TaxTMI 
TaxTMI 
2025 (1) TMI 854
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....ct, 1962; (ii) I also confirm the demand of interest, at the appropriate rate, and order its recovery from them under the provisions of Section 28 AA and 72 of the Customs Act, 1962; (iii) I also impose a penalty of Rs. 14,00,00,000/- (Rupees Fourteen Crores only) upon the party under Section 72(1)(a) and Section 112(a)(ii) of the Customs Act, 1962. If the duty as determined and interest payable hereon is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person shall be twenty- five per cent. of the penalty so determined subject to the condition that such reduced penalty is also paid within the period so specified 2.1 Appellant with address B-1, Sector-81, EHTP Unit, Phase I, Noida were registered with the Central Excise Department, having been granted Registration No.AAACS5123KXM005, as an EHTP Unit for manufacture of excisable goods namely Mobile Phone Handsets falling under Chapter sub-heading of 85171210 and 85171290 of the First Schedule of the Central Excise Tariff Act,1985, and Tablet Computer falling under Chapter sub- heading of 84713090 of th....
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..../IA/Misc/1125/2015 dated 03/07/15 to intimate and produce the relevant documents pertaining to de-bonding of the goods and consequent discharge of duty liability 2.6 Appellant along with their letter dated 23/11/2015 inter-alia submitted copy of the Annexure-III No.001/14-15 dated 28/02/2015 which was issued by the jurisdictional Deputy Commissioner in terms of serial No. 431 of the Notification No. 12/2012-Cus dated 17.3.2012, and which was utilized by them to discharge/adjust the duty liability payable at the time of de-bonding of the raw materials. The calculation sheet which was attached to the said Annexure-III No. 001/14-15 dated 28/02/2015 was also produced. 2.7. On examination of the said Annexure-III No. 001/14-15 dated 28/02/2015, it was seen that the same was applied by the said DTA unit under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 (in short the IGCR, 1996) for import of 1294708259 quantity of goods having estimated value of Rs.6,640,687,425.58/- involving Customs duty of Rs.1,493,369,968/-. It was pertinent to mention that the said Annexure III erroneously bore the stamp of the Appellant as the app....
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....ed, at the time of de-bonding of the EHTP Unit, without payment of the applicable duties and thus rendered themselves liable for penalty under the provisions of Section 72 and Section 112 of the Customs Act, 1962. 2.11 A show cause notice dated 18.02.2016 was issued to the appellant asking to Show cause as to why; (i) Customs duty amounting to Rs. 149,33,69,968/- Rupees One Hundred Forty Nine Crores Thirty Three Lacs Sixty Nine Thousand Nine Hundred Sixty Eight only) on imported raw material valued at Rs. 6,640,687,425/- removed from bonded area to DTA unit without payment of duties in contravention of Notification No. 52/2003-Cus dated 31/03/2003 should not be recovered from them in terms of section 28 and 72 of the Customs Act, 1962 and B-17 bond submitted by them should not be invoked to recover the said duty. (ii) appropriate interest on the above amounts of Customs duty should not be recovered in terms of section 28AA and 72 of the Customs Act, 1962 and the B-17 bond submitted by them should not be invoked to recover the said interest; (iii) imported raw material valued at Rs. 6,640,687,425/- and involving Custom duties of Rs. 149,33,69,968/- remo....
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....a Pvt Ltd. [2017 (357) ELT 1148 (T-Del)] • Exemption under Notification No 12/2003 was duly allowed by the jurisdictional authorities. • Reliance placed on Para 6.15 is incorrect as Para 6.18 of the FTP is the provision in relation to de-bonding. • No objection was raised by the Custom Authorities at the time of de-bonding. Hence they also endorsed the view in favour of admissibility of exemption. • Duty is not recoverable under section 28 and Section 72 of the Customs Act,1962 as the duty that has been paid by the appellant is on the basis of assessment/ approval by the jurisdictional authorities. Hence there cannot be a case for short levy or non levy. Reliance is placed on the following decisions: • Cotspun Ltd. [1999 (113) ELT 353 (SC)] • Rainbow Industries [1994 (74) ELT 3 (SC)] • o Mahindra & Mahindra Ltd. [200 (120) ELT 290 (SC)] • Once the final exit has been given by the Development Commissioner, custom authorities could not have re-opened the matter. Reliance on • Universal Biofuels [2019 (369) ELT 111 (T-Hyd)] • Rajhans Impex Pvt Ltd. [2020 (3....
