F.NO.9J2741AM15/ECA Date : Order-in-Original

Transcription

1 " c) GOVERNMENT OF INDIA MINISTRY OF COMMERCE & INDUSTRY OFFICE OF THE JOINT DIRECTOR OF GENERAL OF FOREIGN TRADE 6TH FLOOR. RESHAM BHAWAN. LAL DARWAJA, SURAT ; Tel: Tele fax; F.NO.9J2741AM15/ECA Date : Order-in-Original Any person/party aggrieved by this Order, may under Section 15 of the Foreign Trade (Development & Regulation) Act, 1992 file an appeal against the same to appropriate authority viz. The Additional Director General of Foreign Trade, Ahmedabad. Appeal shall be fited wilhin 45 days from the date of receipt of this Adjudication Order and a complete set of evidence in Ihe form of the Annexure to the appeal relied upon in support of the appeal. Any person/party desirous of filing an appeal against this order shall deposit the penally amounl and produce proof of payment of penalty amount along with the appeal to Ihe Appellate Au1hority failing which the appeal is liable to be rejected for ncn-compllance of the provisions of Section 15 of the Foreign Trade (Development & Regulation) Act, The penalty amount is to be deposited under the Head of Accounl 1453 Foreign Trade & Export Promotion Minor Head 102 other receipts, fines and penalties etc. Import & Export Control Organistion". Evidence of payment of penalty or appeal is required to be finished to the Adjudicating Authority within 45 days from the date of service of this Adjudicalion Order, failing which the Importer Exporter Code No. of the person/companies/other entities concerned is liable to be suspended and penalty amount shall be recovered as an arrear of land revenue under the provisions of Section 11 (4) of the Foreign Trade (Development & Regulation) Act, 1992 without making any reference to them. A Show Cause Notice No. 9/274/AM151ECA dated under Rule 7(1)«(:) of Foreign Trade (Regulation) Rules, 1993 and Section 8 of Foreign Trade ( Development & Regulation) Act, 1992 for suspension of operation against EPCG Authorisation No dt with immediate effect was issued under Section 9(4) of the Foreign Trade ( DevelOPment and Regulation) Act, 1992 pending finalization of the proceeding for cancellation of the same. An opportunity of personal hearing was also granted on Neither the personal hearing was availed nor the firm submitted any documents as called for by this office The noticee firm did not submit original EPCG licence and Installation certificate as per para of Hand Book of Procedures An opportunity of personal hearing was again granted on... 2/-

2 but the nolicee firm did not submit the original EPCG Authorization and export documents for discharge of export obligation nor appeared for personal hearing. The Show cause notice sent to lhe firm was returned back by the postal authorities with remarks Not Known. The cause of the notice arose as it was brought to the notice of this office by Directorate of Revenue Intelligence, Regional Unit Gurukrupa Buildlng,Sangna Soceity, Rander Road Surat that the noticee firm Mfs, NARAYAN FASHION., 115, MUKTANAND CO.HO. SOC., VESU, SURAT had Imported 10 Computerised Embroidery machines under the above said EPCG Authorisation and sold the same in domestic market. FACTS OF THE CASE: The noticee firm MIs. NARAYAN FASHION., 115, MUKTANAND CO.HO. SOC., VESU, SURAT have obtained EPCG Authorisation No date for import of 10 Nos. of Computerised Embroidery machine for a duty saved value of RS.10363B2/- with a condilion to export Embroidery Fabrics for an FOB value of RS.B291056/- (US$ ) within a period of 8 years from the date of Issue of the EPCG authorization. tn their application the manufacturing unit address was MIs NARAYAN FASHION., B.NO.119/120, 1 ST FLOOR, MAHADEV NAGAR IND. CO.OP SERVICES P.NO.14/A-1, NEAR GEETANJALI CINEMA, VARACHHA ROAD, SURAT, GUJARAT The Authorisation was issued with Actual User condition. It was brought to the notice of this office by Directorate of Revenue Intelligence, Regional Unit Gurukrupa Building,Sangna Soceity, Rander Road Sural thai the noticee firm MIs. NARAYAN FASHION., 115, MUKTANAND CO.HO. SOC., VESU, SURAT had imported 10 Computerised Embroidery machines under the above said EPCG Authorisation for a duty saved value of Rs /- and sold the same in domestic market. The application made by the noncee firm contained the following declaration/undertaking: (1). I/Vlle hereby declare thai the particulars and the statements made in this application are true and correct to the best of my/ouf knowledge and belief and nothing has been concealed or held therefrom and. if proved incorrect or false will render melus liable for any penal action or other consequences as may be prescribed in law or otherwise warranted.. (2). IflNe understand to abide by the provisions of the Foreign Trade (Development & Regulation) Act, 1992, the Rules and Orders framed thereunder, the Foreign Trade Policy, the Handbook of Procedures and the ITC (HS) classification of Export and Import items.... 3/- -2-

