjust enrichment beyond any doubt. Even in murder cases, an offence is required to be proved only beyond reasonable doubt when a person can be hanged for the offence committed. Here the Commissioner is requiring an importer to prove beyond any doubt that there is no unjust enrichment when there is a clear case of double payment and the problem that has arisen in the computerized system of the department and inability of the department to help an importer not to make second payment. No importer would be happy to make the second payment and claim refund. For three months, more than Rs. 80 lakhs have been with the Government for which no interest is payable. We find absolutely no justification to uphold the impugned order. This is a matter which should not have travelled to this Tribunal at all.

2015-TIOL-398-CESTAT -DEL

M/s Piero International Vs CC (Dated: December 8, 2014)

Cus – Import of brass scrap for manufacture of brass valves and check valves - declared price of the imported goods is less than the value of brass scrap during the period of dispute - This fact casts serious doubts about the declared transaction value - Moreover imports are from a trader and not from a manufacturer and the invoices regarding the price at which the goods were purchased by the supplier from the manufacturers have not been produced - In view of this, appellant have not been able to establish prima facie case in their favour - amount of Rs . 1,16,487/- paid during investigation is not sufficient to safeguard the interest of the Revenue – appellant is directe d to deposit an amount of Rs . 5,00,000/- alongwith appropriate interest in addition the amount already paid by them for obtaining stay: CESTAT [ para 6]

2015-TIOL-395-CESTAT -MUM

Shaan Marine Services Pvt Ltd Vs CC (Dated: January 02, 2015)

Cus - Appellant, a shipping agent filed an application for amending IGM - Amendment to IGM was necessitated because one of importers after filing BOE, chose not to clear goods - Said goods were required to be sold to new consignees and consequently, fresh bills of lading and invoices were required to be issued - It is true that new numbers and dates should have been given for fresh bills of lading - This is only a technical error and does not reflect any fraudulent intention - Goods were not sought to be unloaded in contravention in IGM, therefore, provisions of Section 111(g) of Customs Act, 1962 are also not attracted - provisions of s. 111(f) has no application whatsoever in the facts of the present case as it deals with a situation where there is a deliberate misdeclaration in the import manifest filed and which is not the case here - No warrant to hold the goods liable to confiscation and imposed with any penalty - Appeal allowed: CESTAT [Para 2.1, 6]

2015-TIOL-394-CESTAT -MUM

Samay Electronics Pvt Ltd Vs CC (Dated: January 20, 2015)

Cus - Recovery proceedings for escaped Anti-dumping duty can be initiated even afer expiry of ADD Notification in view of s.159A of CA, 1962 - Rule 2(a) of the General Interpretative Rules of CTA, 1975 can be invoked for levy of ADD: CESTAT

Also see analysis of the Order

2015-TIOL-392-CESTAT -MUM

Berg Trading Pvt Ltd Vs CC (Dated: December 16, 2014)

Cus - Notification 102/2007-Cus - Refund of SAD - On the basis of mere statement without discussing about any document, rejection of claim was not warranted - As per documents submitted by appellant before Commissioner (A), amount of refund is clearly appearing in balance sheet under heading ‘Loans and Advances' - there is absolutely no deficiency in respect of payment of CST/VAT and that the amount being shown as receivable in balance sheet - Refund admissible - Appeal allowed with consequential relief: CESTAT [Para 6, 6.1, 7]

2015-TIOL-385-CESTAT -MUM

Mediatech India Distribution Pvt Ltd Vs CC (Dated: December 31, 2014)

Cus - Refund of SAD - Appellant paid SAD on imported goods a nd sold the goods in domestic market on payment of Sales Tax/VAT liability - No mention anywhere in domestic sale invoices of SAD paid by importer - Appellant is not a dealer registered for issue of cenvatable invoices - As per Rule 9 of CCR, 2004, tax invoices issued by appellant is not a cenvatable document(s) at all, hence, no credit can be taken on strength of these invoices, notwithstanding non-making of endorsement on documents - in view of LB decision in C howgule & Company Pvt. Ltd. - 2014-TIOL- 1191-CESTAT -MUM-LB , impugned order set aside and appeal allowed: CESTAT [Para 2, 4.1]

2015-TIOL-382-CESTAT -DEL

Shri Sanjay Khar Vs CC (Dated: September 1, 2014)

Cus - After allowing the Misc. application of Revenue for early hearing of appeal and after rejecting the Misc. application for vacation of stay appeal listed for final disposal by a Bench who had already heard the matter twice - Registry to take the requisite action accordingly: CESTAT [Para 4]

2015-TIOL-374-CESTAT -MAD

M/s Shree Ganesh Steel Rolling Mills Ltd Vs CC (Dated: December 2, 2014)

Customs - Exemption - appellant imported goods declared as Non-Alloy Steel slabs confirming to BIS 2830, prime quality and claimed the benefit of Customs Notification No. 21/2002-Cus. dated 1.3.2002 (Sl. No. 190B) - Revenue obtained NML opinion stating that the samples are not prime quality and can be considered as "Non-Alloy Steel slabs non-prime" - Appellant sought retest, was denied the same, then took the matter up to Supreme Court, obtained a favorable order and had the samples retested in accordance with the CBEC Circular dated 21.5.1955 at MSME Lab, who opined that the slabs are of prime chemistry and meet the quality requirements of prime quality non-alloy steel slabs - however, exemption denied in adjudication; confiscation, demands confirmed with interest and penalties on the firm and individual; agitated herein.

Held: In their judgment dated 20.3.2012, High Court clearly directed to proceed in the adjudication process and to complete the same based on the test report dated 21.4.2009 by MSME - the adjudicating authority would complete adjudication proceedings after examining test report dated 21.4.2009. [Para 5]

"specified value as per IS 2830 - 2003" as mentioned in the MSME Report is in conformity with the specification of IS 2830; "Observed Value" is on the basis of specification IS 2830 and it is within the limit as specified in IS 2830 - adjudicating authority while reproducing the "Observed Value" in the adjudication order had totally overlooked the remarks column "within the limit" - the imported goods are cut in various sizes at the request of the customers; as per HSN, slabs are not required to be made exactly to size, the edges are not accurate - MSME Report is based on the specification of IS 2830; the adjudicating authority failed to consider that the "Observed Value" of MSME Report is within the limit as prescribed in IS 2830; hence there is no reason to discard the MSME report - The OIO also refers to other imports assessed on the basis of MSME report - no reason why the instant BE cannot be assessed on the basis of the MSME report. [Para 7, 8]

Adjudicating authority strongly relied upon the document received from the overseas sources, which is in French language and a copy of English translation was provided with remark "unofficial translation", without any signature of translator - It is not certified by any public authority and the same cannot be accepted as evidence - MSME report should be accepted, wherein it has been opined that the goods in question are

of prime chemistry and meet the quality requirements of prime quality - demand of duty, penalty a nd confiscation of goods and imposition of penalty are not sustainable. [Para 9, 11]

2015-TIOL-371-CESTAT -MUM

Jai Durge Trading Co Vs CC (Dated: January 2, 2015)

Cus - Amendment of IGM - Original importer's name was indicated in IGM as M/s Jai Durga Trading Co. - Said importer did not clear goods nor did he pay duty within thirty days from date of unloading of goods as stipulated under Section 48 of Customs Act, 1962 - this clearly shows that Appellant was not interested in clearance of goods and had abandoned their claim of goods - Amendment of IGM sought by shipping agent for substituting the name of importer with M/s. BGH Exim Ltd. cannot be faulted at all - Appeal dismissed: CESTAT [Para 4.1, 5]

2015-TIOL-370-CESTAT -MAD

Gateway Distriparks (South) Pvt Ltd Vs CC (Dated: December 04, 2014)

Customs - Stay / dispensation of pre deposit - illegal removal of 32 numbers of used printing mini-offset machines from M/s. Indev CFS by applicants involved - goods originally imported in the name of M/s. Gold Line Offset Printers, who disowned the goods - subsequently sold in the open market contravening the provisions of EXIM Policy 1997 - 02 and violating Section 45(2)(b) of the Customs Act, 1962 - penalties imposed on firm and individuals contested herein.

Held: applicants are involved in clandestine removal of the imported goods in violation of the EXIM Policy 1997 - 02 and in contravention of Section 45(2)(b) of the Customs Act, 1962 - adjudicating authority has given detailed finding on this issue - applicants directed to predeposit 10% of the penalties imposed on each, within a period of six weeks.

2015-TIOL-364-CESTAT -MUM

Mr Saeed Ahmed Mohammed Ali Wadwan Vs CC (Dated: December 17, 2014)

Cus – Maintainability - Confiscation of Indian Currency from appellant, who attempted to export the same as baggage – As per Section 129A of Customs Act, 1962, appeal is not maintainable before Tribunal - Appellant was supposed to file Revision Application before Revisionary Authority of Government of India under Section 129DD of said Act – Appeal dismissed: CESTAT [Para 5, 5.1]

2015-TIOL-363-CESTAT -MAD

M/s V Radhakrishnan Vs CC (Dated: November 24, 2014)

Customs – Stay / dispensation of pre deposit – person named Ahamed Faizal exported the impugned goods "Katamine Hydro Chloride and Pseudo Ephedrine Hydro Chloride and Ephedrine Hydro Chloride" in the guise of pomegranate fruits – CHA and individuals (CHA employee and premises owner) indicted and penalties adjudicated; agitated herein.

