TaxTMI 
TaxTMI 
2026 (2) TMI 916
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....There are 26 Customs appeals against Order-in-Original No. 70307/2019 dated 29.07.2019 (herein after called as 'impugned order') - 9 are party appeals and 17 are departmental appeals. Out of the 9 party appeals, three appeals namely, C/41655/2019 filed by M/s. Nakshatra International Food Company (in short 'NIFCO') & Mukesh Kumar as proprietor of NIFCO, C/41657/2019 is filed by Kamlesh Kumar & C/ 41658/2019 is filed by Naresh Kumar. Appeal Nos. C/41676/2019 & C/41677/2019 (partner of M/s Shri Impex Raju Jayantilal Doshi) are related to M/s Shri Impex who are one of the importers/IEC Holders in this case. Remaining 4 appeals are filed by the CHAs- C/41690/2019 (Bharath Rajj enterprises); C/40087/2020 (Eskay Logistics); C/40088/2020 (Mohanlal Liladhar Joshi); and C/40089/2020 (Concord Zoom). 2. Whereas the Revenue has filed 17 appeals from C/41711/2019 to C/41729/2019 on two grounds; That the adjudicating authority ought to have imposed redemption fine on importers u/s 125 in the light of Madras High Court's judgment in M/s Visteon Automotive Systems Vs Customs (CMA No. 2857 of 2011 & MP No 1 of 2011 dated 11.08.2017) and ought to have imposed penalties u/s 112(b) and 114AA on the....
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....TI. 1 19 PT. PAD INTERNATIONAL 1 20 RICO FOOD INDUSTRIES SDN BHD 1 21 SIMSKE BISKUVI VEGIDA SAN 1 22 SOLEN CIKOLATA GIDA SAN. VE TIC. 1 23 SUGABEE SEKERLEME GIDA INS. 1 24 ULTRA HEALTH SDN BHD 1 Total 150 5. As evidenced from the appeal records, during the investigations imported duty-paid goods valued at Rs.1,46,84,431/- lying in godowns of the NIFCO were seized. Several incriminating documents including electronic media in the form of two hard disks were also seized under Mahazar dated 15.10.2013 (sub-annexure -2 to Annexure A1 of SCN @908 - Vol 4). Searches were also conducted at the premises of M/s. Ajantha KTK products, Chennai who was the local distributor for M/s. NIFCO and goods worth Rs.6,05,405/- were seized on 17.10.2013. Later, hard disks were analysed by M/s. Ascent Technologies and documents extracted from this electronic media include 10 proforma invoices related to Suppliers M/s. Petra Foods, Singapore. One such retrieved proforma invoice P/7081/13 dated 02.05.2013 was related to actual import invoice 197/c/13.10.2024 in live Bill of Entry No. 3531124 dated 14.10.2013 which was heavily relie....
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....2 of CVR, 2007 and were re-determined under Rule 3(1)/4/9 of the said Rules. RSP was also revised based on such market survey. SCN alleged wrong classification in respect of three items viz, Nata-de-coco juice, Coppo white Coffee, Quaker Oats, whereas adjudicating authority has confirmed the classification of two items viz, nata-de-coco juice, Coppo white Coffee, same as proposed in the SCN and has not given any finding in respect of Quaker Oats. 11. It appears, the main Assessee when asked for copies of seized documents, image disks, and other relied materials, were not provided and was also denied cross-examination by the Original Authority. 12. A Corrigendum dated 21.10.2019 to Order-in-Original dated 29.07.2019 had been issued wherein penalties were imposed on three CHAs M/s. Eskay Logistics, M/s. Mohanlal Liladhar Joshi & M/s Concord Zoom u/s 112(b) and 114AA of the Custom Act, 1962. 13. The Ld. Advocate Mr. Ajay Kumar Gupta, appeared on behalf of NIFCO and their proprietor Mukesh Kumar and his two brothers viz. Kamlesh Kumar and Naresh Kumar who have reiterated the submissions made in the appeal and contended as follows: - a. Customs duty cannot be demanded ....
