Home Case Index All Cases Customs Customs + AT Customs - 2013 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (10) TMI 1151 - AT - CustomsConfiscation of goods - Violation of the conditions of Notification No. 97/2004-Cus - False declaration of registered office in Kolkata with the intention of obtaining an EPCG licence from Kolkata - Installation of the imported capital goods at the mines of M/s.KJS Ahluwaia on hire basis and not at their own mines or factory - Installation certificate not submitted in the case of one machine to Customs/DGFT as required under the conditions of the licence - Held that:- appellant has not used the machinery as a manufacturer-exporter but he has used the same in the mines of M/s. KJS Ahluwalia. The appellant is not a lessee of the said mines. What he has done is, he has rented out the machinery to M/s. KJS Ahluwalia for a consideration of ₹ 180/- per MT. In other words, the appellant has not utilised the machinery for his own purposes but merely rented out the machinery to somebody else. Secondly, the appellant could not be to the ‘actual user (non-industrial)' as defined under the EXIM Policy. Once the actual user condition is violated, condition No. 5 of Notification No. 97/2004 dated 19/07/2004 automatically comes into picture and the appellant would no longer be eligible for the benefit of the said Notification. Consequently, the goods imported is liable to confiscation under Section 111(o) of the Customs Act, 1962 inasmuch as the end-use condition stands violated and the appellant would be liable to penalty apart from losing the benefit of Notification NO. 97/2004. In view of deemed definition of manufacturer, the appellant is a ‘manufacturer-exporter' and an actual user (industrial). If that be so, the appellant has to utilize the goods for the manufacture of goods on his own account and not on account of somebody else whose name does not figure in the EPCG licence. It is also an admitted position that the name of the mine owner, M/s KJS Ahluwalia does not figure in the EPCG licence issued to the appellant. If that be so, violation of condition NO.5 of Notification NO. 97/2004-Cus stands clearly established and accordingly, the appellant would not be eligible for the benefit of the aforesaid exemption. A fine imposed should have nexus with the profit that could have been made on the sale of the goods. The fine imposed in the present case is approximately 16% of the value of the goods. Considering the fact that the goods have been imported more than 5 years back and the value would have depreciated substantially, a fine of ₹ 30 lakhs would suffice. As regards the penalty of ₹ 10 lakhs imposed on Shri Bidyadhar Palei, proprietor of Sushant Tradings under Section 112(a) of the Customs Act, Shri Bidyadhar Palei has admitted to violation of conditions of EPCG licence and the wrong availment of Notification No.197/2004. Therefore, he is liable to penalty under Section 112(a) and the fine imposed on the proprietor cannot be said to be harsh or unreasonable - Following decision of Surya Samudra Holiday Resorts (P) Ltd. vs. Commissioner of Customs (Export), Mumbai [2008 (11) TMI 407 - CESTAT, MUMBAI] - Decided against assessee.
|