2011 (6) TMI 647 - AT - Customs

Stay demand of Customs duty - in respect of raw material (zinc dross) imported by them under 8 advance licences and used in the manufacture of the resultant product (zinc oxide), which was diverted to the domestic market Held that - conditions of Notifications No. 93/2004 and 94/2004 would require the licensee under the DEEC Scheme to export the resultant product manufactured out of his imports even after discharge of export obligation. respondent admitted their liability under Section 108 of the Customs Act. They also paid an amount of Rs 1.12 crores towards duty liability arising out of breach of conditions of the aforesaid Notifications. advance licences were valid at the time of importation. original authority under the FTDR Act had cancelled the advance licences ab initio and the Additional DGFT (appellate authority) had upheld that decision. The appellate authority s order was set aside by the Hon ble High Court for the purpose of remand. Consequently, the original authority under the FTDR Act is required to reconsider the question whether the advance licences were liable to be cancelled. Commissioner could not have taken the final view that the advance licences were valid at the time of importation. For these reasons, the learned Commissioner s order is prima facie unsustainable and its operation is liable to be stayed. Stay application allowed

Issues Involved:
1. Legitimacy of the department's demand for Customs duty on imported zinc dross.
2. Interpretation of the conditions under Customs Notifications No. 93/2004 and 94/2004.
3. Compliance with the Foreign Trade Policy 2004-09.
4. Validity of the advance licences at the time of importation.
5. Prima facie case for granting stay of the Commissioner's order.

Issue-Wise Detailed Analysis:

1. Legitimacy of the department's demand for Customs duty on imported zinc dross:
The department demanded Customs duty of Rs. 2,89,78,356/- from the respondent for zinc dross imported under eight advance licences, which was used to manufacture zinc oxide and subsequently diverted to the domestic market. The Commissioner of Customs dropped these demands, leading to the department's appeal. The show-cause notice also proposed penalties under Sections 112 and 114A of the Customs Act and the confiscation of seized goods under Section 111(o).

2. Interpretation of the conditions under Customs Notifications No. 93/2004 and 94/2004:
The DEEC Scheme and the corresponding exemption notifications required the imported raw material to be used in the manufacture of the resultant product and exported. Condition (ii) of Notification No. 93/2004-Cus. specified the endorsement of Shipping Bill particulars on advance licences, while Condition (iii) required a bond to be executed. Condition (v) mandated the discharge of export obligation within the prescribed period. The department argued that the resultant product should be physically exported, while the respondent claimed that post-fulfilment of export obligation, they could dispose of the resultant product domestically.

3. Compliance with the Foreign Trade Policy 2004-09:
The department referred to para 4.1.3 of the Foreign Trade Policy, which indicated that inputs imported under advance licences should be incorporated into the export product. The respondent referred to para 4.1.5 of the Policy, which allowed disposal of the product manufactured from duty-free inputs once the export obligation was completed. The Tribunal noted that para 4.1.3 required the input to be physically present in the export product, implying that the resultant product should be exported.

4. Validity of the advance licences at the time of importation:
The Commissioner had found the advance licences valid based on a remand order from the Hon'ble Bombay High Court. However, the Tribunal noted that the original authority under the FTDR Act was yet to reconsider the validity of the licences, making the Commissioner's conclusion premature.

5. Prima facie case for granting stay of the Commissioner's order:
The Tribunal found several infirmities in the Commissioner's order, including erroneous references to the conditions of the Notifications and misinterpretation of terms. Given these issues and the pending reconsideration of the validity of the advance licences, the Tribunal found a prima facie case for the Revenue and granted a stay on the operation of the Commissioner's order.

Conclusion:
The Tribunal allowed the department's application for a stay on the Commissioner's order, finding a prima facie case in favor of the Revenue. The appeal was directed to be clubbed with related appeals for a final hearing.

← Previous Next →