Page 189 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] JOY’S THE BEACH RESORT PVT. LTD. v. COMMISSIONER OF CUSTOMS, CHENNAI 723

ization holder, Regional Authorities of DGFT and Customs Authorities in
addition to existing conditions :
(a) Customs authorities will endorse in “Bill of Entry” while clearing such
vehicles that such vehicles have to be registered as a vehicle “for tour-
ist purpose only”. This would make purpose of import of vehicles ab-
solutely clear and would also facilitate registration.
(b) In all past cases where Export Obligation Discharge Certificate
(EODC) has not been obtained by 30-6-2008 and where vehicles were
not registered as Tourist Vehicles, EPCG authorization holders will
get them registered as Tourist Vehicles, by 31-8-2008. Regional
Authorities of DGFT will monitor and ensure compliance.
3. This issues with the approval of DGFT.”
8. From the above clarification, it can be seen that an importer/assessee
could get the vehicles registered as tourist vehicle on or before 31-8-2008 and also
if the EODC has not been issued within 30-6-2008. In the present case, the appel-
lants have converted the registration to tourist vehicle much before issuance of
EODC.
9. The second allegation is that the appellants have not earned foreign
exchange exclusively by the use of the imported vehicle. In the case of Commis-
sioner of Customs v. Hotel Excelsior Ltd. - 2016 (336) E.L.T. 595 (Del.), the Hon’ble
High Court of Delhi held that as long as foreign exchange is earned by the hotel
and the imported cars are used for hotel purpose, there would be no violation of
any statutory requirement and it is not necessary that the foreign exchange has to
be exclusively earned by using the vehicle. The E.P.C.G. license does not envis-
age that the amount collected by use of the imported car only has to be account-
ed towards fulfilment of export obligation. Similar view was taken in Air Travel
Bureau Ltd. (supra).
10. The Tribunal in the case of Narang International Hotels Pvt. Ltd. (su-
pra) had occasion to analyse a very same issue with regard to import of luxury
cars. Relevant paragraphs of the said decision are reproduced are under :-
“11. We are not in doubt that the facts unearthed by the investigators do
evidence use of the imported cars for personal use and for purposes other
than earning of foreign exchange but that, to the extent that such use is not
violation of the conditions of import in the scheme or in the corresponding
exemption notification, does not suffice to conclude that the vehicles were
not used for the purposes for which import at concessional rate of duty was
permitted by the authorization.
12. Appellant-company has applied to the licencing authority for issue of
Export Obligation Discharge Certificate (EODC). Such application does not
terminate the validity of the authorization or to accrue credit of further
earning of foreign exchange in the manner envisaged in the scheme to meet
any shortfall in achievement of obligation that may yet be determined by
the licensing authority. It is not in doubt that the licensing authority is
competent to determine that export obligation has been discharged. That
such authority is vested as the final authority to do so is amply clear in the
decision of the Hon’ble High Court of Bombay in Bhilwara Spinners v. Union
of India [2011 (267) E.L.T. 49 (Bom.)] holding thus :
‘22 Once the licencing authority has found that the licencing con-
ditions have been fulfilled, it would not be open to the customs au-
EXCISE LAW TIMES  1st June 2020  189