9911796707
TMI Blog2023 (5) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in removing earth, digging, excavation of iron ore and transportation of the same from top of the hill to its base as a mine raising contractor for Obulapuram Mining Co. P. Ltd. They had obtained an EPCG license No.0930004388/3/11/00 dated 12.09.2008 for import of two numbers of Nordberg Trak mounted (cone type) Crushing Plant described in detail as (i) Nordberg make Primary Lokotrack Mobile Crushing Plant model LT 105 consisting of Nordberg Primary Jaw Crushed model C 105 and (ii) Nordberg Secondary Lokotrack Mobile Crushing plant model LT 1100 consisting of Nordberg Secondary Cone crushed model GP 11F. The said EPCG license was issued to the appellants for 3% concessional duty as 'service provider' involving export obligation for a FOB value of exports of US$2,731,313.37 or Rs.11,94,94,960/- with export obligation period of 8 years. The amount of duty saved was also given as Rs.1,49,36,870/-. On the basis of intelligence received and developed by the Marine & Preventive (M&P) Wing of Customs (Preventive) Commissionerate, Mumbai, that the appellants have fraudulently shifted the crushing plants to the project site of their sister concern without taking any permission and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue for consideration before us that whether the appellants have violated the provisions of notification No.64/2008-Customs dated 09.05.2008, in terms of the show cause proceedings or not, for deciding on the issue of legality of the impugned order. In order to examine these in detail, the allegations raised in the Show Cause Notice (SCN) dated 11.06.2012 are extracted and given below: "22. Now, whereas, from the foregoing, it appears that: i. RKMPL had violated the (a) Condition No. 9 of the EPCG licences by not installing the crushing plants at the declared place; (b) Conditions of Para 5.15 of the Hand Book of Procedures 2004-09 by not maintaining any records as discussed in the foregoing paras; (c) Condition No. 6 of the condition sheet attached to EPCG Licence No. 0930004388/3/11/00 dated 12.09.2008 and para 5.3 of the Exim policy 2004, 2009 by not actually using the subject crushing plants imported against the said licence for mining and excavating the iron ore; (d) Condition No. 14 of the condition sheet attached to the said EPCG License, by not submitting the installation certificates to the Licensing authority within six months from the date of import; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted against their duty liability in respect of the aforesaid crushing plants. 24. S/Shri B. Ravikiran Reddy and B. Sasikiran Reddy are also called upon to show cause in writing to the Commissioner of Customs (Export), having his office at 2nd Floor, New Customs House, Ballard Estate, Mumbai - 400 001, within 30 days from the receipt of this show cause notice as to why penalty should not be imposed upon them in terms of Section 112 (a) and/or 112 (b) of the Customs Act, 1962." In the impugned order learned Commissioner of Customs (Export) after consideration of the reply of the appellants and after offering them a personal hearing had decided the case against the appellants by passing the following order: "21. In view of the above, I order as under: (i) I deny the benefit of exemption under Notification 64/2008 Cus. Dated 09.05.2008 on account of violation of condition 2(7) of the said notification and confirm customs duty demand of Rs. 1,27,17,014/- (Rupees One Crore Twenty Seven Lakh Seventeen Thousand and Fourteen Only) in terms of proviso to Section 28(1) of the Customs Act, 1962 as in force at the relevant time. I appropriate the said amount of Rs. 1,27,17,014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate for the appellants have submitted certain facts and evidences in the form of documents in the appeal papers clearly negating such conclusions arrived at in the impugned order. Thus, we consider it necessary that we should firstly examine these points, one by one, before coming to a considered view on the impugned order. 8.1. The findings arising out of the discussion by the learned Commissioner of Customs (Export) in the impugned order and the relevant counter argument or evidences produced by the Advocate for the appellants and the factual position on such issues/findings are as follows : Sl. No. Findings in the impugned order and reference to paragraph No. Counter argument or document submitted by appellants Factual position/ Status Imported machines under EPCG license found installed at RK Infra & Engineering (India) Pvt. Ltd. Meja Road, Allahabad (UP) and said fact admitted by statements. (Para 18.1.1) Installation certificate as per 5.3.2 of Handbook of Procedures (HBP) and Exim Policy 2004-2009 has been issued on 07.05.2012. Legal requirement for production of Installation certificate on transfer of machines by EPCG license holder fulfilled. 2 As t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d owing to that the crusher machinery got damaged. The same was transported to Obulapuram after repairs and installation certificate was submitted. (Para 19.1.6) Imported machinery vide Bill of Entry No. 880420 dt. 29.01.2009 was transported by Spurgex Transport Pvt. Ltd. through 3 trailers on 30.01.2009; one of the trailer met with accident within limit of Pune Municipal Corpn. While other trailers reached the site at Obulapuram on 06.02.2009, the trailer that met with accident arrived the site on 14.02.2009. Thus, installation certificate dated 29.03.2009 was submitted. The factual position of trailer carrying imported machinery met with an accident was corroborated by the transport company. The mention of installation certificate submitted by appellants in the impugned order in para 19.1.6 contradicts its finding in earlier para 19.1.5. 6 Shifting of the imported machinery was carried out in April, 2011 itself due to mining activity being banned by the Government of India at Obulapuram, but appellants applied to DGFT for their permission to shift such machinery only in February, 2012. (Para 19.1.6) Since the Government of India imposed ban on mining at Obulapuram the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 10.04.2012. Thus, to that extent there is no misstatement of facts. The statements given by different persons holding the position of Chairman and Managing Director of the appellants' company has to be examined in the context of the investigation findings. 8.2 From the factual position in each of the above issues listed above, we find that the conditions of the notification has been fulfilled in respect of Sl. No.1 and 4; as regards the issue at Sl. No.2, 6 necessary permission from the competent authorities have been obtained by the appellants and thus there is no violation of any condition of the notification; in respect of Sl. No. 3, the installation imported machines found to have been accepted by original authority at one paragraph at 18.1.1, but the installation certificate for the same has not been taken into account in the other paragraph at 19.1.4 of the findings, leading to apparent contradiction in the impugned order; similar is the case in respect of Sl. No. 5 where there is also an apparent contradiction in the findings of original authority. Further, in respect of the issues at Sl. No.4, the factual position has not been taken into account with respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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