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TMI Blog2003 (5) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... h extended period as may be allowed. 2. For various reasons, it appears, the importer was unable to comply with the requirements of export. It is contended that the project for manufacture of the castings could not be set up and commercial production not commenced until 1996. In September, 1996, the importer wrote to the Director General of Foreign Trade, seeking extension of the period for completion of the export obligation by one year, i.e. up to the end of May, 1999. He was informed by the authorities that this request could not be considered at this stage. The importer exported, up to May, 1998, castings of a value of Rs. 20.44 lakhs, manufactured by using the imported machinery. It once again, in March, 1998, requested the Director General of Foreign Trade and was asked by that authority to extend the bank guarantee and to send other data. The licensing authority has, however, declined to extend the period for completion of the export obligation. 3. Between April, 1999 and December, 2000, the Assistant Commissioner of Customs issued three notices proposing recovery of differential duty between that payable ordinarily and that paid by the importer, amounting to Rs. 2.2 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility to fulfil the export obligation within time and sought extension. There is no requirement in the Notification of the policy to intimate on the failure to fulfil export obligation. The Counsel for the importer says that the Commissioner has not dealt with this contention. The order of confiscation of the goods and imposing penalty is also questioned on the ground that there was no evidence that the importer wilfully sought to avail of the benefit of the notification to gain financial benefit, without ever intending to fulfil the export obligation. The decision of the Tribunal in Philips India Ltd. v. CCE, 2001 (137) E.L.T. 697, is cited in support. Penalty on Kiran Dalal, it is contended, is not supported by anything in the order that relates to his conscious complicity. 6. The departmental representative emphasizes that the findings in the Commissioner s order to the effect that the importer, despite being aware that it could not, by any means, complete its obligation within the prescribed period, failed to inform the Customs authorities or to seek extension for fulfilling the export obligation. 7. We have already confirmed the liability to duty on account of the failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of the licensing authority these difficulties at a point more than half way from the date of commencing of the period of export obligation. It is not for us to question the discretion of the licensing authority in refusing to grant the extension. It cannot, however, be said that the importer wilfully suppressed of its inability to complete the export obligation. That cannot be said of a person who, much before the period for completion of export obligation has ended, points out its difficulties and seeks extension. The fact that it once again sought extension, even if two months before the export obligation period was to end, reinforces this conclusion. These letters are not consistent with the conduct of a person who has availed of the exemption solely in order to save duty. As the Counsel of the importer points out, there is nothing in the notification requiring the importer to inform the Customs authorities of its inability to comply with the terms of the notification. Nor does the import policy prescribe any such requirement. 10. The notification with which we are concerned is evidently a measure designed to stimulate exports. It provides a concession in the import duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete the export obligation. The notification itself does not provide for payment of anything other than duty in the case of default. In the absence of deliberate design to misrepresent facts, conceal facts from the departmental authority concerned or to deliberately wrongly avail of the benefit of the notification, we are of the view that there was no justification to invoke the provisions of Section 28AB and the provisions relating to confiscation of goods under the Section 111(o) of the Act and penalty under Section 112. 11. The notice issued by the Director of Revenue Intelligence in fact only alleges that it is the failure of the importer to intimate to the customs authorities from time to time before 23-5-98 i.e. the date within which they were required to fulfil export obligation or later of their own about the non-fulfilment of this export obligation which lead to the suppression of the fact that the benefit of Notification 160/92 is not available to the goods. In other words, the only misdeed alleged against the importer is its failure to intimate its inability to fulfil export. There is nothing in the notification which requires the importer who avails of its benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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