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2019 (10) TMI 1155 - AT - CustomsEPCG scheme - import of machinery - undeclared ‘spares’ - Benefit of N/N. 64/2008-Cus dated 9th May 2008 denied - non-declaration of goods on which duty had been paid along with the capital goods cleared earlier - appellant claims non-declaration due to ignorance of the shipment in the impugned consignment - HELD THAT:- The unutilised component of the ‘transfer release advice’ of ₹ 9,88,063 has not been made available to the appellant in consequence of the findings in the impugned order that ‘additional fee to cover excess imports effected’ against the discretionary enhancement, as laid down in paragraph 5.10 of Handbook of Procedures, has not been complied with. If that be so, the denial of the adjustment of ‘duty saved’ against the impugned goods-declared and undeclared-would be tenable. However, the appellant has placed on record that the maximum fee mandated in the Policy has already been deposited; accordingly, the provisions in paragraph 5.10 of Handbook of Procedures is rendered inoperable. The appellant is entitled to adjustment of ‘duty saved’ to the extent of the amount in the ‘transfer release advice’ and the recovery of duty, if any, is to be restricted to any excess due thereafter. Thus, only the undeclared goods valued at ₹ 32,58,755 are liable to confiscation under section 111 of Customs Act, 1962 - redemption fine as well as penalty reduced - appeal allowed in part.
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