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.... the Foreign Trade policy which was mainly payment of duty on the value of the goods at the time of the import and at rates in force on the date of payment of such duty. Para 6.18 of the FTP relating to Exit from EHTP Scheme categorically provided in clause (a) that such exit shall be subject to payment of Excise and Customs duties and industrial policy in force. The point relating to the condition of payment of duty on the unutilized goods by the EHTP unit for exiting from the EHTP scheme is not disputed by the appellant also. Their claim is that in their case the effective rate of customs duty was nil amount as they were eligible to clear the goods uander exemption Notification 12/2012-cus and 21/2012-cus to their DTA unit against Annexure I issued to them under Customs (Import of Goods at concessional rate of duty for manufacture of excisable goods) Rules,1996 (hereafter IGCR in brief). In Para 54.11 of the OIO that the goods cleared by the appellant to the DTA unit are not covered under IGCR as the goods cleared by the appellant are not physically imported by the DTA unit from abroad as is envisaged in IGCR, read with Section 2(23) of the Customs Act and Patra 6.15 of the FTP a....
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....become import of goods in DTA just because Excise duty equal to aggregate of Customs duty is payable in respect of goods manufactured by EOU. Therefore, the appellant's argument in Para E.7 of the appeal that Para 6.15 nowhere provides that transfer/sale of goods from EOU to DTA shall not be treated as imports is entirely absurd and is not supported by any objective material. • The appellant's another claim that the Commissioner has wrongly relied upon para 6.15 of the FTP despite it is not applicable to them and Para 6.18 of the FTP read with Notification 52/2003-Cus is a complete code (parasE.1 to E.4 of the appeal) is also bereft of any substance as Para 6.15 of FTP does not suggest anywhere that it is not applicable to the cases of sale/transfer of unutilized materials at the time of debonding of the unit. Para 6.15 and para 6.18 are part of the Chapter 6 of the FTP relating to the scheme of 100% EOU/EHTP and deals with the issues such as removal/ transfer of unutilized materials before or as part of debonding and both are supplementary and complementary with each other. These two paras and notification 52/2003 Cus clearly provide that duty is payable on th....
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....mpliance of specified condition like following of IGCR,1996 or other. Being general in nature, such general exemption notification does not have any link with the FTP and the eligibility to such notification is entirely determined by the terms and conditions of each notification. • Para 6.15, 6.18 of FTP and Notification 52/2003-Cus concerning EHTP provide for payment of duty on the clearance of unutilized materials. As regards the appellant's eligibility to clear goods at nil rate to the DTA unit by claiming exemption under sl.no.431 of Notification 12/2012-Cus, there is no dispute that a general exemption is provided to any manufacturer on parts and components and accessories for the manufacture of mobile handsets when imported into India subject to condition 5 which is that the importer follows the procedure set out in the IGCR,1996. Thus, the exemption under this notification is available for goods imported in accordance the procedure laid down under IGCR,1996 and it is not extended to the goods already imported under other schemes like EOU or EPCG etc. Rule 2 of IGCR,1996 clarifies at the outset that these rules are applicable to an importer who intends to ava....
