TMI Blog2017 (5) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. - Customs Appeal No. 51531, 51801 & 51863 of 2014 - Final Order No. 53337-53339 /2017 - Dated:- 18-5-2017 - Mr S K Mohanty, Member (Judicial) And Mr. V Padmanabhan, Member (Technical) Shri A. Hidayatullah, Sr. Advocate with Shri Rupesh Kumar, Advocate for the Appellants Shri S. J. Singh, (Special Counsel) DR for the Respondent ORDER Per V Padmanabhan The appeals have been filed against order No. 114 /2013 dated 25.11.2013 passed by Commissioner, Raipur. The appeals have been filed by M/s. Uniworth Ltd., Shri S N Maheshwari, Vice President (Commercial ) as well as Shri A P Khaitan, DGM. All the three appeals are against the same impugned order and are being decided by this common order. 2. The appellant is a 100% Export Oriented Unit, who has been granted the letter of permission by the proper officer for manufacture of export of wool yarn. They have one division (100% EOU) in Butibori, Nagpur and another at Raipur. The appellant imported second hand machinery and claimed exemption from Customs duty under Customs Notification No. 53/97 dated 3.6.97 for installation and use at Nagpur unit. The goods were cleared by filing two Bills of Entry and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings inter alia as follows:- (i) Duty demand of ₹ 1,88,26,572/- confirmed. (ii) Penalty of ₹ 15 lakh imposed on the appellant (iii) Imposition of penalty of ₹ 5 lakh on Shri S N Maheshwari (iv) Penalty of ₹ 5 lakh on Shri A P Khetan . 4. Aggrieved by the impugned order, present appeals have been filed. 5. With the above background, we heard Shri A Hidayatullah, Senior Advocate along with Shri Rupesh Kumar, Advocate on behalf of the appellants. Revenue was represented by Special Counsel Shri S J Singh. 6. The learned Senior Counsel argues the case of the appellants and the important points are summarized below: 1. The present proceedings emanate from the order-in-original No. Commissioner /RPR/CEX/14/2013 dated 25.11.2013 passed by the learned Commissioner, Raipur. 2. It is submitted that the appellant has been able to consistently meet its export obligations and there has been no revenue loss caused to the Exchequer and the NFE Earning also remained positive during the subsequent years. 3. The jurisdictional Assistant Commissioner, Central Excise, Division Raipur in his verification report dated 22.06.2001, endorsed the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking an application in that regard, registration applied for, was deemed to have been granted and thus, in the present case, since no response was received, the appellant was under bona fide belief that, central excise registration had been granted to it. 7. Arguing the case for the Revenue, the learned Special Counsel putforth the following arguments:- The goods were imported by the appellant under Notification No. 53/97, in November, 1997. On the date of import, the original notification in para 6 did not have any stipulation regarding completion of installation within a period of one year from the date of import. The same was introduced by amending notification No. 53/97 by issue of notification No. 65/99 Cus dated 19.5.99 (S.No. 8). The amended notification provided for procurement of goods without payment of duty alternatively from a public warehouse or a private warehouse, in addition to import. The condition of installation of capital goods within one year was made applicable both for goods which are imported duty free as well as procured duty free as above. The case of the appellant was under the category of procurement from private bonded ware house, inasmuch as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd duty leviable on the goods and ending with the words services out of India , the following shall be substituted namely :- duty leviable on the goods and interest at the rate of 20% per annum on the said duty from the date of duty free importation or procurement of the said goods till the date of payment of such duty, if (i) In the case of capital goods, such goods are not proved to the satisfaction of the Assistant Commissioner of Customs to have been found installed or otherwise used within the bonded premises or re-exported within a period of one year from the date of importation or procurement thereof or within such extended period not exceeding five years as the Assistant Commissioner of Customs may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow; 10. The appellant imported second hand capital goods in November 1997 (prior to amendment). The notification provided for exemption from customs duty when the goods were imported for being used as 100% EOU for manufacture of articles for export subject to conditions prescribed therein. But after the amendment in May, 1999, exemption was permissible e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further been argued that there can be no demand for Customs duty in case of removal of goods from one warehouse to another since the goods remained warehoused and Customs duty is payable only upon removal from the warehouse. 12. We find that second hand capital goods stand imported in November, 1997 at which time there was no condition specified in the notification that installation is to be completed within one year from the date of import. However, it is on record that the appellant has subsequently procured the same capital goods for use in their Raipur unit. Such re-warehousing was covered by the amendment carried out in the relevant Customs Notification to give effect to such changes in Export Import Policy. Once the goods have been procured in Raipur unit in terms of amended terms of EXIM Policy as well as Customs Notification, it is also imperative on the part of the appellant to satisfy the other conditions imposed on them. Consequently, we reject the argument that the amended condition in the notification will not be applicable to these goods since the same have been imported prior to amendment. 13. The goods in the present case have no doubt been removed from on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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