In the significant case of Hyundai Motor India Limited, the Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) set aside an order denying duty exemption due to a 9-year delayed by the Additional Director General of Foreign Trade (ADGFT) on customs exemption application for capital goods import under Export Promotion Capital Goods (EPCG) Authorization.
The appellant challenged the order whereby the Commissioner of Customs has ordered the denial of duty exemption availed by the assessee in terms of EPCG Authorisation Licence No. 0430009220 dated for the import of capital goods under Notification No. 102/2009 dated 11.09.2009.
It was submitted that the assessee had fulfilled the export obligation prescribed under the above Notification and the certificate of the chartered accountant of the appeal memorandum supports their contention; however, the above Notification does not anywhere mandate the production of EODC by the appropriate authority, but it is only as a matter of convenience that such EODC are obtained and filed before the Customs authorities.
It was argued that upon fulfilment of the export obligation, they had submitted along with all relevant documents to the authority, namely, the Additional Director General of Foreign Trade (ADGFT), Chennai, requesting for issuance of EODC, but they did not receive any communication from the said authority.
On the other hand, the Deputy Commissioner has relied on the findings in the impugned order. He would also invite our attention to the content of the letter by the ADGFT, Chennai, wherein the said authority has indicated that the assessee had not fulfilled their export obligation, by violating condition No. 6 of Annexure-A and that the assessee’s letter dated 08.08.2014 did not contain any documents said to have been submitted, rather the same appears to be meant for general correspondence only. It was viewed that when an application for discharge is submitted before an authority, any shortcomings in such application should be essentially communicated to the applicant alone, thereby seeking clarifications. Admittedly, the appellant’s application is dated 08.08.2014. It is not for the authority to persuade the departmental officers as to the liability or otherwise of an applicant to Customs duty, as indicated in the unrebutted communication issued by the Zonal ADGFT, which is also relied upon by the lower authority.
The Commissioner has further observed that more than nine years had lapsed, but has not found fault with the assessee; as the record placed before us speaks that the assessee had claimed to have fulfilled export obligation, filed a necessary application with documents with the concerned authority, namely, ADGFT. A two-member bench of Mr P Dinesha, Member (Judicial) and Mr M Ajit Kumar, Member (Technical) viewed that the bonafide of the assessee is evident from the ADGFT neither issued certificate nor has issued any communication highlighting the shortcomings, if any, to the appellant from the said application.
The CESTAT set aside the order and directed the lower authority to await the certificate that may be issued by the authority, namely DGFT, as ruled by co-ordinate Benches of the Tribunal, in the interests of justice.