2016 (3) TMI 218 - AT - Customs

100% EOU - Denial of exemption - Reimbursement of goods short received - Appellant imported cotton on the basis of procurement certificate issued by the designate authority of Customs Central Excise based on which the Custom authorities at the port allowed clearance thereof duty free. Thereafter, at the time of weighment while re-warehousing goods found to be short (in weight), although the number of bales were the same as imported and were intact. The appellant raised debit notes on the supplier for the quantity short received and the supplies reimbursed the same - Held that the entire quantity of bales of cotton imported was received in the factory were intact and there is neither any allegation of diversion nor any evidence to that effect. Even the supplier reimbursed the amount towards shortage noticed in weight which also supports the view that there was no diversion of the duty free goods. Thus none of the conditions of the exemption Notification No. 53/1977-Cus. are violated. Therefore, the demand can not be raised. - Decided in favour of appellant

Summary

Issues:
1. Confirmation of customs duty demands along with interest and penalty under Section 114A of Customs Act, 1962.
2. Procurement of raw material without payment of duty under Notification No. 53/1997-CU.
3. Shortage in weight of imported cotton.
4. Allegation of diversion of goods.
5. Interpretation of Circular No. 462/41/93-CU.
6. Compliance with conditions of exemption Notification No. 53/1997-CU.

Confirmation of Customs Duty Demands:
The appeals were filed against the order-in-appeal confirming customs duty demands totaling &8377; 6,63,988/- and &8377; 2,15,235/- along with interest and penalty under Section 114A of the Customs Act, 1962. The appellant, a 100% EOU, imported cotton duty-free under Notification No. 53/1997-CU based on a procurement certificate. However, a shortage in weight was discovered upon re-warehousing at the factory, leading to a demand by the adjudicating authority. The appellant contended that the weight variation was due to moisture content, supported by a circular condoning variations up to 1%.

Procurement of Raw Material under Notification No. 53/1997-CU:
The appellant imported cotton without duty payment under Notification No. 53/1997-CU, supported by a procurement certificate. Despite the shortage in weight upon re-warehousing, there was no allegation of diversion of goods post-import. The number of bales received matched the Bill of Entry, and the goods were intact and unopened at the factory, witnessed by a customs officer. The CBEC circular allowed condonation of weight variations up to 1%, emphasizing the absence of evidence indicating diversion of duty-free goods.

Shortage in Weight of Imported Cotton:
The appellant raised debit notes for the shortage in weight of the imported cotton, attributing the variation to moisture content differences. The absence of evidence suggesting diversion post-import, coupled with the intact and unopened state of the goods at the factory, led to the conclusion that the demands based on weight discrepancies were unjustified.

Allegation of Diversion of Goods:
Despite the weight discrepancy in the imported cotton, there was no evidence or allegation of diversion of goods after importation. The intact and unopened state of the bales at the factory, along with the reimbursement by the supplier for the weight shortage, indicated no diversion of duty-free goods, rendering the demands unsustainable.

Interpretation of Circular No. 462/41/93-CU:
The circular issued by the CBEC condoned weight variations up to 1%, without providing a scientific basis for the threshold. The tribunal emphasized that the 1% figure was not absolute and could be chargeable if the weight difference resulted from diversion of goods post-import.

Compliance with Conditions of Exemption Notification No. 53/1997-CU:
The tribunal found that the appellant met the conditions of the exemption Notification No. 53/1997-CU, as there was no evidence of diversion of duty-free goods and the entire quantity of imported cotton was intact at the factory. Consequently, the demands were deemed unsustainable, leading to the allowance of the appeals.