Customs, Excise and Gold Tribunal - Tamil Nadu
Thiagarajar Mills Ltd. vs Commissioner Of Customs on 22 March, 1999
Equivalent citations: 1999ECR392(TRI.-CHENNAI), 1999(111)ELT288(TRI-CHENNAI)
ORDER V. K. Ashtana, Member (T)
1. This is an appeal against the Order-in-Original No. 21/98, dated 13-10-1998 passed by the Commissioner of Customs, Trichy, wherein the items imported have been ordered to be confiscated under Section 111(d) of the Customs Act, 1962 and the redemption allowed on fine of Rs. 5 lacs and penalty of Rs. 2 lacs has also been imposed under Section 112 of the Customs Act. The only ground for doing so was that the machines after import thereof under Customs Notification No. 110/95-Cus., dated 5-6-1995 as amended, were not installed in the specified premises due to objections raised by the State Pollution Control Board authorities and instead, were installed in a sister concern. This was against the EPCG scheme sanctioned by the DGFT for this import.
2. Heard Shri K.P. Jagadeesan, learned Advocate for the appellants, who submits that when the problem associated with the objection of the Pollution Control Board authorities was represented before the licensing authority namely Office of the Director General of Foreign Trade, ultimately they succeeded in getting post facto approval of installation of the imported machines in their sister concern and a revised LUT was also accepted by the authorities concerned. Thus, all the conditions of the Customs Notification noted above are therefore, now satisfied by this post facto regularisation of the matter by the licensing authority. Under these circumstances, the machinery imported has been regularised under the EPCG scheme and the goods are not liable to confiscation merely because no prior permission of Assistant Commissioner of Customs was taken to do so.
3. Heard Smt. Aruna Gupta, learned JDR, who submits that the fact of unilaterally shifting the machines and getting them installed in another place, which was not authorised by EPCG scheme at the time of import was not brought to the notice of the Assistant Commissioner of Customs and the above noted Customs Notification was therefore, violated by the importer. Hence, the learned Commissioner has correctly confiscated and imposed penalties. She also submits that even at the time of issue of show cause notice, the importer appellants did not have this permission of DGFT office.
4. The appellants Miscellaneous Application for early hearing is allowed, as the matter on a short compass, and the appeal itself is taken up for consideration. We have carefully considered the rival submissions and records of the case. We find that it is not in dispute that the issue is a post importation condition contained in the EPCG scheme and therefore, the parallel Customs Notification No. 110/95, and this has since been regularised by the legal authority concerned namely Office of the Director General of Foreign Trade. The only ground on which the learned Commissioner has confiscated the goods and imposed penalty is that the appellants had not informed the Custom House and therefore a unilateral decision to relocate these machines. While non-intimation to the Assistant Commissioner of Customs was certainly a procedural lapse on the part of the appellants, however, since the DGFT has allowed under EPCG scheme to the unit where the machines have been relocated and a revised LUT has also been accepted by the authorities concerned, therefore, we find that even if the appellants had approached the Assistant Commissioner of Customs for permission to relocate the machines, the Customs authorities could not have been able to give such a permission and could have only directed the appellants to approach the DGFT. Thus, it is the Order-in-Original. DGFT who are the final authority to sanction under EPCG scheme, for the relocated premises. This has been done on post facto basis. We feel there is no contravention involved after this regularisation under the Customs Act; therefore, we set aside the Order-in-Original impugned and allow the appeal with consequential relief, as per law.