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TMI Blog2017 (12) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... D N Panda, Judicial Member And Shri C J Mathew, Technical Member Shri Kishore K Acharya, with Shri M.L. Grover Advocates for the appellant Shri Roopam Kapoor, Commissioner (AR) for the respondent ORDER Per : Dr. D N Panda Learned Counsel for appellant submits that two show-cause notices dated 13/08/2014 and 02/02/2015 were issued to adjudicate alleging that two vehicles imported by M/s Hotel Tunga Regency Pvt. Ltd. were used for personal purpose of the Director in violation of the EPCG scheme for which benefit of exemption from payment of duty availed at the time of import was wrong and recoverable. This is apparent from page 514 depicting para 18.1 of the impugned order. 2. The adjudicating authority did not find any evidence as to personal use of its Director to hold violation of the EPCG scheme in the entire course of his adjudication. On the basis of irrelevant materials adjudication was done to deny the duty exemption allowed earlier and to recover the same. According to Revenue there was no maintenance of log book. Vehicles were not used for ferrying foreign tourist but were used by Directors. The vehicles were not found in the premises of the hote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement is that total foreign exchange earned in the previous year and the current period is the eligibility criterion for grant of exemption. Similarly, there is also prescription as to average foreign exchange earning in the preceding 3 years period. Thirdly, the essential condition of registration of the vehicle is for use thereof for foreign tourists only. In testimony of such use, the registration certificate issued by transport authority was to be produced to the Customs authorities. The appellant fulfilled all the three conditions of the para 2 of the notification without any violation thereof. 7. Allegation of Customs having been confined to the issue framed in the order-in-original as aforesaid, there was no contravention of notification condition by appellant for which learned authority could not find any violation of Policy requirements well as the Notification requirement. Accordingly, the authority, proceeded to examine the only issue as to whether there was a personal use of the vehicle or not. He has not brought out any cogent and credible evidence and reason showing that the vehicles were used by Directors and not at all used for foreign tourists/visi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id order to submit that the Tribunal was of the clear view that Policy as well as Customs notification does not specify in which manner a car is required to be used by a hotel and the conditions prescribed therein, which reads as under: 11. Both policy and customs notification does not specify how a car or in which manner a car is required to be used by the hotel. The Hotel can possibly use the car in the following manner : (a) The car can be used for providing transportation facilities to foreign guests on complementary basis. (b) The car can be used for transportation facility to the foreign guests on payment basis in foreign exchange. (c) The cars can be used as marketing tool in the lean season for interacting and building relating with international tour operators for enhancement of business. (d) The cars in question also get used for upgrading the status and building the brand of the hotel. (e) The car can be used otherwise in providing Hotel Service by the Hotel in any manner. In this case, the cars have been used by HEL for providing hotel services to foreign guest by using the car by their Directors. It is not the case of the Revenue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d below: 10. We also note that the appellants do not suggest that the department has to follow only the provisions of Foreign Trade Policy but the department on the same time has no jurisdiction to administer the provisions of customs notification. Therefore, the provisions of Policy and the notification are to be viewed harmoniously and in a case where harmonious interpretation is available in that case department cannot take contrary view and can interpret the notification in its own way. Neither the definition of capital goods nor the definition of export obligation by itself or when read in conjunction with the proviso relating to Managed Hotels suggests that the Government of India intended any divergence in foreign trade policy and the customs notification in regard to the matter in issue. Therefore, the policy and the customs notification allow import of cars by hotels for use in providing hotel services. 12. On the aforementioned premises, appellant s submission is that the foreign exchange earning was fulfilled as required by the decision of the Hon ble High Court of Delhi cited (supra) and also fulfilled user condition as held by the Tribunal. Present case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89 (SC) and also in the decision of the Tribunal in Surya Samudra Holiday Resorts (P) Ltd. v. Commissioner of Customs (Export), Mumbai 2010 (256) ELT 433. Against this, it is the submission of the appellant that such order is set aside by the apex Court. 15. Revenue s further submission is that the EPCG licence impose obligation on the appellant both on user criterion as well as earning of foreign exchange, it was the burden of the appellant to establish that it has fulfilled the condition of the notification, policy as well as the EPCG licence. That not being fulfilled by the appellant, strict construction of the exemption notification required to discharge its burden of proof to get exemption. Appellant failing to prove its case is not entitled to any benefit of the Customs Notification as well as Foreign Trade Policy. Accordingly, adjudication order sustains. Therefore Tribunal should look into the entire gamut of the show cause notice to appreciate the allegation therein to arrive at a decision. 16. Heard both sides and perused the records. Due to paucity of time the order could not be recorded . Order is reserved and expect to be pronounced by 10/12/2017. 17. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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