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TMI Blog2024 (7) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... on cess is not availed. HELD THAT:- The EPCG License was issued to the Appellant on 21.01.2019 and under the terms of the said License, the Appellant was required to meet its export obligation within a period of 6 years, i.e by 20.01.2025. We also find that this fact has neither been disputed in the show cause notice nor in the impugned order passed by the Ld. Commissioner. The department has to initiate the proceedings only after the expiry of the licencing period. Therefore, any proceeding prior to this period is purely premature and the impugned order confirming demands before the expiry of the licencing period is not justified and correct in law. Such actions, therefore, cannot be sustained. Para 5.2 of Circular No. 16/2023-Cus dtd. 07.06.2023 state that as per the Hon ble Supreme Court s judgment in the case of UNION OF INDIA ORS. VERSUS COSMO FILMS LIMITED [ 2023 (5) TMI 42 - SUPREME COURT] , importer of goods, who do not meet the pre-import conditions, are required to pay GST and Compensation Cess, as the case may be. However, the Hon ble Court also permitted the assesses to claim refund or avail Input Tax Credit, while specifically stating that a Bill of Entry rather than a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Appellant is provider of port services and for providing such services, it had imported capital goods viz, Ship Unloader, Barge and Railmount under EPCG Authorization No. 5230026626 dtd. 21.01.2019 by filing Bill of Entry No. 2215226 dtd. 27.02.2019 and claimed exemption from Basic Customs Duty and IGST under Notification No. 16/2015-Cus dtd. 01.04.2015, as amended. Under the terms of the said Authorization, the appellant was required to fulfil an export obligation equivalent to 6 times the duty saved on import of capital goods of FOB basis within a period of 6 years i.e. by 20.01.2025. 3. He further submits that the gravamen of the case of the Revenue is that the Appellant had allegedly availed the exemption of IGST in terms of above Notification despite being aware that, as per Explanation C(II) in the said Notification, payment received in rupee terms towards export of services could be counted towards fulfilment of export obligation only if exemption from payment of IGST had not been availed. However, under the terms of said authorization, the appellant was required to meet its export obligation within period of 6 years i.e by 20.01.2025. Accordingly, no proceedings could h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om foreign vessels. The Indian agents acting as intermediary has paid the Appellant out of such foreign remittances receivable by them in foreign exchange and has satisfied the required terms towards fulfilment of its Export Obligation. He placed reliance on the decision of Hon ble Supreme Court in the case of J.B. Boda Co. Pvt. Ltd. Vs. CBDT [(1997)1 SCC 719]. The appellants also filed written submissions dated 19 July, 2024 which is taken on record and considered. 8. Shri Tara Prakash, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 9. We have carefully considered the submissions made by both the sides and perused the records. We find that the Appellant had imported capital goods i.e Ship Unloader, Barge and Railmount under EPCG Authorization dtd. 21.01.2019, availing benefit of Zero Duty Export Promotion Scheme (EPCG). The said consignment was cleared vide Bill of Entry No. 2215226 dtd. 27.02.2019 and Nil BCD and Nil IGST was paid availing the benefit of Customs Notification No. 16/2015-Cus. dtd. 01.04.2015, as amended by Customs Notification No. 79/2017-Cus. dtd. 13.10.2017. Also, as per the EPCG Authorization, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter, appellant vide letter dtd. 06.03.2020 and 23.09.2019 addressed to the Additional Commissioner and vide letter dtd. 04.08.2023 addressed to the Principle Commissioner requested reassessment/amendment of the said disputed Bill of Entry, to enable it make payment of IGST amount, as the entire situation was revenue neutral. 12. We find that Para 5.2 of Circular No. 16/2023-Cus dtd. 07.06.2023 state that as per the Hon ble Supreme Court s judgment in the case of Union of India Ors. Vs. Cosmo Films Ltd. 2023 (72) G.S.T.L. 417 (S.C.) / (2023) 5 Centax 286 (S.C.), importer of goods, who do not meet the pre-import conditions, are required to pay GST and Compensation Cess, as the case may be. However, the Hon ble Court also permitted the assesses to claim refund or avail Input Tax Credit, while specifically stating that a Bill of Entry rather than a challan would be prescribed documents for this purpose. 13. We also noticed that in the present matter IGST amount paid by the Appellant on import of goods was available as ITC (Input Tax Credit) to the Appellant and hence there was a revenue neutral situation. As per the submission of Appellant they have paid GST in cash of Rs. 6,77,32,906 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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