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2015 (10) TMI 2083

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..... ty – Held that:- objective of DEPB is to neutralise incidence of customs duty on import content of export product – Purpose to grant duty credit against export product is to allow neutralise incidence of Customs duty on import content of export product – Therefore, restriction to use DEPB credit is not beyond Policy and notification – Hence, demand of duty alongwith interest on importer is sustainable – Appellant purchased DEPB from open market and restriction of use was categorically mentioned therein – Lapse on part of Customs authorities to mention same on TRAs, would not waive penal consequences on importer – Hence, imposition of penalty on importer is warranted – Appeal filed by importer dismissed – Decided against Importer. There i .....

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..... y filing 12 DEPB license/ TRAs. The officers of Directorate of Revenue Intelligence (DRI), during investigation on 20.11.2004, found that the importer had utilised the excess credit of ₹ 44,67,714/-, in violation of the condition of DEPB License read with policy Circular No. 26 (RE-99) dated 09.8.1999 in respect of imported goods weighing 283.037 MTs lying in the Port, which was detained by the DRI officers. Subsequently the seized goods were released subject to 20% of the goods were detained for TRA verification. 3. A show cause notice dated 19.7.2005 was issued proposing demand of duty alongwith interest and to impose penalty on the importer and to impose penalty on the co-noticees. By the impugned order, the adjudicating autho .....

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..... stained on the basis of Hand Book of Procedure and it cannot go beyond the Policy and Notification. TRAs are at par with DEPB license and relied upon the decision in the case of Tata Iron and Steel Company Limited vs. Commissioner of Customs, (Air Port), Kolkata 2003 (154) ELT 477 (Tri. Kolkata). Regarding Hand-book procedure cannot go beyond the Policy and exemption notification, he relied upon the following decisions:- (a) Hemani Industries vs. Commissioner of Customs, Calcutta 1996 (83) ELT 617 (Tribunal). (b) TIL Limited vs. Commissioner of Customs, Calcutta 2001 (132) ELT 445 (Tri. Kolkata). 6. The imposition of penalty on the Importer, the learned Advocate drew the attention of the Bench to the relevant portion of the finding .....

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..... (Tri. Del.) and Prime Forwarders vs. Commissioner of Customs, Kandla 2008 (222) ELT 137 (Tri. Ahmd.). 8. The Learned Authorised Representative on behalf of the Revenue submits that there is no conflict between the Hand Book, Policy and exemption notification. He drew attention of the Bench to Para 4.3 of the Policy. It is submitted that the Hand Book has expressly stipulated the restriction, which is within the Policy and Notification. He submits that the importer was well aware of the restrictions of DEPB credit and the conditions in exemption notification. Hence the demand of duty is justified. It is also submitted that TRA contained the FOB Value and therefore submission of the learned Advocate that they were not aware, cannot be sust .....

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..... been issued. The licensing authorities shall incorporate an endorsement to this effect on the DEPB and shall also mention the FOB value in (Indian rupees) on the DEPB. If we read Para 4.3 of the Policy and the Hand Book harmoniously, it is clear that the purpose to grant duty credit against export product is to allow neutralise the incidence of Customs duty on the import content of the export product. To sum-up, the CIF Value of import would not exceed the FOB value against the export. So, we agree with the submissions of the learned Authorised Representative for the Revenue that the restriction to use of DEPB credit is not beyond the Policy and notification. Hence, there is no need to discuss the case laws relied upon by the learned A .....

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..... in the present case. 11. Regarding imposition of penalty on CHA, we find force in the submission of the learned Advocate. There is no evidence available on record that Custom House Agents was aware of the alleged irregularity. The adjudicating authority observed that the appellant has breached the conditions of CHA Regulation, 2004. In our considered view, the same would be adjudicated under provisions of Regulation 2004. Hence, the imposition of penalty on the CHA is not warranted. The imposition of penalty on Shri Deven Mehta, learned Authorised Representative for the Revenue submits that he had sold license to the importer. Learned Authorised Representative submits that he had convinced the appellant to do such irregularity. We are no .....

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