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TMI Blog1996 (9) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... d several items of capital goods including one IWK Packing Line UPS-4ET machine. This machine and other capital goods were cleared at nil rate of duty as per Bill of Entry dated 1-12-1982 in terms of Customs Notification No. 77/80 dated 17-4-1980. Using these machines, respondents were manufacturing goods and exporting the same during the years 1983-84 to 1988-89. In 1989, the respondents applied for and obtained permission from the licensing authority, the Controller of Imports Exports, for transfer of the Packing Line Machine from Kandla Free Trade Zone to Domestic Tariff Area (DTA) for use at their own factory in Mulund, Bombay. Transfer was effected and duty was paid under protest on the full value as at the time of import and as dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export the said goods with the permission of the Development Commissioner of the Zone subject to clearance from Customs authorities with reference to valuation etc. In the alternative, the goods may be transferred to an Actual user in the Domestic Tariff Area with the prior written permission of the licensing authority concerned provided (a) the transfer has been recommended by the Development Commissioner of the concerned Zone and the sponsoring authority of the buyer (where the buyer is an Actual user), and (b) the Customs authorities in the Zone have no objection to the goods being transferred to the DTA on payment of Customs duty and other charges, if any. Paragraph 425 of the Handbook of Procedures for the relevant period reads :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viable on such capital goods on the depreciated value thereof at the time of clearance and at rates in force at the time of their import." It has to be noticed that Paragraph 2C is part of the Notification which deals with the duty exemption of capital goods when imported in India for the production of the specified goods etc. within the Kandla Free Trade Zone. 5. Respondents in this case moved the licensing authority, namely, the Chief Controller of Imports and Exports, for permission to move the machine from the Free Trade Zone to Domestic Tariff Area in Bombay for use in their factory and the licensing authority granted the permission. That being so, it can be said that the respondents had obtained permission from the licensing autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India, (b) the permission must have been granted in accordance with the Import-Export Policy of the Government of India for the time being in force, (c) the permission must have been granted by the Kandla Free Trade Zone Board and (d) the capital goods in question have been used within the Zone for a period of not less than three years. 7. A comparison of the conditions in Paragraph 2C of the Notification with the situations referred to Paragraph 333 (3) of the Policy and Paragraph 425 of the Handbook of Procedures shows that the Notification does not relate to all circumstances contemplated by the Policy or the Handbook. While the Policy deals with a situation where a particular item cannot be used any longer in the unit in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cession will be given if the importer is selling the goods to another in the DT Area but not if he proposes to use the goods himself in the DT Area. 8. The respondents if they are to be entitled to the benefit of assessable value being depreciated must satisfy the other conditions contemplated in Paragraph 2C of the Notification. The permissions must have been granted by the Kandla Free Trade Zone Board and grant of permission must have been in accordance with the Import and Export Policy. The reference to the Policy may not be understood as excluding Handbook of Procedures from its scope. There are certain differences between Para 333(3) of the Policy and Para 425 of the Hand book. The Handbook explains the procedures under the Policy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C and the concerned administrative departments. We, therefore, held that in order to obtain the benefit of Paragraph 2C of Notification No. 70/80 permission of the Board for disposal of the goods is necessary. 9. Respondents has not obtained permission of the Board. Respondents obtained only permission of the licensing authority. Hence the respondents are not entitled to the benefit of Paragraph 2C of the Notification. 10. At this stage, the learned counsel for the respondents raised the objection to the effect that the appeal is barred by time. The appeal under Section 129A(3) is required to be filed within 3 months from the date on which the impugned order was communicated to the Collector of Customs. In the appeal proforma, it is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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