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Cestat Ruling (Customs) 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.
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