2019 (2) TMI 266 - AT - Customs

Expiry of warehousing period - Exemption to specified goods imported for purpose of development of software for export, denied - violation of condition no. 6 of N/N. 138/91- Cus dated 22nd October 1991 - demand of customs duty foregone on capital goods - recovery sought in terms of section 72 of Customs Act, 1962 - Held that - It is not in dispute that the warehousing period expired in December 1998 and, if the appellant was interested in not extinguishing the privilege of exemption, application for renewal should have been filed. It would appear from the facts and circumstances that the importer appellant had, after ownership had passed on to M/s VSNL, ceased to retain interest in the continued operation of the asset under the exemption notification. The failure to retain status as warehouse for the location of the imported goods compromised this obligation with consequence of duty liability and penalties. There is no valid ground for mitigation or escapement in the appeal of the importer that requires consideration by us. Mere technicalities, cannot overcome the obligations stipulated in law. The claims of the appellant are without sustenance. Appeal dismissed.

Summary

Issues involved:
1. Application for alteration of cause title due to amalgamation.
2. Violation of customs regulations regarding warehousing and transfer of imported goods.
3. Recovery of customs duty and penalty.
4. Correctness of assessable value determination.
5. Invocation of extended period for demand under Customs Act.
6. Correct citing of exemption notification.
7. Jurisdictional challenge in the face of the bar of limitation.
8. Compliance with conditions of exemption notification.

Issue 1: Application for alteration of cause title due to amalgamation
The judgment involved an application for alteration of cause title due to the amalgamation of two companies. The appellant-assessee merged M/s Pune Software Park Pvt Ltd with M/s Capgemini India Private Limited, necessitating the alteration of the cause title. The tribunal allowed the application and directed the necessary changes to be made.

Issue 2: Violation of customs regulations regarding warehousing and transfer of imported goods
The appellant, formerly known as Software Technology Park Ltd, imported goods under a customs bonded warehouse license. Upon expiry of the warehouse license, it was found that the imported goods were transferred to another entity without approval from the bond authorities. Proceedings were initiated against the appellant for violation of customs regulations, leading to a demand for payment of customs duty and penalties.

Issue 3: Recovery of customs duty and penalty
The adjudicating authority ordered the recovery of a portion of the customs duty foregone on the imported goods and imposed a penalty under the Customs Act, 1962. The Revenue appealed against the allowance of depreciation for computing the assessable value, while the appellant challenged the recovery on grounds of incorrect exemption notification citation and limitation.

Issue 4: Correctness of assessable value determination
The Revenue argued that the assessable value should be based on the transaction value of the transferred asset, while the tribunal highlighted the contradiction in this approach. The tribunal emphasized that the duty recovery should be linked to the expiry of the warehousing bond and not the transfer date, as alleged by the Revenue.

Issue 5: Invocation of extended period for demand under Customs Act
The tribunal analyzed the invocation of the extended period for demand under the Customs Act. It clarified that the demand under section 72 of the Customs Act, 1962 was not subject to the limitation period under section 28, emphasizing the legality of the demand in this context.

Issue 6: Correct citing of exemption notification
The appellant contested the incorrect citing of the exemption notification in the show cause notice. Despite the oversight, the tribunal held that the interchange of applicable notifications was not fatal to the proceedings, citing relevant legal precedents.

Issue 7: Jurisdictional challenge in the face of the bar of limitation
The appellant challenged the jurisdiction based on the bar of limitation, citing relevant court decisions. However, the tribunal differentiated the present case, which involved a demand under section 72 of the Customs Act, from cases under section 28 and section 11A of other acts.

Issue 8: Compliance with conditions of exemption notification
The tribunal noted that the appellant failed to renew the warehouse license, leading to the loss of exemption privileges. The tribunal emphasized that technicalities could not override the obligations stipulated in law, leading to the dismissal of both appeals.

In conclusion, the tribunal dismissed both appeals, emphasizing the importance of compliance with customs regulations and the legal obligations associated with exemption notifications and warehouse licenses.