2015-TIOL-361-CESTAT -MUM

Ruskin Chemipharma Vs CC (Dated: October 20, 2014)

Cus - M/s. NGDH had imported bulk drugs, through high seas sale by availing benefit of notfn 47/2002-Cus under cover of advance licences issued to them - M/s NGDH undertook compaction of bulk drugs and cleared compacted drug to M/s La Cure , a 100% EOU as ‘deemed exports' without payment of any duty, by classifying the goods under Chapter 38 of Central Excise Tariff – It is alleged that process undertaken by them did not amount to ‘manufacture' as there was no change in chemical composition of bulk drugs and same was merely a physical compaction – Customs duty demand made by denying the benefit of notification No. 47/2002-Cus along with penalties.

Held: There is no violation of any condition stipulated either in licence or in notification - appellant has been issued licence to manufacture Compacted Granules of various bulk drugs - Under the Drugs and Cosmetics Rules also, activity undertaken by appellant amounts to ‘manufacture' - As per Committee consisting of officers from DGFT, Dept. of Industrial Promotion & Policy and Dept. of Pharmaceuticals, compacting process is a manufacturing process in itself which is intermediate stage before making a tablet - Entire activity and supply by way of deemed exports have been undertaken with the full knowledge and approval of Central Excise department - Appellants have made a strong prima facie case for grant of stay: CESTAT [Para 2, 5.5, 5.6, 5.7, 5.8, 6]

2015-TIOL-358-CESTAT -AHM

CC Vs Reliance Industries Ltd (Dated: March 27, 2014)

Customs - Assessment of LNG imported - Revenue in appeal against the order of Commissioner (Appeals) holding that final assessment of LNG imported by the Respondent should be made on the basis of transaction value worked out as per the contracts on the basis of ex-ship delivered quantity and unit price declared in the final invoices - Revenue contends that the quantity of LNG declared in the bills of entry and the import manifest was to be taken for the purpose of payment of duty - Held: Contracts between the buyer and seller, the transaction value has to be calculated on the basis of the quantity of LNG discharged and Brent rate. There is no evidence on record that any amount over and above the transaction value has been repatriated by the Respondent to the seller of the LNG abroad - Assessable value in the present imports was correctly determined on the basis of quantity of LNG discharged in India at the contracted price arrived at on the basis of an agreement - Appeal filed by the Revenue is rejected.

2015-TIOL-357-CESTAT -MUM

Nickunj Shah Vs CC (Dated: October 24, 2014)

Cus - s. Graphite blocks sought to be exported by appellant are nuclear grade as certified by BARC - Appellant contends that since the customs had allowed export of 2 consignments earlier, they could export upto 30 MTs of nuclear grade graphite in a period of 12 months - As per DGFT notfn 47 (RE-2006)/2004-2009 and resolution issued by Dept. of Atomic Energy, the restriction is in respect of goods and not in respect of any particular individual exporter - No satisfactory explanation as to why the appellant wanted to create a web of bogus transactions with respect to their procurement of nuclear grade graphite blocks - No estoppels in a customs transaction

- Merely because the Customs committed an error in allowing a transaction earlier, that cannot be a reason for repeating the error - Export of nuclear grade graphite required a specific licence for the purposes of export and in absence of such a licence, goods became "prohibited goods" - Consequently, goods liable to confiscation - Offence committed assumes significant dimension in context of nuclear terrorism - Impugned order upheld: CESTAT

Penalty - s.114 of CA, 1962 - in the matter of penalty on Mr. Piyush N. Sanghvi, Partner of Parth Enterprises there is no direct involvement on his part in the attempt to export nuclear grade graphite - He has only assisted Mr. Nickunj Shah in procuring fictitious bills showing purchase of graphite blocks, therefore, it cannot be said that any of his action/omission to act made the goods liable to confiscation - Penalty set aside: CESTAT [Para 5.1, 5.2, 5.7, 5.8, 5.9, 6]

2015-TIOL-351-CESTAT -MAD

M/s Topsia Estates Pvt Ltd Vs CC (Dated: October 29, 2014)

Customs – Valuation - appellants imported PU Coated Fabrics of various thicknesses from China; assessing officer enhanced the declared value and the appellant paid duty under-protest – assessment contested before Commissioner (Appeals) who remanded the case first, and on reconfirmation by original authority, upheld the demand; now agitated herein.

Held: adjudicating authority observed that the unit price declared appears to be very low compared to the contemporaneous import value available in NIDB data - appellant imported PU Coated Fabrics of various thickness and different qualities from China - There is no evidence of higher value of contemporaneous import from same sources and no allegation of mis -declaration of the goods – Apex Court in Eicher Tractors case held that the value under Section 14(1) of the Customs Act, 1962, shall be taken to be the price at which such or like goods are originally sold, or offered for sale, for delivery at the time and place of importation in the course of international trade and 'special circumstances' have been statutorily particularized in the Customs Valuation Rules; that in the absence of these exceptions, it is mandatory for customs to accept the price actually paid or payable for the goods in the particular transactio n – similar view taken in DM International and Om Sairam cases – Tribunal consistently held that value cannot be enhanced merely on the basis of NIDB data - force in the submission of the learned Advocate that in this particular situation, Rule 9 of the Valuation Rules would not be invoked – impugned order set aside. [Para 7, 8, 11, 12]

2015-TIOL-349-CESTAT -MAD

M/s Agfa Healthcare India Pvt Ltd Vs CC (Dated: November 13, 2014)

Customs – Stay / dispensation of pre deposit – Classification – goods classified under TI 90229090 and exemption sought under notification No.21/2002-Cus – Revenue viewed the goods classifiable under CSH 370110; that exemption unavailable; adjudicated demands, agitated herein.

2015-TIOL-344-CESTAT -DEL

Debesh Prasad Nanda Vs CCE (Dated: September 15, 2014)

Cus - Penalty - M/s Infocall Solutions Private Limited was set up as a call centre 100%

EOU - Capital goods imported duty free by & sold in open market - appellant is one of the directors of company - premises where call centre was set up was rented only for a period of 8-9 months which clearly shows that company itself was floated with a malafide intention - short span of lease period for a company which is to be run as a call centre is itself indicative of the fact that there was no intention to conduct the business of running a call centre for a longer period - evidence procured on record by Revenue reveals the fact that the company was closed and the premises were vacated in May 2006 itself - subsequently appellant resigned in May, 2006 and left India in July, 2006 i.e. after completion of the fraud & this was by a malafide design - appellant has no prima facie case - entire penalty amount of Rs.5,00,000/- to be deposited: CESTAT [Para 7,8]

2015-TIOL-341-CESTAT -MUM

Coral Healthcare Pvt Ltd Vs CC (Dated: December 24, 2014)

Cus – Sampling size required to be taken for testing "Latex Prophylactic Condoms" under the DCR, 1945 is 315 pieces whereas the Central Drugs Testing Laboratory, Chennai took a sample size of 45 pieces and this is a serious discrepancy while concluding that the goods were sub-standard – request for re-test was also not allowed – Rule 141 of DCR, 1945 also allows for re -export, so goods cannot be confiscated or held liable for consequential penalty – Order set aside and appeal allowed: CESTAT [para 5]

Also see analysis of the Order

2015-TIOL-340-CESTAT -MUM

CC Vs Skyline Air Logistics Ltd (Dated: January 2, 2015)

Cus - Import of goods without IEC code - Bill of entry was filed by CHA on behalf of importer - Revenue view is that CHA knew that importer did not have any IEC code and they had colluded with importer in illegal import of goods, therefore, they should have been penalised by Commissioner (A). Held: If assessee CHA had committed any contravention of CHALR, remedies lies in taking action under CHALR and not under Customs Act - Revenue Appeal dismissed: CESTAT [Para 2, 5]

2015-TIOL-334-CESTAT -MUM

Gupta Coal India Pvt Ltd Vs CC (Dated: October 20, 2014)

Cus - Appellants imported coal described as 'steam coal' and classified under CTH 2701 19 20 while Revenue views that goods merited classification under CTH 2701 12 00 as 'bituminous coal' - Volatile matter content and calorific value limit satisfies the specifications for 'bituminous coal' as defined in Customs tariff - Appellants have not disputed any of certificates issued by supplier at load port - Nothing on record nor any evidence to the contrary led by appellant to rebut the correctness of calculation done by Revenue - Since the goods originated from ASEAN countries, they would be eligible for benefit of exemption under notfn 46/2011-Cus - Appellants are directed to make pre -deposit of Rs.3.78 Crore and Rs.73 lakhs respectively for normal period of limitation: C ESTAT [Para 2, 5.1, 5.2, 5.5, 6]

2015-TIOL-331-CESTAT -MUM

Minex Metallurgical Co Pvt Ltd Vs CCE (Dated: January 02, 2015)

Cus - Appellant committed an error while declaring the currency as Euro instead of US $ in bill of entry - They submitted evidences by way of copy of purchase orders, letter from foreign supplier, letter from banker evidencing that correct currency is US $ and not Euro - No dispute about the classification or rate of duty - It is a pure and simple mistake of declaring a wrong currency which resulted in payment of excess duty which was rectified by adjudicating authority - Appellant is rightly entitled to refund of excess duty paid –appeal allowed: CESTAT [Para 5.1, 5.2]

2015-TIOL-330-CESTAT -MUM

M/s Devki Nandan J Gupta Vs CC (Dated: December 23, 2014)

