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TMI Blog2015 (9) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... them sold to hospital/dry cleaners. The Adjudicating authority denied the benefit of the exemption notification on the ground that the imported machineries had not been used in the textile industry. The Tribunal after dealing with various decisions and conditions, held that in absence of condition of actual use in the notification, the benefit of notification cannot be denied merely the goods in dispute were used in hospital and not in the textile industry. Similarly, in the instant case, the Appellant complied with all conditions mentioned in the notification at the time of clearance of the goods for ONGC Project. There is condition for requirement of end use certificate in the notification. There is no dispute that the excess goods were intended for use in the project and therefore, the benefit of the said notification cannot be denied. - impugned order is set aside - Decided in favour of assessee. - Appeal No. C/11042/2014-DB - Order No. A/11324 / 2015 - Dated:- 15-9-2015 - Mr. P.K. Das, Member (Judicial) And Hon ble Mr. H.K. Thakur, Member (Technical), JJ. For the Appellant : Shri Hardik Modh, Advocate For the Respondent : Shri K. Sivakumar, Authorised Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty alongwith interest and also imposed penalties. It has also confiscated the goods and imposed redemption fine and also appropriated the amount as deposited during investigation. 3. After hearing both the sides and on perusal of the records, we find that the main issue in this case is whether the Appellant is eligible to avail the benefit of exemption Notification No.21/2002-Cus, dt.01.03.2002 (Sr.No.215) in respect of surplus quantity of 410 Coated Pipes, seized by the Customs authorities. For the purpose of proper appreciation of the case, the relevant portion of the said notification is reproduced below:- S.No. Chapter or Heading No. or sub-heading No. Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) (The exemption notification Sr.No. and conditions in the present SCN) 215 84 or any other Chapter Parts and raw materials for manufacture of goods to be supplied in connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a-Mundra. DGHC authority issued a certificate that the goods are required for off-shore exploration/exploitation activity of ONGC Project. The disputed 410 coated pipes were taken for use in off-shore oil exploration. It is further submitted that the exemption notification does not provide actual use/end use condition. The present case is covered by the decision of the Tribunal in the case of Clough Engineering Ltd Vs Commissioner of Customs 2006 (198) ETL 457 (Tri.), which is upheld by the Hon ble Supreme Court as reported in 2006 (202) ELT a 59 (SC). The learned Advocate also relied upon the following decisions:- a) Ramson Garments Finishing Equip. P. Ltd Vs CCE Bangalore 2007 (211) ELT 44 (Tri-Bang) B) CCE Chennai-I Vs Q Max Test Equipment Pvt.Ltd 2003 (159) ELT 665 (Tri-Che.) 6. The learned Advocate submits that the Adjudicating authority proceeded on the basis of the actual use of the imported material, which is beyond the scope of exemption notification. The Hon ble Supreme Court in the case of UoI Vs Inter Continental (India) 2008 (226) ELT 16 (SC) held that the Department cannot add a new condition to the notification either restricting the scope of exemption not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. The imported goods were issued for laying the project. It is noted that the imported pipes had lost its identity after processing at warehouse. So, it may be construed that the imported goods were used for the purpose of project. 10. The Adjudicating authority observed that the whole issue of diversion of goods for other than intended purpose is covered by the Board s Circular No.21/2013-Cus, dt.16.05.2013 issued in respect of the difficulties being faced in availing exemption relating to oil exploration sector showing condition to be fulfilled in respect of Notification No.12/2012-Cus, dt.17.03.2012. It has been directed in the case of un-authorised diversion that the action could be initiated in terms of condition of exemption notification. In the present case, it is evident from the records that the imported goods were undertaken the process of coating etc at the Customs Warehouse and thereafter, it was cleared to ONGC Project at Mumbai Port. Hence, there is no material available of unauthorized diversion of the goods from the warehouse. The goods were cleared for use at ONGC Project and the surplus material cannot be treated as unathorised diversion. Hence, the demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai)] the Tribunal has held in the context of Notification No. 56/88 granting exemption to goods required for use of testing of LSI/VLSI etc. that- On my careful consideration of the submissions, as well as the findings recorded by learned Commissioner, I am of the considered opinion that the finding recorded by the Commissioner (Appeals) is just, proper and legal and does not require any interference at our hands. There is no word used for manufacture in the exemption notification. On plain reading of the notification, the exemption is available to the item and it is required for manufacture of goods falling under chapter heading 85.42, namely, Electronic integrated circuits and Micro-assemblies. There is no indication in the notification for production of any end-use certificate. If the item is required for manufacture of goods falling under chapter heading 85.42, then the benefit is required to be extended. In this regard, the assessee s contention is that the item being LSI/VLSI tester, it is eligible for the benefit of the concession as the said item is required for the manufacture of goods falling under chapter heading 85.42. The term used in the notification is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule to the Customs Tariff Act, 1975 and are required for the manufacture of goods, falling under heading No. 85.42 of the said First Schedule. The certificate produced from M/s. Electronic Corporation of India Ltd. clearly indicates that the item is required for manufacture of goods in question which falls under chapter heading 85.42. In that view of the matter, the Commissioner s order granting benefit on the simple reading of the notification is justified and correct and there is no infirmity in the same. There is no merit in this appeal and it is rejected. 8.The above view recorded by ld. Member (Judicial), who disagreed with the order recorded by ld. Member (Technical) that the benefit of the notification was not available to the respondents, has been concurred with by third member, and by majority order, the appeal of the revenue was dismissed. The Tribunal held that the expression for use is on a higher footing than the expression required for use, and in the absence of the expression specifically used for manufacture , has extended the benefit of Notification No. 57/88 to LSI/VSLI tes. equipments falling under Chapter 85.42 and sold to customers other than manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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