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TMI Blog2023 (8) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle as private vehicle in the first instance and re-registered the same as a tourist vehicle at the instructions of JDGFT. The entire earnings of foreign exchange of USD 116,609.17 was from travel agent / tour operators and USD 142,403.76 was earned from credit card collection for the period from 12/4/2005 to 22/12/2005 and for the period from 1/4/2005 to 29/11/2005 respectively, which was shown by respondents towards export obligation fulfillment of the imported car. The department was of the view that the respondent had violated the condition of the notification in as much as the car was not registered as tourist vehicle for a substantial period and also that the foreign exchange was received from various other services and not by use of the car. The respondents did not maintain proper vehicle movement records and the vehicle travel journey documents showed only very less amount collected from using the vehicle for travel purpose. Show Cause notice dated 20/4/2007 was issued to the respondent under section 124 read with section 28 (1) of Customs Act 1962 proposing to deny the benefit of exemption of the notification and for demand of differential duty along with the interest, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the very same points were considered by the Tribunal in the said case and it was observed that the proceedings against an assessee for violation of conditions of the exemption notification was not pre-mature at any stage and can continue without DGFT's concurrence. So also it was held that the export obligation is to be fulfilled only by the earnings through the use of the car and not on the earnings of any other services. The decision in the case of Sheshank Sea Foods Pvt. Ltd. Vs. Union of India 1996 (88) ELT 626 (SC) was also relied by the Ld. AR to argue that customs authorities can conduct investigation for breach of condition of an exemption notification even though EODC is issued by JDFT. The Ld. AR prayed that the appeal may be allowed. 5. The Ld. counsel Shri Gokul Raj appeared and argued for the respondents. It is submitted that the respondent Viz; Joys, the Beach Resorts Ltd. had imported one 'Nissan X Trail Car' under the EPCG scheme under concessional duty. The vehicle was initially registered as a private vehicle which was subsequently re-registered as a tourist taxi with effect from 28/3/2006. This was done as per the relevant policy circular issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nhava Seva 2017 (347) ELT 680 (Tri-Mumbai). The decision in the case of CC (Air cargo) Vs. Hotel Excelsior Ltd. 2016 (336) E.L.T. 595 (Delhi) was also relied by the Ld. counsel to support the contentions. 8. It is submitted that the department has relied on the decision of the Tribunal in the case of Surya Samudra Resort Pvt. Ltd. (supra). An identical matter had come up for consideration before the Hon'ble High Court, Delhi in the case of Commissioner of Customs Vs Air Travel Bureau Ltd. 2010 (260) E.L.T. 78, (Delhi). In the said case, the Hon'ble High court upheld the Tribunal finding that EPCG license does not envisage that only such amount collected by use of the imported car has to be considered towards export obligation under the license. The Hon'ble High court also noted at para 3 of the judgement that if by using the imported cars, the EPCG authorization holder is able to attract Foreign tourist to come to India by providing the incidental services such as arranging air travel ticket, accommodation, site seeing by travel agency, then foreign exchange earned from such services can be treated as earned by using the imported car as well. The said decision of the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported car only has to be accounted towards fulfilment of export obligation. Similar view was taken in Air Travel Bureau Ltd. (supra). 10. The Tribunal in the case of Narang International Hotels Pvt. Ltd. (supra) had occasion to analyse a very same issue with regard to import of luxury cars. Relevant paragraphs of the said decision are reproduced are under :- "11. We are not in doubt that the facts unearthed by the investigators do evidence use of the imported cars for personal use and for purposes other than earning of foreign exchange but that, to the extent that such use is not 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. 12. Appellant-company has applied to the licencing authority for issue of Export Obligation Discharge Certificate (EODC). Such application does not terminate the validity of the authorization or to accrue credit of further earning of foreign exchange in the manner envisaged in the scheme to meet any shortfall in achievement of obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt question that arose for consideration in the said appeal from the Order-in-Original dated 27th August, 2010 passed by the Commissioner of Customs was whether the respondent violated the conditions attached to the import of cars for use in the hotel business. According to the Department the respondent failed to demonstrate that the cars were in fact used for transporting the foreign guests of the hotel. 3. As rightly pointed out by the CESTAT, the Department was unable to show any stipulation in any notification issued by the Central Board of Excise and Customs or any other notification specifically requiring the imported cars to be used only for transporting foreign guests of the hotel. Even before this Court, learned counsel for the Department was unable to show any such stipulation. In the circumstances, the Court is unable to disagree with the reasoning of the CESTAT that as long as foreign exchange is earned by the hotel and the imported cars are being used, there cannot said to be a violation of any statutory requirement. 4. No substantial question of law arises for consideration. The appeal and the application are dismissed." (emphasis supplied) 14. After appreciatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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