TaxTMI 
TaxTMI 
2013 (8) TMI 689
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....ncluding refrigerated containers insulated containers with the annual capacity of 6000 nos. subject to the fulfilment of following conditions :- (i) the entire production shall be exported for a period of 10 years or less from the date of commencing commercial production as may be specified by the Government; (ii) a legal undertaking in this regard will be executed by the undertaking; and (iii) the value addition shall be minimum 36%. 3.1 The unit accordingly established the 100% EOU and executed legal agreement on 7-7-1995 with the Dy. Development Commissioner, SEEPZ, Mumbai. As per the said legal agreement the Unit was required to export its entire production for a period of 5 years. On 18-8-1995, licence for the private bonded warehouse and permission to carry out manufacture in bond under Sections 58 and 65 of the said Customs Act respectively were granted to the respondent. Import of capital goods took place between March, 96 to August, 1997 without payment of duty in terms of Notifications No. 13/81-Cus., dated 9-2-1981. The unit also procured the indigenous capital goods involving the Central Excise duty of Rs. 12,51,345/- ....
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.... of Rs. 1,00,000/- (Rupees one lakh only) in terms of Rule 173Q of the Central Excise Rules, 1944 read with Rule 25 of the Central Excise Rules, 2002; 4. In the event M/s. Inditalia Refcon Ltd., failed to re-export the goods from the warehouse within three months from the receipt of this order, demand of customs duty amounting to Rs. 2,95,84,801/- leviable on the imported capital goods and demand of Central Excise duty amounting to Rs. 12,51,345/-, leviable on the goods indigenously procured shall stand confirmed against M/s. Inditalia Refcon Ltd., along with the interest as applicable under the law; and 5. I direct the jurisdictional Asst. Commissioner to lift the detention of the goods and to allow the re-export of goods in terms of Board's Circular No. 30/99-Cus., dated 25-5-1999 subject to the compliance of the procedures and payment of dues under Customs and Central Excise Act. This permission is without prejudice to provisions of all other laws for the time being in force." 3.4 Aggrieved, Revenue filed this appeal. The unit challenged the imposition of penalty under Section 112 of Customs Act, 1962 and Rule 173Q of erstwhile Central Excise Rules, 1944. 4. The contention o....
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.... in such a situation. The contention is that the learned Commissioner has erred in not invoking the mandatory penalty under Section 114A of the Customs Act, 1962. The contention is that mens rea is not required to be proved for the imposition of penalty under the provisions of the Customs Act. The contention is that the Commissioner has erred in not ordering the confiscation of capital goods and goods procured from DTA under the provisions of Section 111(o) of the Customs Act, 1962 in spite of finding that the goods are liable for confiscation. The contention is that the Commissioner has erred in directing the jurisdictional Asst. Commissioner to lift the detention of the goods and to allow re-export of goods in terms of Board's Circular No. 30/99-Cus., dated 25-5-1999. In support of their contention they placed reliance in the case of Cipla Ltd. in Appeal Nos. C/1304 to 1306/12 passed by this Tribunal vide Order No. A/82-84/13/SMB/C-IV, dated 7-1-2013. 5. The unit has filed appeal only on the ground the penalty imposed under Section 112 of Customs Act, 1962 and penalty imposed under Rule 173Q of Central Excise Rules, 1944. The contention of the Unit is that the project could not ....
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.... Before permitting re-export in each such case, however, it will be necessary to extend the period of warehousing under Section 61 of the Customs Act to enable the importer to export the goods within the permitted period of warehousing. 3. Chief Commissioners are, therefore, requested to consider/decide such requests from the importers keeping in view the aforesaid guidelines of the Board and also taking into consideration all the relevant rules/regulations for export. The contention is that the Board's Circular No. 7/2005-Cus., dated 14-2-2005 relied upon by the Revenue would not apply to the case on hand since goods have been exported and in any case, the said Circular is issued considering Notification 52/2003-Cus. and 22/2003-C.E. both dated 31-3-2003. The contention is that para 6.15 of Foreign Trade Policy, permits EOU to export the goods imported duty free, if such EOU is unable to utilize goods. The contention is that even there was provision in notification pertaining to EOU like 53/97-Cus., No. 52/2003-Cus. & 22/2003-C.E. permitting re-export of goods. They placed reliance on following decisions :- (a) Vista Pharmaceuticals - 2007 (209) E.L.T. 3....
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....if they are likely to deteriorate, the aforesaid period of one year may be reduced by the Commissioner of Customs to such shorter period as he may deem fit : Provided further that when the licence for any private warehouse is cancelled, the owner of any goods warehoused therein shall, within seven days from the date on which notice of such cancellation is given or within such extended period as the proper officer may allow, remove the goods from such warehouse to another warehouse or clear them for home consumption or exportation. (b) Sub-section (1) of Section 61 of Customs Act, 1962, in vogue w.e.f. 11-5-2002 : 61. Period for which goods may remain warehoused. - (1) any warehoused goods may be left in the warehouse in which they are deposited or in any warehouse to which they may be removed :- (a) in the case of capital goods intended for use in any hundred per cent, export oriented undertaking, till the expiry of five years; (aa) in the case of goods other than capital goods intended for use in any hundred per cent, export-oriented undertaking. Till the expiry of three years; and (b) in the case of any other goods, till the expiry of one year,....
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....bed form; (b) the export duty, penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for exportation has been made by the proper officer. (2) Notwithstanding anything contained in sub-section (1), if the Central Government is of opinion that warehoused goods of any specified description are likely to be smuggled back into India, it may, by notification in the Official Gazette, direct that such goods shall not be exported to any place outside India without payment, of duty or may be allowed to be so exported subject to such restrictions and conditions as may be specified in the notification. 6.3 It is not the department's case that the above conditions are not fulfilled or the provisions are contravened by the Unit. And since the goods have been allowed for export as per the procedure for clearance of the warehoused goods, the goods are not liable for confiscation as per Section 111(o) which is reproduced hereunder :- Section 111(o) - any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under t....