2003 (1) TMI 208 - AT - Customs

Summary

Issues Involved:
1. Nexus requirement between imported goods and export products under the DEEC Scheme.
2. Validity of duty exemption under Notification No. 80/95-Cus.
3. Interpretation of transferred licences and their conditions.
4. Confiscation and penal action on imports under transferred licences.

Detailed Analysis:

Nexus Requirement Between Imported Goods and Export Products Under the DEEC Scheme:
The central issue in this case is whether an importer holding a transferred licence can import a product that has no nexus with the export product exported by the original licence holder and whether such imported product can be granted exemption from customs duty. The adjudicating Additional Commissioner found that the imported product (white marble slabs of Greek origin) had no nexus with the exported product (green marble tiles of Indian origin), thus denying the duty exemption. The DEEC Scheme requires that materials imported duty-free must be necessary for the manufacture of the export product, establishing a "nexus" between the two.

Validity of Duty Exemption Under Notification No. 80/95-Cus.:
The Notification No. 80/95-Cus., dated 31-3-1995, specifies that only materials required for the manufacture of export products are eligible for duty exemption. The term "materials" includes raw materials, components, intermediates, consumables, computer software, and parts. The Additional Commissioner concluded that since the imported goods did not meet this criterion, they could not be granted duty exemption. The Commissioner (Appeals) erroneously concluded that once a licence is transferred, no further nexus needs to be established, which contradicted the notification's requirements.

Interpretation of Transferred Licences and Their Conditions:
The DEEC Scheme allows for the transfer of licences after fulfilling export obligations, but the nexus requirement remains. The Commissioner (Appeals) relied on a superficial interpretation, stating that customs authorities could not re-evaluate the nexus once the DGFT made the licence transferable. However, the Tribunal found that the DGFT's endorsement of transferability does not waive the need to establish a nexus at the time of import. The Tribunal also referenced various circulars and case laws, emphasizing that the nexus must be verified upon import, even under transferred licences.

Confiscation and Penal Action on Imports Under Transferred Licences:
The Tribunal held that while imports under transferred licences should be allowed if they conform to the licence description, they cannot be granted duty exemption if there is no nexus with the export product. The Tribunal set aside the order of confiscation and penalty, stating that although the imported goods did not qualify for duty exemption, they should not be confiscated or penalized if they matched the licence description.

Conclusion:
The Tribunal concluded that the imported product had no nexus with the export product, thus denying the duty exemption under Notification No. 80/95-Cus. The Tribunal set aside the Commissioner (Appeals)'s order, which had granted the exemption erroneously. However, it also ruled that imports under transferred licences should not be subject to confiscation or penalties if they conform to the licence description, even if they do not qualify for duty exemption. The Department's appeal was allowed concerning the duty demand, but the confiscation and penalty orders were set aside.