2010 (12) TMI 301 - AT - Customs

Waiver of the pre-deposit - Export Obligation - Find prima facie that it is a case of gross abuse of the duty concession which has been granted to the appellants in respect of as many as 106 advance licences in the interest of export promotion - The appellants to fulfil their export obligation after making duty-free imports and also to obtain the necessary EODC - Without fulfilling the export obligation and without furnishing the necessary export details and EODC to the Customs authorities, the appellants cannot take a stand that the duty demand is not valid under Section 28 of the Customs Act, 1962 - It is settled law that when post-importation , conditions are violated, the duty demands are valid under the conditional notifications read with Section 12 of the Customs Act, 1962 under which the levy is made - The bonds executed by the appellants themselves also require payment of the duty amounts for violation of the conditions of the notification as well as non-fulfilment of the export obligation. - stay application allowed partly.

Issues:
1. Non-fulfillment of export obligation leading to duty demand.
2. Applicability of Section 28 of the Customs Act, 1962 in cases of non-fulfillment of export obligation.
3. Requirement of Export Obligation Discharge Certificate (EODC) for duty exemption.
4. Validity of duty demands under conditional notifications and Customs Act.
5. Pre-deposit requirement and waiver consideration based on financial difficulties.

Issue 1: Non-fulfillment of export obligation leading to duty demand
The case involved appeals against an Order-in-Original demanding duty for non-fulfillment of export obligation. The appellant's advocate failed to provide shipping details for all 106 advance licenses, leading to a demand for Rs. 15.97 crores for 37 licenses lacking export details. The Tribunal found this to be a case of abuse of duty concession granted for export promotion, emphasizing the necessity for fulfilling export obligations and obtaining Export Obligation Discharge Certificates (EODC) from Foreign Trade authorities.

Issue 2: Applicability of Section 28 of the Customs Act, 1962
The appellant argued against the demands under Section 28 of the Customs Act, 1962, stating it was impermissible in cases of non-fulfillment of export obligation. The Tribunal noted that duty demands were valid under conditional notifications and Section 12 of the Customs Act, 1962 for violations of post-importation conditions and non-fulfillment of export obligations. The obligation to pay duty was inherent in the Customs notifications and bonds executed by the appellants.

Issue 3: Requirement of Export Obligation Discharge Certificate (EODC) for duty exemption
The Respondent highlighted the necessity of EODCs for duty exemption against imported goods under advance licenses. It was pointed out that even for licenses with provided export details, EODCs were not obtained, leading to penalties by Foreign Trade authorities. The absence of necessary shipping documents and EODCs undermined the appellant's claim of fulfilling export obligations.

Issue 4: Validity of duty demands under conditional notifications and Customs Act
The Tribunal emphasized that duty demands were legitimate under the Customs Act and conditional notifications when export obligations were not met. The failure to furnish export details and EODCs to Customs authorities rendered the appellant's argument against duty demands invalid. The bonds executed by the appellants also mandated payment for violations of notification conditions and export obligations.

Issue 5: Pre-deposit requirement and waiver consideration based on financial difficulties
Despite financial difficulties cited by the appellant's advocate, the Tribunal directed a pre-deposit of Rs. 15.97 crores for licenses lacking export details. Compliance within eight weeks was mandated, with a waiver of the balance amount contingent on producing EODCs for licenses with provided export details. The Tribunal found no grounds for a total waiver of pre-deposit or remand to the adjudicating Commissioner at that stage.

In conclusion, the Tribunal upheld duty demands for non-fulfillment of export obligations, emphasizing the importance of EODCs, valid duty demands under the Customs Act, and the necessity of pre-deposit while considering financial difficulties in the case.

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