2009 (6) TMI 726 - AT - Customs

Demand - Quantum of - EXIM - EPCG scheme - Held that - the extent to which export obligation has been fulfilled should be taken into consideration towards duty liability - since there was no deliberate violation of the condition and since the non-fulfilment 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 N/N. 160/92-Cus - 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 - decided partly in favor of appellant.

Summary

Issues:
- Import of capital goods under concessional duty rate
- Non-fulfillment of export obligation
- Denial of concessional rate, demand of duty, interest, confiscation, and penalty

Import of Capital Goods under Concessional Duty Rate:
The appellants imported a "in line IQF Freezer Gyro Compact" under an EPCG license at a concessional rate of 15% customs duty as per Notification No. 160/92. The appellants were required to export "quick frozen shrimps" within a specified period under the license. However, the export obligation was not fully met as only a portion of the required export value was achieved. A show-cause notice was issued proposing denial of the concessional rate, duty recovery, interest, confiscation of goods, and penalty under the Customs Act, 1962. The Commissioner adjudicated the matter by denying the concessional rate, confirming the duty demand, imposing interest, confiscation with an option for redemption, and penalty, leading to the appeal.

Non-Fulfillment of Export Obligation:
The appellants sought a reduction in duty liability based on the percentage of export obligation fulfilled and requested the setting aside of interest, confiscation, and penalty. The appellants relied on Tribunal decisions and an Apex Court ruling that emphasized considering the extent of export obligation fulfillment towards duty liability. The Tribunal noted that there was no deliberate violation of conditions and that non-fulfillment was due to circumstances beyond the appellants' control. Following the precedent, the Tribunal reduced the duty liability to the unfulfilled extent of the export obligation (54% of the total duty demand) and set aside confiscation, interest, and penalty, partly allowing the appeal.

Denial of Concessional Rate, Demand of Duty, Interest, Confiscation, and Penalty:
The Tribunal found merit in the appellants' argument based on previous decisions, ruling that duty liability should be reduced in proportion to the export obligation fulfilled. It held that since there was no intentional breach and the non-fulfillment was due to uncontrollable circumstances, confiscation and penalty were not justified. The Tribunal set aside the demand for interest as there was no provision for it under Notification No. 160/92-Cus. Consequently, the Tribunal partially allowed the appeal by reducing duty liability, setting aside confiscation, interest, and penalty, thereby overturning the Commissioner's decision to that extent.