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....(217) ELT 570 (Tri. - Amhd.) iii. Vijay Bhav Vs. Commissioner of Customs, Mumbai 2010 (262) ELT 351 (Tri- Mumbai) iv. Shree Shilpa Industries Vs Commissioner of Customs, Raigad 2009 (248) ELT 166 v. Chaudhary International Vs Collector - 2002 (145) ELT A253 vi. Trivandrum Rubber Works Ltd 1999 (106) ELT 9 (SC) vii. VXL India Ltd 2006 (193) ELR 396 (Bom.) e. Statements once retracted and again obtained under duress u/s 108 of the Customs Act, 1962 cannot be relied upon unless backed up by documentary evidence and in support, reliance was placed on the following: i. KI. Pavunny Versus ASSTT. COLLR. (HQ.), C. EX. Collectorate, Cochin 1997 (2) TMI 97- SUPREME COURT OF INDIA ii. Vinod Solanki Versus Union of India [2009 (233) ELT 157- SC] iii. Mohtesham Mohd. Ismail versus Spl. Director Enforcement Directorate 2007 ELT f. The Ld. Advocate submitted that it is settled position of law that proforma invoices cannot be the basis for customs valuation under CVR, 2007 placing reliance on the following: i. M/S. Mittal Impex, Dinesh Kumar Verma and Others Versus Principal Commissioner of Customs- ....
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....orted goods determined under the provisions of rule 9 should be to the greatest extent possible, based on previously determined customs values and relied on the following case laws: - i. Century Metal Recycling Pvt Ltd and Another Vs Union of India [2019 (5) TMI 1152- SUPREME COURT] ii. Commissioner of Customs (Imports), Mumbai Vs Bayer Corp Science & Ors. [2015 (9) TMI 1261 - SC] iii. Bilal Match Works Vs Commissioner of Customs Tuticorin [2025 (3) TMI 977 - CESTAT CHENNAI] i. Classification of items- Nata-de-coco fruit juice, Quaker Oats and Coppo White Coffee are disputed by the DRI in the SCN. Whereas the Original Authority in the impugned order has confirmed the customs classification for only Nata-de-coco fruit juice and Coppo White Coffee as proposed in the SCN based on some information available in 'public domain'. But the no credible literature or past data of similar imports has been relied upon to justify the change of classification. Further, the declared customs classification has been accepted by the proper officer of customs at the time of assessment. On merits, the Assessee submits that the declared customs classification is corre....
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....eared by proper officer of the customs. Further pasting of stickers is allowed in customs area before the clearance of goods. a. He submitted that Section 114AA was specifically added to address and penalize the deliberate use of false or incorrect documents where goods were not physically exported but an export obligation was made, and it was never intended for imports. Even otherwise, the CHA did not make any false declaration knowingly or intentionally before Customs and provisions of section 114AA would not apply. b. Departmental appeal No C/41721/2019 is infructuous as assessee has already been fastened with penalties in the main Order-in-Original. 15. The Ld. Advocate Mr. Gaya Baksh Yadav appeared on behalf of M/s. Concord Zoom, M/s. Eskay logistics and M/s. Liladhar Joshi and stated the following: - a. He questioned the legality of Corrigendum dated 21.10.2019 issued to the impugned Order dated 29.07.2019 which imposed the penalties u/s 112(b) and 114AA on Concord Zoom, Eskay logistics and Liladhar Joshi. b. The Ld. Advocate argued that it is wrong to state that CHAs did not know the IEC Holders as the CHAs had met the IEC holders in pe....
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....ing 68 B/Es based on the statement of Kumar Brothers that they resorted to declaration of only 30% of the actual/original value before Customs and continued the same over a period of time. The parallel invoice recovered from other importers also corroborate the new worked out value. c. Similarly for the other products from other suppliers there is sudden increase of value declaration before Customs (twice the unit value for Magic crunch) by M/s Nakshatra Intl. Co before the Customs from Feb. 2012 to June 2012. Similar is the case for the remaining 445 B/Es in which, the Rule 9 value is arrived based on parallel invoices and proportionate working on 50% under valuation as agreed in their statements made by the Kumar Bros. d. Reason for the denial of cross-examination by AA is given vide Para 96 of OIO which stated that DRI officials had done their work in official capacity and the assessee had already taken a stand by repudiating the contents of the statements. e. IEC of others are misused by Shri Mukesh Kumar as in the case of three IEC holders - M/s. Roop Lakshmi, M/s. Rachel (2009), M/s. Rachel (2011) on verification of their address, none was found. Wh....
