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TMI Blog2017 (2) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... EXIM policy, fails to get anti-dumping duty exemption under N/N. 43/2002-Cus. dated 19.4.2002, Accordingly its appeal fails. So far as claim of drawback is concerned, it is left open to the appellant to approach the appropriate authority, if so advised, to claim the drawback. Appeal dismissed - decided against appellant. - C/237/2007 - 40242/2017 - Dated:- 7-2-2017 - Shri D.N. Panda, Judicial Member And Shri Madhu Mohan Damodhar, Technical Member Shri N. Viswanathan, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent ORDER Per D.N. Panda It is submission on behalf of the appellant that it is an advance licence holder to import raw material free of customs duty as well as anti-dumping duty for use thereof in the manufacture of final product meant for export. Such Licence was issued to the appellant under paragraph 4.1.7A of the EXIM Policy 2002 2007. When the appellant sought to avail exemption from anti-dumping duty in terms of Notification No. 43/2002-Cus. Dated 19.4.2002, that was denied by customs holding that the appellant is only entitled to avail the exemption of customs duty in terms of Notification No. 56/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs binding himself to pay on demand an amount equal to the duty leviable, but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been complied with, together with interest at the rate of twenty four per cent per annum from the date of clearance of the said materials. Provided that bond shall not be necessary in respect of imports made after the discharge of export obligation in full; (iv) that the imports and exports are undertaken through sea ports at Mumbai, Kolkata, Cochin, Magdalla, Kakinada, Kandla, Mangalore, Marmagoa, Madras, Nhava Sheva, Paradeep, Pipavav, Sikka, Tuticorin, Visakhapatnam, Dahej, Mundhra, Nagapattinam and Okha or through any of the airports at Ahmedabad, Bangalore, Bhubaneswar, Mumbai, Kolkata, Coimbatore, Delhi, Hyderabad, Jaipur, Madras, Srinagar, Trivandrum, Varanasi, Nagpur and Cochin or through any of the Inland Container Depots at Agra, Bangalore, Coimbatore, Delhi, Faridabad, Gauhati, Guntur, Hyderabad, Jaipur, Jallandhar, Kanpur, Ludhiana, Moradabad, Nagpur, Pimpri (Pune), Pitampur (Indore), Surat, Tirupur, Varanasi, Nasik, Rudrapur (Nainital), Dighi (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fective or unfit for use, the said materials may be re-exported back to the foreign supplier within three years from the date of payment of duty on the importation thereof : Provided that at the time of re-export the materials are identified to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs as the materials which were imported. Explanation. - In this notification,- (i) Export Import Policy means the Export and Import Policy 2002-2007, published vide notification of the Government of India in the Ministry of Commerce No. 1/2002-2007, dated the 31st March, 2002; (ii) Licensing Authority means the Director General of Foreign Trade appointed under Section 6 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992) or an officer authorised by him to grant a licence under the said Act. (iii) Materials means - (a) raw materials, components, intermediates, consumables, catalysts, computer software and parts which are required for manufacture of resultant product; (b) mandatory spares within a value limit of 10 per cent of the value of the licence which are required to be exported along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or security and in such form and for such sum as may be specified by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, binding himself to pay on demand an amount equal to the duty leviable, but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been compiled with, together with interest at the rate of fifteen per cent per annum from the date of clearance of the said materials: Provided that the bond shall not be necessary in respect of imports made after the discharge of export obligation in full; (5) that the said licence and the said certificate are produced before the proper officer of customs at the time of clearance for debit; (6) that the imports and exports are undertaken through sea ports at Mumbai, Calcutta, Cochin, Magdalla, Kakinada, Kandia, Mangalore, Marmagoa, Madras, Nhava Sheva, Paradeep, Pipavav, Sikka, Tuticorin, Visakhapatnam, Dahej, Nagapattinam , Okha and Mundhra or through any of the airports at Ahmedabad, Bangalore, Bhubaneshwar, Mumbai, Kolkata, Coimbatore, Delhi, Hyderabad, Jaipur, Madras, Srinagar, Trivandrum, Varanasi, Nagpur and Cochin or through an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be executed by the importer in terms of condition (4) shall be executed jointly by the Merchant-Exporter and the supporting manufacturer binding themselves jointly and severally to comply with the conditions specified in this notification; and (b) exempt materials are utilised in the factory of such supporting manufacturer in terms of condition (10). Explanation : In this notification, - (i) Export and Import Policy means the Export and Import Policy 2002-2007, published vide notification of the Government of India in the Ministry of Commerce and Industry No. 1/2003, dated the 31st March, 2003, as amended from time to time; (ii) Licensing Authority means the Director General of Foreign Trade appointed under section 6 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992) or an officer authorised by him to grant a licence under the said Act; (iii) materials means, - (a) raw materials, components, intermediates, consumables, computer software and parts required for manufacture of resultant product specified in Part E of the said certificate by the proper officer; (b) mandatory spares within a value limit of 10% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Policy, an Advance Licence for deemed export can also be availed by the sub-contractor of the main contractor to such project provided the name of the sub contractor(s) appears in the main contract. Such licence for deemed export can also be issued for supplies made to United Nations Organisations or under the Aid Programme of the United Nations or other multilateral agencies and paid for in foreign exchange. Para 4.1.7A Advance licence can also be issued on the basis of annual requirement for physical exports. Export House, Trading House, Star Trading Houses and Super Star Trading Houses shall be entitled for the Advance Licence for annual requirement. However, if the status holders are holding the certificate as merchant exporter, they are also entitled to the Advance Licence for Annual Requirement provided they agree to the endorsement of the name(s) of the supporting manufacturer(s) on the relevant licence. The entitlement under this scheme shall be upto 200% of the FOB value of export in the preceding licensing year. Such licence shall have positive value addition. 3. It is further grievance of the appellant that the Notification No. 56/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciable. The time gap between the two Notifications also indicates that both the Notifications were issued during two different periods to serve their specific purpose. While Notification No. 43/2002 dated 19.4.2002 served the purpose of advance licence issued under paragraph 4.1.1 of the EXIM Policy, the Notification No. 56/2003-Cus. dated 1.4.2003 dealt with the advance licence issued under para 4.1.7A of the said Policy. When the object of both the paragraphs of the policy is looked into, that brings out difference between the two. Paragraph 4.1.1 deals with normal cases whereas paragraph 4.1.7A is very specific to deal with annual requirement of physical imports. That brought out a clear distinction between the intention of para 4.1.1 and 4.1.7A. Therefore Notification No.56/2003 was not substitute of Notification No.43/2002. 8.2 The object of Office Memorandum issued by Ministry of Commerce relied by learned counsel has not resulted in issuance of customs notification by Ministry of Finance authorizing that the benefit of Notification No. 43/2002-Cus. dated 19.4.2002 is also admissible to the advance licences issued under para 4.1.7A which is specifically governed by Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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