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TMI Blog1997 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... was granted by her allowing the appeal of the respondent. 2. The respondent Gujarat Alkalies Chemicals Ltd. had imported a consignment comprising machinery with accessories for membrane cell plant and had filed a Bill of Entry 593, dated 6-9-1993 for clearance under EPCG scheme at the concessional rate of duty at 15% in terms of Notification 160/92-Cus. The Assessing authority found that the said three items referred to in the previous paragraph were not capital goods. A short levy notice was given. The respondent gave its reply. After considering the reply the Asstt. Commissioner of Customs had held that these goods are to be replaced periodically after they get exhausted. Therefore these goods were consumables and not capital goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring the judgments of Delhi High Court in the case of Exports Apparel Group v. Union of India - 1997 (91) E.L.T. 307 and the judgment of Supreme Court in Sheshank Sea Foods v. UOI - 1996 (88) E.L.T. 626 had held that the word capital goods has been defined in the notification in a narrower way and therefore the Tribunal held that ion exchange resin was not entitled to exemption. He therefore relies on the same. 4. Shri V.S. Nankani the ld. Counsel for the respondent argued that once a decision has been taken for the imported goods by the licensing authority as capital goods the Customs authorities cannot take a contrary view. Shri Nankani took us through the documents namely the agreement with the foreign supplier and the respondents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kali Technology edited by Moorhouse and Prout to show that ion exchange resin is used for purification of body treatment. He also relied on the brochure brought out by the Govt. of India regarding membrane cell technology to show that how this technology requires ion exchange resins. The ld. Counsel does not question the judgment of the Supreme Court in Shashank Sea Foods (supra) and also the case decided by the Delhi High Court. He mainly says that on the facts of this case these three items are essential for the purpose of running the plant. Just because the items are replaced once in seven years or so it cannot be treated as a consumable. Moreover these materials are like kidneys to a human body. He further stressed the point that the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calcium and Magnesium. These goods are replaced periodically after these get exhausted. The importers had at the time of personal hearing, admitted that these goods require to be replaced periodically. Evidently, these goods are consumables and not capital goods or spare parts. These are therefore not capital goods" as defined in the Notification No. 160/92-Cus. and fall outside the purview of notification. The importer has claimed that the goods are specifically covered by the import licence issued by the licensing authorities under the Export and Import Policy and are therefore entitled to the exemption under Notification No. 160/92-Cus. The notification exempts only capital goods subject to certain conditions. One of the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore it is covered under exemption Notification No. 160/92. It is also noticed that the impugned goods are covered under EPCG licence. The licensing authority has issued the licence covering the goods. Once a valid licence exists, which mentions the impugned goods categorically there is no room to question the same. Before us these two extracts have been read in exhaustive way so that we can appreciate the facts in dispute. It is true that the respondents had in their application had applied for the import of membrane cell plant for producing caustic soda. The three items are mentioned as items for import in the schedule. It is specifically stated that these three items are part of the said plant. Even the licence mentions at page 81 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice the things in such a way as to deny exemption to his client. His argument would be accepted if the entire machinery has been made as one complete unit without mentioning three things as separate items. These three items have been treated as capital goods. In the judgment of the Delhi High Court in the Exports Apparel Group Ltd. v. Union of India the Court held at Paragraph 13 as follows : After examining all these provisions we are of the view that the stand taken by the respondents is correct. It is for the Customs authorities to examine if the goods had been imported in terms of the licence and duty of Customs, if any, is leviable thereon. If aggrieved, the petitioner has remedy under the Act by way of appeal. In this view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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