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....cooking to make them absorb moisture and ready to eat upon minimal heating, thus, classifiable under CTI1904 and liable for CVD @4/5%. j. No MRP was found pasted on Retail packs at the time of imports. The seizure Mahazars at the three godowns of M/s NIFCO revealed that the imported goods ae not pasted with MRP stickers on the carton and also on retail packages. The seizure Mahazar at the premises of the main distributor namely M/s Ajantha KTK products revealed that the goods are pasted with higher MRP than the one declared by NIFCO before the Customs in the B/Es. Also, the statement of Shri Trinath Kumar of M/s. Ajanta KTK Products confirms that during receipt of goods no MRP was pasted on Retail Packages. Further, the statement of the CHA firms also corroborates that at the time of import only front few rows would be pasted with MRP stickers. Examination of Live B/E also revealed that no MRP is pasted on the impugned goods and unit MRP value declared in the B/E is less than the actual MRP. k. There is no violation of principles of natural justice as alleged. DRI allowed the assessee to take copies and called them to office, but none appeared. 17. Heard both s....
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....e u/s 125 and Penalties u/s 112(b) and 114AA on the Custom Brokers and on other assessees. The above issues which arise for our determination are taken up as under: - A. Whether demand of customs duties jointly or severally is legal or not? 20.1 For the imports made by NIFCO, the customs duty has been confirmed 'jointly or severally' on all three brothers Mukesh Kumar, proprietor of NIFCO and his two brothers - Kamlesh Kumar and Naresh Kumar even though NIFCO is a proprietor firm. An Import Export Code (IEC) is a mandatory requirement for importing goods into India under the Foreign Trade (Development and Regulation) (FTDR) Act, 1992. Section 7 of the Act explicitly states that no person can import or export goods without obtaining an IEC unless specifically exempted. In this case, 388 Bills of Entry were filed by NIFCO with Mukesh Kumar as Proprietor who has given declaration to the truth of the contents in the Bills of Entry under section 46(4) of the Customs Act, 1962. Therefore, the only person who can be legally declared as importer is Mukesh Kumar as proprietor of M/s NIFCO. NIFCO is a proprietorship and not a partnership firm. 20.2 In this connection, we refer to a ....
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....e providers. For all imports the point of contact was reportedly Mukesh Kumar, the proprietor of NIFCO and all payments towards customs duties and other charges were all borne by Mukesh Kumar. But, we find that Assessee's Advocate has countered by stating that all IEC Holders are in existence. Shri Raju Jayanthilal Joshi of M/s. Shri Impex has even deposed before the DRI and given voluntary statement dated 11.04.2014 and has admitted having lent his IEC to Mukesh Kumar for monetary consideration. Statements of the Customs Brokers M/s. Eskay Logistics, Mumbai, M/s. Mohanlal Liladhar Joshi, Mumbai, & M/s. Concord Zoom, Mumbai, before the investigating agency indicate that these CHAs had met the IEC holders while transacting business with them. Shri John Kennedy, proprietor of M/s Eskay Logistics in the voluntary statement dated 02.05.2014 has answered to a specific question to his relationship with M/s Rachel International (IEC 0409005401) and stated that he had business relationship since 2009 and had met one Ramesh Jain, proprietor of Rachel (IEC 0409005401) along with Mukesh Kumar, proprietor of NIFCO. Similarly, voluntary statement of Dinesh Devadiga, authorized signatory of M/s ....
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....d IEC Number. The Ld. Advocate for CHAs Mr. G.B. Yadav has referred to the case of Hamid Fahim Ansari Vs. CC (Import), Nhava Sheva, 2009 (241) E.L.T. 168 (Bom.) wherein it was held as: - "5. In other words, imports have been done in the name of the petitioner but for some other person. In so far as respondents/Customs Authorities is concerned, they have not pointed out to us any provision under the Customs Act or any Rule or Regulation framed thereunder by which the person having valid IEC Number and having paid the custom duty is prevented from importing goods. At the highest, if the petitioner has obtained IEC number by misrepresenting the Ministry of Commerce and Industry and Director General of Foreign Trade, it is for that body to take action. 6. In these circumstances, in our opinion, petitioner having paid the custom duty is entitled to release of the goods. We, therefore, direct respondents to release the goods within 48 hours from today." 20.6 We have gone through the rival contentions on this issue. In this regard, we refer to a very recent decision in Marina enterprises Versus Commissioner of Customs Indore - 2026 (1) TMI 1021 - CESTAT NEW DELHI wher....
