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M/s Ishan Systems Pvt. Ltd., Shri Rukum Singh Yadav, Director Versus CCE & ST, Noida

2017 (9) TMI 907 - CESTAT ALLAHABAD

100% EOU - import of equipment availing benefit of N/N. 153/93-CUS dated 13/08/1993 - appellant has failed to fulfill their export obligation under Notification - auction - sole contention of the appellant is that as they could not repay the loan of the Vijaya Bank and bank took over the possessing property which has been auctioned - Held that: - the auction took place on 05/12/2011, whereas the appellant intimated to the Department that proceedings are going with the Debt Recovery Tribunal only .....

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ments in question are held liable for confiscation as these equipments did not use for intended purpose - As goods has been confiscated, the same is the property of the Revenue and the goods can be redeemed on payment of redemption fine as imposed in the impugned order. - Penalties - Held that: - the appellants has failed to discharge their export obligation in terms of N/N. 153/93-CUS dated 13/08/1993, in that circumstances, the penalties are imposable on the appellants - the penalties impo .....

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rized Representative (DR) for the Respondent ORDER Per. Ashok Jindal The appellants are in appeal against the impugned order wherein duty has been demanded and goods in question has been confiscated which were allowed to be redeemed on payment of redemption fine and penalties are also imposed on both the appellants. 2. The brief facts of the case are that the main appellant was granted a licence for setting up a 100% EOU for providing infrastructure facility for STP unit under the Software Techn .....

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77; 40 crores from Vijaya Bank for construction of building for housing STP units. Building was constructed. Imported equipments were also installed but the appellant could not start the project and did not discharge their export obligation. As appellant could not pay the installments of loan taken from the Vijaya Bank, the bank declared the appellant as NPA and the proceedings under Securitization Act were initiated against the appellant. The appellant from time to time intimated to the Departm .....

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on both the appellants. The matter was adjudicated and duty of ₹ 27,74,835/- alongwith interest was demanded and the goods were held to be liable for confiscation with an option to redeem the same on payment of redemption fine of ₹ 20 lakhs and equivalent amount of penalty was imposed on the main appellant and a penalty of ₹ 3 lakhs was imposed on Shri Rukum Singh Yadav, Director of the main appellant. Aggrieved from the said order, the appellants are before me. 3. The learned .....

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old the property on auction on 05/12/2011. The action of the bank was challenged before Debt Recovery Tribunal and Appellate Debt Recovery Tribunal, but without any success. The appellant informed to the Department on 04/05/2012 about the auction of the property and also on 14/12/2012. Thereafter on 01/07/2013 informing the Department of dismissal of their case from Debt Recovery Tribunal. Further also informed on 09/06/2014 but Department did not take any action. In these circumstances, the ful .....

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till date no action has been taken to reliase the money out of the sale of the goods in question by the Department, being the owner of the property, therefore, the duty is not payable by them. He also relied on the decision of Fortis Hospital Ltd. Vs. CC reported in MANU/SC/0417/2015. 4. On the other hand, learned AR opposed the contention of the learned Counsel of the appellants and submits that it is admitted fact that the appellant has imported the equipments in question without payment of du .....

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d. vs. Union of India reported in 1997 (89) E.L.T. 425 (S.C.), therefore, under Section 72 of the Customs Act, 1962, the proceedings were initiated against the appellants and the appellants failed to fulfill their export obligation. In that circumstances duty is rightly demanded from the appellant and penalties were also imposed correctly. 5. Heard the parties considered the submissions. 6. In this case, it is an admitted fact that appellant is 100% EOU and imported the equipments availing the b .....

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repay the loan of the Vijaya Bank, therefore, the bank has took over the property and auctioned. 8. I have gone through the records placed before me. In this case, the auction took place on 05/12/2011, whereas the appellant intimated to the Department that proceedings are going with the Debt Recovery Tribunal only on 04/05/2012 which is almost six months after the auction of the land and building with installed of the equipments in question. Admittedly there were lapses on the part of the appell .....

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appellant could not fulfill their export obligation as the supplier of the machine in that case went in liquidation and the appellant placed an order for supply of machine and installation thereof, as supplier of the machine went in liquidation, therefore, the machine could not be installed. In that case also, the duty was also demanded. Therefore, the decision in the said case is of no help to the appellant. Further, I find that the appellant has also relied on the decision of Fortis Hospital L .....

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