Custom, Excise & Service Tax Tribunal
M/S.South India Corporation ... vs Commissioner Of Customs, Trichy on 17 June, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.C/184/2001
[Arising out of Order-in-Original No.9/2001 (COMMISSIONER) dated 12.03.2001 passed by the Commissioner of Customs, Tiruchirapalli]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Mr. P.KARTHIKEYAN, Member (Technical)
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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s.South India Corporation (Agencies) Ltd.
Appellants
Versus
Commissioner of Customs, Trichy
Respondent
Appearance :
Shri T. Ramesh, Adv.
Shri V.V. Hariharan, JCDR For the Appellants For the Respondent CORAM: Honble Ms.Jyoti Balasundaram, Vice-President Honble Mr. P. Karthikeyan, Member (Technical) Date of hearing : 17.06.2009 Date of decision : 17.06.2009 Final Order No.____________ Per Jyoti Balasundaram
The brief facts of the case are that the appellants herein imported one in line IQF Freezer Gyro Compact vide bill of entry dated 17.06.1993 through Tuticorin Port on payment of Customs duty at the concessional rate of 15% as per Notification No.160/92 dated 20.04.1992 as amended, under EPCG licence dated 28.07.1992. According to the export obligation stipulated under the EPCG licence, the appellants were to export individually quick frozen shrimps within a period of 5 years from the date of licence. Although export order period had already lapsed, the appellants had not obtained extension of the period from the DGFT. The appellants had exported only frozen shrimps and marine products of total F.O.B. value of USD 5,49,414/- out of the total export obligation of USD 11,72,844/-. A show-cause notice was, therefore, issued to the appellants proposing denial of the concession in terms of Notification No.160/92, proposing recovery of duty of Rs.15,38,937/- together with interest at the rate of 24%, and proposing confiscation of the imported capital goods and as well as penal action under Section 112(a) of the Customs Act, 1962. The notice was adjudicated by the Commissioner denying the benefit of concessional rate of duty as per the Notification, confirming the demand raised in the notice together with interest of Rs.14,99,636/-, confiscating the goods with an option to redemption of payment of a fine of Rs.15 lakhs imposing penalty of Rs.5 lakhs on the appellants. Hence this appeal.
2. We have heard both sides. The prayer of the appellants is for reduction of duty liability to the extent of the fulfillment of export obligation namely around 44% and setting aside demand of interest, confiscation and penalty. Reliance is placed by the learned counsel for the appellants on the decisions of the Tribunal in Sajawat Industries Ltd. Vs Commissioner of Customs, Bangalore [2007 (219) E.L.T. 246 (Tri.-Bang.)], Fal Industries Ltd. Vs Commissioner of Customs, Chennai [2008 (231) E.L.T. (524)] and Femco Filters (P) Ltd. Vs Commissioner of Customs, Bangalore [2006 (203) E.L.T. 494 (Tri.-Bang.)] which has been upheld by the apex court as seen from 2007 (218) E.L.T. from 2007 (218) E.L.T. A. 124 (S.C).
3. We have carefully considered the rival submissions. We find force in the submission of the appellants on the basis of the Tribunals decisions cited supra, wherein it has been held that the extent to which export obligation has been fulfilled should be taken into consideration towards duty liability. The above decisions also hold that since there was no deliberate violation of the condition and since the non-fulfillment of the export obligation was due to circumstances beyond the control of the appellants, confiscation is not sustainable and penalty is also required to be set aside along with interest as there is no provision for demand of interest under Notification No.160/92 -Cus. Following the ratio of the above decisions, we reduce the duty liability to the unfulfilled extent of export obligation namely 54% of the total duty demand and also set aside confiscation, interest and penalty and partly allow the appeal as above after setting aside the impugned order to the above extent.
(Dictated and pronounced in open court)
(P.KARTHIKEYAN) (JYOTI BALASUNDARAM)
MEMBER (T) VICE-PRESIDENT
ksr
17-06-2009
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