TaxTMI 
TaxTMI 
2024 (1) TMI 466
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....tter came up for hearing, the learned Counsel for the appellant submitted that due to rapid technological development/advancement, the imported raw material/components become obsolete and unfit for manufacture and therefore they sought permission from the jurisdictional authority from time to time to destroy the goods on payment of duty on the scrap value of the destroyed goods. The Learned Counsel also submitted that the impugned order is issued without considering the provisions of Para 6.15(b) of the Foreign Trade Policy r/w Notification No.53/2003-Cus dated 31.03.2003 which reads as:- "Capital goods and spares that have become obsolete/ surplus, may be exported or transferred to SEZ unit, transferred to another EOU/EHTP/STP/BTP/on payment of applicable GST and compensation cess or disposed of in DTA on payment of applicable GST and compensation cess and duties of Customs leviable under First Schedule of the Customs Tariff Act, 1975. Benefit of depreciation will be available in case of disposal in DTA only when the unit has achieved positive NFE taking into consideration the depreciation allowed. No duty shall be payable other than the applicable taxes under GST la....
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....hall not be leviable. Condition of 8 is reproduced hereinbelow: "(8) Subject to the satisfaction of the said officer, duty shall not be leviable in respect of capital goods, raw material, consumables, spares, goods manufactured processed or packaged, and scrap or waste or remnants or rejects are destroyed within the unit after intimation to Customs authorities or destroyed outside the unit with permission of Customs authorities: Provided that this condition shall not apply in case of unit engaged in manufacture and export of gold, silver, platinum, diamond, precious and semi precious stones." 5. Regarding Sale of Surplus/unutilised goods, Condition No.25 reads as follows: "25. Sale of surplus/unutilised goods: 25.1 EOUs are allowed to sell surplus/unutilized goods and services, imported or procured duty free, into DTA on payment of duty on the value at the time of import/procurement and at rates in force on the date of payment of such duty, in case the unit is unable, for valid reasons, to utilize the goods. The permission for such DTA sale is given by the jurisdictional Assistant/Deputy Commissioner of Central Excise and Customs. 25.....
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....e the zones, as the notification only provides for destruction within the zone? 2. The issue has been examined by the Board. It is clarified that action taken under the rescinded seven notifications will be deemed to have been done or taken under the corresponding provisions of the current Notification No. 133/94 and the goods which were imported under any one of the earlier notifications could be allowed destruction under present notification. Under para 7 (ii) of Notification No. 133/94-Cus., the imported goods as such may be allowed destruction and under para 7(iii), the scrap/waste obtained in the process of manufacture may also be allowed destruction. In the cases where goods cannot be destroyed within the Zone because of the safety reasons or Municipal Corporation's regulations, the Commissioner may permit destruction outside the Zone subject such conditions as may be prescribed by the Commissioner since this is only a procedural requirement and non-substantive in nature. 3. Pending cases may be processed accordingly and the receipt of this letter may kindly be acknowledged. 7. The Learned Counsel further submitted that the issue is squarely covered by th....
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....mported under an earlier notification could be allowed destruction under the present Notification No. 133/94-Cus.? (iii) Whether the goods which are permitted for destruction within the zones can be taken for destruction outside the zones, as the notification only provides for destruction within the zone ? (2) The Issue has been examined by Board. It is clarified that action taken under the rescinded seven notifications will be deemed to have been done or taken under the corresponding provisions of the current Notification No. 133/94 and the goods which were imported under any one of the earlier notifications could be allowed destruction under present notification. Under para 7(ii) of Notification No. 133/94-Cus., the imported goods as such may be allowed destruction and under para 7(iii), the scrap/waste obtained in the process of manufacture may also be allowed destruction. In the cases where goods cannot be destroyed within the Zone because of the safety reasons or Municipal Corporation's regulations, the Commissioner may permit destruction outside the Zone subject such conditions as may be prescribed by the Commissioner since this is only a procedural requirem....
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....ennar Industries (2015 (322) E.L.T 402 (SC) wherein it is held that since conditions of the exemption Notification are not fulfilled and the law required strict compliance of the exemption notification, assessee became liable to pay import duty which was payable but for the benefit of Exemption Notification No.30/1997 which were obtained by the assesse. Ld AR further submits that the issue is also considered in similar cases by the Hon'ble Supreme Court in the matter of M/s SK Pattanaik Vs State of Orissa: 2000 (115) E.L.T 9 (SC). Learned AR also relied following orders in this regard. a) M/s. Sunrise Biscuits Co Ltd Vs State of Assam (2006 (148) STC 587 b) Vadilal Chemicals Ltd Vs State of Andhra Pradesh (2005 (142) STC 76 (SC) c) Saint Gobin Crystals & Detectors (I) Ltd Vs CC Bangalore (2018 (364) E.L.T 1055 (Tri.-Bang) d) India Actuators Pvt Ltd Vs CCE (2009 (244) E.l.t 573 (Tri.) e) Macmilan India Ltd Vs CC Bangalore (2009 (244) E.L.T 573 (Tri,) f) CCE Vs Pure Rice Ltd (2007 (217) E.L.T 173 (P&H) g) CCE Hyderabad Vs Dr. Reddy Laboratories Ltd (Final Order No. 46/2010 dated 27.01.2010) h) Government of India....
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....ch are stated and decided above. Appellant vide letter dated 21.09.2010 sought permission for destruction and disposal of obsolete components which were unfit for manufacture and the department vide letter dated 4.11.2010 had communicated that there are no provisions in Customs / Central Excise to allow destruction of unutilised components and therefore, they are required to pay applicable duties in full before destruction. Aggrieved by this letter, appellant filed an appeal before the Commissioner (A), who in turn rejected their appeal as premature. Hence, this present appeal. 16. We find that the appellant has filed an appeal before us against a letter issued by the Commissioner (A), wherein the Commissioner (A) has observed as under: "1. Please refer to the appeal filed in this office on 03.01.2011 by you based on the letter issued by the jurisdictional Range Officer, on perusal of the said appeal, it is observed that you have paid the duty under protest vide TR-6 Challan No.015 dated 19.11.2010 Rs.6,31,717/- towards payment of duty for destruction and disposal of obsolete raw materials/components based on the instructions in the letter cited supra by the Superintend....