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TMI Blog2010 (6) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire premises of 100% EOU should be treated as a warehouse? (b) Whether the imported goods warehoused in the premises of 100% EOU is to be held to have been removed from the warehouse before the same is issued for manufacture/production/processing by the 100% EOU? (c) Whether issue for use by 100% EOU would amount to clearance for home consumption? (d) Whether non-filing of ex-bond bill of entry before using the goods by the 100% EOU makes the goods as not cleared for home consumption? (e) Whether the decision of the Tribunal in the case of STI India Ltd. [2008 (222) E.L.T. 112 (Tribunal)] cited supra enuntiates correct position of law? 2. Briefly, the background of the case is that the Appellants are a 100% EOU in Alwar. They impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned goods were assessed on into bond Bills of Entry. The Department has no case that the impugned goods were removed from the warehouse or were not used in the production of articles exported. As the impugned goods were not cleared from the warehouse, there was no collection of duty on the goods entailing short levy. Therefore, there cannot be any demand under Section 28 of the Customs Act. The demand is there fore, not sustainable. As there is no finding that the appellant committed any act of omission or commission rendering the goods liable for confiscation under Section 111 of the Customs Act, we find that no penalty is imposable on the appellants under Section 112 of the Act." 5. The above view taken by the Tribunal in STI India (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Union of India v. Apar Pvt. Ltd. reported in 1999 (112) E.L.T. 3 (S.C.) to support his contention in this regard. He further cites the decision of the Tribunal in the case of Krishna Filament Ltd. v. CCE, Mumbai-III reported in 2002 (143) E.L.T. 100 which holds that "home consumption" has to be understood vis a-vis deposit in warehousing and that there cannot be a deemed removal for home consumption. He states that the decision in the case of STI India Ltd. (supra) reflects the correct position in law according to which there cannot be any duty demand for utilization of imported goods within a 100% EOU for manufacture in bond. 7. Shri Vijai Kumar, learned SDR appearing for the Department states that the entire premises of the 100% EOU c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs duty on imported and export goods and allied matters. In so far as the imported goods are concerned, Section 46 of the Act provides for presentation of a Bill of Entry for home consumption or for warehousing. Section 47 deals with clearance of goods for home consumption. Warehousing provisions are contained separately in Chapter IX of the Customs Act. "Warehouse" is de fined in Section 2(43) of the Act. Under Section 58 of the Act, a warehouse can be licensed only at a place declared as a warehousing station under Section 9 of the Act. Section 65 of the Act deals with manufacture and other operations in relation to warehoused goods. Section 66 contains the power to exempt material used in the manufacture of goods in a warehouse. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of export. 10. On a perusal of the provisions relating to warehousing in the Customs Act, 1962 and the provisions relating to EOU Scheme under the Customs Manual, we find that the entire premises of a 100% EOU is required to be licensed as a customs bonded warehouse and the imported goods are required to be imported directly to such premises. The manufacturing is also required to be done within the bonded premises. Hence, we find support for the contention of the appellants that the entire premises of 100% EOU is a bonded warehouse. Neither the Manual nor the Customs Act speaks of any requirement to pay any duty on the warehoused goods which are used for manufacture in bond nor it requires filing of any ex-bond bills of entry at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kohinoor (Supra) in support of the argument that captive consumption should be treated as deemed removal. We note that the said decision was rendered in the context of manufactured goods captively used in the further manufacture of other excisable goods and in the context of levy of excise duty under the Central Excise Act, 1944. In our view, the ratio of the said decision rendered in the context of levy of Excise duty, cannot be applied to a case of manufacturing in bond under the Customs Act, 1962 for which separate and specific provisions are contained in the said Act. None of these provisions stipulate that using the imported warehoused material for manufacture in bond in the same warehouse would amount to removal for home consumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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