AI Drafter 
TaxTMI 
TaxTMI 
2016 (2) TMI 1391
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....osition of penalty to the extent of 100% of the duty involved. 2. Before we go into the facts involved in the present case, we would like to refer to the Target Plus Scheme as also the notification in question, whose interpretation is involved in the present case. The said Target Plus scheme was introduced in the Foreign Trade Policy (FTP) in the year 2005. The said scheme is available to all Star Export Houses, which have achieved a minimum export turn over in free foreign exchange of Rs. 10 crores in the previous licensing year. The objective of the said scheme is to accelerate growth in exports by rewarding Star Export Houses who have achieved a quantum growth of exports. In terms of the said scheme, high performing Star Export Houses are entitled for a duty credit based on incremental exports substantially higher than the general annual export target fixed.In terms of the said scheme, the Star Export Houses entitled to the said scheme are allowed to use the duty credit certificates given by the Director General of Foreign Trade (DGFT) for import of any inputs, capital goods including spares, office requirements, professional equipment and office furniture provided the same i....
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....Scheme,'broad nexus' would mean goods imported with reference to any of the product groups of the exported group within the overall value of the entitlement certificate. However the said para 3.2.5 was further amended by DGFT Public Notice No.9(RE-2007)/2004-09 dt. 21/06/2007 and the words "For the purpose of import entitlements under the scheme, 'broadnexus' would mean goods imported with reference to any of the product groups of the exported goods within the overall value of the entitlement certificate" were deleted. As a result of the said amendment, the goods allowed to be imported were required to have a broad nexus with the products exported. For better appreciation of the said clauses, we reproduce the same:- Before amendment: 3.2.5. Target Plus Scheme I ...... ....... II Goods allowed to be imported under this scheme shall have a broad nexus with the products exported. For the purpose of import entitlementsunder this scheme, 'broad nexus' would mean goods imported with reference to any of the product groups of the exported goods within the overall value of the entitlement certificate. After amendment: 1. In P....
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....and you are at liberty to choose any processor to convert your goods into value added resultant product(s). Thus it is clarified that in your case, you are permitted to import Almonds (dry fruits) under the Target Plus Scheme and get the same processed/converted from any processor of your choice into possible resultant product(s) before selling in the domestic market. This clarification is issued with the approval of DG on file." The above circular was subsequently withdrawn by the DGFT and a new circular dt. 08/05/2007 was introduced detailing as under:- "3. The matter has been examined in consultation with the Ministry of Law (MOL). After examination of the provisions of Para 3.7.6 of the FTP and Para 3.2.5 (II) of the HBP,the MOL has opined that the FTP does not use the expression "broad nexus" and,therefore, the same cannot be dissociated from the words "input" and "use" mentioned in the Policy. The MOL has categorically stated that the addition in Para 3.2.5 (II) of the HBP is to facilitate the search for "inputs" and "use" and anyinterpretation so as to dissociate the import from the "inputs" and "use" in the export goods would make it ultra vire....
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....r 'use' by the exporter or the supporting manufacturer, as the case may be. For this purpose, the intended Input must have a relationship with the export product. Whereas SION will act as a prima facie evidence of'Inputs', the exporter is not debarred from satisfying the authorities that there is a 'broad nexus' between the intended import item as an 'input' with the export product, both falling within the same product group, it was also clarified that the holder of TPS certificate is permitted to Import an Item under the TPS and get the same processed into possible resultant products only if the same has a 'broad nexus' with the product group as an 'input' in the product exported for which the TPS benefit is sought. 6. As is seen from the above provisions of law, the Target Plus Scheme allows Star Export Houses to import goods by debiting the duty leviable thereon from the duty credit certificates issued by DGFT, in relation to the exports made by them prior to the date of imports. The dispute in the present appeal rallies around the scope of the expression "broad nexus" of the imports which are made against the exports. 7. Now....
