TaxTMI 
TaxTMI 
2006 (9) TMI 374
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....ated 28-7-1998 issued by the JDGFT, Bangalore. 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....
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.... 2. 3rd and 4th year 35% 3. 5th and 6th year 50% The importer had not made any export 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 til....
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....igation of the first block which entered on 28-7-2000. The Show Cause Notice for recovery was issued after a gap of three years and nine months. The notification 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 go....
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....her company. (vii) If the export obligation is not fulfilled that there was no wilful intent on the part of the appellant not to fulfil the export obligation. In the case of Philips India Ltd. 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 ....
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....long with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to sub­section (2) of Section 125 of the Customs Act, 1962 and would not attract Section 28(1) ibid which covers the cases of duty not levied 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. ....
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.... condition 3 requires the importer within three months from the expiry of the said block to pay duties of customs of an equal amount equal to that portion of duty leviable on the goods imported but for the exemption contained in the notification. In case of partial export obligation, 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 auth....