2003 (7) TMI 700 - Commission - Customs

Summary

Issues Involved:
1. Duty liability under specific advance licenses.
2. Admittance of duty liability by the applicant.
3. Dispute over the quantum of export obligation discharge.
4. Plea for immunity from interest, penalty, and prosecution.
5. Relevance of realization of export proceeds.
6. Eligibility for alternate exemption under Notification 32/97.

Detailed Analysis:

1. Duty Liability under Specific Advance Licenses:
The applicant, M/s. Kitex Garments Limited, was issued four advance licenses under the DEEC Scheme, which allowed duty concessions on imports. They failed to meet the export obligations, resulting in a demand for duty and interest totaling Rs. 3,25,20,531/-.

2. Admittance of Duty Liability by the Applicant:
The applicant admitted full duty liability for licenses No. 0005346 dated 22-7-96 and 10001008 dated 23-7-97, totaling Rs. 85,19,514/-. There was no dispute regarding these licenses, so the Bench did not further dwell on them.

3. Dispute Over the Quantum of Export Obligation Discharge:
For licenses No. 2042504 dated 8-5-96 and 10000906 dated 23-6-97, the applicant admitted a lesser duty liability than demanded. They argued partial fulfillment of export obligations, citing exports of jackets and pants and realization of foreign exchange. The Bench found that the export of pants alone could not be considered as fulfilling the export obligation for license No. 2042504, as the DEEC Book did not contain a separate input-output ratio for pants. The revised duty liability for this license was fixed at Rs. 36,03,206/-.

For license No. 10000906, the applicant contended that the realization of export proceeds was not a condition under Notification 30/97. However, the Bench ruled that the Customs Exemption Notification and the EXIM Policy are interlinked, and the realization of export proceeds is necessary for discharge of export obligation. The duty liability was adjusted to Rs. 99,38,451/- after accounting for realized export proceeds of US $17,670.

4. Plea for Immunity from Interest, Penalty, and Prosecution:
The applicant sought immunity from interest, penalty, and prosecution. The Bench granted partial immunity from interest, fixing it at 10% per annum, and full immunity from penalty and prosecution, recognizing the applicant's full cooperation and true disclosure of facts.

5. Relevance of Realization of Export Proceeds:
The Bench emphasized that the realization of export proceeds is integral to fulfilling export obligations under the EXIM Policy and Customs Notification 30/97. The applicant's plea that the definition of 'export' under the Customs Act should apply was rejected, as the exemption is contingent upon adherence to the EXIM Policy, which includes the realization of export proceeds.

6. Eligibility for Alternate Exemption under Notification 32/97:
The applicant's alternate plea for exemption under Notification 32/97, treating imports as for job work, was rejected. The Bench noted that the goods were assessed under Notification 30/97, and reassessment under a different notification was not permissible post-clearance.

Conclusion:
The total duty liability was settled at Rs. 2,20,61,171/-. The applicant was directed to pay the balance duty of Rs. 99,31,229/- within 30 days and interest at 10% per annum. Immunity from prosecution and penalty was granted, with the condition that it could be withdrawn if any fraudulent means were discovered.

Settlement Terms:
1. Duty liability fixed at Rs. 2,20,61,171/-.
2. Balance duty of Rs. 99,31,229/- to be paid within 30 days.
3. Interest at 10% per annum to be paid on the outstanding amount.
4. Immunity from prosecution and penalty granted under Section 127H(1) of the Customs Act, 1962.