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| Amendment of s. 153 of the Customs Act, 1962 and s. 37 C of the Central Excise Act, 1944 required |
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Please read our letter dated 17.06.2010 to CBEC at Text of letter Ref. No. 070401
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| For comments: Customs recalling exported containers - amendment of law required |
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Draft letter to CBEC through GRM placed at Please click here for comments, if any please to be sent to rightinformer@gmail.com. Thank you.
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| Chennai Port Customs - Security concerns |
The shortage of manpower at the port’s customs unit has raised serious security concerns given the fact that the section has to handle more than 3,000 imported containers on a daily basis.
“There is no export-import infrastructure worth mention at the Chennai Port customs which is rated as the best on the Coromandel Coast because of its excellent hinterland network,” a senior customs official told this newspaper. He also warned about the possibility of extremists and terrorist organisations misusing the port to bring in arms, ammunitions and other logistics as it is increasingly being considered as a safe route to bring in such banned items.
Please click hear for the full text of the news item
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| A businessman and his associate were arrested by the Central Excise Intelligence Bureau officials for allegedly evading tax to the tune of Rs 5.5 crore |
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Ramanand Agarwal, the owner of Devi Iron and Power Limited, and his employee B K Goswami were arrested for tax-evasion of Rs 5.5 crore, they said. According to the sources, Aggarwal had not revealed the production of 32,000 tonne goods manufactured by his company. Link
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| DGCEI said “Our men were injured and we lost important documents” |
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DGCEI said Reliable, which is believed to be selling cheap cigarettes, was being investigated for evading duty of hundreds of crore rupees. “Our men were injured and we lost important documents. However, we have enough evidence to take the case forward. It’s a sad incident and necessary follow-up action is being ensured,” a senior DGCEI official told DNA. ... What’s more disturbing is the fact that the mob included excise department officials. Excise inspector Ram Swaroop, who had been posted in Mandideep, has been arrested along with 10 others believed to be associated with Reliable. Link
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| Cenvat - Assessee has to satisfy the Assessing Authorities that the capital goods in the form of component, spares and accessories had been utilized |
Madras Cements Ltd vs Commissioner Of Central Excise on 6 May, 2010 – [SC]
12. In order to avail of Modvat/Cenvat credit, an Assessee has to satisfy the Assessing Authorities that the capital goods in the form of component, spares and accessories had been utilized during the process of manufacture of the finished product.
13. Admittedly, in this case the Appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the Assessing Authorities to come to a decision as to whether Modvat Credit would be given in respect of the goods in question. ...
14. We are not, therefore, inclined to interfere with the orders of the Tribunal and the Appeals are accordingly, dismissed.
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| 10 buyers were located who denied having purchased soap from the petitioner. Inference drawn was that the imported crude palm oil was not used for manufacture of soap but was diverted to open market |
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.3270 of 2010 Date of decision: 24.2.2010 M/s Sangam Soap Factory. -----Petitioner. Vs. The Union of India and others. -----Respondents http://indiankanoon.org/doc/1303502/
1. This petition has been filed against order of the Customs Excise and Service Tax Appellate Tribunal, respondent No.2, rejecting prayer of the petitioner for total waiver of requirement of pre-deposit. The Tribunal has already allowed partial waiver and directed that the appeal can be heard on merits if the petitioner pays a sum of Rs.80 lacs as against demand of more than two crores raised against it.
2. The petitioner imported crude palm oil and availed of concessional rate of customs duty. During investigation, it was found that 60% sale of soap was on cash sale basis and only 10 buyers were located who also denied having purchased soap from the petitioner. Inference drawn was that the imported crude palm oil was not used for manufacture of soap but was diverted to open market and benefit of concessional rate of customs duty was misused. Having regard to facts and circumstances of the case, the Tribunal declined to grant complete waiver.
3. Learned counsel for the petitioner says that the petitioner is not in a position to pay any amount in order to show its bonafides.
4. In view of finding about liability of the petitioner, which are not shown to be prima facie erroneous, we do not find any ground to interfere with the view taken by the Tribunal.
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| If by the Act of Parliament, the mode of proceeding is altered, and then no one has any other right than to proceed under the alternate mode. |
4. The complaint was to the effect that there was misstatement in the prospectus filed by the company at the time of the public issue with regard to alleged non-disclosure of pledge of 7 lac 50 thousand shares held in the company by directors of the company to avail of working capital from Bank of Baroda. The second aspect of the complaint was that the Directors of the company had also given a non-disposal undertaking to Bank of Baroda in respect of the same shares and that the prospectus does not mention the same. The further complaint is that the 2000 investors complained regarding non- receipt of dividend and the such complaint was filed before the Investor Service Cell, B.S.E. The company while replying to the investors stated that it had not declared any dividend during the preceding year in respect of which complaint has been made. Therefore, prima facie, a case of misstating the facts in the prospectus and misguiding the investors was made out. It appears that the company had deliberately not dispatched share certificates to investors based in Jalgaon and failed to produce the share transfer records and proof of records of the applicants in Jalgaon.
6. Pursuant to such show cause notice the respondent gave his reply on 1.3.2000 and 10.7.2002. Thereafter, an opportunity of personal hearing was granted to the respondent on 14.5.2002 and the same was adjourned to 5.7.2002 and on that date the Board made its submissions. Ultimately, on 31st March, 2004 Chairman of the Board passed an order, the concluding portion whereof is as under: "Therefore, in exercise of the powers conferred upon me by virtue of Section 4(3) read with Section 11 and Section 11B of SEBI Act, I hereby direct that Shri Ajay Agarwal be restrained from associating with any corporate body in accessing the securities market and also be prohibited from buying, selling or dealing in securities for a period of five years. This direction shall come into force with immediate effect".
