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TMI Blog2014 (11) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee). There are no cases of relaxation period where the applicants have made higher imports and requires clubbing. There is no question of basic customs duty being available as credit. Even credit of CVD will not be available as the goods have been diverted against the provisions the Customs Notification read with Foreign Trade Policy. Thus it is a case of fraud, suppression of facts. Prima facie no applicants have any case on merits - Partial stay granted. - Appeal No.C/86345, 86346 & 86347/13-Mum - - - Dated:- 16-6-2014 - Ashok Jindal and P K Jain, JJ. For the Appellant : Shri T Vishwanathan, Adv. For the Respondent : Shri P M Saleem, Commissioner (AR) JUDGEMENT Per: P K Jain: The brief facts of the case are that the applicants were granted 20 Licences (19 DEEC and 1 DFIA). These licences were advance licences which entitle the applicants to import aluminium scrap free of customs duty. After the import of such scrap, applicants are expected to convert the same into aluminium alloy extruded products and export the same. As per the provisions of para 4.30 of Hand Book of Procedures the applicants are required to maintain a record of receipt of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared on payment of duty and therefore, no further duty is payable. Ld. advocate's another contention was that they have made an application on 26.8.2013 to the Policy Relaxation Committee of the Directorate General of Foreign Trade, New Delhi for allowing clubbing of 4 advance licence/authorization. His contention was that the said application is yet to be decided and it is therefore, necessary that the matter should be kept pending till the decision by the Policy Relaxation Committee. Ld. Advocate also quoted the following judgments in support of his contention:- 1. S.L. Kapoor vs. Jagmohan and Others (1980) 4 Supreme Court Cases 379. 2. Nikhil Industries Pvt. Ltd. vs. CCE, Jaipur 2005 (180) ELT 321 (Tri-Del.) 3. Titan Industries Ltd. vs. CCE, Chennai 2007 (217) ELT 423 (Tri-Chennai) 4. John Deere Equipment Pvt. Ltd. vs. CCE, Pune III- 2011 (265) ELT 351 (Tri-Mumbai) 5. CCE C vs. Matrix Laboratories Ltd.- 2012 (281) ELT 569 (Tri-Bang). 6. Komet Precision Tools India Pvt. Ltd. vs. CCE, Bangalore 2013 (293) ELT 59 (Tri-Bang) 3. On the other hand, the ld, AR strongly opposed the stay applications and has stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st for adjournment has been rejected by the adjudicating authority on the ground to wait for another two months for the decision by DGFT to extend the export obligation period which has expired more than three years back. Ld. A.R. further argued that the duty paid by them is excise duty and not the customs duty. Further, it is not as if the applicants are only importing under the advance licence and exporting the goods, they are also importing, procuring the goods from the market, manufacturing and selling the goods in the domestic market. The payment made by them is relating to such domestic clearance. It is obvious that they have utilized more than ₹ 5 crores of Cenvat Credit during the period which implies that the duty paid material was used. The said payment of excise duty has nothing to do with the present demand of the customs duty wherein it is not known whether the goods have been cleared as such after the manufacture clandestinely or by recording the same in the accounts. Ld. A.R also stated that they have not maintained the records relating to receipt and utilization of the imported materials which is a prescribed condition under the Hand Book of Procedures and For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Trade Policy. There was no possibility of getting any such extension. Similarly, we find that during the arguments they have produced a letter purportedly to have been written to the Policy Relaxation Committee. This letter is dated 26.8.2013 while the present appeal has been field on 26.3.2013. We have also gone through the said application. Prima facie we do not find any merit in the said application (though it is within the jurisdiction of the Policy Relaxation Committee). There are no cases of relaxation period where the applicants have made higher imports and requires clubbing. Another contention of the ld. Advocate for the applicants that they have paid more than ₹ 4 crores of duty in the PLA is also not correct. The said amount has been paid as excise duty and not as customs duty. Further the said amount has been paid on the goods cleared to domestic area. The applicants also taken credit of more than ₹ 5 crores. Obviously, they have procured duty paid raw materials which was used in the manufacture of finished products, which have been cleared on payment of duty. The said payments cannot be co-related to the present consignment. In any case the demand is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In the present case, it is not clear whether the goods imported have been diverted or cleared as such or whether used in the production of finished goods and if so whether such finished goods were cleared on payment of duty or cleared clandestinely. Customs duty cannot be adjusted against the excise duty paid. In the case of Titan (supra), watches were imported by paying CVD on MRP. Revenue demanded duty on repacking as it amounts to manufacture. It is in these circumstances that the tribunal has taken the view that demand ought to be adjusted by debit in Cenvat account, credit of CVD being admissible. In the present case, the facts are very different. There is no question of basic customs duty being available as credit. Even credit of CVD will not be available as the goods have been diverted against the provisions the Customs Notification read with Foreign Trade Policy. Thus it is a case of fraud, suppression of facts. Similar is the position in respect of other two case laws cited by the ld. Counsel for the applicants. 5. Prima facie we do not find that the applicants have any case on merits. However, keeping in view the facts and circumstances of the case, the applicants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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