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HIGH COURT RULING
M/s Sai Shipping Company Pvt Ltd Vs UoI (Dated : August 4, 2010)
Customs – Short Landing – No short landing established – no penalty – In case of short landing penalty to be reworked: the impugned order to the extent it imposes penalty for short landing of the bags of Chinese Polished Beans, is quashed and set aside. In this view of the matter, the quantum of penalty will have to be redetermined. Penalty can only be imposed to the extent of short landing of one piece of Seamless Steel Pipe, the quantum of which the adjudicating authority will have to redetermine. For this limited purpose, proceedings are remitted back to the adjudicating authority to redetermine the quantum of penalty vis -a-vis short landing CC, Mumbai Vs Vivencio Bartiloni Degollacion (Dated : July 29, 2010)
Customs – Illegal sale of smuggled diesel to barges – Non-imposition of penalty under Sections 112(a) & (b) of the Customs Act, 1962 on the Captain - In view of the fact that no one except the Chief Engineer had implicated the Captain and the allegation of the Chief Engineer regarding the Captain's complicity, have not been corroborated/verified by any other means, at the most a suspicion remains regarding the role of the Captain, but this cannot be a ground for imposing penal liability - The CESTAT findings are correct and are well reasoned and do not require any interference. M/s Mahahar Audiotronics Pvt Ltd Vs UoI (Dated : July 27, 2010)
Customs – Settlement Commission bound to follow the Valuation Rules while settling a valuation issue: in settling the case of under valuation, the Settlement Commission is also required to determine the duty liability by adopting the lowest value in te rms of Rule 5 and Rule 6 of the Valuation Rules. The Settlement Commission cannot ignore and/or overlook the provisions of Rule 5 and Rule 6 of the Valuations Rules. The orders of the settlement Commission are amenable to the writ jurisdiction: The orders of the settlement Commission are amenable to the writ jurisdiction and the judicial review thereof is permissible under Article 226 of the constitution of India. In the present case, not only the decision but also the decision making process is not in accordance with the law since the settlement commission has not followed the provisions of Rule 5(3) of the Valuation Rules which are part of the Act. M/s Paul Industries Vs UoI (Dated : July 27, 2010)
Customs – Settlement Commission bound to follow the Valuation Rules while settling a valuation issue: in settling the case of under valuation, the Settlement Commission is also required to determine the duty liability by adopting the lowest value in terms of Rule 5 and Rule 6 of the Valuation Rules. The Settlement Commission cannot ignore and/or overlook the provisions of Rule 5 and Rule 6 of the Valuations Rules. The orders of the settlement Commission are amenable to the writ jurisdiction: The orders of the settlement Commission are amenable to the writ jurisdiction and the judicial review thereof is permissible under Article 226 of the constitution of India. In the present case, not only the decision but also the decision making process is not in accordance with the law since the settlement commission has not followed the provisions of Rule 5(3) of the Valuation Rules which are part of the Act. Unitech Enterprises Vs CC , Chennai (Dated : July 19, 2010)
Customs - Seizure of imported goods – appeal pending in CESTAT – Goods ordered to be released on payment of duty and 50% of RF: The respondents shall release the goods subject to the petitioner paying the entire duty as per re-determined value at US Dollars 69395 C&F equivalent to Rs.34,15,893/- and paying 50% of the redemption fine imposed in the order dated 26.08.2009. However, the penalty imposed in the order dated 26.08.2009, shall remain stayed till a final decision is taken by the second respondent -Tribunal in the pending appeal. Indian Exporters Grievance Forum & Anr Vs UoI(Dated : August 5, 2010)
FOREIGN TRADE POLICY - Target Plus Scheme – 'broad nexus' between
import goods and exported goods – FTP cannot be amended by Circulars and
Public Notices – Customs Circulars and DGFT Public Notices quashed: the
impugned circulars and notice that purported to 'clarify' the term 'broad nexus, i.e. the impugned circular dated 8th May 2007, the Public Notice dated 21st June 2007 and the further circular dated 19th December 2007, travelled beyond what was envisaged by para 3.7.6 of the FTP and severely restricted the benefit thereunder. It was a significant change that could be brought about only through a notification under Section 5 FTDR Act. The said circulars and public notice were, therefore, ultra vires para 3.7.6 of the FTP. Further they sought to retrospectively take away a benefit that had accrued to the exporters which cannot but be viewed as unreasonable in the context. The impugned circular dated 8th May 2007, the Public Notice dated 21st June 2007, the further circular dated 19th December 2007 and the amended para 3.2.5 of the HBP are accordingly quashed. Meadows Shipping Pvt Ltd Vs UoI (Dated: July 13, 2010)
