Case Law Details
Adani Ports And Special Economic Zone Ltd. Vs Union Of India (Gujarat High Court)
Conclusion: Demand notice demanding duty to the tune of Rs. 25,03,414/- on the basis of bill of entries filed for imported second hand equipment on the ground that assessee had contravened the provisions of DFSECC Scheme benefit of exemption under the Notification No.54/2003 was not sustainable as after issuance of demand notice, no steps had been taken by Authorities in furtherance of the aforesaid notice and almost after 11 years, assessee would be justified in forming a bonafide belief that the demand notice must have been dropped.
Held: Assessee-company was engaged in the business of developing, operating and maintaining the Port and Port based related infrastructure facilities, including multi product Special Economic Zone. In the year 2004, it imported certain second hand equipment’s, i.e. capital goods/professional equipments. This led to issuance of the Demand Notice dated 2.8.2007, demanding duty to the tune of Rs.25,03,414/- on the basis of bill of entries filed for imported second hand equipment. It had been alleged that assessee – company in spite of availing the benefit of Notification No.27/2002, had debited the same duty under DFCE Certificate in terms of Notification No. 54/2003 – Cus., dated 1.4.2003. In the Demand Notice, it was the case of Revenue that the capital goods imported by assessee–company on re-export basis and assessed to duty at concessional rate under Notification No.27/2002, the ownership of the goods was not vested in assessee and in view of the condition No.2 of the Notification No. 54/2003 dated 1.4.2003 as amended, the goods so imported against the license issued to assessee-company should not be transferred or sold. Assessee had contravened the provisions of DFSECC Scheme benefit of exemption under the Notification No.54/2003 awarded was not admissible. It was held that the goods in question under import had not been transferred or sold to any other person, but the same had been re-exported after their actual use in the premises of assessee–company. Further, held that the petition deserved to be allowed by quashing the Demand Notice dated 2.8.2007 considering the aspects, firstly, that after the issuance of Demand Notice dated 2.8.2007 and filing of the reply dated 8.10.2007, no steps worth the name had been taken by the Revenue in furtherance of the aforesaid notice; secondly, that no fault had been attributed to assessee for the delay in adjudication of the notice; thirdly, that almost after 11 years, assessee would be justified in forming a bonafide belief that the notice dated 2.8.2007 by now must have been dropped; fourthly, that to expect the petitioners to preserve the relevant document and evidence, in absence of any intimation of keeping the notice in abeyance, is an expectation too far fetched; and lastly, for the petitioners to gather all the records and in absence of sufficient record/assistance of the concerned employees/officers working at the relevant point of time, it would not be possible for the petitioners to defend the case properly.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. With the consent of the learned advocates for the respective parties, the matter is taken up for final disposal.
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