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TMI Blog2022 (11) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate action under Customs Act, 1962. Such stipulation is necessitated as, generally, the period granted for fulfillment of export obligation lies well beyond the normal period of limitation prescribed in section 28 of Customs Act, 1962. Whether the regularization had occurred, as argued by Learned Authorised Representative, to extricate the appellant from the consequence of the show cause notice? - HELD THAT:- A decision on the contractual breach of obligation entered into in relation to schemes under the Foreign Trade Policy vests with the licencing authority and it is only upon such occurrence that it may be conclusively held that breach of condition is demonstrated. It is relevant here that the show cause notice has invoked section 143 of Customs Act, 1962 which provides for the execution of bonds for ensuring fulfillment of conditions. It is, therefore, not a demand under section 28 of Customs Act, 1962 following allegation of short payment, non-payment or evasion of duties but for enforcing the obligation under advance authorization scheme of the Foreign Trade Policy - the regularization is complete in all respects and it is only in the absence of such regularization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant, the duty along with interest thereon, totaling ₹ 15,86,879/-, had been deposited on 11th September 2017 and closure accorded by the licensing authority on 21st November 2017. It was submitted by her that these facts, though brought to the notice of the first appellate authority, was not appreciated sufficiently as the redemption fine and penalty were merely reduced in the impugned order instead of being set aside. 4. Learned Counsel relies upon the decisions of the Larger Bench of the Tribunal in Bhagyanagar Metals Ltd v. Commissioner of Central Excise, Hyderabad II [2016 (333) ELT 395 (Tri.-LB)] which refers to re Weston Components Ltd. It was further pointed out that the decision of the Tribunal in Global Boards Ltd v. Commissioner of Customs (Export), Mumbai [2019 (368) ELT 1113 (Tri.-Mumbai)] and in Maruti Udyog Ltd v. Commissioner of Customs, Kandla [2001 (132) ELT 340 (Tri.-Mumbai)] disfavor resort to section 111 of Customs Act, 1962 when breach of conditions of licence had been regularized, and certified to be so, by the competent authority. 5. Learned Authorised Representative drew attention to the restitution only after the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions prescribed at the time of import that continues to be so. 7. The decision of the Tribunal in re Global Boards Ltd has made it abundantly clear, thus, 8. Insofar as the confiscation of the goods are concerned, it has been held in re Sanghi Industries Ltd. that - 6.8 . The act of importation and the conditions of importation are two different things and for violation of each of them, separate consequences would follow. In the instant case the duty liability has been imposed for the import of the goods and the goods have been confiscated for violating the terms and conditions of importation. Since the goods are liable to confiscation, the liability to penalty arises under Section 112 of the Customs Act. Penalty is an action (in personam) on the importer while the duty and fine are (action in rem) on the goods. As per Section 112 of the Customs Act, liability to penalty arises when a person who in relation to any goods acts or omits any act which act or omission would render the goods liable to confiscation under Section 111. Any person who abets or aids the commission of an act or omits to such an act (which renders the goods liable for confiscation) is also li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue thus 9. One of the conditions of the exemption itself was that the duty was to be paid within the period specified. It cannot therefore said that there is breach of the condition of the exemption. We have to distinguish this kind of exemption from an unconditional exemption, or an exemption to which no conditions are attached requiring payment of any duty within a specified period. In such cases, the duty to be recovered either by recourse to Section 28 or by enforcing any bond or undertaking that the importer has executed. In the case before us, such a step might have been necessary, if Maruti Udyog Ltd. had not paid the amount within 30 days from the close of the financial year. It could then be said that one of the conditions of the exemption have not been complied with. That is not the case. It is not in dispute that Maruti Udyog Ltd. paid the amount within this period. Therefore, there in fact has been no breach in the condition of the exemption. The goods were therefore not liable to confiscation under clause (o) of Section 111 and the importer not liable to penalty. 9. The question that arises, therefore, is whether the regularization had occurred, as argued b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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