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TMI Blog2005 (12) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... inst them under SCN No. S/IV/2/2002, dated 22-1-2003 issued by the Additional Director General, DRI, Bangalore. Dr. G. Manohar, Managing Director and Shri P. Venkataraman, Manager-Materials of M/s. GE BE Pvt. Limited have also filed applications for settlement as co-applicants. 2. The matter was heard and the Commission passed the Admission Order No. 34/2004-Cus., dated 5-5-2004 wherein the facts of the case have been elaborated. The short point is that the applicant is a 100% EOU importing a number of items for the purpose of export production. The allegation is that they have not been able to account for many of the components which they imported for their export production. The DRI after investigation issued the SCN demanding total dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done on Oracle based software. 4. Out of three categories, the amount under the third category was totally admitted by the applicant. Though the amount under category (i) was initially disputed, later, the applicant admitted the same. In respect of the 2nd category, the applicant admitted only an amount of Rs. 74,00,491/-. Therefore, the Commissioner confined his investigation mainly to the 2nd category where the difference between the demanded amount and the admitted amount was substantial. The Commissioner (Inv) agreed with the contention of the applicant that in a large and complicated manufacturing process like that of the applicant where a number of components are involved, it may not be possible to account each and every component. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had utilized 2401 CT Max tubes and Inserts as against the receipt of 2592. After accounting for the rejects, there should have been only an excess of 2 such CT Max Inserts. 6. Similarly, the backward calculation in respect of Heat Exchangers was also conducted. It was found that on the basis of the total exports of the X-ray Tubes and total imports of Heat Exchangers, there is shortage only of 20 numbers of such Heat Exchangers. A similar investigation in respect of other 8 items was also conducted. 7. The Commissioner ultimately came to the conclusion that on the basis of the backward calculation and after taking all other facts into account for the period from 1997-2000 when the applicant was adopting what is called the Integrated Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments already made and, they may be granted immunities from other liabilities including interest. He also requested for similar immunities for co-applicants also. 9. Shri Uma Shankar, Assistant Director on behalf of Revenue reiterated the Revenue s stand, that entire amount under dispute has to be paid. However, he had admitted that under the circumstances, the backward calculation would be the method most suitable to determine the utilization of the imported components. He also admitted that there is no evidence of clandestine removal and the company has complied with the export obligation. He stated that the company gave different part numbers to the same item which made the accounting of the items difficult. He also pleaded that intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after taking into account, the overall export performance and system of accounting of the components by the applicant, it is evident that the Revenue has not estimated the shortages in a realistic and convincing manner. Merely because there were mistakes in the accounting system of the applicant company or failure of the software to capture the entire data regarding the consumption of imported components, it cannot be presumed that the imported components were not utilized for the purpose for which they were imported and, therefore, the applicant company is bound to pay the duty on the same. It is an accepted principle of law that when duty is demanded on the basis of any allegation, the onus of proving the allegation is on the department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r duty liability subsists. (ii) For the period from 1997 to 2001, the admitted duty amount was paid in 2004 only. In view of financial benefit enjoyed by the applicant, the Bench does not consider it a fit case to give the applicant the full immunity from interest liability. Therefore, the applicant shall pay interest on the duty liability at 10% simple interest per annum. The Revenue shall calculate the interest liability and inform the applicant within 15 days from the date of receipt of this order and the applicant shall discharge the same on receipt of intimation from Revenue within 15 days thereafter and report compliance to Revenue and the Commission. (iii) The applicant is granted immunity from fine, penalty and prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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