9911796707
TMI Blog1996 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... re found to have cleared the goods manufactured in their unit in the domestic consumption area and did not export the goods as required under the Scheme. The appellants sold the goods to Seventh day Advebtists who paid the appellants in foreign exchange for their purchase The authorities allowed provisional clearance of the goods pending final decision as to the liability to duty under domestic tariff area. Under the Scheme, goods could be cleared only against licence as items manufactured and cleared by the appellants could not be imported under OGL as per the policy. The appellants pleaded before the authorities that since the goods had been supplied against freely convertible foreign exchange the same should be treated as deemed export. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the Rules made thereunder is not paying the duty as provided thereunder. Therefore I hold that the charges levelled against the unit in the show cause notice stand proved. The party M/s. Almin and Gloss Private Limited, Hosur is liable to pay the duty as demanded in the show cause notice. 2. The learned Counsels for the appellants pleaded that under 100% EOU scheme as incorporated in the export-import policy in terms of Notification 123/81 they were supposed to manufacture the goods out of the imported raw materials which could be cleared without payment of duty and the appellants out of the raw materials procured indigeneously which could be obtained without payment of central excise duty and the goods manufactured in the unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to bond their capital under Section 65 of the Customs Act, 1962 and the appellants also could not be treated as 100% EOU and therefore their manufacture should be considered as only in the context of the goods having been manufactured in bond. He pleaded that duty if at all may be chargeable only under Section 3(3)(ii) and for that purpose therefore, duty should have been charged in terms of Section 12 of the Customs Act, 1962. As it is, he pleaded that no customs classification was done for the purpose of levy. The rate applicable for the purpose, he pleaded will be only 76% and not as held by the learned lower authority. 3. Shri Arulsamy, the learned DR for the department pleaded that the learned lower authority has rightly demanded du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for achieving export target by the undertaking shall be two years, and the period of export obligation shall commence immediately thereafter. During the gestation period, exports shall have to be atleast three fourths of the production. In as much as you have [not] commenced your production so far, necessary renewal of permission by the Department of Industrial Development is necessary". The appellants it is seen, had addressed a letter dated 29-4-1988 requesting for issue of a CT-3 certificate and the authorities have replied vide their letter dated 1-6-1988 as under : As instructed in this office letter dated 12-4-1988 you should contain the renewal from the Ministry of Industry, Department of Industrial Development and send th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods exported : Provided that such waste or refuse is either destroyed or duty is paid on such waste or refuse as if it had been imported into India in that form : (b) if the whole or any part of the goods resulting from such operations are cleared from the warehouse for home consumption, import duty shall be charged on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods cleared for home consumption." It is seen that this section provides for the owner of any warehoused goods to carry on any manufacturing process or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been proceeded against separately for not fulfilling the conditions as a 100% EOU for demand of duty on the goods without payment of duty in terms of the said Scheme. The authorities themselves appear to have been confused as to how to treat this situation as had arisen on account of the appellants not being able to operate as a 100% EOU within the terms of the permission granted to them. It appears that they were allowed the bonding facility under Section 65 without correctly appreciating the legal scope of the said Section. In this view of the matter we hold that the learned lower authority has not examined the position in depth taking into consideration the totality of the circumstances and the correspondence exchanged between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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