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....is demanded at the effective rate of duty in the present case there is no disobedience of the apex court's decision in the case of Goodyear India Itd. Vs. CC, Mumbai, 1997(90)ELT 7 (SC) and Tribunal decision in the case of Trans Freight Containers Ltd.Vs. CCE, 2012 (277) ELT 168 (Tri) wherein it is held that the duty is payable by considering the benefit of exemption notification. Similarly, the decisions of the Supreme Court in the cases of Kesoram Rayon Vs. CC, Calcuttaa,1996(86) ELT 464 (SC) and M/S SBEC Sugar Ltd. Vs. UOI, 2011(264) ELT492 (SC) are also held to be of no help because the department has demanded duty at the rate prevalent at the time of removal o0f goods from the bonded warehouse. The appellant's another defense that assuming that a procedural requirement is not fulfilled, it cannot be a reason to deny the benefit is already discussed in detail in 54.12 of the 010 and their reliance on the decision in the case of Udai Shankar Triyar Vs.Rani Kalewar Prasad Singh, 2005 AIR SCW 5851 is not relevant in the present case as the case does not involve just procedural defects and instead noncompliance of the conditions of the exemption notification claimed by them....
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....bsequently is also not pertinent in the present proceeding as, irrespective of whether they can avail it subsequently or not t, the fact cannot be denied that the goods cleared by the EHTP had been imported duty free under notification 52/2003-Cus and not by the DTA Unit under notification 12/2012-Cus by following IGCR procedure and this basic fact annot be altered even if their above submission is accepted. Consequently, the exemption to the DTA in respect of the goods not imported under notification 12/2012-Cus cannot be extended and the decisions in the cases of Unicom Laboratories. CCE, Bombay, 2002 (7) SCC 145, Lily Foam Industries Vs. CCE, 1990 (46) ELT 462 Tri.), Bakeman's Home products Pvt. Ltd. Vs. CC, Bombay, 1997 (95) ELT 278 (Tri.) and Decora Ceramics Pvt. Ltd. Vs. CCE, Rajkot, 1998 (100) ELT 297 (Tri.) decided in different context are not having any bearing on the present case. • The appellant's contention in Para J of the appeal that duty and interest is not recoverable under Sections 28 and 72 of the Customs Act since demand of duty itself is not sustainable is totally based on their assumption that they have availed the exemption under notificat....
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....s while debonding the goods without payment of duty is not relevant here as the action decision of a field officer of any level is not final and department is having full legal authority under section 28 and others to recover duty if not paid or short paid. Mere approval of any wrong action by any officer cannot accord an immunity to any beneficiary against recovery action. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 On the merits of the demands impugned order records the findings as follows: "54.8 Before proceeding further in the case to decide the issue, it would be appropriate to refer to the relevant provisions of the Notification No. 52/2003-Cus dated 31/03/2003, Notification No. 12/2012-Cus dated 17/03/2012, Notification 21/2012-Cus dated 17/03/2012 and Customs (Import of Goods at Concessional Rate for Manufacture of Excisable Goods) Rules, 1996 and Foreign Trade Policy 2009-14. The same are reproduced below Para 4 of the Notification No. 52/2003-Cus dated 31/03/2003 reads as under: "4. Without prejudice to any other provision contained in this notification, the said of....
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....e case may be, and falling within the Chapter, heading, sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in. the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the standard rate specified in the corresponding entry in column (4) of the said Table: (b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act 1975 (51 of 1975) as is in excess of the additional duty rate specified in the corresponding entry in column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this notification, the condition number of which is mentioned in the corresponding entry in column (6) of the said Table. Under the SI No. 431 of the aforesaid Notification No. 12/2012-Cus dated 17/03/2012 all goods under any Chapter having following description has been specified as under: "(i) parts, components and accessories for the manufacture of mobile handsets; (ii) sub-parts for ....
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....s, (1) the State of destination where such goods are intended to be sold for the first time after importation on payment of value added tax: and (ii) his value added tax registration number in that State.' Under the SI. No. 1 of the aforesaid Notification No. 21/2012-Cus dated 17/03/2012 goods having following description has been specified: "1. Any Chapter - All goods which are exempt from the whole of the duty of customs leviable thereon or in case of which "Free" or ."Nil" rates of duty of customs are specified in column (4) under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and which are also exempt from the whole of additional duty of customs leviable thereon under subsection (1) of section 3 of the said Act, or on which no amount of the said additional duties of customs is payable for any reason. Further, in the column of Standard Rate under SI. No. 1, 'NIL' rate has been specified Customs (Import of Goods at Concessional Rate of duty for manufacture of Excisable goods) Rules, 1996- "4. Application by the manufacturer to obtain the benefit.- (1) A manufacturer who has obtained a certificate referred to in....
