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2023 (11) TMI 179 - AT - CustomsDenial of duty exemption availed by the assessee in terms of EPCG Authorisation under N/N. 102/2009 dated 11.09.2009 - import of capital goods - Non-fulfilment of export obligation - Delay in getting EODC - HELD THAT - Admittedly, the ADGFT neither issued certificate nor has issued any communication highlighting the shortcomings, if any, to the appellant from the said application and hence, we do not have any doubts as regards the bona fides of the assessee/appellant before us. Just because the said authority who should have issued communication to the assessee-applicant chose to bias the mind of the adjudicating authority does not ipso facto become sacrosanct, much less, an admissible evidence. Had the assessee defaulted in not approaching the authority in time, then perhaps it was a different aspect altogether, which is not so here. When no primary evidence is available for various reasons, then there is no bar to consider other evidences like secondary evidences before concluding the proceedings, by the lower authority. The appellant should not be taken to task due to a delay caused in the DGFT office to act on their request for redemption of EPCG Licence. The impugned order calls for interference and is set aside - appeal disposed off.
Issues involved:
The denial of duty exemption availed by the assessee in terms of EPCG Authorisation Licence for the import of capital goods under Notification No. 102/2009 dated 11.09.2009. Details of the Judgment: Issue 1: Export Obligation Fulfillment The appellant contended that they fulfilled the export obligation as per the Notification, supported by a certificate from their chartered accountant. They argued that the non-production of Export Obligation Discharge Certificate (EODC) should not be held against them, citing relevant case laws. The appellant also highlighted that the lower authority relied on an unrebutted communication from the ADGFT, which was not provided to them for rebuttal, violating principles of natural justice. They emphasized that the issuance of EODC lies with DGFT officers and not the appellant. Issue 2: Commissioner's Decision The Deputy Commissioner relied on the findings in the impugned order, stating that the appellant did not fulfill their export obligation as per Annexure-A condition. The Commissioner's decision was based on the ADGFT's communication indicating non-fulfillment of obligations and lack of relevant documents submitted by the appellant. Judgment Analysis After considering both sides, the Tribunal found that the impugned order could not be sustained for several reasons. Firstly, the authority should have communicated any shortcomings in the application to the appellant before making a decision. The Tribunal questioned the basis of the ADGFT's factually incorrect comments and emphasized the importance of considering all available materials before passing an order. It was noted that the ADGFT did not issue any communication highlighting shortcomings to the appellant. The Tribunal opined that the appellant should not be penalized for delays caused by the DGFT office in acting on their request for redemption of EPCG Licence. Conclusion The Tribunal set aside the impugned order, directing the lower authority to await the certificate that may be issued by the DGFT. The decision was made in the interests of justice, emphasizing the importance of considering all evidence before concluding proceedings. (Order pronounced in the open court on 03.11.2023)
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