TaxTMI 
TaxTMI 
2017 (12) TMI 980
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....y Pvt. Ltd. were used for personal purpose of the Director in violation of the EPCG scheme for which benefit of exemption from payment of duty availed at the time of import was wrong and recoverable. This is apparent from page 514 depicting para 18.1 of the impugned order. 4. The adjudicating authority did not find any evidence as to personal use of its Director to hold violation of the EPCG scheme in the entire course of his adjudication. On the basis of irrelevant materials adjudication was done to deny the duty exemption allowed earlier and to recover the same. According to Revenue there was no maintenance of log book. Vehicles were not used for ferrying foreign tourist but were used by Directors. The vehicles were not found in the premises of the hotel. Statements of the security personnel did not provide a basis to hold that the vehicles were used for foreign tourists or similar such purpose. 5. Inviting attention to the EPCG licence it is the submission on behalf of the appellant that a copy thereof available at page No. 4 of the paperbook, no way requires any log book to be maintained except requiring the purpose of the import to avail duty exemption and also fulfillin....
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....ansport authority was to be produced to the Customs authorities. The appellant fulfilled all the three conditions of the para 2 of the notification without any violation thereof. 8. Allegation of Customs having been confined to the issue framed in the order-in-original as aforesaid, there was no contravention of notification condition by appellant for which learned authority could not find any violation of Policy requirements well as the Notification requirement. Accordingly, the authority, proceeded to examine the only issue as to whether there was a personal use of the vehicle or not. He has not brought out any cogent and credible evidence and reason showing that the vehicles were used by Directors and not at all used for foreign tourists/visitors. 9. Appellant maintained proper books of accounts to establish that foreign exchange earned from the hotel activity including travel cost from foreign tourist service towards provision of service to them. There is no mistake pointed out by Revenue to show maintenance of accounts was not proper except raising objection on the log book. Foreign exchange earning was not at all questioned by Customs. According to appellant, neither vi....
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....ner : (a) The car can be used for providing transportation facilities to foreign guests on complementary basis. (b) The car can be used for transportation facility to the foreign guests on payment basis in foreign exchange. (c) The cars can be used as marketing tool in the lean season for interacting and building relating with international tour operators for enhancement of business. (d) The cars in question also get used for upgrading the status and building the brand of the hotel. (e) The car can be used otherwise in providing Hotel Service by the Hotel in any manner. In this case, the cars have been used by HEL for providing hotel services to foreign guest by using the car by their Directors. It is not the case of the Revenue that these cars were not used by Directors who are ultimately managing the hotel. Therefore, in this case the cars have been indirectly used by HEL in providing hotel service to foreign guest. It is not the case of the department that the cars have not been put to such indirect or lateral use to discharge for export obligation. The customs notification does not provide for such indirect or lateral use of....
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....in that case department cannot take contrary view and can interpret the notification in its own way. Neither the definition of capital goods nor the definition of export obligation by itself or when read in conjunction with the proviso relating to Managed Hotels suggests that the Government of India intended any divergence in foreign trade policy and the customs notification in regard to the matter in issue. Therefore, the policy and the customs notification allow import of cars by hotels for use in providing hotel services." 13. On the aforementioned premises, appellant's submission is that the foreign exchange earning was fulfilled as required by the decision of the Hon'ble High Court of Delhi cited (supra) and also fulfilled user condition as held by the Tribunal. Present case is not a case of any violation of any condition of import licence or condition of notification, as well as EPCG licence for which Revenue's allegation fails to stand and adjudication is baseless. 14. Per contra, Revenue's submission is that the vehicles imported by the appellant were not used for the purpose that was intended to be used which has violated the condition of the Policy a....
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....iterion as well as earning of foreign exchange, it was the burden of the appellant to establish that it has fulfilled the condition of the notification, policy as well as the EPCG licence. That not being fulfilled by the appellant, strict construction of the exemption notification required to discharge its burden of proof to get exemption. Appellant failing to prove its case is not entitled to any benefit of the Customs Notification as well as Foreign Trade Policy. Accordingly, adjudication order sustains. Therefore Tribunal should look into the entire gamut of the show cause notice to appreciate the allegation therein to arrive at a decision. 17. Heard both sides and perused the records. 18. While grievance of Revenue is that the car was not found in the premises of the hotel and no foreign tourists were found therein, but that was used for the personal purpose of the appellant hotel, there cannot be claim of notification benefit, pleading of the appellant was that when it maintained several records to establish the import of the car, registration thereof by the Registering Authority for tourism purpose of the foreign tourists, there was no enquiry conducted to show that car....