2005 (5) TMI 522 - AT - Customs

Confiscation upheld under EPCG Scheme for non-fulfillment of export obligations

ACCORD COTSYN LTD. Versus COMMISSIONER OF CUSTOMS, NEW DELHI

ACCORD COTSYN LTD. Versus COMMISSIONER OF CUSTOMS, NEW DELHI - 2006 (193) E.L.T. 123 (Tri. - Del.) Issues:1. Confiscation of imported second-hand machinery under EPCG Scheme for non-fulfillment of export obligation.2. Reduction of duty demand based on encashed bank guarantee.3. Claim for MODVAT credit towards duty demand.4. Classification of imported machinery as movable property subject to confiscation.5. Dispute over the quantum of redemption fine and penalty imposition.Analysis:1. The case involved the confiscation of second-hand machinery imported under the EPCG Scheme due to the appellant's failure to meet the export obligation. The Commissioner had confiscated the machinery with an option for redemption by paying a fine of Rs. 25 lakhs, in addition to confirming a duty demand of Rs. 49,65,561 and imposing a penalty of Rs. 2 lakhs on the appellants.2. The appellant argued for a reduction in the duty demand by the amount of Rs. 29 lakhs, which was encashed from their bank guarantee by the Department before the impugned order. The Tribunal agreed that the duty liability should be adjusted by the encashed amount and upheld the Commissioner's direction for the balance payment by the appellants.3. The appellant sought to avail MODVAT credit towards the duty demand for additional Customs duty levied, claiming that they had requested the Commissioner to adjust the MODVAT credit but received no response. The Tribunal ruled that the appellants could claim MODVAT credit as per the law after paying the duty, provided they were eligible for it.4. There was a dispute regarding the classification of the imported machinery as movable property subject to confiscation under the Customs Act. The Tribunal rejected the argument that the machinery, once installed in the factory, became immovable property, emphasizing that the machines were not embedded to the earth and could be considered movable goods liable for confiscation.5. Regarding the quantum of redemption fine and penalty imposition, the Tribunal found the redemption fine of Rs. 25 lakhs to be excessive and reduced it to Rs. 10 lakhs. The penalty of Rs. 2 lakhs imposed on the appellants for non-fulfillment of conditions for duty exemption was deemed reasonable and upheld. The Tribunal disposed of the appeal with the modified terms, affirming the duty liability, adjustment of encashed amount, and imposition of penalty.