TaxTMI 
TaxTMI 
2026 (9) TMI 966
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....ces and for this purpose they require imported vehicles as capital goods. Therefore, they had applied under Export Promotion Capital Goods (EPCG) scheme before the DGFT authorities for issue of EPCG authorization for import of four cars availing import duty concession under the said EPCG Scheme. The appellant-company was issued with EPCG Authorizations one among them is No. 0530143858 dated 11.06.2007. On the above basis, the appellant-importer company had imported four cars, one out of which is, (i) DL1ZZ 0209 [Honda CR-V] imported and cleared though Mumbai Sea Port; and the other three cars viz., (ii) DL1ZZ 0198 [BMW] (iii) DL1ZZ 0185 [BMW] (iv) DL1ZZ 0432 [BMW] were cleared through Chennai Sea Port by utilizing EPCG Authorization No. 0530143860 dated 11.06.2007 2.3 On the basis of specific information that the above vehicles were being used as private vehicles for the personal use of the Managing Director of the appellant i.e., the first appellant herein, and his family members, and were not being used for commercial purposes to earn foreign currency for the fulfilment of export obligation, as stipulated, further necessary action was tak....
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....ation conditions issued to the appellants resulting in non-fulfillment of the conditions of notification No. 97/2004-Customs dated 17.09.2004 through which the appellants have availed import duty concessions for import of one Honda CR-V Rvi MT car as aforesaid; and whether confirmation of adjudged demands upheld by the learned Commissioner (Appeals) in the impugned order are sustainable or not. 7. We find that the identical issues under dispute have been examined by the Co-ordinate Bench of the Tribunal at Chennai in respect of three cars imported by the self-same appellants. The allegations raised by the department and the findings of the Tribunal as recorded in the Final Order Nos. 40598-40599/2023 dated 21.07.2023 are extracted and given below: "2.1 Facts are not in dispute: the appellant had imported four cars under the EPCG Scheme, namely: - (i) DL1ZZ 0198 [BMW] (ii) DL1ZZ 0185 [BMW] (iii) DL1ZZ 0432 [BMW] (iv) DL1ZZ 0209 [Honda CR-V] The vehicles at Sl. Nos. (i) to (iii) above were cleared through Chennai Sea Port and the vehicle at Sl. No. (iv) through Mumbai Sea Port. 2.2 It appears that the importation purpo....
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....) The firm was to maintain its average of the past three years export performance. (iv) The annual average of the past export performance for the vehicles imported in 2007 (the cars mentioned at Sl. Nos. (i), (ii) and (iv) supra) was Rs.568,685,933.58/- and in respect of the other vehicle which was imported in 2009 (the car mentioned at Sl. (iii) supra), was Rs.384,886,148.62/- [paragraph 25(3) of the Show Cause Cum Demand Notice]. (v) All the vehicles were registered to be used as taxi only, registered under "T" Board. (vi) From the statements recorded, it appeared to the officials that all the imported vehicles were being used exclusively as private vehicles for personal purposes of the second appellant and his family members, in violation of the "T" Board Registration. (vii) The appellant did not produce documents to support that the said vehicles were used as tourist taxi to earn foreign exchange (viii) In respect of the car at Sl. No. (i), they appear to have noticed that the insurance was made as a private car. (ix) The cars were imported under the EPCG Authorization by mis-declaring that the same were required to provide ....
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....o GCA countries and realise the export proceeds in freely convertible currency and is subject to the conditions as laid down in Chapter 5 of Foreign Trade Policy and Procedures (Vol.I) 2004-2009 and/or The authorisation holder shall supply goods to categories carried under para 8.2 (a), (b), (d), (f), (g) and (j) of the policy. 2. The firm is under obligation to Export Item S.No. ITCHS Code Export Item Name 1 87032291 Hotel related services. CAR MODEL: BMW 730Ls Diesel 2993cc, RHD With Accessories worth US$ 577,876.51 i.e. 8 times the duty saved of Capital Goods on FOB basis within a period of 8 years (12 years in case duty saved is Rs. 100 Crore or more) from the date of issue of authorisation. The Export Obligation shall be fulfilled by the use of the Imported Capital Goods. 3. The firm is also required to maintain its average of the past three years export performance of the same and similar products mentioned in Para 2 above. The annual average of the past export performance is Rs.568,685,933.58. 4. ... 5. ... 6. Import of Capital Goods under this authorisation shall be subject to actual user condition. .......
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....fter hearing the rival contentions, the CESTAT has held as under: - ........ 15.3 It appears that the Revenue preferred an appeal against the above Order before the Hon'ble High Court of Delhi and the Hon'ble High Court vide its judgement dated 03.08.2010 as reported in 2010 (260) E.L.T. 78 (Del.), after considering the submissions, has followed its earlier judgement in the case of M/s. Interglobe Enterprises Ltd. v. Union of India [2006 (203) E.L.T. 202 (Del.)] and held as under: - ...... 15.4 The Revenue had preferred SLP against the above judgement of the Hon'ble Delhi High Court, which was dismissed by the Hon'ble Supreme Court, as reported in 2011 (268) E.L.T. A110 (S.C.). 16.1 From the above, it is clear that the importer should be able to demonstrate that the goods were in fact put to use for the business activity for which the same was imported. That is to say, the importer should not violate the conditions of actual user. 16.2 From the documents placed on record by the appellant, we find that the appellant has declared substantial income in foreign exchange, which is not disputed by the Revenue, though they have proceeded from d....
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....e Hon'ble Bombay High Court vide its judgement dated 30.01.2017 as reported in 2017 SCC Online Bom 6626 has dismissed the appeal. 18. We find that more or less similar views were expressed in the other orders of co-ordinate Benches relied upon by the appellant. 19. Further, the allegations as to violation of vehicle registration, etc., are the concerns of the relevant authorities, which is not the domain of the Customs authorities. Any violation with regard to vehicle registration, insurance, etc., could only be looked into by such authorities who have jurisdiction over the same and, in any case, nothing is brought out on record as to the Customs authorities informing such violations which are alleged, to the concerned State authorities. 20.1 From the documents placed on record before us, we find that other than mere allegations, the Revenue has not placed on record any documentary evidence in support of its allegations. Moreover, they have not even justified that the violations alleged against the appellants were in fact violating either the conditions in the Scheme or FTP or any other relevant Acts or Rules. This assumes importance since we are guided b....
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....Item List Description - HONDA CR-V RV I MT) worth US$ 162,457 i.e. 8 times the duty saved of Capital Goods on FOB basis within a period of 8 years (12 years in case duty saved is Rs. 100 Crore or more) from the date of issue of authorisation. The Export Obligation shall be fulfilled by the use of the Imported Capital Goods. 3. The firm is also required to maintain its average of the past three years export performance of the same and similar products mentioned in Para 2 above. The annual average of the past export performance is Rs.568,685,933.58. 4. ... 5. ... 6. Import of Capital Goods under this authorisation shall be subject to actual user condition. ... ...." Considering the factual matrix of the case in this appeal in respect of one Honda CR-V Rvi MT car is exactly similar to the facts of the other three BMW cars imported by the self-same appellants, we are of the considered opinion that this Bench of the Tribunal cannot decide the disputed issue differently than the one that has already been decided by the Co-ordinate Bench of the Tribunal in the case of self-same appellants. 8.1 We also find that with respect of import of H....