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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 ..... ard 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence dated 31-7-95 was not acceptable for the Customs purposes. (d) The action by the Customs Authorities 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, appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normally be allowed by the Custom House on the basis of EO Discharge Certificate issued by DGFT authorities without insisting for production of copies of relevant export documents 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 polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Export Promotion Capital Goods (E.P C.G.) Scheme in terms of Export and Import Policy (hereinafter referred to as the said policy) permitting import on payment of duty of customs at the rate of 10% and the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembled or manufactured in terms of this notification or making of supplies of such products in terms of clauses (a), (b), (d),(f) and (g) of paragraph 10.2 of the Export and Import Policy. (b) in relation to importers rendering services, means receiving payments in freely convertible foreign currency for services rendered through the use of such capital 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment by way of substitution may not necessarily be retrospective. A submission was made by the ld. D.R. that many exemption notifications are amended by merely substituting the "rates" applicable. If such amendments are taken to be retrospective, then the enhanced/reduced rates may have to be applied retrospectively from the date of original notification. This submission is valid and every amendment by way of substitution 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 Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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