2019 (8) TMI 677 - HC - Central Excise

Imposition of penalty - removal of trucks on the basis of invalidation letters issued in terms of Foreign Trade Policy (FTP) 2009-14 - supplies were not effected against International Competitive Bidding (ICB) - HELD THAT - In the present case, finding of facts arrived at by the tribunal reveals that there was no element of fraud and suppression etc. with an intent to evade payment of duty. The department was informed by the assessee about duty and clearance also along with reasons - The tribunal has gone to the extent in holding that the department was also having knowledge about the error and in those circumstances, the tribunal has allowed the appeal preferred by the assessee. In the considered opinion of this Court, purely question of fact is involved in the present appeal and no substantial question of law arises in the matter, therefore, the admission is declined.

Summary

Issues involved:
1. Imposition of penalty related to clearance of vehicles under Foreign Trade Policy without payment of duty against International Competitive Bidding (ICB) by a manufacturing company.
2. Interpretation of provisions under Foreign Trade Policy (FTP) 2009-14 regarding deemed export benefits, terminal excise duty, and conditions for duty exemption.
3. Assessment of whether the company had fraudulent intent to evade duty payment or had informed the department about the duty and clearance.

Analysis:
1. The case involved a manufacturing company engaged in producing Heavy Commercial Vehicles and Chassis of Vehicles under specific tariff headings. The issue revolved around the company clearing vehicles to an EPCG license holder based on invalidation letters issued under the Foreign Trade Policy (FTP) 2009-14 without payment of duty against International Competitive Bidding (ICB). The department objected to the duty exemption, stating that the company should have first paid Terminal Excise Duty (TED) and then claimed a refund. The department sought recovery of central excise duty along with interest for imposing a penalty.

2. The Tribunal analyzed the relevant provisions of the FTP, highlighting that supplies to EPCG holders based on invalidation letters were eligible for deemed export benefits and exemption from Terminal Excise Duty if made against ICB. The Tribunal emphasized the procedures for claiming benefits under FTP, including the application process, documentation requirements, and the refund process for duty paid. It was noted that the duty exemption was conditional and applicable only if supplies were made against ICB, with specific procedures outlined for claiming refunds and exemptions.

3. The Tribunal found that there was no evidence of fraud or intent to evade duty payment by the company. The company had informed the department about the duty and clearance, and the department was aware of the error. The company had deposited the duty amount before the show-cause notice was issued. The Tribunal concluded that no substantial question of law arose in the matter, as it primarily involved factual findings. The appeal was allowed in favor of the company based on the Tribunal's assessment of the facts and circumstances.

In summary, the judgment focused on the company's compliance with FTP provisions, the conditions for duty exemption, and the absence of fraudulent intent in the duty clearance process. The analysis highlighted the procedural aspects of claiming benefits under FTP and the Tribunal's decision based on factual findings regarding the duty payment and department's knowledge of the situation.