TMI Blog2012 (12) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... t to their PSF plant. This very conduct of the appellant itself makes it clear that they have violated the terms and condition of the Project Import Regulations - they are not eligible for the benefit of the said Regulations and the concessional rate of duty prescribed under CTH No. 84.66/98.01 of the Customs Tariff Waiver of pre-deposit – Held that:- Appellants had a cash and Bank balance of Rs. 13.6 crores as on 31-3-2011 and, therefore, the plea of the financial hardships made by the appellants is not borne out of the record of the case - appellant directed to make a pre-deposit of 50% of the customs duty confirmed against them - C/501/2010 - S/171/2012-WZB/C-I(CSTB) - Dated:- 4-1-2012 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri T. Vishwanathan, Advocate, for the Appellant. Shri K.M. Mondal, Consultant, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. The appeal and stay application are directed against. Order-in-Original CAO No. 35/2010/CAC/ CC(I)/SHH/SIIB(I) dated 31-3-2010 passed by the Commissioner of Customs (Import), New Customs House, Mumbai. The stay application is being taken up for consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in gross violation of the Import Trade Control Regulations and Project Import Regulations by mis-representing the facts and giving the impression that the same were required for the PFY Expansion project. This fact was evidenced from M/s. JKSL s letter IMP:ALM:H-39 dated 11-4-1988 addressed to the Directorate General of Technical Development, New Delhi, wherein post facto approval was sought for transfer of the aforesaid equipment from the PFY plant to their PSF plant without paying the differential duty. M/s. JKSL failed to produce relevant documents for finalization of the provisional assessment made under Project Import Regulations (Regulation 7 of Project Import Regulations, 1986). The company went sick in 1997 and their plants at Kota were put under the control and custody of a Receiver, appointed by the Hon ble High Court, Bombay. M/s. JKSL got back possession of their man-made fibre plants at Kota in June, 2000 and also in the meantime started working on a package of rehabilitation approved by BIFR/AAIFR, vide order dated 23-1-2003. Even after taking possession of the plant, they did not come forward for finalization of provisional assessment made under Project Import Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1986 whereas the department initiated proceedings against the appellant only in the year 2006 vide show-cause notice dated 31-5-2006. Thus, the show-cause notice was issued after a gap of 20 years after the imports were completed by the appellant and, therefore, the proceedings are vitiated by sheer latches on the part of the department. Even if it is assumed that the assessment are provisional in terms of Section 18 of the Customs Act, 1962, there is no period specified under Section 18 of the Customs Act within which the provisional assessment has to be finalized. No other provisions of the Customs Act or under the Project Import Regulations specified any time limit for finalizing of assessment. The absence of explicit provisions does not mean that the department has arbitrary, unlimited and unbridled powers to raise the duty demand even after expiry of more than 20 years period and the department should have acted within a reasonable period of time. The C.B.E. C. has prescribed a time limit of six months as reasonable within which assessment have to be finalized as can be seen from the Customs Manual of Instructions issued by the C.B.E. C. Further, as per the instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) The learned Counsel has further argued that filing of reconciliation statement is not mandatory for the imports made prior to January, 1992 and for the imports effected under the 1965 Regulations. Regulation 7 of the Project Imports Regulations, 1986 was inserted vide Notification No. 17/92-Cus., dated 7-1-1992. As per Regulation 7, reconciliation statement is required to be given to the Customs for finalizing of provisional assessment. Regulation 7 came into force from 7-1-1992 onwards and, therefore, it cannot be applied retrospectively. In their case, the registration was done under the Project Imports Regulations, 1965 and not under Regulations, 1986, therefore, they were not required to submit any reconciliation statement to the department for finalizing the assessment. Further, at this point of time, they are not in a position to submit the documents. It is for the department to prove that reconciliation statement has not been submitted by the appellants. (d) As regards the demand of duty on 2 Nos. of High Speed Take-up machines, they deny the allegation and they have been incapacitated by the delayed issuance of the show-cause notice and all the records have been lost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reconciliation