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....endment, the said broad nexus would be held to be there as long as both the items i.e. exported and the imported items fall under the same product group. He further submits that the expression "product group" nowhere stands defined and for considering the same, one has to go to the Input and Output Norms. By taking us to the said norms, he submits that rice and wheat as also the palmolein oil fall under the same product group E(Food Products). As such, he submits that as long as the exported and imported items fall under the same product group, they have to be held as having broad nexus, thus satisfying the condition as contained in Para 3.2.5 of the HBP. He further submits that the said para, prior to its amendment in the year 2007, specifically clarified and laid down a definition of broad nexus as both the items being falling under the same product group but even after the deletion of the said definition, the broad nexus element condition has to be established and the same can be established only by referring to the product group. 9.2. Learned advocate submits that the disputed issue has been the subject matter of the Hon'ble Bombay High Court as also Hon'ble Delhi Hi....
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....tured from the supporting manufacturers, as job worker. As such, he submits that the said condition stands satisfied by them and in fact the adjudicating authority has also not adopted the said condition as a reason for rejecting their claim of exemption. The adjudicating authority has observed that even in terms of the notification in question, the merchant exporter is entitled to get the imported goods manufactured through the supporting manufacturers. However he has held that inasmuch as the activity of packing of palmolein oil in 1 kg. Packs, directly out of the pipelines or tanks would not be covered by the definition of manufacture, the benefit cannot be extended. By drawing our attention to Notification No.32/2005-Cus., Condition No.3, he submits that the only restriction is that the goods imported against the duty credit certificate shall not be transferred or sold. The proviso to the said condition further expands the scope by laying down that where the goods are imported by a merchant exporter having supporting manufacturers, whose name and address is specified on the said certificate, the said goods may be utilised by the said supporting manufacturers. From this, he draw....
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.... appellant has entered into agreement with Andhra Pradesh State Civil Supplies Corporation Ltd. for importing RBD Palmolein oil imported in bulk and subsequently packed into 1 litre pouches for onward supply through public distribution system. The said Palmolein oil imported by the appellant in liquid form was pumped directly from the vessels to the storage points of their supporting manufacturers M/s. Ruchi Infrastructure Ltd., M/s. Acalmar Oils and Fats Ltd. and their other job workers for further packing of the same in 1 litre pouches. He submits that in terms of the Target Plus Scheme, the importer can import items for THEIR OWN USE OR THAT OF SUPPORTING MANUFACTURERS as declared in Aayaat Niryaat Form. By drawing our attention to the provisions of Para 3.2.5 of HBP Vol.I, he submits that the goods imported under the said scheme must have broad nexus with the products exported. Prior to the amendment of the said para, the same read as "broad nexus" and broad nexus would mean goods imported with reference to any of the product groups and the exported goods within the overall value of the entitlement certificate. He further agreed that even after the amendment, the criteria of br....
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....o similar goods which has been exported. The product group as discussed in the Judgement of High court is mentioned in Hand Book of procedure Standard input output norms (duty exemption scheme) wherein chapter E which covers food products. There is general note to these input output norms which states a) norms have been put with a view to facilitate determination of the proportion of various inputs which can be used or are required in the manufacture of different resultant products . In many cases resultant products and the inputs have been described in generic terms. The applicants shall, therefore, ensure that the goods sought for import and actually imported are those which are used / required in the export product. The items allowed for the import in the licence shall be co-related with the description of the export product in the Shipping Bill by the exporter. Forexample,if the input allowed in the norms is relevant fabrics, only the specific types of fabrics i.e polyester or nylon used in the export product shall be allowed. Wherever a specific norm has been provided the same will prevail over the generic norm laid down, if any. If the application is base....
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....7 of Food product group i.e. crude mustard oil, caustic lye, phosphoric acid, citric acid coal/coke, diesel can be imported against export of biscuits as listed at E-5 . Because in the product group of food items there is separate heading for food items to be exported and separate heading for items to be imported which has broad nexus with the food items exported in their relevant sub headings. The interpretation of the two Hon'ble High Court judgements can not lead to an interpretation to import diesel coal/coke mustard oil phosphoric acid etc against export of biscuits which belong to E-5 of export product group and the items of import belonging to E-127 of the product group. Similarly the import of RBD Palmolein belonging to E-112 can not be allowed against export of rice/wheat belonging to E-38. In the case of M/s.MMTC against export of Rice and wheat, RBD Palmolein cannot be imported as there is no broad nexus between the item of export and import . So the import of Palmolein has no nexus with wheat or rice or in anything similar to the goods exported by MMTC. Thus M/s.MMTC fails to satisfy the conditions of broad nexus between the item exported and impor....
