2009 (3) TMI 102

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....d penalty. 3. Brief facts, relevant in this case, are that the appellants sought to import goods worth Rs. 10,89,73,604.15p. pursuant to licence obtained on 11-10-96 under EPCG scheme. In terms of the said scheme, under a licence granted to the appellants, they were liable to import capital goods for a minimum value of Rs. 20 crores within the validity period of licence. The said condition was specifically stipulated under Serial No. 6 of the Notification No. 111/95 dated 5-6-95 and the condition No. 5 under Notification No. 29/97 dated 1-4-97. The validity period of the licence granted to the appellant was of 24 months from the date of grant of licence i.e. from 11-10-96. At the request of the appellant, it was revalidated for another o....

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....ute. That being admitted and clearly established fact, it was necessary for the appellant to establish that in spite of the said failure, the appellant was entitled for exemption from the condition regarding import of minimum value of Rs. 20 crores as that was the specific condition attached to the licence granted to the appellant to enable him to import the goods under the said scheme. It is not in dispute that in terms of said licence, the appellants were entitled to import the goods without paying import duty. The appellant having availed the benefit under the said licence had to ensure that the said benefit was availed with due compliance of the condition imposed at the time of grant of licence under the scheme. The excuse sought to be ....

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....d not taken pains to consider the mitigating factors while imposing penalty as well while quantifying the rate of interest. Though the notification specify various conditions, it is always necessary for adjudicating authority to verify whether law permits to import at lesser rate of interest and for that purpose has to take into consideration the instructions issued from time to time by the Board, as also the mitigating circumstances. 11. Undoubtedly, such exercise should be within the parameters of law, nevertheless without ignoring the facts and circumstances of a case under adjudication. Since the adjudicating authority has not undertaken this exercise in the matter in hand, in our considered opinion, it is appropriate to remand the m....