52. Maxwell in his "Interpretation of Statutes" also indicated that no one has a vested right in any course of procedure. A person's right of either prosecution or defence is conditioned by the manner prescribed for the time being by the law and if by the Act of Parliament, the mode of proceeding is altered, and then no one has any other right than to proceed under the alternate mode. [Maxwell Interpretation of Statutes, 11th Edition, p.216].
53. These principles, enunciated by Maxwell, have been quoted with approval by the Supreme Court in its Constitution Bench judgment in Union of India v. Sukumar Pyne [AIR 1966 SC 1206 at p.1209]
54. For the reasons discussed above, this Court is constrained to quash the order of the Appellate Tribunal and upholds the order of the Chairman of the Board.
Securities &Amp; Exchange Board ... vs Ajay Agarwal on 25 February, 2010 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1697 OF 2005 J U D G M E N T GANGULY, J.
http://www.indiankanoon.org/doc/833574/
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| Lethargy, in-action, an absence of a sense of responsibility cannot fall within category of just exceptions |
18. The High Court after hearing the parties was pleased to set aside the judgment of C.A.T. dated 15.12.2006 and the notifications dated 1.2.2006 and 25.8.2005 were set aside. The State Government and the Central Government were directed that the cadre review exercise should be undertaken as if it was taking place on 30th April, 2003 with reference to the vacancy position as on 1st January, 2004.
41. Learned counsel for the appellants has also urged that the statutory mandate of a cadre review exercise every five years is qualified by the expression `ordinarily'. So if it has not been done within five years that does not amount to a failure of exercise of a statutory duty on the part of the authority contemplated under the Rule.
42. This Court is not very much impressed with the aforesaid contention. The word `ordinarily' must be given its ordinary meaning. While construing the word the Court must not be oblivious of the context in which it has been used. In the case in hand the word `ordinarily' has been used in the context of promotional opportunities of the Officers concerned. In such a situation the word `ordinarily' has to be construed in order to fulfil the statutory intent for which it has been used.
44. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in-action, an absence of a sense of responsibility cannot fall within category of just exceptions.
45. In the facts of this case neither the appellants nor the State of U.P. has justified its action of not undertaking the exercise within the statutory time frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of `ordinarily' in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.
49. Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
Union Of India &Amp; Another vs Hemraj Singh Chauhan &Amp; Others on 23 March, 2010 Bench: A K Ganguly, R Raveendran IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2651-52 OF 2010 (Arising out of SLP(C) No.6758-6759/2009) Union of India & Another ..Appellant(s) Versus Hemraj Singh Chauhan & Others ..Respondent(s) J U D G M E N T GANGULY, J.
http://www.indiankanoon.org/doc/75171/
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| writ petition is not ordinarily maintainable to challenge an order of the Tribunal |
49.For the reasons discussed above, this Court is of the opinion a writ petition is not ordinarily maintainable to challenge an order of the Tribunal.
4. The facts of the case in brief are as follows: The appellant, along with another person, were issued a notice dated 12.1.2005 under Section 3(c) of the Foreign Exchange Management Act, 1999 (FEMA) for receiving unauthorized payments worth Rs.5 crores under instructions from persons living outside India in connection with his illegal cricket betting operation. He was also asked to explain why the amount of Rs.1 lac, confiscated during search from his residence, should not be credited to the account of the Central Government under Section 13(2) of FEMA, 1999.
5. As the charges were proved against him, a penalty of Rs.2 crores was imposed on him and the confiscated money was disposed of according to Section 13(2) vide order dated 29.02.2008.
12 April, 2010 in the Supreme Court of India, Civil Appellate Jurisdiction, Civil Appeal No.3221 Of 2010 (Arising out of SLP (Civil) No.28877 of 2008) Raj Kumar Shivhare ..Appellant(s) Versus Assistant Director, Directorate of Enforcement & Another ..Respondent(s) J U D G M E N T Ganguly, J.
http://www.indiankanoon.org/doc/1916388/
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| CHA to follow CBEC guidelines - Know Your Customer guidlines |
Know Your Customs (KYC) norms for identification of clients by CHAs:
In the context of increasing number of offences involving various modus-operandi such as misuse of export promotion schemes, fraudulent availment of export incentives and duty evasion by bogus IEC holders etc., it has been decided by the Board to put in place the “Know Your Customer (KYC)” guidelines for CHAs so that they are not used intentionally or unintentionally by importers / exporters who indulge in fraudulent activities. Accordingly, Regulation 13 of CHALR, 2004, has been suitably amended to provide that certain obligations on the CHAs to verify the antecedent, correctness of Import Export Code (IEC) Number, identity of his client and the functioning of his client in the declared address by using reliable, independent, authentic documents, data or information. In this regard, a detailed guideline on the list of documents to be verified and obtained from the client/ customer is enclosed in the Annexure. It would also be obligatory for the client/ customer to furnish to the CHA, a photograph of himself/herself in the case of an individual and those of the authorised signatory in respect of other forms of organizations such as company/ trusts etc., and any two of the listed documents in the annexure.http://www.cbec.gov.in/customs/cs-circulars/cs-circulars10/circ09-2k10-cus.htm
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