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.... Commissioner. 12. After considering the submissions made by both the sides and after going through the impugned order passed by the Commissioner and after examining the various provisions of the FTP as also the HBP and various circulars issued by the DGFT and the Customs, we note that the issue required to be decided in the present case is as to whether the import of Palmolein oil as against the export of rice and wheat is covered by the Target Plus Scheme introduced in the FTP and whether the appellant is entitled to pay duty on the imported goods, by using the duty credit certificates issued by the DGFT. As we have seen the Target Plus Scheme was formulated in Para 3.7.1. of the FTP for the year 2004-09 with an intention to accelerate the growth of exports, by rewarding the various star export houses. Such reward to the export houses was in the nature of the duty credit certificates to be issued by DGFT in the light of the incremental growths of exports. It is no doubt and admitted fact in the present case that the appellant is a star export house exporter and such duty credit certificates were given to them by the DGFT. The issue narrows down only to the use of the said duty....
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.... by the appellant under the said scheme has any broad nexus with the goods exported by them. The question remains as to how to arrive at the said broad nexus. Before we move further, we have to keep in mind that the expression used in the said paragraph is not only nexus but the same stands qualified by the expression 'broad'. As such, it is the broad nexus between the imported and the exported item which is to be looked into. After the amendment in Para 3.2.5 of the HBP, which explains that how the broad nexus has to be arrived at, there is no rule/section/para, anywhere providing any guidance as to how the broad nexus has to be established. 17. There are various circulars issued by DGFT as also by the CBEC. First circular of DGFT was issued on 01/08/2006 wherein they clarified that the broad nexus would be established as long as the imported and exported items fall under the same product group. This reflects upon the understanding of the concerned authorities. However the said circular was subsequently changed and replaced by a circular dt. 05/06/2008 wherein the DGFT laid down a list of goods which may be imported under the said scheme. As regards the inputs, it was s....
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....ed and the goods which are exported as stipulated in Paragraph 3.2.5 of the Handbook of Procedures. The requirement under the Handbook of Procedures is that for the purposes of import entitlements under the scheme,'broad nexus' would mean goods imported with reference to any of the product groups ofthe imported goods within the overall value of the entitlement certificate. There is no dispute before the Court that this requirement under the Handbook of Procedures has been dulyfulfilled. No submission to the contrary has been urgedbyCounsel for the Respondents. The fact that the goods imported were required by the Petitioner for its own use has not been disputed before the Court by Counsel for the Respondents. But the case of the Respondents is that the requirement which is stipulated in the circular dated 8 May 2007 is that there should not only be a broad nexus of the goods imported with reference to the product group of the exported goods but thatthe goods imported must constitute an input in relation to the very products which have been exported. Now, reading paragraph 3.7.6 of the Foreign Trade Policy, it is evident that an eligible exporter is entitled to utilize duty ....
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....ermediates, consumables, catalysts and parts which the required for manufacture of resultant products. No such requirement was incorporated in paragraph 3.7.6 of the Foreign TradePolicy. In otherwords, thecondition that the inputs which are imported must be used in the export of the resultant product was not incorporated as part of paragraph 3.7.6 of the Foreign Trade Policy. In that view of the matter, it is not possible to accept the contention of the Respondent that the conditions which were imposed by the circular dated 8 May 2007 were implicit in paragraph 3.7.6 of the Foreign Trade Policy. We, therefore, come to the conclusion that the conditions which were stipulated by the circular dated 8 May 2007 were ultra vires paragraph 3.7.6 of the Foreign Trade Policy and Customs notification dated 8 April 2005 (Customs Notification 32/05). 19. The facts of the case before the Hon'ble High Court have to be considered for the purpose of taking a decision in the present case. It is seen that the assessee in that case exported iron ore and obtained the duty credit certificates from DGFT. The same were sought to be used by the assessee for payment of duty of customs in respect of ....
