AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 1496
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....omatic Rotating Screen MOD 930 - 8 (Nos.) Press Section with the following accessories:- (i) Self-cleaning system with impellor and grease lubricated bearings 8 Nos. and (ii) Rotating screen feeding control device - 8 Nos. (b) Automatic Rotating Screen MOD 1130 - 2 Nos. (Press Section) 3. Statements were recorded from Shri Suryaprakasha Rao, Assistant General Manager of M/s. RCL who submitted that these capital goods were shifted and installed in the premises of M/s. RGL in the month of September 2007 vide inter office note dated 2.9.2007. It was deposed that the imported machinery / capital goods were initially installed in the premises of M/s. RCL and later, since the Government allocated housing around the industrial area of the plant, and therefore to avoid pollution and environmental hazards, the matter was discussed with the management and after taking consent from the management, the capital goods were relocated to M/s. RGL situated close by to prevent future environmental hazards. The department was of the view that the capital goods have been installed at unapproved premises immediately after import and thus violated conditions of Notification No.55/2003-Cus. dated ....
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....e Assistant Commissioner has certified that the capital goods imported by M/s. RCL is installed in their premises. Though the department contends that the copy of this certificate was not furnished to the concerned authorities, it is seen from the said installation certificate that copy of the installation certificate was forwarded to DGFT as well as the Commissioner of Customs (Sea Cargo), Chennai. That this certificate issued in 2007 would establish that the capital goods were originally installed in the premises of M/s. RCL and not in the premises of M/s. RGL as contended by the department. He added that later in September 2007, it became necessary for the appellant to shift the capital goods to the premises of M/s. RGL to prevent environmental hazards. This was a decision taken by the management and with the consent of the management and vide Inter Office Note dated 2.9.2007, the capital goods were shifted and installed in the premises of M/s. RGL. 5. He added that even prior to the said date of shifting of the capital goods, the appellant had fulfilled the export obligation and DGFT had issued certificate dated 18.10.2007 acknowledging the fulfillment of export obligation as ....
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.... following case laws:- (a) Navjothi International Vs. Commissioner of Customs, Chennai - 2004 (177) ELT 875 (Tri. Chennai) (b) Indian Seamless Metal Tubes Ltd. Vs. Commissioner of Central Excise, Goa - 2017 (348) ELT 577 (c) Himalayan Co-op Milk Products Union Ltd. Vs. Commissioner of Central Excise - 2000 (122) ELT 327 (SC) (d) Indus Ind. Media Communication Pvt. Ltd. Vs. Commissioner - 2016 (337) ELT A92 (SC) (e) Oblum Electrical Industries Pvt. Ltd. Vs. Commissioner of Customs, Bombay - 1997 (94) ELT 449 (SC). (f) Mangalore Chemicals & Fertilizers - 1991 (55) ELT 437 (SC) 6. Against this, the ld. AR Shri K. Veerabhadra Reddy reiterated the findings in the impugned order. He pointed out that in the EPCG license, the premises for installing the capital goods is shown as the premises of M/s. RCL and the name of M/s. RGL is not shown in the license as supporting manufacturer. That therefore the argument of the appellant that M/s. RGL is the supporting manufacturer cannot be accepted. The ld.AR submitted that the documents evidencing the electricity consumption taken by M/s. RGL as well as the power consumption would show that the capital goods were installed in the prem....
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....t Commissioner of Central Excise was not produced and instead installation certificate issued by a Chartered Engineer was produced, which is not in conformity with the legal provisions. These two allegations form the edifice for the proceedings that have been initiated against the appellant seeking to deny the benefit of Notification No.55/2003-Cus. confirming the demand of differential duty of Rs. 2,86,80,223/- with interest thereof, ordering confiscation of the imported capital goods and imposition of penalties under section 114A and 112(a) of the Customs Act. From the facts on record, we do not find any allegation that the goods imported, though not installed at approved premises were otherwise not used for the intended purposes or for that matter were otherwise sold or disposed of in a clandestine manner. In this circumstance, what is therefore required to be adjudged is only whether the acts and omissions on which the proceedings have been initiated by the department or such that they constitute non-adherence or violation of mandatory or substantial procedural requirements, the breach of which would justify the action initiated against the appellants. 8.1 No doubt, Notificati....
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....se of capital goods, which is also endorsed by the said Assistant Commissioner is seen. 8.2 With these facts before us, only to vindicate the claim of the appellant, that they had not directly installed the imported capital goods after their import in the premises of M/s. RCL, but had been installed in the premises of M/s. RGL much later. This conclusion is fortified by a show cause notice dated 7.12.2007 issued by the Jt. DGFT, Hyderabad referring to an alert letter received from the Commissioner of Central Excise and Customs, Vishakapattinam vide letter dated 26.11.2007 informing them that they had found the imported machinery under the concerned EPCG license lying in the premises of M/s. RGL and that they had been seized for violating conditions of license and conditions of Notification No. 55/2003-Cus. In reply to the Jt. DGFT, vide letter dated 22.2.2008, the appellants have submitted that they had installed the machinery at M/s. RCL. However, when basic raw material is crushed / grinded, lot of dust particles in the form of air-borne dust appears and that these particles may spoil the tiles. Hence management decided to shift the machinery to M/s. RGL and that the process tak....
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.... in unjust enrichment at the cost of the exchequer. However, this technical violation is solely due to lack of knowledge of import export policy and procedures. Therefore, we may have to give benefit of doubt to the exporter. Till my adjudication order is finalised, I request that the licencee may be allowed to run their factory so that production and exports do not stop for a procedural lapse on their part in the absence of any revenue loss to the country. I have also asked them to appear before you and give statement so that you can also decide your case as per Central Excise Act. I would also like to inform you that the party has not come to our adverse notice in the past and therefore I would request you that the company may be allowed to run their production schedule uninterruptedly pending my adjudication and your investigation. I would also request you to refer para 2.42.1 of FTP for consequential action." 8.3 In the said order, Jt.DGFT has further held that when the export obligation has been fully met by using the imported capital goods and the purpose for which the license was granted has fully met, the lapse on the part of the appellant is only a technical one not lead....