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2023 (6) TMI 714 - HC - CustomsViolation of EPCG Scheme - machines given on hire - installation certificate is issued without verification and appellant has diverted some machines imported to other mines - HELD THAT:- In the case of ADITYA BIRLA NUVO LTD. [2021 (2) TMI 93 - KARNATAKA HIGH COURT] it was held that, Once the issue is examined by the Joint Director of Foreign Trade, it not open to the Customs Authorities to take a different stand. With regard to the first authority in COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS INDIAN RAYON & INDUSTRIES LTD. [2008 (7) TMI 401 - SUPREME COURT] Case, it was argued by Shri. Shivadass that the Supreme Court was examining as to whether the assessee therein could shift his stand after failing to reexport the goods. We may record that the assessee therein had initially claimed the benefit of notification No. 158/95-Cus. The goods were rejected by the foreign buyer. The assessee could not re-export the goods. At that point of time assessee sought to claim benefit under Notification No. 94/96-Cus. In those circumstances the Apex Court has held that assessee cannot approbate and reprobate. Hence on facts, the said authority does not support Revenue’s case. With regard to the second authority in COMMISSIONER OF CUSTOMS, HYDERABAD VERSUS M/S. PENNAR INDUSTRIES LTD. & ANOTHER [2015 (8) TMI 56 - SUPREME COURT], Shri. Shivadass urged that appellant does not deny the power of the customs authority to initiate action. However, once at the instance of the customs authority, the Licensing authority initiates action, examines the factual position and holds the issue in favour of appellant; such finding is binding on the Customs authorities. Further, in the case of Pennar Industries, the goods were raw material and not capital goods. Hence, the ratio of the said authority is applicable to the facts of this case. We have followed the decision of this Court in COMMISSIONER OF CUSTOMS VERSUS M/S. ADITYA BIRLA NUVO LTD., (FORMARLY KNOWN AS M/S. MADURA COATS LTD. / M/S. INDIAN RAYON INDUSTRIES LTD.,) [2021 (2) TMI 93 - KARNATAKA HIGH COURT] and held that the decision of ADGFT is final. Therefore, the authority relied upon by the Revenue does not support its contention. With regard to the third authority in SHESHANK SEA FOODS PVT. LTD. VERSUS UNION OF INDIA [1996 (11) TMI 67 - SUPREME COURT], it is held that the provisions of import-export policy do not take away the power of Customs Authority. In that case, the assessee had approached this Court seeking a Writ of Prohibition restraining the Customs Authorities from proceeding with search and seizure operations. The writ petition was dismissed by the Hon’ble Single Judge and the writ appeal by the Division Bench. In such circumstances, the Apex Court has held as aforesaid. In contradistinction, in the case on hand the ADGFT has adjudicated the matter and allowed the appeal. Therefore, the said authority does not support Revenue’s case in any manner. Assessee’s appeal merits consideration - Appeal allowed.
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