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TMI Blog2008 (9) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... . 26-2-2001 for import of components for assembly and export of sub-assemblies of cellular phones. These licences had shown the export product as sub-assemblies of "Dao" cellular phones, where Dao was the name of the brand. MIL exported 9550 Dao subassemblies and 19950 Krammer (another brand) subassemblies. Licences were for import of components for export of 29500 Dao brand subassemblies. At the material time Notification No. 51/2000-Cus., dated 27-04-2000 provided exemption for imports under the DEEC scheme. Exemption under the notification was subject to the conditions, among others, that the specified quantity of resultant products were manufactured and exported. The first paragraph of the Notification relevant to the dispute on hand read as follows. Materials imported under Duty Exemption Entitlement certificate issued in respect of the value, quantity, description, quality and technical characteristics — Exemption In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts materials imported into India, against an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne), Pitampur (Indore), Surat, Tirupur, Varanasi, Nasik, Rudrapur (Nainital), Dighi (Pune), Vadodara, Daulatabad, (Wanjarwadi and Maliwada), Waluj (Aurangabad), Anaparthy (Andhra Pradesh), Salem, Malanpur, Singanalur, Jodhpur, Kota, Udaipur, Ahmedabad, Bhiwadi and Madurai or through the land Customs Station at Ranaghat; Provided that the Commissioner of Customs may by special order and subject to such conditions as may be specified by him, permit import and export through any other Seaport, Airport, or Inland Container Depot or through the Land Customs Station. (v) that the export obligation is discharged within the period specified in the said certificate or within such extended period as may be granted by the Licensing Authority by exporting resultant products manufactured in India which are specified in Part 'E' of the said certificate (hereinafter referred to as a resultant products) and in respect of which facility under rule 12(1)(b) or rule 13(1)(b) of the Central Excise Rules, 1944 has not been availed in respect of materials permitted under the said licence; (vi) that the importer produces evidence of discharge of export obligation to the satisfaction of the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... components free of duty under Notification No. 51/2000 by suppression of facts. MIL submitted that the imported components bore part numbers relatable to Dao or Krammer. The appellant could not therefore be alleged to have misdeclared the description of the imported inputs. Commissioner had confirmed the demand traveling beyond the scope of the show cause notice. MIL could not manufacture Dao sub-assemblies from Kramrner components. As the inputs had been converted into finished goods as per the DEEC scheme, imports could not be denied the DEEC benefit on the basis that the licences showed Dao sub-assemblies as export product and these had been short exported. Averments were made to the effect that the authorities had adopted a narrow interpretation in raising the demand. 3. Another ground taken was that MIL had sold inputs to Flextronics Ltd., an Electronic Hardware Technology Park (EHTP) unit, from 23-3-2001. During 21-3-01 to 30-4-01 MIL itself had operated as an EHTP. The two EHTP units had undertaken manufacture and export of final products. Components removed to EHTP were treated as imports of EHTP and exports qualified for counting towards fulfillment of export obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not agree with the appellant's plea that an assessment order has to be necessarily reviewed under Section 129D of the Act before demand for any amount in addition to the duty already assessed and paid could be raised. We find that the Apex Court had, in Union of India v. Jain Sudh Vanaspathi case [1996 (86) E.L.T. 460 (S.C.)] ruled that Section 28 of the Customs Act could be invoked to recover duties not paid/short paid by an importer without revising the assessment order under Section 130 of the Act. The ratio of the judgment was not, as claimed by the appellant, that such a course was open to the department only in a case where goods imported had been cleared fraudulently. 7. We are not in a position to verify the correctness of the claim of MIL that it had exported sub-assemblies of cellular phones as an EHTP unit and also had supplied inputs to another EHTP namely Flextronics Ltd., and thereby completely fulfilled the export obligation cast on it for importing components required for 19,950 Krammer model subassemblies under Notification No. 51 /2000-Cus., dated 27-4-2000. The plea is on the premise that that their claims were not rejected in the impugned order. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e DEEC licence issued to them on the strength of which the imports impugned had been made allowed them to import cotton fabrics and export garments of cotton fabrics. The Tribunal held that by using the imported materials for export production and exporting the same, the appellants had satisfied the DEC criterion. It was found that the Commissioner had admitted that the appellants would have been entitled to drawback had they not followed the DEC route. In the facts and circumstances, if the duty demand in the impugned case was sustained, it would have created a totally unintended situation of export goods having to bear the burden of customs duty in respect of raw material. That was completely contrary to the legal provision. The delay in raising the dispute could not be allowed to have the effect of denying export goods, duty exemption. The benefit of DEC scheme was not to be denied in cases where the export obligation had been met. We find that the above decision of this Tribunal which set aside demand and penalty in a similar case squarely covers the instant dispute. The Revenue has no case that the said decision has been appealed against. Therefore, on merits also the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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