2011 (10) TMI 40 - AT - Customs

Fulfillment of export obligation - Confiscation - levy of penalty interest and fine - Held that - In the instant case the goods were imported availing a concessional rate of duty on the condition that the goods will be put to use for manufacture and export of certain products up to certain value within a specified period. When the importer failed to fulfill the condition by not exporting the goods of required value within the stipulated period then he was no longer eligible for the concessional rate of duty and the duty liability has to be discharged in full without availing the benefit of the exemption. When the assessment is finalized subsequently even if the goods are not available for confiscation redemption fine in lieu of confiscation can be imposed as has been held in a number of judicial pronouncements on the subject. Therefore the imposition of redemption fine in the instant case is fully justified and is quite legal and we hold accordingly.

Issues Involved:
1. Provisional Assessment and Finalization
2. Levy of Interest
3. Confiscation of Goods
4. Imposition of Penalty
5. Redemption Fine

Detailed Analysis:

1. Provisional Assessment and Finalization:
The appellant contended that the assessments were provisional and thus the final order demanding duty was unsustainable. The Tribunal rejected this argument, stating that the goods were imported subject to certain obligations which were not fulfilled, leading to a show cause notice and subsequent adjudication. The Commissioner's order finalizing the duty liability was deemed as finalizing the provisional assessment.

2. Levy of Interest:
The appellant argued that interest could not be levied as it is a substantive liability and must be authorized by law. They cited several judgments to support their claim that interest provisions were introduced after their importation. The Tribunal dismissed this argument, referencing the case of Parasrampuria Synthetics Ltd. and Metropoli Overseas Ltd., which upheld the demand for interest based on the bond and LUT executed by the appellant. The Tribunal emphasized that interest liability arose from the bond and the provisions of the EPCG scheme, which mandated interest on duty saved if export obligations were not met.

3. Confiscation of Goods:
The appellant claimed that by paying the duty, they fulfilled the conditions of Notification No. 160/92-Cus, thus goods were not liable for confiscation. The Tribunal disagreed, noting that demand of duty and confiscation are separate issues. Failure to meet export obligations rendered the goods liable to confiscation under Section 111(o) of the Customs Act. The Tribunal cited the Hari Chand Shri Gopal and Om Prakash Bhatia cases to support the confiscation.

4. Imposition of Penalty:
The appellant argued that penalty under Section 112(a) was not imposable if Section 111(o) was not attracted. The Tribunal refuted this, explaining that penalty arises when goods are liable to confiscation. The Tribunal upheld the penalty on the appellant firm but reduced it from Rs. 1 crore to Rs. 50 lakhs. Penalties on the Managing Director and Director were set aside, considering the totality of the circumstances.

5. Redemption Fine:
The Tribunal noted that the goods were imported in 1993 and the final determination was in 2002. Given the depreciation over time, the redemption fine of Rs. 1.8 crore was reduced to Rs. 90 lakhs, approximately 10% of the value of the goods.

Conclusion:
The Tribunal concluded that the appellant is liable to pay:
- Interest @ 24% per annum on the differential duty from 15-11-1993 till the date of payment.
- A reduced redemption fine of Rs. 90 lakhs.
- A reduced penalty of Rs. 50 lakhs on the appellant firm.
- Penalties on the Directors were set aside.

The appeals were disposed of accordingly.

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