9911796707
TMI Blog2025 (1) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... t, at the appropriate rate, and order its recovery from them under the provisions of Section 28 AA and 72 of the Customs Act, 1962; (iii) I also impose a penalty of Rs. 14,00,00,000/- (Rupees Fourteen Crores only) upon the party under Section 72(1)(a) and Section 112(a)(ii) of the Customs Act, 1962. If the duty as determined and interest payable hereon is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person shall be twenty- five per cent. of the penalty so determined subject to the condition that such reduced penalty is also paid within the period so specified 2.1 Appellant with address B-1, Sector-81, EHTP Unit, Phase I, Noida were registered with the Central Excise Department, having been granted Registration No.AAACS5123KXM005, as an EHTP Unit for manufacture of excisable goods namely Mobile Phone Handsets falling under Chapter sub-heading of 85171210 and 85171290 of the First Schedule of the Central Excise Tariff Act,1985, and Tablet Computer falling under Chapter sub- heading of 84713090 of the First Schedule of the Central Excise Tariff Act,1985. For manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods and consequent discharge of duty liability 2.6 Appellant along with their letter dated 23/11/2015 inter-alia submitted copy of the Annexure-III No.001/14-15 dated 28/02/2015 which was issued by the jurisdictional Deputy Commissioner in terms of serial No. 431 of the Notification No. 12/2012-Cus dated 17.3.2012, and which was utilized by them to discharge/adjust the duty liability payable at the time of de-bonding of the raw materials. The calculation sheet which was attached to the said Annexure-III No. 001/14-15 dated 28/02/2015 was also produced. 2.7. On examination of the said Annexure-III No. 001/14-15 dated 28/02/2015, it was seen that the same was applied by the said DTA unit under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 (in short the IGCR, 1996) for import of 1294708259 quantity of goods having estimated value of Rs.6,640,687,425.58/- involving Customs duty of Rs.1,493,369,968/-. It was pertinent to mention that the said Annexure III erroneously bore the stamp of the Appellant as the applicant. The error was apparent on the very face of the document because an EHTP could not have applied for availin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 72 and Section 112 of the Customs Act, 1962. 2.11 A show cause notice dated 18.02.2016 was issued to the appellant asking to Show cause as to why; (i) Customs duty amounting to Rs. 149,33,69,968/- Rupees One Hundred Forty Nine Crores Thirty Three Lacs Sixty Nine Thousand Nine Hundred Sixty Eight only) on imported raw material valued at Rs. 6,640,687,425/- removed from bonded area to DTA unit without payment of duties in contravention of Notification No. 52/2003-Cus dated 31/03/2003 should not be recovered from them in terms of section 28 and 72 of the Customs Act, 1962 and B-17 bond submitted by them should not be invoked to recover the said duty. (ii) appropriate interest on the above amounts of Customs duty should not be recovered in terms of section 28AA and 72 of the Customs Act, 1962 and the B-17 bond submitted by them should not be invoked to recover the said interest; (iii) imported raw material valued at Rs. 6,640,687,425/- and involving Custom duties of Rs. 149,33,69,968/- removed from the bonded area without payment of the said duties should not be confiscated under section 111 (o) of Customs Act, 1962; and (iv) penalty under section 72 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndorsed the view in favour of admissibility of exemption. * Duty is not recoverable under section 28 and Section 72 of the Customs Act,1962 as the duty that has been paid by the appellant is on the basis of assessment/ approval by the jurisdictional authorities. Hence there cannot be a case for short levy or non levy. Reliance is placed on the following decisions: * Cotspun Ltd. [1999 (113) ELT 353 (SC)] * Rainbow Industries [1994 (74) ELT 3 (SC)] * o Mahindra & Mahindra Ltd. [200 (120) ELT 290 (SC)] * Once the final exit has been given by the Development Commissioner, custom authorities could not have re-opened the matter. Reliance on * Universal Biofuels [2019 (369) ELT 111 (T-Hyd)] * Rajhans Impex Pvt Ltd. [2020 (372) ELT 346 (Guj)] * Reliance Infrastructure Ltd. [2017 (357) ELT 865 (T-Chennai) * Hyderabad Apparels [2008 (221) ELT 69 (T-Bang)] * Stone India Ltd. [2019 (369) ELT 1119 (T-Kol)] * Interest is not payable. * The goods are not liable for confiscation * As the issue is purely of interpretation penalties under Section 72 and 112 of the Customs Act, 1962 is not imposable 3.3 Learned special counsel for revenue submits: * 7. The claim that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in their case the effective rate of customs duty was nil amount as they were eligible to clear the goods uander exemption Notification 12/2012-cus and 21/2012-cus to their DTA unit against Annexure I issued to them under Customs (Import of Goods at concessional rate of duty for manufacture of excisable goods) Rules,1996 (hereafter IGCR in brief). In Para 54.11 of the OIO that the goods cleared by the appellant to the DTA unit are not covered under IGCR as the goods cleared by the appellant are not physically imported by the DTA unit from abroad as is envisaged in IGCR, read with Section 2(23) of the Customs Act and