TaxTMI 
TaxTMI 
2006 (9) TMI 374
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....They imported capital goods worth Rs. 36,12,775/- against the EPCG Licence under special scheme of 0% duty made applicable for Garments Sector and other Sector under provisions to condition No. 5 of Notification No. 29/97-Cus., dated 1-4-1997 as amended. The total CIF value of the licence is Rs. 1,28,73,260/-. As per Para 6.14 of the Hands Book Procedure as amended up to 31-3-1999 and the conditions of Customs Notification No. 29/97-Cus., dated 1-4-1997, the utilization of capital goods allowed is less than 90% of the thresh hold level of Rs. 1.00 crore (Rupees One crore), the importer is bound to pay entire duty amount saved on such imports and interest at the rate of 24% p.a. from the date of clearance of the said capital goods till the d....
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....port as on the date and the licence was valued up to 27-7-04. Further the importer has failed to intimate the Assistant Commissioner/Deputy Commissioner of Customs from time to time as envisaged in condition No. 3 of the notification about the extend of export obligation made by them in each block of particular period and thereby the importer has suppressed the facts with mala fide intention. In view of the above irregularities, the Show Cause Notices were issued to the appellants. The Show Cause Notices proposed the following :- (a) demand of duty foregone to the extent of Rs. 12,96,480/- along with appropriate interest till the date of payment of duty in terms of Condition Nos. 4 & 5 of the Notification No. 29/97. (b) Confiscation of....
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....ation cannot oust the provisions of Section 28 and the issue of Show Cause Notice for recovery of duty after a lapse of 3 years. This fact was known to the Department and there was no fraud involved in hiding the export obligation. The department circulars also clearly mentioned that the notices should be issued within time to over come the limitation. (ii) Reliance is placed on the decision of the Supreme Court in Pushpam Pharmaceuticals Co. v. CCE [1995 (78) E.L.T. 401 (S.C.) = 1997 (71) ECR 329 (S. C)]. (iii) The question of imposing penalty would not arise as the goods are at the same place where it was installed and the goods were not removed from the premises stated in the import licence. Therefore the question of imposing penalty....
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....td. v. CC, reported in 2001 (137) E.L.T. 697 (T), it was held that in the absence of wilful intent on part of the appellant, not to fulfil export obligation would not entail confiscation of goods and imposition of penalty under the Act. (viii) Once goods are confiscated under Section 111(o) of the Customs Act, 1962, then the recovery of duty should be made under Section 28 of the Customs Act. As the provisions of Section 28 is not invoked the order is bad in law and deserves to be set aside on this ground also. Reliance is placed on the decision of Tribunal in the case of Niraj Petro Chemicals Ltd. v. CC, reported in 2004 (167) E.L.T. 321 (T). The learned Advocate at the time of personal hearing relied on the ratio of the following decis....
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....d or erroneously refunded. Further he relied on the decision of the Tribunal in the case of Bombay Hospital Trust v. C.C, Mumbai 2005 TIOL-996-CESTAT-Mum], wherein it is held that when a post-importation condition in an exemption notification is not fulfilled, the Department has no power to recover the escaped duty in terms of Section 12 of the Customs Act, 1962. Paragraph 12 of the Apex Court decision in Mediwell case [1997 (89) E.L.T. 425 (S.C.)] also provides an authority for such recovery. 6. We have gone through the records of case carefully. The appellants imported the equipments under the EPCG scheme availing benefit of Customs Notification No. 27/97-Cus., dated 1-4-1997 as amended. On the import of capital goods under the above sc....
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....igation, concession would be available proportionately. This is clearly outlined in condition 3 of the notification. Condition No. 5 required the importer to import capital goods up to the thresh hold level of Rs. 1.00 crore. This condition also had not been fulfilled by the present appellant. On this count also, the importer is liable to pay the Customs duty foregone together with interest at the rate of 24%. The learned Advocate vehemently argued that the Customs authorities should have issued the demand in time but have delayed and therefore demand of duty is timebarred. The adjudicating authority have dealt with the issue of time-bar in Paragraphs 47, 48 & 49 of the Order-in-Original. We have already pointed out that the notification ca....