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TMI Blog2024 (1) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of raw material nor violation of any other conditions of license to the cost of exchequer - Apex Court held that DGFT order was not binding on Customs authorities for taking action under Customs Act, 1962. In the present case, there is no allegation that appellant had not fulfilled the export obligation. Appeal allowed. - HON BLE MR. P. A. AUGUSTIAN, MEMBER (JUDICIAL) And HON BLE MRS R. BHAGYA DEVI, MEMBER (TECHNICAL) For the Appellant : Mr. N. Anand, Advocate For the Respondent : Mr. Rajiv Kumar Agrawal, Commissioner (AR) ORDER Per P. A. AUGUSTIAN : Custom Appeal Nos. C/28563/2013 and C/2708/2011 These appeals are filed against Order-in-Appeal No.478/2013-C.E. dated 12.09.2013 passed by the Commissioner of Central Excise (Appeals-I), Bangalore and Order-in-Appeal No. JMJ/25/2011 dated 7.7.2011 passed by the Commissioner of Central Excise and Service Tax, Large Taxpayer Unit, Bangalore, respectively. 2. When the matter came up for hearing, the learned Counsel for the appellant submitted that due to rapid technological development/advancement, the imported raw material/components become obsolete and unfit for manufacture and therefore they sought permission from the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f (i) the capital goods, if such capital goods are destroyed within the unit or outside the unit, when it is not possible or permissible to destroy the same within the unit, in the presence of Customs or Central Excise Officer; (ii) the scrap or waste material or remnants arising in the course of production, manufacture, processing or packaging, if such scrap or waste material or remnants are destroyed within the unit or destroyed outside the unit when it is not possible to destroy the same within the unit: Provided that this condition shall not apply in the case of unit engaged in manufacture and export of gem and jewellery. 4. Ld. Counsel further submitted that said condition of 8 Notification No.53/2003-Cus dated 31.03.2003 was substituted by Notification No. 34/2015-Cus dated 25.05.2015 wherein it is specifically mentioned that duty shall not be leviable. Condition of 8 is reproduced hereinbelow: (8) Subject to the satisfaction of the said officer, duty shall not be leviable in respect of capital goods, raw material, consumables, spares, goods manufactured processed or packaged, and scrap or waste or remnants or rejects are destroyed within the unit after intimation to Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken earlier under these seven Notifications which were issued for seven Export Processing Zones, are deemed to have been done or taken under the corresponding provisions of the current Notification No. 133/94-Cus., which has rescinded all these seven notifications. (ii) Whether defective or sub-standard computers and its parts which are not required (useful) for current production and have also not been used can be destroyed outside the zone i.e. whether the goods which were imported under an earlier notification could be allowed destruction under the present Notification No. 133/94-Cus. (iii) Whether the goods which are permitted for destruction within the zones can be taken for destruction outside the zones, as the notification only provides for destruction within the zone? 2. The issue has been examined by the Board. It is clarified that action taken under the rescinded seven notifications will be deemed to have been done or taken under the corresponding provisions of the current Notification No. 133/94 and the goods which were imported under any one of the earlier notifications could be allowed destruction under present notification. Under para 7 (ii) of Notification No. 133/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons each governing 100% EOU in an Export Processing Zone, were rescinded. In this connection, the following doubts have been raised; (i) Whether the actions taken earlier under these seven Notifications which were issued for seven Export Processing Zones, are deemed to have been done or taken under the corresponding provisions of the current Notification No. 133/94-Cus., which has rescinded all these seven notifications? (ii) Whether defective or sub-standard computers and its parts which are not required (useful) for current production and have also not been used can be destroyed out side the zone i.e. whether the goods which were imported under an earlier notification could be allowed destruction under the present Notification No. 133/94-Cus.? (iii) Whether the goods which are permitted for destruction within the zones can be taken for destruction outside the zones, as the notification only provides for destruction within the zone ? (2) The Issue has been examined by Board. It is clarified that action taken under the rescinded seven notifications will be deemed to have been done or taken under the corresponding provisions of the current Notification No. 133/94 and the goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Adjudication Commissioner has passed detailed speaking order, telling all aspect of the case. Further Adjudicating authority has taken note of the fact that the assessee from time to time had given notice for destruction of the scrap or waste materials and remnants and only after considering the entire aspect, demand of duty was dropped. Thus, appeal filed by the Department is rejected vide Final Order No. 46/2010 dated 27.01.2010. 11. Learned Authorized Representative draws our attention to the finding of the Hon ble Supreme Court in the matter of CC Hyderabad Vs Pennar Industries (2015 (322) E.L.T 402 (SC) wherein it is held that since conditions of the exemption Notification are not fulfilled and the law required strict compliance of the exemption notification, assessee became liable to pay import duty which was payable but for the benefit of Exemption Notification No.30/1997 which were obtained by the assesse. Ld AR further submits that the issue is also considered in similar cases by the Hon ble Supreme Court in the matter of M/s SK Pattanaik Vs State of Orissa: 2000 (115) E.L.T 9 (SC). Learned AR also relied following orders in this regard. a) M/s. Sunrise Biscuits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue in detail in assessee s own case and allowed the appeals vide Final Order No.21269-21272 of 2023 dated 20.11.2023. Following the same, the appeals are allowed. Customs Appeal No.1116 of 2011 14. This appeal is filed against Letter C. No.IV/16/17/2009 B.II/161 dated 13.01.2011 of the Commissioner of Central Excise (Appeals-I), Bangalore. 15. The facts of this appeal are similar to the Custom Appeal Nos. C/28563/2013 and C/2708/2011, which are stated and decided above. Appellant vide letter dated 21.09.2010 sought permission for destruction and disposal of obsolete components which were unfit for manufacture and the department vide letter dated 4.11.2010 had communicated that there are no provisions in Customs / Central Excise to allow destruction of unutilised components and therefore, they are required to pay applicable duties in full before destruction. Aggrieved by this letter, appellant filed an appeal before the Commissioner (A), who in turn rejected their appeal as premature. Hence, this present appeal. 16. We find that the appellant has filed an appeal before us against a letter issued by the Commissioner (A), wherein the Commissioner (A) has observed as under: 1. P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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