2015 (7) TMI 1157 - AT - Customs

Demand - Penalty - Notification No. 13/81-Cus dt. 9.2.1981 - 100% EOU - Held that - The show cause notice demanded duty under proviso to Section 28(1) and the demand was clearly time barred Commissioner in his order although referring to violation of Notification No. 13/81 does not mention that in terms of the Bond executed by 100% EOU there is no time limit for demand of duty. Regarding Penalty - Held that - once the goods are held not liable to confiscation the question of penalty does not arise under Section 112 of the Act - Decided in favor of the assessee.

Summary

Issues:
1. Calculation of duty demand.
2. Permission granted by the Development Commissioner for transfer of goods.
3. Time limitation for demand of duty under Notification No. 13/81.
4. Imposition of penalty under Section 112 when goods are not liable to confiscation.

Analysis:
1. The case involved the import of goods by an 100% EOU under Notification No. 13/81-Cus. The appellant sought to transfer the goods to another EOU as their project did not take off. The permission for transfer was granted subject to conditions, but no action was taken on the request. A show cause notice was later issued demanding duty for failure to observe the conditions of the notification. The Additional Commissioner confirmed the duty demand but did not consider prevailing duty rates. The duty amount was disputed by the appellant, arguing that the relevant date for duty calculation should be the actual date of payment, which was not accepted by the Commissioner. The issue of duty demand calculation was deemed inappropriate.

2. The permission granted by the Development Commissioner for the transfer of capital goods was not addressed in the adjudication. The failure to consider this permission was highlighted as a lapse in the proceedings. The Tribunal found that this aspect was not appropriately dealt with in the case.

3. The time limitation for the demand of duty under Notification No. 13/81 was not clarified. The Commissioner upheld the duty demand under Section 28(1) of the Act, despite the absence of a time limit for duty demand in the Bond executed by the 100% EOU. This discrepancy was noted as a procedural error in the case.

4. The imposition of penalty under Section 112 when the goods were not liable to confiscation under Section 111(o) was challenged. The Tribunal ruled that once goods are not liable to confiscation, the question of penalty does not arise under Section 112. Therefore, the penalty was set aside. The issue of penalty imposition without confiscation liability was considered inappropriate by the Tribunal.

In conclusion, the Tribunal remanded the case for fresh consideration on all issues except the penalty imposition, which was set aside. The judgment highlighted procedural lapses and discrepancies in the adjudication process, emphasizing the need for a thorough review of all relevant aspects in the case.