9911796707
TMI Blog2025 (2) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... idered by the Commission only on the ground that the request for extension made by the appellant had been rejected. Before this Court, the appellant had filed a consolidated statement of exports and the receipts in foreign currency for the period from 01.04.1993 to 20.12.1999. On perusal it could be seen that it is only a self serving document prepared by the appellant and we are not inclined to rely on this self serving document to appreciate the contentions made by the appellant. However, copies of 3 Bank certificates all dated 25.09.2000 issued by Federal Bank Limited, Indian Overseas Bank and State Bank of Travancore, pertaining to the remittances received for the period upto 22.12.1999 has been filed. The certificate issued by the State Bank of Travancore precisely states that the remittances had been received from various NRE accounts into the account of the appellant. But the certificate of Indian Overseas Bank states that they have collected and credited Rs. 1,63,84,165/- from various NRE customers for the period from 03.06.1999 to 20.12.1999 which is equivalent to US$ 3,56,170. The certificate issued by Federal Bank also certifies that for the period upto 20.12.1999 they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006(T). 2. The short facts to be noted in the appeal is that M/s.Asianet Satellite Communication Limited [hereinafter referred to as "ASCL"] the appellant herein is a service provider company in television network. The Export Import Policy [in short "EXIM policy"] for the period 1992-97 provided for an Export Promotion Capital Goods Scheme [in short "EPCG Scheme"] under Chapter VI A for the service sector. As per the scheme, the appellant was entitled for either concessional import or total exemption from payment of duty corresponding to the export obligation. 3. On their application, the Director General of Foreign Trade [in short "DGFT"] had issued the EPCG licence on 23.12.1993 in favour of the appellant for import of cable TV equipments valued at Rs. 9,79,51,255/- at the concessional rate of duty. The licence fixed an export obligation on the appellant at US$ 1,24,18,543 to be achieved within a period of 5 years from the date of issuance of the licence and towards the security for due performance of the export obligation, the appellant had furnished a bank guarantee to the tune of Rs. 3,90,55,765/-. 4. Even though as per the EPCG licence, the appellant was permitted to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22.08.2001. 8. There had been further communications from the appellant to DGFT which were all relied upon before the Settlement Commission and ultimately the first respondent Settlement Commission by its final order dated 13.08.2002 has fixed the duty liability of the appellant at Rs. 4,63,46,499/- and after deducting a sum of Rs. 2,69,45,639/- paid in compliance of the admission order, the balance duty payable was Rs. 1,94,00,860/-. The Commission had also granted immunity from the payment of fine, penalty, prosecution and payment of interest and further directed that the seized capital goods shall be released. 9. The Settlement Commission had come to the conclusion, that the appellant had achieved export obligation only at 14% based on the export performance up to 30.06.1998. The Settlement Commission had rejected the request to consider the earnings up to 22.12.1999 holding that the extension for export obligation period had been repeatedly rejected by DGFT. 10. Challenging the orders of the Settlement Commission, the Customs Department had preferred writ petition before this Court in W.P.No.29008 of 2003 and the appellant had preferred O.P.No.27493 of 2002 before the Kera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty could get reduced. He made it clear that they are not making claim beyond this extended period and sought for indulgence of this Court. 15. Per contra, Mr.Rajnish Pathiyil, learned Senior Panel Counsel for the respondents 1, 3 to 6 contended that admittedly when the appellant had not fulfilled the export obligation as per the EPCG licence, they are not entitled for any concessional duty and they are liable to pay duty for the entire imported goods. However since already the exports realised to the extent of 14% had been taken note of and benefit has been granted, the appellant is bound to pay the differential duty as directed by the Commission. He further contended that when DGFT had granted opportunities for extending the period, the appellant had not come forward to opt the same and when the extension of the licence stood rejected, the Commission and the writ court had rightly taken note of the same and the findings arrived at are perfectly justified and needs no interference and sought for dismissal of the writ appeal. 16. Heard the rival submissions and perused the materials available on record. 