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TMI Blog2006 (9) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... 111(o) of the Customs Act as held by this Tribunal in Steel Authority of India v. CCE [ 2005 (1) TMI 231 - CESTAT, BANGALORE] . When the goods are not liable for confiscation, there is no question of redemption fine and penalty. Thus, we do not find it necessary to go into the allegation of installing the machinery in different premises. Hence the penalties imposed cannot be sustained. In fine, we uphold the Order-in-Original to the extent of confirmation of duty foregone along with interest. The appellants should pay forthwith the interest liability on them failing which the Revenue is free to initiate any further proceedings in the matter. The appeal is disposed of in the above terms. - HON'BLE DR. S.L. PEERAN AND SHRI T.K. JAYARAMAN B.G. Chidanand Urs, Advocate, for the Appellant. K.S. Reddy, JDR, for the Respondent. Order T.K. Jayaraman, Member (J) Final Order Nos. 1427 to 1429 2006 1. These appeals have been filed against the OIO No. 48/2005-Cus. Adjn (Commr.) dated 30-12-2004 passed by the Commissioner of Customs, Bangalore. 2. M/s. Sun Knitwear Pvt. Ltd., Bangalore, the first appellants, are holders of EPCG Licence dated 28-7-1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. 5th and 6th year 50% The importer had not made any export as on the date and the licence was valued up to 27-7-04. Further the importer has failed to intimate the Assistant Commissioner/Deputy Commissioner of Customs from time to time as envisaged in condition No. 3 of the notification about the extend of export obligation made by them in each block of particular period and thereby the importer has suppressed the facts with mala fide intention. In view of the above irregularities, the Show Cause Notices were issued to the appellants. The Show Cause Notices proposed the following :- (a) demand of duty foregone to the extent of Rs. 12,96,480/- along with appropriate interest till the date of payment of duty in terms of Condition Nos. 4 5 of the Notification No. 29/97. (b) Confiscation of capital goods under Section 111(o) of Customs Act for non-fulfilment of the conditions of Notification No. 29/97, dated 1-4-1997. (c) Penalty under Section 112(a) of the Customs Act, 1962 on M/s. Sun Knitwear Pvt. Ltd. for failure to fulfil the conditions of Notification No. 29/97 and thereby rendering the goods liable for confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the EPCG Scheme for non-fulfilment of export obligation, in the absence of certification pertaining to completion of imports, non-fulfilment of obligation in terms of the notification not established. It was held that action of the Department was premature. (vi) The allegation that the capital goods were installed in the premises of Mangayarkarasi Apparels Pvt. Ltd. and M/s. Tamori Textiles Pvt. Ltd. is wrong The installation of the equipment is at 16 km, Bharathana Agrahara, Hosur Road, Bangalore as per import document. The equipment is still installed at the same premises and it has not been removed or dismantled from the date of its installation. The fact that there are different companies registered and functioning at the same premises will not excite a presumption that the goods were installed at the premises of another company. (vii) If the export obligation is not fulfilled that there was no wilful intent on the part of the appellant not to fulfil the export obligation. In the case of Philips India Ltd. v. CC, reported in 2001 (137) E.L.T. 697 (T), it was held that in the absence of wilful intent on part of the appellant, not to fulfil export obligation would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to recover the escaped duty in terms of Section 12 of the Customs Act, 1962. Paragraph 12 of the Apex Court decision in Mediwell case [1997 (89) E.L.T. 425 (S.C.)] also provides an authority for such recovery. 6. We have gone through the records of case carefully. The appellants imported the equipments under the EPCG scheme availing benefit of Customs Notification No. 27/97-Cus., dated 1-4-1997 as amended. On the import of capital goods under the above scheme, the duty foregone by the Revenue is to the tune of Rs. 12,96,480/-. The notification lists out the conditions subject to which the exemption would be available in Para 2. According to the Condition 1, the importer should possess a valid licence issued under the EPCG scheme. In the present case, the appellants did not have such a licence and there is no dispute on this point. According to Condition 2 the importer should execute a bond before the Assistant Commissioner of Customs for fulfilment of export obligation equivalent to 9 times of CIF value of capital goods for import under licence within a period of 6 years from the date of issue of the said licence in the following proportions :- Sl. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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