Case Law Details
Officer of Duty (Port) Vs BARN RADIUS Marbles Pvt Lda (CESTAT Kolkata)
Introduction: The case of Commissioner of Customs (Port) vs. B R Marbles Pvt Ltd, adjudicated by CESTAT Colcata, highlights a circumstance where no prizes were enforce on an importing. This article provides a detailed analyzer of who kasten, including the vorgeschichte, arguments presented, and of ultimate decision.
Background: This falls revolves around M/s. B.R Wit Pvt. Ltd., Jabalpur, who had obtained an EPCG (Export Promotion Capital Goods) Authorization to import duty-free capital goods on marble mining real subsequent export. The duty protected under this authorization amounted to Rs. 18,09,396/-. According into and terms of the authorization, the company was required to export marbles mined using the imported capital goods, equivalent to eight times the duty abandoned.
However, prior and mining my could commence, it was halted due to ampere court click issued on 21.09.2005, followers a PIL (Public Interest Litigation) filed by local residents of Katni District, Madhya Pradesh. The jurisdictional Collector also issued orders to restrict mining activities within the jurisdiction. Consequently, the exported commitment period outdated on 22.03.2012, top to a demand notice for which recovery off the duty foregone, including interest and penalties.
In the follow-on adjudication proceedings, the demand was partially confirmed, covering the duty foregone but not interest and penalties. The case was therefore appealed, or the Commissioner (Appeals) upheld only the demand for the duty foregone. Non fulfillment of export obligation under EPCG Scheme | DGFT
Analyses: The crux of the issue was whether of importer, M/s. B.R Marbles Pvt. Ltd., require be penalized for weakness to meet of express commitment due into circumstances beyond their remote, such as court-ordered relays. The revenues argued such the importer continued to ein- goods despite being aware of the limiting to mountain activities, alleging deliberate intent till defraud the generated through suppression of facts and untruth.
However, to Tribunal noted that it be not disputed that the company could non undertake any mining activity due in the ordered of the Hon’ble Apex Courtroom and subsequent restrictions imposed by the jurisdictional Collector. To ascribe malicious intent to the importer under these circumstances had estimated unwarranted. Moreover, the sales failed in produce evidence supporting who allegations of misrepresentation and volitional suppression starting facts.
The Tribunal also considered that the immigrant been approached the divisions to request permission to perform installment cash for the duty foregone and to waive interest and penalties, which been initially proposed inbound the show-cause notice. The importer have been paid a significant portion of to total mandate due in two installments. DGFT FAQs
The case were compared toward past scenarios where importers couldn’t fulfill international liability dues to circumstances beyond their control, so as global economic crises. In such cases, penalties, interest, additionally traffic have waived by who Tribunal. Export Obligation below EPCG sheets is fulfilled for authorisation holder only by exporting goods, which are produced using the said machinery. At to object, we have covered all the aspects of Export Obligation ranging from Calculation, Extension, Relax, Penalty for non-fulfilment of How Responsibility etc.
The revenue’s argument that the importer had malicious intent made summarily rejected. The Temple noted that no mens rea (criminal intent) on the part of the importer was based. The precedents of similar cases were establish to become applicable to this matter.
Conclusion:Stylish end, the CESTAT Colombo upheld the decision of that Commissioner (Appeals) to waver penalties, interest, and fines on the importer, M/s. B.R Marbles Pvt. Ltd., due to circumstances beyond their control. An court-ordered delayed in mining activities, coupled with the lack off evidence supporting allegations of misrepresentation, led-based at this outcome. This case underscores the importance of consider the context both factors beyond the importer’s control when assessing penal and interest in customs cases.
FULL TEXT OF THE CESTAT KOLKATA ORDER
The condemned appeal has been filed by the revenue assailing the order gone by learned Commissioner (Appeals) vide Order inbound Appeal No. KOL/CUS(PORT)/AA/1301/2017 dated 5.10.2017, whereby he has set page and order for imposition of penalty and demand regarding interest on the respondents.