Cus – Refund – Notfn. 102/2007-Cus – Even if more than one claim is filed, the same cannot be denied only on the ground that Circular 6/2008 prescribes only one refund claim in a month because otherwise the statutory time limit of one year will become redundant – It is not intention of the Board Circular that even though the period of one year is getting expired, the assessee is not allowed to file more than one refund claim in a month - Appeal allowed: CESTAT [para 5]

Also see analysis of the Order

2015-TIOL-329-CESTAT -MUM

Central Warehousing Corporation Vs CC (Dated: January 1, 2015)

Cus - Penalty - Appellant availed services of transporters and cargo handlers without obtaining prior permission from the Commissioner of Customs thereby contravening the provisions of Regulation 6(2) of Handling of Cargo in Customs Area Regulation, 2009 - appellant did not ensure secure transit of the goods as the containers were mis-used for smuggling out red sanders - gravity of offence is serious - As per Regulation 12(8), if Customs cargo services provider contravenes any of provisions of Regulations, he is liable to penalty to the extent of Rs. 50,000/- - Penalty under Section 117 would be imposed only if there is no other penalty provided for violation of said Regulations - Penalty under regulation 12(8) reduced from Rs. 1.5 lakhs to Rs. 50,000/- and penalty of Rs. 1 lakh imposed under Section 117 of Customs Act, 1962 is set aside: CESTAT [Para 5, 5.1, 6]

2015-TIOL-321-CESTAT -MUM

M/s Asha Industries Vs CC (Dated: September 23, 2014)

Cus - Post shipment amendment of free Shipping Bill to 'Reward Scheme Shipping Bills' - Commissioner (A) observing that since the subject goods were not examined by the Customs instead of 25% examination as required by Circular No. 1/2009 the shipping bill cannot be allowed to be amended - Reason given for upholding rejection of conversion of shipping bill under Section 149 of Customs Act, 1962 is extraneous and is also perverse - goods for export have been examined by Customs official, who have examined 10% of consignment and cartons examined are much more than prescribed no. of cartons i.e. 20 - containers were stuffed and sealed in presence of Customs Officer - Customs authority is directed to convert shipping bill within a period of two weeks - Appeal allowed: CESTAT [Para 2, 5, 5.1]

2015-TIOL-320-CESTAT -MUM

M/s J M Baxi & Co Vs CC (Dated: November 25, 2014)

Cus - Seismic research is scientific research and, therefore, the vessel 'Geo Hind Sagar' is a scientific research vessel correctly classifiable under CTH 8906 & not under CTH 8905 as alleged by Revenue – Demand of Rs. 9,24,04,082/- set aside - penalty imposed on the Surveyor of the Indian Register of Shipping is completely bereft of any logic or reason and amounts to abuse of statutory powers – Order to be forwarded to jurisdictional Chief Commissioner and to the Chairman, CBEC for appropriate and necessary action - Appeals allowed: CESTAT

Also see analysis of the Order

2015-TIOL-319-CESTAT -MUM

CC Vs M/s Abbott Healthcare Pvt Ltd (Dated: October 10, 2014)

Cus - Classification – Import of SIMILAC 2 - Revenue assessed the goods under CTH 2106 9099 as a 'food supplement' while assessee claimed classification under CTH 1901 1090 as 'food preparation for infants' - As per analysis of tariff entries, SIMILAC- 2 is a food preparation exclusively meant for consumption by infant babies - Since the product complements mother's milk, it is a complementary food for infant - Product SIMILAC -2 is undoubtedly a Follow up formula for infants between age of 6 months and 2 years - Products correctly classifiable under CTH 1901.10 as per World Custom Organisation - IS Certification itself endorses the nature of product that it is a FOLLOW-UP FORMULA and infant food complementary to mother's milk – Order-in- Appeal upheld and Revenue appeal dismissed: CESTAT [Para 5, 5.1, 5.2, 6]

2015-TIOL-310-CESTAT -KOL

M/s Bharat Enterprises Vs CC (Dated: October 27, 2014)

Cus - Penalty - Appellants claiming benefit under DFIA scheme on the basis of exports made by them - Revenue contents that applying the norms, quantity claimed to have been exported are incorrect, hence, benefit under DFIA Scheme cannot flow from said exports - licensing authority, namely DGFT has even though initially through their letter disputed the fa ct of export of said goods, but later on scrutiny and verification closed the case against appellants, and in support they have placed letters issued by the DGFT in respective Appeals - benefit out of the said export is yet to be availed by appellants, a fact not disputed by Revenue - Appellants make out a prima facie case for waiver of penalty imposed against each of them - Stay granted: CESTAT [Para 4]

2015-TIOL-308-CESTAT -MUM

M/s Venkatesh Agencies Vs CC (Dated: December 26, 2014)

Cus – Revenue has retained the pre -deposit for more than 2 years for no reason – as no appeal was filed against order of Tribunal or stay obtained, therefore, it is clear case of harassment – Commissioner, JNCH, Mumbai to dispose claim within one month: CESTAT [para 5]

Also see analysis of the Order

2015-TIOL-307-CESTAT -MUM

CC Vs I-Tech Corporation (Dated: December 9, 2014)

Cus - Transaction value of imported goods was declared as per invoice - Said value was enhanced by re-determining the same and duty was paid on enhanced value - No speaking order has been passed when value was enhanced and assessment was finalized - provisions of Section 17(6) of Customs Act, 1962 are clearly attracted – Order of lower appellate authority directing that the order of assessment be modified and audit be conducted by the proper officer under Section 17(6) is legal and proper – Revenue Appeal rejected: CESTAT [Para 4.1, 4.2]

2015-TIOL-296-CESTAT -MUM

Eastern Peripherals Pvt Ltd Vs CC (Dated: December 30, 2014)

Cus - A declaration and a bond are entirely different and distinct and cannot be equated with one another - Bonds executed bind the appellant to fulfil the export obligations in terms of the EXIM Policy and on failure to do so, the appellant has undertaken to pay to the Government the amount of duty foregone on the plant and machinery, raw materials etc. & interest - Bond also provided that recovery of duty along with interest has to be made u/s 142 of CA, 1962 or s.11 of CEA, 1944 - To equate the bond executed with the declaration is an assault on the common sense and amounts to absurdity as that would imply that execution of bond was a mere formality and the same is not binding on the importer - Such an interpretation of law would be a mockery of the EXIM policy provisions and the provisions of the Customs Notifications - Law cannot be interpreted in such a way so as to defeat the objects and purposes of the policy and the terms and conditions of exemption – Appeals dismissed: CESTAT

Also see analysis of the Order

2015-TIOL-288-CESTAT -MUM

Armstrong World Industries (I) Pvt Ltd Vs CC (Dated: October 22, 2014)

Cus - Valuation - Appellant imported goods from related foreign entity - Revenue alleged that transaction value declared by appellant is influenced by relationship - Transfer pricing method adopted by appellant is cost plus method - Assessing authority has compared prices declared by appellant with prices of identical goods supplied to other related parties situated in other countries and found them to be comparable - Net profit obtained on sale in India is only 12.5% and therefore, price declared by appellant on the basis of deductive method is acceptable and accordingly he has come to conclusion that transaction value can be accepted - Commr(A) setting aside this order - appeal to CESTAT. Held: Once the transaction value is rejected, then value has to be determined sequentially following Rules 4 to 8 of CVR, 2007 which the appellate authority has failed to do - No rebuttal by appellate authority as to why the conclusion drawn by assessing authority is wrong - No allegation of any flow back or payment of any additional consideration by appellant to foreign supplier - In absence of any positive evidence, the argument that transaction value cannot be accepted has to be rejected - appeal allowed: CESTAT [Para 2.1, 4.1]

2015-TIOL-281-CESTAT -MUM

D M Mehta & Bros Vs CC (Dated: November 17, 2014)

Cus - Revocation of CHA licence - CHA did not verify re -warehousing certificates and Shri Bhavesh Mehta, Power of Attorney holder of appellant-CHA firm was fully aware that re -warehousing certificates were fake and bogus and entire transactions were undertaken for monetary consideration - CHA is vicariously liable for the action of its employees - Contravention of Regulation 12, 13(a), 13(b) and 13(d) clearly stands proved against the appellant - Infractions and contraventions of CHALR have taken place over a period of time in respect of 82 consignments involving a huge revenue - Said contraventions taken place with the full knowledge and connivance of appellant- CHA - gravity of offence committed is quite serious as it involved forgery and fraud to which the appellant and its officials were a party - No reason to interfere with the decision of adjudicating authority - appeal dismissed: CESTAT [Para 5.3, 5.4, 5.5, 6]

2015-TIOL-280-CESTAT -MUM

Rajiv Praful Kamdar Vs CC (Dated: December 26, 2014)

Cus - S.129A of Customs Act, 1962 - Discretionary power of Tribunal to admit an appeal or otherwise based on the quantum of duty/fine/penalty is not applicable in respect of appeals filed against order passed by Commissioner of Customs as an adjudicating authority - Appeal admitted: CESTAT [para 5, 5.1]

Also see analysis of the Order

2015-TIOL-276-CESTAT -MUM

Mihir Bhatt Vs CC (Dated: November 17, 2014)

Cus - Extension of stay beyond period of 365 days – As per LB decision in M/s Haldiram India Pvt. Ltd. - 2014-TIOL-1965-CESTAT -DEL-LB , as delay was not on account of any omission or commission on the part of appellants but due to huge pendency of appeals before the Tribunal, stay extended beyond 365 days till the disposal of appeals: CESTAT