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....o. 305/113/94-FTTdated 19.02.1998 I find that the party has submitted that vide Circular F.No. 305/17/86-FTT dated 11.07.1990 it has been clarified that the goods manufactured by units in EHTP and cleared in DTA, would only be eligible to the benefit of unconditional customs exemption notification which reduces duty generally. I find that in the present case the raw material has been de- bonded under conditional Notification No. 12/2012-Cus dated 17.3.2012. Further, Circular F.No. 512/19/93-Cus.VI dated 18.5.1994 updated vide Circular F.No. 07/2001-Cus dated 06.02.2001 refers to manner of calculation of duty on the goods manufactured and cleared by EOUs and has clarified that duty payable shall not be less than excise duty on like goods manufactured in India. Similarly vide Circular F.No. 305/83/94-FTT dated 15.9.1994 it has been clarified that Export Oriented Units are permitted to clear goods manufactured by them into Domestic Tariff Area in accordance with the provisions of the Exim Policy on payment of applicable duty of excise/customs. The duty payable on the manufactured goods is linked to aggregate of Customs duty leviable on the like goods if imported into....
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....t the department is also stressing the same i.e the rate of duty should be calculated after granting the benefit of applicable exemption notification. 54.11 I find that the party has submitted that they have imported parts and components for manufacture of mobile handsets under SI. No. 431 of Notification No. 12/2012-Cus dated 17.3.2012. I find that Notification No. 12/2012-Cus dated 17.3.2012 provides conditional exemption, whereby under Condition No. 5 it has been specified that the importer has to follow the procedure set out in Customs (Import of Goods at Concessional Rate of duty for manufacture of Excisable goods) Rules, 1996 (here-in-after referred to as IGCR, 1996). I find that Para 6.15 of the FTP 2009-14 expressly stipulates that such unutilized materials may either be transferred to another EOU(s), or cleared to DTA on payment of applicable duties/submission of import authorization, or exported. Further, the Para 6.15 of the FTP 2009-14 expressly stipulates that only when unutilized materials are transferred from EOUs to another such unit, such transfer would be treated as import for the receiving unit. In other words, in terms of the Para 6.15 of the F....
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....ction 2(23) of the Customs Act, according to which import, with its grammatical and cognate expression means bringing into India from a place outside India.' I find that the above decision of Larger Bench has been followed in a number of decisions such as Winsome Yarns v. CCE, Chandigarh [2001 (127) E.L.T. 833 (Tri.)], Parle Soft Drinks (P) Ltd. v. CCE, Chennai [2004 (177) E.L.T. 584 (Tri.)], Sarla Polyster Ltd. v. CCE, Vapi [2008 (226) E.L.T. 238 (Tri.)], Molex (India) Pvt. Ltd. v. CCE, Banglore-I[2016 (341) E.L.T. 463 (Tri.)] and CCE v. H.K. Moulders [2011 (268) E.L.T.43 (Guj.)] Therefore, in view of the said provisions of IGCR, 1996 read with para 6.15 & 6.18 of FTP 2009-14, clarifications issued vide Board's Circular No. 91/2002-Cus dated 20.12.2002 & Circular No. 8/2004-Cus dated 28.1.2004 and following the ratio of judicial pronouncements, I find that the clearance/de-bonding of said raw material by the party (an EHTP unit) to the DTA unit cannot be treated as "import" by the said DTA unit. Hence, the said DTA unit cannot be said to have complied with the conditions of IGCR, 1996 in so far as the clearance/de-bonding of unutilized raw material by the par....
