TaxTMI 
TaxTMI 
2022 (1) TMI 914
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...., who are engaged in the manufacture of all kinds of textile made-ups and fabrics had imported capital goods under Zero duty EPCG Authorisation No. 0530160789 dated 09.05.2013. The appellant utilised the said authorisation on import of capital goods during the financial year 2013-14 when they imported capital goods valued at Rs. 32,22,346/- and thus saved imported duty of Rs. 8,42,561/- imported vide Bill of Entry No. 2246923 dated 28.05.2013. As the appellant had availed zero duty EPCG scheme, they were not entitled to use or avail benefit under 'Status Holder Incentive Scheme (SHIS)' as per para 3.16 of Foreign Trade Policy, in the same financial year. However, the appellant due to inadvertence applied to DGFT for issue of SHIS script No.....
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....ant case, it is a matter of fact that M/s Devtara Industries was issued both the EPCG authorisation and SHIS scrip in the year 2013-14. Thus, the said condition No. (4) of the said Notification No. 102/2009-Cus. dated 11.09.2009, as amended, was violated. 31. As can be seen importers apply for an EPCG authorisation in Form ANF 5A prescribed by the DGFT. At Sl. No. 4B of the said application, the importers/ applicants are required to give a declaration/ undertaking: "I/we hereby certify that our applicant firm/ company has NOT availed and shall not avail the benefit of Status Holders Incentive Scheme under Para 3.16 of FTP in the current year (Applicable to zero duty EPCG scheme only)". The EPCG authorisations are issued taking into....
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....e aforesaid duty exemption Notification under the Zero Duty EPCG scheme. 34. As aforementioned, M/s Devtara Industries applied for SHIS scrip on 02.05.2013 but did not inform this fact to the Customs authorities concerned when they filed Bill of Entry for import of capital goods under the Zero Duty EPCG authorisations and wrongly availed the benefit of Notification No. 102/2009-Cus. dated 11.09.2009, as amended. Further, when the SHIS scrip was issued on 23.08.2013, they were duty-bound to bring this fact to the notice of the Customs authorities in observance and fulfilment of the conditions of the said Notification, whose benefit they had already claimed and availed. However, at no stage did M/s Devtara Industries inform the Custo....
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....- with applicable interest (total amount deposited is Rs. 9,57,021/-) under Zero duty EPCG scheme. This was done on the basis of the DGFT Notification No. 01(RE-2013)/2009-2014 dated 18.04.2013 which referred to amendment to Para 5.1(b) of Chapter 5 of the FTP, 2009-14 and stated that "Zero duty EPCG Scheme shall not be available to exporters, who avail in that year, the benefit of Status Holder Incentive Scheme under paragraph 3.16 of FTP. In case they have already availed SHIS benefit they would be eligible for Zero Duty EPCG Scheme if they surrender or refund SHIS, with applicable interest in case SHIS has been utilised." However, the Customs Notification No. 102/2009-Cus. dated 11.09.2009, as amended, specifically provides that the surr....
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....n to redeem on payment of redemption fine of Rs. 5 lakhs. Further, penalty of Rs. 3 lakhs on the appellant's firm under Section 112/114AA and also on Sh. Umesh Tyagi, Partner. Being aggrieved, the appellant and its Partner preferred appeal before the Commissioner (Appeals) who was pleased to dismiss the appeals upholding the order-in-original. 6. Being aggrieved, the appellants filed appeals before this Tribunal. 7. Learned Counsel appearing for the appellant states that there is no malafide on the part of the appellant as is evident from the following chronology of events- 23.04.2013 Applied for zero duty EPCG authorisation. 09.05.2013 EPCG No. 0530160789 granted by DGFT. 02.05.2013 Applied for SHIS script. 28.05....
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.... to be followed in cases of incorrectly issued simultaneous benefits of Zero Duty EPCG and SHIS in Foreign Trade Policy 2009-14. It is mentioned in this Public Notice, that Directorate have received references from DRI and various exporters, on the subject of incorrectly issued simultaneous benefits of Status Holder Incentive Scheme (SHIS) and Zero Duty EPCG Authorisation under Foreign Trade Policy 2009-14. Further, the Government appreciating the contributory mistake by the assessee and the Government decided to allow flexibility to the extent specified in the public notice with option to return either benefit. Wherein in para E, it is provided on account of different interpretations on the issue in the past, it has been decided in consult....