Patra 6.15 of the FTP and thus, the condition for availing exemption under Notification 12/2012Cus is not satisfied in the present case. * Thus, reason for denying the exemption under notification 12/2012-Cus is not that the department considers rates of duty at the time of clearance of goods as full rate of duty as is insinuated by the appellant but the exemption is denied purely because the DTA unit and the appellant are not eligible for the exemption due to non-fulfillment of the stipulated conditions for which the appellant has no valid explanation,. * Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 52/2003-Cus is a complete code (parasE.1 to E.4 of the appeal) is also bereft of any substance as Para 6.15 of FTP does not suggest anywhere that it is not applicable to the cases of sale/transfer of unutilized materials at the time of debonding of the unit. Para 6.15 and para 6.18 are part of the Chapter 6 of the FTP relating to the scheme of 100% EOU/EHTP and deals with the issues such as removal/ transfer of unutilized materials before or as part of debonding and both are supplementary and complementary with each other. These two paras and notification 52/2003 Cus clearly provide that duty is payable on the removal of any materials from the EOU and Para 6.15 of the FTP which is an integral part of the EOU Scheme speaks that any material removed from EOU to EOU shall be considered as import from which it is implicit that transfer of materials from EOU to other than EOU/EHTP Units will not be considered as import from FTP point of View. In Customs Act, import is already defined as bringing something from out of India. Thus, except the fact that Para 6.15 of FTP does not suit to their scheme of erroneous way of availing exemption from duty payable on unutilized materials, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that a general exemption is provided to any manufacturer on parts and components and accessories for the manufacture of mobile handsets when imported into India subject to condition 5 which is that the importer follows the procedure set out in the IGCR,1996. Thus, the exemption under this notification is available for goods imported in accordance the procedure laid down under IGCR,1996 and it is not extended to the goods already imported under other schemes like EOU or EPCG etc. Rule 2 of IGCR,1996 clarifies at the outset that these rules are applicable to an importer who intends to avail the benefit of an end use exemption notification from which it is explicit that these rules are not applicable to the manufacturer who is not an importer. Other Rules from rule 3 to Rule 5 require the importer manufacturer to obtain a registration, to provide details of estimated quantity, value of goods to be imported and port of import. From these rules and the text of the notification 12/2012-Cus it is crystal clear that the import of parts and components as specified at sl. No. 431 must be from outside India after having registration and approval from the jurisdictional ACCE/DCCE and procur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment has demanded duty at the rate prevalent at the time of removal o0f goods from the bonded warehouse. The appellant's another defense that assuming that a procedural requirement is not fulfilled, it cannot be a reason to deny the benefit is already discussed in detail in 54.12 of the 010 and their reliance on the decision in the case of Udai Shankar Triyar Vs.Rani Kalewar Prasad Singh, 2005 AIR SCW 5851 is not relevant in the present case as the case does not involve just procedural defects and instead noncompliance of the conditions of the exemption notification claimed by them are of very substantive nature. The decision rather supports the department's case wherein it is held that non-compliance with any requirement should entail an automatic dismissal if the relevant statute or rule so mandates. Further their above plea is not supported by the Supreme Court's decisions in the cases of Eagle Flask Industries Ltd. Vs. CCE,Pune, 2004 (171)ELT 296(SC) and CCE Vs. Harichand Shri Gopal, 2010 (260) ELT3 (SC) wherein it is held that the conditions of the exemption notification is to be strictly complied with to get the benefit and the object and the purpose of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly Foam Industries Vs. CCE, 1990 (46) ELT 462 Tri.), Bakeman's Home products Pvt. Ltd. Vs. CC, Bombay, 1997 (95) ELT 278 (Tri.) and Decora Ceramics Pvt. Ltd. Vs. CCE, Rajkot, 1998 (100) ELT 297 (Tri.) decided in different context are not having any bearing on the present case. * The appellant's contention in Para J of the appeal that duty and interest is not recoverable under Sections 28 and 72 of the Customs Act since demand of duty itself is not sustainable is totally based on their assumption that they have availed the exemption under notification 12/2012-Cus correctly and there is no avoidance of duty on their part. Whereas, in the above paras it has been demonstrated in great detail that they were not eligible to clear goods from EHTP unit to the DTA without payment of duty and have evaded the customs duty by not paying the tariff rate of duty on the unutilized materials. Consequently, the appellant has no legitimate basis to dispute the customs duty confirmed by the Principal Commissioner in his Order under Section 28 of the Customs Act and since Customs duty is held to be payable, interest is automatically