TMI Blog2010 (5) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... ods under Notification No. 29/97-Cus dated 1.4.1997. Under the EPCG Scheme, one option for the importer was to pay CVD @ 10% and claim full exemption from payment of BCD, which is referred to as 0% duty EPCG Scheme. The other option was to pay BCD @ 10% and claim full exemption from payment of CVD, which is referred to as 10% dutyEPCG Scheme. The appellant opted for the first Scheme. A comparison of the two Schemes is given below: 0% duty 10% duty Rate of duty - BCD Nil 10% Rate of Duty - CVD 10% Nil Export obligation 6 times value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the goods imported but for the exemption contained in the notification, together with interest @ 24% p.a. from the date of clearance of the goods. Though the appellant discharged their export obligation within the aforesaid period of eight years, they failed to achieve the minimum value of imports (Rs 20 crores) under the aforesaid licence within the stipulated period of two years from the date of issue of the licence, or within the extended period (one year) allowed by the licensing authority. In the absence of further extension of the validity period of the licence by the DGFT, the Customs authorities took the view that the appellant committed breach of the above condition (No. 5) of Notification No. 29/97-Cus thereby disentitling itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consequential benefit of exemption Notification 28/97-Cus. They had also submitted before this Tribunal that the licensing authority had, vide Order dated 8.9.03, allowed conversion of EPCG Licence from 0 % duty EPCG Scheme to 10% duty Scheme. This Bench took note of these submissions of the assessee and, by the aforesaid remand orders, directed the Commissioners to take fresh decision in de novo adjudication by considering the said order dated 8.9.2003 of the DGFT. 5. The orders impugned in the present appeals were passed by the learned Commissioners of Customs, in pursuance of the said remand orders of the Tribunal. The learned Commissioners took the same stand, as in the earlier round of litigation, and consequently a demand of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arger Bench, vide Order No M/47/WZB/MUM/2008/CSTB/LB dated 18.1.2008, answered the two issues as under: (i) The licensing authorities do not have powers to amend any licence retrospectively; (ii) The Customs authorities cannot challenge the powers of the licensing authority for amendment of the licence. 8. Neither the assessee nor the Revenue has challenged the decision of the Larger Bench. 9. These appeals have arisen before us for a decision in the light of the view taken by the Larger Bench. 10. The learned Counsel for the appellant submits that the impugned orders are liable to be set aside inasmuch it has been held by the Larger Bench that the Customs authorities are not competent to challenge decision of the DGFT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit is, therefore, admissible to the appellant who was engaged in the manufacture of textile fabrics by making use of the capital goods. 12. We have heard the SDR also vis-`-vis the alternative plea made by the learned Counsel. It appears to us that, by the policy change referred to by the learned Counsel, the Central Government relaxed 0 % duty EPCG Scheme in respect of certain industrial sectors including the textile industry and, accordingly, the importer of capital goods under the said scheme could claim the benefit by fulfilling the requirements of Notification No. 29/97-Cus as amended by Notification No. 129/99-Cus. The learned Counsel has also argued that this amendment has retrospective effect. He has also argued, bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e licence from 0 % Duty EPCG Scheme to 10% duty EPCG Scheme , has retrospective effect. The decision of the Larger Bench is not only binding on both sides but also binding on us and we have got to follow the same. Accordingly, it is held that the decision of the DGFT converting the licence from - 0 % duty EPCG Scheme to 10% Duty EPCG Scheme has no retrospective effect and hence the scheme applicable to the assessee in respect of the capital goods imported by them in the year 1998 remains to be 0 % duty EPCG Scheme. In this Scheme, they imported capital goods worth ₹ 12.67 crores only within a period of two years prescribed under Condition 5 of Notification. No. 29/97-Cus. For the benefit of that notification, they had to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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