2006 (2) TMI 55 - AT - Customs

EXIM Duty free import by 100% EOU for construction and decoration of factory building Violation of condition of Ntf. Nos. 1/95-CE & 53/97-Cus Development Commissioner granted permission in respect of categorized goods can be reviewed by CCE Deptt. Demand u/s 111(o) cannot be questioned on plea that appellants are registered as 100% EOU

Issues Involved:
1. Definition and applicability of 'capital goods' under Notification No. 53/97-Cus. and 1/95-C.E.
2. Validity of the permission granted by the Development Commissioner and its review by Customs and Central Excise Department.
3. Usage of disputed items as per the conditions of the exemption notifications.
4. Validity of the Show Cause Notice demanding duty, interest, and penalty.
5. Imposition of penalties and interest.

Detailed Analysis:

1. Definition and Applicability of 'Capital Goods':
The appellants contended that the items in question (Reynobond aluminium sheets, toughened glass, and steel doors) should be classified as 'capital goods' under Notification No. 53/97-Cus. and 1/95-C.E. They argued that these items fall under the categories listed in the notifications and are essential for maintaining the production quality of export goods. However, the Commissioner held that these goods were used more for construction and decoration rather than in the manufacture of final products. The Tribunal found that the items were not used strictly for their declared functional characteristics and thus did not meet the criteria for exemption under the notifications.

2. Validity of Permission by Development Commissioner:
The appellants argued that the goods were approved by the Development Commissioner as 'capital goods.' However, the Tribunal referred to the Supreme Court's decision in Sheshank Sea Foods Pvt. Ltd., which allows Customs authorities to investigate violations of exemption conditions independently of the licensing authority. The Tribunal upheld that the Customs and Central Excise authorities acted within their jurisdiction to safeguard revenue interests.

3. Usage of Disputed Items:
The Tribunal examined whether the disputed items were used for purposes other than those envisaged under the exemption notifications. It was found that the items were used for aesthetic purposes rather than functional requirements related to the manufacture of export goods. The Tribunal noted that even though the appellants claimed these items were necessary for maintaining production quality, their actual use did not align with the definition of 'capital goods' or 'accessories' as required by the notifications.

4. Validity of Show Cause Notice:
The appellants contested the validity of the Show Cause Notice issued on 23-7-2002. The Tribunal held that the notice was valid, referencing the Tribunal's decision in Bhawana Exports, which allows for investigation during the currency of the export obligation period. The demand for duty and interest was upheld as the appellants did not fulfill the conditions of the exemption notifications.

5. Imposition of Penalties and Interest:
The Tribunal considered the circumstances of the case, noting that the appellants followed procedural requirements and there was no evidence of malafide intent to evade duties. The goods remained within the bonded premises, which was not disputed by the Department. Consequently, the Tribunal set aside the penalties imposed under Section 11AC but upheld the interest demand at 20% per annum as per the notifications.

Conclusion:
The Tribunal upheld the demand for Customs and Excise duties but set aside the penalties imposed by the Commissioner. The interest demand was upheld as per the law. The appeal was disposed of accordingly.

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