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TMI Blog2013 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... IM policy 2002-07 on the ground that the imported car was not used for tourism purposes and thereby earning foreign exchange directly from the use of the aforesaid car. Demand of differential duty – Confiscation of goods u/a 111(d) and 111(o) – Penalty u/s 114A – Waiver of pre deposit - Held that:- Assesse had already deposited the differential duty at the time of investigation – Assesse had made out a prima facie case for waiver of pre-deposit of balance amount of dues and interest on the duty and fine and penalty imposed on the main assesse and penalty imposed on the co-assesse – waiver of balance pre deposit allowed – decided in favor of assesse. - C/701-702/2011 - S/612-613/2012-WZB/C-I(CSTB) - Dated:- 8-5-2012 - S/Shri Ashok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Director of the firm was recorded wherein it was admitted that the car was used for office purposes and not for tourism purposes and no foreign exchange was earned from the direct use of the car for tourism purposes. During the investigation the car was seized and the same was released provisionally on execution of bond and bank guarantee and the appellant also deposited the differential duty involved amounting to Rs. 7,62,548/-. A show cause notice dated 3-12-2008 was issued to the appellant by the Customs authorities on the ground that the appellant violated the conditions of Notification No. 55/2003-Cus. and the provisions of EXIM policy 2002-07 on the ground that the imported car was not used for tourism purposes and thereby earning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion once EODC is issued. 3.5 The demand is time barred as the notice has been issued after the expiry of 5 years from the date of import. Therefore the duty demand is not sustainable. 3.6 He relies on the judgment of the Hon ble Apex Court in the case of CC v. Air Travel Bureau Ltd. [2010 (260) E.L.T. 78] in support of his contentions. 4. The Ld. Dy. Commissioner (AR) appearing for revenue on the other hand reiterates the findings of the lower authorities. She submits that the bond and bank guarantee executed before the customs has not been discharged in this case and hence the question of time bar does not arise. Merely because EODC has been obtained from DGFT by mis-representation/mis-statement of facts, the same does not take away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Handbook of Procedures which even remotely suggests that the power of customs authorities to investigate a matter relating to evasion of customs duty or liability of the imported goods to confiscation has been taken away or abridged or an investigation into the matter into alleged breach could be conducted only by the licensing authority and the fact that the licensing authority is empowered to conduct such an investigation does not by itself preclude the customs authorities from doing so. Thus the argument of the appellant that after issue of EODC, the customs cannot investigate into the matter is devoid of merits and we hold accordingly. 5.2 As regards the argument that the demand is time-barred inasmuch as the show cause notice has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of earning foreign exchange through the use of capital goods could be said to have been satisfied. On the other hand in the Air Travel Bureau Ltd. case relied upon by the appellant, the Hon ble Apex Court upheld the view of this Tribunal in the said case that the term tour and travel is a very wide term and it can not be said that the EPCG licence envisaged only the amounts collected by use of imported cars to be accounted towards export obligation under the customs notification. Thus we find that differing views have been expressed on the issue taking into account the facts and circumstances of each case. In view of this, what should be correct interpretation of the customs notification in the facts of the instant case has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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