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2021-TIOL-1776-HC-ORISSA-CUS
Great Eastern Shipping Company Ltd Vs UoI
Cus - Trigger for the filing of the present petition is the stand of Opposite Parties 3 and 4 that since no BOE was filed with the Customs Authorities when 'Jag Arnav' entered India at Paradeep, Orissa on 30th April 2003, Petitioner No. 1 is liable to pay customs duty at the time of conversion of 'Jag Arnav' from a foreign going vessel to a coastal run vessel - The case of the Opposite Parties is that Petitioner No. 1 is eligible to avail exemption from payment of BCD subject to fulfilment of the condition that CVD will be paid at the time of conversion of the foreign going vessel into a 'coastal run' vessel - The contention is that every 'entry' of such vessel into India from outside India, even after the date of its first arrival in Indian waters, is an import - According to the Opposite Parties, the contention of Petitioner No. 1 that the first time when 'Jag Arnav' came into India is the point at which customs duty can be levied is not supported by the Act and CBEC's Circular No. 16/2012 , dated 13th June, 2012; that the contention is that after issuance of the Notification No. 12/2012-Cus dated 17th March, 2012 the vessel is deemed to be imported on the date it is converted to coastal run though the vessel was imported earlier; that since the law in force when the vessel was converted to coastal run was Notification No. 12/2012, the said notification applied.
Held: A careful reading of the Circular 16/2012-Cus dated 13th June, 2012 reveals that it does not support the contention of Opposite Parties that in the present case where the vessel 'Jag Arnav' has been imported into India way back on 30th April, 2003, the Opposite Parties can insist on collection of CVD at the time of its conversion from a foreign going vessel into a coastal run vessel - This contention also overlooks the settled legal position, which the circular, in fact makes abundantly clear, that Notification No. 12/2012 dated 17th March, 2012 was not intended to operate retrospectively - In other words, it was not intended to apply to a vessel already been imported into India long before the date of said exemption notification - Both the decisions [Great Offshore Ltd. - 2012-TIOL-260-HC-MUM-CUS & SEAMEC 2012-TIOL-495-HC-MUM-CUS ] hold that where the vessels had been imported long before the notification that was sought to be applied in those cases, and particularly at a time when there was no requirement to file a BOE, the Opposite Parties could not insist on levy of customs duty at a later stage - Court holds that in the present case since vessel 'Jag Arnav' called in Indian port for the first time at Paradeep on 30th April, 2003, and at that relevant date it was exempt from payment of customs duty it cannot be made amenable to such duty nine years later by virtue of a condition in another exemption notification of March 2012 - Court concludes that in the present case notification dated 17th March, 2012 is only prospective in its application and that in respect of the import of the three vessels i.e. 'Jag Arnav', 'Jag Ratan' and 'Jag Rani' which were imported into India first on 30th April 2003, 13th November, 2007 and 26th August, 2011 respectively, Entry 462 read with Condition No. 82 of the notification dated 17th March, 2012 will not apply - It is not necessary for this Court to strike down the said entry or condition of the notification - It is held that the Opposite Parties would not be justified in insisting on payment of CVD by Petitioner No. 1 for grant of conversion of the vessels from foreign going to coastal run since the vessels stand imported prior to the notification dated 17th March, 2012 - Sum of Rs.5,00,000/- deposited by Petitioner together with the interest accrued thereon will be released in favour of Petitioner No. 1 by the Registry within four weeks - Writ petition is allowed: High Court [para 25 to 27, 36, 40 to 42]
- Petition allowed: ORISSA HIGH COURT
2021-TIOL-1775-HC-MAD-CUS
Czarnikow Group Ltd Vs Addl. DGFT
Cus - Petitioner is a company incorporated under the laws of United Kingdom and engaged in trading in sugar - Petitioner entered into a contract with R3, i.e., Thiru Arooran Sugars Limited on 20.10.2016 for supply of 27,169.50 Metric Tonnes (MT) of standard VHP cane raw sugar - In terms of the contracts the sugar was to be stored in the warehouses of Thiru Arooran Sugars/R3 and Shri Ambika Sugars Ltd./R4 - Subsequent to import and the warehousing of the consignment in their warehouses, both R3 and R4 are before the National Company Law Tribunal (NCLT) at the instance of corporate creditors, where Corporate Insolvency Resolution Process is on-going - One of the issues was the question of who would hold title to the goods, whether the petitioner, or R3 and R4, the importers - Both R3 and R4 have executed memos, both dated 08.07.2021 to the effect that they have no objection to the release of the goods from their respective warehouses - Petitioner has filed an application before the Customs authorities (R1 and R2) on 04.02.2020 seeking permission to re-export the goods, upon their release, yet pending - It is the petitioner's case that, being the owner of the goods, it is entitled to re-export, though on payment of necessary re-export charges - Revenue counsel submits that the Advance Authorisation Licence pertaining to the sugar in question has been issued in the name of R3 and thus the conditions that attach to that licence will have to be satisfied by the petitioner in order to entitle it to re-export.
