2015 (5) TMI 943 - AT - Customs

100% EOU - Exemption under 136/94-CE - Double jeopardy - Non fulfillment of export obligation - Import of goods before 2003 - Confiscation of goods - Imposition of penalty - whether the duty foregone at the time of procurement of impugned goods is recoverable or not - Held that - there cannot be any doubt/dispute that for the goods procured prior to 31.3.2003 the conditions of Notification No. 52/2003-Cus dated 31.3.2003 and 22/2003-CE dated 31.3.203 would be of no avail. Whether the duty foregone at the time of procurement of impugned goods is recoverable or not - Held that - Impugned goods imported duty free were clearly rendered liable to confiscation as they were cleared duty free under Notification No. 126/94-Cus. but the condition of exemption was not fulfilled by them. - No disability in the Rule 173Q which makes it inapplicable to 100% EOU. - Rule contains Sub-Rule (1) and Sub-Rule (2) and Sub-Rule (2) only states that An order Sub-Rule (1) shall be issued by Central Excise officer following the principles of natural justice . Thus non intention of Sub Rule of Rule 25 ibid has in no way prejudiced the appellants. Appellants contention of double jeopardy on the ground that they have already been penalised under the FTDR Act 1992 is totally invalid as the ingredients of offences under the FTDR Act and the Customs Act 1962/Central Excise Act 1944 are different. It needs to be appreciated that this case does not involve clandestine removal of goods or any wilful mis-statement or suppression of facts and even the appellate body of the DGFT in the given circumstances had taken a lenient view with regard to imposition of penalty for the violation of the provisions of the Foreign Trade Development and Regulation Act. In these circumstances the penalties imposed deserve to be substantially attenuated. - Decided partly in favour of assessee.

Summary

Issues Involved:
1. Applicability of Notifications No. 52/2003-Cus and No. 22/2003-CE.
2. Non-fulfillment of export obligations.
3. Proportionate payment of duty foregone.
4. Debonding and payment of duty on depreciated value.
5. Imposition of penalties under Section 112 of the Customs Act, 1962 and Rule 173Q of Central Excise Rules, 1944/ Rule 25 of Central Excise Rules, 2002.
6. Double jeopardy claim.
7. Liability of goods to confiscation.

Issue-wise Detailed Analysis:

1. Applicability of Notifications No. 52/2003-Cus and No. 22/2003-CE:
The appellants contended that all duty-free procurements were made prior to 2003, making Notifications No. 52/2003-Cus and No. 22/2003-CE irrelevant. The tribunal agreed, stating that the goods were procured before these notifications were issued, thus the conditions of these notifications were not applicable.

2. Non-fulfillment of Export Obligations:
The appellants were required to export 100% of their production (excluding rejects not exceeding 5%) and achieve a minimum value addition of 90%. They failed to meet these obligations, exporting only Rs. 98.02 lakhs worth of roses and clearing the rest in the Domestic Tariff Area (DTA). The tribunal upheld that the appellants violated the conditions of the exemption notifications by not fulfilling their export obligations.

3. Proportionate Payment of Duty Foregone:
The appellants argued that the condition for proportionate payment of duty foregone was incorporated in the relevant notifications only in 2008. The tribunal noted that the adjudicating authority's reference to Notifications No. 52/2003-Cus and No. 22/2003-CE was out of context as these were issued after the duty-free procurement. However, the tribunal emphasized that the appellants did not fulfill the conditions of the exemption Notification No. 136/94-CE, thus the entire duty foregone was recoverable.

4. Debonding and Payment of Duty on Depreciated Value:
The appellants claimed they paid duty on the depreciated value of the capital goods upon debonding, which followed the cancellation of their Letter of Permission (LOP). The tribunal acknowledged that debonding follows the cancellation of LOP but highlighted that the issue was the non-eligibility for exemption notifications due to non-fulfillment of conditions. The tribunal dismissed the argument that duty should be calculated on the depreciated value, maintaining the duty demand as confirmed by the adjudicating authority.

5. Imposition of Penalties:
The tribunal examined the penalties under Section 112 of the Customs Act, 1962, and Rule 173Q of Central Excise Rules, 1944/ Rule 25 of Central Excise Rules, 2002. The appellants argued that Rule 173Q did not apply to 100% EOUs and that the adjudicating authority did not specify the sub-rule under Rule 25. The tribunal found no merit in these arguments, affirming the applicability of penalties but reducing them to Rs. 1 lakh under Section 112 and Rs. 12 lakhs under Rule 173Q/ Rule 25.

6. Double Jeopardy Claim:
The appellants contended that penalizing them again under the Customs Act and Central Excise Act amounted to double jeopardy, as they had already been fined under the FTDR Act. The tribunal rejected this claim, noting that the offences under the FTDR Act and the Customs Act/Central Excise Act are different, thus penalties under both statutes do not constitute double jeopardy.

7. Liability of Goods to Confiscation:
The tribunal upheld that the goods were liable to confiscation under Section 111(o) of the Customs Act, 1962, as the conditions of the duty-free import exemption were not fulfilled. This justified the imposition of penalties under Section 112.

Conclusion:
The tribunal upheld the impugned order confirming the recovery of customs and central excise duties along with interest and penalties, except for reducing the penalties to Rs. 1 lakh under Section 112 of the Customs Act, 1962, and Rs. 12 lakhs under Rule 173Q of Central Excise Rules, 1944/ Rule 25 of Central Excise Rules, 2002.