TaxTMI 
TaxTMI 
2024 (7) TMI 1825
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....de bonding and exit from the EOU scheme the appellant obtained EPCG license No. 08300080107 dated 04.03.2016 and cleared capital goods without payment of duty in the light of EPCG license obtained. On the scrutiny of the records of the appellant by the CERA Auditors an audit objection was raised to the effect that while de-bonding and clearing capital goods under EPCG license, the appellant had not complied with the prescribed procedure before clearance of the goods laid down in the custom Notification No. 16/2015-cus dated 01.04.2015. It was observed by the Auditors that the appellant had not:- 1) Registered their EPCG license at the port of import 2) Not submitted any bond and bank guarantee. It was also observed by the auditors that the department had not made any endorsement/ debited entries on the EPCG license before de-bonding the capital goods. 1.1 On the basis of Audit objection, show cause notice bearing F. No. VIII/10-11/ PR. COMMR./O & A/ 2018 dated 06.04.2018 was issued to the appellant for recovery of Customs/ Central Excise duties to the tune of Rs. 6,48,65,591/- on the ground that the said appellant had:- (i) Not registered their EPCG li....
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.... the present appeal. 2. Shri Deven Parikh, Learned Senior Counsel with Shri Dhaval K Shah and Shri Nisarg Desai, Learned Advocates appearing on behalf of the appellant submits that the Principal Commissioner of Customs has completely failed to consider that there was no direct import by the appellant and therefore there was no question of registration of authorization at the port of import or production of authorization before the Customs officer at the time of import as per the Customs Notification No. 16/2015-Cus . 2.1 Moreover, appellant has submitted NOC No. KASEZ /100% EOU /II/28/2003-04/VOL.II/9914 dated 09.11.2015 and total duty assessed statement duly certified by officer of the Assistant Commissioner Central Excise & Customs, Vadodara and the difference of the same was also endorsed into EPCG authorization. 2.2 He submits that the Principal Commissioner of Customs failed to appreciate that there is a marked different between a direct EPCG authorization holder and an authorization holder who has converted into the EPCG Scheme after de-bonding from the EOU Scheme. The procedure required to be followed for conversion is different from that required to be followed for....
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....otification. 2.7 He further submits that the appellant since have duly complied with the procedure for conversion from EOU to EPCG scheme and has also discharged its export obligations completely, there is no question of denial of exemption. He also placed reliance on the following judgments:- ● Schneider Electric Infrastructure Ltd. Vs. C.C., C.Ex. & S.T.- 2019 (370) ELT 1352 (Tri.-All.) ● Commissioner of customs &C. Ex. Vs. J.S. Gupta and Sons-2015(318) ELT 63 (All.) ● Sabare International Vs. Commissioner of Central Excise, Trichy2014 (308) ELT 609 (Tri.-Mad) ● Hydraulics India Services Pvt. Ltd. Vs. Commissioner of C.Ex., Bangalore-II- 2013 (294) ELT 163 (Tri.Bang.) ● Well Known Polyesters Ltd. Vs. Commissioner of C. Ex., Vapi- 2012 (25) STR 411 (Tri. Ahmd.) ● Jolly Board Ltd. Vs. Commissioner of Central Excise, Aurangabad2017 (49) STR 620 (Tri.-Mumbai) ● Salzer Controls Ltd. Vs. Commissioner of C.Ex. Chennai- 2003 (160) ELT 1169 (Tri.-Chennai) ● Thermax Private Ltd. Vs. Collector of Customs- 1992 (61) ELT 352 (SC) ● Salora components Pvt. Lt....
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....ls. The appellant have also submitted a legal undertaking in the letter dated 09.11.2015, a copy of the EPCG license was also submitted. Thus the appellant have complied with all the requirement as asked by the department under letter dated 09.11.2015, thereafter the Development Commissioner as well as the Commissioner of Central Excise and Customs required EPCG license to be submitted for the purpose of issuance of 'No Dues Certificate', which was also submitted to the Excise and Customs Department and it was only after this the Central Excise department as well as the Development Commissioner vide letter dated 15.03.2016 granted the 'no due certificate' and the final exit order dated 16.03.2016 was thus granted by the Development Commissioner having permitted the debonding by the Development Commissioner, the customs department also permitted export of goods worth more than 44 Cr towards discharge of the export obligation without any objection. 4.2 We find that despite the above compliance, the adjudicating authority has denied the benefit of EPCG only on the ground that :- (i) the EPCG license in question is not registered with the port of Import mentioned therein ....
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....ant have undertaken to fulfill the export obligation under EPCG scheme. Therefore, in our considered view even if at all there is lapse of non registration of license at the port of import, this is mere procedural requirement and breach of such requirement the substantial benefit of EPCG scheme cannot be denied to the appellant. 4.5 As regard the second reason that license is made available for the debit of the capital goods, we find that license is very much in existence and the same can be made available for debit of capital goods. The Central Excise and Custom Department can very well ask for the license and debit the capital goods. In fact during the process of exiting from the EOU admittedly the appellant have submitted EPCG license to the Central Excise and Custom Department. Therefore, it is not correct to say that the license was not made available for debit of the capital goods. 4.6 As regard the condition of filing of undertaking as required under customs Notification No. 16/2005-Cus which is meant for under EPCG scheme. We find that appellant at the time of debonding of the unit have given the undertaking for discharging the duty if there is any short fall even aft....