2005 (11) TMI 116 - AT - Customs

Validity Of Order-in-Original - 100% Export Oriented Unit - Imports capital goods, consumables, spares, raw materials, equipment - Exemption from excise duty in terms of the Notification No. 13/81-Cus. - Confiscation - Demand duty - Penalty - HELD THAT - The fact that the EOU has imported goods worth Rs. 2,62,83,048/- is not in dispute. Due to certain difficulties, they were not in a position to produce the items to be exported. Hence they could not completely fulfill, the export obligations. Since they have failed to fulfill the export obligation they were not entitled for the benefit of the exemption notifications. Hence the imported goods are liable for confiscation u/s 111(o) of the Customs Act 1962. The order of the Commissioner as regards the liability to confiscation and demand of duty is legal and proper. We do not have any reason to interfere with the same. However, as regards the penalty, we do not find any mala fide. In view of the vicissitudes of business environment, the appellants were unable to fulfill export obligation. Hence imposition of penalty is not justifiable. As far as the redemption fine is concerned, we feel that in the interest of justice, it could be reduced to Rs. 10,00,000/- (Rupees Ten Lakh only). The appeal is disposed of in the above matter.

Summary

Issues:
- Failure to fulfill export obligations under exemption notifications
- Confiscation of imported goods under Section 111(o) of the Customs Act 1962
- Imposition of penalty under Section 112 of the Customs Act 1962
- Applicability of recent legal decisions on post-importation conditions in exemption notifications

Analysis:
The case involved an appeal against an Order-in-Original passed by the Commissioner of Central Excise, Mangalore, concerning a 100% Export Oriented Unit (EOU) that imported goods availing exemption from excise duty. The EOU failed to fulfill export obligations as per the exemption notifications, leading to a show cause notice demanding the duty foregone and proposing confiscation of goods under Section 111(o) of the Customs Act 1962, along with a penalty under Section 112 of the Act. The adjudicating authority found the EOU liable for confiscation and penalty due to non-compliance with post-importation conditions stipulated by the Development Commissioner. The EOU raised several points in their appeal, including export attempts, communication with authorities, lack of malpractice, incurring losses, and reliance on legal precedents regarding penalties and mens rea.

The learned SDR highlighted a recent decision emphasizing the Department's power to recover escaped duty when post-importation conditions are not met, citing relevant legal authorities. The Tribunal carefully reviewed the case records and acknowledged the undisputed import of goods by the EOU. Due to difficulties, the EOU could not fulfill export obligations entirely, rendering them ineligible for exemption benefits. Consequently, the imported goods were deemed liable for confiscation under Section 111(o) of the Customs Act 1962. The Tribunal upheld the Commissioner's decision on confiscation and duty demand. However, considering the business challenges faced by the EOU, the Tribunal found no mala fide intent for imposing a penalty. Thus, the imposition of penalty was deemed unjustifiable. In the interest of justice, the Tribunal reduced the redemption fine from Rs. 50 lakhs to Rs. 10 lakhs. The appeal was disposed of accordingly, maintaining the confiscation of goods but modifying the penalty and redemption fine.

This judgment underscores the importance of fulfilling post-importation conditions under exemption notifications for EOUs to avoid confiscation and penalties. It also highlights the Tribunal's discretion in considering business challenges faced by entities while determining penalties, emphasizing fairness and justice in such decisions.