+ Owing to non-response by the appellant to the show-cause notice and their non-participation in the personal hearing on the prescribed dates, the impugned order has been passed ex parte. Despite this evident default on the part of the appellant being put forward as justification for not deferring a long-delayed matter, the adjudicating authority is not absolved of its responsibility to ensure a fair prosecution of the dispute by re-scheduling the personal appearance. It would appear that the adjudicating authority having initially fixed the date for 12 December, 2014 proceeded to fix another date well in advance of that requested by the appellant. We are constrained to note that, in his eagerness to dispose off the adjudication, the Commissioner has taken great pains to contrive the crossing of the hurdle - 'the three adjournments' - by scheduling two alternative dates in one single notice. Adjudicating authorities should display diligence in complying with the principles of natural justice that are the foundation of legality instead of rendering lip service to the semantics, however laudable may be the motive. Such disregard is contrary to section 122A of Customs Act, 1962 and vitiates the detriment visited upon the appellant.
+ The allegation of diversion of one of the 'crawler cranes' is premised upon condition no. 2 of paragraph 2 of the exemption notification. Learned Authorized Representative contends that the transfer referred to in the notification supra has been contravened as it was found to be deployed at another location. It would appear that Revenue conjectures that any locational displacement can be presumed to be a transfer. We do not find this trend of thought to be tenable because of the manifold modes by which transfer may occur; as the goods under the scheme are importable by actual users, it necessarily follows that such goods should remain in the physical possession and control of the importer till the export obligation has been duly discharged. Transfer of installed machinery to another entity or location may be sufficient to infer that the condition has been breached. It is not reasonable to expect mobile 'crawler cranes' to be subject to such an inference. Movable capital goods, exempted as they are from the requirement of permanent installation, cannot be denied deployment whenever and wherever required in pursuance of the objective of the scheme. The scheme is endowed with the inherent flexibility of utilization even for domestic use in the midst of complying with the export obligation. Location of the cranes at another site, admittedly belonging to the appellant, is not the transfer contemplated in condition no.2 of the notification. The findings of the adjudicating authority on both these counts are erroneous.
+ The appellant operates under a valid license and it is for the licensing authority to monitor and certify that the prescribed export obligation has been complied with. A valid licence, with validly approved amendments, is beyond the scope of scrutiny by customs authorities; having requested the licencing authority to withdraw the authorization, the adjudicating Commissioner should not have proceeded to precipitate matters at that stage.
+ The authorization to the importer having been issued by the competent authority and amended by a Committee empowered to do so, it is not open for any other agency to question the bona fides of the license. A Larger Bench of this Tribunal has held, in Rainbow Silks Vs Commissioner of Customs (Exports), ACC, Mumbai- 2015-TIOL-2344-CESTAT-MUM-LB, that Customs authorities are competent lo initiate action against offending goods even in matters of violation of the Foreign Trade Policy. However, such an empowerment does not extend to questioning the scope of a validly issued license but is to be invoked for contraventions arising from the failure to discharge obligation or the conditions of import. Therefore, and in consequence, it is not open to the Customs authorities to withdraw the benefit of exemption or to curtail the period within which export obligation is to be fulfilled.
+ Impugned order is set aside and appeal is allowed.
(See 2017-TIOL-332-CESTAT-MAD)
