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TMI Blog1995 (3) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that for the goods imported by them against an Advance Licence and DEEC Book they did not satisfy the conditions of exemption Notification No. 116/88, dated 30-3-1988 as the goods imported by them did not have the same characteristic techincal specfication as those used in the resultant product exported by them. The amount was held to be recoverable from them in terms of the undertaking furnished by them at the time of clearance of the goods. Confiscation of the goods in terms of Section 111(d) of Customs Act, 1962 and penal action under Section 112 ibid was however held to be not warranted. 2. We have heard exhaustive arguments on the prima facie merits of the case advanced by Shri G.L. Rawal, learned Senior Advocate on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 28, Customs Act had been issued. He then wound up his argument with the plea of extreme financial hardship as the appellants are a sick unit due to heavy losses incurred by them. He pleaded for waiver of the amount demanded. 3. Shri K.N. Gupta, learned Senior Departmental Representative submitted in reply that the plea of limitation has no merit. The demand is pursuant to their undertaking to pay the duty on demand by the department. They have not fulfilled the conditions laid down under the relevant notification as held by the Collector and duty is payable. On merits, duty is leviable as the exemption is not available due to the goods imported being of different specifications with different characteristics from the goods used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na) = 1994 (2) RLT 350. The finding of the lower appellate authority in that case was that the goods imported should be identical, as far as specfications are concerned as those actually used in the manufacture of the resultant product. Since the goods in question had a thickness of 019 mm and goods with such thickness had not been used in the resultant product the imported goods were held to be not covered as replenishment material under Notification 159/90-Cus., dated 30-3-1990. This finding was upheld by the Tribunal. A significant factor in this order was that while passing the order the Tribunal followed their earlier decision in the case of the present petitioners themselves where the imports in dispute were the very goods which are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout payment of duty, the duty became payable in terms of the undertaking given by them at the time of clearance of the goods. The Collector ordered for recovery of the same. Before the Collector, the appellants had pleaded that the goods in question being covered by the licence produced by them, which position had been conceded by the department before the Supreme Court when the appellants had moved an SLP and a contempt petition thereafter, the demand of duty will not arise the Collector has, however, observed in his order that the question whether any duty is leviable on the goods in accordance with law is to be determined on merits. As the exemption under Notification No. 116/88 was subject to certain conditions which had not been compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Customs duty then the authorities of the Cutoms Department will have the power to exercise the powers under the Customs Act. 7. We find from a perusal of the impugned order of the Collector that this judgment of the Honourable High Court was cited by the applicants before him. He had observed that as against this judgment, the Honourable Karnataka High Court had held in the case of Kamat Packaging that the Customs and Trade (Control) Authorities have concurrent jurisdiction and the exemption of goods from payment of duty is given by jurisdiction which certainly is the jurisdiction of the Customs Officer. The Customs Officer will, therefore, be within his jurisdiction to take follow-up action and recover duty in case the goods are fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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