statement, the learned Special Counsel submits that in terms of Public Notice No. 8 dated 20-1-1986 issued by the Commissioner of Customs, Mumbai relating to registration of contracts for assessment under 84.86 (I II) of Indian Customs Tariff, there is a clear direction that the reconciliation statement has to be filed, which reads as under :- They are also advised the immediately after and not later than 3 months from the clearance of last shipment, they must file a reconciliation statement together with all documents such as attested invoices, duty bills and final payment certificate of the suppliers of the machinery failing which, the contract benefit may not be contended, as this Custom House will consider assessment of their imports on merits. Further, Public Notice dated 29-11-1989, in para 6 thereof, also says that the importer is required to file reconciliation statement not later than three months from the clearance of the last shipment together with all documents i.e. attested invoices, duty paid bills and final payment certificate of the suppliers of the machinery failing which, the Customs House would be applying the best judgment method to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Visakhapatanam v. Sunshine Pulp Papers Pvt. Ltd. - 2004 (178) E.L.T. 551 (T) (iii) VIP Industries Ltd. v. Commissioner of Customs, Mumbai - 2004 (177) E.L.T. 271 (T). 4.5 In the light of the above, learned Counsel for the Revenue prays for putting the appellants to terms while considering the stay application. 5. We have carefully considered the rival submissions. 5.1 As regards the contention of the appellants that the demand of customs duty is vitiated inasmuch as the show-cause notice has been issued 20 years after importation, we do not find merit in this argument. In the instant case, the goods have been imported under the Project Import Regulations and the goods were assessed provisionally as is the normal practice. This is also borne out from the endorsements made in the Bills of Entry No. 009239 dated 24-4-86 and 009918 dated 25-3-86 filed at the time of import and also from the Bills of Entry for ex-bond clearance for home consumption dated 24-4-86 and 25-3-86. Thus, it is obvious that the assessments were made provisionally. 5.2 Once the assessment is provisional, the question of applying any time limit does not arise for demand of duty. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in this argument. 5.4 As regards the argument that the Commissioner of Customs (Import), Mumbai has no jurisdiction to decide the matter is also on the wrong footings. The reliance placed on the judgment of the Hon ble High Court of Bombay in the case of Vimal Nath, Instrumentation Ltd. and Ferro Alloys Pvt. Ltd. (cited supra) does not help the case of the appellants. In the Vimal Nath case, the goods were not imported at Bombay at all and the goods were imported at Delhi Airport and, therefore, it was held that the Commissioner of Customs, Mumbai does not have jurisdiction to decide the matter. In the case of Instrumentation Ltd. (supra), the case pertained to a refund claim in respect of duty paid at Kota, which was rejected by the Assistant Commissioner of Customs, Kota. In that context, it was held that it was the Commissioner of Customs (Appeals), New Delhi who has jurisdiction to hear the case and not the customs authorities in Mumbai. In the Ferro Alloys case, the demand pertained to a 100% EOU, which is private bonded warehouse in terms of the Section 58 of the Customs Act. In that context it was held that authority having jurisdiction of the private bonded warehouse h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved project cite, it will not be use in substantial expansion and it would amount to initial setting up of a plant. Therefore, shifting the equipment from the approved site to a different place, in this case to the PSF plant, is a clear violation of the terms and condition of the project import. The Hon ble Apex Court in the case of Jacksons Thevara (supra) held that since the appellant did not install the said machinery for the expansion of its existing unit, but transferred it to the company after it had been cleared from the customs, the appellant cannot claim the benefit of concessional rate of duty under Heading No. 84.66 of the Customs Tariff and is liable to pay such duty at the normal rates prescribed in the Customs Tariff. The ratio of the said/judgment applies squarely to the facts of this case and, therefore, the appellant s contention in this regard has to be rejected and the contention of the Revenue has to be upheld. A similar view has been taken by this Tribunal in the case of Sunshine Pulp Papers Pvt. Ltd. and VIP Industries Ltd. (supra). In the light of these decisions, which apply squarely to the facts of the present case, we are prima facie of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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