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TMI Blog2018 (12) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... licenses to service providers. In the present instance, the discharge certificate itself is questioned only against the background of eligibility of a service provider based in India to apply for, and to obtain, a licence under a scheme that was originally formulated for export of goods. The evolution of the scheme beyond physical exports is within the purview, and only, of the Director General of Foreign Trade. It is not open to customs authorities to contend that, sans the empowerment, powers not existing, the license itself was issued on the basis of fraudulent submissions. Appeal allowed - decided in favor of appellant. - APPEAL NOS: C/701 & 702/2011 - A/88091-88092/2018 - Dated:- 11-12-2018 - Shri S K Mohanty, Member (Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 imposed on Shri Shikhar Chandra Jain, Managing Director, is challenged in the second appeal. 2. The defence of the appellant, who is a travel agent, is that they had imported the car to provide services to their clients and that the value of services rendered by them had earned sufficient foreign exchange within a period of four years from the date of import instead of the stipulated eight years to enable issue of export obligation discharge certificate by the licensing authority on 29th May 2007. According to them, with the issue of the certificate by the competent authority, no further claim lies against them from customs authorities; they rely upon circular no. 62/2002-Cus dated 26th September 2002, 25/2003-Cus dated 1st April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e initiated by customs authorities who had, under a notification issued under section 25 of Customs Act, 1962, permitted duty-free import. It is also apparent that the said notification governing the administration of imports under the Export Promotion Capital Goods scheme was primarily drafted for realisation of foreign exchange proceeds from export of goods; however, recognising the importance of service industry, the scheme has been utilised to grant licenses to service providers. It was in pursuance of this extension that the appellants had obtained a license for the import of cars subject to realisation of foreign exchange through rendering of services. That the licensing authority was fully cognizant of the intended use of the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y clarified by the DGFT as projected by respondent s counsel.... in relation to the issue of discharge certificate. In the present instance, the discharge certificate itself is questioned only against the background of eligibility of a service provider based in India to apply for, and to obtain, a licence under a scheme that was originally formulated for export of goods. The evolution of the scheme beyond physical exports is within th0e purview, and only, of the Director General of Foreign Trade. It is not open to customs authorities to contend that, sans the empowerment, powers not existing, the license itself was issued on the basis of fraudulent submissions. In re Air Travel Bureau Ltd, the Hon ble High Court of Delhi, relying up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be conclusive and any such certificate cannot press the power of the authority to reopen even a concluded matter if it is shown that the such conclusion was vitiated by fraud concealment of facts or misrepresentation or misdeclaration as held by the Apex Court in Sheshank Sea Foods Pvt. Ltd. v. Union of India Ors. - (1996) 11 SCC 755 = 1996 (88) ELT 626 (SC) However, in the present case, the appellants have not been shown that there is any fraud, concealment of facts or misrepresentation or misdeclaration on the part of the respondents . 7. In these circumstances, and as in an identical matter pertaining to themselves, the Tribunal having set aside the recovery of duty and other detrimental consequences, we, too, find no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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