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TMI Blog2017 (12) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not dis-entitle the appellant when appropriate foreign exchange earning remain undoubted and uncontroverted by the Revenue. Reliance placed in the case of Hotel Excelsior Ltd., Jagdish Rai Sood, Director, Raman Kumar Sood, Director, Ajay Kumar Sood, Director, Satish Kumar Sood, Erstwhile Director Versus Commissioner of Customs (I And G), New Delhi And Vica-Versa [2015 (12) TMI 1045 - CESTAT NEW DELHI], where it was held that proceedings initiated against HEL and its Directors for violation of condition of notification or the EPCG licence are not sustainable as the same are pre-mature as HEL is still in possession of the cars and registered the same as tourist vehicle. Appeal allowed - decided in favor of appellant. - C/87187/2016 - A/91545/2017 - Dated:- 14-12-2017 - Dr. D. N. Panda, Judicial Member And Mr. C. J. Mathew, Technical Member Shri Kishore K Acharya, Advocate with Shir M.L. Grover, Advocate for Appellant Shri Roopam Kapoor, Commissioner (AR) for Respondent ORDER Per : Dr. D.N. Panda Adjudication was made denying the benefit of Notification No.64/2008-Cus dated 9.5.2008 against the claim of the appellant that the car imported unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided shows that vehicle was used for transportation of the foreign tourist. Foreign exchange received is also patent from record. Therefore there was no violation of the import condition. 6. So far as the allegation of violation of condition of the import is concerned, referring to para 2.1 of the impugned order, it is explained that EPCG scheme is also extended to the provision of service and import of vehicle for use in export service. Inviting attention to the para 5.4 of the impugned order, it is claim of the appellant that the grant of exemption benefit served its purpose, with the export obligation discharged and foreign exchange requirement is met. The DGFT has also issued export obligation discharge certificate without any objection for such issuance. 7. EPCG licence nowhere requires that the vehicle should necessarily be parked in hotel and log book is to be maintained in a particular form while the law require maintenance of records during the specified period. Even the Customs exemption notification, copy of which is available at page 23 of the compilation, nowhere prescribed any form in this regard nor also specified any particular type of register to be maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch condition stipulated, Revenue failing to answer to the Courts on such count, the Court rejected Revenue's contention and held that so long as foreign exchange is earned by the Hotel and imported cars are being used, there cannot be said to be a violation of any statutory requirement. For convenience of reading he placed para 3 of the judgment which reads as under: 3. As rightly pointed out by the CESTAT, the Department was unable to show any stipulation in any notification issued by the Central Board of Excise and Customs or any other notification specifically requiring the imported cars to be used only for transporting foreign guests of the hotel. Even before this Court, learned counsel for the Department was unable to show any such stipulation. In the circumstances, the Court is unable to disagree with the reasoning of the CESTAT that as long as foreign exchange is earned by the hotel and the imported cars are being used, there cannot said to be a violation of any statutory requirement. 11. Referring to the order of the Tribunal in Hotel Excelsior Ltd v. Commissioner of Customs (I G), New Delhi - 2016 (336) ELT 116 (Tri.-Del.) which was the subject-matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly or indirectly for providing the hotel services from which the foreign exchange is earned, the conditions nowhere suggest that the nature of service to be provided by the importer or to be governed by the type of capital goods provided. As in the case of other goods like lift and chair do not envisage the use by foreign tourist, the cars are to be used by foreign tourist, implying thereby that while other capital goods could be used indirectly or laterally, the cars could not be so used and were to be used by foreign tourists. This logic is not tenable for it is not the goods which will expand or contract the concept of use underlying the EPCG scheme. The rule of law emphasizes the regulation of activities according to law and is antithetical to arbitrariness; the logic that the nature of goods will determine as to how the law would be interpreted emphasizes that it is the understanding of the department about the use of the goods that will decide the interpretation of law and thus introduces an element of arbitrariness. 12. Inviting attention to page 122 of the reported judgment it is the submission on behalf of the appellant that actual user condition does not warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. (5) Vehicles were not at all parked at the Hotel premises at all times. (6) The persons employed by the company confirmed that the vehicles were not parked in the premises and use of the vehicle was not proved. (7) Two statements gathered from the drivers demonstrate that the vehicles were not used for tourist vehicle purpose. 15. According to Revenue, even the documentary evidences failed to establish that the vehicles were exclusively used for the tourism purpose of the foreign tourists. There is no dispute by the appellant that the vehicles were used by the Directors (although appellant says at times used). So also appellant could not establish with clean hands that the vehicles were exclusively used for the tourism purpose of the foreign visitors to the hotel. Even some of the documents that is placed by the appellant that does not show receipts of the hotel fully establishing correlation between the use of the vehicle and earning from the vehicle as well as use thereof. All these evidences establish that the actual user condition was violated depriving the appellant from the Notification benefit which requires to be strictly construed as has been hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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