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2019 (8) TMI 1004 - CESTAT MUMBAIEPCG Scheme - denial of benefit on the ground that coverage under two benefits was claimed. - Exemption under notification no. 21/2002-Cus dated 1st March 2002 along with notification no. 6/2002-C.Ex dated 1st March 2002 - it is alleged that the duty of ₹ 4,42,56,732/- foregone on these cranes had not been debited in the licence issued under the ‘export promotion capital goods scheme’ of the Foreign Trade Policy HELD THAT:- As the two exemptions which were cited in the bill of entry are mutually exclusive, only the eligible concession/exemption could have been made extended to the import by the assessing officer. From the records, we find that such an elimination has not been carried out despite which the adjudicating authority has proceeded on the assumption of lack of eligibility for exemption under notification no. 21/2002-Cus dated 1st March 2002 along with notification no. 6/2002-C.Ex dated 1st March 2002. It also appears that the absence of debit of the entire duty saved in the licence issued under the ‘export promotion capital goods’ scheme was held to suffice for recovery of differential duty - The impugned order reasons that the amended licence was not produced before the assessing officer with deliberate intent to evade liability. That conclusion, however, did not prevent the adjudicating authority from taking notice that the importer did not utilize the unutilized amount of duty saved limits for effecting any other import or was deficient in fulfilling export obligation to the extent of duty actually saved by resort to the scheme. We find ourselves unable to concur with the adjudicating authority that the benefit of exemption under notification no. 97/2004-Cus dated 17th September 2004 should be rejected peremptively merely because coverage under two benefits was claimed. It was for the adjudicating authority to determine, in the absence of such exercise by the assessing officer at the time of clearance, the eligibility for import under the scheme for which licence of competent authority was furnished. Any consequence, in terms of duty, confiscation or penalty, should have emanated from conformity, or lack thereof, with the said scheme - matter remanded back to the original authority to complete the process of adjudication on the lines indicated.
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