2008 (4) TMI 81 - AT - Customs

EOU - Non-fulfillment of export obligation sale to DTA demand on raw materials used in goods supplied to DTA is justified but matter remand for other questions i.e. whether raw materials/components exported as such should suffer import duty, whether duty can be demanded on the raw materials/components still lying in the bonded warehouse etc.

Summary

Issues:
- Demand of duty on imported capital goods not used for manufacturing export goods
- Demand of duty on imported raw materials used in goods sold in DTA/EFC account
- Premature demand of duty before referral to Director, STPI
- Interpretation of Notification No. 53/97-Cus. regarding installation and use of machinery
- Duty on raw materials/components exported and those in bonded warehouse

Analysis:
The appellant, a 100% EOU manufacturing electronic calculators and organizers, appealed against the duty demand on imported capital goods not used for manufacturing export goods. The appellant argued that the capital goods were used for goods sold to DTA with permission, and the export obligation failure was due to an unexpected order cancellation causing losses. The appellant also contended that duty on raw materials used in DTA/EFC goods is not payable, including those exported and in bonded warehouse. The appellant claimed the demand was premature as it was not referred to the Director, STPI before the show cause notice.

The SDR supported the adjudicating authority's findings, citing Supreme Court judgments on penalty for non-fulfillment of export obligation and mis-utilization of goods. The Tribunal found the referral to the Director, STPI unnecessary before issuing the show cause notice, as it was done after the Director's letter. The Tribunal interpreted Notification No. 53/97-Cus., stating that if capital goods are not installed or used within bonded premises, duty is payable. The Tribunal noted the need for the Assistant Commissioner's satisfaction on machinery installation and use.

Regarding duty on raw materials used in DTA goods, the Tribunal found the appellant's arguments unaddressed by the authorities. The Tribunal acknowledged the appellant's argument against duty on raw materials/components exported and those in bonded warehouse. Consequently, the case was remanded to the original adjudicating authority to decide various issues, including duty adjustment on finished products, duty on raw materials/components exported, and the right to abandon goods and installation of capital goods. The appellant was granted a reasonable opportunity for explanation and a personal hearing if required.

In conclusion, the Tribunal remanded the case for further adjudication on the specified issues, providing the appellant with an opportunity to present their case and receive a fair hearing.