2015 (6) TMI 951 - AT - Central Excise

Import of the goods duty-free for use thereof in EOU - Clearance of finished goods to DTA - Held that - It does not appeal to the common sense that how an entitlement pending before the Development Commissioner protects the interest of Revenue at this stage. No doubt foreign exchange did not come for no export made when imported raw materials were processed and the finished goods manufactured were sold in DTA. The duty forgone at the time of import became loss to Revenue. Added to this, appellant has discharged duty liability at normal rate of excise duty which is not equal to customs duty forgone. Therefore, prima facie, the demand raised appears to be correct at this stage. - Partial stay granted.

Summary

Issues Involved:
1. Application for sanction of DTA Entitlement pending before Development Commissioner affecting recovery of demand.
2. Allegation of goods imported duty-free for EOU use but cleared in DTA leading to demand of Rs. 2.90 crores.
3. Discrepancy between customs duty foregone and excise duty paid.
4. Direction for appellant to provide bank guarantee and cash deposit to balance interest of Revenue and amount already paid.
5. Waiver of predeposit and stay of recovery during appeal for fulfilling conditions.
6. Penalty waiver for Rs. 10 lakhs with stay of recovery.

Analysis:
1. The appellant's counsel argued that a pending application for sanction of Rs. 7.28 crores toward DTA Entitlement could prevent the recovery of the current demand. The appellant imported goods duty-free for EOU use, but revenue alleged no use with clearances in DTA, resulting in a demand of Rs. 2.90 crores. The difference between customs duty foregone and excise duty paid led to this demand. The counsel mentioned that Rs. 43 lakhs were already paid, suggesting no recovery direction at present.

2. The Revenue supported the adjudication, emphasizing the duty forgone at import becoming a loss when finished goods were sold in DTA without export. The appellant's discharge of duty liability at a normal excise duty rate, lower than customs duty foregone, supported the prima facie correctness of the demand.

3. Considering the circumstances, the Tribunal found the pending entitlement application insufficient to protect Revenue interests. To balance interests and recoveries, the appellant was directed to provide a Rs. 1 crore bank guarantee and a Rs. 60 lakhs cash deposit by specific dates. Failure to comply would allow Revenue to realize dues.

4. Fulfilling the conditions would lead to a waiver of predeposit and a stay of recovery during the appeal process, providing relief to the appellant. The judgment was specific about compliance deadlines and consequences of non-compliance.

5. Additionally, a penalty waiver for Rs. 10 lakhs was granted with a stay of recovery, acknowledging the expressed hardship. The Tribunal scheduled a compliance examination for a specified date to monitor adherence to the directives, ensuring proper execution of the judgment.