9911796707
TMI Blog2009 (10) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... als, Government of India for issuance of letter of intent or industrial licence as contemplated under the Rules. However, the said letter of intent was granted on 19-4-1988 i.e., after lapse of period of 20 months. Immediately, the petitioner applied for conversion of the letter of intent into industrial licence on 12-12-1988. The said licence was issued on 26-12-1999, again with a delay of 12 months. The petitioner states that normally such licence has to be issued within a period of six weeks only and in terms thereof the licence was granted as late as on 24-7-1991. Under the said licence, the petitioner is permitted to manufacture "Photovoltaic Cells, Modules and products/systems based on Amorphous Ssilicon". The complaint of the petitioner is that having regard to such long delays, necessarily it lead to delayed commencement of actual activity. In spite of that, the petitioner was able to commence the commercial production on 1-4-1990. The said ECD agreed for an additional memorandum of understanding to buy-back 100% of the production for two years. Once again with further delay on the part of IDBI, ICIC and IFCI the approval for the project was granted on 20-2-1991 for the fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-deposit for an appeal. Meanwhile, as per the letter dated 22-3-1996, the Development Commissioner, Visakapatnam Export Processing Zone, intimated the Excise Authorities and the petitioner that 10% penalty on CIF value of the imported capital goods for non fulfillment of export obligation was exempted and sought for necessary action for issue of final debonding letter after fulfilling the conditions. 4. Therefore, the case of the petitioner is that the total liability towards duty payable for debonding and withdrawal of 100% EOU, since pending before the Assistant Commissioner of Central Excise, in terms of the order of the remand passed in Appeal by the CEGAT, where substantial questions affecting the rights and claims of the petitioner and the liability are involved. Further, in spite of the aforesaid checkered events, the first respondent viz., Ministry of Commerce, Director General of Foreign Trade issued a show cause notice dated 16-5-1997 calling upon the petitioner to explain why penalty should not be levied under Section 4-I of the Act, 1947 read with Section 20(2) of the Foreign Trade (Development and Regulation) Act, 1992 (for short Act, 1992) and other connected provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other show cause notice dated 11-10-1999 was issued by the Visakapatnam Export Processing Zone, for which, the petitioner submitted explanation dated 26-10-1999. It is to be noticed that the very same authority has issued a suo motu debonding letter dated 2-1-2000 and the Joint Development Commissioner issued similar suo motu debonding letter on 10-2-2000, which was again followed by a fresh show cause notice dated 17-1-2002, for which the petitioner submitted explanation on 19-2-2002. The order of the Appellate Authority CEGAT dated 21-1-2003 [2003 (156) E.L.T. 391 (Tri - Bang.)] whereupon the petitioner has submitted a letter dated 23-5-2003 enclosing challans in terms of another application filed by the petitioner dated 22-2-2003 before the Joint Commissioner for permission to destroy the excisable goods, the Commissioner granted remission vide order dated 14-10-2003 and destruction proceedings were issued on 21-12-2003. However, impugned orders are passed by second respondent on 4-5-1999 without considering several of the aspects including as to the factum of debonding and the effect thereof. 7. Therefore, the case of the petitioner in short is to the effect that hiving regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on reading of the material on record, the point which emanates for consideration is as to whether on the facts and circumstances of the case, the provisions of Section 4-I of the Act, 1947 are applicable and the petitioner is liable for penalty. 11. For proper appraisal, it necessitates to read Section 4-I of the Act, 1947 which reads as follows ; "4-I :- Liability to penalty : - (1) Any person who,- (a) in relation to any goods or materials which have been imported under any licence or letter of authority, uses or utilizes such goods or materials otherwise than in accordance with the conditions of such licence or letter of authority; shall be liable to a penalty not exceeding five times the value of the goods or materials, or one thousand rupees, whichever is more, whether or not such goods or materials have been confiscated or are available for confiscation". 12. There cannot be any dispute as to the attraction of the aforesaid provisions. On a bare reading it provides for a penalty where there is a failure discharge the export obligation from any person using or utilizing such goods or materials otherwise than in accordance with the conditions of licence or later on author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same lines as that of the petitioner's Phase-I in the land situate at border of Mexico and tried to take advantage of NAFTA agreements and fresh agreements of goods between US and Mexico. There is thus a total remission on the part of the said new company at the other end which has lead the petitioner to opt for alternatives apart from pursuing exports to the extent possible. Even this fortuitous circumstances are not within the bounds of the petitioner. The petitioner admittedly exported to a tune of Rs. 68.09 lakhs, no doubt far below the original quantity. However, the respondents have acted upon the application filed by the petitioner on 12-3-1992 seeking for debonding for the purpose of domestic sale and the second respondent did issue such permission from 4-6-92, 29-12-93 and 8-8-1995 permitting withdrawal of 100% EOU scheme and, yet the proceedings were initiated for imposition of penalty and nothing on any of these aspects appears to have been taken into consideration. Even the later proceedings would show that the petitioner was given waiver of condition regarding export obligation as per the proceedings of the Government of India dated 21-12-1993 followed by further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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