TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 388
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....hority in issuing the requisite certificate to be submitted to the Customs Authorities, the importer cannot be held liable for the same and therefore no duty liability can be imposed on him. 3. For considering the present appeal, we need to appreciate the brief facts. The appellant was issued EPCG License No. 0530137818 dated 11.01.2005 for import of Needle Detector Machine by the Additional Director General of Foreign Trade (DGFT). The said machine was imported vide Bill of Entry No. 869747 dated 02.02.2005 on payment of concessional rate of duty @ 5% in terms of Notification No. 97/2004 dated 17.09.2004. That one of the conditions of the EPCG License dated 11.01.2005 was that the importer was required to fulfil obligation by exporting all types of cotton made ups worth US$ 25,379 i.e. eight times the duty saved on capital goods on FOB basis within the period of eight years. As per the said notification, the export obligation was required to be fulfilled in block periods 1 to 6 years to the extent of the 50% and the remaining obligation was required to be fulfilled in second block period, i.e. 7 and 8 years. The relevant para of the notification, which is under consideration so a....
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....ellant and accordingly vide letter dated 05.10.2016, a request for supply of certified copy of the Order-in-original was made so that further action can be taken by them. The appellant again repeated his request for supply of certified copy of the order-in-original vide letter dated 07.11.2016 which was forwarded by the Office of Commissioner of Customs to the Deputy Commissioner vide communication dated 08.11.2016. All these communications are placed on record alongwith written submissions by the appellant. Thereafter the appellant challenged the Order-in-original in an appeal filed on 01.05.2017 before the Commissioner of Customs (Appeals) and pleaded the non-receipt of the show cause notice and also the Order-in-original. The appellant specifically stated that pursuant to the fulfilment of the export obligation EODC has been obtained from the DGFT on 26.05.2015. 5. The Commissioner (Appeals) recorded that the onus of submission of the EODC was on the appellant which he has chose to fulfil during the personal hearing which was after the prescribed time limit had lapsed and therefore the impugned order-in-original was upheld. Being aggrieved, the appellant has filed the present a....
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....by the customs authority, it was incumbent to have verified the status of the issuance of the EODC by the competent authority. Moreover, when the appeal was filed by the appellant, he has submitted the EODC which was issued on 26.05.2015, instead of taking note of the same which evidently proved that the appellant had fulfilled the export obligations within the prescribed time, the Appellate Authority ignored the same on the ground that it was belated. We do not agree with the same and are therefore of the opinion that the impugned order deserves to be set aside. 9. We would like to refer to certain orders which have been passed by the Tribunal and also by the High Court in this regard. Learned Counsel for the appellant has relied on the decision of the Telangana High Court in Hetero Labs Ltd., vs. Assistant Commr. Of Customs (Group 7), Chennai -2019 (370) ELT 234 (Telangana), where the Division Bench was dealing with the condition No.(ix) of Notification No. 96/2009, which required submission of redemption certificates within sixty days from the expiry of the period allowed for fulfilment of the export obligations and as the petitioner could not submit the same within the said pe....
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.... fulfil the export obligation in the requisite time and failed to submit EODC before the concerned authority so as to entitle the Department to demand the duty foregone by the appellant at the time of import. Referring to series of decisions, the learned Member observed that the law has been well settled that once EODC is issued, the Department cannot recover the amount of duty waiver. The learned Member also relied on the Circular No. 16/2007-Cus., dated 02.05.2017 (which has also been placed on record by the appellant herein), which clarifies that where the license/ authorisation holder submits proof of their application having been submitted to DGFT, the matter may be kept in abeyance till the same is decided by the DGFT. In this case also though the EODC was produced before the Commissioner (Appeals) during the hearing, however the same was ignored and therefore the said order was set aside. We are not adding too many orders which have been relied on by the learned Counsel for the appellant, however, the order passed by the High Court of Madras in Ramsays Corporation Pvt. Ltd., vs. Commissioner of Cus., Chennai-IV - 2022 (381) ELT 372 (Mad.) where the learned Division Bench dea....
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....ns. The notification never contemplated that a public functionary, having regard to the importance of the subject-matter and in particular when such importations are being made in public interest, would not dispose of the application for grant of essentiality certificate within a reasonable time so as to enable the importer to avail the benefit thereof. Applicants for grant of such certificates, having regard to their importance, should have been processed by the Directorate General of Hydrocarbons as expeditiously as possible but they did not choose to do so probably having regard to the fact that no time schedule therefor was prescribed. It is trite that when a public functionary is required to discharge its public functions within a time specified therefor, the same would be construed to be directory in nature. (See P.T. Rajan v. T.P.M. Sahir [(2003) 8 SCC 498] and Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776].)" 11. The decisions referred to by the learned Authorised Representative for the Revenue referred to the order of CESTAT, Mumbai in Bombay Hospital Trust vs. Commissioner of Customs, Sahar, Mumbai -2005 (10) TMI 112, affirmed by the Bombay High Court in Bombay Hospita....