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TMI Blog2022 (1) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... AL ORDER Nos. 50050-50051/2022 - Dated:- 21-1-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Ms. Reena Rawat, Advocate for the appellant Shri Ravi Kapur, Authorised Representative for the respondent ORDER The issue involved in these appeals is whether fine and penalty under Section 112(a)/ 114AA on the appellant-assessee and its Partner have been rightly imposed. 2. Brief facts of the case are that the appellant having IEC number and Central Excise registration, who are engaged in the manufacture of all kinds of textile made-ups and fabrics had imported capital goods under Zero duty EPCG Authorisation No. 0530160789 dated 09.05.2013. The appellant utilised the said authorisation on import of capital goods during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The show cause notice dated 14.03.2016 was issued after about two years on the aforementioned facts and allegations alleging as under:- 30. A perusal of the Condition No. (4) of Notification No. 102/2009-Cus. dated 11.09.2009, as it stood at the relevant point in time, confirms that prior to 22.06.2012 the duty exemption was not available to an importer who was issued in the year of issuance of a Zero Duty EPCG authorisation, a duty credit scrip under the SHIS scheme under para 3.16 of the FTP. In the instant case, it is a matter of fact that M/s Devtara Industries was issued both the EPCG authorisation and SHIS scrip in the year 2013-14. Thus, the said condition No. (4) of the said Notification No. 102/2009-Cus. dated 11.09.2009, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vtara Industries applied for SHIS scrip on 02.05.2013 and subsequently filed three Bill of Entry No. 2246923 dated 28.05.2013 under the Zero Duty EPCG scheme for import of capital goods. However, M/s Devtara Industries, at the time of filing of Bill of Entry under the Zero Duty EPCG scheme did not bring to the notice of Customs, the fact that they have applied for the said SHIS scrip. This suppression of vital fact allowed M/s Devtara Industries to claim and incorrectly avail the benefit of the aforesaid duty exemption Notification under the Zero Duty EPCG scheme. 34. As aforementioned, M/s Devtara Industries applied for SHIS scrip on 02.05.2013 but did not inform this fact to the Customs authorities concerned when they filed Bill of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which the SHIS scrip being used by them were issued. Had they done so the Customs authorities would have questioned the benefit of the Zero Duty EPCG scheme earlier availed by them. This suppression of vital fact allowed M/s Devtara Industries to incorrectly retain the benefit of the aforesaid Notification No. 102/2009-Cus. dated 11.09.2009, as amended. 36. M/s Devtara Industries vide TR6 Challan No. 544 dated 21.03.2014 deposited the duty saved amount of ₹ 9,11,903/- with applicable interest (total amount deposited is ₹ 9,57,021/-) under Zero duty EPCG scheme. This was done on the basis of the DGFT Notification No. 01(RE-2013)/2009-2014 dated 18.04.2013 which referred to amendment to Para 5.1(b) of Chapter 5 of the FTP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 9,57,021/- with further proposal to confiscate the capital goods (machine) imported under the said authorisation with further proposal to impose penalty. Individual penalty was also proposed on the Partner Sh. Umesh Tyagi. The show cause notice was adjudicated vide order-in-original dated 31.05.2017 and the proposed demand was confirmed and appropriated alongwith interest as proposed. Further, the machine imported under the Zero duty EPCG scheme was ordered to be confiscated with option to redeem on payment of redemption fine of ₹ 5 lakhs. Further, penalty of ₹ 3 lakhs on the appellant s firm under Section 112/114AA and also on Sh. Umesh Tyagi, Partner. Being aggrieved, the appellant and its Partner preferred appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter availed one benefit had malafidely applied for the second benefit which was not permissible in law. As the appellant was in doubt whether they will be granted zero duty benefit had applied for the SHIS for grant of script prior to the issue of zero duty EPCG authorisation. However, the office of DGFT also erroneously granted benefit under both the schemes in the same financial year. Further, the appellant on the first opportunity on understanding that he is not entitled to both the schemes, immediately repaid the benefit of one of the schemes with interest. Thus, there is no case of malafide made out against the appellant. 7.2. Learned Counsel relies on the Public Notice No. 30/2015-2020 dated 08.09.2016, wherein Government of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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