recoverable on the duty amount under section 28AA of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate to refer to the relevant provisions of the Notification No. 52/2003-Cus dated 31/03/2003, Notification No. 12/2012-Cus dated 17/03/2012, Notification 21/2012-Cus dated 17/03/2012 and Customs (Import of Goods at Concessional Rate for Manufacture of Excisable Goods) Rules, 1996 and Foreign Trade Policy 2009-14. The same are reproduced below Para 4 of the Notification No. 52/2003-Cus dated 31/03/2003 reads as under: "4. Without prejudice to any other provision contained in this notification, the said officer may, subject to such conditions and limitations as he may deem fit to impose under the circumstances of the case for the proper safeguard of revenue interest and also subject to such permission of the Development Commissioner, wherever it is specially required under the Foreign Trade Policy, allow the unit to clear any of the said goods for being taken outside the unit, to any other place in India or to debond in accordance with the Foreign Trade Policy: Provided that no such clearance or debonding of capital goods under the Export Promotion Capital Goods Scheme of Chapter 5 of the Foreign Trade Policy shall be allowed if the unit has not fulfilled the positive NFE crite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the conditions, specified in the Annexure to this notification, the condition number of which is mentioned in the corresponding entry in column (6) of the said Table. Under the SI No. 431 of the aforesaid Notification No. 12/2012-Cus dated 17/03/2012 all goods under any Chapter having following description has been specified as under: "(i) parts, components and accessories for the manufacture of mobile handsets; (ii) sub-parts for the manufacture of items mentioned at (i) above; (iii) parts or components for the manufacture of battery chargers, PC connectivity cables, Memory cards and hands-free headphones of mobile handsets; and (iv) Sub-parts for the manufacture of items mentioned at (ii) above. Explanation. - For the purposes of this entry, mobile handsets include cellular phones." Further, in the Annexure to the Notification No. 12/2012-Cus dated 17/03/2012 against the aforesaid sl no. 431 following condition has been prescribed: "Condition No. 5:- If the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996." The relevant portion of the Notification No. 21/2012- Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d additional duties of customs is payable for any reason. Further, in the column of Standard Rate under SI. No. 1, 'NIL' rate has been specified Customs (Import of Goods at Concessional Rate of duty for manufacture of Excisable goods) Rules, 1996- "4. Application by the manufacturer to obtain the benefit.- (1) A manufacturer who has obtained a certificate referred to in sub-rule (3) of rule 3 and intends to import any goods for use in his factory at concessional rate of duty, shall make an application to this effect to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise indicating the estimated quantity of such goods to be imported, particulars of the notification applicable on such import and the port of import" "5. Procedure to be followed by Assistant Commissioner of Customs.- (1) On the basis of the application countersigned by the Assistant Commissioner of Central Exclse, the Assistant Commissioner of Customs at the port of importation shall allow the benefit of the exemption notification to the importer. Para 6.15 of FTP 2009-14 Sale of Unutilized Material (a) In case an EOU / EHTP / STP / BTP unit is unable to utili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to clear goods manufactured by them into Domestic Tariff Area in accordance with the provisions of the Exim Policy on payment of applicable duty of excise/customs. The duty payable on the manufactured goods is linked to aggregate of Customs duty leviable on the like goods if imported into India read with any exemption notification under Section 25(1) of the Customs Act, 1962 for the time being in force. Central Board of Excise and Customs has further clarified that benefit of end-use based Notification are also applicable to clearances made from EOUs and that the end-use bond can be taken from the domestic buyer treating them as if they were an importer. It is relevant to mention that the aforesaid Instructions have been issued specifically in the case of the goods manufactured by the EOU and the aforesaid Instructions have consciously chosen not to allow clearance of the unutilized raw materials by the EOUs to DTA units without payment of duties of Customs. I find that as per CBEC's Circular No. 91/2002-Cus dated 20.12.2002, in case the EOUs are unable, for valid reasons, to utilize the goods imported or procured duty free, such unutilized goods may be allowed to be sold/c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Further, the Para 6.15 of the FTP 2009-14 expressly stipulates that only when unutilized materials are transferred from EOUs to another such unit, such transfer would be treated as import for the receiving unit. In other words, in terms of the Para 6.15 of the FTP 2009-14 disposal of such unutilized materials in any other manner except transfer to another EOU unit cannot be treated as imports. Accordingly, the clearance/debonding of unutilized raw materials by the said Party (an EHTP unit) to the said DTA unit cannot be treated as imports