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TMI Blog2017 (8) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... e said restricted goods were sold by the appellant in Domestic Tariff Area (DTA); the activity of the appellant not allowed to EOU as per para 6.1 of the Foreign Trade Policy 2009-14 and was in violation of the Ministry of Environment and Ozone cell letter dated 17.01.2013 thus, revoked the LOP dated 03.01.2011 vide order dated 25.06.2013; that based on the action taken by the Development Commissioner, the department held that the impugned goods are restricted under FTP and import is allowed under actual user condition from the country which is a signatory of Montreal Protocal and against specific import license, accordingly the department seized the goods imported under the aforementioned 10 bills of entry totally valued at Rs. 1,79,70,260.60/- and further confiscated under section 111 (d) of the Customs Act, 1962 for destruction and the cost to be borne by the appellant vide impugned order dated 13.10.2015. A penalty of Rs. 5,00,000/- has also been imposed on the appellant under section 112(a) ibid. Being aggrieved by the Order-in-Original, appellant preferred appeal before the Commissioner(Appeals), who concurring with the findings of the adjudicating authority upheld the Order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Role 5(1) & Rule 6(1) of the ODS Rules, 2000 and other laws. In addition to above specific license, appellant has been given following permission. (a) Permission from Ozone Cell under Ministry of Environment and Forest, Vide its Certificate of Registration dated 28-11-2011. (b) Central Excise Registration Certificate No.AAACX0966DEM001 dated 27-4-2011. (c) District Industrial License No.DIC/PM/EM/Part-1//437/5473 dated from District Industries Centre, Panchmahal. As regard the contention of the Iower authority that specific licence was not obtained, he submits that as per para 6.2.7. of Hand Book of Procedure, which clarifies that LOP/LOI to EOU units by concerned authority would be construed as an authorization for all purposes. He further submits that in the appellant's case import of R-22 gas was allowed in past on the basis of LOP issued by development commissioner. In this regard the Commissioner(Appeals) Nhava Sheva vide Order-in Appeal No.816(100% EOU)/2012(JNCH)/EXP-197 dated 29-8-2013 set aside the confiscation of the goods and allowed the clearances for home consumption on the basis of LOP dated 3-1-2011 and his letter dated 29-5-2012 issued by Development Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 2000, which appellant failed to comply with. He submits that unit is involved in trading activity by converting bulk pack to retail pack, which is not permitted under EOU scheme, therefore the appellant has violated the requirements of Foreign Trade Policy. 2009-14. Therefore adjudicating authority rightly ordered for absolute confiscation of the R-22 Gas. 4. I have carefully considered tine submissions made by both sides and perused the record. 5. I find that adjudicating authority well as Commissioner(Appeals) held the goods for absolute confiscation on the ground that appellant have not obtained the Special Import License for import of R-22 Gas. As per FTP, 2009-2014 the goods R-22 Gas is restricted items and the import of the same can be made only after obtaining import license. In the present case, appellant being 100% EOU is under the jurisdiction of Development Commissioner, who is also regional licensing authority, accordingly for all the purposes related to FTP, the development commissioner is the authority incharged of the appellant's unit. The said licensing (Development Commissioner) Gandhidham, Gujarat issued an LOP dated 3-1-2011 which is scanned below: Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the people who were entrusted with enforcing the Policy, it appears that there was no significant distinction held by the Licensing Authority between the rags and unmutilated rags/uncut worn clothing. At this stage, we have also seen the certificate dated 15-11-2000 given by the Central Excise Authorities to the appellants on which reliance was placed by Shri Jain. This is a certificate meant for presentation to the Customs House and certifies that the importers would be an EOU and it does not in any way restrict or prohibit the importability of raw materials by an EOU. In view of the above observations of the Tribunal, it is settled that once the EOU has been permitted to import certain goods, for import of such goods, restriction prohibition of goods provided under policy shall not apply. Similarly, in the present case, when development commissioner has specifically allowed the import of R-22 Gas, there is no need of special import license. 6. Now I deal with the contention of the lower authority that LOP under which appellant proposed to clear the imported goods has been cancelled by the Development Commissioner vide his order dated 24-6-2013. In this regard, I extracted the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of P.T. Impex Pvt Ltd(Supra) wherein court passed following order: 3. The only question is whether a concluded contract had been arrived at between the respondent and the foreign supplier prior to 7-4-2006. Prior to 7-4-2006, sandalwood could be imported against an open general licence (OGL). The Tribunal relied upon two vital facts for coming to the conclusion that the respondent had entered into a valid and binding contract for the purchase of sandalwood front their foreign supplier on 30-3-2006 i.e. before the notification dated 7-4-2006. Firstly, an invoice dated 30-3-2006 was issued. Although the document states that it was a proforma invoice, it would make no difference in the facts and circumstances of the case. Admittedly, on 30-3-2006, the appellant paid the supplier a sum of US$ 38,000 in respect of the goods. In fact, due to a short supply, the supplier had refunded an amount of $ 4921. The Tribunal's conclusion that the facts establish the formation of a contract between the parties on or before 30-3-2006 is justified and in any event cannot be said to be absurd or perverse. In fact, the finding appears to be correct. The appeal does not raise a substantial q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same goods R-22 was allowed to be cleared on the basis of LOP as held by the Commissioner(Appeals) in the past case vide order dated 29-8-2013. The fact and circumstances in the aforesaid case and in the present case is identical, therefore there was no reason to order for absolute confiscation of the goods and imposition of penalty. As regard the other condition for import of R-22 Gas though it is not under dispute, but it is fact that the appellant is engaged in the activity of conversion of imported gas from bulk pack to retail pack, this activity is clearly amount to manufacture as per chapter note 10 of Chapter 29 of Central Excise Act, accordingly actual user condition stand complied with. The goods are imported from China who is undisputedly a member of Montreal Protocal, 1987. 7. As per the above discussions, on the facts and circumstances of the present case, I find that the appellant has complied with requirement of Foreign Trade Policy, therefore there is no reason for absolute confiscation of the goods and imposition of penalty. I therefore set aside the impugned order and allow the appeal with consequential relief, if any, in accordance with law. (pronounced in cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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