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....d "intended use". I find that Notification No. 52/2003-Cus dated 31.3.2003 is a conditional exemption notification. At Para 4(b) of the same, it has been stipulated that raw material can be de- bonded upon payment of duty on the value at the time of import and the rates in force on the date of payment of such duty. Further, as discussed at para 54.11 above, the said DTA unit is ineligible for exemption under Notification No. 12/2012 dated 17.3.2012 in respect of the clearances/de-bonding of raw material from their EHTP unit. Therefore, as per the provisions of Notification No. 52/2003-Cus dated 31.3.2003 and following the ratio of above referred judicial pronouncements, the party should have de-bonded the raw material upon payment of duty, i.e. on the tariff rates in force on the date of payment of such duty 54.13 I find that the party has relied on the decision passed in the case of Kesoram Rayon vsS. CC, Calcutta [1996 (86) E.L.T. 464 (S.C.)], wherein it was held that the duty would be payable at the rate applicable on the date of the deemed removal from the warehouse. Same view has taken in the case of M/s. SBEC Sugar Limited & Another vs. Union of India [2011 ....
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....nder Section 28 and/or modified in an appeal, that order stands. So long as the assessment order stands, the duty would be payable as per that order [paras 6, 8]" Similarly in the case of CC, Banglore v. BPL Ltd. [2015 (325) E.L.T. 467 (S.C.)] the Apex Court allowed the petition of the department and held as follows "Refund - Maintainability of - Assessment order, non-challenge to - Tribunal in its order merely discussing classification of equipment of television broadcasting without dwelling on real issue of refund - Classification issue having already been settled earlier, refund claim not maintainable.......... [para 2]" Therefore, following the ratio of above judicial pronouncements, I find that the party's claim that merely because it did not claim Notification No. 12/2012-Cus dated 17.3.2012 at the time of importation does not mean that they are not entitled to do so, is liable to be summarily rejected, as in respect of the Bills of Entry, against which said import has been made, assessment orders have become final. 54.15 Further, vide their additional reply dated 23.02.2017, the party has submitted that - "As in the context of Excise, ....
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....w Delhi 2015 (318) E.L.T. 3 (S.C.)." I find that vide decision in the case of Purolator India Ltd. Vs CCE, Delhi-III [2015 (323) E.L.T. 227 (S.C.)], supra, it has been held that if a benefit is allowable, the same should be allowed. However, as discussed at para 54.14 above, the benefit under Notification No. 12/2012-Cus dated 17.3.2012 to the party (an EHTP unit) is not allowable in the present case. The party has further submitted that following the ratio of the Judgment passed in the case of Thermax Private Ltd, Versus Collector of Customs 1992 (61) E.L. T. 352 (S.C.), supra, the exemption under Notification No. 12/2012-Cus dated 17.3.2012 should be extended to them. I find that in the case of Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal [2010 (260) ELT 3 (SC)], a Constitution Bench of the Apex Court considered the decision of Thermax Private Limited v. The Collector of Customs (Bombay), (supra), and held that - "a provision for exemption, concession or exception, as the case may be, has to be construed strictly and if the exemption is available only on complying certain conditions, the conditions have to be complied with. In the aforesaid decision....
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....India at rates specified in the First and Second Schedule to the Central Excise Tariff Act, 1985. However, as per the proviso to the said sub-section, goods produced or manufactured by Export Oriented Units [EOUs] units and cleared to domestic tariff area [DTA] are liable to excise duty equal to the aggregate of duties of customs leviable on like goods when imported into India. For such clearances from EOUs to DTA, Notification No. 22/2003-CE dated 31.03.2003 prescribes effective rates of excise duty on such DTA clearances under different circumstances. 2. In this context, proviso to sub-section (1) of section 5A of the Central Excise Act, 1944 states that unless specifically provided in a notification, no exemption therein shall apply to excisable goods which are produced or manufactured by an EOU and cleared to the DTA. 3. Further, EOUs are eligible for duty free import or domestic procurement of their inputs or raw materials under Notification No. 22/2003-CE dated 31.3.2003 and Notification No. 52/2003- Customs dated 31.03.2003. However, as per a proviso [the second proviso to para 6 in case of Notification No. 22/2003-CE and first proviso to para 3 in case of ....
