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TMI Blog2015 (12) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary 2004 by availing exemption under Notification No. 53/1997-Cus dated 03.6.1997 as amended by Notification No. 52/2003-Cus dated 31.3.2003. The appellants installed 113 Nos. of Secondhand Textile Machinery (capital goods) out of the total 144 Nos. of Secondhand Textile Machinery procured, within one year from the date of import. The appellants failed to install remaining 31 Nos. of Secondhand Textile Machinery (capital goods) within the stipulated time of one year, or within the extended period permitted by the Assistant Commissioner of Customs, which is a condition for availing the exemption under the aforesaid notifications. Hence, a show cause notice dated 26.12.2006 was issued which was adjudicated by the Commissioner of Central Excise and Customs, Vapi by the impugned order dated 14.09.2007. The adjudicating authority confiscated the 31 Nos. of Secondhand Textile Machineries valued at Rs. 1,69,37,569/- and allowed redemption of the same on payment of fine of Rs. 10 Lakh. He also confirmed duty of Rs. 74,11,970/- along with interest and imposed penalty of Rs. 5 Lakh on the appellants. He ordered to enforce the bond for recovery of the aforesaid duty, interest and penalty. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had not filed any appeal against these orders of the Assistant Commissioners and therefore, the same have reached finality. The learned Authorised Representative submits that the goods were imported and cleared from Customs availing benefit of exemption provided under the notification, and thereafter re-warehoused. He also cited the decision of the Tribunal in the case of Siddeshar Spinning Pvt. Limited vs. CCE, Bhavnagar 2013-TIOL-841-CESTAT-AHM in his favour. He argues that the appellant had not complied with the conditions of the notifications and therefore, they are liable to pay the duty along with interest, and confiscation of goods and imposition of penalty are justified. 4. On careful consideration of the arguments of the both sides and perusal of the records, we observe that the appellant had imported 144 Nos. of Secondhand Textile Machinery as capital goods, by availing the exemption Notification No. 53/97-Cus dated 03.6.1997, as amended by Notification No. 52/2003-Cus dated 31.3.2003. Condition No. 6(i) of the exemption Notification No. 53/1997-Cus and Condition No. 3 (d) (I) (i) of Notification No. 52/2003-Cus, reads as under:- Condition No. 6(i) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification. It is their case that they could not install the goods since they could not procure the spare parts of the machine for installation of the goods. They have also argued that their request for scraping and destruction of the said obsolete goods were also not granted by the department. However, we find that the appellant had imported 144 Nos. of Secondhand Textile Machinery during the period January 2003 to February 2004. They were required to install the same within one year period. They had also installed 113 Nos. of Secondhand Textile Machinery. It does not stand to reason that they had imported such machinery, that the same could have become obsolete within such a short period. They had imported machinery for certain specific purpose of putting the same into production. The goods were allowed to be imported and the duty on the same was exempted for a specific purpose, as per the conditions of the exemption notification (supra) and the appellant was bound by the conditions. On failure to comply with those conditions, the goods are not eligible for the exemption provided by the said notification and they are liable to pay applicable customs duty. It is settled law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed the earlier decisions of the Tribunal in the case of Nava Bharat Enterprises Limited - 2010 (256) ELT 602 (Tri. Bang.), Philips India Limited vs. Commissioner of Customs, Mumbai - 2001 (137) ELT 697 (Tri. Mum.) and Taurus Novelties Limited vs. Commissioner of Customs, Bangalore -2004 (173) E.L.T. 100 (Tri. - Bang.). Paras 7,8 and 9 of the said decision are reproduced below for better appreciation:- "7. We find that on an identical issue, the co-ordinate Bench of the Tribunal in the case of Nava Bharat Enterprises Ltd (supra) (wherein I was one of the Member of the Bench) had specifically held that the liability to pay the Customs duty along with interest, arises in the absence of any fulfilment of export obligation against the machinery imported by availing the benefit of Notification No.53/97-Cus and held that the said machinery are not liable to be confiscated and penalty should not be imposed. 8. Respectfully, we reproduce the said ratio as under: "12. We have heard both sides and carefully considered the case records and submissions made by both sides. In the instant case, the appellants had submitted that they were forced to close down the business owing to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods and imposition of penalty on the appellants." We also find that in the case of Taurus Novelties Limited vs. CC Bangalore (supra), where the appellant therein had failed to fulfil the export obligation, owing to collapse of Korean Economy, the Tribunal ordered as follows : ".........In a like situation, the Tribunal, in the citations referred to by the Counsel, has held that confiscation cannot be ordered in a circumstance when the export obligation became an impossibility. Further it has been held that when the Bank Guarantee has been realised before the issue of Show Cause Notice, then in such a circumstance, the redemption fine, penalty and interest is not imposable. We have perused these judgments and find that the appellants' prayer for setting aside the redemption fine, penalty and interest, in terms of these judgments, is justified. The ratio of the judgments clearly applies to the facts and circumstances of this case. Respectfully following the same, the impugned order, confiscating the machinery and imposing redemption fine and penalty on the Company and the Directors including the levy of interest, is set aside by allowing the appeal." 10. The ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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