[1] I confirm Customs duty amount of Rs. 7,28,36,106/- (Rupees seven crores twenty eight lakhs thirty six thousand one hundred six only) under Section 28 of Customs Act, 1962, involved on the imported capital goods.

[2] I order for confiscation of the warehoused goods valued Rs. 13,82,51,602/- (Rupees thirteen crores eighty two lakhs fifty one thousand six hundred two only) under Section 111 (o) of Customs Act, 1962, however I give an option to the assessee to redeem the same on payment of redemption fine of Rs. 2,00,00,000/- (Rupees two crores only) under Section 125 (1) of Customs Act, 1962.

[3] I order for a payment of interest on Rs. 7,28,36,106/- of Customs duty demanded confirmed from the assessee, at the applicable rates under the provisions of Section 28 (2) of Customs Act, 1962.

[4] I also impose a penalty of Rs. 50,00,000/- (Rupees Fifty lakhs only) on M/s. Jindal Imaging Ltd., Tal. Mundhegaon, Dist., Nashik, under Section 112 (a) and 114A of Customs Act, 1962.

[5] I also impose a penalty of Rs. 10,00,000/- (Rupees Ten lakhs only) each on S/Shri B.R. Gupta Sanjeev Agrawal, Director of M/s. Jindal Imaging Ltd., Tal. Mundhegaon, Dist. Nashik under Section 112 (a) of Customs Act, 1962, for contravention of provisions of Section 28 of Customs Act, 1962, however no penalty is imposed on S/Shri Umesh Chand Jain and Shammi Gupta, Directors.

[6] I also order for enforcing of B-17 (General Bond) and warehousing bond executed with the department for the importation of capital goods etc. for appropriation of duty demand confirmed on them as per the conditions of Notification No. 53/97-Cus. dt. 3.6.1997.

4. Appeal Nos. C/936-939/04-Cus. are directed against the above order.

5. The claim of the appellant is simple and straightforward. It is being contended that Section 68 of the Customs Act permits the owner of the goods to relinquish his claim to the goods, and upon relinquishment, he shall not be liable to pay duty thereon. It is being pointed out by the learned counsel that this option is unfettered in any way and Customer authorities could not reject the permission at all. It is also being pointed out that the proviso makes no distinction between the warehouse goods for use in export production and other goods and the adjudicating authority was in error in taking a view that this proviso had no application to capital goods imported in terms of the Letter of Permission. Much case law has also been cited by the learned counsel.

6. Learned SDR would contend that imports under EOU scheme are different from other imports. He has also relied upon the decision of the Apex Court in the case of PSI Data System Ltd. Vs. Assistant Collector of Customs, Bangalore - 2004 (163) ELT 302 (Kar.).

7. The reason for demanding duty and taking penal action is that imports were in terms of the Letter of Permission and the appellant had given an undertaking for export of goods manufactured with the imported capital goods. The Commissioner has also held that appellant's decision to abandon the goods is mala fide. Commissioner has held that instead, the assessee should have gone for de-bonding of the warehouse goods.

8. We do not find any legal or factual basis to the findings of the Commissioner. The proposal to set up a 100% EOU, obtaining of Letter of Permission and import of machinery pursuant to that decision, was an investment decision of the appellant. It is well-known that investment climate keep changing. Investors have to change their course of action depending upon such changes. The appellant has stated that the project had to be abandoned because of the technological changes in photographic and allied industries. Thus, there was no mala fide in the decision of the appellant to abandon the project and relinquish the claim to the imported goods. The decision also involved considerable loss to the appellant inasmuch as it was to abandon the machinery worth of about Rs. 14 crores and other expenses incurred by it in an effort to set up the EOU