2017 (7) TMI 318 - AT - Customs

Benefit of N/N. 92/04-Cus dated 10th September 2004 - whether credit is permitted to be used, when duty was not paid at the time of import? - Held that - The nomenclature of the various export promotion schemes under the Foreign Trade Policy notwithstanding, they are, in essence, exemption from duty that are operated through notification issued under section 25 of Customs Act, 1962 for imports that are conditional upon compliance with the notification. A benefit that was not claimed at the time of import is not available for being extended in recovery proceedings. Accordingly, there is no merit in the claim of the appellant for discharge of duty liability by recourse to the exemption to the extent of credit available under the scheme. The goods are not available for confiscation. In the absence of the availability of said goods or its lien, with the confiscating authority, redemption is an impossibility and the quid pro quo, sanctified by law, for such redemption is evidently absent - the redemption fine set aside. The disallowance of recourse to the exemption notification and the imposition of penalty is upheld. Appeal allowed - decided partly in favor of appellant.

Issues involved:
1. Confiscation of laptops imported under bill of entry no. 587585/30.03.2006
2. Disallowance of discharge of duty liability under the Duty Free Certificate of Entitlement (DFCE) scheme
3. Imposition of penalty

Detailed Analysis:
1. The appeal was filed against the order-in-appeal upholding the confiscation of laptops imported under a specific bill of entry. The Commissioner of Customs (Appeals) upheld the confiscation but allowed redemption on payment of a specified amount and imposed a penalty. The detriments averred in the appeal included the duty liability without utilizing credit under the DFCE scheme, confiscation of goods, and penalty imposition.

2. The appellant contended that they were entitled to clear goods under a green channel facility and highlighted the exemption granted for duty payment on goods imported for export under the Foreign Trade Policy. The dispute arose regarding the utilization of an exemption notification for duty payment when duty was not paid at the time of import.

3. It was established that the appellant cleared goods under the green channel facility but had discrepancies in the number of invoices declared and the actual value of goods imported. The appellant later requested regularization of the import, acknowledging the errors.

4. The appellant claimed that the inaccurate declaration was due to the supplier's failure to provide all invoices at the time of shipment. They sought to rectify the mistake by discharging duty liability using credit and bringing missing goods on record, emphasizing their intention to comply with duty obligations.

5. Despite the appellant's efforts to rectify the non-discharge of duty liability, a significant delay was noted in seeking regularization. The delay raised concerns about the appellant's motives and compliance, indicating a breach of trust that contradicted the facility's intended purpose.

6. The judgment emphasized that duty liability under the Customs Act should be discharged by depositing the assessed duty and not through credit schemes. The claim for duty discharge using available credit post-import was deemed invalid, as benefits not claimed during import cannot be extended later.

7. The appellant was criticized for not promptly reporting discrepancies in the imported goods, leading to suspicions of intent to evade duty. The liability for confiscation of undeclared goods was deemed justified due to the lack of diligence in compliance.

8. While confiscation of goods was warranted, their unavailability rendered redemption impossible. Consequently, the imposition of a fine in lieu of confiscation was deemed futile. The penalty under section 112 of the Customs Act was upheld due to the confiscation liability.

9. The judgment set aside the redemption fine but upheld the disallowance of utilizing the exemption notification and the penalty imposition. The order was modified accordingly, and the appeal was disposed of, emphasizing compliance and duty obligations.

(Pronounced in Court on 23/05/2017)

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