Page 190 - ELT_1st June 2020_VOL 372_Part 5th

724 EXCISE LAW TIMES [ Vol. 372

thorities too contend that the imports under the licence are contrary
to law and take action against the licence holder.’
Consequently, while the ‘proper officer’ under the Customs Act, 1962 can
initiate action for breach of conditions of notification, a certification of com-
pliance with conditions of licence cannot be ignored or substituted by sepa-
rate findings to the contrary. The adjudicating authority, in rendering the
finding that export obligation has not been fulfilled, has erred in pre-
empting a decision by the statutory authority vested with that responsibil-
ity. The exemption notification itself in Paragraph 2(2) allows a period of six
years from date of licence, i.e. up to August, 2013, as the first reporting
block, to fulfill the export obligation; and we notice that seizure was effect-
ed and importers directed to justify the imports well before that deadline.
For the reason of not having awaited the completion of the deadline pre-
scribed in the exemption notification for compliance with first report of
prescribed proportion of achievement of obligation and of deciding on the
extent of achievement of export obligation without proper authority, we
find that the proceedings are not legally sustainable.”
In the present case, the appellant having been issued EODC on 12-6-2018 by the
Jt. D.G.F.T., Trivandrum, the department cannot proceed to recover the duty for-
gone at the time of import, alleging non-fulfilment of conditions of EPCG license.
11. From the foregoing discussions and also following the decisions cit-
ed supra, we are of the considered opinion that the demand cannot sustain. The
impugned order is set aside and the appeals are allowed with consequential re-
lief, if any.
(Operative part of the order was pronounced in open Court)

_______

2020 (372) E.L.T. 724 (Tri. - Chennai)
IN THE CESTAT, SOUTH ZONAL BENCH, CHENNAI
[COURT NO. III]
Ms. Sulekha Beevi C.S., Member (J)
GAURAV AGARWAL
Versus
COMMISSIONER OF CUSTOMS, TIRUCHIRAPALLI
Final Order No. 41733/2019, dated 18-10-2019 in Appeal No. C/41798/2016-SM
Smuggling of silver - Confiscation and penalty - Silver granules of
foreign origin - Burden of proof - Silver granules fall within the definition of
“silver bullion” - Silver granules found in carton boxes specifically mention-
ing the name of foreign manufacturer, lot nos., date of manufacture, etc. -
Markings on the boxes clearly indicated the silver granules to be of foreign
origin - Burden shifts on to the appellant to show how the markings do not
relate to the silver contained inside the boxes - Foreign markings on the carton
boxes/packings relate to the silver granules contained in them and, therefore,
EXCISE LAW TIMES  1st June 2020  190