2005 (12) TMI 369 - AT - Customs

Issues Involved:
1. Confirmation of duty demand against the appellants.
2. Imposition of penalty under Section 112(a) of the Customs Act, 1962.
3. Allegation of diversion of imported goods.
4. Fulfillment of export obligation under the Advance Licence.
5. Typographical error in licence number.
6. Invocation of larger period of limitation under Section 28(i) of the Customs Act, 1962.

Detailed Analysis:

1. Confirmation of Duty Demand:
The Commissioner of Customs confirmed a duty demand of Rs. 7,47,192/- against the appellants for importing plastic granules duty-free under Advance Licence No. P/L/1525515, dated 20-7-93, and subsequently selling them in the domestic market instead of using them in manufacturing finished goods. The show cause notice alleged that this action contravened the conditions stipulated in the advance licences.

2. Imposition of Penalty:
A penalty of Rs. 1,50,000/- was imposed under Section 112(a) of the Customs Act, 1962, due to the appellants' failure to fulfill the stipulated export obligation, which was a condition for the end-use waiver granted by the Advance Licensing Committee.

3. Allegation of Diversion of Imported Goods:
The show cause notice alleged that the appellants diverted the imported plastic granules to the domestic market, violating the conditions of the advance licence. The Commissioner confirmed the duty demand based on the failure to fulfill the export obligation, which invalidated the end-use waiver.

4. Fulfillment of Export Obligation:
The Commissioner found that the export obligation of 1250 MTs was not fully met, with only 772 MTs exported, resulting in a shortfall of 38.24%. Consequently, the benefit of the end-use waiver could not be extended for this shortfall. However, the appellants argued that they had imported a lesser quantity than permitted and proportionately fulfilled the export obligation. The Tribunal found that the appellants had indeed fulfilled the export obligation, as they imported 209.927 MTs and exported 742.051 MTs.

5. Typographical Error in Licence Number:
The Commissioner noted a typographical error in the licence number mentioned in the ALC communication, which referred to Licence No. 525525, dated 20-7-93, instead of the correct number 1525515. The Tribunal acknowledged this discrepancy but did not consider it significant enough to affect the case's outcome.

6. Invocation of Larger Period of Limitation:
The Commissioner invoked the larger period of limitation under Section 28(i) of the Customs Act, 1962, citing a deliberate mis-statement about the use of imported goods. The Tribunal, however, found that the appellants had fulfilled their export obligation proportionately and set aside the duty demand and penalty.

Conclusion:
The Tribunal held that there was no warrant for the demand of duty and accordingly set aside the same along with the penalty. The appeal was allowed, and it was pronounced in Court.

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