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....ccount the entire development in the Target Plus Scheme as also various public notices issued by the DGFT, it was observed that even though the broad nexus requirement was justified keeping in view the overall objectives of the FTP, the further changes made by Circular dt. 21/06/2007 to restrict the import to only those goods that constituted an input in the exported product is indeedimpermissible. The condition is unduly restrictive and has the effect of negating the accrued benefit. The Court further observed that the subsequent Circular dt. 08/05/2007 issued by the CBEC and Public Notice dt. 21/06/2007 issued by the DGFT, in the garb of clarifying the term 'broad nexus', unduly restricted the meaning of the inputs to only those inputs used in the manufacture of goods exported. This amounts to travelling beyond what is provided in para 3.7.6 of FTP and ultra vires the powers of DGFT. Such a change could have been brought only by amending the law and by way of issue of public notices. Accordingly the Hon'ble Court observed as under:- 27. Given the objective ofproviding an incentive to exporters, para 3.7.6 of the FTP can reasonablybe interpreted to require an ....
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..... In relation to the exports of food items, it was clarified that it would be food category with reference to which the exporter was required to maintain nexus. Accordingly the Court held that the Circular dt. 01/08/2006 of DGFT was in tune with the scheme of the FTP. Accordingly the order the learned Single Judge of the Hon'ble Delhi High Court was upheld. 21. When we examine the issue in the light of the law declared by the Hon'ble Bombay High Court as also the Hon'ble Delhi High Court, it becomes clear that the imported items would have broad nexus with the exported goods as long as the same fall under the same product group. No contra decisions stand shown to us by the Revenue, in support of their plea that the imported items must be inputs for exported goods. 22. We also may deal with the contention of the learned AR drawing our attention to the Delhi High Court's decision wherein it stand observed that -"The word 'nexus' obviously refers to a larger group of similar goods and not the very exported goods itself". From here he has sought to draw a concept that similar means the goods associated with the exported goods. However we find that general ....
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....bjective of the Target Plus Scheme, which is meant for promoting the exports, restrictive views cannot be adopted and obstacles cannot be raised, which would defeat the said objective of the scheme. 24. In view of the above discussion, we hold that inasmuch as the rice and wheat i.e. exported products and the palmolein oil i.e. imported item fall under the same product group i.e. E-Food products, they have to be held as having broad nexus thus satisfying the condition of Target Plus Scheme. 25. The Commissioner has also held against the appellant on the ground that the imported oil, which was subsequently packed by them into the retail packs of 1 kg., through their supporting manufacturers, does not satisfy the user condition. It is seen that while holding so, Commissioner has referred to the definition of manufacture in terms of Central Excise Act. By referring to Chapter Note 5 of Chapter 15, which provided a deemed manufacture concept by laying down that the repacking of goods from bulk packs to retail packs would amount to manufacture. By relying upon the Tribunal's decision in the case of Ammonia Supply Co. (supra) which laid down that packing of 1 kg. packs directly....
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....1 kg. packs, which packs were sold by the appellant to the Government of Andhra Pradesh for public distribution. In the absence of any such condition in the notification that the activity undertaken by the supporting manufacturers must amount to manufacture, the introduction of such condition by the adjudicating authority, on his own, is beyond the accepted legal position. Though no support of any decisions to hold that the legal provisions should be interpreted in the light of the language used therein and no extraneous condition can be introduced for the same is required but one such reference can be made to Hon'ble Supreme Court's decision in the case of Hemraj Gordhandas Vs. H.H. Dave [1978(2) ELT J 350 (SC)]. 28. We also find favour in the appellant's alternative submissions that even if the concept of manufacture has to be examined, the same should be in the light of the definition of manufacture as appearing in FTP. The said definition is as under:- "manufacture" means to make, produce, fabricate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name character or use and shall include processes such ....
