COMMISSIONER OF CUSTOMS Vs. SHAH ALLOYS LTD.

JUDGEMENT

(1.) BY this appeal under Section 130 of the Customs Act, 1962 (the Act), appellant -Revenue has challenged order dated 19th September, 2008 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) [ : 2009 (235) E.L.T. 551 (Tribunal)] proposing the following two questions stated to be substantial questions of law : -

(2.) WHETHER the invocation of the extended period under provisions of Section 28 of the Customs Act, 1962 and imposition of penalty under Section 114A and 117 of the Customs Act, 1962, should not be sustainable due to the aforementioned wrongful intention, connivance and mis -statement?

(3.) AS can be seen from the impugned order of the Tribunal, the Tribunal has recorded that the respondent herein had applied for issuance of Export Promotion Capital Goods (EPCG) licences before the Joint Director General of Foreign Trade, Ahmedabad with all the requisite documents in February, 2004. Licences were issued in favour of the respondent in March, 2004 under the EPCG Scheme with benefit of Notification dated 1st April, 2003 bearing No. 55/2003 -Cus. Under the procedure prescribed for obtaining licences from DGFT, the applicant was required to furnish a certificate from an independent Chartered Engineer. In compliance with the said condition, the respondent had filed a certificate dated 14th February, 2004 issued by Shri Deepak C. Shah, independent Chartered Engineer along with the application before the DGFT which was to the following effect: "(further certify that essentiality of Furnace Oil as consumables to be imported under EPCG application dt. 6 -2 -2004 for generation of Electric Power from Captive Power Plants." The Tribunal was of the view that it was clear from the above certificate that the description of the goods to be imported was disclosed in unambiguous terms and the purpose for which the same was to be imported was also fully disclosed. The said certificate clearly mentions the product to be imported as 'Furnace Oil' and used for generation of 'electric power' from captive power plant. Licence, as such nothing had been suppressed by the respondent from the DGFT authorities. According to the Tribunal production of certificate was only a pre -requisite condition for issuance of licences by the DGFT authorities and that the same did not absolve them from the responsibility of checking and verifying the correctness of the nexus of the import and export items under EPCG Scheme. That the said authorities were not legally bound to issue EPCG licences just based upon the certificate of the Chartered Engineer produced by the importer. The Tribunal noted that this was not a case where something was suppressed in the certificate. All the details including the product to be imported and the use to which the same was to be put stood disclosed in the certificate and accordingly it was to be presumed that the DGFT authorities had issued licences with open eyes and due application of mind. That this was not a case where the DGFT authorities were misled into issuing licences on the basis of some wrong information given by the respondent.