2023-TIOL-978-HC-MUM-CUS
Make Index Impex Vs UoI
Cus - Petitioner is aggrieved by the refusal of the Customs Department to clear the goods in question namely the "Pigeon Peas" and "Soya bean" as imported by the petitioner on the ground that the goods are genetically modified and which if they exceed the permissible parameters cannot be permitted to be cleared and / or they would be required to be re-exported.
Held: A clear stand of the FSSAI is on record that the Soyabean sought to be cleared by the petitioner and subject matter of the present proceedings, in no manner whatever would be harmful for human consumption/health in whatever form, in the light of the requirements and parameters of the FSSAI Act, 2006 and the Rules framed thereunder, if the goods are permitted to be cleared - Petition is disposed of in terms of inter alia the following directions viz. respondents are permitted provisional release of the goods, however, on the petitioner furnishing a bank guarantee for the differential duty; petitioner shall also strictly adhere to the use and consumption of the goods for the purpose of extraction of oil and that the product as manufactured shall also be subjected to further FSSAI clearance - Petitioner is permitted to make a representation to respondent no.4-Chairman, Mumbai Port Trust on the issue of demurrage / storage charges and which authority is directed to dispose of the representation within four weeks - Petition disposed of: High Court [para 13, 14]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-977-HC-MUM-CUS
Victor Reinz India Pvt Ltd Vs CC
Cus - Substantial question of law inter alia is - Whether the Tribunal has erred in dismissing the appeal filed by the Appellant without hearing the case on merits on the ground that the Commissioner (Appeals) had remanded back to the original authority for re-adjudication, when in fact the remand was only for a limited purpose of re-quantification of customs duty, after deciding the issues on merits against the Appellant.
Held: Commissioner (Appeal), after having given a finding on merits against the Appellant remanded the matter to the Original Authority for ascertaining the quantum of the amount to be added for arriving at the transaction value - The Appellant, in its appeal, before the Tribunal has challenged the said finding of the Commissioner (Appeal) on merits that no addition could be made on payments made under the Technical Assistance Agreement for under the Customs Valuation Rules, 2007 - If the Appellant succeeds on the merits, then the question of quantification would not arise - Tribunal has not considered paras 5 and 6 of the Commissioner Appeal's order in proper perspective, and has merely got carried away by the remand, without realising that there was a finding on merits against the Appellant and which was challenged before the Tribunal - Tribunal ought to have adjudicated the appeal of the Appellant on merits and was not justified in observing that no adjudication on merit is warranted because of the matter having remanded to the original authority - Impugned orders are set aside and Customs Appeal No.87534 of 2013 is restored back to the file of the Tribunal with a direction to decide the said appeal on merits: High Court [para 8, 9]
- Appeals allowed: BOMBAY HIGH COURT
2023-TIOL-976-HC-MAD-CUS
CC Vs Shahnaz Commodities International Pvt Ltd
Cus - Advance Rulings Authority, after considering the materials placed, proceeded to rule that roasted areca / betel nuts - whole, split and cut fall under Chapter Heading 2008, specifically, under Tariff entry 2008 19 20: "other roasted nuts & seeds" of Chapter 20 of the First schedule of CTA - Aggrieved by this order, the present appeals by Revenue.
Held: Question of examining whether areca nut/betel nut and roasted areca nut are commercially the same or otherwise, is an enquiry which is alien in determining the classification which ought to be made on the basis of the Tariff entries - Once legislature has chosen / provided for separate and independent entry under the Tariff for roasted areca nut, it is no longer necessary nor open to examine whether roasted areca nut is commercially the same as areca nut or whether the process of roasting results in emergence of a commercially new/different commodity having a different name, character and use - It really does not matter whether roasting of betel nut results in emergence of a new commodity for even if it does not, it is still open to the legislature to classify the product differently - Once the legislature has classified roasted betel/areca nut under a separate entry, it is not open to the Revenue to discard/abandon the entries in the Tariff while examining / determining the classification of the product - It is trite law that whenever there is specific entry, the same would prevail over general entry - The said general principle is statutorily incorporated in General Rules of Interpretation, in particular, under Rule 3(a) of the General Rules of Interpretation - While fresh or dried areca nuts are covered by 080280, roasted areca nuts are covered under 2008 19 20 - Roasting is a process which has been treated to be distinct from drying and has been the basis for fixing the classification under Customs Tariff Heading under 2008 19 20 - CTH 2008 19 20 is a special entry covering nuts subject to the process of roasting, when contrasted with CTH 0802 90 which covers dried nuts - generalia specialibus non derogant i.e. general law yields to special law should they operate in the same field on same subject - Having come to the conclusion that the classification of areca nut is made on the basis of the process which it is subject to with a distinction between dried and roasted nut being maintained, we would think that CTH 2008 19 20 which covers roasted nuts including areca nut is a specific entry when contrasted with the entries/ items covering nuts under CTH 08.
