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2015 (5) TMI 943 - AT - Customs100% EOU - Exemption under 136/94-CE - Double jeopardy - Non fulfillment of export obligation - Import of goods before 2003 - Confiscation of goods - Imposition of penalty - whether the duty foregone at the time of procurement of impugned goods is recoverable or not - Held that:- there cannot be any doubt/dispute that for the goods procured prior to 31.3.2003, the conditions of Notification No. 52/2003-Cus dated 31.3.2003 and 22/2003-CE dated 31.3.203 would be of no avail. Whether the duty foregone at the time of procurement of impugned goods is recoverable or not - Held that:- Impugned goods imported duty free were clearly rendered liable to confiscation as they were cleared duty free under Notification No. 126/94-Cus. but the condition of exemption was not fulfilled by them. - No disability in the Rule 173Q which makes it inapplicable to 100% EOU. - Rule contains Sub-Rule (1) and Sub-Rule (2) and Sub-Rule (2) only states that An order Sub-Rule (1) shall be issued by Central Excise officer following the principles of natural justice . Thus non intention of Sub Rule of Rule 25 ibid has in no way prejudiced the appellants. Appellants contention of double jeopardy on the ground that they have already been penalised under the FTDR Act, 1992 is totally invalid as the ingredients of offences under the FTDR Act and the Customs Act, 1962/Central Excise Act, 1944 are different. It needs to be appreciated that this case does not involve clandestine removal of goods or any wilful mis-statement or suppression of facts and even the appellate body of the DGFT in the given circumstances had taken a lenient view with regard to imposition of penalty for the violation of the provisions of the Foreign Trade Development and Regulation Act. In these circumstances the penalties imposed deserve to be substantially attenuated. - Decided partly in favour of assessee.
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