2018 (5) TMI 614 - AT - Customs

100% EOU - Violation of import conditions - import of capital goods and raw materials - demand alongwith penalties - personal penalties on Shri A.G. Subbarayan, AGM, Nagarjuna Aqua Exports Limited - granting depreciation to the main appellant in respect of the demands raised on capital goods. - Held that - in respect of clearances of prawns to DTA, without payment of applicable duties, we hold that during the period upto 11.05.2001, the excise duty on sale of shrimp seed was chargeable under main section 3(1) of Central Excise Act, 1944 and during the period till 11.05.2001, excise duty was nil - the demands raised on point No. 1, to the extent they are for the period prior to 11.05.2001, are set aside and for the period post 11.05.2001, demands are confirmed as provisions of section 3(1) of Central Excise Act, 1944 were amended to hold that any goods brought to any other place are liable to Central Excise Duty. - This is the law which has been settled by Hon ble Apex Court in the case of NCC Blue Water Products Limited. 2010 (9) TMI 13 - Supreme Court of India Clearance of shrimp seed to non DTA - It is an admitted fact that shrimp seeds which were cleared by utilising such material was cleared in DTA - the demands confirmed by the adjudicating authority as customs duty on the inputs is correct and in consonance to the law. Demand of customs duty on the capital goods not found in the factory premises - Held that - there is nothing on record to show that the said goods were stolen or washed away during flood. In the absence of any evidence, we are of the view that the demands confirmed by the adjudicating authority needs to be upheld. At this juncture, Revenue s appeal for enhancing the said demands on the ground that depreciation granted by the adjudicating authority seems to be erroneous as the capital goods were not found in the factory premises, is an argument which needs to be rejected as there is no dispute that these capital goods were brought into EOU as per notification No. 196/94 - Cus, installed and were used. If that be so, the depreciation allowed by the adjudicating authority seems to be in consonance with the Board Circular on the point. In view of this, we find no merits in the appeal filed by Revenue. Time limitation - Held that - appellant being an 100% EOU had given an undertaking and executed a bond for adhering to the conditions of the N/N. 196/94 and as recorded, has violated the conditions - argument on limitation is rejected. Confiscation and redemption fine upheld - penalty reduced. Regarding personal penalty - Held that - appeal stands abated due to demise of the individual on 13.09.2006 - appeal disposed off as abated. Appeal disposed off.

Summary

Issues:
- Appeals against Order-in-Original No. CEX - 06/2005
- Confirmation of demands and penalties imposed
- Granting depreciation to the main appellant
- Clearances of prawns and shrimp seed without payment of duties
- Demand of customs duty on imported raw materials and capital goods
- Invocation of extended period under section 28 of Customs Act, 1962
- Abatement of appeal due to demise of an individual appellant
- Dispute over demands raised against Nagarjuna Aqua Exports Limited
- Clearance of shrimp seed to non-DTA
- Demand of customs duty on missing capital goods
- Argument on limitation
- Confiscation of inputs and capital goods
- Imposition of penalty

Analysis:

The judgment involves three appeals challenging Order-in-Original No. CEX - 06/2005, focusing on confirmation of demands and penalties. Appeal E/227/2006 by Nagarjuna Aqua Exports Limited contests demands and penalties, while E/275/2006 by an individual appellant challenges personal penalties. The Revenue's appeal, E/519/2006, disputes the granting of depreciation on capital goods. The main appellant, an EOU engaged in shrimp production, faced demands for clearing prawns without duties, violating notification terms, and importing raw materials and capital goods. The adjudicating authority upheld most demands but allowed depreciation on capital goods and imposed penalties.

Regarding the clearances of prawns and shrimp seed, the Tribunal noted the law's evolution, setting aside demands pre-11.05.2001 but confirming post-amendment demands. The Tribunal rejected arguments against customs duty demands on inputs, emphasizing compliance with notification conditions. Disputes over missing capital goods were dismissed due to lack of evidence supporting theft or loss during floods, upholding demands. The Tribunal also rejected Revenue's appeal against depreciation, finding it aligned with Board Circular guidelines.

On the limitation issue, the Tribunal upheld demands due to the appellant's violation of notification conditions, citing legal precedents. Confiscation of inputs and capital goods was deemed appropriate for non-compliance, with reasonable redemption fines imposed. The penalty of ?10.00 lakhs was reduced to ?5.00 lakhs considering the total demand amount, distress faced by the appellant, and the interest of justice. The Tribunal disposed of all appeals, maintaining the penalty with the specified modification. Lastly, an individual appellant's appeal abated due to the appellant's demise during the proceedings.