3 ("..j (3) I/We hereby certify that none of the ProprietorJ Partner(s)/ Director(s)/KartalTrustee of the firm/company, as the case may be, is/are a Proprietor/Partner(s)/Director(s)/KartalTrustee in any other firm/company which has come to the adverse notice of DGFT. (4) I/We hereby certify that neither the Registered Office/Head Office of the finn/company nor any of its Branch Office(s)/Unit(s}/Division{s) has been declared a defauller and has otherwise been made ineligible for undertaking import/export under any of the provisions of the Policy. -3- ( 4 A) IM/e hereby certify that our applicant firm/company is NOT currently availing any benefits under Technological Upgradation Scheme ( TUFS) administered by Ministry of Textiles, Governmenl of India. (applicable to zero duty EPCG Scheme only) ( 4 B ) IflNe hereby certify that our applicant firm/company is NOT availed and shall not avail the benefits of Status Holder Incentive Scheme under Para 3.16 of FTP in the current year (applicable to zero duty EPCG Scheme only).i/ We hereby declare that I/we have perused the list of SCOMET items as contained in the Appendix 3 to the Schedule 2 of the ITC (HS) Classifications of Export-Import Items, and that the item{s) exported / proposed to be exported does not fall within this lisl and that 1/ We agree to abide by the provisions of Ihe Policy for export of SCOMET items contained in the Foreign Trade Policy, Schedule 2 of ITC (HS) and the Handbook of Procedures (Vol.1). irrespective of the scheme under which the item is exported I proposed to be exported (the underlined portion will be deleted in case an application for export license for SCOMET item is being filed). (5) I/We declare that no export proceeds are outstanding beyond the presctibed period as laid down by the RBI, or such extended period for which RBI permission has been obtained....4/-

4 (~) 4- (6) INlie hereby declare that the capital goods/spares sought for import in the application are actually required for use at pre production/production/post production stages for the export producl(s) or fer rendering services for fulfilmerrl of export obligauon. (7) I/We hereby declare that in respect of goods for which nexus is not established at a later date, IfWe shall pay to the Governmenl Customs duty saved together with 15% i.,iarest on such imported goods which are found having no relation with product exported or service rendered. (8) I/We hereby declare that in case of import of refurbished/reconditioned spares, the refurbished/reconditioned spares have a residual life which is not less than 80% of the life of the original spares. (9) IMle hereby declare that IfINe do not come under the purview of Service Tax and therefore are not registered with the Service Tax Cell of the Jurisdictional Central Excise Aulhorities. (in case of Service Providers who are not covered under service tax). (10) IlWe hereby declare Ihat Itwe shall not exceed the SSI inveslment limit in plant and machinery after making imports under the EPCG Authorisation (applicable in cases of imports made by SSI sector). (11) IfWe hereby declare that the import of capital geods shall be used for building and operating shopping malls/super markets having a minimum covered area or 1000 sq metres. (applicable in case of imports made by Retail sector). (12) IfWe hereby declare that IMle have not made imports under the Technological UpgradaUon Scheme previously before any licensing authority and the present imports of Capital Goods La be made under this Scheme ( for shieh this application is made ) are more than 10% of the my/our present investment in the plant and machinery ( applicable in case of Imports under EPCG Technological Upgradation Scheme) (13) INVe hereby undertake to submit a self certified copy of Drug Manufacturing licence in case of export of Pharmaceutical Products with a period of three years..5/-

5 c'.) -5- from the date of issue of EPCG Authorization failing which the Bank Guaranteel Legal undertaking executedl furnished at the time of clearance of Capital Goods with Customs authorities { Regional Authorities of DGFT as the case may be is liable to be forfeitedl invoked and IMla would be liable to Customs Duty saved amount together with applicable interest thereon from the date of firsl import tuithe date of final payment. (13 A) I hereby certify thall am authorised to verify and sign this declaration as per Paragraph 9.9 of the Policy Whereas the said application was registered under file No. 52f21/021/00041/AM14 and considered on the basis of declaration/undertaking and its supporting documents by the licensing authority in terms of Chapter 5 of the policy Accordingly, the EPCG authorization NO dt was Issued with port of registration as "Saehin ( Surat) ( INSAC6) " with the following conditions:- J. TIllS Authorization has been issued under Chapter 5 of tho: Foreign Trade Policy I 4 and carries an export obligation to make physical exports to GCA countries or to render services as the case may be, and realize the export proceeds in freely convertible currency. 2. The issuance of the Authorization shall be subject to the conditions/parameters IlS laid down in Chapter 5 of the Foreign Trade Policy and Handbook of Procedure This Authorisation wih be operative as per the provisions of Foreign Trade Policy and Handbook of Procedure or as per any other law/provisions for the lime being in force. 4. This Authorization shall be utilized ill accordance with the provisions of the Foreign Trade Policy and the concerned Customs Notification No dated : Capita! Goods as defined in Para 9.12 (read with Para 5.1) of Foreign Trade Policy , only shall be allowed for imports/domestic procurement against this Autnorization. 6. The Authorization Holder shall be under obligation to Export Hem as per details given below: SR. ITCHS Export Item Name CODE SYNTHETIC/RAYON FABRICS WITH EMBROIDERY,EMBROID~RED TEXTILES...6/ I l.

