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TMI Blog2023 (6) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... t point of time assessee sought to claim benefit under Notification No. 94/96-Cus. In those circumstances the Apex Court has held that assessee cannot approbate and reprobate. Hence on facts, the said authority does not support Revenue s case. With regard to the second authority in COMMISSIONER OF CUSTOMS, HYDERABAD VERSUS M/S. PENNAR INDUSTRIES LTD. ANOTHER [ 2015 (8) TMI 56 - SUPREME COURT] , Shri. Shivadass urged that appellant does not deny the power of the customs authority to initiate action. However, once at the instance of the customs authority, the Licensing authority initiates action, examines the factual position and holds the issue in favour of appellant; such finding is binding on the Customs authorities. Further, in the case of Pennar Industries, the goods were raw material and not capital goods. Hence, the ratio of the said authority is applicable to the facts of this case. We have followed the decision of this Court in COMMISSIONER OF CUSTOMS VERSUS M/S. ADITYA BIRLA NUVO LTD., (FORMARLY KNOWN AS M/S. MADURA COATS LTD. / M/S. INDIAN RAYON INDUSTRIES LTD.,) [ 2021 (2) TMI 93 - KARNATAKA HIGH COURT] and held that the decision of ADGFT is final. Therefore, the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant had deployed the imported capital goods for rendering mining services upon being granted exclusive permissive possession thereon, must necessarily own the 'mines' so as to be covered under the expression 'own manufacturing unit' or 'manufacturing for his own use' as used in paragraph 9.5 of the Foreign Trade Policy? (iii) Whether in view of the provisions of the Foreign Trade Policy, the Tribunal, constituted under Section 129 of the Act, has erred in assuming jurisdiction to examine the eligibility criteria for grant of EPCG Authorization under the provisions of Foreign Trade Policy, particularly when import under the EPCG Authorizations were already completed and the authorizations were still valid inasmuch as the DGFT Authorities never cancelled the authorizations despite having been seized of the proceedings initiated by the DRI against the Appellants under the provisions of Act? (iv) Whether in the facts and circumstances of the case and in view of the stare decisis of the Hon'ble Supreme Court in the case of Titan Medical Systems Pvt. Ltd. Vs. Collector of Customs, New Delhi [2003 (151) ELT 254 (S.C.)] that once a license was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued by the Deputy DGFT Cuttack proposing to cancel three EPCG licenses. Thereafter, the DRI, Kolkata Zonal unit issued a show cause notice proposing to recover the amount of duty saved at the time of import of Capital Goods, along with interest and penalty. While adjudicating the show cause notices, the Deputy DGFT Patna issued a Blacklisting Order refusing to grant and renew further licenses to appellant or its proprietor. The Deputy DGFT Cuttack further issued a 'Refusal of License' order, refusing to issue any license to appellant and its Proprietor. Appellant preferred an appeal against the Refusal of License order and the Blacklisting order before the ADGFT [Additional Directorate General of Foreign Trade India] , New Delhi. The ADGFT allowed appellant s appeal and set-aside the order. The said order was not challenged by the Revenue and has thus attained finality. Appellant filed its reply to show cause notice dated 08.05.2009 issued by the ADG DRI [Addl. Director General, Directorate of Revenue Intelligence] , Kolkata Zonal Unit before the CoC [Commissioner of Customs] , Bangalore. 7. The Respondent passed an OIO [Order-In-Original] dated March 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported goods are movable in nature. Further, these goods were found in other mines owned by OMC, wherein the appellant had undertaken the mining activities; the Policy circular No. 26/2009-2014 dated 17.03.2010 has been issued by the JDGFT clarifying the requirement of installation certificate with respect to movable goods, wherein it has been clarified that the installation certificate is not required in case of movable goods; further, the ADGFT in its order has held that there is no misuse of imported goods and the appellant had satisfied the actual user condition; appellant is eligible for the benefit in terms of Chapter 5 of the FTP 2004-2009 wherein, para 9.37 of the FTP recognizes mining as 'manufacturing' and appellant was engaged in the mining activities using the goods imported under the EPCG Licenses as recorded by the ADGFT in his Order-in-Appeal dated 03.01.2011; as recorded by the CESTAT at para 3.11, the DDGFT, Cuttack has clarified that where some doubt had arisen in earlier cases regarding installation certificate, the same was regularized by the Appellate Authority. Further, in the present case, there is no dispute over installat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for violation of the terms and conditions imposed on appellant; appellant has not only violated the conditions of license but also not fulfilled the export obligations as a manufacturer-exporter and as a merchant-exporter; once the goods are confiscated under Section 10(o) of the Act, the penalty under Section 114 A and 114 AA of the Act ought to have been imposed automatically. 12. With these submissions, Shri. Nargund prayed to allow the Revenue s appeal with regard to the penalty and to dismiss appellant s appeal. 13. We have carefully considered rival contentions and perused the records. 14. Undisputed facts of the case are, appellant is engaged in the mining activities. It uses capital goods imported under the EPCG License. Appellant was granted permission by OMC to carry out its mining activities. 15. In sum and substance, Revenue s case is, the machines have been given by appellant on hire to OMC and the same have not been kept in the mines mentioned in the license. The installation certificate is issued without verification and appellant has diverted some machines imported to other mines. Thereby, appellant has violated the terms and conditions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the benefit of notification No. 158/95-Cus. The goods were rejected by the foreign buyer. The assessee could not re-export the goods. At that point of time assessee sought to claim benefit under Notification No. 94/96-Cus. In those circumstances the Apex Court has held that assessee cannot approbate and reprobate. Hence on facts, the said authority does not support Revenue s case. 23. With regard to the second authority in Pennar Industries, Shri. Shivadass urged that appellant does not deny the power of the customs authority to initiate action. However, once at the instance of the customs authority, the Licensing authority initiates action, examines the factual position and holds the issue in favour of appellant; such finding is binding on the Customs authorities. Further, in the case of Pennar Industries, the goods were raw material and not capital goods. Hence, the ratio of the said authority is applicable to the facts of this case. We have followed the decision of this Court in Aditya Birla Nuvo and held that the decision of ADGFT is final. Therefore, the authority relied upon by the Revenue does not support its contention. 24. With regard to the third authority in She ..... X X X X Extracts X X X X X X X X Extracts X X X X
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