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TMI Blog2018 (11) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... not used for export - that part of the impugned order which relates to confirmation of demand, interest and penalty by denying benefit of Notification No.1/1995 is not sustainable. Appeal allowed in part. - C/56628/2013-CU[DB] & C/56629/2013-CU[DB] - FINAL ORDER NO.72600-72601/2018 - Dated:- 15-11-2018 - MRS. ARCHANA WADHWA, MEMBER(JUDICIAL) And SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) Shri Nishant Mishra (Advocate) for the Appellant No.1 Shri Mohd. Altaf (Asstt. Commr.) (A.R.) for the Revenue ORDER Per ANIL G. SHAKKARWAR : Above-stated two appeals are directed against common Order-in-Original No.53/COMMISSIONER/NOIDA/2012-13 dated 31.12.2012 passed by Commissioner, Customs, Central Excise Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Customs Notification No.153/93-Cus dated 13.8.1993, for setting up infrastructure facility for STP units under Software Technology Park(STP) Scheme. 2.5 Appellant imported telematic infrastructural goods without payment of duty under Notification No.153/93 dated 13.8.1993 and also procured indigenously manufactured goods, without payment of duty under Notification No.1/93-CE dated 4.1.1995 and Notification No.22/2003-CE dated 31.3.2003, for setting up of infrastructure of STP. 2.6 Pursuant to enquiry made by Superintendent in the year 2006, Appellant submitted charts showing details of imported/indigenous goods procured duty free and also the location in the premises where such goods were installed. Appellant also vide letters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only. 2.10 SCN was adjudicated vide Order-in-Original No.53/Commissioner/Noida/2012-13 dated 31.12.2012 wherein it has been held that Appellant has violated conditions of exemption notifications. The demands raised were confirmed. 2.11 Order-in-Original further imposed penalty of ₹ 87,08,763/- in terms of bond and agreement and under Section 114a, Section 117 of Customs Act and Rule 25 of Central Excise Rules along with personal penalty of ₹ 25,00,000/- on Director under Section 117 of Customs Act and Rule 26(2) of Central Excise Rules. Aggrieved by the said order dated 31.12.2012 both the appellants are before this Tribunal. 3. Heard the ld.Counsel for the appellant, who has submitted that the exemption under No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of which goods conditions of Notifications were violated by the appellant. He further submitted that Revenue has failed to discharge such burden of proof. 4. Heard the ld.AR, who has submitted that the condition of Notification No.153/93-Cus dated 1308.1993 was that the imported goods were used only for the purpose of export of software and it has been established through the proceedings that the said goods were not used only for the purpose of export, but they were also used for commercial purpose as held by original authority. 5. Having considered the submissions of both the sides and on perusal of record and perusal of above stated three Notifications we find that the appellant has used 10% of the floor space for establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with interest and penalty by denying benefit of Notification No.22/2003. We further find that the condition of Notification No.153/93-CUS dated 13.08.1993 is that the goods imported by availing benefit of said Notification should be used only for the purpose of export of software. The proceedings below have held that the said imported goods were not used only for the purpose of export of software, but they were also used for purposes other than of export. We therefore find the impugned order sustainable to the extent of Customs duty confirmed by denying benefit of Notification No.153/93-CUS along with interest and equal penalty. Further since the entire issue was related to interpretation of Notifications we do not find personal penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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