2021-TIOL-2270-HC-MAD-CUS
Unik Traders Vs Addl. CC
Cus - Petition is filed for the issuance of a Writ of Mandamus to direct the 2nd respondent to release the Areca nuts imported from Myanmar – Petitioner informs that Officers from the Directorate of Revenue Intelligence from Nagpur, namely, the third and fourth respondents have intervened and have stalled the further assessment and clearance of the imported consignments covered by the three Bills of Entries - Petitioner submits that imported items fall under Sub Heading 2106 9030 of the Customs Tariff Act, 1975 and it is a matter of adjudication by the Jurisdictional Assessing Officer whether the imported consignment merit classification under any other Heading and Sub heading under Customs Tariff Act, 1975 - It is further submitted that if there is a doubt, the imported goods has to be assessed provisionally under Section 18 of the Customs Act, 1962 and released; that they are incurring Demurrage and Container Detention Charges; that the intrusion by the third and the fourth respondents from Maharashtra for consignment imported through Chennai Port is both surprising and un-warranted as the third and fourth respondents have their counterparts in Chennai to investigate and in any event the "Proper Officers" for the purpose assessment of the Bills of Entries are seized of the matter.
Held:
+ Issue in the present case is whether the imported consignments of Areca nuts is to be classified under Chapter 0802 or under Sub Heading 2106 of the Customs Tariff Act, 1975 and whether for the purpose of assessment the third and the fourth respondents are "proper officers" as defined Section 2(34) of the Customs Act, 1962. [para 57]
+ It should be emphasized that it is no part of the duty or function of the third and fourth respondents and their counterparts in Chennai to stall an assessment proceeding by a "proper officer" designated under the Customs Act and the Notification No. 40/2012- Cus (NT) dated 2.5.2012.[para 76]
+ There has to be a proper determination as to whether there is prohibition of the imported goods. This exercise can be carried only by a "Proper Officer" and cannot be usurped by the third or fourth respondents or their counter parts in Chennai. [para 78]
+ Merely because the officers of the third and the fourth respondents have powers to investigate by itself means will not mean that they can insist on a "hands off approach" by a competent officer who have been given the powers to assess Bill of Entry filed by an importer.
+ Even if the jurisdictional officer of the DRI from Chennai i.e., the counter parts of the third and the fourth respondents felt that the import was without proper licence and that there was an attempt to import prohibited goods, it is their duty to merely inform the assessing officers to make proper assessment to safeguard the interest of the Revenue. [para 80]
+ Exercise carried out hitherto, by the third and the fourth respondents at the stage of assessment of the Customs Duty is partly necessary, partly unnecessary and partly without the jurisdiction. It was their duty only to tip off the instructions to the jurisdictional "proper officer" who have to assess the Bills of Entry filed by the petitioner. [para 81]
+ If the Proper Officer is of the view that the goods fall under Heading 0802 of the Customs Tariff Act, 1975 and there is a misdeclaration by the petitioner by disguising the classification in the respective Bills of Entries under Heading 2106 of the Customs Tariff Act, 1975, a quick decision should be taken and proceeded in accordance with law. [para 83]
+ As far as the third and the fourth respondents are concerned, they have no jurisdiction to impede in the imports. [para 86]
+ The initial exercise regarding the determination of classification may be completed within 15 days. In case, the "proper officer" is of the prima facie view that the goods are liable for confiscation, seizure order may be issued followed by confiscating the imported goods if they are found to be prohibited in terms of the Notification of the Commerce Ministry. If not, the imported goods can be allowed to be redeemed. The petitioner may be given an option to re-export the imported goods if they are held to be prohibited goods to mitigate the loss of the petitioner. [para 92]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-2269-HC-MAD-CUS
Rama Thenna Thayalan Vs CESTAT
Cus - Smuggling of Red Sanders - Two appeals are filed against the common order dated 24.01.2014, viz., one dismissing the appeal against the imposition of penalty of Rs.3,00,000/- and another against the order of the CESTAT allowing the appeal of the Department for enhancement of penalty from Rs.3,00,000/- to Rs.5,00,000/- - Appellant submits that as a Customs House Agent, they have nothing to do with the goods and are only concerned with the documentation of the export; that while the shipping bill was duly signed by the Exporter and certified by the Superintendent of Central Excise, for the contents of the container, the Customs House Agent cannot be found guilty and the penalty imposed on him is arbitrary.