Conclusion:
(a) Roasting is a process treated to be distinct from the process of boiling and drying, in fixing the classification in respect of betel/areca nut under CTH.
(b) Roasted betel/areca nut having been specifically classified under CTH 2008 19 20, the attempt to classify under CTH 08 02 80 would fall foul of the settled rule of construction that specific entry would prevail over general entry.
(c) HSN explanatory notes is normally a safe guide in determining classification under CTH. Roasted areca / betel nut having been mentioned in CTH 2008 19 20 under HSN, the impugned Ruling is in consonance with HSN classification.
(d) When there is a specific entry covering a product/commodity, the test of common parlance is irrelevant in determining classification.
++ Ruling of AAR stands affirmed, Appeals are dismissed: High Court [para 9, 11, 11.1, 11.3, 11.4, 16, 17]
- Appeals dismissed: MADRAS HIGH COURT
2023-TIOL-975-HC-MUM-CUS
Zulfikar Abdul Rashid Khan Vs UoI
Cus - Applications filed by the appellant praying for condonation of delay of 1708 days in filing the appeals have been rejected by the Tribunal for the reason that no justifiable ground has been stated in the applications filed – Aggrieved, the present appeals - It is submitted that the CESTAT has not taken into consideration that the appellant was bonafide pursuing the revision application before the revisional authority and in these circumstances, considering the settled principles of law, that Section 14 of the Limitation Act would save the limitation, in the appellant pursuing the appropriate remedy of an appeal before the CESTAT; moreover, a serious prejudice is caused to the appellant also for the reason that the said order is passed ex- parte and without granting an opportunity of hearing to the appellant.
Held: The impugned order passed by the CESTAT was passed in the absence of the appellant as seen from the appearance as noted in the impugned order - It is also required to be noted that assailing the order in appeal passed by the Commissioner of Customs (16 March, 2016), the appellant being under a bonafide belief, had approached the revisional authority, by filing a revision application on 09 May, 2016 which came to be rejected after a period of almost more than 4 years i.e. on 14 December, 2020 - In assailing the orders passed by the Commissioner (Appeals), the appellant was not sleeping over his rights - In this view of the matter, the revisional authority disposed of the revisional proceedings (on the ground that the revisional authority lacked jurisdiction), permitting the appellant to avail of the remedy of an appeal before the CESTAT – Thus, the position is that the appellant's challenge to the order passed by the Commissioner of Customs (Appeals) has remained to be adjudicated, as such challenge could only be adjudicated before the appropriate forum having jurisdiction namely the CESTAT - In the above circumstances, when a litigant like the appellant bonafide adopts a remedy which is not appropriate remedy, Section 14 of the Limitation Act would certainly come to the aid of such litigant - These factual circumstances, being quite apparent, as also the clear position of applicability of Section 14 of the Limitation Act, to the facts of the case was completely overlooked by the CESTAT, in adjudicating the interim application filed by the appellant, in dismissing the appellant's interim applications on the meagre reasoning - Impugned order dated 19 July, 2022 passed by the CESTAT is quashed and set aside - Appeals filed by the appellant are directed to be registered before the CESTAT and to be adjudicated on their own merits and without an objection as to limitation – Appeals allowed: High Court [para 9, 10, 11, 13, 16]
- Appeals allowed: BOMBAY HIGH COURT
2023-TIOL-974-HC-P&H-CUS
CC Vs Jindal Drugs Ltd
Cus - Tribunal held that 50 MT of Coco Butter was lost during transit from the port to the factory but the lost quantity had been replaced by the respondent by purchasing the Cocoa Paste from the local market to fulfil its export obligation; that respondent-assessee did not claim any rebate or draw back in respect of the locally procured Coco Butter; that the advance authorization has been discharged by DGFT as export obligation has been fulfilled by the respondent; that since the export obligation was fulfilled, it was not open for the Revenue to initiate proceedings against the respondent assessee on the ground that it had not fulfilled the condition of the advance authorization - Aggrieved with this order, the present appeal by Commissioner of Customs, Ludhiana.
Held: Counsel for the appellant-Revenue has not been able to cite any judgment on the proposition that once the export obligation has been discharged and the assessee has redeemed its bond executed with the licensing authority i.e. DGFT, the Customs Authorities can initiate proceedings against such assessee - Moreover, it is not the case of the Revenue that there is violation of any of the conditions of notification No.93/2004-Cus dated 10.09.2004 - Impugned order has been passed after appreciating the evidence in the right perspective - Appeal is dismissed: High Court
- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT |
