TMI Blog2014 (7) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... ena, DR JUDGEMENT PER: D.N.PANDA; M/s.Nijhawan Travels Services Pvt.Ltd. imported one Mercedes SL500 on 1.6.2005 on the basis of EPCG licence No.0530137584 dated 10.12.2004 issued to it under certain terms and conditions attached to that. The licence so granted was to export service within eight years of grant of licence to discharge export obligation. The car imported above was subject to actual user condition. Appellant was required to submit statement of export within three months from the expiry of block year duly certified by Chartered Accountant and concerned bank to the licensing 2. The relevant conditions attached to the EPCG Licence required as under:- 1. Condition No.1 stipulated that the said licence had been issued under chapter 5 of Foreign Trade Policy 2004-09 and was subject to the conditions laid down in the said chapter. 2. Condition No.2 stipulated that export obligation shall be fulfilled by the user of the imported capital goods. 3. Condition No.6 stipulated that the import of capital goods under the subject licence should be subject to Actual User Condition . 4. Condition No.9 stipulated that the capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the investigation that the car was registered in the private car category. No log book was maintained to prove the use of the car. That was also found parked at the residence of Shri Sham Nijhawan. 7. On the aforesaid premise, investigation reached to the following conclusions that:- (i) M/s.Nijhawan Travel Services Pvt.Ltd. (NTSPL) had applied to DGFT for grant of licence under EPCG Scheme to import a Mercedes Benz SL 500 car. In its application dated 21.11.2004 it had declared themselves as service provider. It had further declared that the vehicles would be installed at F-53, Bhagat Singh Market, New Delhi. On the basis of the above said application, M/s. NTSPL was granted the license No. 0530137584/11/00 dated 10.12.2004 under EPCG scheme mentioned as above. The import was subject to Actual User condition and the conditions, interalia, stated that the export obligation shall be fulfilled by the use of the imported car and that shall be installed at f-53, Bhagat Singh Market, New Delhi. M/s. NTSPL had imported the said vehicle claiming duty exemptions under Notification No. 97/2004-Customs dated 17.09.2004 and the details of the Customs duty saved were also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii). No export obligation certificate/Export performance statement against EPCG licence was submitted by M/s.NTSPL to the office of the DGFT or to the Customs department. (viii). The imported vehicle was not registered as Tourist Vehicle by 31/8/08 as stipulated by DGFT s Circular No.7(RE-08) 2003-04 dated 7.5.08. 8. From the facts and circumstances brought out by the investigation as detailed above it appeared that though M/s NTSPL imported the vehicles under the EPCG Scheme, it never had complied with the conditions of the license except using the car exclusively for personal and private purpose of its Managing Director, Sh. Sham Nijhawan. 9. It appeared to investigation that in view of Para 14, 14(i) to 14(6) of the SCN dated 2.2.09 M/s NTSPL have contravened the law relating to import in the following manner: (a) The provision of section 11 of the FTDR Act, 1992 and Rule 14 (1) of the FTRR, 1993 were violated deliberately making false and incorrect declarations before the DGFT authorities and EPCG licences obtained fraudulently to import the vehicle under the EPCG scheme in contravention of prohibitions imposed under Rule 14(2) of the FTRR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed to be imposed on Shri Sham Nijhawan, Managing Director, M/s. NTSPL, under Section 112(b) of the Customs Act, 1962 for the omission and commission in relation the import of the above vehicles in violation of the conditions of EPCG Scheme. 11. Ld. Counsel for the appellant in the course of hearing did not dispute that import of the car and registration thereof was meant for earning foreign exchange from exporting service. That was verified and found to be private car. He submitted that the transport authority did not register the car as taxi. Considering such difficulty government issued a circular No.2/(RE-2012)/2009-14 dated 19.07.2012 and in terms of the said circular, the vehicle was not required to be registered as Tourist Vehicles till 19.7.2012. Appellant has fulfilled the export obligation for which adjudication is unsustainable. Export obligation was to be discharged within eight years of import. When the import was made on 1.6.2005 and investigation was made on 24.9.2008 that is premature stage to make allegation when last year for discharge of export obligation was by 2013. Vehicle was used in transporting VIPs and the managing director Shri Sham Nijhawan was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port obligation discharged making use of the vehicle. (c) Condition No.6 of the EPCG licence was violated allowing possession and control of vehicle and permitting personal use thereof by Shri Sham Niihawan. (d) Condition No. 9 of the EPCG licence was violated without installing the vehicle at the declared place. (e) Conditions of para 5.15 of the Hand Book of Procedures Vol. 1 (Foreign Trade Policy 2004-09) was violated for non-maintenance of records relating to the use of the imported car. (f) Provisions of Notification No. 97/2004 dated 17.09.2004 was violated without furnishing the installation certificate, and not using the imported vehicles for earning freely convertible foreign currency from services rendered to tourists. 14. Heard both sides and perused the record. 15. When the car was not used for the purpose it was meant, there was no foreign exchange earning made by the appellant for which it failed to discharge export obligation. Investigation brought out entire truth of the import and gross violation of the import condition in para 12 of the show cause notice. No use of the car for commercial purpose came to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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