2015-TIOL-274-CESTAT -MUM

Sheroz Malik Vs CC (Dated: March 4, 2014)

Customs – Appellants along with another person obtained IE Code in the name of various fictitious firms on the basis of forged PAN cards and documents and undertook exports in the names of fictitious firms by misdeclaring the value and description of the goods and also getting undue drawback amounts by opening accounts in the name of the exporting firms and subsequently withdrawing money through ATMs – Appellants admitting that remittance in respect of the goods exported have never been received - Appellants directed to make pre-deposit of Rs. 12.50 lakhs each : CESTAT [para 8]

2015-TIOL-273-CESTAT -MUM

Pratibha Syntex Ltd Vs CC (Dated: October 14, 2014)

Cus - Penalty - Section 114 (iii) of the Customs Act, 1962 - Export consignment was loaded on vessel which sailed on 19/03/2007 while let export order (LEO) was generated on 20/03/2007 - It is shipping agency who is supposed to perform the job of loading of export consignments to vessel - As far as shipping line is concerned they are not authorised agent of exporter - Nothing was brought on record either in SCN or in impugned order that exporter is involved in mistake of sailing of vessel carried out by shipping line - It is also fact that whatsoever mistake has occurred there is no gain flowing to exporter - It is only a procedural lapse which even does not involve any Revenue - penalty on exporter is not warranted - appeal allowed: CESTAT [Para 2, 5.1, 6]

2015-TIOL-265-CESTAT -MUM

Thyssenkrupp Industries India Pvt Ltd Vs CC (Dated: November 19, 2014)

Cus - Appellant imported "Forged Pinion" and classified the goods under CTH 8483 1010 - On enquiry, appellant submitted that correct classification is 8483 1099 & paid the differential duty amounting to Rs. 5,76,193/- and interest of Rs. 8525/- on 26.07.2007 - This heading is for 'Transmission Shafts and Cranks' under 'other' category - Transmission Shaft (Forged Pinion) has a place under specific tariff entry under Chapter heading 8483 and Forged Pinion is covered under the entry 'others', therefore, it will fall under CTH 8483 10 99 - Therefore goods in question though is part of sugar machinery but since there is an independent entry for Cranks and Transmission Shaft provided in schedule to Customs tariff, it will merit classification under CTH of Transmission Shaft as others i.e. 8483 1099 as against classification proposed under CTH 8483 9010 by Commissioner - Where goods is not available for confiscation, redemption fine could not be imposed - As issue is related to interpretation of classification of goods, penalty not imposable - Malafide intention to evade duty is not established, therefore appellant is not liable for penalty u/s 114(A) of Customs Act, 1962: CESTAT [Para 5, 5.1, 5.2, 5.3, 6]

2015-TIOL-263-CESTAT -MUM

BMM Ispat Ltd Vs CC & CE (Dated: December 1, 2014)

Cus – Appellant imported coal and classified it under CTH 2701 1920 as "Steam Coal" while Revenue classified it as "Bituminous Coal" under CTH 2701 1200 - As per note 2 to Chapter 27, coal having a volatile matter exceeding 14% (on dry, mineral-matter- free basis) and calorific value equal to or greater than 5833 Kcal/Kg (on moist, mineral-matter-free basis) would qualify as "bituminous coal" - Coal imported by appellant, prima facie , merits classification under CTH 2701.12 as "bituminous coal" - Inasmuch as assessments are provisional, question of time bar would not arise - Demand of duty confirmed in impugned order prima facie appears to be sustainable - Appellant is directed to make a pre-deposit of Rs.8.5 crore: CESTAT [Para 2, 4.1]

2015-TIOL-261-CESTAT -MUM

CCE Vs Armstrong World Industries (I) Pvt Ltd (Dated: December 22, 2014)

Cus – Commissioner(A) has gravely erred in giving a finding which is against the facts appearing on record inasmuch as he himself had directed Revenue to file separate appeals against four orders-in-original instead of a consolidated appeal and, therefore,

rejecting the same on the ground that an appeal cannot be filed against an o-in-a before the Commissioner(A) as he has no power of review or modification and cannot re-entertain appeal is factually incorrect – filing of a consolidated appeal against four Orders-in-Original instead of separate appeals is only a technical requirement – monetary limit for filing appeal will apply only in case the order was passed on merit - matter remanded: CESTAT [para 5, 5.1]

Also see analysis of the Order

2015-TIOL-255-CESTAT -MUM

CC Vs Shri M S Vengurlekar Respondents (Dated: January 6, 2014)

Cus - Burden of proof always lies upon person who has to prove a fact and it never shifts, but onus of proof shifts - Revenue has failed to adduce evidence to show conclusively that there have been any clandestine removal of goods, except minor clerical errors in a few documents - the concrete and cogent evidence is essential without which allegation cannot sustain and is bound to fail - the detailed findings of fact recorded by the adjudicating authority, the same being just and proper, require no interference - impugned order upheld - grounds of appeal are general in nature and no perversity in findings of fact has been pointed out or raised - Revenue appeals dismissed: CESTAT [Para 4, 5]

2015-TIOL-248-CESTAT -MUM

KF Bioplants Pvt Ltd Vs CC (Dated: October 9, 2014)

Cus - Whether royalty paid by appellant to related foreign supplier for reproduction of plants varieties in India is liable to be included in cost of clumps imported by appellant - contradiction in stand taken by Customs as far as inclusion of royalty on goods imported - It is held that if foreign supplier is not related, royalty is not includable whereas if foreign supplier is related royalty is includable - Rule 10 (1) (c) of CVR, 2007 specifically excludes the charges for right to reproduce imported goods in country of importation as per interpretative notes given in schedule thereto - As per WCO, it would also include animal or plant species which are reproduced from imported goods – As per Syngenta India Ltd . royalty paid by appellants for reproduction of imported clumps in India cannot be added to value of the clumps - Appeal allowed: CESTAT [Para 2, 4.1, 5]

2015-TIOL-246-CESTAT -MUM

Creative Gaming Solutions Pvt Ltd Vs CC, CE & ST (Dated: November 10, 2014)

Cus - Appellant imported a second hand ship by classifying under CTH 8901 1010 as a passenger ship and claiming benefit of Notfn 21/2002-Cus - Revenue views that vessel merited classification under CTH 8903 99 90 as a vessel for pleasure or sports – As per various certificates issued by competent/concerned persons, vessel is consistently described as a "passenger ship" - Merit in contention of appellant that correct classification of vessel is CTH 8901 attracting 'nil' rate of duty - Though vessel has been modified to function as a casino, appellant has not been able to secure any licence from Govt. of Goa for running a casino - Therefore, vessel has not been able to function as a casino as on date - Contrary decisions in respect of classification of vessel - Appellant has made out a strong prima facie case for grant of stay both on merits and also on plea of financial hardship – Stay granted: CESTAT [Para 2, 5.2, 5.3, 5.5]

2015-TIOL-244-CESTAT -MUM

Rajhoo Barot Vs CC (Dated: January 9, 2015)

Cus - Not. 21/2002-Cus - Import of Road Construction Machinery - MMRDA is not a Road Construction Corporation, hence benefit of exemption not available - as appellant did not utilise the goods for a period of five years for the construction of roads by himself, there is a clear violation of the post-importation condition - nonetheless, as the goods were used for construction of roads even though by others, penalty u/s 112 would suffice as against equivalent penalty u/s 114A: CESTAT [para 6.1 to 6.5, 7]

Also see analysis of the Order

2015-TIOL-238-CESTAT -MUM

Kapil Malhotra Vs CC (Dated: September 8, 2014)

Cus – s.112(a)/(b), 114AA of Customs Act, 1962 - Penalty – goods/courier parcels have been absolutely confiscated and they are in the custody of the department and this should constitute sufficient security for the Revenue - following the ratio of the apex Court in Bhavya Apparels Pvt. Ltd - 2007-TIOL-162-SC -CUS invoking the provisions of Section 129E of the Customs Act, 1962 might not arise – pre -deposit of penalties waived & Stay granted: CESTAT [Para 5]

2015-TIOL-237-CESTAT -MUM

Industrial Chemicals Manufacturing Co Ltd Vs CC (Dated: December 11, 2014)

Cus - Appellant imported goods under value based advance licence obtained through transfer from original licence holder and claimed benefit of Notfn 203/92-Cus - It is alleged that transferor-exporter availed MODVAT credit and, therefore, appellant is not entitled for exemption of said Notfn - declaration of non-availment of MODVAT credit by exporter in shipping bill/AR4s is on record - No evidence to adduce that declaration is incorrect - It cannot be concluded that exporter has availed input stage MODVAT credit in terms of Rule 57A of CER, 1944 and there is any violation of condition (V)(a) of Notfn 203/92-Cus - transferee of the licence cannot be held responsible for compliance of the Condition V(a) of the Notification No. 203/92-Cus - Appeal allowed: CESTAT [Para 2.1, 5, 7]

2015-TIOL-230-CESTAT -MUM

Samsung India Electronics Pvt Ltd Vs CC(Dated: December 8, 2014)

Cus - Refund of SAD - First appellate authority has rejected partly the appeals of appellant only on ground that they had not put endorsement on invoices as required under clause 2(b) of Notfn 102/2007-Cus - As per the decision of LB in Chowgule & Company Pvt. Ltd - 2014-TIOL-1191-CESTAT-MUM-LB , appellant has made out a case – non endorsement is not fatal to claim refund - Impugned order set aside and appeal allowed: CESTAT [Para 4, 6]

2015-TIOL-229-CESTAT -MUM

M/s Royal Chemists Vs CC (Dated: September 29, 2014)

Cus – Classification – Appellant imported certain products which are Knee Wrap, Ankle Wrap, Max Wrap, Poly Gel Insoles, Pre -dimemory Insoles and Heel Care Cushions which are made of textile materials - Whether same would merit classification under Chapter 90 relating to 'Medical Surgical Orthopaedic appliances' as claimed by appellant or as 'textile products' as held by Revenue – Matter remanded to adjudicating authority to consider matter afresh, after obtaining expert opinion as to whether goods under importation derive their property solely from their elasticity and conditions specified in Note 6 to chapter 90 are satisfied or not: CESTAT [Para 2, 4, 5]

2015-TIOL-228-CESTAT -MAD

Arasan Syntex Ltd Vs CC (Dated: January 7, 2015)

Customs – Refund – Excess duty paid claimed as refund - denied in adjudication on grounds that clearance was not provisionally assessed and that the appellant did not adduce material evidence; agitated herein.

