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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 ..... 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 Advance Licence issued in terms of paragraph 7.2 of the Export and Import Policy 1997-2002 notified by the Government of India in the Ministry of Commerce vide notification No. 1/1997-2002, dated the 31st March, 2000 (hereinafter referred to as the said licence), from the whole of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), and from the whole of the additional duty, safeguard duty and anti-dumping duty lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, 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 Assistant Commissioner of Customs or Deputy Commissioner of Customs within a period of 30 days of the expiry of period allowed for fulfillment of export obligation, or within such extended period as the said Assistant Commissioner of Customs or Deputy Commissioner of Customs may allow; (vii) that the said licence and the materials shall not be transferred or sold; (viii) that in relation to an Advance Licence issue to a Merchant Exporter,- (a) the name and address of the supporting manufacturer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 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 obligation. Therefore demand of duty on these inputs was not justified, in view of their conversion into resultant products and their export. A legal ground taken against the maintainability of the proceedings is that the DRI did not have jurisdiction to issue show cause notice to demand duty and interest. Therefore, the impugned order itself was not sustainable. 4. MIL relied on the following case law in support of the grounds taken in their appeal. 1. Centwin v. Commissioner of Customs [2002 (149) E.L.T. 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 that the Commissioner had raised the demand on inputs imported and not used in the resultant product, Dao subassemblies and exported as per the Notification No. 51/2000. We find that the Commissioner accepted the claim of MIL that it had exported 19950 krammer sub-assemblies in the impugned order. 8. The demand is on the basis that MIL had failed to fulfill the export obligation by not exporting 19950 pieces of sub-assemblies of Dao brand cellular phones. There is no dispute that the appellant had availed benefit of exemption under Notification No. 51/2000 by declaring the correct descriptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order cannot be sustained. 10. We find considerable force in the submission by MIL that the Show Cause Notice had to put the assessee to notice specifically as to which of the various commissions or omissions stated in the proviso to Section 28(1) of the Customs Act it was guilty of. MIL had been found to have defaulted as regards the post import condition of manufacture and export of resultant products using the inputs imported under the DEEC notification. They relied on the judgment of the apex Court in the HMM Ltd., case (supra), wherein, in a case of demand invoking larger period under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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