9911796707
TMI Blog1998 (3) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... es, Serial Nos. specified and manufactured in 1984 and 3 second hand Barmag draw twister machines Serial Nos. specified also manufactured in 1984. After the goods arrived the importer informed the Customs House, that it did not propose to avail the benefit of Customs Notification 160/92. This notification permits, clearance at concessional rate of duty or nil rate of duty, depending on the circumstances of goods imported under the EPCG Scheme and covered by the licence issued under the policy. The goods were permitted to be released on bond. Subsequently, the Custom House was of the view that the import of the machines would not be covered by the licence produced as the importer has chosen not to avail of the EPCG Scheme. Since when the mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence under the EPCG Scheme. Paragraph 40 specifies that both second hand and new capital goods may be imported under the scheme. In the case of second hand capital goods, the general conditions contained in Chapter V shall apply. It provides that the licensing authority may also specify in individual cases such terms and conditions as may be considered appropriate. The Chapter lays down conditions, for fulfillment of export obligation. The Handbook of procedures in Chapter VI which lays down the detailed procedure for issue of licence, and related matters provides (in Paragraph 106) that In case of failure to fulfil the export obligation or any other condition of the licence within the stipulated period, the Legal Undertaking shall be enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng before the authorities for the forefiture of the bond. This inaction of the licences, DGFT however, does not signify that it had waived the condition of export obligation in which case alone the licence would be valid for the import of the goods. Therefore, from the date that the importer concluded that it was unable to fulfil the export obligation, the licence should not be valid for the import. 5. Now this date assumes significance. It is not the department s contention that when the goods were despatched by the consignor for West Germany, the importer knew that it would not fulfill the export obligation. Its letter to the Customs House to this effect was written after the goods arrived. The Commissioner himself acknowledges this in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion would be fulfilled and since this condition could not be fulfilled and have not been complied with. He stated that in cases where the licence was subject to specific condition as in this case and it is evident that subsequent to the importation the condition has not been fulfilled, the sub-section (o) would come into play. However, this was not the reason for confiscation of the goods. No written notice was issued and the importer has also not filed any written reply. Therefore, there is nothing other than in the Commissioner s order as a contemperaneous records of proceedings. In his order the Commissioner does not at all deal with, or referred to the liability of the goods for confiscation for the reason that they were imported subje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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