Held: For the categorical finding in the adjudication order and also there being nothing in the grounds of appeal to demonstrate whether there arose any refund, there is no necessity to inte rvene to the orders – State not shown to have been unjustly enriched. [Para 4, 5]

2015-TIOL-224-CESTAT -MUM

Gurpreet Singh Vs CC (Dated: October 22, 2014)

Cus – In SCN it is proposed to recover duty from only two persons in respect of a bill of entry, whereas in impugned order, duty is being demanded from several persons - It is a settled position in law that duty cannot be demanded on joint and several basis - liability of each person has to be determined separately and therefore, impugned order is clearly unsustainable in law – Matter remanded to adjudicating authority for fresh consideration for determination of facts as to who is the person responsible for payment of duty in respect of each bill of entry: CESTAT [Para 4.1, 5]

2015-TIOL-220-CESTAT -MAD

CC Vs M/s Dornier India Medical Systems Pvt Ltd (Dated: September 25, 2014)

Customs - DEPB - Exclusion of import of capital goods under DEPB with effect from 07.04.2000 - Commissioner (Appeals) allowed import under DEPB scheme post 07.04.2000 on the ground that the DEPB scrip was issued prior to the amendment made on 07.04.2000 - Revenue in appeal against the order passed by the Commissioner (Appeals).

2015-TIOL-216-CESTAT -MAD

CC Vs M/s GE Healthcare Bio Sciences Ltd (Dated: January 8, 2015)

Customs - Valuation - Discounts ranging from 25-43% allowed by Commissioner (Appeals) on transaction value, and contested by Revenue herein.

2015-TIOL-215-CESTAT -KOL

M/s K C P J International Agency Vs CC (Dated: November 27, 2014)

Customs – Illicit export – Based on intelligence, DRI established illicit export of Red Sanders logs under the guise of Jute Hessian Cloth – goods seized, statements of individuals recorded, samples drawn and confirmed by the Wild Life Crime Control Bureau to be derived from red sanders (Pterocarpus Santalinus L); included under Appendix:II of the CITES and also included under the Negative Lists of Export in the present Foreign Trade Policy (2009-14) – impugned goods were confiscated absolutely and penalties were imposed on the firm and individuals, agitated herein.

2015-TIOL-212-CESTAT -MUM

Arkema Catalyst India Pvt Ltd Vs CC (Dated: October 20, 2014)

Cus - Extension of stay beyond period of 365 days - As per LB decision in Haldiram India Pvt. Ltd. - 2014-TIOL-1965-CESTAT-DEL-LB, delay was not on account of any omission or commission on the part of appellants but due to huge pendency of appeals before the Tribunal - Accordingly, stay extended beyond 365 days till the disposal of appeals: CESTAT

2015-TIOL-211-CESTAT -MUM

Bharat Petroleum Corporation Ltd Vs CC (Dated: January 1, 2015)

Cus – Assessment on shore tank quantity or Transaction value – Board Circular 12.01.2006 is to be considered retrospective as the same is not contradictory to the earlier circular - Provisions of unjust enrichment will apply even in respect of provisional assessments – Matter remanded: CESTAT [para 4.1 to 4.6, 5]

Also see analysis of the Order

2015-TIOL-210-CESTAT -MAD

M/s Epson India Pvt Ltd Vs CC (Dated: July 14, 2014)

Customs - Classification of Inkjet printers, cartridges and software imported - Importer classified the goods under separate chapter headings and availed benefit of Notification No 12/2002 Cus - Revenue denied the exemption and held all the goods along with software are classifiable as printer under CTH 847160 as per Section 19 of the Customs Act, 1962 and Accessories (Condition) Rules 1963 - Commissioner (Appeals) partly allowed the appeal by holding the items are separately classifiable, but included the value of software in the value of printer - Both revenue and importer are in appeal before the Tribunal on respective aggrieved parts of the order.

2015-TIOL-201-CESTAT -MUM

Cipla Ltd Vs CC (Dated: November 12, 2014)

Cus - Refund towards excess paid duty - Appellant paid excess CVD @ 10% instead of effective rate of 4% in terms of unconditional exemption Notfn 4/2006-CE - There is no dispute that duty was paid in excess vis-à-vis what was required to be paid – As per Aman Medical products Ltd. - 2009-TIOL-566-HC-DEL-CUS , there is no need to challenge the assessment of Bill of Entry - Appellant is rightly entitled for refund of excess paid CVD - Impugned order set aside and appeal allowed: CESTAT [Para 2, 5.2, 5.3, 6]

Binding precedent – Although Revenue contends that judgment of Aman Medical Products Ltd. has been challenged before the Supreme Court, the fact is that the apex court has not granted a stay from operation of the order of the Delhi High Court, therefore, the said judgment of Delhi High Court is binding upon the bench: CESTAT [para 5.3]

2015-TIOL-200-CESTAT -MUM

Standard Conduits Pvt Ltd Vs CC (Dated: January 2, 2015)

Cus - Notfn. 102/2007-Cus - Refund of SAD - sale invoice is dated 02/11/2009 and refund filed on 14/12/2009 before payment of VAT - refund rejected by noting that at the time of filing claim VAT not paid - since VAT law allows importer to pay VAT within 21 days of close of month, claim may be said to be premature - however, as claim filed within one year from payment of SAD, rejection on technical ground is not sustainable - Appeal allowed with consequential relief: CESTAT [para 4.1]

Also see analysis of the Order

2015-TIOL-191-CESTAT -MUM

Multi Screen Media Pvt Ltd Vs CC (Dated: November 25, 2014)

Cus – Valuation – rule 10(1)(c) of CVR, 2007 - Inclusion of distribution fees in AV of imported Digi beta tapes/video tapes – payment to Singapore entity was made for the rights to distribute a service and has nothing to do with the goods imported by the appellant from the foreign entity - appellant is registered under the taxable category of "Broadcasting Services" and the distribution fees collected has been declared to the department for the purposes of payment of service tax thereon which also makes the position clear that the distribution fees pertained to services rendered in India, part of which was remitted to the foreign television channel - adjudicating authority mis- directed himself in including the value of a taxable service rendered in India in the value of the goods imported - requirement of the tapes was for the limited purpose of obtaining certification from CBFC and technical quality checks and has nothing to do with the distribution activity - whatever angle one may look at the transaction, there is nothing on record to show that the remittance made to the foreign entity had anything to do with the goods supplied – order confirming customs duty demand of Rs.4.83 crores set aside and appeal allowed: CESTAT [para 5.1, 5.2]

Also see analysis of the Order

2015-TIOL-177-CESTAT -MUM

Reliance Communications Vs CC (Dated: January 1, 2015)

Cus - Optical Fibre Cables merit classification under CTH 9001 and not under CTH 8544 – benefit of notfn. 24/2005-Cus not available – importer loses on classification issue but wins on ground of time bar: CESTAT

Also see analysis of the Order

2015-TIOL-176-CESTAT -MUM

Creative Gaming Solutions Pvt Ltd Vs CC,CE & ST (Dated: November 19, 2014)

Cus - Appellant imported a second hand ship by classifying under CTH 8901 1010 as a passenger ship and claiming benefit of Notfn 21/2002-Cus - Revenue views that vessel merited classification under CTH 8903 99 90 as a vessel for pleasure or sports - As per various certificates issued by competent/concerned persons, vessel is consistently described as a "passenger ship" - Merit in contention of appellant that correct classification of vessel is CTH 8901 attracting 'nil' rate of duty - Though vessel has been modified to function as a casino, appellant has not been able to secure any licence from Govt. of Goa for running a casino - Therefore, vessel has not been able to function as a casino as on date - Contrary decisions in respect of classification of vessel - Appellant has made out a strong prima facie case for grant of stay both on merits and also on plea of financial hardship - Stay granted: CESTAT [Para 2, 5.2, 5.3, 5.5]

2015-TIOL-170-CESTAT -MUM

Abbott Health Care Pvt Ltd Vs CC (Dated: December 4, 2014)

Cus - 'Pediasure' & 'Ensure' are instant food mixes meant for different age groups - Notification 02/2011-CE does not stipulate that it should be for consumption by all people or by all age groups - exemption available - appeals allowed: CESTAT [para 5.1, 6]

