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TMI Blog2016 (11) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and 28th November 2000 for import of a "used plant for manufacture of bi-focal, progressive and aspheric lens." The importer claimed the benefit of notification no. 53/97-Cus dated 3rd June 1997 entitling them to exemption from duties of customs, subject to conditions, on import of capital goods, raw materials etc. for use in 100% Export Oriented Units. 2. The investigations into the imports of M/s GKB Vision Ltd culminated in issue of show cause notice dated 4th March 2003 for enhancement of assessable value to Rs. 1,35,98,129, confiscation and redemption thereof on payment of fine and imposition of penalty under section 114A on the importer and under section 112(a) on the Director of the importing company. 3. In the impugned order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has failed to specify the statutory provision that has been invoked. The impugned order is, therefore, liable to set aside on the ground of being uncertain and vague. 5. In its appeal, Revenue contends that the adjudicating Commissioner erred in not subjecting the offending goods to confiscation under section 111 of the Customs Act, 1962 and that the penalty under section 112, which is to be invoked only in relation to goods that are liable for confiscation, has been imposed without appropriate legal sanction. It is also contended that the quantum of penalty imposed on the importer and its Director has not been segregated for assignment under the two separate provisions invoked in the show cause notice. The opportunity afforded once again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these circumstances, a deliberate attempt to suppress the value of imports would be nothing but foolhardiness. Attention was drawn to the permission dated 23rd January 2004 accorded by the jurisdictional Development Commissioner for enhancement of the limit of import of capital goods to US$ 3,00,000 which would cover the enhanced assessable value. 8. Having considered the submissions as well as the records placed before us, we come to the firm conclusion that this entire episode was a misadventure on the part of Revenue. 9. The importer is a 100% Export Oriented Unit which is entitled to exemption of duty on all imports by availing exemption notification no. 53/97-Cus dated 3rd June 1997. Holders of Letter of Permission, as the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no contravention of the licence. 10. The procedure prescribed in the exemption notification for implementation of the scheme requires imported goods to be warehoused in the bonded premises of the 100% Export Oriented Unit under chapter IX of Customs Act, 1962 which limits the period of storage. It is only upon expiry of such period, or removal from the warehouse before such expiry, that goods are liable to pay duty on assessment of ex-bond bill of entry. Such of the imports as are exported at any time before the expiry of the warehousing period are not liable to duty. Capital goods are allowed to be warehoused by 100% Export Oriented Units for a period of five years. The 'plant' that was the subject of this dispute was moved to the bonde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit. 12. Suffice it state that the addition of cost element to the declared value would have rendered the value of the imports to be in excess of the value of capital goods permitted for import as it was at the time of import but not in excess of the limit as enhanced subsequently. No evidence of deliberate suppression of this with intent to evade duty is on record. The enhancement, being without any foreign exchange outflow, would have no impact on the export obligation. On the contrary, the importer has demonstrated that suppression of this value would not have benefitted them in any way. We agree with that contention and, considering their eligibility for duty-free import as well as the deferment of any duty liability on warehoused good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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