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TMI Blog2024 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... er vide letter No. 1/72(2) EOU CEPZ 10517 dated 15.12.2004, conveyed the approval of the Development Commissioner fixing the percentage of waste and scrap generated as 20.34% on adhoc basis for the period of 6(six) months. Thereafter, as evident from letter dated 05.07.2005, Board of Approvals for 100% EOU in its 4th meeting held on 14.06.2005 decided that Adhoc norms fixed by the Development Commissioner, Special Economic Zone to continue till regular norms are approved by the Board of Approval. From the above facts and considering the judgment of M/s Goodluck Garments Pvt Ltd [ 2019 (1) TMI 1514 - GUJARAT HIGH COURT] merely if wastage is in excess of the input-output norms, without anything more, would not be sufficient for the Adjudicating authority to arrive at the conclusion that the imported goods have not been used for the manufacture of the articles for export. Further, it cannot be read in this manner, despite the fact that the Appellant is in a position to show that the entire material has been used for the purpose of manufacture of goods and there is no allegation with regard to the diversion of goods. We find that, if the Appellant has fulfilled the export obligation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority. Aggrieved by said orders, present appeals are filed. The 4(four) appeals are being decided by this common order, since the issues are similar. 4. During the hearing, the Learned Counsel for the Appellant submitted that; the demand was raised for the period from August, 2004 to March 2006; when actual waste generated during the production was more than the prescribed 4.76% as per SION norms related to the subject goods, Appellant had taken up the issue with Development Commissioner, Cochin Special Economic Zone (CSEZ) vide letter dated 07.12.2004 for amending the wastage norms. Considering the same, Assistant Development Commissioner vide letter No. 1/72(2) EOU CEPZ 10517 dated 15.12.2004 conveyed the approval of the Development Commissioner fixing the percentage of waste and scrap generated as 20.34% on adhoc basis for a period of 6(six) months. Thereafter, Board of Approvals (BoA) for 100% EOU in its 4th meeting held on 14.06.2005 decided that adhoc norms fixed by the Development Commissioner, Special Economic Zone to continue till regular norms are approved by the Board of Approval. However, SCN was issued demanding customs duty on the ground that as per Para 6.8(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered as not accounted to the satisfaction of the proper officer to confirm demand under the above provisions. As regards Para 6.8(e) of the EXIM Policy/Foreign Trade Policy referred by Adjudicating authority, said provision only deals with sale of Scrap/Waste to DTA under concessional rate. However in Appellant s case the goods are still available in the EOU and not removed to DTA. The Learned Counsel further submits that once the Adjudicating authority accepted that the Approval Committee is one of the Committee to give relaxation, considering the communication made by the Approval Committee vide letter dated 14.06.2005, should be considered as the relaxation given and demand should not have been made against the Appellant. Provision of Paras 6.8(d) and 6.8(e) of the Foreign Trade Policy is related to sale of the scrap to Domestic Tariff Area (DTA), whereas there is no such attempt made by the Appellant for sale of the scrap. 8. The Learned Counsel further submitted that Section 72 of the Customs Act, 1962 relates to goods improperly removed from warehouse etc, whereas in Appellant s case, they have not removed any goods. Goods were properly accounted and are still lying in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd DGFT for clarification instead of confirming the demand against 100% EOU. Thus the demand of Customs duty on the raw materials imported and consumed in the manufacture of export goods and generation of waste in excess of quantity fixed as per the SION is contradictory to law. 12. The Learned Counsel also submitted that the decision of the Tribunal in the matter of M/s Goodluck Garments Pvt Ltd Vs. CCE Cus, Surat-II-(2006 (206) E.L.T 911 (Tri. Mum) was set aside by the Hon ble High Court of Gujrat vide judgment - 2019 (365) E.L.T 893 (Guj). Learned Counsel also relied on the judgment of the Hon ble Madras High Court in the matter of M/s IOCEE Exports Ltd Vs. Commissioner of Central Excise, Chennai - 2021 (376) E.L.T 311 (Mad). 13. Learned Counsel also submitted that as per Para 6.8(f) of EXIM Policy/Foreign Trade Policy EOU is permitted to destroy the waste with the permission of Respondent without payment of duty. There shall be no duties/taxes on scrap/waste/remnants, in case the same are destroyed with permission of Customs authorities and under supervision of the Customs officers in terms of Para 6.8(f) of the FTP. Consequently, the demand of Customs duties with interest as c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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