9911796707
TMI Blog2000 (3) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... labs of off white colour having greyish tinge and 2 cm thickness under Bill of Entry No. 110876, dated 14-11-96 against Advance Licence No. P/K 10006060, dated 29-3-96 issued under DEEC Scheme issued to M/s. Nonpareil Exports Jaipur who had exported marble slabs/tiles of Pink and Green Colour in March, 1996. The Advance licence was transferred to the Appellants on 3-10-1996. The Deputy Commissioner, under the Adjudication Order, dated 24-12-96, disallowed the benefit of exemption under Notification No. 80/95-Cus., dated 31-3-95, confiscated the imported marble slabs with an option to redeem the same on payment of a fine of Rs. 1 lakh and imposed a penalty of Rs. 20,000/- holding that the test of colour had not been established as the marble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able of being processed for manufacture of the items proposed to be exported. It was also mentioned in the letter that the word relevant is intended to provide a correlation between the physical shapes/form of the input and export product and not to suggest that only the same imported material must be used for the export product. The learned Advocate also referred to point Nos. (V) (VI) of the letter dated 30-9-96 of DGFT according to which duty free import of marble was to be allowed if the goods imported were broadly in confirmity with goods exported in terms of their physical specifications and that the exporter/importer would not be required to prove the nexus afresh at the time of clearance of the consignments, so long as goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence had been discharged and the discharge endorsement has been made, thereafter the original licensee can import the materials or transfer the licence to third parties and the nexus need not be established because the nexus would arise only when the obligation of export exists. He also relied upon the decision in Commissioner of Customs, Bombay v. Jai Bhawani Concast Ltd., 1999 (82) ECR 183 (T) in which it was held that the importer cannot be required to prove eligibility for duty free import of permitted goods again once the goods have been imported after endorsement of the transferability of the advance licence by the DGFTD. Reliance was also placed on the decision in Good Luck Industries v. CC, Calcutta, 1999 (108) E.L.T. 818 (Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of good quality. He further, submitted that the goods exported were of green and pink colour which is of lower quality goods as far as marble is concerned whereas the import was of off white colour marble which is of better quality; that as in the licence, condition of relevant was imposed by the DGFT, the Customs authorities cannot disregard the same while dealing with the import under the said licence. He also submitted that physical specification mentioned in DGFT s letter dated 30-9-96 includes colour also; that the word colour has to be read in physical form of the goods; that all the decisions relied upon by the learned Advocates are distinguishable on facts; that in Matria Co. (I) Ltd. case, there was nothing to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of their physical specifications such as size, thickness. We agree with the learned Commissioner (Appeals) that conformity in terms of physical characteristics would include conformity in colour also in case of marble. The Commissioner (Appeals) has rightly held that the words broadly in conformity means that there can be a slight variation but to say off white or white marble in conformity with green or pink or any other colour for that matter is, erroneous. In Jai Bhawani Concast Ltd., the imports were allowed as only thickness of hot-rolled stainless steel coils was different and the lower appellate authority therein has allowed the import on the basis of chemical composition. In the present matter the licensing authority itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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