Held: In a situation where the goods imported into India by an exporter outside the Country are unavailable to him for various reasons including abandoning of the consignment by the Indian importer, or as in the present case, the importers not being in a position to take possession and claim ownership of the goods, it would place the foreign exporter in an unenviable position - Having lost possession of the goods, he would also not be in a position to enforce payment for the same, which would be detrimental to international trade - Statutory provisions and regulations cannot, be interpreted in a manner so as to deprive the exporter of his title to the goods imported - The above conclusions of the Supreme Court [ 2002-TIOL-141-SC-CUS-LB ] would apply on all fours to the present matter - On the question of confiscation of the goods, matter is required to be examined by the authorities, bearing in mind the position that, all that is sought to be done by the foreign exporter/petitioner, is re-export of the goods - Re-export, once permitted, will be upon payment of applicable charges and duties, and in accordance with law - Decision to be taken within a period of four weeks bearing in mind the position that the goods in question are perishable and stood in the warehouses, suffering the vagaries of nature and inclement weather, since 2017 - Petition disposed of: High Court [para 15, 16, 18, 19]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1772-HC-MAD-CUS
AL Qahir International Vs CC
Cus - Purchase of pepper (Black Pepper) of Sri Lankan Origin from various exporters in Sri Lanka - On the alleged ground that the goods are prohibited on the pretext that the price rate per kg is not above Rs.500/-, but it is below Rs.500/-, the goods were seized by the Customs authorities - Court had granted an ad interim relief by allowing provisional release of goods subject to conditions - Feeling aggrieved over the stringent condition imposed by the Writ Court in passing the aforesaid interim order, the petitioner preferred an intra-Court appeal and the same was disposed of [ 2021-TIOL-1421-HC-MAD-CUS ] by directing the appellant to file a proper application for grant of provisional release of the cargo along with their submissions as well as the documents which they propose to rely upon and the Commissioner of Customs, Tuticorin was directed to pass orders on the application of provisional release within a period of ten days - Such an application made was rejected through the impugned order dated 26.07.2021 by the respondent Customs Department, as against which, the present writ petition has been filed.
