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.111\ ~",,4. (;O\TI{~l\'1F"rr OF I\I)IA VlI~ISTRY OF CO\l \IFRCI·. OFFICE OF ADDITIONAL DIRECTOR GENERAL OF FORVIC~ TRADE NISHTA BHAVAN (NEW CGO BLDG.), NEW , CHlIRCHGATE, -400020 APPEAL DiVISION

Appeal File No: 03/J6/144/00l)6/AM.IS Date: 2S.03.20 19

Name of the Applicant Mis. BASF Construction Chemicals (India) Pvt. Ltd. Plot No. C-68. MIDC. Belapur Road. Turbhe. - 400613.

Order Appealed Against Order-in-Original l\Jo. OJ !C)~/()-Hl'()(I())7()I!\. 1.07 Dated 23.02.20 18 passed hy [». D(jF'!'. Mumbai.

ORDER-IN-AI>PEAL

Passed by Smt. Meeta Rajivlochan, Appellate Authority and Additional Director General of Foreign Trade, Mumbai.

Present on behalf Mr. Rahul Lirnaye Senior General Manager. Of Appellant

This appeal is preferred on 16.03.2018 against Order-in-Original No. 03/94/0401000579/AM.07 dated 23.02.2018 passed by Oy. DGFT. Mumbai.

The relevant brief facts of the case are as under:

I. MIs. BASF Construction Chemicals (India) Pvt. Ltd. (Formerly known as Mis. Degussa Construction Chemicals (India) Pvt. I.td.). holding lEe No.0396047076 situated at Plot No. C-6~LM.IIK. lhanc Belapur Road. Turbhe. Navi Mumbai - 400 613. hereinafter referred to as "Appellant". had applied and obtained an Advance Authorisation for Deemed Exports No. 0310398329 dated 06.09.2016 vide Amendment Sheet No.J dared 2J.ll.2()07 attached tu the authorisation for import of' 4 items lor Iota I Cil value of Rs.--L2::UU.028/- l.uro 71.36,738.00 subject to fulfilment or export obligation to export two e:

items lor I·on \ nluc pI' RsA.S2.23. n(l - tel be fulfilled within a period

nl' 24 months.

"') It was noticed that the appellant was asked to submit original documentary evidence in discharge or their fulfilment of export obligation but the appellant failed to submit the required documentary

l'\ idcncc 1,.'\ 1..'11 ;dkr till' l"'piry or the export obi igation period, Hence. the appellant was issued a Demand Notice on 29.06.2011 with an opportunity of personal hearing within 15 days. Since there was no response from the appellant, they were issued a Refusal Order on 13.02.2013 for disallowing further issuance of authorization of any catcgor) and/or disallowing renewal of existing Authorisations under Rule 7 of the Foreign Trade (Regulation) Rule, 1993. The appellant was again reminded vide Show Cause Notice dated 11.01.2018 to appear for personal hearing on 31.01.2018 before the adjudicating authority.

3. Despite repeated reminders to the appellant, nobody appeared for personal hearing nor any communication received from the appellant. A reminder letter dated 17.01.2018 was issued to avail the benefit of Public Notice No.34/2015-2020 dated 24.10.2017 issued by thc DGFT. New Delhi and appear for personal hearing on 31.01.2018. The appellant did not appear for any personal hearing granted to them nor had they complied to the deficiencies and submitted any original documentary evidence. Therefore, adjudicating authority had to take a decision on the basis or documents available on record.

4. The Adjudicating Authority passed an order dated 23.02.2018 imposing a fiscal penalty of Rs.5,00,00,000/- (Rs. Five Crores only) as the appellant neither submitted relevant original export documents nor appeared lor any personal hearing granted to them.

5. Aggrieved by the aforesaid Adjudication Order dated 23.02.2018 passed by the adjudicating authority, the appellant has preferred thi-. appeal under Scctiun I':; \11' the lli" FOI\:i!lll l rudc

(Development

6. An opportunity of personal hearing was granted to the appellant on 01.08.2018. The appellant vide letter dated 30.07.2018 submitted on 31.07.2018 requested to grant them three months time to submit export documents. Second opportunity of personal hearing was given on 17,08.2018. Mr. Rahul l.irnayc. General Manager of the firm "premed before the then Addl. DGFT on :27.08.2018 and requested to adjourn personal hearing till 30.10,2018. Third opportunity of personal hearing was granted on 02.11.2018 which was postponed to 12.11.2018. Mr. Rahul Limaye. General Manager of the firm appeared before the then

Addl. DGFl on 12.1 I.:W18 and stutcd th.u lil\.:) urc r\.·;ld~ 1(1 pu: customs duty with interest on excess import and also requested to issue letter addressed to customs so that they can pay customs duty with interest. The appellant was granted opportunity of personal hearing on 27.02.2019, Mr. Rahul Limaye, General Manager of the firm. appeared before me and stated that he has already paid customs duty and submitted challans issued by customs authority.

7, The appellant vide letter dated 04.0J.201~ submitted on 04.01.2019 along with copies of challans issued by customs and stated that thcv- have rc-arranucd~.., the rcuuircd documents lor clnsurc and submitted the application for redemption in this office on 23.10.2018. (Copy of acknowledgement enclosed). They further stated that they have paid the customs duty on excess import as well as paid the fees for shortfall in achieving positive value addition and submitted the copies of Customs challans dated 13.11.2018 lor Rs.7744/-. 6lJ30'-. 62928/-,233065/-, towards duty with calculation sheet. Findings:-

After going through the adjudication order as well as the documents availahle on record and after due application of mind. I lind that the appellant had applied for redemption and also paid the customs duty on excess import as well as paid the fees for shortfall in achieving positive value addition and submitted the copies of Customs challans dated 1,\.1 ~.~() 1~ lor Rs.77~~·-. (,L)_;Ui-. 62()~X/-, 233065.1-. towards LIlli) \.\itl: calculat inn sheet.

In view of the above and in the interest of natural justice. I. in exercise of the powers vested in me. under Section 15 of the Foreign Trade (Development & Regulation) Act. 1992. as amended. pass the

following order: ORDER

I. The Order-in-Original No.03/94/0401005791 AM07 dated 23.02.2018 passed by the Dy. DGFf ,Mumbai is set aside.

2. The Advance Licensing File No.03/94/040100579/AM07 is remanded back to the adjudicating authority for closure of the file. The case should be disposed off within 30 days.

3. The Appellant to approach the concerned Adjudicating Authority for closure of the case.

~ (Meeta Rajivlochan) Additional Director General of Foreign Trade

To.

I. Mis. BASI-' Construction Chemicals (India) Pvt. Ltd. Plot No. C-68, MIDC, Thane Belapur Road, Turbhe, Navi Mumbai - 400613.

2. Licensing SectionIPost Adj. & Recovery Cell.

.l. rxnr. Ne\.\. Delhi.

4. Commissioner of Customs.

5. All concerned.