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TMI Blog2023 (1) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the relevant portion is reproduced below: "2. The exemption under this notification shall be subject to the fallowing conditions, namely :- (1) that the goods imported are covered by a valid licence issued under the Export Promotion Capital Goods Scheme in terms of Chapter 5 of the Foreign Trade Policy permitting import of goods at the rate of five percent duty and the said licence is produced for debit by the proper officer of customs at the time of clearance: Provided that for import of spare parts specified at S. No. 4 of the said Table, the validity period of the licence shall be deemed to be the period permitted for fulfillment of the export obligation in full; (2) that the importer executes a bond in such form and for such sum and with such surety or security as may be specified by the Deputy Commissioner of Customs or Assistant Commissioner of Customs binding himself to fulfil export obligation on FOB basis equivalent to eight times the duty saved on the goods imported as may be specified on the licence, or for such higher sum as may be fixed by the Licensing Authority, within a period of eight years from the date of issue of licence, in the following proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uties of Customs of an amount equal to that portion of the duties leviable on the goods, but for the said exemption, which bears the same proportion as the unfulfilled portion of the Export Obligation bears to the total Export Obligation together with interest at the rate applicable from the date of clearance of the goods. 3. Whereas the notice has failed to fulfill the conditions of the said Notification and submit the requisite evidence within the prescribed period regarding fulfillment of export obligation. It, therefore, appears that the total Customs duty foregone in respect of import made by them amounting to Rs. 5,31,762/- (Rs. Five Lakh Thirty One Thousand Seven Hundred Sixty Two Only) is liable to be recovered under the proviso of Section 143(3) of the Customs Act, 1962 read with Section 28 and interest under Section 28AA of the Customs Act, 1962." 6. The appellant filed a reply to the aforesaid show cause notice stating therein that it had written a letter dated September 26, 2016 mentioning that it had applied for issue of the EODC to the Joint Director General of Foreign Trade, Kanpur and so sometime may be given to submit the certificate. 7. The Additional Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts to the effect that principles of natural justice should be maintained while deciding the cases where issuance of EODC is involved, Meetings were also held with officials of DGFT to obtain pending EODC but subject EODC has not been submitted till date. It is not understood as to how such a vital legal requirement can be kept pending for years. I find that the notice has been given. sufficient time and opportunity to produce the EODC. However, as stated before, the notice has not submitted any proof/evidence with regard to fulfillment of export obligations in respect of aforesaid authorization and for want of any information it is also. not ascertainable whether the noticee has filed an applications with DGFT in this regard. It appears that the notice is least concerned regarding their case." (emphasis supplied) 8. Feeling aggrieved, the appellant filed an appeal before the Commissioner (Appeals), who by order dated September 05, 2019 dismissed the appeal and confirmed the order passed by the Additional Commissioner. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below: "5.2 I also find that the Adjudicating Authority was in touch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment has stated that though the license does mention that the export obligation period is twelve years, but it should have been eight years and the total export obligation was required to be fulfilled by the appellant at the end of the sixth year and since this was not done, the show cause notice was issued to the appellant. It is, therefore, his contention that as the appellant has not fulfilled the export obligation, the Commissioner (Appeals) was justified in dismissing the appeal filed by the appellant to challenge the order passed by the Additional Commissioner. 11. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the Department have been considered. 12. It is not in dispute that the license that was issued to the appellant under the EPCG Scheme mentions the export obligation period is twelve years. This fact has neither been disputed in the show cause notice nor in the two orders passed by the Additional Commissioner and the Commissioner (Appeals). The show cause notice, in fact, does not even mention the obligation period and only makes a general allegation that the appellant had failed to fulfill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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