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TMI Blog2024 (11) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... t the intent of the amendment was to address this particular situation, which was already provided in the Foreign Trade Policy (FTP) at Para 6.15(b) and was not provided in the Customs Notification No.52/2003 dated 31.03.2003 - We find that on a harmonious reading of the provisions of Para 6.15(b) of FTP and the Customs Notification No. 52/2003 prior to the substitution of condition (8) of the notification, it would tacitly imply that destruction of the obsolete raw materials may be allowed after intimation to customs authority, if destroyed within the unit, and with permission of the customs authority for destruction outside the unit. We also find that such permission for destruction was given in the past by the Department. As regards the other submissions of the learned AR that; the appellant cannot raise the point of substitution of condition (8) in Notification No. 52/2003 as it was not raised before the original authority nor the first appellate authority, we find that the substitution was made in 2015, which is much after the passing of the orders by both the authorities; as regards the submission of approval from BOA ( DGFT/JDGFT), we find that the learned AR has not adduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clearance of the destroyed goods on payment of duty on the scrap value. However, the request was denied and duty payable at the time of import was demanded vide the impugned letters as tabulated below. Appeal No. TE s letter Annexure-D Date ACIT/DCIT Reply Annexure-C Date OIA Date C/23229/2014 11.12.2013 27.01.2014 14.07.2014 C/21870/2014 16.09.2013 21.10.2013 28.02.2014 C/23788/2014 25.04.2014 15.05.2014 29.09.2014 C/20902/2014 18.07.2013 19.08.2013 17.12.2014 3. Aggrieved by the letters/ orders of denial of permission for destroying the imported goods by the Jurisdictional AC/DC the appellant filed appeals before Commissioner (Appeals). Commissioner (Appeals) confirmed the order of the Original Authority conveyed by the above letters. Aggrieved by the said orders, the present appeals are filed. Since the issue is common in all the above 4(four) appeals they are taken up for disposal by this order. 4. In the above appeal nos. C/23229/2014, C/21870/2014, C/20902/2014, C/23788/2014 the appellant has paid the duty payable at the time of import of goods under protest and destroyed the goods and cleared the scrap on payment of duty applicable to the destroyed goods. 5. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... integra and is well settled in favour of the appellant in the following judicial decisions. a) In the appellant s own case, this Hon ble Tribunal recently allowed the appeals in C/311,312,332 797/2012 vide Final Order No. 21269-212752/2023 dated 20.11.2023 and set aside the impugned decisions/orders. b) Saint Gobain Crystals Detectors (l) Ltd., Vs. CC Bangalore, 2018 (364) 1055 (Tri-Bang.). c) India Actuators Private Limited Vs. CCE, 2009 (244) ELT 573 (T). d) Macmillan India Ltd Vs. CC Bangalore 2008(223) E.L.T 449 (Tri-bang.). e) CCE Vs. Pure Rice Ltd. 2007 (217) E.L.T. 173 (P H) maintained by Honorable Supreme Court as reported in 2008 (222) ELT A79 (SC) f) CCE Hyderabad Vs. Dr. Reddy Laboratories Ltd, FO No. 46/2010 dated 27.01.2010 upholding OIO No. 09/2005 dated 18.04.2005 passed by the Ld. Commissioner of Customs, Hyderabad. 8. The appellant further submits that condition (8) of notification No. 52/2003-Cus dated 31.03.2003 has been substituted by Notification No.32/2015-Cus dated 25.05.2015 which is mutatis mutandis as per para 6.15(b) FTP; the substitution is intended to make the condition in customs notification in consonance with para 6.15(b) of FTP, to avoid dichotomy b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has a wider connotation similar to the expression in the manufacture or in relation to manufacture. 12. During hearing of the appeals, Learned Counsel for the appellants submits that the issue is recurring in nature and against the past demands, appeals were filed before and this Tribunal vide Final Order No. 21269-21272 of 2023 dated 20.11.2023 allowed the appeals. Thereafter, the issue came up for hearing again and this Tribunal allowed the appeals vide Final Order No. 20010-20012 of 2024 dated 04.01.2024. 13. Learned Authorized Representative (AR) for the Revenue submits that: as per Notification No.52/2003 dated 31.03.2003 clause 3(d) extracted below reads as; In the case of goods other than capital goods, such goods as are not proved to the satisfaction of the said officer to have been used in connection with the production or packaging of goods for export out of India or cleared for home consumption within a period of three years from the date of import or procurement thereof or within such extended period as the said officer may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow; In the case of- a) .. b) .. 14. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny document such as Chartered Engineer s certificate evidencing the obsolesce of raw materials so destroyed; the order dated 04.01.2024 in Appeal Nos. C/28563/2013 C/2708/2011, wherein it is held that the facts of the case/issue involved in the case of Pennar Industries Ltd. 2015(322) E.L.T. 402 (SC) were different from the facts of the case at hand. 17. Heard both sides and perused the records. 18. We find that the appellants have imported goods and also procured goods from DTA in terms of exemption Notification No. 52/2003-Cus dated 21.03.2003 and Notification No.22/2003-CE dated 31.03.2003, respectively. It is their submission that due to rapid technological advancements few of the materials imported by them have become obsolete, remained unutilized and could not be used in the manufacture of the final product and hence necessarily have to be scraped being obsolete and unfit for manufacture of export goods. 19. We find that the relevant extract of the Notification No. 52/2003 dated 31.03.2003 reads as under:- (8) Subject to the satisfaction of the said officer, duty shall not be leviable in respect of (i) the capital goods, if such capital goods are destroyed within the unit or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in 2015, which is much after the passing of the orders by both the authorities; as regards the submission of approval from BOA ( DGFT/JDGFT), we find that the learned AR has not adduced any such mandatory requirement; as regards the C.E. certificate certifying the obsolesce we find that their no such requirement, further there was no charge/finding that the destroyed goods are not obsolete. 23. We also acknowledge that technological innovation and advancements would result in obsolesce of the earlier technology whereby the inputs, capital goods etc., used earlier for the production of final product would become obsolete and not fit for further use. Hence, the provision for destruction of the obsolete goods may have to be provided in the Policy/Notification. We find that the provision for destruction of capital goods, raw materials etc., was provided under the Foreign Trade Policy (FTP) in para 6.15(b), however, the provision for destroying the raw materials was not provided in the Notification No. 52/2003 dated 31.03.20003 and the provision has been bought in by the amending Notification No. 34/2015 dated 25.05.2015. 24. We also find that while considering the similar issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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