Also see analysis of the Order

2015-TIOL-168-CESTAT -MUM

Air India Ltd Vs CC (Dated: December 17, 2014)

Cus – Conversion of Free Shipping Bills to Drawback Shipping bills – whether Single Member Bench can hear the matter – Issue referred to Larger Bench: CESTAT [para 5, 5.2, 6]

Also see analysis of the Order

2015-TIOL-163-CESTAT -MUM

M/s Standard Galva Steel Pvt Ltd Vs CC (Dated: November 24, 2014)

Cus – Appellant filed refund claim in respect of 4% SAD amounting to Rs.36,85,608/-

which was sanctioned by adjudicating authority – however, refund claim of Rs.14,06,203/- was ignored - Commissioner (A) rejected the appeal of appellant on an altogether different ground that amount of Rs. 14,06,203.88 was not paid in cash but deposited through DEPB script – appeal to CESTAT Held: Appellant entitled for refund of left over amount of Rs. 14,06,203.88 but same can be decided only after rectification of mistake in refund which can be done u/s 154 of Customs Act, 1962 - Matter limited to refund of amount of Rs.14,06,203.88 is remanded to adjudicating authority with liberty to appellant to make an application u/s 154: CESTAT [Para 5, 5.1]

2015-TIOL-158-CESTAT -MUM

Can-Pack (India) Pvt Ltd Vs CC ( Dated: October 31, 2014)

Cus - Valuation - Related persons - Revenue stand contradictory - With respect to running royalty, the Revenue has no grievance and admits that the same is not connected with the purchases of raw-materials imported, whereas the lumpsum payment is sought to be added to the assessable value of the raw materials - agreement for the purchase of raw materials also does not impose any condition with regard to the source of procurement of raw materials - in the contract entered into with the related foreign suppliers, it is clearly stipulated that the appellant has the freedom to procure the raw-materials from any persons, so long as the quality/standard is maintained - In these circumstances, it cannot be said that the relationship has influenced the supply price of the raw materials - Order set aside and appeal allowed: CESTAT [para 4.1, 4.2, 4.3]

Also see analysis of the Order

2015-TIOL-155-CESTAT -MUM

Dev International Vs CC (Dated: November 11, 2014)

Cus - Notfn. 102/2007-Cus - Refund of SAD - Goods imported in July 2008 and SAD paid - thereafter, goods were detained by CIU for investigation - it was only after the High Court ordered provisional release in March 2010 that the goods were sold and the refund claim was filed - claim filed in September, 2010 within time: CESTAT [para 5, 6, 7, 8]

Also see analysis of the Order

2015-TIOL-152-CESTAT -AHM

M/s Link Enterprises Vs CC (Dated: December 5, 2014)

Customs - Penalty under Section 117 - Whether penalties are imposable upon the appellant for not seeking extension of warehousing period of one year under Section 61(1) of the Customs Act, 1962.

2015-TIOL-146-CESTAT -MUM

CCE Vs Buying Overseas (Dated: November 27, 2014)

Cus - Valuation - assessing officer has adopted transaction value in transactions where quantum of import is of the order of 1 MT or below, whereas, consignment imported was of 5 MT which was part of an order for 100 MT and imports were done directly from manufacturer - No evidence led by Revenue to show that discounts of 37.5% which is noticed, is not reasonable or is not in accordance with normal trade practice - no merits in appeal filed by Revenue so dismissed: CESTAT [Para 5.1]

2015-TIOL-145-CESTAT -MUM

Bhushan Port World Vs CC (Dated: October 16, 2014)

Cus - Suspension of CHA licence continued for more than one year - Neither enquiry proceedings have been completed nor relied upon documents in support of charges against CHA have been given to appellant - A period of 9 months has been prescribed for completing enquiry proceedings and passing of an order under provisions of law - CBEC vide Circular 9/2010 has reiterated that these time-limits should be adhered to - Inasmuch as 15 months has passed since passing of suspension order and Customs authorities have not bothered to complete enquiry within stipulated period of 9 months, suspension need not be continued and CHA should be allowed to function - appeal allowed: CESTAT [Para 3, 5.1]

2015-TIOL-143-CESTAT -MAD

M/s Anisha Impex Vs CC (Dated: August 13, 2014)

Customs - Demand - BE filed for goods declared as ‘Fabric Waste (Cut Waste)', viewed by Revenue as "cut pieces/remnant" , ineligible for benefit of Board Circular No.20/2011-Cus - Value enhanced under Rule 5 of the Customs Valuation Rules; Confiscation under Section 111(b) and 111 (m) of the Customs Act, 1962 with RF option, duty demand with interest and penalty adjudged; and agitated herein.

2015-TIOL-140-CESTAT -MAD

Chaman Lal Bhambri Vs CC (Dated: August 11, 2014)

Customs - Remand powers of Commissioner (Appeals) - Firm filed BE for import of Second-Hand Off-set Printing Machine, value was enhanced in adjudication, duty demand with interest and penalties on firm and individuals confirmed - Commissioner (Appeals) set aside demands on the firm and penalty on one individual, remanded it to original authority for de novo adjudication, and upheld penalty on second individual - OIA agitated by Revenue on the ground that the Commissioner (Appeals) did not have remand powers; and the second individual agitated the penalty herein.

Held: Apex Court, Hig h Courts and Tribunal, by various decisions held that the Appellate Authority has powers to pass such order as it may deem fit and proper confirming, modifying or annulling the decision appealed against; and that such power would extend assessment, waiving or remission against the order under appeal - no reason to interfere with the order of the Commissioner (Appeals) - appeals filed by Revenue dismissed - appeal filed by Chaman Lal Bhambri is allowed by way of remand to the Adjudicating authority, who is directed to decide matters as early as possible following the direction of Commissioner (Appeals) in the case of M/s. Man Bhavan Arts and Shri Rajindar Jain. [Para 4, 5, 6]

2015-TIOL-135-CESTAT -MUM

Gujarat Ambuja Exports Ltd Vs CC (Dated: November 7, 2014)

Cus - Redemption fine and penalty - Goods imported by appellant were confiscated for the reason of non compliance with provisions of Prevention of Food Adulteration Act, 1954 - When goods are ordered to be re -exported, question of sale of goods and making a profit would not arise, therefore, redemption fine of Rs.7.5 lakhs imposed is on higher side - considering demurrage and other charges incurred by appellant, fine is reduced to Rs.3.75 lakhs - no mens rea required to be established for imposition of penalty u/s 112(a) - penalty imposed cannot be said to be harsh or unreasonable - penalty upheld: CESTAT [Para 1, 4.1]

2015-TIOL-133-CESTAT -KOL

Shri Vinod Agarwal Vs CC (Dated: August 5, 2014)

Customs - Mensrea is not required as a condition precedent for levying personal penalty under Section 112 (a) of the Customs Act, 1962 - cross examination cannot be claimed as a matter of right in departmental proceedings and each case has to be examined on its own merit -adjudicating authority held that cross examination of the departmental officers as demanded by the Appellant was not justified since the noticee has not given any adequate grounds which could prove his innocence- in the circumstances of the case non-allowing the cross examination of the person as requested by the Appellant is not violative of principle of natural justice: CESTAT [para 13, 14]

2015-TIOL-124-CESTAT -MUM

CC Vs Vidhi Dyestuff Manufacturing Ltd (Dated: October 24, 2014)

Cus - Respondent imported goods under Bill of Entry 8799176 - In said BOE, importer had correctly declared country of origin as Turkey and port of export as Iran - They did not discharge anti-dumping duty liability - Customs authorities also validated the transaction without noticing mistake committed by importer, therefore, it cannot be said that respondent alone was negligent and not the department - No goods have been seized or confisca ted - law does not provide for imposition of fine on a consignment which has already been cleared and not available for confiscation - Appellate authority was right in dropping demand of fine - Respondent has not misdeclared any material particulars, there fore, provisions of Section 111 (m) are not attracted - lower appellate authority is absolutely correct in setting aside imposition of fine and penalty - Revenue's appeal rejected: CESTAT [Para 5.2, 5.3]

2015-TIOL-123-CESTAT -DEL

Shri Chander Sharma Vs CC (Dated: August 06, 2014)

Cus - Penalty - goods were found to be misdeclared in its description when the un- mutilated goods were found as against declared mutilated goods in the shipping documents and other connected documents - Once the goods were misdeclared that becomes smuggled goods under section 2(39) of the Customs Act 1962 - Record does not reveal bonafide of the consignor as well as the consignee who had hand in glove for misdeclaring description of the goods - The appellant was admittedly to be beneficiary of the goods imported fraudulently - The goods were proved to be

smuggled goods and became property of the state - Re-export of the above import was not sought by the appellant - apex court decision in Union of India vs. Sampat Raj Dugar 2002-TIOL-141-SC-CUS-LB relied upon is distinguishable - penalty reduced to Rs.2 lakhs - Appeal partly allowed: CESTAT [para 5, 6]

2015-TIOL-122-CESTAT -MUM

Cosco (I) Pvt Ltd Vs CC (Dated: October 13, 2014)

