TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 714
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....the Tribunal was right in law to hold that, by having put to use the mobile capital equipments, imported under Export Promotion Capital Goods (EPCG) Scheme, for the declared purpose, without parting with ownership, possession or control of such equipments, the Appellant violated the actual user condition as contemplated in paragraph 9.5 & 9.6 of the Foreign Trade Policy 2004- 2009, for having used those at a place other than declared to the Licensing Authority? (ii) Whether in the facts and circumstances of the case the Tribunal was right in law to hold that the 'mines', wherein the Appellant had deployed the imported capital goods for rendering mining services upon being granted exclusive permissive possession thereon, must necessarily own the 'mines' so as to be covered under the expression 'own manufacturing unit' or 'manufacturing for his own use' as used in paragraph 9.5 of the Foreign Trade Policy? (iii) Whether in view of the provisions of the Foreign Trade Policy, the Tribunal, constituted under Section 129 of the Act, has erred in assuming jurisdiction to examine the eligibility criteria for grant of EPCG Authorization under the provis....
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.... Sales Tax. The capital goods imported by appellant were seized by the DRI [Directorate of Revenue Intelligence] Kolkata on the ground of violation of 'Actual User Condition' i.e., the imported machines were used in premises other than the ones mentioned in the authorization. 6. Pursuant to the compliant received from the DRI, the Deputy DGFT Patna issued a show cause notice dated July 10, 2008 to appellant proposing to cancel nine EPCG licenses already issued and place the appellant under Denied Entity List. Similarly, show cause notice dated August 05, 2008 was issued by the Deputy DGFT Cuttack proposing to cancel three EPCG licenses. Thereafter, the DRI, Kolkata Zonal unit issued a show cause notice proposing to recover the amount of duty saved at the time of import of Capital Goods, along with interest and penalty. While adjudicating the show cause notices, the Deputy DGFT Patna issued a Blacklisting Order refusing to grant and renew further licenses to appellant or its proprietor. The Deputy DGFT Cuttack further issued a 'Refusal of License' order, refusing to issue any license to appellant and its Proprietor. Appellant preferred an appeal against the Refusal of Licen....
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....issive use of the mines as relevant for the activity, then it is not open to the Customs Authority to take a different view; * appellant falls within the definition of 'actual user (Industrial)' as defined in para 9.5 of the FTP which does not specifically state that the place of installation (mines, in this case) must be owned by the importer; * the contention urged on behalf of the Revenue that the capital goods imported by appellant were not found in the places declared in the EPCG License, is incorrect as the imported goods are movable in nature. Further, these goods were found in other mines owned by OMC, wherein the appellant had undertaken the mining activities; * the Policy circular No. 26/2009-2014 dated 17.03.2010 has been issued by the JDGFT clarifying the requirement of installation certificate with respect to movable goods, wherein it has been clarified that the installation certificate is not required in case of movable goods; * further, the ADGFT in its order has held that there is no misuse of imported goods and the appellant had satisfied the actual user condition; * appellant is eligible for the benefit in terms of Chapter 5 of the FTP 2004-....
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....'s case because no further orders were passed after the remand. Therefore, the appellant cannot get the benefit of ADGFT's order; * the EODC [Export Obligation Discharge Certificate] was not granted by the DGFT. Hence, the appellant's contention that they have been given a clean certificate by DGFT is untenable; * both the DGFT and the customs authorities are duty bound to verify and decide the conditions of the license. Customs authority is also empowered to demand the duty for violation of the terms and conditions imposed on appellant; * appellant has not only violated the conditions of license but also not fulfilled the export obligations as a manufacturer-exporter and as a merchant-exporter; * once the goods are confiscated under Section 10(o) of the Act, the penalty under Section 114 A and 114 AA of the Act ought to have been imposed automatically. 12. With these submissions, Shri. Nargund prayed to allow the Revenue's appeal with regard to the penalty and to dismiss appellant's appeal. 13. We have carefully considered rival contentions and perused the records. 14. Undisputed facts of the case are, appellant is engaged in the mining activities. It uses capi....
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....-Mum decided on 27.05.2013; * Prakash Roadlines Corporation Vs. CC (Export Promotion), Mumbai CESTAT Mumbai Appeals No. C/302 303/2011. 22. With regard to the first authority in Indian Rayon's Case, it was argued by Shri. Shivadass that the Supreme Court was examining as to whether the assessee therein could shift his stand after failing to reexport the goods. We may record that the assessee therein had initially claimed the benefit of notification No. 158/95-Cus. The goods were rejected by the foreign buyer. The assessee could not re-export the goods. At that point of time assessee sought to claim benefit under Notification No. 94/96-Cus. In those circumstances the Apex Court has held that assessee cannot approbate and reprobate. Hence on facts, the said authority does not support Revenue's case. 23. With regard to the second authority in Pennar Industries, Shri. Shivadass urged that appellant does not deny the power of the customs authority to initiate action. However, once at the instance of the customs authority, the Licensing authority initiates action, examines the factual position and holds the issue in favour of appellant; such finding is binding on the Customs author....