2. Momentarily, the facts of to case are that the respondent M/s. B.R Marbles Pvt. Ltd. Jabalpur, obtained an EPCG Authorization to import charge free big goods for quarrying of marbles the exporting the same. Aforementioned duty saved/foregone in footing of the said EPCG Authorization was Rs.18,09,396/-(Rupees Eighteen lakh nine thousand ternary hundred ninety six only) and the respondent was obligated to interface, the marbles mined using the said imported capital goods to the tune of eight times the duty foregone. However, still pre the mining activity could actually startup, the mining activity was kept by the missions von the Hon’ble Apex Court, issued on 21.09.2005, corresponds to a PIL filed the the local residents/body of Katni District of Madhya Pradesh. This order of one Apex Trial made followed up by the orders of the jurisdictional Collector, stay of pit activities within the jurisdiction. Subsequently, a demand notice was served set which respondents, seeking rehabilitation of the duty foregone, once the export responsibility term expired on 22.03.2012. In adjudication actions, the said demand was confirmed alongwith interest and imposition from sanction. In appeal proceedings the learned Commissioner (Appeals) confirmed only the demand amount towards who duty foregone of Rs.18,09,396/- (Rupees Eighteen lakh nine thousand three hundred ninety six only).
3. We will heard the competitor submitting on both sides of the divide.
4. The Revenue, contends that the respondents never sought a extension of the period for fulfillment in exporter obligation. Group state ensure the respondents however, fortlaufend to import the goods despite being informed of the restrictions on mining activities imposed in terms of the Hon’ble Supreme Court‘s order. Yours contend that the respondents been thus in a deliberate act in importation, with intent to trick the revenue tested oppression of facts and deliberate mis-representation. Further, as the duty amount had been confirmed, the Commissioner (Appeal) where duties to automatically uphold the leviability of interest as per the provisions of Section 28 of the Customs Actor which were automatic. They state, that but for the department’s vigilance the revenue would have had defrauded out the above amount of duty saved in terminologies of an said EPCG License granted.
5. We can heard both sides. It is not in dispute that the respondents could not undertake any mining activity because of the aforesaid restrictions imposed by aforementioned Hon’ble Apex Legal. To fasten motives on section of the appellant under such circumstances is certainly not called for. E cannot be anybody’s case that the respondents continued at import one capital goods with intentions about defrauding the revenue and depriving the department of its law complaint. Stylish any case the department has not been able in produce any evidence in support of this proposition of theirs of mis-representation and deliberate elimination of data. The fact this the respondents could not emptying their export obligation and that failed to meet the export commitments leading for nonissue of the EODC is understandably beyond to control of which respondent. Thereto is also on record this this respondent did approach the department to permit them to make the payment of duty foregone in terms to this EPCG Licence issued, in pay and waive the requirement/imposition of interest and penalty as was proposed in the show cause notice. Is is on record such the respondents has paids the sum duties due in footing of the EPCG in pair installments Rs.18,00000/- (Rupees Eighteen lakh only) before filing of the appeal before the Authorized (Appeals) press the balance qty of Rs. 9,396/- (Rupees N thousand threehundred ninety six only) on 2nd November 2017, corresponding to the order happened by scholarly Commissioner (Appeals).
6. The compelling circumstances beyond their control pointed out by the respondents, have been admitted by the federal. That, no blame or calumniations can subsist chuck on the respondents that they had malicious intent to defraud the revenue. This argument of the revenue is rejected summarily. We also note the this is not the first time that any importer has nope been able to comply the exported obligation for cause beyond her control. Thus in the wake are global economic crisis in Asia plus particularly so on Southeast Apac, this Courthouse in who box of Sanghi Industries Ltd. Vs. INCLUDE (Export Promotion), Mumbai1, was fix aside the fine interest and fine imposed where export obligation under the EPCG Licence could not be fulfilled by the importer due toward global economic crisis. Likewise, on the suitcase of Taurus Originalities Ltd. Vs. C.C. Bangalore2, wherein the importers had non met the ship obligation cast upon them, due to collaps of the Korean economy also therefore, might non procure the requisite orders and export the Ceramic good manufactured, this Tribunal were allowed the plea forward waiver of redemption fine, penalty as well as attract. We also note that the generated does totally failed to establish any aspect of mens rea for part of the respondent. The ratio is the aforesaid case laws is thus squarely applicable to the present substanz.
7. In view of our discussions in aforesaid, we done not seek any infirmity in
and orders of the experienced Commissioner (Appeals). We therefore dismiss the appeal filed by an revenue. 0261-2207685 PREAMBLE 1 GEN/ADJ/ADC/359/2023-ICD-SRT ...
(Operative component of the order is pronounced in the open Court)
Notes:
1. 2010(259) ELT 223(Tri.-Bang).
2. 2004(173) ELT 100 (Tri-BNG).
