TMI Blog2020 (2) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... tourist vehicle much before issuance of EODC. The second allegation is that the appellants have not earned foreign exchange exclusively by the use of the imported vehicle - HELD THAT:- In the case of Commissioner of Customs v. Hotel Excelsior Ltd. - 2016 (336) E.L.T. 595 (Del.), the Hon ble High Court of Delhi held that as long as foreign exchange is earned by the hotel and the imported cars are used for hotel purpose, there would be no violation of any statutory requirement and it is not necessary that the foreign exchange has to be exclusively earned by using the vehicle. The E.P.C.G. license does not envisage that the amount collected by use of the imported car only has to be accounted towards fulfilment of export obligation. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. After due process of law, the adjudicating authority confirmed the demand, interest and also imposed penalty. Aggrieved by such order, appellant is now before the Tribunal. 2. On behalf of the appellant, Ld. Counsel Shri Hari Radhakrishnan appeared and argued the matter. He submitted that the three allegations raised in the Show Cause Notice as violation of condition of E.P.C.G. license is as under :- (i) That the vehicle was not registered as a tourist vehicle (ii) That the foreign exchange has not been earned exclusively by use of the vehicle (iii) That no proper accounts were maintained by the appellant. 3. With regard to the first issue, Ld. Counsel submitted that there is no such condition stipulated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri. - Del.) to argue that when the EODC has been issued by the concerned authority the proceedings alleging that conditions have been violated cannot sustain. 5. The Ld. AR Ms. T. Usha Devi appeared and argued the matter on behalf of the department. 6. Heard both sides. 7. The first and foremost issue is the violation of the condition that the vehicle has not been registered as tourist vehicle. It is brought out from the facts that the appellant has obtained registration under tourist category after the proceedings have been initiated. The D.G.F.T. vide Circular dated 7-5-2008 has clarified as under :- Attention is invited to para 5.1 of Foreign Trade Policy wherein Import of Motor Cars, Sports Utility Vehicles/all purpose v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle. In the case of Commissioner of Customs v. Hotel Excelsior Ltd. - 2016 (336) E.L.T. 595 (Del.), the Hon ble High Court of Delhi held that as long as foreign exchange is earned by the hotel and the imported cars are used for hotel purpose, there would be no violation of any statutory requirement and it is not necessary that the foreign exchange has to be exclusively earned by using the vehicle. The E.P.C.G. license does not envisage that the amount collected by use of the imported car only has to be accounted towards fulfilment of export obligation. Similar view was taken in Air Travel Bureau Ltd. (supra). 10. The Tribunal in the case of Narang International Hotels Pvt. Ltd. (supra) had occasion to analyse a very same issue with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence are contrary to law and take action against the licence holder. Consequently, while the proper officer under the Customs Act, 1962 can initiate action for breach of conditions of notification, a certification of compliance with conditions of licence cannot be ignored or substituted by separate findings to the contrary. The adjudicating authority, in rendering the finding that export obligation has not been fulfilled, has erred in pre-empting a decision by the statutory authority vested with that responsibility. The exemption notification itself in Paragraph 2(2) allows a period of six years from date of licence, i.e. up to August, 2013, as the first reporting block, to fulfill the export obligation; and we notice that seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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