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2010 (3) TMI 418 - HC - CustomsEXIM-REP Licences- Show cause notice for illegal import was issued to the applicant. On adjudication, the import was held to be unauthorised, consequently goods were confiscated. In the appeal before the Collector (Appeals), the order of confiscation was confirmed. The matter was taken up before Tribunal in appeal. Tribunal was pleased to confirm the orders of the authorities below. Held that- Ethyl Alcohol mentioned in the licence cannot be read bereft of declaration of actual use as raw material in manufacture of export product, appearing in licence. Only Ethyl Alcohol used in dyes and dye intermediates permitted to be imported. Neutral Malt Spirit not required as raw material or as component of manufactured product, import not covered by REP licence. EXIM Policy, clause 226 specifically laying down that REP licence governed by ordinary law of land which is that transferee bound by conditions put on the transferor. Reference answered in favour of revenue.
Issues Involved:
1. Applicability of the judgment in Bussa Overseas and Properties (Pvt.) Ltd. v. Union of India over SVA Udyog Viniyog Ltd. v. Union of India. 2. Correctness of the Tribunal's preference for the judgment in SVA Udyog Viniyog Ltd. over Bussa Overseas and Properties (Pvt.) Ltd. Issue-wise Detailed Analysis: 1. Applicability of the Judgment in Bussa Overseas and Properties (Pvt.) Ltd. v. Union of India over SVA Udyog Viniyog Ltd. v. Union of India: The case revolves around the import of Neutral Malt Spirit by M/s. Mewati & Co. against a REP license. The Customs authorities objected to the clearance due to the lack of a specific license for these goods, as they were not used in the manufacture of the export product for which the license was granted. The Tribunal had to decide whether the legal issue was covered by the judgment in Bussa Overseas or SVA Udyog Viniyog Ltd. The Tribunal preferred the judgment in SVA Udyog Viniyog Ltd., finding it more appropriate in the context of the Import Export Policy. This preference led to the present Reference to seek the High Court's opinion on whether the judgment in Bussa Overseas, being a direct judgment on similar issues, should prevail over SVA Udyog Viniyog Ltd. 2. Correctness of the Tribunal's Preference for the Judgment in SVA Udyog Viniyog Ltd. over Bussa Overseas and Properties (Pvt.) Ltd.: The Exim Policy 1985-88, specifically clauses 188, 189(1), 193(1), and 195(1), was central to the case. The policy aimed to provide registered exporters with materials required for manufacturing exported products. The license held by the importer was for Product Group-B.16.1, related to Synthetic Organic Dyes. The Tribunal, after thorough discussion, found the judgment in SVA Udyog Viniyog Ltd. more suitable as it aligned with the Import Export Policy. The Tribunal's view was based on the fact that the materials permitted for import under the Exim Policy must be used in manufacturing the export product. Rival Submissions: - Applicant's Argument: The applicant argued that the transferee of a REP license is not required to satisfy the "nexus" test, i.e., the test of use of the imported goods in the product exported by the original licensee. They cited the judgment in Bussa Overseas, where the import of whiskey, gin, and brandy concentrates by a transferee of an REP license was permitted. The applicant contended that the judgment in SVA Udyog Viniyog Ltd. was not applicable as it was based on different factual scenarios. - Revenue's Argument: The Revenue argued that the Exim Policy required the items imported under a REP license to be used in manufacturing the export product. They emphasized that the Neutral Malt Spirit (whiskey) imported by the applicant had no use in manufacturing dyes or dye intermediates. The Revenue supported their argument with the judgment in SVA Udyog Viniyog Ltd., which was confirmed by the Apex Court. Consideration: The High Court analyzed the relevant terms of the Exim Policy and concluded that the material permitted for import under the REP license must have a direct nexus to the goods exported. The Court found that the Neutral Malt Spirit (whiskey) could not be used in manufacturing dyes or dye intermediates, thus, it was not covered by the REP license. The Court distinguished the present case from Bussa Overseas, noting that the license in Bussa Overseas was issued for Ethyl Alcohol without any restriction, whereas the license in the present case contained a specific declaration that Ethyl Alcohol was used in manufacturing the exported product. Conclusion: The High Court held that the judgment in SVA Udyog Viniyog Ltd. was applicable to the present case and the Tribunal was correct in preferring it over Bussa Overseas. The Court also rejected the applicant's argument that the transferee of a REP license is not bound by the actual user condition, affirming that the transferee steps into the shoes of the transferor and is bound by the same conditions. Both questions were answered in favor of the Revenue, and the Reference was accordingly answered with no order as to costs.
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