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TMI Blog2023 (9) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... cited by learned AR are concerned, in COMMISSIONER OF CENTRAL EXCISE, GOA VERSUS M/S. COSME FARMA LABORATORIES LTD. [ 2015 (4) TMI 355 - SUPREME COURT] , the question was different and the dispute related to whether the manufacturer or principal who is owner and manufacturer in the given facts and circumstances of the matter - Further, in the case of CCE, BELAPUR VERSUS FERRING PHARMACEUTICALS PVT. LTD. [ 2017 (11) TMI 1510 - CESTAT MUMBAI ], the single Member Bench in the facts of the case, held that loan licensee to be treated as manufacturer and further in the facts of the issue the cancellation of registration as manufacturer was required, and does not match with the present case. Appeal allowed. - MR. SOMESH ARORA, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Willingdon Christian, Advocate for the Appellant Shri Rajesh R. Kurup, Superintendent for the Respondent ORDER The issue involved is whether the appellant can be ousted from the eligibility for benefit of Notification No.50/2017-cus dated 30.7.2017 solely because the (duty-free) goods imported by him were used in the factory of loan licensee, i.e. M/s Tuton Pharma, Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted goods in the importer's own factory. There is nothing in the exemption Notification or the Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017, to prohibit an importer from sending imported goods to a loan or a job worker for processing or manufacture of the intended final product. On the contrary, as per the definition of actual user in Para 9.03 of the Foreign Trade Policy 2015-20, an actual user is a person who utilizes imported goods for manufacturing in his own industrial unit or manufacturing for his own use in another unit including a jobbing unit, which has a definitive postal address. At this juncture, it is pertinent to add that the loan licensee/ jobbing unit in this case, viz. M/s Tuton Pharmaceutical, which is at the address at Plot No.85, GIDC, Naroda, Ahmedabad, having GSTIN No.24AAAFT8598A1Z4, has been specifically mentioned in the Bond, demonstrating its definitive postal address as required in terms of the definition of actual user . The said place also happens to be the Appellant's additional place of Business under Appellants GST Registration certificate. 5. Learned advocate submits that in fact, the word importer is defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd address of M/s Tuton's factory as manufacturer (loan licensee). The bonds were accepted and permission was granted on that basis for availment of the exemption benefit. In that view of the matter, the Department cannot take a completely contrary view and deny the benefit. In this context, reliance is placed on the judgment of the Hon'ble Tribunal in case of CCE Vs. JCT Electronics Ltd. reported in 2010 (261) ELT 267 (T) 10. The Show Cause Notice dated 23.9.2020 covering the period from 15.09.2017 to 25.03.2019 is also partly time barred. The Appellants have given all the relevant details about their intention to get the goods manufactured by M/s Tuton Pharma. They are also executed Bonds on that basis and the Department had permitted use of the goods at M/s Tuton. There is nothing to indicate any willful suppression of facts or mis-statement or fraud, etc. Hence, longer limitation period will not apply under Section 28 of the Customs Act, 1962. 11. Shri Rajesh R. Kurup, learned Superintendent (AR) relied upon the findings in the impugned order. 12. Considered the rival submissions. We find that matter stand largely covered by the decision in the case of FDC Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the manufacture of any excisable commodity. As per Rule 3 a manufacturer intending to avail the benefit of the exemption notification shall obtain a Registration from the Assistant Commissioner of Central Excise having jurisdiction over his factory. Lower authorities have done their job by a very literal interpretation of Rule 3. Their argument is that the Rule 3 uses the expression his factory . In other words the lower authorities interpret that the importer should own a factory and he has to use the imported material only in his factory. Otherwise, the importer would not be entitled for the concessional assessment under the above Notification. If the importer uses the imported goods in a factory belonging to some other person he would not be entitled for the concessional assessment. The Tribunal s decision in the Panacea Bio-tech Ltd. case relied on by the Commissioner has broadly followed the above line of argument. In our view, the above approach is not at all in consonance with the philosophy of liberalisation and globalisation embraced by the Government of India in all its policies relating to Customs, Excise and Foreign Trade as revealed in a plethora of policy document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter. Revenue came in appeal before the Tribunal. The Tribunal held that the importer was entitled to exemption as neither the Rules nor the Notifications itself prohibited such transfer. The above decision was held in the context of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. The ratio of the above decision is applicable to the present case also. The fact that Chennai Commissionerate has permitted Registration in respect of the importer who does not own the factory where the imported Crude Palm Oil is utilised is also supporting the appellants case. Hence we allow the appeal with consequential relief, if any. 5. In the case of G.R. International (supra) the Tribunal held that following common law principle that what is done by duly constituted agent will be treated as having done by the principal and thus the condition as to manufacturer set out in Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 will include the premises of loan licensee. The appellant s case is squarely covered by the aforesaid two decisions. As per the above discussion and decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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