TMI Blog2010 (3) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... orting the goods, the proviso to sub-section (1) of Section 28 could not have been invoked - Decided in favour of the assessee - 271 of 2009 - - - Dated:- 31-3-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY : Ms. Amee Yajnik, SSC, for the Appellant. None, for the Respondent. [Judgment per : H.N. Devani, J. (Oral)]. By this appeal under Section 130 of the Customs Act, 1962 (the Act), appellant-Revenue has challenged order dated 19th September, 2008 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) [2009 (235) E.L.T. 551 (Tribunal)] proposing the following two questions stated to be substantial questions of law :- 1. Whether in view of the above mentioned wrongful intention, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PCG scheme and cleared the same by paying concessional customs duty availing of the benefit of Notification No. 53/2003. The imported fuel was used for generating electricity. Based upon intelligence that the respondent company had wrongly availed the exemption for fuel as consumables, the officers of the DGCEI commenced investigation on 9-2-2005. During the course of investigation the respondent company deposited a sum of Rs. 2.11 crores (approximately) in March, 2005 with the Kandla Customs House under protest. 2.2 While the investigation by the DGCEI was in progress, 7 show cause notices, each show cause notice covering one bill of entry, came to be issued in May 2005 by the Appraiser Customs, answerable to the Assistant Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, the Tribunal has recorded that the respondent herein had applied for issuance of Export Promotion Capital Goods (EPCG) licences before the Joint Director General of Foreign Trade, Ahmedabad with all the requisite documents in February, 2004. Licences were issued in favour of the respondent in March, 2004 under the EPCG Scheme with benefit of Notification dated 1st April, 2003 bearing No. 55/2003-Cus. Under the procedure prescribed for obtaining licences from DGFT, the applicant was required to furnish a certificate from an independent Chartered Engineer. In compliance with the said condition, the respondent had filed a certificate dated 14th February, 2004 issued by Shri Deepak C. Shah, independent Chartered Engineer along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with open eyes and due application of mind. That this was not a case where the DGFT authorities were misled into issuing licences on the basis of some wrong information given by the respondent. 4.1 The Tribunal has further placed reliance upon a letter dated 18th April, 2005 of the Deputy Director General of foreign Trade addressed to DGCEI wherein he has given a detailed explanation that in view of Public Notice No. 42 dated 28th January, 2004 which extended the scope of imports to consumables also, the live EPCG licences for import of furnace Oil were in order. The said letter clarified that the Chartered Engineer had disclosed Furnace Oil as the product to be imported which was a consumable to be used in the captive power plant. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e licences with open eyes and after due application of mind. That this is not a case where the DGFT authorities have been misled into issuing licence on the basis of some wrong information given by the respondent. Thus, the Tribunal has upon appreciation of the evidence on record, come to the conclusion that there is no material on record to suggest wilful mis-statement of facts or suppression of facts as envisaged under the proviso to Section 28(1) of the Act so as to attract the said provision. The Tribunal was, accordingly, justified in holding that as no suppression or mis-statement could be attributed to the respondent, the extended period of limitation could not have been invoked under Section 28 of the Act. 6. Examining the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineer which led to the issuance of EPCG licences for import of Furnace Oil as consumables in its favour. In this regard, it may be pertinent to refer to the definition of importer as defined under sub-section (26) of Section 2 of the Act, which provides that importer in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. On a plain reading of the said provision, it is apparent that the expression importer would operate only in relation to the point at which the goods are imported and till the time they are cleared for home consumption. Whereas in the facts of the present case, it is an admitted po ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