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....l value on account of truth or accuracy of the value declared in relation to the imported goods. (b) Proper officer must ask the importer of such goods further information which may include documents or evidence; (c) On receiving such information or in the absence of response from the importer, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists. (d) When the proper officer does not have reasonable doubt, the goods are cleared on the declared value. (e) When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules. (f) The proper officer can raise doubts as to the truth or accuracy of the declared value on 'certain reasons' which could include the grounds specified in clauses (a) to (f) in clause (iii) of the Explanation. (g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper of....
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....ide a reasonable opportunity of being heard to the importer before he makes the valuation in the form of final decision under sub-rule (1)." We find that Original Authority has not complied with the two-step verification and examination procedure. Therefore, rejection of transaction values in terms of sub-Rule 2 of Rule 12 of the CVR, 2007, is itself not legally sustainable. 21.4 In most of the imports, Rule 9 has been invoked to redetermine the transaction value. Ld. advocate has stated that the department has disowned their NIDB data and without data of contemporaneous imports, Rule 9 cannot be invoked as 'previously determined values' is a precondition for this Rule to be made applicable. He has also pointed out that Rule 4 and Rule 9 of the CVR, 2007 cannot be applied without relying on data of contemporaneous imports. 21.5 Whereas in this case, the Department has disowned their own NIDB data by declaring it as contaminated on account of suspected pan-India undervaluation. The reliance of the main assessee on the decisions in the case of Sara Electro Acoustics Pvt Ltd Versus Commissioner of Customs New Delhi - 2008(9) TMI 353 - CESTAT NEW DELHI and Saraswati Knitwears ....
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....a invoices are unsigned papers of no intrinsic value and are not parallel invoices.; that proforma invoices are dated 02.05.2013 (except two - dated 04.02.2013) whereas the actual imports took place after 4-6 months after negotiations, that product description also does not match; that there is advance payment in the actual invoice in the form of Telgraphic Transfer. 21.7 Furthermore, the advocate has argued that proforma invoices are always negotiable and are merely a promise and not a contract unless these are converted into proper Import/commercial invoices. He has contended that it is a settled position of law that Proforma Invoice is nothing more than a tentative statement of the seller offer for sale of the goods at the price mentioned therein. Until the buyer accepts the offers and actually transacts, it is merely a quotation and hence cannot be the basis of actual transaction value in terms of Section 14 of the Customs Act, 1962 read with Customs (Determination of valuation of Imported Goods) Rules, 2007. In support of this contention, he has relied upon the case law in M/s. Oswal Metal Works Versus Commissioner of Customs, Chennai III Commissionerate, Chennai [2024 (10)....
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....ce price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Under- valuation has to be proved. If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege undervaluation, it must make detailed inquiries, collect material and also adequate evidence. When undervaluation is alleged, the Department has to prove it by evidence or information about comparable imports. For proving under-valuation, if the Department relies on declaration made in the exporting country, it has to show how such declaration was procured. We may clarify that strict rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts' proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of undervaluation. Once the Department discharges the burden of proof to the above ....
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....asis for valuation purposes. C. Issues related to RSP, non-affixing and tampering of stickers thereof: - 22.1 Confectionery items, chocolates, jellies and juices imported in retail pack/cartons in the impugned case require MRP/RSP stickers under the Legal Metrology Act, 2009 and these goods are also covered under the Third Schedule of the Central Excise Act, 1944 and attract duty of excise under section 4A of the Central Excise Act, 1944. There are three allegations on RSP viz., non-pasting of RSP stickers on the imported goods: affixing higher rate of RSP stickers after clearance of goods and declaring less MRP/RSP than actual at the time of imports. We will take one by one. 22.2 On the issue of allegation of non-affixing of MRP/RSP stickers on imported goods, the case of the department is that many cartons were found without RSP stickers in the office/godowns of NIFCO. Goods in the live Bill of Entry were also found without stickers except for a few cartons placed in the front side of the container. Assessee on the other hand, has stated that, the goods were pasted with MRP/RSP stickers before clearance from customs area and the tampering of stickers was not done by them....
