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TMI Blog2002 (3) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods vide Bill of Entry No. 6532, dated 16-9-1993 and Bill of Entry No. 8522, dated 20-12-1993. The applicant had technical collaboration/agreement with M/s. Sedai Kasei of Japan to manufacture the said product. M/s. Sedai Kasei had also agreed to buy-back the goods from the applicant to the extent of 2,00,00,000 Jap. Yen per month for a period of 5 years. However, M/s. Sedai Kasei failed to honour the buy-back agreement and consequently the applicant could export goods worth only Rs. 51 lakhs as against the export obligation of Rs. 6,69,51,000/-. 3. The applicant was issued Duty Demand Notice dated 19-8-1998 by the Assistant Commissioner of Customs, EPCG Group, New Custom House, Mumbai demanding duty of Rs. 49,40,263/-. 4. The applicant filed an application on 21-11-2000 under Section 127B of the Customs Act, 1962 before the Additional Bench of Customs & Central Excise Settlement Commission, Mumbai for the settlement of his case. In his application, he disclosed and admitted duty liability of Rs. 45,82,553/- (minus credit for duty on proportionate exports made by him). The applicant vide letter dated 21-12-2000 admitted duty liability of Rs. 42,33,821/- after taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant and report compliance to the Commission. The Commission further directed that a copy of the order need be endorsed to the concerned bank. The applicant was directed to pay the balance amount of Rs. 1,73,821/- within 30 days of receipt of the order. 7. The next hearing of the case was held on 25-9-2001. During the hearing, the learned Advocate submitted that the instant case was regarding import of capital goods under EPCG Licence. He submitted that the Applicant had admitted a duty liability of Rs. 45,82,553/-, however a set off was permitted in lieu of partial fulfilment of export obligation, hence the actual duty admitted came to only Rs. 42,33,821/- which was allowed to be paid by encashment of bank guarantee for Rs. 40,60,000/- and the remaining amount of Rs. 1,73,821 had already been paid as directed by the Commission in the interim order dated 19-2-2001. On the question of set off, all the necessary documents had been submitted for scrutiny and applicant's claim for set off was towards an amount of Rs. 3,48,732/- but the amount worked out by the Commission was Rs. 3,34,992/-. Similarly the actual duty foregone as worked out by the Commission was Rs. 45,76,39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted by the applicant to the DGFT. The Commission directed the Revenue to submit copies of such Show Cause Notices in 4-5 other cases of partial fulfilment of export obligation, which had been revised in view of clarifications from Board, within 3 days from the date of hearing. On being asked, whether the applicant had approached the DGFT to issue a certificate towards claim of partial fulfilment of export performance the learned Advocate submitted that a letter to this effect had been written to the DGFT in January 1999, but no reply had been received from DGFT. It was also submitted that in 1998 a letter with all documents had been submitted to the then Dy. Commissioner, Customs and required documents were with the Custom Houses. The Commission also asked the Revenue to clarify on the point, that a Reference Application had been filed in the Hon'ble Mumbai High Court, against the CEGAT's Order in the case of M/s. Philips (India) Ltd. v. Commissioner of Customs [2001 (137) E.L.T. 697 (Tribunal)]. The Revenue was directed to send a copy of the Reference application as the Commission would like to examine the grounds taken up by the Revenue in the said R.A. The Revenue was gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce amount of Rs. 1,07,469/- shall be paid by him within four weeks. 11. The applicant, vide letter dated 22-2-2002, submitted that he has paid the said amount of Rs. 1,07,469/- vide T.R. 6 Challan dated 21-2-2002. FINDINGS 12. The Commission has gone through the case records and submissions made by the Applicant and the Revenue at various stages. 13. It is seen from the case records and submissions made by the Applicant and the Revenue that : (a) The Revenue vide Duty Demand Notice dated 19-8-1998 demanded duty of Rs. 49,40,263/- (duty foregone) from the Applicant. (b) The Applicant had initially admitted a duty liability of Rs. 42,33,821/- after claiming set off of Rs. 3,48,732/- (on the duty foregone of Rs. 45,82,553/-) on account of partial fulfilment of export obligation to the extent of 7.61%. (c) The Revenue vide report dated 24-9-2001 had reworked out the duty foregone to Rs. 45,85,223/-. (d) The Applicant vide letter dated 28-1-2002 had accepted the duty foregone of Rs. 45,85,223/- as worked out by the Revenue of 5.32%. (e) The Applicant has now claimed the set off of Rs. 2,43,933/- on the basis of DGFT, New Delhi letter dated 24-1-2002 certifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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