U-FOAM PVT. LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Both these appeals involve a common question of law and facts and are taken up for disposal together as per law.

(2.) The appeals are directed against Order -in -Original No. 65/98, dated 30 -3 -98 despatched on 24 -4 -98 by which the learned Commissioner has ordered them to pay a sum of Rs. 5,77,533/ - as duty under the proviso to Section 28 of the Customs Act, 1962 with interest @ 24% per annum from the date of clearance till the date of payment. He has also imposed a redemption fine of Rs. 1 lakh in lieu of confiscation of the exempt material which was shredded and was waste. He has also imposed penalty of Rs. 2 lakhs on the appellant under Section 112(a) of the Customs Act, 1962. He also imposed a penalty of Rs. 1 lakh on Shri M. Sarangapani, Managing Director of M/s. U -Foam Private Ltd., Hyderabad under Section 112(a) of the Act ibid.

(3.) Ld. Advocate Shri J. Shankarraman appearing on behalf of the appellant company and its Managing Director submits that they have fulfilled the export obligation within the extended period under Para 126 of the Hand Book Volume -I, 1992 -97. In this connection, he also invited our attention to the F. No. Plastics/128/AL/AM93/ALSII/Hyd., dated 20 -2 -92 by which the JDGFT, Hyderabad has written that the export obligation against Advance Licence bearing No. P/L/3286996, dated 8 -10 -92, DEEC bearing No. 021652, dated 8 -10 -92 has been discharged in terms of para 126 of the Hand Book (Volume -I) 1992 -97. Accordingly, the original Bank Guarantee No. 030/1/93, dated 15 -4 -97 had also been cancelled and forwarded to the bankers for necessary action at the bankers' end. Ld. Counsel also invited our attention to Order -in -Original No. 9/2001 Adjn. Cus., dated 28 -11 -2001 by which, in their own case, the proceedings were dropped by the learned Commissioner of Customs and Central Excise, Hyderabad -II Commissionerate, Hyderabad. They have also invited our attention to the judgment rendered by this Bench in which it has been held that if the export obligation is fulfilled within the extended period, then no duty and penalty can be levied under Sections 28 and 112 of the Customs Act, 1962 respectively. While rendering the judgment in the case of Dolphin Drugs (P) Ltd. v. CC, Mumbai, 2000 (115) E.L.T. 552 (T), this Bench had also relied on Tribunal's Final Order No. 73/98, dated 15 -1 -98 and had also referred to Tribunal's Final Order Nos. 2589 and 2590/98, dated 10 -12 -1998. Ld. Counsel has, therefore, submitted that the impugned order is liable to be set aside by allowing their appeal as neither any duty can be demanded nor any goods can be confiscated nor any penalty on the appellant company as well as their Managing Director can be imposed by the Commissioner of Customs in view of the fact that export obligation has been fulfilled within the extended period granted by the DGFT.