2012 (12) TMI 270 - AT - Customs

Import of machines violation of condition alleged that as against import of 8 machines permitted under the aforesaid licence, the appellants imported 10 machines Held that - Machines were imported in the guise of Spares and Accessories for Nos. of High Speed Take-up Machines in violation of Import Control Regulations and the Project Import Regulations - M/s. JKSL imported additional items of machinery and equipment for use in their Polyester Staple Fibre (PSF) plant against the aforesaid licences issued for their PFY Expansion project and cleared the same at concessional rate of duty applicable to Project Imports in gross violation of the Import Trade Control Regulations and Project Import Regulations by mis-representing the facts and giving the impression that the same were required for the PFY Expansion project - request is for post facto approval, which implies that after transferring the plant they are seeking the approval for the same - they have once again sought permission for shifting of the equipment from their PFY plant to their PSF plant. This very conduct of the appellant itself makes it clear that they have violated the terms and condition of the Project Import Regulations - they are not eligible for the benefit of the said Regulations and the concessional rate of duty prescribed under CTH No. 84.66/98.01 of the Customs Tariff Waiver of pre-deposit Held that - Appellants had a cash and Bank balance of Rs. 13.6 crores as on 31-3-2011 and, therefore, the plea of the financial hardships made by the appellants is not borne out of the record of the case - appellant directed to make a pre-deposit of 50% of the customs duty confirmed against them

Issues Involved:
1. Delay in initiating proceedings.
2. Jurisdiction of Commissioner of Customs (Import), Mumbai.
3. Requirement of filing reconciliation statement.
4. Demand of duty on two High Speed Take-up machines.
5. Shifting of machinery from PFY plant to PSF plant.
6. Financial hardship and pre-deposit requirement.

Detailed Analysis:

1. Delay in Initiating Proceedings:
The appellants argued that the proceedings were initiated after an inordinate delay of 20 years, which vitiates the demand. They cited various judgments to support their contention that such delays are unreasonable and unlawful. However, the tribunal found that since the assessments were provisional, the time limit for demand of duty does not apply until the finalization of the assessment. The delay was attributed to the appellants' failure to submit necessary documents, and thus, the plea of delay was rejected.

2. Jurisdiction of Commissioner of Customs (Import), Mumbai:
The appellants contended that the Commissioner of Customs (Import), Mumbai, lacked jurisdiction as there was no evidence showing that the clearances for home consumption were effected through Mumbai Port. The tribunal, however, noted that the project contracts were registered at Mumbai Port and finalization of these contracts, including the determination of duty, fell within the jurisdiction of the Commissioner of Customs, Mumbai. Therefore, the contention regarding jurisdiction was dismissed.

3. Requirement of Filing Reconciliation Statement:
The appellants argued that filing a reconciliation statement was not mandatory for imports made prior to January 1992 under the 1965 Regulations. The tribunal referred to Public Notices issued at the relevant time, which clearly required the submission of reconciliation statements within three months of the last shipment clearance. Thus, the tribunal rejected the appellants' argument, stating that the requirement was indeed mandatory.

4. Demand of Duty on Two High Speed Take-up Machines:
The appellants denied the allegation of mis-declaration and argued that the delayed issuance of the show-cause notice had incapacitated them from providing records, which were lost in a fire. The tribunal found that the assessments were provisional and the appellants had failed to submit necessary documents for finalization. Hence, the demand for duty on the two High Speed Take-up machines was upheld.

5. Shifting of Machinery from PFY Plant to PSF Plant:
The appellants claimed that shifting machinery did not violate the Project Import Regulations. However, the tribunal noted that the appellants had sought post facto approval for the transfer, indicating a violation of the terms and conditions of the Project Import Regulations. The tribunal cited relevant judgments to support the view that such shifting disqualifies the concessional rate of duty benefits under the Project Import Regulations. Consequently, the appellants' contention was rejected.

6. Financial Hardship and Pre-deposit Requirement:
The appellants claimed financial hardship and submitted a balance sheet to support their plea for waiver of pre-deposit. The tribunal, upon reviewing the balance sheet, found that the appellants had sufficient cash and bank balance. Considering the interest of revenue, the tribunal directed the appellants to make a pre-deposit of 50% of the customs duty confirmed within eight weeks, failing which the appeal would not be entertained.

Conclusion:
The tribunal dismissed the appellants' contentions on delay, jurisdiction, and the requirement of reconciliation statements. It upheld the demand for duty on the two High Speed Take-up machines and confirmed the violation of Project Import Regulations due to the shifting of machinery. The tribunal also directed the appellants to make a pre-deposit of 50% of the customs duty, considering the financial position of the appellants and the interest of revenue.

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