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2008 (6) TMI 124 - AT - CustomsTransfer of goods from one bonded warehouse to another i.e. from EHTP to STP or vice versa procedural lapse of not obtaining amended Customs license Demand raised on ground that appellant used the capital goods procured free of duty for BPO activities, not for manufacture and export of electronic hardware held that when appellants got approval for the same from STPI Director then it is not open to customs to demand duty mere for technical violation demand set aside
Issues Involved:
1. Demand of duty on goods used for activities other than those permitted under the EHTP scheme. 2. Diversion of capital goods out of the EHTP division. 3. Movement of goods between bonded premises without following proper procedures. 4. Confiscation of goods and imposition of penalties. Issue-Wise Detailed Analysis: 1. Demand of Duty on Goods Used for Activities Other than Permitted: The main allegation against the appellant, M/s. Honeywell Technology Solutions Lab (P) Ltd. (HTSL), was that they used capital goods procured duty-free for activities not permitted under Notification 52/2003-Cus. dated 31-3-2003. Specifically, the goods were used for Business Process Outsourcing (BPO) instead of manufacturing hardware. The appellant argued that due to a sluggish market in the USA, they applied for and received permission to partially de-bond the EHTP unit and bond it as an additional premise under STP Unit II. This permission was granted by the Director of Software Technology Parks of India (STPI) on 10-3-2005. The appellant contended that the delay in seeking permission was inadvertent and not deliberate, and that the STPI Director had regularized the activity and imposed a penalty of Rs. 3.1 lakhs. The Tribunal found that the procedural irregularities were regularized by the STPI Director, and the goods were still within the bonded premises, thus no justification for the demand of duty existed. 2. Diversion of Capital Goods Out of the EHTP Division: The Commissioner alleged that some capital goods procured duty-free were not available in the EHTP premises and were diverted out. The appellant argued that the goods were moved due to space constraints and were still within the bonded premises of their STP units. They provided evidence of physical verification by STPI officials, which confirmed the availability of the goods. The Tribunal noted that the movement of goods between bonded premises without proper customs permission was a procedural lapse, but the goods were still within the bonded premises, thus no duty demand was justified. 3. Movement of Goods Between Bonded Premises Without Following Proper Procedures: The Commissioner found that goods were moved between the EHTP and STP units without following the Inter-Unit Transfer (IUT) procedure. The appellant contended that the goods were moved due to operational exigencies and space constraints, and that the STPI Director had condoned the delay and regularized the activity. The Tribunal found that the relevant customs notification covered both software and hardware, and the appellant had brought in significant foreign exchange through exports. The Tribunal also noted that the STPI Director's approval and the subsequent regularization of the activity negated the need for duty demand based on procedural lapses. 4. Confiscation of Goods and Imposition of Penalties: The Commissioner imposed penalties on HTSL and its officers under Section 112 of the Customs Act, 1962, and held the impugned goods liable for confiscation. The appellant argued that the goods were still within the bonded premises and had not been removed in contravention of Section 71 of the Customs Act. The Tribunal found that the conditions for demanding duty under Section 72 of the Customs Act had not arisen, as the goods were still in the bonded premises and had not been diverted or misused. The Tribunal also noted that the STPI Director, being the bonding officer, had verified and certified the availability of the goods. The Tribunal concluded that the procedural lapses did not warrant the confiscation of goods or the imposition of penalties. Conclusion: The Tribunal set aside both the impugned orders, finding that the procedural irregularities were regularized by the STPI Director, and the goods were still within the bonded premises. The demands for duty, confiscation of goods, and imposition of penalties were found to be unjustified. The appeals were allowed with consequential relief.
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