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Facts –

The Appellant, M/s. Kalinga Commercial Corporation, entered into mining contracts with Odisha Mining Corporation Ltd. (OMC) for raising iron ore at three mines belonging to the OMC in the State of Orissa.
The appellant imported capital goods by claiming exemption under Notification No. 97/2004 which were seized by the DRI on the ground of violation of ‘Actual User Condition’ i.e., the imported machines were used in premises other than the ones mentioned in the authorization.
A show cause notices were issued rejecting the EPCG licenses and to put appellant in the denied entity list and proposing to recover the amount of duty saved at the time of import of Capital Goods, along with interest and penalty.

Issue –

Order –

The Divisional Bench of Hon’ble High Court observed that the Hon’ble Apex Court in the case of Commissioner of Customs Vs. Indian Rayon & Industries Ltd. 2008(14) SCC 228 it was hold that assessee cannot approbate and reprobate. Hence on facts, the said authority does not support Revenue’s case.
Further in the case of Commissionerr of Customs Vs. Pennar Industries Ltd. (2015) 10 SCC 581, the goods were raw material and not capital goods. Hence, the ratio of the said authority is applicable to the facts of this case. The Court followed its own decision in case of Aditya Birla Nuvo and held that the decision of ADGFT is final. Therefore, the authority relied upon by the Revenue does not support its contention.
In Sheshank Sea Foods, it was held that the provisions of import-export policy do not take away the power of Customs Authority. The writ petition filed by the assessee was dismissed by the Hon’ble Single Judge and the writ appeal by the Division Bench. In such circumstances, the Apex Court has held as aforesaid. In contradistinction, in the case on hand the ADGFT has adjudicated the matter and allowed the appeal. Therefore, the said authority does not support Revenue’s case in any manner.
Hence the appeal filed by the appellant is allowed and revenue’s appeal dismissed.

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