WORLDWIDE HORTICULTURE LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) M/s. Worldwide Horticulture Ltd. and others have filed these two appeals against Order -in -Original No. 14/2002, dated 14 -6 -2002 by which the Commissioner has confirmed the demand of Customs duty and imposed penalty on both the Appellants.

(2.) Shri R. Santhanam, learned Advocate, submitted that M/s. Worldwide Horticulture Ltd., a 100% Export -Oriented Unit (EOU), has established a project to grow flowers for export; that they were allowed to import capital goods worth Rs. 325 lakhs free of Customs duty; that their project became a failure as the same was not financially viable on account of loans sanctioned by RIICO for the project not having been disbursed; that the Commissioner under the impugned order has confirmed the demand of duty in respect of capital goods imported by them; that the goods imported by them fall squarely under Notification No. 61/93 -Cus., dated 28 -2 -93 and since the requirement of the said Notification having been fully satisfied by them, the duty should have been worked out by the Commissioner after extending the benefit of said Notification; that it is well settled law that if more notifications than one, are available to as -sessee, he is entitled to the benefit of that Notification which leaves him with least burden of tax; that therefore, the benefit of Notification No. 61/93 ought to have been extended to them.

(3.) Countering the arguments Shri U. Raja Ram, learned Departmental Representative, submitted that the Appellants had imported capital goods without payment of duty in terms of Notification No. 126/94 -Cus., dated 3 -6 -94; that Notification No. 61/93 -Cus. was only claimed by them in respect of one Bill of Entry and the benefit of said Notification was not even claimed by the Appellants in the subsequent Bills of Entry; that therefore, the benefit of said Notification cannot be extended to them. He, further submitted that Notification No. 61/93 exempts the goods specified in the table below the Notification when imported into India for being used in the green house subject to the condition that at the time of import of goods, the importer produces a Certificate from an officer not lower in rank to the Deputy Secretary to the Government of India in the Ministry of Commerce to the effect that said goods are required for the said purpose; that the appellants have not produced any such Certificate as contemplated in Notification No. 61/93 -Cus. and as such the benefit of Notification is not available to them; that moreover, the goods imported by them are not covered by the description of goods mentioned in the table below the Notification. He also pointed out that the appellant unit is a 100% Export -Oriented Unit only and a letter of permission accorded by the competent Authority is for 100 % export -oriented unit for the manufacture of fresh flowers and pot flowers etc.; that as the project has not been implemented by the Appellants, they are liable to discharge the duty liability which was foregone at the time of importation of the goods and penalty is also imposable; that the Ministry of Commerce, NEPZ NOIDA, under letter dated 7 -9 -2000 addressed to all the Commissioners of Customs and Central Excise has intimated that as per provisions of Letter of Intent/Letter of permission, approval given to the Export -Oriented Unit lapses automatically after completion of 3 years from the date of its issue if the units have not implemented their projects; that accordingly the duty of customs not paid by the appellants at the time of import of the goods is liable to be paid and penalty is imposable.