2010 (9) TMI 778 - Commission - Customs

Settlement Commission - Immunity from Fine and Penalty - Voilation of Post Importation conditions - Held That - Diversion of goods does not support the charge of deliberate misdeclaration with intent to evade duty and if such diversions have not been made it would have result in heavy financial loss - applicant fully co-operated during investigations and promptly paid the duty leviable and it is only after payment of duty that the goods were diverted to another project at Chennai. Thus full immunity from fine and penalty was given

Summary

Issues Involved:
1. Eligibility for duty exemption under Notification No. 21/2002-Cus.
2. Alleged violation of post-importation conditions.
3. Liability for customs duty and interest.
4. Imposition of fine and penalty.
5. Grant of immunity from prosecution.

Issue-wise Detailed Analysis:

1. Eligibility for Duty Exemption under Notification No. 21/2002-Cus:
The applicant imported a Hydraulically Operated Self Propelled Piling Rig claiming duty exemption under Sr. No. 230 of Notification No. 21/2002-Cus, with the condition that the Rig would be used exclusively for National Highway construction. The applicant provided an undertaking to this effect at the time of import.

2. Alleged Violation of Post-Importation Conditions:
The Central Intelligence Unit (CIU) discovered that the Rig was diverted to Bangalore for another NHAI project and later used in Chennai for a Metropolitan Railway Transport System Project. These uses were contrary to the conditions of the duty exemption, which stipulated exclusive use for National Highway construction. Consequently, a Show Cause Notice was issued demanding customs duty, interest, and invoking penal provisions under the Customs Act.

3. Liability for Customs Duty and Interest:
The applicant admitted the duty liability of Rs. 1,46,00,630/- and paid the interest of Rs. 28,14,121/-. The applicant argued that the diversion was due to unforeseen circumstances like heavy rains and insurgency in Assam, and the Rig was used only for government projects.

4. Imposition of Fine and Penalty:
The Revenue argued that the applicant should have informed the department about the diversion and that claiming the exemption was not bona fide. The applicant contended that the diversion was necessary to avoid financial loss and mechanical decay. The Bench found that the applicant had satisfactorily explained the circumstances and had no intent to avoid duty at the time of importation. The Bench observed that the applicant co-operated during investigations and promptly paid the duty and interest liabilities. Therefore, the Bench granted full immunity from fine and penalty.

5. Grant of Immunity from Prosecution:
The Bench granted immunity from prosecution under the Customs Act, 1962, considering the full and true disclosures made by the applicant and the co-operation extended during the settlement proceedings.

Conclusion:
The Bench settled the customs duty at Rs. 1,46,00,630/- and interest at Rs. 28,14,121/-, both of which were paid by the applicant. Despite the violation of post-importation conditions, the Bench granted full immunity from fine, penalty, and prosecution due to the applicant's co-operation and the lack of intent to evade duty. The order of settlement would be void if obtained by fraud or misdeclaration of facts.