2019 (12) TMI 953 - AT - Customs

Duty free advance authorization - export of finished goods - quantity of goods importable by them is determined by Standard Input Output Norms (SION) norms. As a result, while they were permitted to import certain quantity against advance authorization duty free, they actually needed the lesser quantity to manufacture the goods required to be exported - N/N. 93/2004-Cus and 96/2009-Cus. HELD THAT - Para 4.28 relates to regularization of bonafide default by exporters. The said provision is applicable only in cases of regularization of default and it cannot be applied straightaway to normal imports where export obligations have been fulfilled like in the instant case. Thus, it cannot be said that the provisions of Para 4.28 of HBP are applicable to all advance authorization. It is seen that the entire foundation of the Revenue s case is based on Para 4.28(v) of HBP 2004-09 and Revenue is seeking apply the said provisions to the case where there is no default. Revenue has failed to notice Para 4.28 of HBP relates only to cases of bonafide default in fulfilling export obligation and it would naturally not apply to the cases where there is no default like in the instant case. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Demand of Customs duty based on efficient manufacturing process.
2. Interpretation of Para 4.28 (f) of Handbook of Procedure, 2004-09.
3. Violation of Notification Nos. 93/2004-Cus and 96/2009-Cus.
4. Invocation of extended period of limitation.
5. Application of Para 4.28 of HBP to cases of bonafide default.
6. Policy permitting the use of leftover material for manufacturing goods.
7. Compliance with Para 4.1.5 of Foreign Trade Policy.
8. Comparison with the decision in the case of KDL Biotech Limited.

Analysis:
1. The appeal was filed against the Commissioner (Appeals) order setting aside the dropping of demand of Customs duty by the additional Commissioner. The appellant argued that the duty was being demanded due to their efficient manufacturing process, which the Revenue based on Para 4.28 (f) (v) of the Handbook of Procedure, 2004-09.

2. The key issue was the interpretation of Para 4.28 (f) of the Handbook of Procedure, 2004-09. The Tribunal found that this provision related to the regularization of bonafide default by exporters and could not be applied to cases where export obligations had been fulfilled. The Revenue's case was solely based on this provision, which was deemed inapplicable in the present scenario.

3. The appellant contended that no conditions of Notification Nos. 93/2004-Cus and 96/2009-Cus were violated, thus no Customs duty could be imposed. They also argued against the invocation of the extended period of limitation, citing a decision of the Hon'ble Gujarat High Court.

4. The Tribunal noted that the policy allowed the use of leftover material for manufacturing goods and clearing them in the domestic market, as per Para 4.1.5 of the Foreign Trade Policy. This provision permitted the disposal of products manufactured from duty-free inputs after completing the export obligation.

5. The comparison with the decision in the case of KDL Biotech Limited was crucial. The Tribunal highlighted that the decision in KDL Biotech Limited upheld the demand based on Para 4.28 (f) of the Handbook, but failed to recognize that this provision applied only to cases of bonafide default, not situations where no default occurred.

6. Ultimately, the Tribunal found merit in the appeal and allowed it, emphasizing that the Revenue's arguments based on Para 4.28 (f) were not applicable to the case at hand. The judgment was pronounced on 20.12.2019.