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....xing of stickers was allowed in the Customs area before clearance of the goods for home consumption, if these are not affixed in the source country. 22.4 Further, the Ld. Advocate has submitted that during the period 2008 to 2013, there was double verification of availability of stickers, and all consignments must have been inspected/examined one by customs officer and second by FSSAI authorities before the clearance for home consumption. In this case, there are 566 Bills of Entries, cleared from three major ports of India and it could not be feasible or possible to assume or presume that all imported goods were cleared from the Customs Areas without affixing RSP stickers. 22.5 We find that it was contended that RSP Price Lists seized during the search on NIFCO office/godown on 15.10.2013. tallied with RSPs declared in the Bills of Entries. In the Live Bill of Entry 3531124 dated 14.10.2013, the MRP for Wafer Biscuit Roll was declared as Rs.720/- and in seized RSP list, the RSP shown was same as Rs.720/- for the same item. These RSP price lists are also comparable with the sales Bills attached with the statutory VAT returns of the successive years filed by the Assessee. As pe....
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....support of this contention, the main Assessee has relied on the case of M/s. Neulife Nutrition Systems Vs Commissioner of Central Excise Pune -II [2018 (4) TMI 27 - CESTAT MUMBAI] wherein it is held that 'any revision thereafter would necessarily require the affixing of fresh labels which would amount to manufacture and therefore, subject to duties of central excise as leviable under Central excise Act, 1944 with its own machinery provisions for recovery of any duty that would arise in consequence'. The appropriate action of duty recovery ought to have been initiated on M/s. Ajantha KTK products under the provisions of Central Excise Act, 1944. We refer to the case of M/s. Quantum Hi-Tech Merchandising Pvt. Ltd. Versus Commissioner of Customs, New Delhi [2024 (11) TMI 844 - CESTAT NEW DELHI], wherein the Principal Bench has held that if the MRP stickers are altered after the clearance of goods and without the knowledge of the importer and with no flow of money coming back for distributors or retailers, the demand of customs duty arising out of enhanced revised MRP cannot be demanded from the importer by observing as follows: - "10. Rule 5 of Central Excise (Determinatio....
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....able Goods) Rules, 2008. As per the SCN and the impugned order, actual MRP Lists were gathered from prominent retail stores / distributors. In few cases where the MRPs of some products were not available, the same were re-determined at 2.42 times the actual declared transaction value. Whereas the main Assessee submits that the MRP Lists collected by DRI are a few unauthenticated excel spread sheets claimed to be obtained from some retailers, that there was not even one sample sale invoice or copies of such invoices placed on record and that there was no finding whether the retailers were selling those goods which were imported by assessee in this case. It is the Assessee' contention that they had placed on record all the VAT returns of the corresponding period along with actual transacted invoices. 22.9 After carefully considering rival contentions and considering non-sustainability of alleged under-invoicing, as discussed above, we do not find any merit in allegation of declaring lesser MRP/RSP. There is no legal backing of any formula of multiplying landed cost by 2.42 times to redetermine the MRP/RSP as applied in this case. D. ADMISSIBILITY OF ELECTRONIC EVIDENCE: 23.1....
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....e, the investigating agency ought to have diligently complied with the provisions of section 138C of the Customs Act, 1962. 23.4 Section 138C(4) mandates a certificate identifying the electronic device, describing the manner in which such electronic record was produced, and certifying its authenticity by a responsible official. These safeguards are substantive protections against manipulation and fabrication of electronic evidence. In Popular Paints and Chemicals v. Commissioner of Central Excise and Customs, Raipur [Excise Appeal No. 52738 of 2016, decided on 06.08.2018] it has been clearly held that computer printouts can be admitted in evidence only if produced in accordance with the statutory safeguards governing electronic evidence. The Tribunal observed as under: - "Electronic records being more susceptible to tampering, alteration, transposition, excision etc., without such safeguards, the whole adjudication based on proof of electronic records can lead to travesty of justice. The provisions of Section 65B of the Evidence Act and Section 36B of the Central Excise Act are pari materia." 23.5 We find that the issue regarding the admissibility of electronic evide....
