2019 (5) TMI 613

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....007. In the impugned order-in-original CAO no. 11/2011/CAC/CC/SS dated 25th February 2011 of Commissioner of Customs (EP), Mumbai Zone - I, it was held that the 'capital goods', imported under 'export promotion capital goods scheme' (EPCG) of the Foreign Trade Policy, viz. 'screening plant', was not eligible for exemption under notification no. 97/2004-Cus dated 17th September 2004 as those were not installed at the address indicated in the said licence but at the premises of M/s Essel Mining and Industries Ltd, Orissa; besides the differential duty liability of Rs. 22,71,520/-, the goods were confiscated, albeit permitted to be redeemed on payment of fine of Rs. 15,00,000/-. In addition, penalty of Rs. 22,71,520/- was imposed on M/s Prakas....

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....ainable and the same is set aside. Hence, redemption fine is also not imposable.' He further claims that the decision of Tribunal in Oswal Paper & Allied Industries v. Commissioner of Customs, Amritsar [2006 (206) ELT 991 (Tri.-Del.)] is also on the same lines. 3. Learned Authorised Representative reiterates that the failure to install the equipment at the premises for which licence was issued has rendered the appellant liable to detrimental consequences. He also pointed out that there is a clear finding in the impugned order that the said licence was declared as inoperative by the licensing authority and that had not been challenged. He contends that the decision of the Tribunal in re Sushant Minerals (P) Ltd and the facts and circumstan....

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....emption notification as it may be appropriately regularized by the licensing authority. However, the continued utilization, without making any reference to the licensing authority, constitutes breach of the eligibility at the threshold that was not regularized. The precedential value of the decision of the Tribunal is not derogated from. It is the facts and circumstances that should apply and we find no variance in the facts and circumstances therein and the present dispute. It is also on record that the licences were rendered inoperative by the licensing authority. Therefore, the eligibility for the exemption notification ceased to exist at the threshold. In these circumstances, the demand of differential duty will necessarily have to sust....