TaxTMI 
TaxTMI 
2022 (5) TMI 1316
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.... Customs 1962 along with Act, interest U/S 28AB ibid 1,00,000/- U/S 117 of Customs Act, 1962 Appeal No E/36/2011 Order in Appeal No RT/50/LTU/Mum/2010 dated 13.10.2010 08/LTU/2009/ ADDL/MK dated 12.05.2009 38,71,681/- U/S 11(A)(1) of the Central Excise Act, 1944 along with Act, interest U/S 11AB ibid 38,78,681 /- U/S 11 AC of the Central Excise Act, 1944 1.2 Two appeal are filed under Customs Act, 1962 and third one under Central Excise Act, 1944. By the order dated 05.12.2019 in appeal No E/36/2011, bench ordered for clubbing of the three appeals stating as follows: "Both sides submit that Customs Appeals arising out of the same fact bearing No C/994-995/2010 have also been filed by the Revenue. They request that the said Customs appeals also be tagged with the present appeal and heard together. Registry is directed to tag all these 3 appeals and list them for disposal on 09.01.2020." 2.1 Respondent is a 100% EQU unit and operating under 'Letter of Permission' dated 01.01.2002, issued by the Development Commissioner, Special Economic Zone. They had started their commercial production from 18.01.2004. Th....
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....dment). • From the plain reading of amendment dated 15.5.2006 to LOP, it is seen that, amendment portion is embodied in para-2, for the requirement of import of capital goods for remaining period of three years 2006-07 to 2008-09. The Asstt. Development Commissioner, SEEPZ SEZ, at para-1, have noted that, the unit has commenced production w.e.f 18.4.04. This noting is in respect of the condition given at para 3 of the LOP dated 1.1.2002, whereby it is insisted that the unit should commence the "commercial production" within three years from date of permission (1.1.2002). It is not in connection/relation with the amendment portion which follows subsequently. Therefore it is opined that, said "commercial production" is relatable to the items of manufacture i.e. "capsules/tablets of pharmaceutical formulations" and not for the items amended thereafter. • The broad banding permission dated 15.5.06, was not a clarification on any matter. Hence the commissioner (A)'s findings contending that, it applies retrospectively, is not acceptable on merits, as the assessee has functioned beyond the scope of original LOP itself and without either informing and obtaini....
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....-LB)] • A N Impex [Order No A/718-719/14/CSTB/C-I dated 27.03.2014] 3.4 Arguing for the respondent learned counsel placed reliance on the following decisions:- • G T Cargo Fitting India Pvt Ltd [2019 (370) ELT 1181 (T- ALL)] • Honeywell Technology [2008 (231) ELT 592 9T-Bang)] • Synergies Dooray Automotive Ltd. {2008 (226) ELT 529 (T-Bang)] • Sanghi Spinners (I) Ltd [2007 (209) ELT 43 9T-Bang)] • Prime Furnishing Pvt Ltd [2006 (199) ELT 257 (T-Mum)] • Dharampal Lal Chand Chug [2015 (323) ELT 753 (Bom)] 4.1 We have carefully considered the impugned order along with the grounds of appeal and the arguments made during the course of hearing. 4.2 While deciding the appeals Commissioner (Appeals) has by observed as follows: "5. The appellant is a 100% EOU manufacturing unit. It is not alleged that duty free raw materials procured under dispute are not used for manufacture of goods by 100% EQU unit that are subsequently exported. The only allegation was that the finished goods that are exported are not included in their 'Letter of Permission' issued by the Development Commi....
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....luminium wheels which are exported - Aluminium dross generated during the process as by- product - Excisability of Aluminium dross immaterial - Proviso to para 3 of Notification No. 52/2003-Cuş. not applicable to Aluminium dross a by-product cleared to domestic Tariff Area - Demand in respect of imported Aluminium ingots relatable to Aluminium Dross not warranted - Section 28 of Customs Act, 1962. - There is no dispute that all the ingots, which are imported are used in the manufacture of Aluminium wheels and these wheels have been exported. In the manufacture of the wheels, while melting the Aluminium ingots, the Aluminium Dross comes as a by-product. In a case like this, where the finished product is aluminium wheels and which is excisable, the proviso cannot be invoked at all for any reason. A clear reading of the Notification reveals that the proviso will be applicable only when the finished goods are non-excisable. The question of excitability of Aluminium Dross etc. is not at all relevant where the finished products are excisable. No duty can be demanded on the imported Aluminium Ingots relatable to the Aluminium Dross generated as all ingots have been used in the manufa....
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.... Crore Thirty Three Lakhs Thirty Five Thousand only) 2 Dry Syrup and Suspensions. Nos. 60,00,000 Nos(Sixty Lakhs Nos. Only) 3 Injections Details of injection and syrups 3. The approval is subject to the following conditions : i. The entire (100%) production excluding rejects and sales in the Domestic Tariff Area (DTA) as per provision of foreign Trade Policy shall be exported. ii. It is noted that you are required to achieve the positive NFE as prescribed in the Foreign Trade Policy, failing which you may be liable for penal action. iii. It is noted that you require imports of capital goods worth US$ 6,12.880/- for remaining period of three years 2006- 07 to 2008-2009. iv. It is noted that you have projected export turnover/export performance of US $ 73,02,000/ for the period from 2006- 07 to 2008-2009. v. The Letter of Permission No. PER/30/2001/SEEPZ/EOU-79/01-02, dtd. 1.1.2002, as amended, as amended, under reference stands amended to the above extent. vi. All other terms and conditions mentioned in the Letter of Permission No. PER/30(2001)/SEEPZ/EOU- 79/01-02, did. ....
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....the proceedings. There is no merit in the appeal and the same is rejected." 4.6 The entire case of revenue is based on the fact that appellant had manufactured these finished products which were not as per LOP, using the raw material imported duty free. We do not find any merits in these arguments as the appellants have consumed the duty free raw material for achieving the export obligations on yearly basis and on whole as per the LOP issued to them and amended from time to time. No evidence has been produced by the revenue that the terms of LOP have been violated in terms of quantity or value as specified in the said LOP. IN absence of any such allegation or finding by the relevant authorities the violations if any cannot be termed to be anything more than technical violations as pleaded by the respondents and held by Commissioner (Appeals). 4.7 We also take note of the decision of the tribunal in the case of G T Cargo Fitting India Pvt Ltd, referred to by the counsel for the respondents where following has been held in similar circumstances:- "4. It is seen that during the course of adjudication the appellant approached their Development Commissioner, who amended t....