6 C) 7. The Export Obligatioo shall be worth USS.I i.c. 8 times of the duty saved on import of Capital Goods on FOB basis withln a period of 8 years (Block Year Ist 10 6th year - 50% and 7th to 8th year- 50%) reckoned from the date of issue of this Authorization. The Authorization holder shall furnish proof of exports within 90 days of completion of each block. 8. Export Obligation shall be full filled by the authorisation holder through export of goods which are manufactured by him or his supporting manufacturer I Services rendered by him, for which the EPCG authcrlsaticn has been granted. 9. Authorization Holder shall also be required La maintain Average Level of Exports achieved in the preceding three licensing years for the same and similar products mentioned in Para 6 above. The annual average of the past export performance to be maintained by the Authorization Holder is Rs. 0.00, 10.The Authorization Holder may discharge the export obligction by way of direct exports as well I1S through third party exports. EPCG Authorisation number and dale shall be mentioned on all export documents of shipments pertaining to EO fulfillment of the EPCG Authorisation. II. The Authorization holder shall have La fulfil export obligation as per Para 5.5 of Foreign Trade Policy read wjih Para 5.7 of the Handbook of Procedure In case, authorization holder has supporting manufocturet(s), the name of the supporting manufacturerts} shall also be indicated ill Shipping Bills. 13. ImportlProcurement of cepital goods under this authorization shall be subject to Actual User Condition. 14. Import/procurement of second hand capital goods are not allowed under EPCG Authorization. 15. The Capital Goods are to be installed pl the following.. address:...~..- J~II~e ; ~~.~~~~~~ ~f ~e's~p.~.?~~!m~!lui~ci~r.~ r , ~F _..._..... SI.No; arne Address 1116 {II... ":":~Pe:~egi8~~:~ :.; 16. The Authorization holder shall submit Installation Certificate to the Regional Authority within 6monLhs from the date of completion of imports/domestic procurement against the subject Authorization. ;.. o. : Ott:.. I...w,"'-' _._._. _ ! --- B.NO:119/120,lST FLR,MAHA DEV ARA YAN NAGAR.lND.CO.OP SERVICF..S,P.No:, : I FASHION 14/A-I,Nr. GEETANJALI S8I ;CINEMA,VARACHHA.90120, ~ ; j!rd,sura T , j...--' '..71- i I ii i-

7 -7- J 7. In caseof import of Spares, the Installation Certificate shall be submined by the Authorization holder within a period of 3 years [rom the date of import/domestic procurement (Para (h) of HBP, ). 18 Besides Ihe above conditions, the issue of Auihorlzation shall be subject to all other relevant conditions/parameters of Foreign Trade Policy and Handbook of Procedure ( ). Any violation of this, shall be subject to penal action as envisaged in FTPIHBP and FT(D&R) Act. FINDINGS The noticee finn has been given sufficient opportunity to explain their case in person, but they have not cared to come forward with proper Justification for their action. Hence. it is revealed that the nolicee had a clear mensrea right from the point of making of application to obtain EPCG Authorisation by misdeclaralion in violation of the Rule 14 of the Foreign Trade (Regulation) Rules, These acts of the noticee call for action under Rule 10 of ltle Foreign Trade (Regulation) Rule, I, therefore, in exercise of powers vested in me under Section 13 of the Foreign Trade (Development & Regulation), Act 1992 make following order by invoking Section 9(4) and Section 11(2) of the Foreign Trade (Development & Regulation) Act, ORDER:- I impose a fiscal penahy of Rs.29,99,265/- ( Rupees. Twenty Nine Lakh Ninety Nine Thousand Two Hundred Sixty Five only) on the firm and its Proprietor. They are collectively and severally liable to deposit the said penally amount along with custom dl!ty plus interest for the capital goods imported. This Order is issued without prejudice to any other action that may be taken under any other Act, Rules or Regulations in force. ( Abhimaniu Sharma ) Dy. Director General of Foreign Trade. Copy to:- / t '\ 1. MIs. Narayan Fashion,115,Muktanand Co.Ho.Soc.Vesu,Surat r U '< 2. Factory address: Mis. Narayan Fashion,B.No.119/120,1>1Floor,Mhahadev Nagar Ind.Co.Op.Services P.No.P.No.141A-1~e8r Geetanjali Cinema.Varachcha Raod,SuratIGujarat-39500B..-' ~ X J Shri Nayaran Siggh Bharat Singb RaiRut, Proprietor, 115,Muktanand Co.Ho.Soc.Vesu,Surat G~.> / (/t-. 4. Additional Director General of Foreign Trade, New Delhi for informa~on.'-\..). I 5. Zonal Addl. DGFT, Mumbai and Ahmedabad. ' ~Joint DGFT, Vadodara, Pune~t, BhopaV Goa.-c tel 7. All the Custom Authorily. II, 8. Central Economic Intelligence Bereau.t", 6 11l & 8 th Floor,'B' Wing,Janpath Bhawan,Janpath,New Delhi /(\<S;" q5c\o~.. (,.---~ 'l~'t:;\\(,.