2020 (6) TMI 424

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....ncessional rate of customs duty was availed and thereby customs duty amounting to Rs. 51,86,378/- on import of the Mercedes SL 500 car was foregone on the basis of concessional rate of duty. The appellant have availed EPCG licence from the Directorate General of Foreign Trade, New Delhi under the category of the export of service under "Tour and Travels services" as per prevailing the import - export policy. As per condition of the EPCG licence the exporter need to earn foreign exchange 8 times of the customs duty foregone on import of the capital goods namely car in the present case within a period of 8 years. The department started investigations in the matter on 24 September 2008 suspecting that the goods namely car imported under EPCG licence is not being put to its legitimate use for which it was allowed under the EPCG licence violating the following conditions :- (a) Imported car was to be installed at M/s NTSPL, F-53, Bhagat Singh Market, New Delhi and M/s NTSPL did not furnish installation certificate ; (b) The said imported car was not used for earning freely convertible foreign currency from services rendered to the tourists; (c) The actual user....

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.... Section 28 and presently sub-section (4) of Section 28 of the Customs Act, 1962 readwith conditions of the exemption Notification No. 97/2004-Cus. dated 17/09/2004 and also in terms of the Bond executed at the time of import, a duty of Rs. 51,86,378/- (Rupees Fifty One Lakh Eighty Six Thousand Three Hundred and Seventy Eight only) against M/s Nijhawan Travel Service Pvt. Ltd., F-53, Bhagat Singh Market, New Delhi which should be recovered from them forthwith alongwith interest in terms of Section 28AA of the Customs Act, 1962 (erstwhile Section 28AB of the Act). (ii) I also impose under Section 114A of the Customs Act, 1962 a mandatory penalty equivalent to duty evaded amounting to Rs. 51,86,378/- (Rupees Fifty One Lakh Eighty Six Thousand Three Hundred and Seventy Eight only) against M/s Nijhawan Travel Service Pvt. Ltd., F-53, Bhagat Singh Market, New Delhi which should be recovered from them forthwith. (iii) I also confiscate under Section 111 (o) read with Section 111 (d) of the Customs Act, 1962 the imported Mercedes Car SL 500 with registration No. DL 1 CK 2525, however M/s Nijhawan Travel Service Pvt. Ltd., F-53, Bhagat Singh Market, New Delhi are given an....

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....of Driver Shri Rajender Sharma and security guard Shri Ramanuj, they have not stated that the subject car was being used by the family members of the Managing Director of appellant No. II. They rather submitted that only for the security reasons the car was being parked at the residence of the appellant No. I. It has further being vehemently contended that the capital goods imported by the appellant under the EPCG licence namely car in this case should have been installed at the given business premises of M/s Nijhawan Travels Service Pvt. Ltd. at F-53, Bhagat Singh Market, New Delhi. As per condition No. 9 of the EPCG conditions, the learned Counsel has submitted that considering the nature of the imported goods namely car the installation certificate is not relevant being a movable goods, therefore, it is wrong on the part of the Department to insist for installation certificate in this case. The learned Counsel has relied on this Tribunal decision in the case of Narang International Hotels Pvt. Ltd. versus Commissioner of Customs (Export), JNCH Nhava Sheva reported under 2017 (347) E.L.T. 680 (Tri. - Mumbai). Thus, the learned Counsel has submitted that no violation can be allege....

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....rossly erred in confiscating the subject car and making them liable for pay differential amount of customs duty. 10. We have also heard learned Departmental Representative who has reiterated the findings as given in the impugned orderin-original. 11. We have heard rival contentions and perused the record of appeal we find that it's a matter of fact that Mercedes SL-500 car have been imported validly by the appellants and its Director under EPCG licence No. 0530137584 dated 10 December 2004 availing benefit of the customs notification No. 97/2004-CUS dated 17 September 2004. It is also an admitted and fact of record that there is no doubt regarding the veracity of the EPCG licence and the entitlement of Notification No. 97/2004 once the importer have submitted a valid EPCG licence at the time of import of car. The question which ultimately boils down before us is whether there has been any violation of the conditions by the importer and its Director with regard to the conditions stipulated under the said EPCG licence and the customs notification. The main allegations which have been alleged against the appellant and its Directors and in view of the conditions which are attache....