2008 (7) TMI 964 - AT - Customs

Summary

Issues Involved:
1. Violation of conditions of Notification No. 36/97-Cus.
2. Validity of Export Obligation Discharge Certificate (EODC).
3. Jurisdiction of the Committee of Chief Commissioners.
4. Applicability of the principle of constructive res judicata.

Summary:

1. Violation of conditions of Notification No. 36/97-Cus.:
The Revenue contended that Kotex Infrastructure Limited (KIL) violated the conditions of Notification No. 36/97-Cus., dated 1-4-1997, by not fulfilling the export obligation and misrepresenting facts to procure an Export Obligation Discharge Certificate (EODC). The goods imported under the Special Import Licence (SIL) were suspected to have been sold or loaned, contrary to the conditions of the SIL and the Notification. The Adjudicating Authority, however, found that the goods were supplied to the project site and the conditions of the Notification were met. The Tribunal upheld this finding, noting that the goods were assembled at the site, fulfilling the requirement of "supply" as per the Notification.

2. Validity of Export Obligation Discharge Certificate (EODC):
The EODC issued by the DGFT was challenged by the DRI, but the Additional DGFT dropped the proceedings. The Appellate Committee remanded the matter, but the EODC remained valid. The Tribunal noted that the EODC had not been suspended or cancelled and that the Bond and Bank Guarantee were cancelled after the fulfillment of the export obligation. Thus, the Tribunal agreed with the Adjudicating Authority that KIL was entitled to the benefit of the Notification.

3. Jurisdiction of the Committee of Chief Commissioners:
The Respondent argued that the Committee of Chief Commissioners, Mumbai Zone-I & Zone-II, did not have jurisdiction as the case originated in Gujarat. The Tribunal acknowledged the procedural error but held that it did not warrant dismissal of the appeal, emphasizing that substantive rights should not be defeated by procedural infirmities.

4. Applicability of the principle of constructive res judicata:
The Tribunal rejected the argument that the present show cause notice was hit by the principle of constructive res judicata. It upheld the Adjudicating Authority's view that the obligation under Notification 36/97 was a continuing one, justifying the invocation of the extended period for fulfilling the export obligation.

Additional Observations by Vice-President:
The Vice-President concurred with the findings of the Member (Technical) and added that the assembly of cranes, sky masters, crushers, and cutters at the site amounted to manufacture, fulfilling the conditions of the Notification. The EODC and the cancellation of the Bond and Bank Guarantee indicated compliance with the export obligation. The judgment of the Hon'ble Bombay High Court in Apollo Sea Foods v. Union of India supported this view.

Conclusion:
The Tribunal dismissed the Revenue's appeal, affirming that KIL had complied with the conditions of Notification No. 36/97-Cus. and was entitled to the exemption.