TaxTMI 
TaxTMI 
2010 (5) TMI 860
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....e filed by the appellant claiming duty-free clearance of the goods under Notification No. 29/97-Cus dated 1.4.1997. Under the EPCG Scheme, one option for the importer was to pay CVD @ 10% and claim full exemption from payment of BCD, which is referred to as 0% duty EPCG Scheme. The other option was to pay BCD @ 10% and claim full exemption from payment of CVD, which is referred to as 10% dutyEPCG Scheme. The appellant opted for the first Scheme. A comparison of the two Schemes is given below: 0% duty 10% duty Rate of duty - BCD Nil 10% Rate of Duty - CVD 10% Nil Export obligation 6 times value of Capital Goods imported 4 times value of Capital Goods imported Expo....
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....ded period (one year) allowed by the licensing authority. In the absence of further extension of the validity period of the licence by the DGFT, the Customs authorities took the view that the appellant committed breach of the above condition (No. 5) of Notification No. 29/97-Cus thereby disentitling itself to the benefit of the notification in respect of the capital goods imported by them. In view of this, show-cause notices were issued to the appellant for recovery of the Basic Customs Duty and CVD forgone under Notification No. 29/97-Cus. These show-cause notices also sought to recover Special Addition Duty from the appellant in respect of the capital goods imported by them (in the relevant Bills of Entry, the appellant had claimed exempt....
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....r dated 8.9.2003 of the DGFT. 5. The orders impugned in the present appeals were passed by the learned Commissioners of Customs, in pursuance of the said remand orders of the Tribunal. The learned Commissioners took the same stand, as in the earlier round of litigation, and consequently a demand of duty on the goods in question came to be confirmed against the assessee and redemption fines and penalties came to be imposed on them. 6. The Tribunal, after hearing both sides, noted that the conversion from 0 % duty EPCG Scheme to 10% duty EPCG Scheme ordered by the licensing authority had been given effect to by the Assistant Commissioner of Customs (Export Promotion), New Customs House, Mumbai, who, in a letter dated 21.10.2005, informe....
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....have arisen before us for a decision in the light of the view taken by the Larger Bench. 10. The learned Counsel for the appellant submits that the impugned orders are liable to be set aside inasmuch it has been held by the Larger Bench that the Customs authorities are not competent to challenge decision of the DGFT for amendment of the licence. In other words, the amendment of the licence, as ordered by the DGFT, could only be carried into effect, in which event the benefit of Notification No. 28/97-Cus would be admissible to the appellant. On the other hand, it is submitted by the learned SDR that, in view of the decision taken by the Larger Bench on the first issue, the DGFT's order of conversion from '0' % duty EPCG Scheme' to '10% E....
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....stry and, accordingly, the importer of capital goods under the said scheme could claim the benefit by fulfilling the requirements of Notification No. 29/97-Cus as amended by Notification No. 129/99-Cus. The learned Counsel has also argued that this amendment has retrospective effect. He has also argued, bearing in mind that all the imports in question were made before 4.11.1999. 13. The learned SDR has opposed this argument. According to him, the amendment was only prospective in operation. We note that the above alternative plea, which was not raised by the appellant in the previous round of litigation, has been taken in the appeal memorandum in the present round. 14. We further note that, in the present appeals, the assessee has als....
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....ct of the capital goods imported by them in the year 1998 remains to be '0' % duty EPCG Scheme. In this Scheme, they imported capital goods worth Rs. 12.67 crores only within a period of two years prescribed under Condition 5 of Notification. No. 29/97-Cus. For the benefit of that notification, they had to import capital goods worth not less than Rs. 20 crores. It was in this scenario that the lower authorities denied the benefit of the notification to the appellant. The alternative plea now made by the appellant was not made before the lower authorities. We are of the view that the appellant should get a reasonable opportunity of raising this plea before the lower authority and of being heard by that authority. It is also found that the ca....