2006 (11) TMI 83 - AT - Customs

Demand 100% EOU Alleged that appellant were not entitle for exemption on the imported inputs (3DG sets with auxillary) and accordingly demanded penalty and duty on inputs Authority after considering all the detail allow the exemption on inputs.

Issues Involved:
1. Eligibility for exemption under Notification No. 53/97-Cus.
2. Confiscation and redemption of DG sets.
3. Demand for customs duty and interest.
4. Imposition of penalties.
5. Procedural compliance and permissions.
6. Use of power generated and its implications on duty liability.
7. Delay in serving the order and refund of duty paid under protest.

Detailed Analysis:

1. Eligibility for Exemption under Notification No. 53/97-Cus:
The appellants, a 100% EOU, imported 3 DG sets claiming exemption under Notification No. 53/97-Cus. The Commissioner held that the DG sets were ineligible for the exemption due to violation of notification conditions by transferring power to DTA without requisite permissions. However, the appellants argued that they had informed the jurisdictional authorities about their intention and had been following up for necessary approvals. The Tribunal found that the appellants had indeed communicated their intentions and were actively seeking permissions, thus not violating the notification conditions.

2. Confiscation and Redemption of DG Sets:
The Commissioner ordered the confiscation of the DG sets under Section 111(o) of the Customs Act, 1962, but allowed redemption on payment of a fine. The Tribunal noted that the DG sets were still bonded goods and found no grounds for confiscation since the appellants had not violated the notification conditions.

3. Demand for Customs Duty and Interest:
The Commissioner demanded customs duty of Rs. 5,67,95,045 and interest on the DG sets. The Tribunal observed that the DG sets were bonded goods, and duty could only be demanded at the time of de-bonding, not while they were still in the bonded warehouse. The appellants had used duty-paid consumables and raw materials for power generation, negating the duty demand on these items.

4. Imposition of Penalties:
A penalty of Rs. 10,00,000 was imposed on the appellants under Section 112(a) of the Customs Act. The Tribunal found no culpable mental state or intent to evade duty on the part of the appellants, thus deeming the penalty unjustified.

5. Procedural Compliance and Permissions:
The appellants had informed the customs authorities and sought permissions from the Development Commissioner, CSEZ, and BESCOM. The Tribunal noted that delays in obtaining permissions were due to statutory authorities and not attributable to the appellants. The Tribunal emphasized that procedural delays by authorities should not disentitle the appellants from notification benefits.

6. Use of Power Generated and Its Implications on Duty Liability:
The Tribunal held that the transfer of power to the appellants' own DTA did not constitute a sale and thus did not attract duty on raw materials. The appellants' actions were deemed as captive consumption, not violating the notification conditions. The Tribunal applied the principle from the case of Sir Kikabhai Premchand, stating that no sale occurs when a person transfers goods to themselves.

7. Delay in Serving the Order and Refund of Duty Paid Under Protest:
The order was served after 240 days of passing, and the Tribunal found this delay significant. The appellants had paid Rs. 5.68 crores under protest before the issuance of the Show Cause Notice. The Tribunal ruled that this amount should be refunded with statutory interest, as per the Apex Court's decisions in Kuil Fireworks and Sandvik Asia Ltd.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeal with consequential relief. The appellants were found to have complied with the notification conditions, and the delays in obtaining permissions were attributed to statutory authorities. The demands for duty, interest, and penalties were deemed unjustified, and the confiscation order was overturned. The Tribunal emphasized that procedural delays by authorities should not penalize the appellants.

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