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TMI Blog2003 (8) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... i J.C. Patel, ld. Advocate appeared on behalf of M/s. Orbit International. Shri Anil Balani, ld. Advocate appeared on behalf of Shri Yogesh Korani, M/s. Mahavir Export & Import Co. and M/s. Nikita Packaging Pvt. Ltd. Shri Virag Gupta, ld. JDR appeared for the Revenue. Briefly stated the facts of the case are that M/s. Fresh Labs are engaged in the business of manufacture of tooth paste (TP) and shaving cream (SC) which the appellants export either directly or sell the same to merchant exporters. The appellants, inter alia, entered into contracts to manufacture TP/SC with merchant exporters' viz. U.K. Paint Industries Ltd., Vam International Ltd., Dolphin International Pvt. Ltd. and Phoenix Overseas Ltd., (the Licensees). The Licensees were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rish Moss/Viscarine. As regards indigenous raw materials, the appellants had initially availed Modvat credit in respect of duty paid on Sorbital, Glycerine and Sodium Laurel Sulphate (SLS for short) but subsequently not only reversed the Modvat credit availed by them but also paid interest thereon as per the Amnesty Scheme introduced by the Ministry of Finance, Government of India, vide Circular dated 10-1-1997. The goods imported by the appellants were sold by them in accordance with Notice No. 191 of ITC (PN)/90-93, dated 14-8-1991 read with paragraph 250(2) of the Export-Import Policy for 1990-1993 and in terms of paragraph 126 read with para 127 of the Hand Book of Procedures for 1992-97. In the Show Cause Notice dated 17-10-97 it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supporting manufacturer of all the export houses. Out of all the six advance licenses five licenses related to the export of Tooth Paste and one license related to the export of shaving cream. Export obligations have been fully completed under the said six advance licenses. After completing the export obligations M/s. Fresh Laboratories have imported sorbital/ sodium sulphate. His submission is that the imports of the items in question is fully permissible. He also drew our attention to pages 109 to 112 showing the reversal of Modvat credit and the said reversal have been fully accepted by the Commissioner. He also contended that while reversing the credit the appellants have also paid the interest thereon within the time which fact is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )], Commissioner of Customs, Bombay v. Bharat Pulverising Mills Ltd. - 1999 (111) E.L.T. 193 (Tribunal) and Fresh Laboratories v. Commissioner of Customs-II, Mumbai - 2000 (39) R.L.T. 881 (CEGAT), the appellants are not entitled to avail benefit of exemption under Notifications 159/90-Cus., dated 30-3-1990 and 204/92-Cus., dated 19-5-92. The ld. Counsel in the rejoinder submitted that out of six licenses, three were sold to Mr. Y. Korani and as such the duty if any must be demanded from them. In this regard he drew our attention to paras 37 and 38 at page 100 of the reply to the show cause notice and contended that the ld. Commissioner had failed to record any finding thereon. He also contended that the ld. Commissioner has miserably failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, New Delhi - 2003 (151) E.L.T. 254 (S.C.) are reproduced as under :- "12. Thus, it is clear that ultrasound scanners have been manufactured. The further submission is that manufacture in the ordinary sense is not enough but that there must be "substantial manufacture." It is submitted that the term "substantial manufacture" necessarily implies that not only the final product but a substantial amount of its components must also be manufactured by the party. We are unable to read any such requirement into the words "substantial manufacture". The words "substantial manufacture" appears to indicate that there need not necessarily be manufacture, but that any activity, including activities like assembling, which result in a new product, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was any misrepresentation. Once an advance licence was issued and not questioned by the licensing authority, the Customs authorities cannot refuse exemption on an allegation that there was misrepresentation. If there was any misrepresentation, it was for the licensing authority to take steps in that behalf". As per the calculation sheet submitted by the ld. Advocate Shri V.S. Nankani, a total custom duty of Rs. 39,04,628/- has been worked out. In view of the facts and the legal position, it is not possible for us to express our opinion on merits on each of the issues involved at the stay stage without going into the details which will be possible at the time of final hearing. Moreover from the recent decision of the Supreme Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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