Custom, Excise & Service Tax Tribunal
Commissioner Of Customs And Service ... vs Intel Technologies India Pvt. Ltd on 22 September, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: C/CROSS/1/2007 in C/567/2006-DB Appeal(s) Involved: C/567/2006-DB [Arising out of Order-in-Original No. 09/2006 dated 20/03/2006 passed by the Commissioner of Customs, Bangalore] For approval and signature: HON'BLE MRS ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR ASHOK K ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Commissioner of Customs and Service Tax, Bangalore C.R. Building, Queens Road, P.B. No. 5400, Bangalore 560 001 Karnataka Appellant(s) Versus Intel Technologies India Pvt. Ltd. Vth Floor, Creator Building, ITPL, Whitefield Road, Bangalore Respondent(s)
Appearance:
Mr. Mohd Yusuf, DR For the Appellant Mr. G. Shivadass & Ms Neetu James, Advocates For the Respondent Date of Hearing: 22/09/2015 Date of Decision: 22/09/2015 CORAM:
HON'BLE MRS ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR ASHOK K ARYA, TECHNICAL MEMBER Final Order No. 21990 / 2015 Per : ARCHANA WADHWA The appeal filed by the Revenue along with cross objection filed by the respondents, which have to be considered as an appeal, are being disposed of by a common order as they arise out of the same impugned order of Commissioner.
2. The respondent is a 100% EOU and STP unit working under the provisions of Notification No. 52/2003-Cus. dated 31.03.2003. In terms of the said notification itself, they imported capital goods/raw materials, without payment of duty.
3. In or around 2005, the respondent shifted the said goods to another 100% EOU premises on their own with the permission of STPI authorities. Thereafter respondents unit was visited by the Customs Officers and it was found that the goods were not available either in the first 100% EOU or at the shifted premises. On being asked, the respondents explained about the shifting of the unit in their new premises and loss of some small items during the process. They were directed to produce the documentary evidence for such shifting and the presence of the goods in the new unit. As per the respondent, they produced all the documents except in respect of few minor items which they could not locate in their new unit, to the extent of around 6%. They admitted that they are unable to find such items which are in the nature of hard disk and various computer accessories and immediately paid the demanded duty of Rs. 47 lakhs (Rupees Forty Seven lakhs) and Rs. 26 lakhs (Rupees Twenty Six lakhs) approximately.
4. On adjudication, Commissioner observed that the respondents could not produce the documents showing movement of the goods from the first unit to another except in respect of very few items. He also observed that keeping in view the size of the organization, their reputation, the volume of transaction and achievement of the export performance of the unit, it has to be concluded that they had not acted deliberately in violation of law or was guilty of conduct contumacious on dishonest or acted in conscious disregard to its obligation. Accordingly by observing that this calls for a lenient view for imposition of penalty, he imposed penalty of Rs. 1,00,000/- (Rupees One Lakh only), while confirming the demand.
5. Revenue being aggrieved with the imposition of penalty of Rs. 1,00,000/- (Rupees One Lakh only) preferred the present appeal for enhancement of the penalty. Assessee is also in appeal by way of cross objection, on the ground that the adjudicating authority has demanded and confirmed duty on the imported value of the missing goods where the duty was required to be calculated on the depreciated value.
6. As regards Revenues appeal, we find that the Revenue has not been able to rebut the findings given by the adjudicating authority as regards the malafide of the assessee. Their only case is that inasmuch the imported duty free goods were not available, it has to be held that there was malafide on their part, requiring higher imposition of penalty.
As regards the above stand of the Revenue, we find that the adjudicating authority has kept in view various factors and has come to a clear finding on absence of malafide on the part of the assessee. Admittedly the assessee has been able to establish the transfer of the item from one unit to their new premises to the extent of around 94%. The balance 6%, for which they were not able to show any documentary evidence was some minor items and cannot be held to be attributable to any malafide. As such we fully agree with the Commissioner that this act does not call for higher imposition of penalty. The Revenues appeal is accordingly rejected.
7. As regards the assessees appeal, we note that Commissioner has observed that the assessee has not been able to establish proof of having utilized the goods for the intended purpose and therefore the question of allowing depreciation on such bonded goods does not arise. On the other hand it is the contention of the assessee that the goods were imported in the year 2001 and the same were misplaced in 2005 at the time of transfer of the goods to their new unit premises. For the period from 2001 to 2005, the same were being used by the appellant and they would be in a position to prove it. If that be so, the duty required to be paid by the respondent should have been calculated on the depreciated value. Inasmuch as no such proof stands produced before us, we think it fit to remand the matter to Commissioner for entertaining the said plea of the assessee. Both the appeals are disposed of in above manner.
(Order pronounced in open court) (ASHOK K ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER iss