Held: No appeal has been filed against the order dated 22.06.2021 [ 2021-TIOL-1421-HC-MAD-CUS ] by both parties - It is a fact that if rate of consignment per kg is above Rs.500/-, certainly, it is not a prohibited goods - Whether it is above Rs.500/- or less than Rs.500/-, is the matter for adjudication, as the same cannot be decided either by customs Department or by this Court at this juncture, without having a full-fledged adjudication, for which necessary procedure is to be adopted and followed - If ultimately, the Customs Department is not able to establish their stand by proven documents to show that the goods in question have been imported with the price lesser than Rs.500, certainly the Customs Department will have no other option, except to release the goods, as if it is more than Rs.500 per kg, hence it is a permitted goods and not a prohibited goods, even according to the notification dated 25.07.2018 - In that eventuality or in the meanwhile, certainly, the goods in question would get wasted, because, it is no doubt a perishable or edible goods, that is, Black Pepper and its shelf life itself is for a limited period, within which if it is not marketed or put in use, absolutely, the entire value of the goods will go down or it may not be fit for human consumption at one point of time - Court feels that, since the right of the petitioner to get provisional release of the goods concerned is not taken away and, in fact, this has been reiterated in a similar circumstances by the Supreme Court in an interim order, that kind of right cannot be completely curtailed by any authority - Therefore, once such application is made by the importer for releasing the goods by way of provisional release on the ground that the goods are perishable or edible goods, certainly, it should be taken into account and considered and accordingly, the provisional release shall be made by the Customs Department with the conditions to be imposed in this regard - Earlier order passed in similar circumstances in M/s. Global Metro case 2021-TIOL-1517-HC-MAD-CUS , can very well be followed in the present case also - Impugned order dated 26.07.2021 is set aside - Respondent is directed to pass orders for releasing the goods in question by way of provisional release by imposing conditions - Petition disposed of: High Court [para 22, 25, 28, 37, 38]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-540-CESTAT-CHD
Karsh Enterprises Vs CCE & ST
CX - The appellant is a manufacture of cigarettes - During investigation, excess tobacco of 210 kg alongwith other material for manufacturers 'Hitler Black' Brand Cigarettes were found at the premises of appellant and production was going on - Further, 4,08,000 cigarettes packets of Hitler Brand of 69mm and unaccounted cash was found at the premises of M/s Shardha Traders, proprietor of Shri Ajay Adwani - These facts were never disputed by appellants - Moreover, they have made a inculpatory statements - On the basis of that the statements they have been implicated in the matter by alleging the appellants are involved in clandestine removal manufacture and removal of goods - At no point of time, the appellants have retracted their statements - As the statements have not been retracted and the excess stock during the course of investigation is the corroborative evidence to allege clandestine removal of goods - Further, the Apex Court in case of Systems & Components Pvt. Ltd. 2004-TIOL-137-SC-CX has held that what is admitted need not to be proved - Appellant has admitted that the excess stock found during investigation has been procured through illicit manner, in that circumstances, revenue need not to prove that the raw material and finished goods recovered during the course of investigation were procured through licit manner - As the appellants have been failed to brought on record any documents in their favour, therefore, the impugned order is upheld: CESTAT
- Appeals dismissed: CHANDIGARH CESTAT
2021-TIOL-539-CESTAT-CHD
Nasir Mohd Rawat Contractor Vs CCE & ST
ST - The appellant is a service provider for various services under category of 'Manpower Recruitment Supply Agency' and 'Work Contract Services' - During investigation, an amount was deposited but thereafter neither the said amount was appropriated nor any SCN was issued to the appellant. - Thereafter, appellant filed a refund claim which was rejected by adjudicating authority holding that the appellant was liable to pay service tax and they have rightly paid service tax - On appeal, Commissioner (A) has held that the amount has already been appropriated under section 73 (3) of the Act, therefore, refund claim is not maintainable - Admittedly, no SCN was issued to the appellant for appropriation of amount nor for rejection of the refund claim - Therefore, the order of rejection of refund claim is bad in law and against the provisions of Finance Act as well as Central Excise Act, 1944 - The amount paid during investigation is only an amount of deposit, same cannot be formed part of service tax - Therefore, rejection of refund claim by the respondent is without authority of law and the same is refundable to the appellant - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2021-TIOL-538-CESTAT-BANG
N A Jayaram Vs CC
Cus - Penalty - The only issue involved is, whether imposition of penalty under Section 114(i) of Customs Act, 1962 on the ground of abetment of falsely signed invoices used for improper exportation is justified under law - Though the appellant has submitted that he has a good case on merit and that Department has not been able to establish abetment of appellant in illegal export but he, during the course of argument, has relied upon the judgment of Apex Court in case of Sayed Ali 2011-TIOL-20-SC-CUS to buttress his argument that the SCN issued by DRI is without jurisdiction because DRI Officers are not proper officers during the period of dispute and therefore, the SCN itself is bad in law - Further, imposition of penalty for abetment is also hit by principle of res judicata as the appellant has been issued with SCN dated 13.01.2011 for the same offence by Mysore Customs Commissionerate and the same was finally decided by Tribunal by reducing penalty to Rs.2,50,000/- each under Section 114(i) and Section 114AA of the Customs Act, 1962 - Since on these two legal grounds, SCN issued to appellant as well as imposition of penalty on him is not sustainable in law, therefore penalty is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
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