2018 (5) TMI 681 - AT - Customs

100% EOU - time limitation - warehousing of goods - warehouse period was renewed upto 16.02.1991 and the SCN was issued on 29.06.1995 i.e. after approximately 41/2 years - The objection of the Revenue is that no period of limitation could be made applicable to warehoused goods - Held that - even though the appellant had imported duty free capital goods and installed in their factory premises but failed to commence commercial production making use of those capital goods and thereby violated the condition of import. The issue is no more res-integra and covered by the judgment of the Hon ble Gujarat High Court in Raj Exports case 2013 (3) TMI 29 - GUJARAT HIGH COURT , where it was held that initial inaction on part of the customs authorities for four years before the petition was filed by itself must be seen as unreasonable delay on their part - demand is barred by limitation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Validity of Show Cause Notice
2. Limitation period for recovery of duty
3. Jurisdiction of the Commissioner

Validity of Show Cause Notice:
The appellant raised a preliminary objection regarding the validity of the Show Cause Notice, contending that it was issued by the Assistant Commissioner but adjudicated by the Commissioner of Customs. The appellant argued that the demand was barred by limitation as it was issued after approximately 4 1/2 years from the expiry of the warehouse period. The appellant cited the judgment of the Hon'ble Gujarat High Court in Raj Exports vs Central Warehousing Corporation 2013 (287) ELT 166 (Guj.) in support of their argument.

Limitation period for recovery of duty:
The Revenue argued that the limitation prescribed under Section 28 of the Customs Act, 1962 was not applicable to the appellant as they had executed a bond to make good the duty foregone under Section 72 of the Customs Act, 1962. The Revenue contended that the Commissioner had the jurisdiction to exercise authority in the matter even if the Show Cause Notice was issued by the Assistant Commissioner of Customs.

Analysis:
After hearing both sides and examining the records, it was found that the appellant had imported duty-free capital goods but failed to commence commercial production as required, leading to a demand for the customs duty foregone on the imported goods. The issue of limitation was a crucial point of contention, with the appellant arguing that the demand was barred by limitation. The Tribunal referred to the judgment of the Hon'ble Gujarat High Court in Raj Exports case, which provided a detailed analysis of the relevant provisions of the Customs Act. The Tribunal concluded that the demand was indeed barred by limitation, as the Customs authorities had failed to initiate action within a reasonable time frame. The belated notice for recovery of customs duty was deemed unreasonable, and the Tribunal found the notice to be vague and general, lacking specific details as to why the duty was payable under the relevant sections of the Act.

Conclusion:
Based on the principles established in the Raj Exports case, the Tribunal held that the demand for customs duty was indeed barred by limitation. Consequently, the impugned order was set aside, and the appeal was allowed in favor of the appellant.