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TMI Blog2008 (10) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 (213) E.L.T. 63 (T)]. 2. Heard both sides. 3. Relevant facts, in brief, are as follows : (a) The respondent obtained an EPCG licence dated 31-7-95 under EXIM policy 1992-97; they imported goods under the said licence during November, 1988 to June, 1999 and paid duty amounting to Rs. 36,64,459/- after availing concessional rate under notification 28/97 dated 1-4-97, as against normal duty payable amounting to Rs. 1,38,97,422/-. Thus, the duty of Rs. 1,02,32,963/- was foregone. (b) In terms of the licence, they were required to fulfil export obligation amounting to about Rs. 97.5 crores, within five years from 31-7-95, the date of issue of the licence., i.e. before 30-6-2000. (c) A show cause notice dated 3-1-2000 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities under the Customs Act for violations of conditions of notifications is totally independent of any action by the DGFT authorities under EXIM policy. The duty demand for violation of the conditions of the notification, cannot be guided by changes made in the EXIM policy unless there are corresponding changes in the Customs notification. (e) The notification No. 29/2004 dated 28-1-2004 amending the notification 28/97 cannot be given retrospective effect merely because the amendment by notification 29/2004 is by way of substitution. 5. Learned senior advocate, Shri M. Chandrashekaran, appearing for the respondent took us through the relevant changes in the EXIM Policy and also changes in the Customs notification and made the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts including shipping bill etc. This is because the job of monitoring of export obligation fulfilled under EPCG Scheme is assigned to relevant DGFT authorities. (c) The notification No. 29/2004 has amended several notifications and in respect of some of them, the amendments were by way of insertion . However, the Notification No. 29/2004 amended the notification 28/97 by substituting clause (iv) with a new clause. The decision to amend by way of substitution was a conscious decision to align the retrospective changes made in the EXIM policy. 6.1 We have carefully considered the submissions from both sides. At the outset, we find that the licence was issued on 31-7-95 under the EXIM Policy for the period 1992-97. The actual imports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence is produced for debit by the proper officer of the customs at the time of clearance :............ (2) The importer executes a bond in such form and for such sum and with such surety or security as may be specified by the Assistant Commissioner of Customs binding himself to fulfil export obligation equivalent to four times the CIFG value of the goods imported or for such higher sum as may be fixed by the Licensing Authority within a period of five years from the date of issue of the said licence in the following proportions :- .............. (3) ...... (4) ...... (5) ...... (6) Notwithstanding anything contained in conditions (3) and (4), where the Licensing Authority grants an extension of the period fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods; and (c) means , export of goods in terms of notification of the Government of India in the Ministry of Commerce and Industry (Department of Commerce) No. 28 (RE-2003)/2002 - 2007, dated the 28th January, 2004 . 6.4 It could be seen that the exemption is subject to fulfilment of certain conditions and the compliance of some of these conditions depend upon action by the DGFT authorities. Condition 1 of the said notification require production of a licence issued by the DGFT authorities; condition 2 refers to export obligation to be determined by the licensing authorities; the condition No. 6 empowers the licensing authorities to alter the period of export obligation given to the licence holder. In other words, the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution cannot be held to be retrospective and each amendment has be examined in the light of the circumstances in which the amendment is carried out. 6.7 In the present case, the EXIM Policy is of the Central Government. The process of implementation, inter alia, involves issue of exemption notification under the Customs Act to be in alignment with the said policy which has been liberalised and given retrospective application. Under these circumstances, the Customs Notification 29/2004, dated 28-1-2004 which seeks amendment by way of substitution of clause (iv) of Notification 28/97 deserves to be held as retrospective. 6.8 Therefore, we do not find anything wrong with the findings and reasoning given by the Commissioner (Appeals) to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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