2010 (3) TMI 781 - HC - Customs

Demand - wrongful intention connivance and mis-statement before the Director General of Foreign Trade (DGFT) - Notification No. 55/2003 - Penalty - invocation of extended period of limitation - Chartered Engineer had disclosed Furnace Oil as the product to be imported which was a consumable to be used in the captive power plant - it is apparent that the expression importer would operate only in relation to the point at which the goods are imported and till the time they are cleared for home consumption - in connection with alleged suppression wilful misstatement made at the stage of issuance of licences prior to importing the goods the proviso to sub-section (1) of Section 28 could not have been invoked - Decided in favour of the assessee

Summary

Issues:
1. Challenge to the order made by the Customs, Excise and Service Tax Appellate Tribunal under Section 130 of the Customs Act, 1962.
2. Validity of the license under Customs Notification No. 55/2003 and imposition of duty and penalty due to wrongful intention, connivance, and mis-statement.

Analysis:

Issue 1:
The appellant-Revenue challenged the order of the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) under Section 130 of the Customs Act, 1962. The Tribunal allowed the appeal on the ground of limitation, which was the main contention raised by the respondent.

Issue 2:
The case involved the validity of the license under Customs Notification No. 55/2003 and the imposition of duty and penalty due to alleged wrongful intention, connivance, and mis-statement by the importer. The respondent had imported furnace oil under Export Promotion Capital Goods (EPCG) licenses, claiming it as consumables covered under the EPCG scheme. The investigation revealed discrepancies, leading to the issuance of show cause notices and a demand for differential customs duty. The Commissioner of Customs confirmed the duty demand and imposed penalties, which were challenged by the respondent before the Tribunal.

The Tribunal analyzed the facts and found that the respondent had disclosed all relevant details, including the product to be imported and its intended use, to the DGFT authorities. The Tribunal held that there was no suppression or mis-statement by the respondent that would justify invoking the extended period of limitation under Section 28 of the Customs Act. The Tribunal also considered a letter from the Deputy Director General of Foreign Trade, which supported the respondent's position regarding the import of furnace oil as consumables under the EPCG scheme.

Further, the Tribunal examined the provisions of Section 28 of the Customs Act, which provide for an extended period of limitation in cases of collusion or wilful mis-statement. The appellant argued that the respondent had made a wilful mis-statement before the Licensing Authority, leading to the issuance of EPCG licenses. However, the Tribunal noted that the alleged mis-statement occurred at the stage of license issuance, not at the importation stage, and the definition of 'importer' under the Act did not cover such pre-importation actions. Therefore, the Tribunal concluded that the extended period of limitation could not be invoked based on the alleged mis-statement during the license application process.

In conclusion, the Tribunal found no legal infirmity in its order and dismissed the appeal, as there was no substantial question of law raised by the appellant.