TMI Blog2021 (9) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore has complied with conditions of notification read along with Circular / Public Notice / Hand Book of Procedure. The department accepted the same as fulfilment of obligations as per the bond executed by them - Being satisfied of the same, the bond has been cancelled, after which no demand can be raised alleging violation of conditions of bond. Similar issue was addressed by the Tribunal in the case of Bank of Nova Scotia [ 2008 (7) TMI 246 - CESTAT BANGALORE] . The Tribunal also looked into the issue of non-production of BRC and held that the liability, if any, would be on the exporter. Time Limitation - HELD THAT:- The SCNs have alleged suppression of fact with intent to evade Customs duty. The appellant-bank has furnished details of exports and the bond was cancelled by the department after verification of the same. On such score, the SCNs issued much later alleging suppression of facts is without any factual basis. The issue on limitation is also found in favour of appellant. Demand do not sustain - appeal allowed - decided in favor of appellant. - Customs Appeal No.42163-42164 of 2018 - FINAL ORDER No. 42306-42307 / 2021 - Dated:- 24-8-2021 - MS. SULEKH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, namely M/s.Atlas Jewellery Pvt Ltd, has gone out of business and has shut shop vide their letter dated 14.07.2016. Again, M/s.Bank of India vide letter dated 09.08.2017 stated that this issue was reported to the Reserve Bank of India and that M/s.Bank of India had contacted the exporter; however no reply had been received. It has also been stated that the exporter / company has closed its offices in India and the Managing Director is kept under arrest in DUBAI. 6. It appeared to Department that appellant has violated Section 111 (j) of Customs Act, 1962 by failing to furnish BRC or pay appropriate duty within 7 days of the stipulated period, also failed to monitor realisation of export proceeds and therefore liable to pay duty. SCN dt. 19.12.2017 and dt. 06.01.2018 were issued raising the above allegations and also alleging suppression of facts with intent to evade duty. The appellants were called upon to pay Customs duty of ₹ 54,59,402/- ₹ 51,46,354/- on the assessable value of ₹ 5,30,03,900/- (20 kg. Gold) ₹ 4,99,64,600 (20 kg. Gold) respectively along with interest. The SCNs also proposed to impose penalties. 7. After due process of law, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold jewellery and export of articles of gold, if any claim of export benefit like drawback, etc., is considered then Bank certificate of realisation in Appendix 22A would be required. Effect of this Public Notice : The exporters/importers can import/get their 20% gold consignment (under customs bond) released without waiting for the realization, if the other two requirement of para 4A.8(a) are satisfied . 11. In other words, subsequent to issue of the above Public Notice with effect from 06.09.2013, it is sufficient that only Export Promotion copy of the shipping bill and customs attested invoice is to be furnished for establishing the export of gold jewellery and export of articles of gold. It was specifically mentioned that the bank certificate of realization will not be insisted upon for proof of export. It was further clarified that in case the exporter claimed drawback, then, for granting drawback, bank realization certificate will be required. 12. In the light of the amendment provided in terms of the above public notice, there is no basis whatsoever for the respondent to hold that the nominated agency is under an obligation to provide Bank Realization Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of articles of gold, the Bank Realization Certificate shall not be insisted to be produced as proof of export. The appellant has furnished E.P copy of the shipping bill as proof of export. The appellant therefore has complied with conditions of notification read along with Circular / Public Notice / Hand Book of Procedure. The department accepted the same as fulfilment of obligations as per the bond executed by them. Being satisfied of the same, the bond has been cancelled, after which no demand can be raised alleging violation of conditions of bond. 19. Similar issue was addressed by the Tribunal in the case of Bank of Nova Scotia (supra). The Tribunal also looked into the issue of non-production of BRC and held that the liability, if any, would be on the exporter. The relevant paras read as under : 15 . We have gone through the records of the case carefully. The Government of India brought out various schemes for the promotion of gold, silver and platinum jewellery. In terms of the scheme, the nominated agency can import gold duty free in terms of the relevant Customs Notification. The imported gold can be given on loan basis or sale to various jewellers on condition tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond appellant Rajesh Exporters Ltd. had also exported the goods. There is ample evidence to show that the jewellery containing gold equal to the quantity imported had indeed been exported. This fact is also not under dispute. The learned Special Counsel was at pains to convince us that the non-realization of sale proceeds of the exported goods amounts to violation of the conditions of the notification, because the notification has to be read harmoniously along with export/import policy and also the relevant provisions of Hand Book of Procedures. We do not agree with the contentions of the learned special Counsel. On a plain reading of the notification, we do not think that non-realization of sale proceeds amounts to violation of the conditions of notification by the first appellant. There is no allegation that the first appellant colluded with the second appellant and as a result of such collusion the sale proceeds were not realized. In other words, when the notification has not stipulated any condition to the effect that the nominated agency should ensure the realization of sale proceeds of the exported goods. We cannot read such a meaning into the said notification. Consequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on loan basis gold from the first appellant. They had also fulfilled the export obligations. In other words, the goods have been physically exported in the light of the Apex Court s decision cited by the learned Advocate, export has taken place. The non-realization of foreign exchange will be governed by FEMA and also the circulars issued by Reserve Bank of India. There is no legal sanction for imposition of any penalty on them under Section 112 (a) of the Customs Act, 1962. In view of the above findings, we do not hold that the impugned goods are liable for confiscation under the Customs Act. The first appellant is not liable to discharge duty liability for the impugned gold. Both appellants are not liable for penalty under Section 112 (a) of the Customs Act, 1962. Hence, we allow the appeals of both the appellants with consequential relief. 20. From the foregoing, after appreciating the facts and evidence placed before us and following the decision in the case of Bank of Nova Scotia (supra) we are of the considered view that the demand of duty cannot sustain. The issue on merits is answered in favour of the appellant. 21. The appellant has argued on the ground of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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