Cus - Import of 'Heavy Melting Scrap' - Importer did not come forward to take delivery of said consignment - some live shells, spent cartridges and spent hand grenades were detected in consignment and presence of prohibited material such as Nitrite radical, Tri nitrotoluene, Tetryl and RDX was also found - Appellant, a shipping agent submitted inspection report issued by M/s. Moody International Certification (Tehran) wh ich is not a specified agency in Handbook of Procedure while they have to get inspection report by M/s Moody International Certification (India), which is specified agency as provided under Handbook of Procedure, 2009 - Submission of appellant that merely because of similar name of pre -inspection agency, mistake has occurred on their part cannot be accepted - As per Circular 56/2004 shipping line is duty bound to ensure that every consignment of metal scrap in shredded, compressed to loose form is accompanied by such a pre -shipment inspection certificate before it is loaded on ship and failure of such compliance, penal action was proposed - mens rea is not required in failure of such compliance - penalties were correctly and legally imposed upon both appella nts - Appeals dismissed: CESTAT [Para 5, 6]

2015-TIOL-114-CESTAT -MUM

Positive Packaging Industries Ltd Vs CC (Dated: November 13, 2014)

Cus - Refund - Limitation - Appellant filed refund claim on 10/6/2009 towards excess paid CVD - Claim of appellant was rejected only on the ground of limitation, as there is delay of one day as per the findings of lower authority - Admittedly duty was paid on 10/12/2008 and refund was filed on 10/6/2009 - As per Section 9 of General Clauses Act, 1897 and Section 12 of Limitation Act, 1963 while computing the period of limitation, first day from which such period to be reckoned shall be excluded - It is crystal clear that date of deposit i.e. 10/12/2008 shall be excluded and six months shall be reckoned from 11/12/2008 - Therefore claim filed on last day of completing six months period i.e. 10/6/2009 is not time barred - order set aside and appeal allowed - Original authority shall grant refund to appellant subject to the satisfaction as regards provision of 'unjust enrichment': CESTAT [Para 5, 6]

2015-TIOL-113-CESTAT -MUM

Western Telecom Projects Vs CC (Dated: October 27, 2014)

Cus - Restoration of appeal - Tribunal dismissing appeal for want of CoD clearance - Supreme Court in ECIL - 2011-TIOL-18-SC-CX-CB held that there is no requirement for making application to Committee on Disputes - however, appellant, fairly agrees that in the year 2004 when they filed the appeal, they did not make any application to CoD seeking permission to file appeal before the appellate Tribunal - in this view of

the matter, Bench is unable to permit the appellant to pursue appellate remedy before Tribunal - Application dismissed: CESTAT [Para 4, 5]

2015-TIOL-112-CESTAT -MUM

The West Coast Paper Mills Ltd Vs CC, CE & ST (Dated: November 24, 2014)

Cus - Appellant imported coal from Indonesia and claimed classification as "Steam Coal" - Revenue submits that coal imported satisfies definition of "bituminous coal" - As per note No. 2 to Chapter 27 gross calorific value (ADB) has to be computed on moist, mineral matter free basis - ASTM standards prescribe formula for conversion (ADB) on air dry basis to moist, mineral matter free basis - If formula applies, (ADB) would exceed 5833 Kcal/Kg and goods appear to merit classification as bituminous coal - As per notfn 46/2011-Cus, appellant would be entitled for a concessional rate of duty on bituminous coal - while confirming duty demand, adjudicating authority should have extended benefit of said Notfn - Since there is an error in computation of duty matter remanded to adjudicating authority: CESTAT [Para 1, 4.1]

2015-TIOL-110-CESTAT -MUM

Vinod Tomar Vs CC (Dated: April 1, 2014)

Cus - Penalty imposed on appellant CHA - Case against Nitco Tiles, the main party, has been settled before the Settlement Commission - relying on the decision of S.K.Colombowala, when the case against the main noticee has been settled by the Settlement Commission, in that case penalty against the other co-noticees have also got settled - Penalty set aside and appeal allowed: CESTAT [Para 4, 5]

2015-TIOL-102-CESTAT -MUM

Supreme Enterprises Vs CC (Dated: September 30, 2014)

Cus - Appellant classified Inca Inchi Oil as "Extra Virgin Vegetable Oil" meriting classification under CETH 15159091 while Appellate authority has upheld classification under CTH 3004 as P & P medicines - Aggrieved, hence appeal. Held - Revenue has not even got the product tested by Drugs Control authorities to come to the conclusion that product has therapeutic or prophylactic properties or have been prepared or made so as to have these properties - Product description on packaging itself clearly indicates that product does not have any medicinal use and is not intended to diagnose, treat, cure or prevent any disease - The product has natural ingredients such as, vitamins "A" & "D" and omega 3, 6 & 9 which has antioxidant properties - Merely because a product possess certain natural properties, it cannot be said to fall under classification of medicaments - product merits classification under CTH 151590 - order set aside and appeal allowed: CESTAT [Para 4.1, 4.2]

2015-TIOL-91-CESTAT-MUM

M/s Air India Ltd Vs CC (Dated: October 31, 2014)

Cus - Refund - Duty and interest thereon has been paid in pursuance to ‘Less Charge Demand Notice' - Amount so deposited is not a deposit but custom duty and interest thereon - Refund of said duty is governed by Section 27 of Customs Act, 1962 - provision of unjust enrichment is undoubtedly applicable on refund – Depreciation is reduced from total amount of refund - depreciated amount is booked as expenditure in profit and loss account and same is deemed to be passed on to any other person, therefore undepreciated amount lying in books of account is admissible for refund as incidence of which has not been passed on to any other person - appellant is entitled for refund of undepreciated amount of duty and interest - appellant is directed to produce documentary evidence with regard to depreciated amount of duty and interest, as at the time of release of refund - appeal is partly allowed: CESTAT [Para 5, 6]

2015-TIOL-90-CESTAT-MAD

M/s Ajanta Soya Ltd Vs CC (Dated: September 3, 2014)

Customs – Stay / dispensation of pre deposit – Exemption - goods declared as "Bakery Shortening", classified under Customs Tariff Heading 15179010, and benefit of CVD under Notification No. 4/2005-CE (S.No.2) as well as Notification No.6/2002- CE (S.No.246) claimed – Revenue viewed exemption under 4/2005-CE inadmissible since it applied only to sub-heading 1508-90, adjudicated demands, agitated herein.

2015-TIOL-88-CESTAT-MUM

M/s Imran Trading Establishment Vs CC (Dated: September 4, 2014)

Cus - Appellant imported Garlic in year 1999 - department alleged that Garlic were not Dried Garlic and, therefore, is subject to import restriction as per Circular issued by DGFT on 17.9.1999 - Oppressive Circulars to be prospective in operation - For I mports made prior to issue of DGFT Circular dated 17.9.1999, restriction cannot be made applicable in view of apex court decision in Suchitra Components Ltd. - 2007- TIOL-09-SC -CX - confiscation and penalties set aside and appeal allowed: CESTAT [Para 2, 5]

2015-TIOL-76-CESTAT-MUM

Armity S Patel Vs CC (Dated: September 18, 2014)

Cus - Valuation - Appellant imported a second hand car claiming year of manufacture as 2001 under Transfer of Residence Rules, while on the basis of chassis and engine number, year of manufacture is revealed as May 2003 - appellant contends that they

declared particulars based on invoice given by dealer and there was no attempt to mis-declare with an intention to evade payment of duty – appellant had violated the provisions of Transfer of Residence Rules by returning to Dubai before completing the required period of stay in India - As regards 15% trade discount, cars are sold through dealers who get the discount and not the retail purchaser, therefore, determination of value adopting list price and after giving depreciation for two quarters cannot be said to be incorrect - since goods seized and confiscated under Sec 111 (m) and 111 (o), liability to differential duty would automatically arise so the same is upheld - differential duty demand of Rs.20,81,411/- upheld: CESTAT [Para 2.1, 5.1, 5.2, 5.3, 6]

Cus - Redemption fine – appellant had not intended to sell the car and is still in custody of the appellant, therefore fine is reduced to Rs. 5 lakhs from Rs. 10 lakhs: CESTAT [Para 5.4, 6]

Cus – Interest and Penalty - In the present case the duty demand has been confirmed under Section 125 - interest demanded under Section 28AB; the said Section will come into picture only when the duty demand is confirmed under Section 28 of Customs Act, therefore, provisions of Section 28AB has no role to play – Similarly, penalty imposed under Section 114A; said Section applies only when duty demand is confirmed under Section 28A (1), therefore, question of invoking Section 114A for imposition of penalty is clearly unsusta inable in law so set aside: CESTAT [Para 5.5 ,6]

2015-TIOL-75-CESTAT-MUM

Shri Gajanan B Sudrik Vs CC (EP) (Dated: January 16, 2014)

Cus - Penalty - mis -declaration of goods - From the statements of appellant no conclusion can be reached as to their involvement in the fraudulent transactions - All appellants have deposed that they undertook/ participated in transaction for export of goods in good faith - CHA has also submitted the identification document such as bank opening account establishing the identity of the exporter - invoking the provisions of Section 147 and deeming the CHA and his employee as agent of the exporter is clearly unsusta inable in law - In the absence of any evidence, linking the CHA firm or its employee to the fraudulent transaction undertaken by the exporter, and consequent imposition of penalty would not arise at all – penalty set aside under Section 114 of the Customs Act, 1962 - appeals allowed: CESTAT [Para 5,6]

2015-TIOL-67-CESTAT-KOL

M/s Aasu Exim Pvt Ltd Vs CC (Dated: September 5, 2014)

Customs - Stay / Dispensation of pre deposit - Demand - Appellant imported 13 consignments of synthetic Flock Fabric and PVC Coated Cloth, part of which was cleared properly, and part of which cleared fraudulently by authorized individual of CHA, resulting on short payment of customs duty - Matter brought to the notice of Customs authorities; DRI launched an investigation; demands adjudged and agitated herein.

