2013 (8) TMI 616 - AT - Customs

Tribunal waives pre-deposit due to financial constraints, accepts documents as genuine

M/s. Creative Wares Ltd. Versus Commr. of Customs- Kolkata

The Tribunal allowed the appeal, finding that the appellant had fulfilled the export obligation despite not submitting original documents due to the ... Export obligation - assessee did not produce the evidence of fulfillment of export obligation from the licensing authority within 30 days of expiry of period allowed for fulfillment of export obligation - Held that:- The appellant has fulfilled the export obligation - It was noticed from the order of Jt. DGFT that he had accepted the documents produced by the assessee and concluded that stipulated export obligation had been fulfilled by the applicant within the prescribed time and the license has been utilized properly issued duty free - the stipulated export obligation had been fulfilled within the prescribed time and the license was utilized properly for which it was issued duty free - only fault at the end of the party was that they had failed in submitting any original documents but that had happened due to the company had been declared as sick unit and now under BIFR – decided in favour of assessee. Issues:Application seeking waiver of pre-deposit due to non-fulfillment of export obligation; Appeal against penalty for non-submission of export obligation documents.Analysis:The case involved an application for waiver of pre-deposit amounting to Rs.1,35,338 along with interest due to the appellant's failure to fulfill export obligations. The appellant, a licensee, was issued an advance license for duty-free import with an obligation to export goods worth Rs.1,80,000 within 12 months. However, the appellant failed to provide evidence of fulfilling the export obligation within the specified time frame. Subsequently, a penalty was imposed by the Joint Director General of Foreign Trade, leading to the initiation of proceedings against the appellant to pay the amount along with interest. The Assistant Commissioner and Commissioner (Appeal) confirmed the amount, prompting the appellant to file an appeal against the decision.The appellant's advocate argued that the ex parte order by the Commissioner (Appeal) was unjust as the notice of personal hearing was returned, suggesting alternative modes of service should have been attempted. Additionally, the advocate presented an order from the DGFT acknowledging the fulfillment of export obligations by the appellant. It was highlighted that the appellant's company was referred to the BIFR and taken over by a financial corporation, emphasizing the hardship pre-deposit would cause. On the other hand, the Revenue's representative maintained that the export obligation was not met by the appellant.After considering both sides and reviewing the case records, the Tribunal found that the appeal could be disposed of without the need for pre-deposit. Referring to the order of the DGFT, which accepted the documents submitted by the appellant as genuine and confirmed the fulfillment of export obligations, the Tribunal concluded that the stipulated export obligation had been met within the prescribed time. The Tribunal noted that although original documents were not submitted, this was attributed to the appellant's company being declared a sick unit and under the purview of the BIFR. Consequently, the Tribunal allowed the appeal, observing that the export obligation had been fulfilled by the appellant, and the case was disposed of accordingly.