2011 (7) TMI 987 - AT - Customs

Diversion of the duty free imported raw materials into the local market by violating the scheme of 100% EOU - Demand - whether the show cause notice issued was based on the correct provisions of law or not and by answering that even if the show cause notice was not issued by invoking the correct provision of law - Held that there has been no consideration of each of the contentions raised by the assessee on merits with regard to the validity of the show cause notice except stating that the Managing Director of the appellant had admitted certain facts. It was informed that retraction was not done immediately and the said statement was retracted at the stage of show-cause notice. It is also on record that the said Managing Director was arrested and sent to jail on the next day when the shortages were noticed and he preferred a bail application before the competent court and in the said bail application also there was no retraction of the first statement given by him. - we cannot come to the conclusion that the statements were recorded under duress and not voluntary. Regarding Notification No.13/81 - once a benefit is extended to the assessee under Notification for discharge of nil rate of duty and such conditions are violated, it would amount to short levy which requires to be demanded from the assessee only under Section 28 (1) of the Customs Act, 1962 - there is no dispute that the appellant is not able to provide the correct reconciliation of the materials which were imported duty free by him - Appeal are rejected

Issues Involved:
1. Voluntariness of the statements recorded.
2. Alleged violation of principles of natural justice.
3. Factual errors in stock quantity determination.
4. Appropriate wastage percentage.
5. Applicability of specific sections of the Customs Act.
6. Demand of duty under the correct provision.
7. Penalty imposition under the correct provision.
8. Notification conditions and their violation.
9. Requirement of permission from the Development Commissioner.
10. Input-output ratio and wastage determination.
11. Validity of the show-cause notice.

Issue-wise Detailed Analysis:

1. Voluntariness of the Statements Recorded:
The appellant contended that the statements recorded from the Managing Director were under duress and not voluntary. However, the Tribunal found that the retraction of the statement was not immediate and was only made at the stage of the show-cause notice. Additionally, the Managing Director confirmed his initial statement on 11.11.1998. Therefore, the Tribunal concluded that the statements were not recorded under duress.

2. Alleged Violation of Principles of Natural Justice:
The appellant initially claimed a violation of principles of natural justice due to the non-supply of certain documents. However, the counsel for the appellant did not press this point during the hearing, and it was conceded that there was no violation of natural justice.

3. Factual Errors in Stock Quantity Determination:
The appellant argued that there were factual errors in the determination of stock quantities, particularly regarding samples sent for export orders. The Tribunal found no evidence to support this claim, as the appellant could not establish proof of the samples sent for booking orders to foreign countries.

4. Appropriate Wastage Percentage:
The appellant requested wastage to be fixed at 34.76%. However, the learned counsel conceded that the Adjudicating Authority had correctly given the due wastage percentage, and this point was not pressed further.

5. Applicability of Specific Sections of the Customs Act:
The appellant argued that the provisions cited in the show-cause notice and the impugned order were incorrect, and the correct provisions would be under Sections 17, 46, 58, 59, 60, 61, 64, 65, 68, 71, and 72 of the Customs Act, 1962. The Tribunal found that the show-cause notice was correctly issued under Section 28 (1) of the Customs Act, 1962, for the violation of Notification No. 13/81. The Tribunal held that once the conditions of the notification are violated, the demand of duty under Section 28 (1) is justified.

6. Demand of Duty Under the Correct Provision:
The appellant contended that the demand of duty should be under Section 72 of the Customs Act, which deals with goods improperly removed from the warehouse. The Tribunal found that the demand under Section 28 (1) was appropriate, as the goods were imported duty-free under a notification, and the conditions of the notification were violated.

7. Penalty Imposition Under the Correct Provision:
The appellant argued that the penalty should be imposed under Section 117 and not Section 114A of the Customs Act. The Tribunal found that the penalties were correctly imposed under Sections 112(a) and 114A for the violation of the conditions of the notification and the clandestine removal of duty-free raw materials.

8. Notification Conditions and Their Violation:
The Tribunal found that the appellant violated the conditions of Notification No. 13/81 by not using the duty-free imported materials for manufacturing goods for export. The appellant failed to provide evidence to reconcile the imported materials, justifying the demand of duty and imposition of penalties.

9. Requirement of Permission from the Development Commissioner:
The appellant argued that the Customs Authorities should have informed the Development Commissioner before taking action. The Tribunal found that permission from the DGFT is required only for the demand of duty on non-fulfillment of export obligations, which was not the case here.

10. Input-Output Ratio and Wastage Determination:
The Tribunal found that the issue was not about the input-output ratio or the percentage of wastage but the non-accounting of the imported goods. The appellant failed to provide clear evidence that the duty-free imported materials were used for manufacturing goods for export.

11. Validity of the Show-Cause Notice:
The appellant raised multiple contentions regarding the validity of the show-cause notice. The Tribunal found that the show-cause notice was valid and correctly issued under Section 28 (1) of the Customs Act for the violation of the notification conditions.

Conclusion:
The Tribunal upheld the impugned order, confirming the demand of Rs. 49,88,529/- as customs duty, appropriating Rs. 18,00,000/- paid by the appellant, and imposing penalties under Sections 112(a) and 114A of the Customs Act. The Tribunal found no merit in the appellant's contentions and rejected the appeals.

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