2015-TIOL-66-CESTAT-MUM

Fujifilm India Pvt Ltd Vs CC (Dated: October 29, 2014)

Cus - All photographic plates and film in the flat, sensitized, unexposed, of any material fall under CTH 3701 and benefit of exemption under Notification No. 21/2002-Cum dated 01/03/2002 is available as serial no. 357B covers accessories of goods required for medical, surgical, dental or veterinary use, falling under Chapter 90 or any other chapter - IP and IP cassette, which is only a protective cover for the imaging plates would be eligible for the exemption - FCR Capsula it has already held by this Tribunal that the same falls under CTH 90229090/90221490 and will not be eligible for the exemption under the aforesaid notification – Appeal partly allowed: CESTAT [para 4.1, 5]

Interpretation of Notification - An accessory by its very nature is something which aids or improves the efficiency of the main machinery - A photographic plate of film cannot be said to be a part of a camera or an x -ray machine - A camera or an X-ray machine is complete even without a film - Therefore, a film or an imaging plate would come under the category of accessories to a machine: CESTAT [para 4.1]

2015-TIOL-64-CESTAT-AHM

Shri Anupam Krishi Vs CC (Dated: August 21, 2014)

Customs - Penalty - Appellant(s) charged with aiding/abetting diversion / illegal transportation of Muriate of Potash (MOP) imported at concessional rate of duty, in the guise of Feldspar Powder - penalties imposed under Section 114(1) and Section 114 AA of the Customs Act 1962 in adjudication and agitated herein.

2015-TIOL-57-CESTAT-MUM

M/s Handsome's India Vs CC (Dated: October 17, 2014)

Cus - DEPB - Redemption fine and penalty - Exported goods confiscated - out of 4 items, samples were drawn for testing for one item only - description of goods in test memo also refers to Unstitched suit pieces which indicates what was sent for testing was only second item because first item relates to "Unstitched suit pieces with embroidery" - test reports indicates that two samples were tested, only means that two pieces, namely top and bottom of the same suit piece were tested - adjudicating authority himself was not sure whether testing was for 2 items out of 4 items mentioned in invoice or for two pieces of same item - only second item was found to be mis -declared and DEPB amount is to be amended only for second item - redemption fine is reduced to Rs.75,000/- and personal penalty under Section 114 is reduced from Rs.50,000/- to Rs.12,500/- - Appeal allowed: CESTAT [Para 6, 7, 8]

2015-TIOL-47-CESTAT-DEL

M/s Vaibhav Overseas Vs CCE (Dated: October 9, 2014)

Customs – Export - As per Notification No.55 (RE-2008)/2004-09 dated 05.11.2008, as amended, issued by DGFT, non basmati rice, is notified as a prohibited item for export and only Basmati Rice is permitted to be exported freely, subject to the conditions/specifications contained in the said notification – Appellant firm filed shipping bills for export of goods declared as ‘basmati rice' – upon examination, it was detected that the firm had attempted to export poor quality and substandard non Basmati rice in the guise of Basmati rice in four shipping bills – seizure effected, samples drawn and tested to establish false declaration of description of goods under section 50 of the Customs Act 1962 – demands, confiscation of seizure with RF option and penalties on the firm and individual adjudged and agitated herein.

2015-TIOL-46-CESTAT-MUM

Sanjay Dattatraya Rokhale Vs CC (Dated: July 2, 2014)

Cus – Appellant has not questioned what is wrong in the valuation system adopted by the adjudicating authority in the present case - All that the appellant has been arguing that the value should be taken based upon the import price of similar vehicles by the dealers in India - No such invoice has been produced –there is no such claim by the appellant that due to some extraordinary reasons they were able to get the car at a cheaper price - valuation made by adjudicating authority upheld - As the car was used one, benefit of Notification No. 21/02-Cus dated 1.3.2002 will not be available to the said vehicle: CESTAT [para 7, 8]

2015-TIOL-45-CESTAT-MAD

M/s Muniswamy Marketing Vs CC (Dated: October 14, 2014)

Customs – misdeclaration and undervaluation - appellants imported Medium Density Fibre Boards / Plain Particle Board during the material period; subsequently DRI investigation concluded misdeclaration and undervaluation; differential duty demand with interest and penalty adjudicated, upheld by Commissioner (Appeals) and agitated herein.

2015-TIOL-38-CESTAT-MAD

CC Vs M/s Westcon India Pvt Ltd (Dated: August 5, 2014)

Customs – SAD Refund - respondents filed refund claims in respect of the goods assessed under RSP without the benefit of exemption under Notification No. 29/2010 dated 27.02.2010 - rejection of the portion of refund claim in OIO for the goods which were assessed on RSP set aside and appeals allowed with consequential relief by Commissioner (Appeals); same agitated by Revenue herein.

2015-TIOL-37-CESTAT-MUM

M/s Dempo Shipbuilding And Engineering Pvt Ltd Vs CC (Dated: October 20, 2014)

Cus - Appellant is a manufacturer of vessel under customs bond - Notfn 01/2011-CE as amended by notfn 16/2012-CE prescribed an excise duty rate of 2% adv on goods subject to condition that no CENVAT credit of duty paid on inputs or input services has been taken under CCR, 2004 - Condition stipulated in Notfn clearly shows that rates are prescribed for domestically manufactured goods and does not apply to imported goods as condition cannot be satisfied by manufacturer abroad - As goods manufactured in customs bond are treated on par with imported goods, appellants are not eligible for aforesaid exemption – Pre -deposit ordered of Rs.25 lakhs: CESTAT [Para 5]

2015-TIOL-36-CESTAT-DEL

M/s Darshan Singh And Co Vs CC (Dated: October 1, 2014)

Cus - Classification - Appellant imported goods in March, 2007 under heading 8433 9000 in Customs Tariff Act, 1975 which does not attract CVD - Another consignment of goods was imported and filed bill of entry dated 15.5.2007 - After examination it was found that wheel rim was meant for commercial vehicle and can be used in Ashok Leyland truck - Classification in said bill of entry was changed from Chapter 84 to Chapter 87 - Revenue view is that earlier Bills of Entries filed in March, 2007 were also wheel rims of commercial vehicles and not wheel of harvester combine.

2015-TIOL-33-CESTAT-MUM

Mulraj D Gala Vs CC (Dated: November 12, 2014)

Cus - CA issuing false certificate for an undisclosed consideration thereby facilitating M/s Elit to import goods under advance authorisation without any bank guarantee & which goods were diverted into local market - act of aiding and abetting M/s Elit to evade customs duty rightly attracts penalty - Appeal dismissed: CESTAT [para 5, 5.1]

Also see analysis of the Order

2015-TIOL-32-CESTAT-BANG

CG-Ziv Power Automation Solutions Ltd Vs CCE, C & ST (Dated: December 1, 2014)

Customs – Valuation – Inclusion of entire cost of technical knowhow and royalty fee in assessable value without evidence of influence of familial relationship – Nor evidence to show that said payment was a result of condition of sale of the imported goods – Prima-facie case in favour of assessee – Pre-deposit waived. (Para 2)

2015-TIOL-24-CESTAT-DEL

CCE Vs Indian Fine A rts (Dated: August 19, 2014)

Cus - Decorated female figure with two hands and legs missing cannot be permitted to leave India as the statue has historical value - Once a specialized committee has come to a conclusion, Commissioner(A)'s view is not final - Stay application by Revenue allowed - Stay granted: CESTAT [para 9]

Also see analysis of the Order

2015-TIOL-20-CESTAT-MUM

D R Plastics Vs CC (Dated: August 22, 2014)

Cus – ROM application - documents now produced were not before the Tribunal while passing the earlier order, so there is no mistake in the order passed - ROM application is dismissed: CESTAT [Para 3]

2015-TIOL-16-CESTAT-MUM

M/s Maharashtra Seamless Ltd Vs CCE (Dated: October 20, 2014)

Cus - Burning loss will not fall under clause (b) of Section 65(2) of the Customs Act, 1962 - Burning loss does not exist physically, therefore, it is neither capable of being cleared from the wa rehouse nor actually cleared – duty demands set aside: CESTAT [para 6, 6.1, 7]

Also see analysis of the Order

2015-TIOL-10-CESTAT-MUM

ABG Shipyard Ltd Vs CC (Dated: September 9, 2014)

Cus – Appellant placed orders for import of "hard copy" of drawings and designs of ships – Goods confiscated as the consignment consists of CD also - Letter from foreign

supplier was produced saying that CD was sent by mistake and they should be allowed for re -export - Inasmuch as goods are lying with department on confiscation, the inte rests of Revenue are completely secured - appellant has made out a strong case for waiver of pre deposit – Stay granted: CESTAT [Para 2, 5.1]

2015-TIOL-01-CESTAT-MAD

Master Cargo Services Vs CC (Dated: October 21, 2014)

Customs - CHA - Suspension of CHA licence under Regulation 20(2) - Contention that till date neither show cause notice was issued nor enquiry officer has been appointed for conducting the enquiry under Regulation 22 of CHALR, 2004.