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.... aside." In a very recent decision of the co-ordinate Bench in M/s. Sino Import & Export Pvt Ltd. and Shri Amarish Versus Commissioner of Customs Chennai II Imports - 2025(12) TMI 835 - CESTAT CHENNAI, on the issue of compliance of adherence to Section 138C is re-emphasised as under: - "14. ......This Tribunal, in a catena of decisions, relying on Apex Court decisions have repeatedly emphasised the requirement to adhere to the provisions of Section 138C for the acceptability of the document being relied upon. In a recent decision of the Principal Bench in M/s. Composite Impex and Shri Rajiv Dhuper Versus Principal Commissioner of Customs, (Import), New Delhi, reported in 2025 (5) TMI 1538 -CESTAT NEW DELHI, placing reliance Apex Court decisions as well as earlier decisions of the Tribunal, it was held that the printout taken from a secondary evidence (namely the pen drive in that case) could not have been considered as evidence in the absence of a certificate under section 138C of the Customs Act. A coordinate bench of this Tribunal in the decision authored by one of us M. Ajit Kumar, Member (Technical), reported as M/s. Media Graphics v Commissioner of Customs, Chennai....
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....nts of the main assessees. Therefore, the admissibility and relevancy of statements ought to have been considered in terms of the provisions of section 138B of the Customs Act, 1962. 24.2 In this case, apart from 10 proforma invoices in relation to 10 Bills of Entry, the department has solely relied on the statements of Mukesh Kumar, Kamlesh Kumar and Naresh Kumar recorded u/s 108 to re-determine the transaction value in respect of remaining 556 Bills of Entry. In their statements they have admitted that in case of M/s Petra Foods, Singapore supply, they have declared 35% of the true value to the customs and in all others, they have declared 50% of the value. There is no recovery of any other documentary evidence with respect to 556 Bills of Entry, other than the statements of the assessees. The admissibility of documents and evidentiary value of the statements in terms of section 138B of the Customs Act, 1962 is, thus, very central and critical to this case. As per the said section, person who has made the statement, is required to be examined as a witness before the Adjudicating Authority to ascertain the voluntary nature of the statements and if required, to provide the oppor....
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....given in 9D(1)(a), for the purposes of evaluating whether the statements are voluntary, whether they depose to having made the recitals in the statement recorded under Section 14/Section 108 and then take a considered decision whether the truth of the facts contained in the statement stand proved or disproved in the facts and circumstances of the case. In other words, it is only after such examination in chief, that the adjudicating authority can arrive at a decision whether or not to declare the witness appearing before it as a hostile witness and then to decide in the facts and circumstances whether to rely on the earlier statement or not, as more elaborately elucidated supra. Needless to say, such examination in chief has to be conducted by the adjudicating authority in the presence of the assesse/representative of the assessee. This is in accordance with the decision of the Honourable High Court of Punjab and Haryana in Jindal Drugs Pvt Ltd v. UOI, 2016 (340) ELT 67 (P & H) F. When the adjudicating authority is examining the witness, it should be noted that minor contradictions, inconsistencies or embellishments of venial or trivial nature which do not affect the kerne....
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....(4) of the Act, 1962 is concerned. The evidentiary value of such Section 108 statements in any other proceedings, if any would have to be considered in accordance with law, including the compliance of Section 138B of the Act, 1962." In absence of chief examination, and denial of cross-examination by the Original Authority, we hold that that the adjudicating authority has not adhered to the statutory prescription as stipulated under section 138B of the Customs Act, 1962, thus rendering the reliance on statements as legally untenable. F. Customs Classification: - 25.1 In the Show Cause Notice, it is alleged that the importers have mis-classified items such as Nata-de-coco fruit juice, Quaker oats and Coppo White Coffee. We find that the Original Authority in the impugned order has reconfirmed the proposed customs classification with respect to only two items viz, Nata-de-coco fruit juice and Coppo White Coffee. There is, however, no finding in the impugned order on customs classification of the third item - Quaker Oats. Since the Original Authority has not discussed in the impugned order on alleged wrong classification of Quaker Oats and there is no departmental appeal on th....
