TMI Blog2023 (8) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as foreign exchange is earned by the hotel and the imported cars are being used, there cannot said to be a violation of any statutory requirement. Thus, the impugned order before does not call for any interference. The same is sustained. Appeals filed by the department are dismissed. - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri Rudra Pratap Singh, Additional Commissioner (A.R.) - For the Appellant Shri Gokul Raj L. Advocate - For the Respondent ORDER The above appeals are filed by the department against the order passed by Commissioner appeals who set aside the order of the original authority confirming the duty demands along with the interest and imposing penalty. 2. Brief facts are that, the respondent, namely, M/s Joys the Beach Resort Pvt. Ltd. filed bill of entry dated 22/01/2005 for import of capital goods namely, Nissan X Trail Car under the EPCG scheme availing benefit of exemption under the Notification no.55/2003. After importing the vehicle, the appellant had registered the vehicle as private vehicle in the first instance and re-registered the same as a tourist vehicle at the instructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n- compliance of the provisions of the Foreign Trade Development and Regulations Act, 1992, and the Rules and orders made there under. The respondent had not registered the imported car as tourist vehicle. It is only later on the instance of JDGFT that the respondent had registered the vehicle as a tourist vehicle. The respondent did not maintain proper account in respect of services rendered by using the car imported for fulfillment of export obligation under the scheme. It is pointed out by the Ld. AR, that respondent has received very less foreign exchange by use of the imported car and most of the foreign exchange earned is through their hotel and tourism business which was shown towards the fulfillment of export obligation. Though EODC was issued by JDGFT, as the respondents have violated the conditions of the notification, the demand raised by Customs department is legal and proper. 4. The Ld. AR vehemently relied on the decision of the Tribunal in the case of Surya Samudra Holiday Resorts Pvt. Ltd. Vs CC (Export) Mumbai 2010 (256) ELT 432 (Tribunal, Mumbai) to argue that all the very same points were considered by the Tribunal in the said case and it was observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cases where the vehicles had not been registered as tourist vehicle till 30/6/2008. The import in the present case is in 2005 and the respondent has re-registered the vehicle as tourist vehicle. 7. Another allegation in the show cause notice is that the entire foreign exchange declared for fulfillment of export obligation was not received by use of the vehicle. The Ld. counsel submitted that the issue stands covered in favour of the respondent in their own case as reported in 2020 (373) ELT 721 (Tribunal-Chennai). It is submitted that under the scheme the respondent herein had imported one Mercedez Benz car and one Nissan X Trailer Car . The very same allegation was raised in the show cause notice issued in regard to the Mercedez Benz car. The Tribunal after considering the facts and evidence held that the respondent having been issued EODC on 12/6/2018, the department cannot proceed to recover duty alleging non-fulfillment of conditions of EPCG license. The Tribunal in the said case, followed the decision in the case of Narang International Hotel Pvt. Ltd. Vs. CC (Export) JNCH, Nhava Seva 2017 (347) ELT 680 (Tri-Mumbai). The decision in the case of CC (Air cargo) Vs. Hotel E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal in the respondent s own case with regard to the import of Mercedez Benz car under EPCG scheme. The Tribunal after considering various decisions observed as under: 8 . From the above clarification, it can be seen that an importer/assessee could get the vehicles registered as tourist vehicle on or before 31-8-2008 and also if the EODC has not been issued within 30-6-2008. In the present case, the appellants have converted the registration to tourist vehicle much before issuance of EODC. 9 . The second allegation is that the appellants have not earned foreign exchange exclusively by the use of the imported vehicle. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt obligation; and we notice that seizure was effected and importers directed to justify the imports well before that deadline. For the reason of not having awaited the completion of the deadline prescribed in the exemption notification for compliance with first report of prescribed proportion of achievement of obligation and of deciding on the extent of achievement of export obligation without proper authority, we find that the proceedings are not legally sustainable. In the present case, the appellant having been issued EODC on 12-6-2018 by the Jt. D.G.F.T., Trivandrum, the department cannot proceed to recover the duty forgone at the time of import, alleging non-fulfilment of conditions of EPCG license. 11 . From the foregoing discussions and also following the decisions cited supra, we are of the considered opinion that the demand cannot sustain. The impugned order is set aside and the appeals are allowed with consequential relief, if any. 13. In the case of Hotel Excelsior Ltd. 2016 (336) ELT 595 (Del.) similar issue was considered and the Hon ble High Court, Delhi observed as under 2 . The short question that arose for consideration in the said appeal from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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