2009 (8) TMI 893

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....uty-free clearance under Customs Notification No. 43/02. The goods were cleared duty-free. Later on, the department found that certain quantity of the imported goods had not been actually used in the manufacture of the export product (Aluminium Chloride Anhydrous). On this basis, demand of duty was raised under Section 28(1) of the Customs Act by the department alleging that the benefit of the above Notification was not available to that part of the imported material which was not physically incorporated in the final products. This case of the Revenue was opposed by the party in the reply to the relevant show-cause notice. In adjudication of the dispute, the learned Commissioner of Customs demanded the aforesaid amount of duty from the appe....

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....rated today before us by the learned Counsel, the appellant is entitled to claim exemption under the above Notification in respect of the entire quantity of Aluminium ingots imported by them inasmuch as such quantity was recognized by SION norms as the quantity consumable in the entire quantity of Aluminium Chloride exported. The learned SDR has opposed this view taken by the appellant, with reference to the provisions of the Foreign Trade Policy 2004-2009. Para 4.1.3 of Chapter 4 of the Foreign Trade Policy, relating to the period of dispute in this case, deals with Advance Licence. The opening part of this para reads thus: "An Advance Licence is issued to allow duty free import of inputs, which are physically incorporated in the export p....

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.... used in the manufacture of finished goods to be exported in discharge of export obligation under the aforesaid scheme. The learned Counsel has invited our attention to one of the conditions of this notification, which is that the imported raw material remaining unutilized after the expiry of the export obligation period shall be liable to Customs duty. It is submitted that a similar provision is conspicuously absent in Notification No. 43/2002-Cus. and, therefore, it should be held that exemption under this Notification should be admissible to unutilized raw material as well. The old Notification referred to by the learned Counsel was issued during the old policy period. The learned Counsel has not shown us the relevant provisions of that ....