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...., the department has to produce proper evidence and discharge the burden of proof'. In Reliance Industries Ltd & Others Versus Commissioner of Customs [2024 (10) TMI 1555 - CESTAT AHMEDABAD], it is reiterated that onus is on tax authorities to lay evidence on their behalf and observed as under: - "It is a trite law that burden of proof is on the taxing authorities to show that the particular case or item in question is taxable in the manner claimed by them and it is further the taxing authority to lay evidence in their behalf, this view is supported by Hon'ble Supreme Court Judgment in the of State of Madhya Pradesh vs. Marico Industries ltd reported in 2016 (338) ELT 335 (SC)." Therefore, at this stage, because of lack of credible and reliable materials, we cannot interfere with the declared customs classification. 25.4 In the case of Coppo White Coffee, the declared customs classification is CTH 09030000 whereas as per investigation it ought to be CTH 2101 1110. The Ld. Original Authority has reconfirmed the proposed Customs Classification as the assessees did not provide the clarification. There is no other finding in the impugned order. As stated earlier, onu....
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....eed to issue any corrigendum to correct minor clerical mistakes which do not alter the adjudication order per se. Therefore, adjudicating order should normally be issued. It may be noted that after issuing an adjudication order, the adjudicating authority becomes functus officio, which means that his mandate comes to an end as he has accomplished the task of adjudicating the case. As a concept, functus officio is bound with the doctrine of res judicata, which prevents the reopening of a matter before the same court or authority. It may also be noted that under the Central Excise Act, adjudicating authority does not have powers to review his own order and carry out corrections to the adjudication order." 26.3 Further, in M/s. Gera Development Pvt Ltd V Commissioner of Customs, JNPT [2023 (5) TMI 258 - CESTAT MUMBAI], has maintained the same stand by observing the following: - "6. Now coming to the legality of the order subsequently passed through an addendum/corrigendum appropriating the amount paid by the Appellant towards Antidumping duty etc., it can be said that the said order is passed without authority of the law since it is a settled principle of law, as has been ....
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....ailable, there is no question of redemption of the goods. Under Section 125 a power is conferred on the Customs Authorities in import of goods becoming prohibited on account of breach of the provisions of the Act, rules or notification, to order confiscation of the goods with a discretion in the authorities on passing the order of confiscation, to release the goods on payment of redemption fine. Such an order can only be passed if the goods are available, for redemption. The question of confiscating the goods would not arise if there are no goods available for confiscation nor consequently redemption. Once goods cannot be redeemed no fine can be imposed. The fine is in the nature of computation to the state for the wrong done by the importer/exporter'. Goods under question are not prohibited or restricted goods. At this juncture, we also take note of the consistent view taken by several benches of this Tribunal and Constitutional Courts, the decision of the Hon'ble Supreme Court in the case of Weston Components Ltd. Vs. Commissioner of Customs [2000 (115) ELT 278 (S.C.)]; larger Bench decision in the case of Shiv Kripa Ispat Pvt. Ltd. Vs Commissioner of C. EX. & CUS., NASIK ....
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....rtation of the goods' making them liable for confiscation. Expressions "does or omits to do", "or abets the doing or omission of such act", "which he knows or has reason to believe are liable to confiscation under Section 111" used in Section 112 would mean active intent and conscious knowledge. We find that the CHAs were acting based on documents given to them by the IEC Holders. Further, all these Bills of Entry would have been examined by the Customs officers, and FSSAI in accordance with the mandated procedure for assessment and clearance of food stuff. Another allegation on CHAs is that they were well aware of the fact that Shri Mukesh Kumar of NIFCO was coordinating all the imports made under all 5 IE codes and Mukesh Kumar used to pay customs duty and other charges and the goods after clearances would go to NIFCO, we find that in all the imports there is no adverse finding on KYC documents or and in making a true and correct declaration under section 46(4) of the Customs Act, 1962 by the respective IEC holders. The Ld. Counsel for the assessees has relied upon the case law of Hamid Fahim Ansari Vs. CC (Import), Nhava Sheva, 2009 (241) E.L.T. 168 (Bom.) and we find force i....