Customs – Short Landing – Penalty – LCL or FCL – Question of fact – cannot be re – appreciated in writ: The submission advanced by the Counsel that it is a case of short shipping and not short landing holds no water in view of the fact that the letter sought to be relied upon to support this contention is nothing but an evidence created to prepare defence. This defence is nothing but an after thought. It was rightly rejected So far as another submission regarding status of container is concerned, the same is devoid of any substance. The authorities below relied upon the shipping documents with which no fault can be found. It being a finding of fact based on documentary evidence, it cannot be re -appreciated in the writ jurisdiction since the view taken is a CC, Mumbai Vs Sea Bulk Offshore LLC (Dated: August 3, 2010)
Customs – Mid sea smuggling of Diesel – Confiscation of Vessel – Tribunal's
order reducing fine to Rs 5 Lakhs from Rs. 1 Crore upheld: The Tribunal has
noted from the records that the purchasers of the said unaccounted diesel had clearly stated that they were dealing with the Chief Engineer. The Chief Engineer is one of the employees responsible for maintaining accurate amount of diesel and shared the common responsibility of managing bunkers. The Tribunal has further noted from the order of the Adjudicating Authority that the Chief Engineer had kept the Master and Owners in the dark for his personal gain. The Tribunal, therefore, after considering the relevant facts and circumstances of the case, held that a token amount should be imposed as redemption fine in lieu of the confiscation of the vessel on the Respondent and reduced the redemption fine imposed on the Respondent to Rs.5,00,000/. The view taken by the Tribunal cannot be termed as arbitrary or perverse and thus, CC Vs Essar Oil Limited (Dated: April 15, 2010)
CESTAT is required to pass reasoned speaking orders – while setting aside the order of the Commissioner the Tribunal has not recorded any finding as to in what manner the findings recorded by Commissioner are erroneous or as to why it was required to It is a matter of regret that the Tribunal still continues to ignore the same: Despite there a being plethora of precedents holding that an appellate authority is required to record facts, contentions as well as reasons for arriving at its conclusions, it is a matter of regret that the Tribunal still continues to ignore the same and pass orders like the present one without recording facts or reasons. The matter is remanded to the Tribunal for taking a fresh decision by a speaking order in accordance with law after affording due opportunity to the parties. M/s Shri Shakambari Exports Vs Joint Director Of Foreign Trade, Chennai
(Dated: July 1, 2010)
Custom - Writ - Whether Revenue has power to revoke the bank guarantee, on failure of the importer to comply with the stipulations made at the time of duty free import. Ranbaxy Laboratories Ltd Vs UoI (Dated: March 29, 2010)
Customs – Export Duty on Clearances to SEZ - 2009-TIOL-674-HC -AHM-CUS relied on – interim order to continue CC, Chennai Vs M/s Biomed Hitech Industries Ltd (Dated: July 21, 2010)
Customs – Adjudication Order passed by Chief Commissioner is appealable to the CESTAT; The mere fact that the Chief Commissioner of Customs has signed the original order of adjudication as Chief Commissioner of Customs cannot make the said order as the one passed by the Chief Commissioner of Customs in its own capacity. But the same has to be construed as the one passed by the Commissioner (Adjudication). In other words, the Chief Commissioner of Customs has stepped into the shoes of the Commissioner of Customs and exercised his power as an adjudicating authority in this case. He has got no independent power of adjudication except to take the power of the Commissioner (Adjudication) under Section 5(2) of the Act. An officer can exercise the powers of only his immediate subordinate – Chief Commissioner can exercise the power of a Commissioner, not an Assistant Commissioner: Section 5(2) has been framed in such a way that an officer of Customs may exercise the powers and discharge the duties conferred or imposed under the Customs Act on any other officer of Customs who is subordinate to him. It is relevant to note that the expression used is singular and therefore the said provision can only be read in such a way that an immediately superior officer