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TMI Blog2020 (6) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of customs duty. The export obligation fulfillment documents have been accepted by the Additional Director General Foreign Trade and at the same time, it is also found that imported capital goods namely car in this case under EPCG licence was imported validly declaring all the relevant facts and subsequently also there has been no violation of any of the conditions of EPCG/Customs Notification, the impugned order-in-original is devoid of any merits and therefore the same is set aside. Appeal allowed. - Customs Appeal No. 51314 of 2019 WITH Customs Appeal No. 51617 of 2019 - FINAL ORDER NO. 50700/2020 - Dated:- 10-6-2020 - HON BLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) HON BLE SHRI C.L. MAHAR, MEMBER (TECHNICAL) APPEARANCE Shri Krishna Kant, Advocate for the appellants. Shri Rakesh Kumar, Authorized Representative (DR) for the Respondent C.L. MAHAR :- The brief facts of the matter are that M/s Nijhawan Travel Service Pvt. Ltd. (appellant No. II) had imported one Mercedes SL 500 car vide bill of entry No. 429982 dated 1 June 2005 through ICD, Tughlakabad, New Delhi. The clearances of the matter were effected by the appellants by claiming c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) total differential customs duty amounting to ₹ 51,86,378/- (Rupees fifty one lacs eighty six thousand three hundred and seventy eight only) as per Annexure A actually payable but saved in terms of the aforesaid exemption in respect of the aforesaid vehicle should not be recovered in terms of the proviso to Section 28 (1) of the Customs Act, 1962 alongwith interest in terms of Section 28 AB of the Customs Act, 1962 readwith conditions of the said EPCG licence No. 0530137584/3/11/00 as well as Customs Notification No. 97/2004-Customs dated 17/09/2004. (iii) penalty should not be imposed on M/s NTSPL, under Section 112 (a) and/or 114A of the Customs Act, 1962. (iv) penalty should not be imposed on Shri Sham Nijhawan, Managing Director, M/s NTSPL, under Section 112 (b) of the Customs Act, 1962 for his acts of omission and commission in the import of the above vehicles in violation of the conditions of EPCG Scheme. 3. The matter has since been adjudicated by the learned Commissioner of Customs (Preventive) vide his order-in-original No. DLI/CUS-PREV/OPD/PR.COMMR/04/2018 dated 31 May 2018. This order-in-original was in the denovo proceedings as per the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s car. The learned Counsel have contended that it is wrong on the part of the department to allege that subject car was only put for personal and private use and not for fulfillment of the export obligation as envisage under the conditions of EPCG licence. It is further being submitted that the Managing Director Shri Sham Nijhawan was using the car for the purpose of receiving VIP clients at the Airport exclusively for business purposes. The learned Counsel has contended that the subject car was not registered as a taxi rather it was registered as a personal car and was allotted a special registration No. DL 1 CK 2525 by the State Transport Authorities on the condition that same shall not be used for the purpose of the taxi. The learned Counsel has submitted that as per the condition of the EPCG licence at the relevant time there was no requirement to register the car as a tourist vehicle. It is further being added that as can be seen from the record that subject car was imported on 01/06/2005 while the requirement of the car being registered as a tourist vehicle was made mandatory by DGFT vide Circular No. RE-08/20032004 dated 7 May 2008. It was further being emphasized that the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot violation of the conditions of import in the scheme or in the corresponding exemption notification, does not suffice to conclude that the vehicles were not used for the purposes for which import at concessional rate of duty was permitted by the authorization. 8. The learned Advocate has further submitted that it is more important that required foreign exchange need to be earned by the importer who is availing the benefit of the EPCG scheme. The learned Advocate submitted that Additional Director General Foreign Trade under letter dated 30 January 2017 has issued EODC/redemption against EPCG licence No. 0530137584 dated 10 December 2004 in favour of appellant. It is further added that this letter of DGFT certifies that the appellants have submitted the documents towards discharge of export obligation and Commissioner of Customs, Tughlakabad has already accepted the EODC/redemption of the EPCG authorization No. 530137584 dated 10 December 2004. 9. On the basis of above, it has vehemently been argued that once the licensing authority has found that the licensing conditions has been met and the export obligation has been fulfilled by the appellant, it is not open to the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle and as per the requirement of the EPCG licence the capital goods need to be installed at the given address in the licence. 12. We find that the basic purpose of capital goods to have installed at the given address is to ensure that the capital goods which have been imported under EPCG licence on a concessional customs duty are not diverted from the place of manufacturing. In this case since the imported capital good being a car which is a movable capital equipment and there is no allegation in the show cause notice or in the findings given in the order-in-original that the capital goods imported under the EPCG licence have been found in possession of the importing firm and its Director and was found parked at the residence of the Director. We are of the opinion that no violation of the condition of the EPCG licence has been done on this count as the vehicle found in the possession of the importing firm and no evidence have been adduced by the Department to sustain their claim that it was not used for the purpose for which it has been allowed to be imported by the EPCG licence on concessional rate of customs duty. 13. During the course of hearing it has been submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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