TaxTMI 
TaxTMI 
1986 (7) TMI 273
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....ir factory and consequent improvement in its output for export, contrary to the declared intent as set forth in the aforesaid application for registration as well as the Bill of Entry dated 12-11-1979, (iii) apparent misdeclaration in the application as well as the Bill of Entry which would necessiate a reassessment under S. 17(4) of the Customs Act, 1962 (hereinafter, the Act) on merits without the benefit of the concessional assessment earlier granted on the faith of the aforesaid misrepresentation, (iv) liability of the machinery to confiscation in terms of S. 111 (m) and (o) and of the applicant to penalty under S. 112 of the Act, and requiring the appellant to show cause as to why the proviso to S. 28(1) may not be invoked, the assessment revised, the machinery confiscated and the penalty levied; (b) in a reply dated 7-7-1982 to the aforesaid notice to show cause (signed by a partner of the appellant and appearing at P. 51-55 of the Paper Book) while denying the allegations in toto and in particular the allegations of suppression of facts or misdeclaration, it was alleged that the import was in full accord and compliance with all legal requi....
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....internal page 3 of the Order in Original [at p. 22 to 28 of the Paper Book], the learned Collector of Customs and Central Excise recorded the submissions in the oral hearing to the effect that the appellants had sold all their assets and liabilities (including old machinery) to M/s Jacsons Veneers and Panels Pvt. Ltd. (hereinafter, the Company) in which some of the partners of the appellant were taken as directors; and although the licensing authorities refused to agree to the transfer, since the shipment had already taken place, the transfer by sale of the imported machinery was noted by them without any objection and approved by the Ernakulam District Industries Centre, Government of Kerala. It would also appear that it was admitted before him that a technical error was committed in stating that the machinery was meant for substantial expansion of an existing unit, since in actual fact, it was required for setting up a new unit for the company. However, since the main condition for the project import concession was fulfilled, the technical irregularity may be condoned. It was further submitted before him that the appellant partnership existed only on paper and not carrying on any....
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....proviso to S. 28 of the Act, and since the goods, which became liable to confiscation under S. 111 (m) and (o) of the Act, are not available, the appellant is liable to a penalty of Rs.50,000/- (P. 22 to 28 of the Paper Book); (h) the instant appeal was the sequel. 2. On 28-10-1985, when the appeal was taken up for hearing, Shri Gulati, the learned advocate, who appeared for the appellant was directed to file eight documents. It was noted on 1-1-1986, that in the place of the documents desired by the Tribunal, Shri Gulati filed a number of other documents including a "Supplementary Memorandum of appeal". Accordingly, Shri Gulati was told that if any of them were not already on record, he may have to file an application for their admission as additional evidence, if at all. Similarly, in regard to the "Supplementary Memorandum of appeal" as well, an application for amendment of the existing memorandum may have to be made (vide Tribunal's order dated 1-1-1986). On 14/15-1-1986 a miscellaneous application was filed for the admission of the new documents and also praying that "the appeal originally filed (reserving appellants rights to refer and rely on the facts and grounds....
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....jurisdiction, transferring a running business, not a dissolution of partnership, revision of assessment only by way of an appeal and not by the issue of a notice to show cause, verification of end-use not the business of customs etc. We do not propose to go into all these submissions seriatim regardless of their relevancy in the interests of brevity. 8. Suffice it to note, however, that - (a) in terms of the agreement dated 31-7-1979 (P. 31-36 of the Paper Book), the assets of the appellant agreed to be transferred (not merged with) to the company included not merely the import licences but leasehold rights in the premises of the appellant; (b) a transfer of such lease hold right or any other right in the land occupied by the factory of the appellant cannot take place without the execution of a registered document in terms of S.I 7 of the Registration Act on payment of the appropriate Stamp Duty, in a case where the value of the land exceeds Rs.100/- as, presumably, it would have; (c) on a query from us, no satisfactory reply as to whether any such document was duly executed and registered was forthcoming from the appellant. Nor was the document, if any, produced, altho....
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....nstalled in the premises of the appellant. The allegation to this effect in the notice to show cause was never controverted in the reply to the notice. From the amendment made in the certificate of registration as a S.S.I., unit the machinery would appear to have been installed in a place other than appellant's factory. This was also admitted during the course of the hearing. 9. In the facts and circumstances of the case, it would appear to us that - (a) concessional assessment of goods as meant for project is not a matter of right but subject to various conditions set forth not only in the relevant Heading No. 84.66 but the Project Imports (Registration of Contracts) Regulations, and the Import Licence as well; (b) the questions that arise in the appeal relate not merely to their contravention but to the contravention of the conditions of the Import Licence as well, the appellant's probable ineligibility or otherwise to the benefit of the concessional assessment, impropriety of the appellant's efforts to gain the benefit nevertheless, offence committed, if at all, in the context of the statements made on various occasions and the true facts and circumstances of the case a....
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...., the permission of the licensing authority was applied for prior to import. It was never accorded (P. 13-14 and 17 of the Paper Book). Once such permission was not accorded, there is no question, obviously, of the sponsoring authority permitting such transfer after the import had taken place on 12-11-1979. Nor is there any such permission on record. Similarly, there is no question of the licensing authority according permission after the import on 12-11-1979, even if it may be that the sponsoring authority recommends it on or about 20-11-1979 (P. 42 of the Paper Book). When, therefore, the Appellant informed the licensing authority of the transfer by the letter dated 4-2-1980 [P. 19 of the Paper Book - the date is not 4-2-1979 as given in the Index] long after the import on 12-11-1979, his reply dated 26-2-1980 (P. 20 of the Paper Book) that it was noted cannot be read as a permission, seeing that he was incompetent, at that stage, to have accorded any permission whatsoever. Paragraphs 384-387 deal with amendments of licence once granted in case of any discrepancy therein and have thus no relevance; (f) the conclusion, in the circumstances, inevitably, is that not only was the ....
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....y was meant for the substantial expansion of the Appellant's existing plant. The agreement dated 31-7-1979 for transfer was already executed by that date. Contrary to the intent expressed in the agreement, the Appellant could not have declared, as was done in the application, that the machinery was meant for the expansion of the appellant's existing plant. That an error was committed in such a declaration was even admitted in the course of the enquiry before the Collector and the admission never controverted, as already observed, (iii)  even so with the misdeclaration in the entry made under the Act. As an entry is defined in terms of S. 2(16) of the Act, (in so far material), to mean an entry made in the bill of entry, shipping bill or bill of export only. The misdeclaration in the application for registration for project import is not comprehended within the ambit of S. 111(m); (iv)  the confiscation of the goods under S. 111(O) of the Act was, however, another matter. The goods were partially exempted from duty subject to certain conditions incorporated in the Tariff heading 84.66 as well as in the Import Licence. Those conditions had to be fulfilled, since their....