can exercise the powers and discharge the duties conferred or imposed under the Act on any other officer who is immediately subordinate to him. Therefore, the Chief Commissioner of Customs may exercise the powers and discharge the duties conferred or imposed under the Customs Act on the Commissioner of Customs who is his immediately subordinate officer in the hierarchy as prescribed under Section 3 of the Act. In which event, under Section 128 of the Act, when the Commissioner of Customs (Appeals) as an Appellate Authority has not been empowered to hear any appeal from the orders of Commissioner of Customs, there would be no scope for any anomaly while applying Principles of Purposive Consideration: a statute has to be read in its entirety and not in isolation and a provision of law has to be seen in the context in which the same is introduced; It is sometimes more important to emphasise the obvious than to Sunbeam Garments Pvt Ltd Vs CC (Dated: February 3, 2010)
Customs - Condonation of delay- No satisfactory explanation for delay Tribunal Order upheld: even if it is accepted for the sake of argument that the order-in-original with the notice was served only in June 2006, still, the appeal came to be filed on 14.5.2007 after about a year for which no satisfactory explanation has been offered. The Tribunal has, therefore, observed, "ordinarily, we would have rejected the application simply on the ground that there was absolutely no explanation given for the period from 19th June, 2006 to 14th May, 2007 for the gross delay in the filing of the appeal and that even the explanation for the earlier period was wholly M/s Shri Shakambari Export Vs Joint Director Of Foreign Trade, Chennai
(Dated: July 1, 2010)
Customs – Department can invoke Bank Guarantee when notification conditions are not fulfilled:where advance licenses were obtained by misrepresentation without even having manufacturing facilities, the Customs Department would be justified in initiating action and no error in invoking the Bank Guarantee. CC, Mumbai Vs M/s Wartsila India Ltd (Dated: January 27, 2010)
Customs – import of second-hand goods – requirement of import licence as per para 2.17 of the Foreign Trade Policy 2004-09 – the order of the CESTAT is cryptic and not Right to reason in an indispensable part of sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi judicial performance. CC, Bangalore Vs PSI Data Systems Ltd (Dated: March 18, 2010)
Customs – Relinquishing title of goods warehoused under Section 68 of the Customs Act, 1962 – The benefit of amended Section 68 is available to the respondents - if the matter is pending on the date of the amendment, the prospective amendment would enure to the benefit of the assessee – However, the Tribunal has committed error in not considering the entire provisio to Section 68 by granting exemption from interest and penalty – matter remanded to compute the interest and penalty. Res judicata - dismissal of the writ petition on an earlier occasion considering the provisions of Section 23(2) of the Act cannot be held to be a bar by applying the principles of res-judicata to invoke the proviso to Section 68 of the Act - Even if the writ petition filed by the assessee has been dismissed invoking the relief under Section 23(2) of the Customs Act, there cannot be a bar to the assessee to make use of the amended provision since the case of the assessee was still pending before the M/s Pharmex Drug I P Ltd Vs Addl. Director General Of Foreign Trade (Dated:
March 19, 2010)
Foreign Trade Policy – Adjournment of hearing not granted – Rs. 2 Crores
Penalty imposed by an Officer who was not competent – Order Set aside –
Cost Awarded : The Respondents have also not furnished a satisfactory explanation
why the Petitioner was not granted an adjournment of the hearing. The impugned order dated 9th October 2002 passed by the ADGFT merely states that a show cause notice dated 26th June 2001 was issued. It has also not explained how when the jurisdiction of the Deputy DGFT was limited to Rs. one crore, an order of imposing M/s S Kesarimal Vs CC, Chennai (Dated: April 22, 2010)
Customs – Detention of imported Goods for want of Licence under Drugs And
Cosmetics Act- When licence was not required, detention illegal – quashed:
when the petitioner is entitled to import Benfotiamine without a licence by reason of exemption granted under the Rules of the Drugs and Cosmetics Rules, the purpose of import being one for manufacturing food supplement, the question of detention by way of confiscation or further proceeding for the purpose of penalty on the ground that the import is not supported by licence in Form 10-A, hence, does not arise.

Source: http://www.taxindiaonline.com/RC2/pdfdocs/headnotes_index/index_july_auguat_2010/custom/hc_2010.pdf