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....rms of the above clarification issued by the JS (TRU) benefit of the exemption as per notification No 12/2012 would be admissible to the EOU/ EHTP subject to fulfillment of the conditions of the notification. The benefit of the said exemption would be available to them at the time of importation of the goods or even at the time of removal of the goods either on debonding or otherwise. The condition 4 of Notification No 52/2003 referred in the impugned order, cannot be reason for denial of the said benefit. Undisputedly the condition prescribed by the said notification had been complied and a bond for Rs 1000 crores was accepted by the jurisdictional authorities on 28.02.2015 as required in terms of IGCR, 1996. 4.6 From the clarification issued by the TRU referred above, it is evident in case the EOU/ EHTP can claimed the benefit of the said notification at the time of import of the said goods even without seeking fresh registration under Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2016 or the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable and Other Goods) Rules, 2016. The said clarif....
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....ls with debonding of 100% EOU. Thus it is apparent that debonding and permission to sell in India are two different things having no connection with each other. It also becomes apparent that in view of the EOU Scheme as modified from time to time and corresponding amendments to Section 3 of the Act the expression "allowed to be sold in India' in proviso to Section 3(1) of the Act is applicable only to sales made up to 25% of production by 100% EOU in DTA and with permission of the Development Commissioner. No permission is required to sell goods manufactured by 100% EOU lying with it at the time approval is granted to debond. 19. Revenue has proceeded on the assumption that by debonding permission has been granted by the BOA for selling the closing stock of finished goods in India. This cannot be so. BOA does not concern itself with the manner of the disposal of the closing stock of the finished goods. After debonding it is open to the erstwhile 100% EOU, which is now like any other manufacturing unit in India to sell the goods in India or export it by following the normal procedure. ..... 23. Concept of bonding or debonding is well understood both under ....
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....ion that exemption notifications issued under the Customs Act would be applicable in the facts of the present cases. The Tribunal held : "We have considered the submissions. The basic issue to be determined is whether the clearances made by 100% EOUs are entitled to concessional rate of Customs duty provide under EPCG Schemes. The adjudicating authority has laid a great emphasis on the fact that what is payable under Section 3 of the Central Excise Act by the 100% EOUs in respect of DTA clearance is the Central Excise duty and not Customs duty and therefore, the exemption notification issued under Customs Act and the exemption notification issued under Section 5A will not be applicable in respect of clearances effected by 100% EOUs unless specifically provided for in the notification itself. We, however, find that the Commissioner has failed to observe that even though what is required to be paid is in the nature of central excise duty but through a legal fiction, clearances by 100% EOUs have been placed at par with the imports and it is for this reason that the duty required to be paid is equal to the aggregate of Customs duty payable on such like goods if produced or man....
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....ve Components P Ltd. [2015 (328) ELT 620 (T-Del)] following has been held: "7. As regards the exemption from Basic Customs Duty under Notification No. 21/2002-Cus. (Sl. No. 200) in respect of Steel scrap cleared into DTA, this exemption notification exempts fully and unconditionally, the "melting scrap' imported into India. In respect of the DTA clearances of scrap made by the appellant, the duty is payable in terms of proviso to Section 3(1) of Central Excise Act, 1944 and the quantum of this duty payable would be the Basic Customs Duty plus Additional Customs Duty plus Special Additional Customs Duty (SAD) plus education cess & S&H cess. Notification No. 23/2003-C.E. prescribes the concessional rate of duty in respect of DTA clearances subject to the conditions specified in para 6.8 of the Foreign Trade Policy. Irrespective of whether the duty on the DTA clearances is paid at the concessional rate under Notification No. 23/2003-C.E. or the duty is paid without availing of this exemption on the full rate prescribed under proviso to Section 3(1), the Basic Customs Duty would have to be calculated at the rate applicable to the import of like goods into India, read with any ....
