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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 ..... case are the appellant imported goods duty free under Notification No. 52/2003-Cus dated 21.03.2003 read with para 6.15(b) of per Foreign Trade Policy (FTP) 2019-20. The appellant complied with the export obligation, however due to change of technology, some of the imported raw materials and components have become obsolete and unfit for manufacturing. Accordingly, appellant had requested for permission from the Jurisdictional Asst. Commissioner/ Deputy Commissioner to destroy the goods 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 (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the policy of Government of India; Para 6.15(b) of FTP deals with EoUs, EHTPs, STPs and BTPs and deals with unutilized imported goods and reads as under; ............................... ................................. ................................ "No duty shall be payable in case of capital goods, raw material, consumables, spares, goods manufactured, processed or packaged, and scrap/waste/remnants/rejects are destroyed within the unit after intimation to Customs authorities or destroyed outside the unit permission of the Custom Authorities.". 7. The learned counsel further submits that the issue is no longer res 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. Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the previous orders/decision in their own case. Hence, they are opposed to the decisions in Jayaswals Neco Ltd Vs. CCE, 2006 (195) ELT 142 (SC) and Marsons Fan Industries Vs. CCE, 2008 (225) ELT 334 (SC). 11. Further the appellant contends that prior to substitution of condition (8) of the Notification it is provided that duty shall not be leviable in respect of scrap or waste material or remnants raising in the course of production, manufacture, processing and packaging, if such scrap or waste material or the remnants are destroyed within the unit and that their case is covered even prior to the substitution. Since, the phrase in the course of production 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 Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of appeal. He has relied on the following case laws. i) Control Touch Electronics (Poona) Pvt., Ltd.,2016(355) E.L.T. 529 (Tri. - Mumbai) ii) Allahabad High Court-Commissioner of Cus. & CCE, Goa Vs. Dempo Engineering Works Ltd., [2015 (319) E.L.T. 349 (SC) iii) Hindustan Organic Chem. Ltd., Vs. CCE, Mumabi-VII [2010(251) E.L.T. 454(Tri. - Mumbai)-para3] iv) Standard Pencils Pvt. Ltd., Vs. CCE, Chennai [2006 (197) E.L.T. 346 (Tri. - Del)] v) Hon'ble Supreme Court in the case of CCE Vs. Dempo Engineering Works Ltd., reported in [2015 (319) E.L.T. 359 (SC) 16. Learned AR further submits that; in the appeal papers the permission submitted from Board of Approvals (BoA) of DGFT/JDFT does not pertain to the appellant; the appellant has not furnished any 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 22. Further, 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 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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