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.... item and the exported item and has also satisfied the condition of the Notification No.32/2005, they are entitled to avail the benefit of the Target Plus Scheme. Accordingly we set aside the impugned order and allow the appeal with consequential relief to the appellant. (Order pronounced and dictated in open court) ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER Per: Ashok K Arya: 32. Heard both parties in detail. 33. They have narrated the facts, which are also available on record for consideration. Here the main crux is the entitlement to the benefit of the Notification No.32/2005-Cus. dt. 08/04/2005 where alongwith other conditions, the main conditions which require discussion are: a. that the goods imported have to satisfy the definition(meaning) of the wording 'goods' as given in the Explanation clause (i) to this notification; whether the subject goods qualify what the 'goods' means here; and b. that the goods are not to be transferred or sold. In case of the goods imported, the Explanation (i) to the said Notification says as below: Explanation (i) "goods" means any inputs, capital goods includ....
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....e HBP, the learned Single Judge has made following remarks : "27. Given the objective of providing an incentive to exporters, para 3.7.6 of the FTP can reasonably be interpreted to require an exporter to show that the goods imported should have a "broad nexus"with reference to any product group of the exported goodswithin the overall value of the entitlement certificate. The word "nexus" obviously refers to a larger group of similar goods (emphasis supplied) and not the very exported goods itself. Consequently the impugned circulars and notice that purported to "clarify" the term "broad nexus", i.e. the impugned circular dated 8 th May 2007, the Public Notice dated 21 st June 2007 and the further circular dated 19 th December 2007, travelled beyond what was envisaged by para 3.7.6 of the FTP and severely restricted the benefit thereunder.It was a significant change that could be brought about only through a notification under Section 5 FTDR Act.The said circulars and public notice were, therefore, ultra vires para 3.7.6 of the FTP. Further they sought to retrospectively take away a benefit that had accrued to the exporters which cannot but be viewed as unreasonable in the ....
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....that what could be the item(s) of import having a 'nexus' with the item(s) of export as per Foreign Trade Policy. It is understood that items of import given above would have some direct or indirect application or use either in production or manufacture or presentation, preparation, packing, marketing, sale etc. of the export item mentioned against the said import items. And this said long list is not a superfluous one, a large number of policy inputs certainly have gone into preparation and finalization of this by the Ministry of Commerce /DGFT and their staff. 36.1.1. From above, we find that against export of Rice / Wheat, one can import 1. Canvas / Jute 2. LDPE / HDPE / PP Granules 3. Printing Ink 4. Art Paper and against export of Refined Palmolein Oil (Edible grade) FFA content 0.25%, one can import 1. Crude Palmolein oil 2. Phosphoric acid 3. Citric acid 4. TONSIL Bleaching earth However for present purposes, we need to only see if between the items of export (Rice / Wheat and item of import (RBD Palmolein Oil) broad connection / nexus could be found / established. It is also seen that R....
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....mple, one finds here: - Confectionary / biscuits / chocolate (E-1, E-5, E-69) - Instant Food Mixes (E-2) - Pulses (Urad dal) (E-3) - Fresh fruits / vegetables (E-109) - Fruit slices / pickles/ fruit drinks / fruit jams / fruit juices / pulps / concentrates (E-11, E-16, E-17, E-18) - Different kinds of oils - Refined- Rice Bran Oil, Soyabean Oil, Palmolein Oil, Sunflower Oil, Mustard Oil, Rapeseed Oil, (E-116, E-121, E-122, E-124 E-127, E-128) - Dry fruits - Cashews walnuts, apricot ( E-8, E-51) - Varieties of Coffee / tea (E-10, E-27, E-28 etc.) - Different kinds of sugar (E-52, E-79, E-106) - Guargum / Bubble gum (E-26, E-97) - Rice / wheat / vegetable biryani / jeera rice, wheat flour / atta / suji /maida (E-38, E-110) - Spices / supari / turmeric / ginger (E-43, E-45, E-85, E-86) - Chicken biryani/ chicken / chicks/ meat (E-57, E-58 & E-60, E-73) - Different kinds of eggs (E-59, E-108, E-119, E-120) - Milk protein concentrate / Total milk protein (E-65) - Cheese(E-71) - Beedies /Pan masala gutkha / Pan masala (E-91, E-94, E-105)....
