Custom, Excise & Service Tax Tribunal
M/S Bharti Telecom Ltd vs Cc, New Delhi on 20 May, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO.II
C/Appeal No. 901/2005-Cus(Br)
(Arising out of order in appeal No.CC(A)/316/ACU/Delhi-1/05 dated passed by the Commissioner of Central Excise (Appeals),New Delhi)
M/s Bharti Telecom Ltd Appellant
Vs
CC, New Delhi Respondent
Appeared for the Appellant : None Appeared for the Respondent : Shri Sumit Kumar, DR Coram: Honble Mr.D.N. Panda, Judicial Member Honble Mr. Rakesh Kumar, Technical Member Date of Hearing: 20.5.09 Order No. /2009 Per D.N. Panda:
None present for the appellant.
2. Learned DR Shri Sumit Kumar submits that the appellant was allowed to import capital goods valued at Rs.27,33,863/- under EPCG Licence No.01500298 dated 15.3.1996 on concessional rate of duty. According to the Scheme of concession, the appellant was required to install the capital goods in its Ludhiana factory and make use of such capital goods to fulfill the export obligation under the licence. There is no dispute that the manufacturer has imported the capital goods and installed in the Ludhiana factory. But appellant made export of the manufactured goods at its factory at Gurgaon. This is violation of law made by the appellant and that has defeated the purpose of the notification as well as the Exim Policy. Therefore, Revenue proceeded to recover the concession availed by the appellant. Show cause notice was issued for that purpose. The appellant obtained clarification from DGFT. That authority clarified that the goods manufactured should have been from imported machinery. That was done by letter dated 5.7.2000 appearing at page 66 of the appeal folder. Accordingly, the authorities directed that the appellant was not entitled to the concession basing on the clarification issued by Ministry of Law. That Ministry has clarified that exclusive use of the capital goods is necessity for grant of the concession. The concession granted should be construed strictly within the purview of Exim Policy. When the appellant failed to prove that the discharge of export obligation was the outcome of the imported capital goods, the appellant should not got the concession availed earlier in terms of the aforesaid notification. Therefore, according to Revenue, the order of adjudication does not call for any interference.
3. Heard the learned DR. Learned DR further submits that the learned Commissioner has made a very clear observation in the order. Finding no defence, this appeal was also dismissed. Therefore, this is the appeal before the Tribunal. Learned DR relies upon the decision of the Apex Court in the case of Jaisons Thevara Vs Collector of Customs & Central Excise reported in 1992 (61) ELT 343 (SC).
4. We have gone through the respective citations at respective pages of the appeal folder that was brought to our notice by Revenue. When we look into the clarification of DGFT at page 66 and also the clarification issued by Ministry of Law at page 3 of order of adjudication, we are of the belief that the learned Commissioner has passed appropriate order making his observation that the goods manufactured in Gurgaon was only subjected to discharge export obligation by the Appellant. The capital goods installed at Ludhiana factory did not result in discharge of export obligation. In absence of such nexus, the appellant has failed to discharge its export obligation. We are also satisfied with Revenue on its reliance on the decision of the Apex Court in the case of Jacsons Thevara Vs CCE reported in 1992 (61) ELT 343(SC) . The Appellant having defeated the purpose of concession under law, its appeal is dismissed.
(Order dictated and pronounced in the open Court).
(D.N. Panda) Judicial Member (Rakesh Kumar) Technical Member MPS*