Custom, Excise & Service Tax Tribunal
Commissioner Of Customs ,Central ... vs M/S. Ge India Exports Pvt Ltd on 13 February, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/530/2009-SM [Arising out of Order-in-Appeal No 1 & 2/09 (H-IV) CUS. dated 15/05/2009 passed by the Commissioner of Customs, Excise & Service Tax (Appeals-II), Hyderabad.] For approval and signature: HON'BLE SHRI B.S.V.MURTHY, 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? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Commissioner of Customs ,Central Excise and Service Tax Hyderabad-IV POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD 500 001. ANDHRA PRADESH Appellant(s) Versus M/s. GE India Exports Pvt Ltd 1-8-359 To 363 Center Point Huda Lane Sp Road, Begumpet SECUNDERABAD - 500003 AP Respondent(s)
Appearance:
Mr. N. Jagadish, Superintendent (AR) For the Appellant Mr. Feneel Shah, CA For the Respondent Date of Hearing: 13/02/2015 Date of Decision: 13/02/2015 CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Final Order No. 20325 / 2015 Per : B.S.V.MURTHY Revenue is in appeal against the decision of the Commissioner (A) in the impugned order setting aside the redemption fine in lieu of confiscation and the penalty imposed under Section 112 of Customs Act, 1962.
2. The facts, in brief, of this case are that the assessee are an STP unit engaged in development of software/providing communication services, etc. In terms of Notification No.52/2003-Customs, they have been importing capital goods relevant to their activity after obtaining due authorization from the Software Technology Parks of India. Accordingly, they had imported five consignments under five Bills of Entry through their Customs House Agent M/s. Sai Shipping Services which were allowed clearance by the Customs Authorities for re-warehousing at their Customs Bonded Warehouse. As required under Boards Circular No.7/2006 Cus. dated 13.1.2005, the receipt of the consignments was intimated to the jurisdictional Range Officer for physical verification of the goods. On verification, it was found that the assessee had imported certain items in excess of those assessed in the respective Bills of Entry. Hence, a case was made out against the assessee on the ground that the impugned goods received in excess were liable for confiscation under Section 111 of the Customs Act, 1962 apart from demanding appropriate duties with interest; penalty was also proposed on the assessee under Section 112 of the Act, ibid. Thereafter, proceedings were initiated resulting in imposition of penalty and fine in lieu of confiscation besides confirming the duty demand on the goods found in excess.
2.1 On an appeal filed by the assessee, the Commissioner (A) passed an order in favour of the assessee and hence this appeal.
3. The learned counsel submits that respondent is a 100% EOU and they had no reason to suppress any facts or make mis-declaration and receive excess goods since in case they are liable to pay duty. He also submitted that supplies are made by their own company and supplies are made regularly as per the requirements and therefore, the respondent had filed bills of entry as per the pro-forma invoices received by them. It is his submission that since the supplies keep coming regularly and invoices are issued on a regular basis, they presumed that quantity despatched would be as per invoice. The respondents have already discharged the entire duty demand with interest even though they need not have paid the duty and interest being a 100% EOU and in view of the fact that goods were covered by the requirement certificate issued by the concerned authority.
4. Learned AR submits that once there are excess goods and such excess has not been declared in the bills of entry, goods are liable to be confiscated. Once the goods are liable to confiscation, penalty is imposable and goods are to be confiscated. He submits that for this proposition where the unit is 100% EOU or not is not relevant.
5. I have considered the submissions. I find myself in agreement with the observations of the Commissioner (A) that the STP unit (respondent) was at liberty to obtain a procurement certificate and there was no need for the respondent to indulge in any fraud. He has also observed that there was a mix-up at the suppliers end and respondent was not aware of the excess goods. I also agree with the view taken by the learned Commissioner (A) that the respondent had paid the duty and interest. Under the circumstances, it would be appropriate to take a lenient view and set aside the penalty and redemption fine. Accordingly, I do not find any merit in the appeal filed by the Revenue and reject the same with consequential relief, if any, to the respondents.
(Operative portion of the Order was pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER rv 3