Held: From the records and the own admission of the appellant, it is clear that the appellant had not discharged the obligations, which cast on him under the CHALR - It is a case where under the guise of Coco Peats, prohibited goods namely, Red Sanders weighing 10.760 MT has been transported - Customs House Agent is governed by the Regulations framed by the Government in exercise of the powers conferred under the Customs Act, 1962, therefore, misdeclaration of goods and attempt to export such goods is punishable under Section 114 of the Customs Act - A Customs House Agent, who is a party to the mis-declaration, is liable to pay penalty not exceeding three times of the value of the goods mis-declared - The Tribunal is empowered to enhance the penalty imposed - Further, the provisions under the Regulations to punish the Customs House Agent for violation and contravention of the Regulations is in addition to the penal provisions prescribed under the parent Act, namely, the Customs Act - It is incorrect to say that the Customs House Agent is liable only under the Regulations for any violation and contravention - The licence is issued to the Customs House Agent under conditions not to commit any grave offence - If action under the Regulations is not sufficient for the grave offence, the Customs House Agent is liable also to be proceeded under the Customs Act - There is no legal impediment to proceed against the Customs House Agent under the Customs Act besides action under the Regulations - There can be no excessive exercise of power in imposing penalty of Rs.5,00,000/- - Appeals are dismissed: High Court [para 19, 20]
- Appeals dismissed: MADRAS HIGH COURT
2021-TIOL-791-CESTAT-MUM
L'oreal India Pvt Ltd Vs CC
Cus - Issue relates to demand for payment of interest on Customs duty levied before final assessment - Nowhere in appeal memo or in annexed documents, date of provisional assessment and date of release of imported goods are reflected and both parties failed to place any provision of law that dictates that interest is payable from date of import vis-a-vis assessment till the date of release of goods - Further, except Section 18(3) of Customs Act which empowers the Department to collect interest after final assessment, no provision of law is placed before Tribunal to hold a finding that interest can be charged for period between the date of import and the date of release upon provisional assessment, besides the fact that the order of Commissioner (A), which is supposed to be defended by Department, is being disputed by Department without a cross appeal as the same contradicts its own finding that the letter of Appraising Officer was not an appealable/adjudication order - Moreover, legality of findings of Commissioner (A) that such provisional assessment was a deemed final assessment in view of dismissal of WRIT by Delhi High Court is unsupported by any provision of law and apparently based on imagination/surmises - Impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2021-TIOL-790-CESTAT-CHD
Macquarie Global Services Pvt Ltd Vs CCE & ST
ST - Appellant had filed the claims in terms of Rule 5 of CCR, 2004 r/w notfn 27/2012 for refund of unutilized CENVAT credit availed on input services used in providing Business Support Services, Information Technology Services and Management, Maintenance and Repair Services - Same was rejected by holding that the services provided are "Intermediary Services" thus covered under Rule 9 of Place of Provision Rules, 2012 - Therefore, the place of provision of services would be the location of service provider, which is within the taxable territory and hence these services would not qualify as export of services as per Rule 6A of STR, 1994 - The issue for consideration before both the authorities were refund claims filed under Rule 5 of CCR, 2004 and not whether the services provided by them were "intermediary services" or else - However, original authority misdirected himself by considering the nature of output services to determine eligibility of refund claim - Since the issue under consideration found to be squarely covered by decision of Tribunal in case of Orange Business Solutions Pvt Ltd 2019-TIOL-1556-CESTAT-CHD , no merits found in impugned order - The revenue has vehemently argued stating that Commissioner (A) has not considered the refund claim and issue on merits and have remanded back the matter to be decided by original authority for consideration of issue - The impugned order is set aside and appeal allowed vis a vis the issue in respect of "intermediary services" only - This order should not be construed as allowing the refund claims made by appellant, which are completely in jurisdiction of jurisdictional Assistant/ Deputy Commissioner and need to be examined and decided by him: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2021-TIOL-789-CESTAT-CHD
Pearl Drinks Ltd Vs CGST
CX - The appellant is in appeal against impugned order wherein the refund claim filed under Notfn 1/10 was denied for the reason that duty has been paid excess and the freight has not been included in the assessable value of the goods - At the time of clearance of goods, appellant paid duty and claim refund thereof only, there is a Cenvat credit relying in Cenvat credit account unutilized due to return of goods already cleared by appellant on payment of duty - The appellant is entitled for refund of duty paid in cash at the time of clearance of goods as held by Tribunal in case of Shree Nath Industries - It is a claim of appellant that they have not included transportation charges in assessable value which is evident from invoices - Appellant is entitled to claim refund of duty paid on service tax paid on transportation charges: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2021-TIOL-788-CESTAT-AHM
Kedar Metals Pvt Ltd Vs CCE & ST
CX - The SCN alleges that the appellant has availed input credit of common services - The SCN as well as orders of lower authority do not identify the exact amount of credit taken and exact nature of common services on which the credit was availed - Earlier in similar circumstances, a matter in appellant's own case vide order 2020-TIOL-767-CESTAT-AHM was decided for the period 2013- 2014 and 2015- 2016 - In view of the same, impugned order is set aside and matter is remanded back to the Original Adjudicating Authority to re-adjudicate the matter: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
