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TMI Blog2023 (12) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... lfilled the export obligations and submitted the requisite papers to DGFT for issuance of EODC well in time. However, the non co-operation of the two Departments, i.e. the Customs and the DGFT, the instant show cause notice and the impugned orders have resulted in denying the benefit to the appellant and imposing the liability to pay the custom duty, which prima-facie is unsustainable. The delay, if any, in issuance of the EODC was on the part of the DGFT and for which the appellant cannot be penalised. The impugned order set aside - appeal allowed. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri P. Pathak, Consultant and Shri Mukeshwar Nath Dubey, Advocate for the appellant Shri Rakesh Kumar, Authorised Representative for the respondent ORDER The appellant has challenged the Order-in-appeal No. 315/2019 dated 30.08.2019 whereby the Commissioner of Customs (Appeals) dismissed the appeal and confirmed the findings of the Adjudicating Authority. 2. The short question involved in the present appeal is whether the appellant is required to fulfil the export obligation within the time prescribed under the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bears to the total export obligation together with interest at the rate of 15% per annum from the date of clearance of the goods; . 4. The appellant had exported the goods from JNPT, Nava Sheva and submitted the details of the export to DGFT on 01.10.2011, i.e. within the period of eight years for issuance of Export Obligation Discharge Certificate (EODC). The said document has been placed on record by the appellant alongwith written submissions filed on 08.06.2023 at page No. 29 - 30. It appears that after the expiry of the period of eight years on 10.01.2013, the Customs Department issued the show cause notice dated 04.06.2014, which according to the appellant was not received by him and consequently when the show cause notice was being adjudicated by the Deputy Commissioner of Customs and notice of personal hearing was sent for 15.10.2014, 21.10.2014 and 28.10.2014 as recorded in the adjudication order dated 24.11.2014, the appellant neither appeared in person nor replied to the show cause notice. The Adjudicating Authority in a very cursory manner confirmed the show cause notice holding that the noticee failed to submit requisite documents regarding export obligation as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel referred to various orders passed by this Tribunal as well as by the High Court on the issue under consideration. On the contrary, learned Authorised Representative for the Revenue has submitted that it is an open and shut case where the appellant had not submitted the EODC on time and the EODC issued by the DGFT is much beyond the stipulated period and therefore the conditions have not been fulfilled to claim the benefit of the notification and consequently the appellant is liable to pay the custom duty. The learned Authorised Representative has also referred to series of decisions which are basically on the point that the conditions of the notification have to be strictly construed and in the event of any ambiguity the benefit has to go to the State. 7. We have heard both sides and perused the record of the case. 8. Considering the conditions of the notification for grant of license we are of the opinion that the responsibility and liability of the importer is to fulfil the export obligations and submit the requisite documents to the concerned authorities and the issuance of the EODC was on the concerned authority. From the records, we also find that the export obl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities in processing the necessary documentation. 18. Given the aforestated admitted facts, we find that the first respondent adopted a tediously hidebound approach in dealing with the matter. According to the petitioner, the fact that it had discharged its export obligations would have been well within the knowledge of the customs authorities themselves and all that the first respondent had to do was to cross verify the factum of such compliance even if the petitioner failed to appear before him. We find merits in this submission. 10. In another decision by this Tribunal in the case of Arjuna Natural Extracts Ltd., vs. Commissioner of Customs, Cochin -2021 (378) ELT 187 (Tri. Bang.), the learned Single Member noted that the appellant therein had fulfilled the export obligation and has submitted all the relevant documents to JDGFT office within time but the redemption letter was issued after inordinate delay and in the meantime the show cause notice was issued and following the order of the High Court in appellant s own case on the same ground, observed that since the redemption certificate has already been issued showing the fulfilment of the export obligation by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter has no control and, delay on the part of a public authority cannot result in denial of the benefit extended in larger public interest. Thus , the delay in obtaining Export Obligation Discharge Certificate (EODC) cannot result in denial of benefit under the EPCG Scheme, which itself has been formulated to promote export and earn foreign exchange. In this regard, it may be relevant to refer to the judgment of the Hon ble Supreme Court in the case of Commissioner of Customs (Imports) v. Tullow India Operations Ltd., reported in (2005) 13 SCC 789 = 2005 (189) E.L.T. 401 (S.C.), relevant portion of which, is extracted hereunder : Both the importers are licensees. 21. Indisputably, they were entitled to the benefit of the exemption notification subject, of course, to the condition that they would produce the essentiality certificate granted by the Directorate General of Hydrocarbons at the time of importation of goods. Grant of essentiality certificate was not in the hands of the assessees. It was the function of a department of the Central Government. The essentiality certificate admittedly was not granted by the Directorate General of Hydrocarbons within a reasonable time. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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