2001 (7) TMI 1105 - AT - Customs

Demand EOU goods diversion to DTA - Confiscation - Redemption Fine - EXIM Policy - Export Oriented Unit - Confiscation - Export - Penalty - Warehoused goods - Dummy unit

Issues Involved:
1. Demand of Customs duty on spares imported by M/s. Chiramith and diverted.
2. Confiscation of 29 machines used for the domestic market.
3. Confiscation of raw materials seized at M/s. TIPL.
4. Alleged illegal export of spares to Switzerland.
5. Alleged diversion of raw materials to domestic market.
6. Penalties imposed under Sections 112 and 114 of the Customs Act, 1962.
7. Appropriation of Rs. 15 lakhs paid as duty.

Issue-wise Detailed Analysis:

1. Demand of Customs Duty on Spares:
The Commissioner found that M/s. Chiramith systematically diverted warehouse goods and used imported spares for domestic units M/s. TIPL and M/s. Chirag. However, the Tribunal noted contradictions in the findings, particularly that M/s. TIPL was incorporated only in April 1996 and commenced production in April 1997, making the alleged diversion prior to this period impossible. The Tribunal concluded that the findings were based on self-contradicting grounds and lacked substantive valid evidence. Therefore, the demand for duty and interest on the spares was set aside.

2. Confiscation of 29 Machines:
The Commissioner confiscated 29 machines under Section 111(o) for their impermissible use for domestic market production. However, the Tribunal found that the statements of Shri B. Ramachandra and Shri S.R. Damle did not corroborate the extensive use of all machines for domestic production. The Tribunal also noted that the Commissioner's findings were contradictory and lacked corroborative evidence. Furthermore, the Tribunal found no specific restriction or ban on using EOU capital goods for DTA job work. The confiscation order was set aside due to non-compliance with Section 125 of the Customs Act, 1962, and lack of evidence.

3. Confiscation of Raw Materials Seized at M/s. TIPL:
The Commissioner ordered the confiscation of raw materials seized at M/s. TIPL, alleging systematic diversion. However, the Tribunal found contradictions in the Commissioner's findings and noted that the raw materials were sent to M/s. TIPL for subcontracting to meet export commitments. The Tribunal also found that the Commissioner's reliance on an overturned order by the Addl. DGFT was misplaced. The confiscation order was set aside due to non-application of mind and lack of evidence.

4. Alleged Illegal Export of Spares to Switzerland:
The Commissioner found that M/s. Chiramith illegally exported screws to Switzerland to avoid foreign exchange regulations. However, the Tribunal noted that the Commissioner's findings were based solely on statements without corroborative evidence. The Tribunal found no material to support the alleged illegal export and concluded that the penalties under Section 114 of the Customs Act, 1962, were uncalled for and not upheld.

5. Alleged Diversion of Raw Materials to Domestic Market:
The Commissioner found that M/s. Chiramith diverted raw materials to M/s. TIPL and M/s. Chirag for domestic market production. However, the Tribunal found that the Commissioner's findings were based on assumptions and lacked valid evidence. The Tribunal noted that the high percentage of scrap generated during production was supported by a certified report from the Regional Engineering College, Suratkal. The findings of diversion were set aside due to lack of technical verification and evidence.

6. Penalties Imposed under Sections 112 and 114 of the Customs Act, 1962:
The Tribunal found that no case of penalty under Section 114 was established as there was no evidence of illegal export or diversion of goods. The penalties imposed under Sections 112 and 114 were set aside due to lack of evidence and improper determination of penalty amounts.

7. Appropriation of Rs. 15 Lakhs Paid as Duty:
The Tribunal found that the payment of Rs. 15 lakhs was not voluntary and was made under duress during investigations. The Tribunal ordered the refund of the amount, citing the Supreme Court's decision in Mafatlal Industries, which deemed such payments as made under protest.

Conclusion:
The Tribunal set aside the Commissioner's order, finding that the proceedings were based on assumptions, lacked corroborative evidence, and were contradictory. The demands for duty, confiscations, and penalties were all set aside, and the refund of Rs. 15 lakhs was ordered. The appeals were allowed with consequential relief.

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