2019 (6) TMI 1602 - AT - Customs

Time Limitation - Confiscation of imported goods as well as indigenous procured goods in year 2000 itself - goods confiscated lying in the bonded warehouse - depreciation as per the notifications 13/81-Customs as amended not granted by the adjudicating authority - renewal of license denied - HELD THAT - The appellant in the case has approached the Tribunal as many as four time against the various orders passed by the adjudicating authority/appellant authority on the same sets of facts and circumstances. In spite of quashing the demand/order against appellant by the Commissioner (Appeal) and the Tribunal the adjudicating authority has been issuing the show cause notices on one pretext or other contrary to the provision of Customs and Central Excise Act. Once the order passed by the Commissioner on the same issue which has been set aside by this Tribunals and also by the Commissioner (Appeal) the re-opening of the issue amounts to non compliance of the order of the Tribunal/Commissioner (Appeal). Once the department has issued the show cause notice before the expiry of LOP and that has been decided in appeal by setting aside that the same issue cannot be revived by another show cause notice even after the extension of LOP period. The department has not renewed the warehousing licence of the appellant after year 2000 and thereafter the demand was required to be made in terms of the notifications No.13/81 within prescribed time which has not been done by the department. Therefore the demand is also time bared. The entire goods which has been procured indigenously or imported is still lying in the appellant s warehouse. The appellant has requested for the disposal of confiscated goods under the provisions of Customs and Central Excise Act and recover the demand penalty against them. But the department has failed to do so - the impugned order is contrary to the provisions of the law on merits and also on the limitation and is not sustainable. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Demand of Customs duty under Section 28(1) of Customs Act, 1962.
2. Demand of Central Excise duty under Section 11A and Section 11AB of the Central Excise Act, 1944.
3. Confiscation of goods under Section 111(o) of the Customs Act.
4. Confiscation of goods under Rule 209 of erstwhile Central Excise Rules, 1944/Rule 25 of the Central Excise Rules, 2002.
5. Penalty under Section 112 of the Customs Act and Rule 209 of erstwhile Central Excise Rules, 1944/Rule 25 of Central Excise Rules, 2002.
6. Validity of subsequent show cause notices.
7. Depreciation of imported goods.
8. Non-fulfillment of export obligations and procedural compliance.
9. Repeated adjudication on the same issue.
10. Time-barred demands.

Issue-wise Detailed Analysis:

1. Demand of Customs Duty:
The appellant challenged the demand of Rs. 1,01,03,020/- under Section 28(1) of the Customs Act, 1962, along with interest at 20% per annum under Section 28AB. The appellant argued that the initial show cause notice issued on 30.03.2000 was dropped by the order dated 16.08.2000, making subsequent notices on the same issue legally untenable. The Tribunal found merit in the appellant’s argument, noting that repeated demands on the same issue, especially after previous orders setting aside such demands, were not permissible.

2. Demand of Central Excise Duty:
The demand of Rs. 6,18,198/- under Section 11A and Section 11AB of the Central Excise Act, 1944, was also contested. The appellant referenced the appellate order dated 31.08.2016, which set aside the earlier demand, emphasizing that liability arises only at the time of debonding, which had not occurred due to the extension of the License Obligation Period (LOP) until 31.03.2008. The Tribunal agreed, noting that the proceedings initiated by subsequent show cause notices lacked authority.

3. Confiscation of Goods under Customs Act:
The confiscation of goods valued at Rs. 2,47,02,701/- under Section 111(o) of the Customs Act, with an option for redemption on payment of Rs. 1,50,00,000/-, was disputed. The appellant argued that the confiscation was not sustainable as the goods were still in the factory and not misused or diverted. The Tribunal found that the confiscation was not justified, especially given the repeated setting aside of similar orders in the past.

4. Confiscation of Goods under Central Excise Rules:
The confiscation of goods valued at Rs. 46,32,223/- under Rule 209 of erstwhile Central Excise Rules, 1944/Rule 25 of the Central Excise Rules, 2002, with an option for redemption on payment of Rs. 25,00,000/-, was similarly contested. The Tribunal held that the confiscation was invalid, aligning with the appellant’s argument regarding the lack of misuse or diversion and the goods still being in the factory.

5. Penalty under Customs Act and Central Excise Rules:
Penalties of Rs. 1,00,00,000/- under Section 112 of the Customs Act and Rs. 5,00,000/- under Rule 209 of erstwhile Central Excise Rules, 1944/Rule 25 of Central Excise Rules, 2002, were imposed. The appellant argued that the penalties were unwarranted given the circumstances, including the non-operation of the business due to uncontrollable factors. The Tribunal found that the imposition of penalties was not justified, especially given the repeated setting aside of similar orders.

6. Validity of Subsequent Show Cause Notices:
The appellant argued that subsequent show cause notices issued after the initial notice was dropped were without legal authority. The Tribunal agreed, referencing various judicial precedents that prohibit repeated issuance of show cause notices on the same issue, especially after previous orders setting aside such demands.

7. Depreciation of Imported Goods:
The appellant provided evidence, including a Chartered Engineer’s certificate, showing significant depreciation of the imported goods' value. The Tribunal noted that the adjudicating authority failed to consider this depreciation, which was a critical factor in determining the demand.

8. Non-fulfillment of Export Obligations and Procedural Compliance:
The appellant admitted to non-fulfillment of export obligations due to uncontrollable circumstances, including the death of a director and litigation with the bank and excise department. The Tribunal noted that while non-fulfillment was an admitted fact, the procedural lapses by the adjudicating authority, including failure to consider previous favorable orders, rendered the demands unsustainable.

9. Repeated Adjudication on the Same Issue:
The Tribunal criticized the repeated adjudication on the same issue, noting that once an order is set aside by an appellate authority, reopening the issue through subsequent show cause notices is contrary to legal principles and judicial propriety.

10. Time-barred Demands:
The appellant argued that the demands were time-barred, especially given the non-renewal of the warehousing license after 2000. The Tribunal agreed, noting that the demands should have been raised within the prescribed time limits as per the relevant notifications, which was not done.

Conclusion:
The Tribunal allowed the appeal, setting aside the impugned order and providing consequential benefits to the appellant. The repeated issuance of show cause notices on the same issue, failure to consider previous favorable orders, and procedural lapses by the adjudicating authority were key factors in the Tribunal's decision.

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