2024 (3) TMI 365 - AT - Customs

100% EOU unit wins appeal to switch to EPCG scheme, penalty waived for customs department delays

CESTAT HC allowed appeal of 100% EOU unit seeking to switch to EPCG scheme. Revenue demanded differential duty and imposed penalty for delay in obtaining ... 100% EOU - Debonding - Demand of differential duty - Penalty - EXIM policy - switched over from 100% EOU Scheme to the EPCG Scheme - delay in getting permission from the Development Commissioner and without obtaining a “No Dues Certificate” - contravention of Notification No. 23/2003-CE - Export of Hydrogen Peroxide - classifiable under Chapter Sub Heading 28.47 - HELD THAT:- We find that appellant was granted permission to exit from 100% EOU status to EPCG Scheme by in-principle permission to exit on 20.11.2003. Thereafter, it seems the Excise/Customs Department did not issued the necessary No Objection Certificate within the reasonable time of 2 to 3 months. The validity of the period for in-principle permission was extended upto 18.11.2004 by the Development Commissioner. Jurisdictional Superintendent issued the demand directing payment of customs and excise duty after assessing, only on 25.03.2005, in pursuant thereto appellant have within a weeks time deposited the necessary and the requisite duty/taxes on 29.03.2005 and 30.03.2005 under intimation of Revenue, and also furnished the details of duty payment and execution of bond to the Assistant Commissioner, Nellore Division. In the meanwhile, Development Commissioner had issued no due certificate on 04.11.2004 for conversion of existing EOU Scheme into EPCG Scheme. Thereafter, after delay of several months, ‘no dues’ is issued by the Jurisdictional Commissioner on 03.01.2006. All throughout the period from April 2005 to 3, January 2006, the appellant was pursuing the Excise Department to issue necessary no objection/no due certificate which was issued after much delay on 03.01.2006. Thereafter, the appellant was allowed exit finally from the 100% EOU scheme to switch over to EPCG scheme, from the date of discharge of its duty liability i.e. 30.03.2005 in terms of para 6.16(d) of FTP read with para 5.4 of HBP 2004-09. We find that DGFT who are the competent authority have allowed the de-bounding from 100% EOU to switch over to EPCG Scheme with effect from 30.03.2005 and admittedly had discharged all the dues as assessed by the excise/customs department, being pre-condition for de-bonding. We further find that the delay occurred in the final de-bonding order to be issued by DGFT, due to delay wholly attributable to Customs/Excise Department, who have taken a time of almost one year or 11 months in issuing the no dues certificate. We hold that the appellant have rightly paid tax/duty on the goods cleared with effect from 01.04.2005 as a DTA unit under EPCG Scheme. Accordingly, we allow the appeal and set aside the impugned order. Appellant is entitled to consequential benefits as per law. Issues Involved:1. Demand of Customs and Central Excise Duty.2. Appropriation of Central Excise Duty paid.3. Imposition of Penalty under Rule 25 of the Central Excise Rules, 2002.4. Validity of the transition from 100% EOU to EPCG Scheme.5. Delay in issuance of No Objection Certificate (NOC) and its implications.Issue 1: Demand of Customs and Central Excise DutyThe Commissioner of Customs, Guntur demanded Customs and Central Excise duty of Rs. 6,12,93,229/- from the Appellants for the period from 01.04.2005 to 11.01.2006, alleging that the Appellants, being a 100% EOU, made clearances into the DTA without paying the aggregate of Customs Duties as required under Notification No. 23/2003-CE dated 31.03.2003 read with proviso to Section 3(1)(b) of the Central Excise Act, 1944.Issue 2: Appropriation of Central Excise Duty PaidThe Commissioner appropriated a sum of Rs. 2,84,72,590/- paid by the Appellants during the period 01.04.2005 to 11.04.2006 towards the duty demand, requiring the Appellants to pay the differential amount of Rs. 3,28,20,709/-.Issue 3: Imposition of PenaltyA penalty of Rs. 1 Crore was imposed on the Appellants under Rule 25 of the Central Excise Rules, 2002.Issue 4: Validity of Transition from 100% EOU to EPCG SchemeThe Appellants contended that they ceased to be a 100% EOU w.e.f. 30.03.2005 and thus were liable to pay only Central Excise Duty. They argued that the Development Commissioner had granted 'in-principle' permission to exit from the EOU Scheme on 20.11.2003, which was extended up to 18.11.2004. The Appellants paid the assessed duty and furnished necessary Bonds and Bank Guarantees by 30.03.2005. The Development Commissioner issued a 'No Dues Certificate' on 04.11.2004 and confirmed the exit from the EOU Scheme effective 30.03.2005.Issue 5: Delay in Issuance of No Objection Certificate (NOC)The Appellants argued that the delay in issuing the final de-bonding order by the jurisdictional Assistant Commissioner was attributable to the Excise/Customs Department. The necessary NOC was only issued on 03.01.2006, despite the Appellants' compliance with all formalities by 30.03.2005. They contended that the department cannot take advantage of the delay it caused and raise a duty demand.Judgment:The Tribunal found that the delay in issuing the final de-bonding order was attributable to the Customs/Excise Department, which took almost one year to issue the no dues certificate. The Tribunal held that the Appellants had rightly paid tax/duty on the goods cleared from 01.04.2005 as a DTA unit under the EPCG Scheme. Consequently, the appeal was allowed, and the impugned order was set aside. The Appellants were entitled to consequential benefits as per law.(Order Pronounced in open court on 06.03.2024)