TaxTMI 
TaxTMI 
2023 (5) TMI 1351
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....he case are that the appellants herein are engaged in removing earth, digging, excavation of iron ore and transportation of the same from top of the hill to its base as a mine raising contractor for Obulapuram Mining Co. P. Ltd. They had obtained an EPCG license No.0930004388/3/11/00 dated 12.09.2008 for import of two numbers of Nordberg Trak mounted (cone type) Crushing Plant described in detail as (i) Nordberg make Primary Lokotrack Mobile Crushing Plant model LT 105 consisting of Nordberg Primary Jaw Crushed model C 105 and (ii) Nordberg Secondary Lokotrack Mobile Crushing plant model LT 1100 consisting of Nordberg Secondary Cone crushed model GP 11F. The said EPCG license was issued to the appellants for 3% concessional duty as 'service provider' involving export obligation for a FOB value of exports of US$2,731,313.37 or Rs.11,94,94,960/- with export obligation period of 8 years. The amount of duty saved was also given as Rs.1,49,36,870/-. On the basis of intelligence received and developed by the Marine & Preventive (M&P) Wing of Customs (Preventive) Commissionerate, Mumbai, that the appellants have fraudulently shifted the crushing plants to the project site of their sister ....
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....e submissions made in the form of paper book by both the parties. 6. The short issue for consideration before us that whether the appellants have violated the provisions of notification No.64/2008-Customs dated 09.05.2008, in terms of the show cause proceedings or not, for deciding on the issue of legality of the impugned order. In order to examine these in detail, the allegations raised in the Show Cause Notice (SCN) dated 11.06.2012 are extracted and given below: "22. Now, whereas, from the foregoing, it appears that: i. RKMPL had violated the (a) Condition No. 9 of the EPCG licences by not installing the crushing plants at the declared place; (b) Conditions of Para 5.15 of the Hand Book of Procedures 2004-09 by not maintaining any records as discussed in the foregoing paras; (c) Condition No. 6 of the condition sheet attached to EPCG Licence No. 0930004388/3/11/00 dated 12.09.2008 and para 5.3 of the Exim policy 2004, 2009 by not actually using the subject crushing plants imported against the said licence for mining and excavating the iron ore; (d) Condition No. 14 of the condition sheet attached to the said EPCG License, ....
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....r 114A of the Customs Act, 1962. d. the voluntary deposit amounting to Rs. 1,28,00,000/- by RKMPL during the course of investigation should not be appropriated and adjusted against their duty liability in respect of the aforesaid crushing plants. 24. S/Shri B. Ravikiran Reddy and B. Sasikiran Reddy are also called upon to show cause in writing to the Commissioner of Customs (Export), having his office at 2nd Floor, New Customs House, Ballard Estate, Mumbai - 400 001, within 30 days from the receipt of this show cause notice as to why penalty should not be imposed upon them in terms of Section 112 (a) and/or 112 (b) of the Customs Act, 1962." In the impugned order learned Commissioner of Customs (Export) after consideration of the reply of the appellants and after offering them a personal hearing had decided the case against the appellants by passing the following order: "21. In view of the above, I order as under: (i) I deny the benefit of exemption under Notification 64/2008 Cus. Dated 09.05.2008 on account of violation of condition 2(7) of the said notification and confirm customs duty demand of Rs. 1,27,17,014/- (Rupees One Crore Twen....
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....on besides confiscation of the goods and imposition of redemption fine and penalties on the appellants based on certain findings as discussed by him in paragraphs 18 to 20 of the impugned order. On the other hand, learned Advocate for the appellants have submitted certain facts and evidences in the form of documents in the appeal papers clearly negating such conclusions arrived at in the impugned order. Thus, we consider it necessary that we should firstly examine these points, one by one, before coming to a considered view on the impugned order. 8.1. The findings arising out of the discussion by the learned Commissioner of Customs (Export) in the impugned order and the relevant counter argument or evidences produced by the Advocate for the appellants and the factual position on such issues/findings are as follows : Sl. No. Findings in the impugned order and reference to paragraph No. Counter argument or document submitted by appellants Factual position/ Status Imported machines under EPCG license found installed at RK Infra & Engineering (India) Pvt. Ltd. Meja Road, Allahabad (UP) and said fact admitted by statements. (Para 18.1.1) Installation certi....
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...., the impugned order dated 28.02.2013 has not taken cognizance of the existence of such certificate dated 05.04.2009. No discussion on the said fact. 5 Imported machinery during its transportation by vehicle from Mumbai to Obulapuram was met with an accident and owing to that the crusher machinery got damaged. The same was transported to Obulapuram after repairs and installation certificate was submitted. (Para 19.1.6) Imported machinery vide Bill of Entry No. 880420 dt. 29.01.2009 was transported by Spurgex Transport Pvt. Ltd. through 3 trailers on 30.01.2009; one of the trailer met with accident within limit of Pune Municipal Corpn. While other trailers reached the site at Obulapuram on 06.02.2009, the trailer that met with accident arrived the site on 14.02.2009. Thus, installation certificate dated 29.03.2009 was submitted. The factual position of trailer carrying imported machinery met with an accident was corroborated by the transport company. The mention of installation certificate submitted by appellants in the impugned order in para 19.1.6 contradicts its finding in earlier para 19.1.5. 6 Shifting of the imported machinery was carried out in April, 2011 i....
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....appellants under the category of "Service Provider" for export of "Miscellaneous Products". The appellant's request made to DGFT authorities for shifting imported machinery to other premises have been duly taken note of and the request has been acceded to by the DGFT in its permission letter dated 10.04.2012. Thus, to that extent there is no misstatement of facts. The statements given by different persons holding the position of Chairman and Managing Director of the appellants' company has to be examined in the context of the investigation findings. 8.2 From the factual position in each of the above issues listed above, we find that the conditions of the notification has been fulfilled in respect of Sl. No.1 and 4; as regards the issue at Sl. No.2, 6 necessary permission from the competent authorities have been obtained by the appellants and thus there is no violation of any condition of the notification; in respect of Sl. No. 3, the installation imported machines found to have been accepted by original authority at one paragraph at 18.1.1, but the installation certificate for the same has not been taken into account in the other paragraph at 19.1.4 of the findings, leading to a....