Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., while setting aside the order of lower Court in a case concerning Customs Act, laid down five reasons why the impugned order was bad in law.

A petition was filed for quashing the order passed by the lower Court.

Factual Background

The respondent i.e. Director of Revenue Intelligence, Head Quarter had filed a criminal complaint case under Sections 132 and 135 (1)(a) of the Customs Act, 1962 before the Trial Court stating that the intelligence reports were received that M/s Elgin Electronics (“the firm”), of which petitioner 1 was the proprietor and petitioner was the Manager were in the business of importing public address systems, sound systems for auditorium etc. without payment of customs duty.

In view of the above-said search was conducted. Later, the goods detained were seized on the reasonable belief that the same had been imported without payment of customs duty.

Further, it was alleged that documents pertaining to retail Invoices raised by the firm were fake and the statement of one of the partners was recorded in which he stated that his firm had executed a project for M/s GAIL for a total amount of Rs 7.46 Crores, out of which work pertaining to audio visual system for Rs 1 crore was outsourced to the firm.

Adding to the above, a retail invoice, recovered from one of the premises of the accused persons, was shown to Ramesh Gupta regarding the sale of mobile phones for Rs 62,25,305/- which was stated to be fake.

Trial Court had issued summons to the accused persons dispensing with the examination of the complainant, who was a public servant at the pre-summoning stage. The Revisional Court had dismissed the criminal revisions, hence the instant petition under Section 482 CrPC was preferred.

Analysis and Decision

In the present case, there was nothing to show that the petitioner made any false declaration or prepared false documents and therefore, he was not liable to be prosecuted under Section 132 of the Act.

High Court found that the Lower Courts did not consider that at the stage of Section 200 CrPC, the exemption could not be given to a public servant who had filed a case in his official capacity, but such exemption was not available with the other witnesses.

Since respondent 1 did not examine even the panch witnesses to prove its case, the Court below had summoned the petitioner without any material on record for prima facie satisfaction.

Why the impugned order was bad in law?

  • The prosecution of the petitioner cannot be initiated under Section 135(1)(a) of the Act as valuation of the goods is less than Rs 1 Crore;
  • The respondent-department has not examined any witness to prove its case against the petitioner;
  • The complaint was admittedly barred by limitation.
  • The sanction by the Additional Director for prosecution is invalid and void-ab-initio.
  • Court below while passing the summoning order has not assigned any reason for summoning the petitioner.

Hence, the summoning order passed by CMM and ASJ was set aside and criminal complaints filed under Sections 132 and 135 (1)((a) of the Customs Act were quashed. [Suresh Chandra Gupta, State of Govt of NCT of Delhi, 2022 SCC OnLine Del 1561, decided on 25-5-2022]


Advocates before the Court:

For the Petitioners:

Mukesh Anand, Advocate

For the Respondents:

Raghuvinder Varma, APP for State

Satish Aggarwala, Sr. PP for R-2

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): A Division Coram of Dilip Gupta, J. (President) and P.V. Subba Rao (Technical Member) allowed an appeal which was seeking quashing of Order-in-Appeal passed by the Commissioner of Customs (Appeals) New Custom House, New Delhi which had set aside the impugned order and allowed the appeal by the department.

The appellant was a subsidiary of M/s. Volvo, Sweden who owned 99.99% of the appellant‟s shares. The parent company manufactures Completely Built Units (CBU) of motor vehicles that were imported and sold by the appellant. Customs duty was chargeable on most goods including motor vehicles on an ad valorem basis. The case of the Department was that the Order in Original it was mentioned that “no expenses are incurred by the importer on behalf of or by understanding or agreement with or under instructions from the suppliers of the goods, e.g., advertising, propaganda expense or any other expense for the sale of the imported goods”. On the other hand it was stated that the importer “needs to manage the customs taxability, inventory cost and simultaneous distribution of imported goods as well as sales promotions including advertising and marketing for its entire business in India.” Whether such expenses had a bearing on the price was required to be analyzed. The authorized representative of the Department, Mr Sunil Kumar submitted that such payments are includable in the assessable value as per Rule 10 (1)(e). The appellant‟s case was that these were expenses incurred by them on their own account to promote their own business.

The Tribunal clarified that Rule 10 (1) (e) required that any payment made as a condition for sale to either the seller or to a third party to satisfy the obligations of the seller was to be included in the value and it found that the appellant was responsible for certain activities such as customs, taxability, inventory costs, distribution, and sales promotions including advertising and marketing for its entire business in India, it cannot be called a payment to their foreign supplier but would be managing affairs related to its own business.

 The Tribunal added that it would have been a different case, if the appellant was required, as per the agreement to promote, at its cost, the sales by the foreign suppliers to other customers in India or make some payment on behalf of the seller to a third party. In such a case, some expense would have been incurred by the appellant that could have been examined to see if it formed an additional consideration for the sale of the goods to the appellant.

The Tribunal while allowing the appeal held that, “The appellant is a distributor and is in the business of selling the cars which necessarily requires them to deal with imports, pay taxes, promote sales, advertise, etc. These, in our considered view, cannot be termed as expenses incurred on behalf of the foreign supplier although the foreign supplier would also indirectly benefit if the appellant‟s business improves. The foreign supplier is also independently selling the goods (cars) to embassies, etc. and there is nothing on record to show that the appellant has incurred any expenses to promote such sales,”[Volvo Auto (India) (P) Ltd. v. Commr. Of Customs, 2021 SCC OnLine CESTAT 254, decided on 25-05-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The PressNews

On the basis of specific intelligence, under the direction of the Commissioner of Customs (Preventive), Bhubaneswar Shri Debashish Sahu, investigation was initiated and relevant business premises of Exporter and Customs House Agent at various places was searched.

Prima facie evasion of Customs duty to the extent of Rs 8,07,66,314/- (Rupees Eight Crore Seven Lakh Sixty-Six Thousand Three Hundred and Fourteen) only by M/s. B S Minerals, Keonjhar, Odisha-758001 on Iron Ore fines which was to be exported from Paradeep, India to Main Port, China in-vessel “MV MAGNUM FORTUNE” was detected by the Customs officials.

Thereafter, 52051 MT of goods valued at Rs.26,92,21,045/-were seized. Subsequently, the exporter deposited Customs duty to the tune of Rs.8,07,66,314/- (Rupees Eight Crore Seven Lakh Sixty Six Thousand Three Hundred and Fourteen) only and submitted Bank Guarantee of Rs. One Crore to the government exchequer for taking the provisional release of the goods in addition to depositing a Bond of Rs 5.4 Crore with the Customs Authorities.

Further investigation is under progress.

PRESS RELEASE


CBIC

[Press Release dt. 29-12-2020]

Business NewsNews

The government has halved customs duty on ‘open cell’ used in the manufacturing of LCD and LED television panels to 5 %, a move intended to boost domestic manufacturing. Open cell (15.6 and above) for use in the manufacture of Liquid Crystal Display (LCD) and Light Emitting Diode (LED) TV panels would attract 5 % customs duty, as per a notification by the Central Board of Excise and Customs. Experts said the move is an extension of domestic manufacturing push by the government after it announced in Budget the hiking of import duty on LCD/LED TV panels to 15 %. The customs duty of 5 % on open cells used in the manufacturing of LCD panels is lower than other items mentioned is Chapter 8529, this could ostensibly be to encourage manufacturing of such panels in India. In Union Budget on February 1, 2018, the government had doubled the customs duty on imported LCD and LED TV panels to 15 % from 7.5 %.

[Source: The Hindu BusinessLine]