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...., as applicable to the DTA clearances of a 100% EOU, have been substantially satisfied and hence the goods would be fully exempt from SAD as, in our view, the benefit of this notification, which has been issued for the goods imported by a person for subsequent sale and whose condition have been prescribed accordingly, cannot be denied in respect of DTA clearances of a 100% EOU if the condition as applicable mutatis mutandis to DTA sales are satisfied. The duty demand based on this issue is also not sustainable.' In case of Salora Components referred by the appellant at the time of arguments, following has been held: "4. We have carefully considered the submission made by both the sides and perused the records. The following issues arise to be decided in this appeal : (a) Whether the value of imported goods enhanced at the time of filing of into bond, bill of entry can be challenged against the ex-bond bill of entry. (b) Whether the appellant is entitled for exemption notification Nos. 25/2002-Cus., dated 1-3-2002 and 25/1999-Cus., dated 28-2-1999 in a case when the Customs (Import of Goods at Concessional Rate of duty for Manufacture of Excisable Goods....
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....resentation of the exemption certificate issued by the jurisdictional officer and on that basis, the movement of goods from the port up to the factory of the appellant is done under bond. More or less the similar procedure is followed either in notification 52/2003 or under notification 25/1999-Cus. and 25/2002-Cus. Therefore, the movement of goods imported by the appellant from Custom port up to the factory as well as use thereof is completely within the monitoring of the department. Even in the case of procedure prescribed under Customs Rules, 1996, similar procedure is followed. Therefore, even if the procedure of Customs Rules 1996 was not followed but practically the similar procedure was followed with reference to notification 53/2003-Cus., if any lapse on the part of the appellant it is mere procedural lapse. For this reason, the substantial benefit of notification Nos. 25/1999-Cus. and 25/2002-Cus. cannot be denied. The judgments cited by the Ld. Commissioner (A) is in the facts of the case where the goods are cleared from the Customs and received by DTA unit which are not under the control of Customs/Excise department whereas the facts of the present case is different as t....
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....Court held as follows: 6. The Tribunal, after considering the submissions advanced on behalf of the assessee observed that the assessee had filed bill of entry which was assessed by the proper officer, who, never pointed out that the countervailing duty or special additional duty was also required to be paid by the assessee. The Tribunal was of the view that no objection having been raised at the time of assessment of the bill of entry, the assessee could not be saddled with any mala fide intention or suppression so as to justifiably invoke the longer period of limitation. According to the Tribunal, this was the case of mistake or lack of knowledge on the part of the assessee as also on the part of the Customs Officer assessing the bill of entry, in which case, the extended period of limitation was not available to the revenue. 7. The facts as emerging from the record of the case indicate that the assessee had filed the bill of entry No. OFL/Debonding/01/2003-04, calculating the Basic Customs Duty @ 5% amounting to Rs. 6,90,875/- on the capital goods availing exemption under Notification No. 21/2002-CUS, dated 1-3-2002. The said bill of entry came to be assessed b....
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....gistration certificate under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods), Rules, 1996 was also taken from the same officer. There can be no doubt about the end-use conditions having been fulfilled in this case. 5.2 He relies on the decision of the Hon'ble Supreme Court in the case of Thermax Private Ltd. v. Collector of Customs [1992 (61) E.L.T. 352 (S.C.)] where in it has been held that the condition of not following Chapter X Procedure while extending the benefit of CVD exemption so claimed deeming the goods as having been manufactured. He also relied on the decision of the Tribunal in the case of Commissioner of Customs, Amritsar v. Malwa Industries Ltd. [2008 (229) E.L.T. 233 (Tri-Del)] wherein the following decision in the case of Thermax Private Ltd., decision was taken that use within the factory of production would mean that the goods in question should not be used in any other factory i.e. anywhere other than the factory for the purpose of manufacture of textile and textile articles. He submits that in both the case, the decision emphasises on substantive compliance of the conditions rather than on the procedure. ....