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TMI Blog2023 (5) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... olated by the appellants. The impugned order lacks appreciation of facts on record and the documents submitted by the appellants which are relevant to the issues of the case, for arriving at a proper decision. There is no discussion or not even a mention of the document produced by the appellants in respect of installation certificate dated 05.04.2009. Thus, the impugned order has not considered all relevant aspects of the case and ignored crucial documents. The matter needs to be looked into afresh by the original authority for determining the correct position of law in this case - appeal allowed by way of remand. - HON BLE MR. S. K. MOHANTY , MEMBER ( JUDICIAL ) And HON BLE MR. M.M. PARTHIBAN , MEMBER ( TECHNICAL ) Shri T. Viswanathan a/w Akhilesh Kangasia, Advocates for the Appellants Shri Ashwin Kumar, Auth. Representative for the Respondent ORDER PER : M. M. PARTHIBAN This appeal has been filed by M/s R.K. Mining Private Limited (herein after, referred to as the appellants ) with address at 1-2-49/15, Nizampet Road, Hyder Nagar, Kukatpally, Hyderabad-500072, against Order-in- Original CAO No. 39/2013/CAC/CC(E)/YG/GR.VII dated 28.02.2013 (referred to as the impugned order ) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shifting they did not have the permission of DGFT, subsequently they had obtained necessary permission from DGFT and had also applied for discharge of export obligation, as they had also fulfilled the export obligation. They claimed that there is no violation of the Customs notification or other provisions of the Customs Act, 1962 by citing the following case laws: (i) Thiagarajar Mills Ltd Vs. Commissioner of Customs, Trichy 1999 (111) E.L.T. 288 (Tribunal) (ii) India Seamless Metal Tubes Ltd Vs. Commissioner of C. Ex Customs, Goa 2017 (348) E.L.T. 577 (Tribunal- Mumbai) (iii) Regency Ceramics Ltd. Vs. Commissioner of Customs (Export), Chennai 2018 (363) E.L.T. 293 (Tribunal- Chennai) (iv) Suncity Synthetics Ltd. Vs. Commissioner of Customs, Nhava Sheva 2001 (132) ELT 684 (Tribunal- Mumbai) (v) Reliance Infrastructure Ltd. Vs. Commissioner of Customs, Chennai-IV 2017 (357) E.L.T. 865 (Tribunal- Chennai) 4. Learned Authorized Representative (AR) representing the department had reiterated the findings made in the impugned order and stated that inasmuch as the appellants did not fulfil the conditions of the customs notification, the impugned order is legally sustainable. 5. Heard bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1962. They have also rendered themselves liable to penalty under Section 112(a) and/or (b) and/or 114AA of the Customs Act, 1962. 23. RKMPL are hereby called upon to show cause in writing to the Commissioner of Customs (Export), having his office at 2nd Floor, New Customs House, Ballard Estate, Mumbai - 400 001, within 30 days from the receipt of this show cause notice as to why :- a. the said Nordberg mobile crushing plants comprising LT-1100 and LT- 105 valued at Rs. 6,11,25,200/-, imported and cleared under EPCG scheme by fraudulently availing concessional duty exemption under Notification No. 64/2008-Cus. dated 09.05.2008 should not be confiscated under Section 111(0) of the Customs Act, 1962; b. the total Customs duty amounting to Rs. 1,27,17,014/- actually payable but saved in terms of the aforesaid exemptions in respect of the aforesaid crushing plant, should not be recovered in terms of the proviso to Section 28(1) of the Customs Act, 1962, along with interest in terms of Section 28AB of the Customs Act, 1962. c. penalty should not be imposed on them under Section 112 (a) (b) and/ or 114A of the Customs Act, 1962. d. the voluntary deposit amounting to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Bank of India, Commercial Branch, Hyderabad for Rs. 19,08,000/-.In terms of provisions of Section 125 of the Act, I give an option to the importers to redeem the said confiscated goods on payment of redemption fine of Rs. 1,00,00,000/- ( Rupees One Crore Only). (iv) I impose a penalty of Rs. 1,27,17,014/- (Rupees One Crore Twenty Seven Lakh Seventeen Thousand and Fourteen Only) on M/s. R.K. Mining Pvt. Limited (importer) in terms of provisions of Section 114A of the Customs Act, 1962. (v) I also impose a penalty of Rs. 25,00,000 (Rupees Twenty Five Lakh Only) each on Shri B. Ravikalyan Reddy and Shri B. Sasikiran Reddy Chairman Managing Director of M/s. R.K. Mining Pvt. Limited (importer) in terms of provisions of Section 112(a) of the Customs Act, 1962. 7. From the perusal of the records of the case and the specific allegations raised in the SCN and decided in the impugned order as above, it transpires that the learned Commissioner of Customs (Export) had confirmed the adjudged demand of customs duty, interest thereon besides confiscation of the goods and imposition of redemption fine and penalties on the appellants based on certain findings as discussed by him in paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the installation certificate has been submitted by the appellants as part of the documents filed in appeal. The finding at para 19.1.4 is contradictory to findings recorded at para 18.1.1. Factual position is that there is a installation certificate as per requirement of HBP. 4 Condition (7) of para 2 of Notification No.64/2008-Cus. dated 09.05.2008 not fulfilled inasmuch as the installation certificate as ever been submitted by appellants. No intimation regarding relocation of the imported machinery given. (Paragraph 19.1.5) Installation certificate dated 05.04.2009 in respect of two imported machines of appellants for installation at their quarry, commissioning on 29.03.2009 at R.K. Mining Pvt. Ltd. Sy. No.1/P, Obulapuram village, D.Hirelal Mandal, Anantapur Dist. (AP) Condition No.7 of Notification No.64/2008- Cus. dated 09.05.2008 has been fulfilled inasmuch as there exists a certificate for installation at the premises of the appellants. However, the impugned order dated 28.02.2013 has not taken cognizance of the existence of such certificate dated 05.04.2009. No discussion on the said fact. 5 Imported machinery during its transportation by vehicle from Mumbai to Obulapuram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification. (Paras 19.1.7, 19.1.8) Imported machinery under EPCG license after customs clearance transported to Obulapuram in three trailers; while two trailers reached site on 06.02.2009, the trailer that met with an accident arrived the site on 14.02.2009. Since the Government of India imposed ban on mining activity at Obulapuram, and the ban was subjudice being pending before the Hon ble Supreme Court, these machines were put to use for mining work at Bellary and Hospet during July to October, 2009. On receiving a contract for using the imported machines at NTPC Meja thermal power project, they applied to DGFT and obtaining permission. The machines were kept idle for two years at site, owing to the ban imposed by Govt. The factual position of imported machinery having been transported to the Obulapuram site is corroborated by the transporter. The EPCG license No. 0930004388/3/11/00 dated 12.09.2008 issued to the appellants under the category of Service Provider for export of Miscellaneous Products . The appellant s request made to DGFT authorities for shifting imported machinery to other premises have been duly taken note of and the request has been acceded to by the DGFT in it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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