The burden of proving applicability of exemption notification is on Customs or assessee ? When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity can be claimed by the assessee ?

Exemption notifications should be interpreted strictly. The burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue.

SUN EXPORT CORPORATION VERSUS COLLECTOR OF CUSTOMS, BOMBAY favouring assesse is set aside and all the decisions which took similar view as in Sun Export Case (supra) stands overruled.

COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS, SUPREME COURT, decided on 30.07.2018

Note: In the light of above SC order, The Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 will be effective from 21.09.2020. Rule 3 Preferential tariff claim -  puts the responsibility on importer to prove his consignment qualify as originating goods for preferential rate of duty under that agreement.

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In the case of Import self-assessment BoE, without passing a speaking order, whether it can be treated as an appealable order ? If assessee is not agreeable to the duty imposed by Customs, Can he proceed to file appeal against the order passed in the self assessment BoE?

Yes. Assessee should file appeal against the order passed in self assessed Bill of Entry before expiry of one year as per sec 27(1) of Customs Act. 

The endorsement made on the bill of entry is an order of assessment. It cannot be said that there is no order of assessment passed in such a case. When there is no Lis ( Lis meaning - A suit; an action; a controversy in court; a dispute ) speaking order is not required to be passed separately. 

As the order of self-assessment is nonetheless an assessment order passed under the Customs Act, obviously it would be appealable by any person aggrieved thereby. The expression ‘Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. 

ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA –IV, SUPREME COURT, decided on 18.09.19 

Note: One year limitation period for appeal is not applicable, if duty is paid under protest as per Sec 27(1) 2^nd proviso.  Refer my another post how to pay Customs duty under protest.

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An IEC holder lent IEC to other person. Customs Broker has proper KYC documents but not personally visited client place.The allegation against the exporter is overvaluation and Customs has revoked CB license and forfeited security deposit.There is no evidence brought in the impugned customs order that the CB had colluded with the exporter in overvaluing the goods. Whether customs Action is tenable ?

No.Customs action is not tenable and has to be set aside. 

Even though it looks strange but lending of Import Export Code ( IEC ) is not an offence as per Customs Act. 

In the given case, As per CBLR18, CB has collected all proper KYC documents but not visited client place. Visiting of Client place is not mandatory as per CBLR. 

CBLR18 Regulation 10 (n) - Obligations of Customs Broker says ;

“verify correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN),identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information" 

I suggest that Customs Broker should collect some of the latest utility bill copies like Telephone, Electricity, water tax, property tax etc in the name of IEC holder apart from regular KYC docs when they deal with any new clients to comply obligation as per regulation 10(n) cited above and to safeguard his side when some mis declaration issue crops up. This latest utility bill copies, will help CB to prove that the client was present in the said address on the relevant date mentioned in the utility bills.

At last, possession proper KYC documents saved CB from Customs action. For each and every mis declaration of importers/exporters, CB can not be held responsible. Hence order of revocation of CB licence is to be set aside.

SRI MANJUNATHA CARGO PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, BANGALORE, CESTAT, BANGALORE decided on 05.06.2020

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A Customs Broker gives advice to importers about minimum Customs acceptable valuation for the product. Importer involved in under valuation and hawala transfers. Is CB also party to the Crime?

Giving advice to importers that the Customs has fixed a bench mark of valuation "per weight basis" does not make him an accomplice in the act of undervaluation. The Commissioner should verify first that whether such a practice existed. And if it did, how were Customs authorities was allowing it. The statement of importer that they were paying clearing charges and agency charges to him does not implicate CB in the undervaluation, unless supported by corroborative evidence.

CROWN LIFTERS VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI - CESTAT MUMBAI -decided on 24-06-2015

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An importer has approached a freight forwarder to issue DO with relevant payment.But freight forwarder refused to issue DO saying that DO payment of another consignment of same importer is still due. Also argues that they are not coming under the purview of Customs Cargo Services Provider ( CCSP ) rules hence writ petition of importer is not maintainable. Comment?

 The " cause of action" of both consignments are different hence freight forwarder can't club both.

Also, even if they are not registered under Handling of Cargo and Customs Areas Regulations, freight forwarder are bound to follow provisions of the Customs Act including the rules, regulations, notifications and orders as per Regulation 5(5) because Regulation 2(1)(b) of the Handling of Cargo and Customs Areas Regulations, 2009 includes " any person". Hence writ petition is maintainable.

The freight forwarder is bound to issue DO for the consignment against which he has received his dues. It is needless to point out that it is always open to the freight forwarder to ventilate his grievances in accordance with law, for any claim that may be due in connection another consignment separately.

M/S. VANATHI EXPORTS PRIVATE LTD., VERSUS THE COMMISSIONER OF CUSTOMS (EXPORTS) , CHENNAI, THE JOINT COMMISSIONER OF CUSTOMS (PREVENTIVE) , M/S. E-SHIP GLOBAL LOGISTICS - MADRAS HIGH COURT decided on 21.08.2020

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Customs Authorities have rejected declared transaction value based on Directorate General of Valuation circular. Is Revenue right on their decision ?

Invoice price is not sacrosanct But before rejecting the invoice price the department has to give cogent reasons for such rejection. Assessing Authority has to examine each and every case on merit for deciding its validity. DGOV circular cannot override the provisions of Valuation Rules.

GURU RAJENDRA METALLOYS INDIA PVT LTD VERSUS CC CESTAT AHMEDABAD decided on 29.05.20

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