17. The facts are not in dispute that the appellant who is a service provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the non-fulfillment of the export obligation, the DRI had seized the imported goods, which resulted in the appellant initiating proceedings before the Kerala High Court. Further as the DGFT sought to invoke the bank guarantee, the appellant had also initiated another writ petition to resist the same. 21. In view of those proceedings, the DGFT had issued show cause notices to the appellant for realising the differential duty towards the non fulfilment of export obligation. Challenging the show cause notices, the appellant had filed application before the first respondent Settlement Commission under Section 127B of the Customs Act, 1962 [hereinafter referred to as "the Act"]. In view of the issues being raised before the Settlement Commission, the proceedings initiated by the appellant before the Kerala High Court came to be closed, by only directing the Department not to take coercive proceedings and also the appellant to keep the bank guarantee alive. 22. Before the Settlement Commission, the appellant had filed documents to establish that they had achieved export obligations up to 30% within the extended period of licence i.e., till 22.12.1999. The appellant had also se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pursuant to the several communications sent by the appellant to the DGFT, by proceedings dated 26.04.2002 DGFT had called for the details of earnings from the NRE accounts towards NRI subscriptions for 10 years in the cable network in Kerala. DGFT had further stated that the details furnished by the appellant in respect of some earnings do not specifically indicate whether those are from NRE accounts and as such the appellant was requested to furnish a break up of foreign exchange earnings category-wise as certified by the Chartered Accountant. 26. To be noted, earlier the Commission by their admission order dated 05.03.2001 had directed the appellant to pay a sum of Rs. 2,69,45,640/- being the admitted amount towards differential duty which the appellant had duly complied with. Further when the appellant had taken out two Miscellaneous Petitions to implead the DGFT as a party, the Commission by its order dated 30.04.2002 had recorded that it was premature at that stage to implead the DGFT and had directed the appellant to approach the DGFT to obtain a certificate or clarification to certify the additional quantity of exports which are being claimed up to December 1999. The Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Form 10C submitted by the applicant to DGFT in their letter dt. 28.8.2001, the subsequent earnings are in Indian Rupees only, as seen from the break-up figures given by the Advocate in his letter dated 18th July, 2002 and not freely convertible currency. Though the advocate has requested to take the earnings subsequent to 22.12.1999 also when export obligation period expired as they had kept the bank guarantee alive, as required under PN No.3 (RE-01/1997-2002, dt. 31.03.2001), this 10.4 Question (iv): Interest: Except, Commissioner of Customs & Central Excise, Cochin, the other three respondents have vehemently urged that in terms of EXIM Policy, LUT/Bond and the Hand book of Procedures, the applicant has to bear the interest for the delayed payment of duty. In addition, at the time of final hearing on 5-7-2002, the representative of the Commissioner of Customs, Sea Port, Chennai submitted that by virtue of substitution of Para (iv) in Notification No.160/92-Cus. Dated 20-4-92 by clause 109 (1) read with 8th Schedule of the Finance Bill, 2001, the provisions therein have retrospective effect i.e., from 20-4-92 and since the applicant had failed to avail the extension for export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to consider it as export revenue, as one certificate simply refers that it has been received from NRE customers. However the Appendix 10C certified by the Chartered Account in respect of the export obligation achieved till 20.12.1999 has also been filed. 33. When admittedly the EPCG licence has been extended for the period upto 20.12.1999 and also the appellant had received remittances from the NRE customers for cable subscriptions and when the export achieved upto 1998 had alone been taken into account, necessarily the remittances received by the appellant towards export obligation which according to the appellant has been achieved 30% has to be considered, as their obligation towards the payment of duty will proportionately reduce. 34. Though normally we would be reluctant to remand the matter at this considerable length of time, still, since from the certificates issued by Banks filed as indicated above, at least in one of the certificates issued by the Bank it is clearly stated that the remittances had been made by the NRE customers in to the appellant account, it would only be appropriate in the interest of justice to remand the matter back to the first respondent Settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
