2007 (7) TMI 263 - AT - Customs

Appellants had imported second-hand machinery under EPCG licence issued by the Director-General of Foreign Trade confiscation of machinery appellant submitted that they had financial difficulties & their application for rehabilitation was pending before BIFR - appellants claim to have discharged export obligation under the EPCG licence and to have already obtained the requisite certificate from the DGFT, it is for the Commissioner to consider this claim and take appropriate decision

Summary

Issues:
Import of second-hand machinery under EPCG licence, duty demand under Customs Act, confiscation of machinery, penalty imposition, premature show-cause notice, export obligation fulfillment, appeal against Commissioner's order.

Analysis:
The appellants imported second-hand machinery under an EPCG licence and cleared it at a concessional rate of duty under a specific notification. The Customs authorities issued a show-cause notice demanding duty forgone, proposing confiscation of the machinery, and imposing a penalty on the importer. The noticee contended that the show-cause notice was premature as it was issued before the licence's validity period expired. They also cited financial difficulties for not fulfilling the export obligation and pending application for rehabilitation before BIFR. The Commissioner of Customs confirmed the duty demand, ordered machinery confiscation with redemption option, and imposed a penalty, leading to the present appeal.

Upon hearing both sides, it was revealed that the DGFT certified the appellants' fulfillment of the export obligation under the EPCG licence. The foreign Trade Development Officer's letter dated 9-10-2004, along with statements detailing the discharge of export obligation, was submitted as proof. Considering this new evidence, the Tribunal decided that since the appellants claimed to have met the export obligation and obtained certification from the DGFT, the Commissioner should reevaluate the claim and make a fresh adjudication. Consequently, the Tribunal set aside the impugned order, allowing the appeal by remanding the case to the Commissioner of Customs for a new decision after providing the party with a fair opportunity to substantiate their claim and present their case in person.

In conclusion, the Tribunal's decision to remand the matter to the Commissioner for fresh adjudication based on the new evidence of export obligation fulfillment certified by the DGFT showcases a fair approach to resolving the issues raised by the appellants regarding the premature show-cause notice and non-fulfillment of export obligations due to financial difficulties. The judgment ensures that the party gets a fair chance to present their case and have their claims considered appropriately by the adjudicating authority.