2004 (3) TMI 100 - AAR - Customs

Whether duty free clearance of the items detailed therein, proposed to be imported by the applicant, cannot be allowed by Customs from a Customs Bonded Private/Public Warehouse to purchasers of imported goods from the applicant even if they are bona fide and eligible exporters and even though they are eligible to import the said goods duty free? Whether the applicant cannot be allowed to clear items detailed in the question, proposed to be imported, by the customs duty free from Customs Bonded Warehouse so as to supply the same to bona fide and other eligible exporters who are entitled to import those items duty free.?

Issues Involved:
1. Eligibility for duty-free clearance of items from a Customs Bonded Warehouse to bona fide and eligible exporters.
2. Applicant's eligibility to clear proposed imported items duty-free from a Customs Bonded Warehouse for supply to bona fide and eligible exporters.

Issue-wise Detailed Analysis:

Issue 1: Eligibility for duty-free clearance of items from a Customs Bonded Warehouse to bona fide and eligible exporters.

The applicant, M/s. A. Tex (India) Private Limited, sought advance ruling on whether duty-free clearance of items listed in Serial Nos. 140, 167, 167A, and 168 of the Main Exemption Notification No. 21/2002, as amended by Notification No. 26/2003, could be allowed from a Customs Bonded Warehouse to bona fide and other eligible exporters. The relevant legal provisions include Section 28H of the Customs Act, 1962, and the conditions specified in the Main Exemption Notification.

The Authority examined the definition of "applicant" under Section 28E(c) and "advance ruling" under Section 28E(b). The applicant met the criteria as a wholly owned subsidiary Indian company of a foreign holding company, proposing to undertake business activities in India. The questions fell within the scope of clause (b) of sub-section (2) of Section 28H, concerning the applicability of a notification impacting the rate of duty.

The Authority noted that the exemption under Notification No. 21/2002 is subject to specific conditions. For items 140, 167, 167A, and 168, the conditions include being imported by bona fide exporters and fulfilling requirements under Condition Nos. 21 and 21A. Since the applicant was not a bona fide exporter and did not satisfy these conditions, the benefit of the notification could not be extended to them or their purchasers, even if the purchasers were bona fide exporters.

Issue 2: Applicant's eligibility to clear proposed imported items duty-free from a Customs Bonded Warehouse for supply to bona fide and eligible exporters.

The applicant also sought clarification on whether they could clear the proposed imported items duty-free from a Customs Bonded Warehouse to supply to bona fide and other eligible exporters. The Authority reiterated that the applicant must satisfy the conditions specified in the Main Exemption Notification to avail the duty-free benefit.

The Authority concluded that the applicant, not being a bona fide exporter and not using the imported goods as inputs for manufacturing goods for export, could not avail the duty-free benefit. Additionally, the purchasers from the applicant, even if they were bona fide exporters, could not avail the benefit as they did not import the goods themselves.

Judgment:

1. Duty-free clearance of the items detailed in the application, proposed to be imported by the applicant, cannot be allowed by Customs from a Customs Bonded Private/Public Warehouse to purchasers of imported goods from the applicant, even if they are bona fide and eligible exporters.
2. The applicant cannot be allowed to clear the items detailed in the question, proposed to be imported, duty-free from a Customs Bonded Warehouse to supply to bona fide and other eligible exporters who are entitled to import those items duty-free.

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