2011 (3) TMI 955 - AT - Customs

Export obligation - Commissioner observed that there was failure in fulfilling the export obligation in respect of the capital goods involved and the Development Commissioner had punished the EOU - Note that in the Solitaire Machine Tools P. Ltd. 2002 (11) TMI 165 - CEGAT, MUMBAI, found to apply to the instant case by the Commissioner(Appeals), the Tribunal had held that in terms of Notification No.13/81, the assessee was liable to pay duty on the capital goods obtained under the EOU scheme on the depreciated value and depreciation was admissible upto the date of payment of duty. As regards the liability to confiscation of the capital goods involved, find that as per the impugned order, the assessee had discharged the export obligation attached to the impugned goods upto 1996; violation, if any, occurred after 1996 - As the export obligation attached to the impugned goods at the time of import was discharged by 1996, the goods may not be liable for confiscation under Section 111(o) of the Act on a finding that the exemption allowed at the time of import was conditional upon the EOU discharging export obligation and the same had not been fulfilled by the EOU after import - As the confiscation stands penalty under Section 112(a) of the Act is consequential and cannot be waived.

Summary

Issues:
1. Duty demand on imported capital goods
2. Confiscation of capital goods for failure to fulfill export obligation
3. Imposition of penalty under Customs Act

Issue 1: Duty demand on imported capital goods

The appellant, a granite processing unit, imported capital goods under the EOU scheme and failed to fulfill the export obligation. The Jt. Commissioner of Customs confiscated the capital goods and demanded duty along with a penalty. The Commissioner(Appeals) found that depreciation on capital goods imported till 1993 could not be denied, but for the extended period of 1996-2001, the value of the capital goods should be considered for export obligation fulfillment. The Tribunal noted that the duty demand was not barred by limitation, and the appellant had to pay duty on the depreciated value of goods at the time of de-bonding.

Issue 2: Confiscation of capital goods for failure to fulfill export obligation

The Commissioner observed that the appellant failed to discharge the export obligation during the extended period of 1996-2001, leading to a violation. Referring to the Solitaire Machine Tools P. Ltd. case, the Commissioner ordered the re-quantification of the assessable value of capital goods and imposed a penalty proportionate to the non-fulfillment of export obligation. The Tribunal found that the goods were not liable for confiscation as the export obligation was met by 1996, but upheld the penalty imposed under Section 112(a) of the Act.

Issue 3: Imposition of penalty under Customs Act

The Tribunal, after considering submissions from both sides, agreed with the Commissioner that the appellant had failed to fulfill the export obligation and upheld the penalty imposed. However, the Tribunal ordered the re-quantification of duty liability based on the depreciated value of the goods, as per the Solitaire Machine Tools P. Ltd. case. The Tribunal allowed the appeal by remanding the case for further adjudication.

Overall, the Tribunal allowed the appeal by remanding the case for re-quantification of duty liability based on the depreciated value of the goods, while upholding the penalty imposed on the appellant for failure to fulfill the export obligation.