2017 (3) TMI 1112 - AT - Customs

Duty exemption entitlement scheme - violation of condition of licence - demand of duty and penalty - Held that - respondent had procured the advance licence after the export obligation had been fulfilled by the original holder and utilised it for import of goods free of duty. It would appear that the original holder exported goods using domestically procured inputs and transferred the unutilised portion to respondent - respondent was neither the manufacturer nor the exporter, the manner in which export obligation was fulfilled, and more particularly, the compliance with conditions thereof, would, in the normal course be not within their knowledge. It would appear that review order has been finalized based on surmises and assumptions that such credit had been availed on the inputs without any evidence of it being placed before the reviewing authority - demand set aside - appeal dismissed - decided against Appellant-Revenue.

Summary

Issues:
1. Appeal against dropping of proceedings under duty exemption entitlement scheme.
2. Point of limitation regarding the show cause notice issuance date.
3. Demand raised under Customs Act, 1962 with penalties proposed.
4. Lack of appearance by the respondent during the hearing.
5. Appeal rejection based on the threshold for appeal under the New Litigation Policy.
6. Procurement and utilization of advance license for duty-free goods import.
7. Lack of knowledge by the respondent on export obligation fulfillment.
8. Review order based on assumptions without evidence.
9. Scope of invoking recovery provisions against transferee of advance license.
10. Ascription of role to respondent in the show cause notice.

Analysis:
1. The appeal pertains to the dropping of proceedings against goods imported under the duty exemption entitlement scheme. The show cause notice, issued on 29th January 1999, aimed to recover foregone duty on imports under exemption no. 203/92-Cus dated 19th May 1992. The matter was remanded to the Tribunal as the importer's submission had not been considered initially.

2. The demand under section 28 of the Customs Act, 1962, with penalties proposed under sections 112 and 114, was confirmed by the adjudicating authority. However, the appeal highlighted the limitation issue, as the notice did not cover the demand against a specific bill of entry, potentially falling under the threshold for appeal as per the New Litigation Policy.

3. The respondent, not being the manufacturer or exporter, had utilized an advance license for duty-free import after the export obligation was fulfilled by the original holder. The Tribunal noted that the original holder was a merchant exporter and could not have availed MODVAT credit, with no evidence presented to challenge the adjudicating authority's findings.

4. The review order was criticized for being based on surmises and assumptions without concrete evidence of MODVAT credit availed on inputs. The judgment cited Commissioner of Customs (Imports), Bombay v. Hico Enterprises [2008 (228) ELT 161 (SC)] to establish the limitations on invoking recovery provisions against the transferee of an advance license.

5. The judgment emphasized that the transferee cannot be compelled to prove export obligation fulfillment by the original license holder, as per the Supreme Court's ruling. The lack of reference to the respondent in the show cause notice further supported the dismissal of the appeal, upholding the impugned order.

6. In conclusion, the impugned order was upheld, and the appeal was rejected based on the legal principles surrounding the transfer of advance licenses and the responsibilities of transferees in fulfilling export obligations.