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....s and any one of different products exported by him. It is pointed out that CESTAT, Bangalore have in the case of M/s. GIMPEX Ltd. for import item C.C. Copper rods and export items Iron Ore fines, bentonites etc.(including Chemical and Allied Products Group - refer paras 9 & 21 of the said Order) did not find broad nexus established between copper (import item) and iron ore (refer para 9 of the said Order - one of the export export items), though both CC copper rod and iron ore could broadly be called member of Metal Group in the world of Chemistry. This Tribunal in above order of GIMPEX Ltd. Vs. CC, Hyderabad inter alia held as below:- 16. What emerges from the above findings of the Hon'ble High Courts is that the Policy provisions as interpreted by the Hon'ble High Courts did not restrictively require the assessees, (for exemption under Notification No. 32/2005-Cus.) to prove that the goods imported by them were usable in the very products which were exported by them for obtaining the TPS certificates. It was enough for them to show that the c.c. copper rods imported by them could be used as input in the manufacture of any goods of a larger group of similar goods....
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.... of Export-Import items from Sl.No.E-1 to E-128 does not mean that exporter of any food item can import any of the import items mentioned therein completely ignoring the wordings "broad nexus" and thus making these wordings 'broad nexus' superfluous as if they carry no meaning and use for the Foreign Trade Policy makers and other stake holders. The importer has to honour his/her responsibilities and his/her items of import therefore need to undergo and pass the test of 'broad nexus'. Hon'ble Delhi High Court in its decision in the case of UOI Vs. Indian Exporters Grievance Forum (supra) has dealt with these issues and as noted earlier have not negated the implications of wordings viz.'broad nexus'. It is to be pointed out again with full emphasis that the wordings "broad nexus" do not give the freedom to import each and every item which is listed from Sl.No.E-1 to E-128, both in the columns of export item as well as that of import item for an importer, who is registered under Target Plus Scheme(TPS). There may be certain food items which are exported and there could be some food items which are imported by a person registered under Target Plus Scheme, bu....
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.... Palmolein could in any way be connected to rice and wheat to become eligible as per the condition for benefit of Notification in question (No. 32/2005-Cus.)? Or has the import item got a connection or nexus with larger groups of goods similar to the export items? The appellant has not been able to establish any direct or indirect relation of 'RBD Palmolein' with the exported items viz. rice and wheat. As quoted earlier in para 35, in terms of the decision of the Hon'ble Delhi High Court in case of UOI Vs. India Exporters' Grievance Forum (supra), the goods imported at least need to have a broad nexus with the larger group of goods similar to the exports made. In this case, the required broad nexus of the import item (RBD Palmolein) has not been found established with even the larger group of goods similar to the export items (Rice & Wheat). In order to fulfill the aims and objectives of the Foreign Trade Policy (FTP), whose integral part is HBP and also the FTP's Input-Output Norms, it is very essential that the Policy (FTP) is implemented honestly andqualitatively with full integrity. It has been said here that though one-to-one nexus is not required but '....
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...., the appellant imported in bulk; they converted the same with the help of supporting manufacturers into the retail packings which they supplied to Andhra Pradesh Government Corporation for distribution under the Public Distribution Scheme. In other words, with reference to the condition "use" and "own use" (no transfer/sale), I agree with my learned colleague Member that the appellant passed the second condition; but this is of no significant consequence unless the test of 'broad nexus' is passed. The importers have rationally not been successful to establish a reasonable direct or indirect connection or relationship, in other words 'broad nexus' , between the product(s) exported and product imported in terms of the provisions of the Foreign Trade Policy [Para 3.2.5. - Target Plus Scheme of Handbook of Procedures] and the decisions of the Hon'ble Delhi High Court, Hon'ble Bombay High Court and this Tribunal quoted above and to cover their imports under the meaning and definition of "goods" (as 'imports') to become eligible for the benefit of Notification No.32/2005-Cus. dt. 08/04/2005. 41.In the light of the above observations, considering the de....