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TMI Blog2004 (6) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... he EXIM Policy 1992-1997 and explanation (v) of the Notification No. 110/95 Cus., dated 5-6-1995. Admittedly there does not appear to be any legal and valid evidence on record to show that the goods exported have been manufactured out of the capital goods imported against the EPCG licence in question. The importers therefore, do not appear to be entitled to avail of the exemption of duty under the said Notification. They appear to be liable to pay full custom duty (including CVD) and also interest on Customs duty. The importers, therefore, appear to be liable to pay custom duty in terms of the Notification No. 110/95 Cus., dated 5-6-1995 and in terms of undertaking executed by the importers at the time of clearance of the goods. Besides the importers have not fulfilled the export obligation in accordance with the conditions of the licence and EXIM policy 1992-1997. The goods are therefore liable for confiscation under Section 111(d) 111(o) of the Customs Act, 1962 read with Section 3(2) 3(3) of the Foreign Trade (Development Regulation) Act, 1992. The importers also appear to be liable to penalty under Section 112(a) and/or 112(b) of the Customs Act, 1962. And the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30-5-95 to 29-5-96 15,27,378.35 Nil + 9,37,887 5,89,491.35 2 30-5-96 to 29-5-97 13,48,058.79 10% +9,37,887 4,10,171.79 3 30-5-97 to 29-5-98 07,51,044.88 20% +9,37,887 Nil 4 30-5-98 to 29-5-99 05,77,134.46 30% +9,37,887 Nil 5 30-5-99 to 29-5-00 02,85,105.30 40% +9,37,887 Nil 44,89,058.98 47,04,192 + 46,89,435 9,99,663.14 Since EO has not been discharged for three consecutive years 30-5-1997 to 29-5-2000 and the importer MS has not been able to furnish export obligation discharge certificates, this breach will engage Condition No. 5 of the notification rendering MS liable to pay the entire amount of duty foregone together with interest @ 15% form the of clearance of the goods in terms of the notification and the Bond/LUT executed before the Customs." And demanded a sum of Rs. 96,03,687/- plus interest and ordered the same to be recovered as per Section 142 of the Customs Act, 1962. (b) As regards liability to confiscation of the goods detained on 19-7-2000, failure to fulfil the export obligation and result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme. Therefore explanation (v) of Notification No. 110/95-Cus., is not fulfilled. (ii) Export obligation of US $ 47,04,192 not fulfilled inasmuch as assessee did not maintain/achieve annual export required under condition (3) of Annexure A to the licence under Para 41(v) of the policy. (b) There is a conflict between the findings arrived in Paragraph 12(i) 12(ii) of the impugned order. While under Paragraph 12(i) a clear-cut finding is arrived of no evidence being available to conclude that goods said to have been exported under scheme of EPCG obligation were actually manufactured by the use of the machines imported under the scheme, under Paragraph 12(ii) the adjudicator concludes "..... taking into consideration that it is not possible to segregate and correlate the goods exported with that produced by the imported machineries..." that would indicate that there is force in the ld. Advocates submissions that the charges in the Show Cause Notice, as confirmed per finding in para 12(i) are deemed to be given a go bye by the adjudicator. (c) from the order-in-original of the predecessor Commissioner who adjudicated an other case of similar nature of an EPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharged the export obligation cost on them. This submission is not accepted when considered with condition No. 3 in the subject EPCG import licence. This Condition No. 3 stipulate the 'Export obligation' under Paragraph 2 F US $ 47,04,192 would be in addition to the "Annual Average Export Performance" fixed at US $ 937887. The total obligation thus would be US $ 47,04,192 and 5 times 937887 i.e. US $ 9393627. (f) Taking the above exports levels to be met as per condition No. 3 of Notification 110/95, in the five years and actual exports made would thus be as follows - YEAR LEVEL TO BE MET (in US$) ACTUAL MADE (in US$) 1st 5/95 to 5/96 NIL 15,27,378.35 2nd 5/96 to 5/97 10% 939362.7 13,48,058.79 3rd 5/97 to 5/98 20% 1878725.4 07,51,044.88 4th 5/98 to 5/99 30% 2818088.1 05,77,134.46 5th 5/99 to 5/2000 40% 37577450.8 02,85,105.30 If the excess in the first 2 years hereinabove are shifted to later years, as provided by clause to condition in Paragraph No. 3 of the notification, it is apparent that the performance for the first three ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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