TaxTMI 
TaxTMI 
2016 (12) TMI 764
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.... Commissioner of Customs Chennai - IV before this Tribunal, stipulated disposal of the said appeal within eight weeks. 2. Proceedings were initiated against M/s Reliance Infrastructure Ltd for having availed concessional rate of import duty at 3% permitted by notification no. 103/09-Cus dated 11 September 2009 whose principle condition of furnishing certificate of installation was contravened and for diversion of the imported goods to an unauthorized site; besides, it was also alleged that the importer was devoid of capacity to discharge the prescribed export obligation as the imported 'crawler cranes' (five in number) were to be deployed at the site for execution of a power project which was not an eligible service. Customs duty of Rs. 1,40,55,554/- on an assessable value of Rs. 36,91,11,792/- was levied after foregoing duty to the extent of Rs. 7,67,93,199/-The said notification had been issued to enable clearance of goods in accordance with the Export Promotion Capital Goods scheme (EPCG) in the Foreign Trade Policy issued under the Foreign Trade (Development and Regulation) Act, 1992. Under the scheme, the importer was obliged to export goods and/or specified service....
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....December 2014 scheduling personal hearing on 12th December 2014, sought adjournment of 30 days pleading inconvenience. Without heeding this request of the importer, intimation of a further personal hearing, scheduled for 19^th December or 22^nd December 2014, was communicated by letter dated 12^th December 2014. It would appear that the importer did not avail of this opportunity too and the adjudicating authority, by ex parte order, denied the benefit of exemption notification on the cranes imported vide bills of entry no-405863 dated 13^th July 2011, 412429 dated 20^th July 2011, 4550618 dated 6th September 2011 and 4730319 dated 23^rd September 2011, confirmed demand of differential duty of Rs. 7,67,93,199/- and imposed penalty of Rs. 3,00,00,000/-. In addition, the allegedly diverted crane valued at Rs. 8,98,93,636/-, which had been seized at Nagpur, was confiscated under section 111(o) of Customs Act, 1962 with option to redeem it on payment of fine of Rs. 1,75,00,000/-. Aggrieved by the impugned order, appellant is before us. 5. Learned Senior Advocate appearing for the appellant asserted that the entire proceedings were vitiated by the inordinate ha....
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....llaneous petitions are closed.' implied transfer of the matter before a bench at another location. We find no incongruity in taking up this matter for disposal as the Hon'ble High Court, having been made aware of the non-availability of a division bench of the Tribunal at Chennai, had directed that transfer of the case may be considered to ensure its early conclusion. With the constitution of the present Bench, that option is no longer required to be exercised and to Revenue, as well as its representative, it should matter not a whit provided that the disposal is rendered by a competent bench. Holding the objection to be frivolous, we proceed with the appeal. 7. Learned Authorized Representative further contends that the exemption under the scheme is the entitlement of licence-holders subject to strict adherence to conditions of the exemption notification supra; that the failure to submit the certificate of installation of the imported equipment as well as the diversion of one of the 'crawler cranes' from the site declared to the licensing and customs authorities was sufficient to invoke the penal provisions against the importer. It was also pointed ou....
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....xclusion of the contents of the licence/authorization and the circulars issued by the licencing authority from time to time. Learned Senior Advocate for the appellant brought to our notice that the installation being a physical impossibility as 'crawler cranes' would cease to have utility if implanted at a fixed location, there is no rationale to expect fulfillment of condition of furnishing of the installation certificate which is to be insisted upon for plant and machinery. The circular issued by Director-General of Foreign Trade No.26/2000-Policy dated 17th March 2010, which rendered the dispensation of the requirement of installation by the importers of ships applicable to other movable capital goods too, is of particular relevance here. That the licencing authority did specifically authorize the import of 'crawler cranes' that, by functional requirements, are required to be mobile renders the condition of installation redundant. 10. We also find that the allegation of diversion of one of the crawler cranes' is premised upon condition no. 2 of paragraph 2 of the exemption notification. Learned Authorized Representative contends that the transfer referred ....
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....ished the bond committing to comply with the conditions of exemption, suffices for entitlement to concessional rate of duty. 12. It would appear that the permission to render services to special economic zones as due discharge of export obligation was granted by the inter-ministerial authority that included a representative of the customs administration. Consequently, it is not open to Revenue to contend, as the Learned Authorized Representative did, that such amendments can be disregarded for the purpose of Customs Act, 1962 as a unilateral decision of the licencing authority. The imported cranes may have been utilized for execution of project to establish a power plant which may not count as contribution towards discharge of export obligation but neither the scheme nor the customs notification bars the usage of capital goods manufacture of goods or rendering of services for domestic consumption while pursuing the target of export obligation. It was, therefore, presumptuous on the part of the adjudicating Commissioner to come to the conclusion that the appellant had would fail to fulfill its export obligation or to allege that they had no intent to do so. The appellant operates....
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....10% duty EPCG licence. Thus, on conversion of licence there was no obligation to import capital goods worth Rs. 20 crores and consequently there was no obligation to comply with condition No. 5 of Notification No. 29/97. 18) It is not the case of the customs authorities that the decision of the licensing authorities to convert the 'zero duty EPCG licence' into '10% duty EPCG licence' was not a bona fide decision or the said decision was vitiated by mala fides. Since the policy empowers the DGFT to exempt any person from any provision of Foreign Trade Policy or any procedure, in the facts of the present case, bona fide decision was taken by the EPCG committee/licensing authority to convert the licence so as to relieve the petitioner from complying with condition No. 5 of the Notification No. 29/97. Therefore, the Larger Bench of the CESTAT was not justified in holding that the licensing authorities do not have the power to amend the licence retrospectively especially when the Foreign Trade Policy and the Rules framed thereunder empower the DGFT to do the needful in deserving cases. .... 21) Strong reliance was placed by Mr. Jetly on the decision of the Punjab & Ha....