2011 (5) TMI 709 - AT - Customs

Confiscation - merely because an assessee could not fulfill the export obligation goods do not become automatically liable to confiscation - violation of conditions which would attract the provisions of Section 111(o) appear to be cases where there is diversion of goods or misutilisation of goods etc - no confiscation is warranted - quantum of depreciation is required to be determined - confiscation set aside and penalty the matter is remanded to the original adjudicating authority

Summary

Issues:
1. Failure to fulfill export obligation by an EOU.
2. Confiscation of capital goods and imposition of duty demand, interest, and penalties.
3. Validity of show-cause notice and applicability of Sections 72 and 111(o) of the Customs Act, 1962.
4. Admissibility of depreciation on capital goods.
5. Consideration of interest payable and confiscation of goods.
6. Remand of the matter to the original adjudicating authority for re-quantification of duty liability and interest.

Analysis:

1. The EOU failed to meet the export obligation, leading to proceedings resulting in a duty demand of Rs. 2,33,52,317/-, confiscation of capital goods, and imposition of penalties. The EOU cited reasons like unsuitable equipment, infected plants, and increased customs duty in the destination country for the non-fulfillment. The Tribunal considered the EOU's contentions and previous decisions but upheld the duty demand due to the significant shortfall in export obligations.

2. The EOU challenged the validity of the show-cause notice citing incorrect application of Sections 72 and 111(o) of the Customs Act, 1962. The Tribunal found the notice maintainable as it clearly outlined the violations of the exemption conditions and the unfulfilled export obligations. The duty demand was deemed justifiable based on the EOU's failure to comply with the bond requirements and export obligations specified in the notifications.

3. The EOU claimed entitlement to depreciation on capital goods, referencing circulars issued by the Board. However, as this point was not raised earlier, the Tribunal remanded the matter to the original adjudicating authority for consideration, along with the applicability of interest. The Tribunal clarified that interest is payable for non-fulfillment of export obligations, and the original authority should determine the admissibility of depreciation after receiving necessary evidence.

4. Regarding confiscation, the Tribunal held that confiscation was not warranted in this case, as the non-fulfillment of export obligations did not automatically lead to confiscation. The Tribunal emphasized that confiscation under Section 111(o) is applicable in cases of diversion or misutilization of goods, which was not the situation here. Consequently, the Tribunal set aside the penalty as well, remanding the matter for re-quantification of duty liability, interest, and consideration of depreciation by the original adjudicating authority.

5. In summary, the Tribunal upheld the duty demand with interest, set aside confiscation and penalty, and remanded the matter for re-evaluation of duty liability and interest, emphasizing the need for the EOU to present their case adequately before a final decision is made by the adjudicating authority.