TaxTMI 
TaxTMI 
2026 (1) TMI 665
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....eme" (SFIS). The goods imported were to be used for broadcasting the Kannada TV Channel 'Suvarna' after conversion to a Pay-Channel and were to be installed at the premises of the cable operators in different locations of the country for the purpose of decrypting the encrypted signals from the pay channel, the ownership of the goods remains with the Appellant and is not transferred to the cable operators. The appellant submitted Installation Certificates (IC) dated 04.03.2008 issued by the Chartered Engineer in respect of the impugned goods. The Superintendent of Customs, Cochin, sought clarification vide letter dated 27.08.2008 regarding the usage of the impugned goods. The Appellant vide their letter dated 03.09.2008 clarified that the DSTBs and WSCs were kept in their Thiruvananthapuram studio and have not been installed. Consequently on 15.09.2008 and on 03.10.2008 the imported goods (DSTBs) and (WSCs), respectively were seized under Section 110 of the Customs Act, 1962 on the ground that they have not been installed within 6(six) months from the date of import as per condition no. (iii) of Notification No. 92/2004-Cus dated 10.09.2004 and restraint or....
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....in-Original dated 25.06.2009 was passed on the basis of findings that the Appellant has admitted that the imported goods have not been installed in accordance with the condition no. (iii) of Notification No. 92/2004-Cus dated 10.09.2004 and no extension was sought as well. Thereafter, a letter dated 16.07.2009 was filed by the Appellant before the Deputy Commissioner (Customs), seeking extension of time for installation and use of the imported goods 4. Aggrieved by the Order-in-Original dated 25.06.2009, the Appellant filed an appeal before Commissioner (Appeals) and submitted an Affidavit dated 12.09.2013, stating that the Appellant had installed a major portion of the imported goods under dispute and out of the 2000 pieces of DSTBs and WSCs, 1512 (of each) have been installed and put to use from 19.12.2008 onwards and the remaining 488 pieces have become obsolete due to change in technology and therefore cannot be put to use. The Commissioner (Appeals) passed the Order-in-Appeal No. 26 & 27/ 2013-Cus dated 24.10.2013 ('impugned order') upholding the Order-in-Original dated 25.06.2009 on the ground that the imported goods have not been installed in accordance with....
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....further, the above exemption is available on fulfilment of various conditions as mentioned in Notification No. 92/2004-Cus dated 10.09.2004; in the present case, the fulfilment of these conditions (except condition No. (iii)) has not been disputed by the Department; condition no. (iii) of Notification No. 92/2004-Cus dated 10.09.2004 requires for a submission of a certificate issued either by the Assistant Commissioner of Customs or Deputy Commissioner of Customs having jurisdiction over the importer's factory or premises or an independent Chartered Engineer, confirming the installation and use of the imported goods in the importer's factory or premises within a period of 6(six) months from the date of imports or within such period as may be extended by the Assistant Commissioner of Customs or Deputy Commissioner of Customs; it is a settled position of law that "Lex Non Cogit Ad Impossibila" or that 'the law does not compel a man to do that which is impossible as held in State of Rajasthan Vs. Shamsher Singh, 1985 AIR 1082 and in M/s. Raj Traders Vs. CC, Mumbai, [2023 (1) TMI 395 - CESTAT MUMBAI]; further, in a similar situation with reference to the movable capit....
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....lment of CENVAT credit on capital goods wherein the goods are required to be installed at multiple locations other than the manufacturer's premises. In this regard. reliance is placed on the following decisions wherein it has been held that the companies remain eligible for the CENVAT credit on capital goods notwithstanding the installation of such goods at the premises of operator's rather than the manufacturer's own facility. a. M/s UFO Moviez India Ltd. vs. Commissioner of Service Tax-VI, Mumbai, [2018 (11) G.S.T.L. 391 (Tri. - Mumbai)] affirmed by the Hon'ble Supreme Court -[ 2022 (61) G.S.T.L. 4 (S.C.]); b. CCE vs. Cestat Chennai, [2015 (323) E.L.T. 290 (Mad.)]. 10. The learned counsel further submits that; the Appellant has not sold the impugned goods to any other person and there is no dispute to this effect in the present case; the Department has accepted the fact that even during the investigation, the impugned goods were found in the premises of the Appellant in packed condition; the purpose of the said condition no. (iii) to Notification No.92/2004-Cus which prescribes for production of an installation certificate, is to ensure ....
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....The learned counsel submits that; in view of the above, since 1512 number of goods have already been installed, no redemption fine and penalty with respect to the same is imposable; further, with respect to the remaining 488 number of goods which could not be installed, it is prayed that the same could not be installed due to delay in conversion of the free channel into a pay channel for the purpose of broadcasting the same; The said delay was due to reasons beyond the control of the Appellant and therefore, the redemption fine and penalty imposed with respect to the same be waived off or a reduced redemption fine and penalty be imposed. Reliance in this regard is placed on the case of M/s. Class India Private Limited Vs. Additional Commissioner of Customs, 2025 (6) TMI 272 - CESTAT BANGALORE. 14. The learned counsel submits that; redemption fine is not imposable since it has not violated any provision of the Foreign Trade Policy and therefore, the imported goods are not liable for confiscation in terms of Section 111(o) of the Customs Act; further, the Appellant has complied with all the conditions of the Notification which are applicable to the goods in question; t....
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....mport due to reasons beyond the control of the company; in the instant case, the installation certificate was issued by the Chartered Engineer(CE) on the basis of the trust and reputation of the appellant that the imported goods would be installed within six months; the appellant has subsequently installed more than 75% of the goods in dispute till date; thus, the issuance of the installation certificate was only on foresight and trust; thus, penalty is not imposable on the basis of bona fides of the appellant; penalty not to be imposed on individual who have no personal benefit; the Chartered Engineer has only carried out his activities in the normal course of business; neither the Show Cause Notice, nor the impugned order has given a finding that the Chartered Engineer had personally benefitted from the alleged contravention of the appellant; thus, he was under a bona fide belief and no mala fides can be attributed to him; penalty should not be imposed on individuals unless it is proved that they have benefitted personally from the alleged offence; thus, the imposition of personal penalty on the Appellant is liable to be set aside. Reliance in this regard is also placed on the re....
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....the appellant is required to submit the installation certificate issued by jurisdictional Assistant Commissioner/Deputy Commissioner or Chartered Engineer. I find in this case the appellant had submitted the Chartered Engineer certificate to the affect the goods have been installed and on enquiry/investigation by the department it was found that the impugned imported goods have not been installed and were still lying in the appellant's Thiruvananthapuram studio. Further, appellant has filed a letter before the Deputy Commissioner on 16.07.2009 seeking extension of time for installation of the impugned imported goods. I also find that the appellant has filed an Affidavit before Commissioner (Appeals) on 12.09.2013 that on 19.12.2008, 1512 number of goods out of the 2000 Nos. of imported goods, both Digital Set Top Boxes (DSTBs) and White Smart Cards (WSCs) have been installed for the purpose of decrypting encrypting of Telugu pay channel 'Sitara'. 21. I find in this case the appellant had imported the goods for purpose of decrypting and encrypting signals for the pay channel 'Kaveri' which did not fructify and department had initiated p....