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2013 (10) TMI 805 - AT - Customs100% EOU - Waiver of pre deposit - Import of elite component sets which was not declared - Jurisdiction of commissioner - Held that - prima facie, the jurisdiction point could not be sustainable in view of Board Circular No. 16/2004-Cus. dated 16.2.2004. As regards the demand of duty is barred by limitation, it is seen that the audit party detected the non-declaration of the machineries and therefore the limitation issue cannot be considered at this stay stage. Further, the policy issue would be looked into at the time of appeal hearing at length. Prima facie, we find that in Appeal No. C/129/2012 the applicant has obtained EPCG licence. It is also noted that after detection of the irregularity, they have paid the differential duty of about Rs. 11 lakhs. The learned counsel placed the order dated 28.7.2010 of the Joint Director General of Foreign Trade imposing penalty of Rs. 12 lakhs and Rs. 1 lakh in the present case for the irregularity. In Appeal No. C/130/2012, the applicant s failed to produce the EPCG licence and hence the applicants are unable to make out a prima facie case for waiver of predeposit of entire amount of dues - stay granted partly.
Issues involved:
1. Duty demand on undeclared imported/indigenous capital goods post de-bonding from EOU scheme. 2. Jurisdiction of Central Excise Commissioner versus Customs Port Authorities for duty collection. 3. Limitation period for raising duty demand post physical verification. 4. Sustainability of demand in light of EPCG license and policy on de-bonded goods. 5. Financial hardship plea and waiver of predeposit. Analysis: 1. The judgment involves two appeals concerning duty demands on undeclared imported/indigenous capital goods after de-bonding from the EOU scheme. The duty amounts to Rs.1,06,40,397/- in Appeal No. C/129/2012 and Rs.93,01,216/- in Appeal No. C/130/2012, along with interest and penalties. 2. The appellant argued that the Central Excise Commissioner's order was beyond jurisdiction as duty should have been collected by the Customs Port Authorities. They contended that the demand was time-barred due to physical verification on 9.1.2008 and 10.1.2008, preceding the show-cause notices of 12.3.2010 and 10.6.2010. Additionally, they cited the issuance of an EPCG license and policy restrictions on duty demands for de-bonded goods. 3. The Commissioner's findings were supported by the Assistant Commissioner, emphasizing the absence of an EPCG license in Appeal No. C/130/2012. The Tribunal noted that the jurisdiction argument was not sustainable per Board Circular No. 16/2004-Cus. and that the limitation issue could not be considered at the stay stage due to audit party detection. 4. The Tribunal found that the appellant in Appeal No. C/129/2012 had obtained an EPCG license and paid a portion of the differential duty post-irregularity detection. However, in Appeal No. C/130/2012, the lack of an EPCG license hindered a prima facie case for predeposit waiver. 5. Consequently, the Tribunal directed the appellants to predeposit Rs.10,00,000/- and Rs.25,00,000/- in Appeal No. C/129/2012 and Appeal No. C/130/2012, respectively, within eight weeks. Upon compliance, the predeposit of the remaining dues in both appeals was waived, and recovery stayed during the appeal pendency.
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