TMI Blog2014 (8) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were put to use for business activity for which the same were imported. Prima facie there is violation of exemption notification insofar as the applicant failed to produce any evidence that the payments were received in freely convertible foreign currency for services rendered to use of the cars. Hence the applicant failed to make out a prima facie case for waiver of pre-deposit of the entire amount of duty along with interest and penalty. - entire amount of duty directed to be pre-deposited - interest and penalty stayed - stay granted partly. - C/41082, 41083/2013 - MISC. ORDER Nos. 40753-40756 / 2014 - Dated:- 26-5-2014 - Pradip Kumar Das And R Periasami, JJ. For the Appellant : Mr S K Pahwa, Adv. For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r waiver of pre-deposit of penalty of ₹ 5,00,000/-. 6. The relevant facts in brief, are, that the applicant no.1 is a Hotel and imported three BMW Cars under EPCG Scheme (Export Promotion Capital Goods) as under:- Bill of Entry No. Date Registration No. 589563 30.10.2007 DL-1ZZ 0198 580991 18.10.2007 DL-1ZZ 0185 312574 16.09.2009 DL-1ZZ 04232 The assessee imported BMW 730 LD Limousine cars. The goods were imported under EPCG Scheme vide Notification No.97/2004-Cus. dated 17.09.2004 as amended from tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Commissioner of Customs, New Delhi Vs Som Dutt Builders Ltd. reported in 2009 (236) E.L.T.478 (Tri.-Del.). He also relied upon the decision of the Tribunal in the case of Air Travel Bureau Ltd. Vs Commissioner of Customs, New Delhi reported in 2009 (237) E.L.T.283 (Tri.-Del.), which was upheld by the Hon'ble Delhi High Court and also by the Hon'ble Supreme Court. 8. On the other hand, the learned Authorised Representative on behalf of the Revenue submits that they have failed to fulfil the pre-condition of the exemption notification insofar as the payment would be made in free convertible foreign currency for services rendered through use of the BMW cars. He further submits that in the present case, it is noticed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for pick-up and drop the VIP guests. It is also contended that it could not be used exclusively for the tourist purpose as there was fire in the hotel. We do not find any force in the submission of the learned Counsel the fire occurred in Jan.'07 and the cars were imported in Oct.'07. It is seen from the impugned order that the Customs Officers during their visit found that the applicant had not maintained any log book or any other documentary for accounting the use of the vehicles for tourist purposes. It is also noticed that the applicant failed to produce any evidence on payment received in freely convertible foreign exchange. We find from the DGFT Authority letter dated 07.02.2014 the EPCG Committee had taken the decision as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, there is no material to show that they have earned foreign exchange under the Scheme. We have also noticed that the DGFT authority permitted disposal of the vehicles as they would deteriorate. 12. In view of the above discussions, we direct the applicant to pre-deposit the entire amount of duty. At this stage, the learned Counsel fairly submits that the Bank Guarantee may be encashed for collecting the demand of duty. As such, we direct the department to encash the Bank Guarantee to the extent of demand of duty of ₹ 96,11,113/- as pre-deposit and the balance would be kept as a separate Bank Guarantee, within eight weeks from today. Upon deposit of the same, the pre-deposit of interest and penalty of both the applicants wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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