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TMI Blog2022 (5) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... DGFT in this regards. The entire case of revenue is based on the fact that appellant had manufactured these finished products which were not as per LOP, using the raw material imported duty free. We do not find any merits in these arguments as the appellants have consumed the duty free raw material for achieving the export obligations on yearly basis and on whole as per the LOP issued to them and amended from time to time. No evidence has been produced by the revenue that the terms of LOP have been violated in terms of quantity or value as specified in the said LOP. IN absence of any such allegation or finding by the relevant authorities the violations if any cannot be termed to be anything more than technical violations as pleaded by the respondents and held by Commissioner (Appeals). The amount of duty involved is less than Rs.50,00,000/- and the same could have been dismissed as withdrawn in terms of litigation policy Circular No. F. No. 390/Misc/116/2017-JC dated 22.08.2019. The appeals filed by the revenue are dismissed. - Customs Appeal No. 994-995 of 2010, Excise Appeal No. 36 of 2011 - FINAL ORDER NO. A/85076-85078/2022 - Dated:- 4-1-2022 - MR. S.K. MOHANTY, ME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations. 2.2 The Letter of Permission was subsequently amended by the letter dated 15.05.2006 to include Dry Syrup and Suspensions, Injections in list of final products for export. 2.3 The respondent were procuring imported/ indigenous raw material without payment of duty as provided under Notification No 52/2003-CUS dated 31.3.2003 and Notification No 22/2003- CE dated 31.03.2003. 2.4 It was noticed that the respondents had used the raw materials so procured during the period prior to 15.05.2006, for manufacture of the goods which were subsequently included in the letter of permission . 2.5 Show cause notices were for issued demanding Customs/ Excise duty on raw materials procured claiming exemption as above and used for finished products, which were not listed in their 'Letter of Permission'. 2.6 These show cause notices were adjudicated as per the order in originals as referred to in para 1, above. Aggrieved by the order of adjudicating authorities, respondents filed appeal before the Commissioner (Appeals). 2.7 The Commissioner (Appeals) set aside the orders-in- original and allowed the appeal filed by the respondents. 2.8 Aggrieved by the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Supplementary Regulations under the manufacture and other operations in Warehouse Regulations, 1966 as amended vide Notification no. 44/98- Cus dated 2.7.98. The respondent had procured raw materials without payment of duty based on CT-3 Certificate that the said materials were to be used in the manufacture and export of capsules and tablets. However the finished goods manufactured and exported using the materials were Suspensions and Injections, for which no permission was given by the Asstt. Development Commissioner, SEEPZ SEZ, Mumbai till the amendment dated 15.05.2006. Therefore duty demand was confirmed in the Order-In- Original by denying the benefits of exemption. Conclusion drawn by the Commissioner (Appeals) that as the classification of the product is not affected by its form and the fact that the pharmaceutical formulation is already included in their LOP dated 01.01.2002, non inclusion of the said specific form of dispersion is a technical lapse and can be condoned , does not hold any merit. The reliance placed by the Commissioner (Appeals) on the order of Bangalore bench of tribunal in case of Synergies Dooray Automotive Ltd 2008-226-ELT 529 (Tri-Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formulation remains same irrespective of its form i.e. tablet capsule/gel/suspension/injection. I have gone through Chapter heading No 3003 3004 of the Central Excise Tariff pertaining to medicaments. It is found that medicaments irrespective of its form i.e. syrup, dry syrup, tablets capsules gel etc, falls under the same subheading. As classification of the product is not affected by its form and pharmaceutical formulation is already included in their LOP dated 01.1.2002, I find that non inclusion of the said specific form of dispersion is a technical lapse and can be condoned. 7. I have also gone through amended LOP dated 15.5.2006 issued by the Assistant Development Commissioner, SEEPZ SEZ, Mumbai, under which Assistant Development Commissioner, approves for broad Banding of disputed items manufactured i. e. Dry syrup, Suspension Injection, in terms of Para 6.34 (5) of Hand Book of Procedures 2004-09. In the said Letter of Permission dated 15.5.2006, Assistant Development Commissioner has put remark that it is noted that the unit has commenced production w. e. f. 18.01.2004. Since, amended letter of permission is issued by the Assistant Development Commissioner, SEEPZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said letter are reproduced below: Sub: Addition of finished product in LOP no PER/30(2001)SEEPZ/EOU-79/01-02 dated 01.01.02. We there for request you to add Suspension, Dry syrup Injection to our finished product list (list of manufactured item at EOU). As requested by the respondents the LOP dated 01.01.2002 was amended vide letter dated 15.05.2006 which is reproduced below: Ref:- Letter of Permission No. PER/30(2001)/SEEPZ/EOU- 79/01-02, dtd, 1.1.2002, as amended, issued for manufacture and export of Capsules/Tablets of Pharmaceutical Formulations under 100% EOU Scheme. Sub:- Approval for Broad Banding of item of manufacture viz. Dry syrup, Suspension Injection and Enhancement of Capacity and revision in Export Import Projections reg. Gentlemen. I am directed to refer to your letter dated 20.3.2006 and subsequent letter dtd. 31.3.2006 and did. 27.4.2006 on the subject cited above and to say that in view of the circumstances explained therein, Development Commissioner, SEEPZ SEZ approves your request for Broad Banding items of manufacture viz. Dry syrup, Suspension Injection in terms of para 6.34 (5) of Hand Book of Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . You are requested to execute Legal Agreement in the enclosed format in respect of revision of projections within 15 days from the receipt of this letter, ix. Please keep this letter attached to the original Letter of Permission No. PER/30(2001)/SEEPZEOU-79/01-02, dd, 1.1.2002, as amended and acknowledge the receipt. 4.4 It was never the case of the revenue that the raw materials as imported were not used for the manufacture of the finished goods finally exported as required for fulfillment of export obligations of the EOU. Appellants have in their reply before the adjudicating authority taken the stand that all the injections and suspensions were exported after May, 2006. Adjudicating authority has in his order 30.12.2009 specifically recorded ..most of the inputs, imported duty free during the period March 2005 to April 2006, were used in the manufacture of finished goods in the form of injections and suspensions and exported after may 2006 and therefore there is no question of irregularity as alleged or otherwise and as long as the goods have been exported the duty cannot be recovered 4.5 The issue of achieving the NFE as per the LOP over the period of entire fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Lower Authorities have not accepted such modification on the ground that the same stands modified with effect from 9-5-2011 and as such cannot be held to be available and applicable during the period prior to the said date. 5 . On going through the said letter dated 9-5-2011 we note that the same is not a fresh LOP issued by the Development Commissioner and the same is to the effect that the item lashing belts system stands included in the earlier LOP dated 27-9-2000 which is modified to that extent. Inasmuch as it is a modification of the earlier LOP, we are of the view that the same has to be held as a clarificatory amendment by the Development Commissioner in which case the Revenue s objection would get overruled. 4.8 In his submissions learned authorized representative has referred to the decision in the case of Pet Plastics Ltd, which is distinguishable on facts as the same is in respect of goods which were manufactured contrary and cleared in DTA, contrary to the permission granted and the permission granted was never amended or modified. 9 . It is clear from the above that goods stated to have been cleared to the Domestic Tariff Area (DTA) was neithe ..... 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