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TMI Blog2023 (10) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... in demand of Customs duty foregone from the Nominated Agency. Accordingly, the Tribunal has held that no duty can be demanded from them. We observe that the ratio of this decision is squarely applicable in this case. In respect of Circulars specifying the conditions which are not there in the Notification, it is found that the Hon ble Supreme Court has decided in the case of M/S. SANDUR MICRO CIRCUITS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELGAUM [ 2008 (8) TMI 3 - SUPREME COURT] where it was held that it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. By following the decision of the Hon ble Supreme Court and the Tribunal the demand of customs duty from the Appellant is not sustainable - the demand of duty confirmed in the impugned order set aside. Non imposition of redemption fine and penalty under Section 112(a) and 114A of the Customs Act, 1962 - HELD THAT:- Since the demand of duty itself is not sustainable, the question of demanding redemption fine and imposing penalty does not arise. Accordingly, the department's appeals are rejected. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant claimed that they have duly satisfied this condition by obtaining the Shipping Bills from SGJHIL and EGJL, as proof of exports within the prescribed period. 5. Investigation was initiated by Directorate of Revenue Intelligence (DRI), wherein it was alleged that SGJHIL and EGJL have not fulfilled their export obligations, as they have not submitted the bank realization certificate to the Appellant. Customs Circular No.77 (RE-2008)/2004-09 dated 31.03.20099 (herein after referred as 'Policy Circular'), issued by DGFT provides that Nominated Agencies shall follow the procedure and fulfill the conditions specified in the Customs circulars. As per para 4 (xii) of Customs Circular 28/2009, The exporters shall furnish the EP copy of Shipping Bill and BRC to the Nominated Agencies as a proof of having exported the jewellery from the duty free goods released to them within the prescribed period in FTP . Since the Nominated Agency has not submitted the BRC as prescribed in the Circular 28/2009, the customs duties foregone on the goods supplied to the exporters were demanded from the Nominated Agency and confirmed vide the impugned order. 6. In their submissions, the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions to avail the benefit of this notification. The Appellant has to execute a bond undertaking to the export of goods within the prescribed period of 120 days from the issue of the goods. The Appellant contends that they have fulfilled this condition as they have submitted copies of Shipping Bills received from the exporters evidencing exports. It is their contention that there is no condition in the Notification 57/2000 that the Nominated Agency should obtain the BRC from the exporters within the prescribed period, for availing the benefit of the exemption notification. Such condition was prescribed only in the Circular 28/2009, which is not binding on the assessees. It is a settled position in law that a new condition which does not form part of the Notification cannot be introduced through a Circular. Accordingly they contended that the demand of duty from them is against the conditions of the notification. 12. We observe that the issue is no longer res integra as the CESTAT, Bangalore in Appellant's own case reported in 2009 (233) ELT 260 categorically held that the provisions of the Exemption Notification 57/2000 read with erstwhile Circular No. 24/98- Cus dated 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with export/import policy and also the relevant provisions of Hand Book of Procedures. We do not agree with the contentions of the learned special Counsel. On a plain reading of the notification, we do not think that non-realization of sale proceeds amounts to violation of the conditions of notification by the first appellant. There is no allegation that the first appellant colluded with the second appellant and as a result of such collusion the sale proceeds were not realized. In other words, when the notification has not stipulated any condition to the effect that the nominated agency should ensure the realization of sale proceeds of the exported goods. We cannot read such a meaning into the said notification. Consequently, we do not hold that the first appellant has violated the conditions of the notification. Therefore, in our view the first appellant is not liable to pay the Customs duty demanded in the impugned order. Further, we reproduce Para (xiii) of Circular No. 24/1998-Cus., dated 20-4-1998 : Wherever such proof of export is not produced within the period prescribed in the EXIM Policy the Nominated Agencies, shall (without waiting for its recovery from the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962. In view of the above findings, we do not hold that the impugned goods are liable for confiscation under the Customs Act. The first appellant is not liable to discharge duty liability for the impugned gold. Both appellants are not liable for penalty under Section 112 (a) of the Customs Act, 1962. Hence, we allow the appeals of both the appellants with consequential relief. 13. In respect of Circulars specifying the conditions which are not there in the Notification, we find that the Hon ble Supreme Court has decided in the case of Sandur Micro Circuits Ltd Vs CCE, Belgaum reported in 2008(229)ELT 641 (SC). The relevant part of the decision is reproduced below: 2. In all these appeals common questions are involved and are directed against the judgment and final order passed by the Customs, Excise and Service Tax Appellate Tribunal (in short the Tribunal). Since in appeals filed by the appellants common question of law is involved, there is no need to elaborately deal with the factual aspects. Question is the effect of a circular issued by Central Board of Excise and Custom (in short the Board ) i.e. Circular No. 42 of 1997 dated 19-9- 1997. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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