9911796707
TMI Blog2012 (11) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant M/s. Sandoz Pvt. Ltd., Navi Mumbai is a 100% EOU and had exported 59528 packs of Tacrolimus Capsules in March, 2008. The said shipment was not allowed to be imported into the USA and, therefore, the buyer returned the said goods and the appellant informed the jurisdictional Range Superintendent about the same. The jurisdictional Range Superintendent issued a procurement certificate dated 14-5-2008 for re-import of the exported goods and appellant accordingly re-imported the goods claiming exemption under Notification No. 52/2003, dated 31-3-2003. The appellant had given an undertaking to re-export the said capsules within six months from the date of re-import vide their letter dated 15-5-2008 and the period of re-export was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stroyed outside Unit with permission of Customs authorities." As per the said provisions, duty cannot be demanded on the re-exported goods, which are sought to be destroyed outside the unit when the appellant applies for permission for destruction outside unit. He also relies on the judgment of this Tribunal in the case of Macmillan India Ltd. v. Commissioner of Customs, Bangalore reported in 2008 (223) E.L.T. 449 (Tri.-Bang.), wherein the Tribunal on the basis of para 6.15(b) of the Foreign Trade Policy 2004-09 permitted destruction of the capital goods, which had become obsolete and in respect of which the appellant had relinquished the title to the goods. He also relies on the judgment of the Tribunal in the case of Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Policy (FTP), provides that capital goods, raw materials, packing materials can be destroyed within the 100% EOU or can be taken out of the 100% EOU with the permission of the customs authorities without payment of duty for destruction. These Foreign Trade Policy provisions per se cannot abate the duty liability. The duty liability of the imported goods has to be determined under the provisions of the Customs Act and the Rules/Notifications issued there under. Merely because there is a mention in the FTP stating that the goods can be destroyed without payment of duty, unless provisions exist under the Customs Act and Notification issued thereunder, remission/abatement of duty cannot be permitted. The Assistant Commissioner in his communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riorated goods. - (1) Where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs - (a) that any imported goods had been damaged or had deteriorated at any time before or during the unloading of the goods in India; or (b) that any imported goods, other than warehoused goods, had been damaged at any time after the unloading thereof in India but before their examination under section 17, on account of any accident not due to any willful act, negligence or default of the importer, his employee or agent; or (c) that any warehoused goods had been damaged at any time before clearance for home consumption on account of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration. In the instant case, there is no dispute about the fact that due to short shelf life of medicinal capsules, it has deteriorated and it has become unfit for marketing. Therefore, the duty can be demanded only on the value of the deteriorated goods which have to be determined in accordance with sub-section (3) of Section 22 of the Customs Act. It is for the appellant to establish that the goods which they have proposed to destroy has no commercial value whatsoever and no duty liability would be involved. Therefore, the matter has to go back to the original adjudicating authority, namely, the jurisdictional Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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