in terms of the Para 6.15 of the FTP 2009-14. Further, as per Rule 4(1) of the IGCR, 1996, it has been provided that a manufacturer who intends to import any goods for use in his factory at concessional rate of duty, shall make an application to this effect to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise indicating the estimated quantity of such goods to be imported, particulars of the notification applicable on such import and the port of import Hence, as per Rule 4(1) of the IGCR, 1996, it has been provided that in the application for getting benefit under these Rules, port of import has to be speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the DTA unit cannot be treated as "import" by the said DTA unit. Hence, the said DTA unit cannot be said to have complied with the conditions of IGCR, 1996 in so far as the clearance/de-bonding of unutilized raw material by the party to the said DTA unit is concerned. Therefore, the benefit of exemption under the Notification No. 12/2012-Cus dated 17/03/2012 cannot be extended to the said DTA unit on such clearance/de-bonding of raw materials 54.12 I find that the party has placed its reliance on the case of Udai Shankar Triyar v. Rani Kalewar Prasad Singh and Another [2005 AIR SCW 5851], wherein the Supreme Court held that procedure, a hand maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The relevant para is reproduced here as under :- "17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. ................The well recognized exceptions to this principle are:- (i) where the Statute prescribing the procedure, also prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate applicable on the date of the deemed removal from the warehouse. Same view has taken in the case of M/s. SBEC Sugar Limited & Another vs. Union of India [2011 (264) E.L.T. 492 (S.C.). I find that the department is following the ratio of these judicial pronouncements, as duty has been demanded at the rate prevalent on the date of the removal of the goods from the warehouse 54.14 I find that the party has submitted that - "At the time of importation of the parts, components and accessories of mobile phones, in the capacity of an EHTP, the benefit of exemption was available in the nature of Notification No. 12/2012-Cus dated 17-03-2012 and Notification No. 52/2003-Cus dated 31-03-2003. Merely because they did not claim Notification No. 12/2012-Cus dated 17-03-2012 at the time of importation does not mean that it is not entitled to do so. In this regard, reliance is placed on the decisions in the cases, Unichem Laboratories Ltd. vs. Collector of Central Excise, Bombay [(2002) 7 SCC 145] and Share Medical Care vs. UOI [2007 (209) E.L.T. 321 (S.C.)], whereby it has been held that if the notification applies, the benefit there under must be extended.' The party has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de their additional reply dated 23.02.2017, the party has submitted that - "As in the context of Excise, the expression 'when sold' has been interpreted to mean the 'act of sale of goods', the similar expression used in subject Notification No. 12/2012-Cus dated 17-03-2012 shall mean the 'act of importation of imported goods' and not their time of importation' in the result, if the goods are imported into India but are cleared from customs bond (EHTP unit) subsequently at the time of de-bonding into DTA the said exemption would continue to be available to the EHTP unit as in the Judgement in the case Purolator India Ltd. Vs CCE, Delhi-II[2015 (323) E.L.T. 227 (S.C.)], it has been held that- "Discounts -......... .Stipulated in agreement of sale between assessee and its buyers - Known at or prior to clearance of goods - Hence, they must be deducted from sale price in order to arrive at value of excisable goods "at time of removal" Further, the same is the interpretation placed by the Hon'ble Apex court while calculating the CVD on the goods imported into India. Some of the decisions of the Apex court in this regard are reproduced below: a. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, the conditions have to be complied with. In the aforesaid decision, the Constitution Bench further held that detailed procedures have been laid down in Chapter X of the Rules so as to curb the diversion and utilization of goods which are otherwise excisable and the plea of substantial compliance or intended use therefore has to be rejected." I find that the above Judgment of the Constitutional Bench in the case of M/s Hari Chand Shri Gopal has been followed in the cases of Supreme Lamps v. CCE, Meerut [2013 (296) E.L.T. 45 (Tri. - LB)], Parshva Overseas v. Joint Secretary [2011 (274) E.L.T. 496 (Del.)], CCE, Coimbatore v. Universal Radiators Ltd. 2011 (273) E.L.T. 20 (S.C.)], Indian Oil Corporation Ltd. v. CCE, Vadodra [2012 (276) E.L.T. 145 (S.C.)], B.P.L Ltd. v. CCE, Cochin-II [2015 (319) E.L.T. 556 (S.C.)] and B.P.L. Limited v. Commissioner [2015 (324) E.L.T. A79(S.C.)] Further, as discussed earlier at para 54.11, the clearance of the goods from 100% E.O.U. to any place in India cannot be treated as imports, following the ratio of judicial pronouncements in the cases of Vikram Ispat v. CCE, Mumbai-III [2000 (120) E.L.T. 800 (Tribunal - LB)], supra, Winsome Yarns v. CCE, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d first proviso to para 3 in case of Notification No. 52/2003- Customs], if the goods produced or manufactured by EOUs and cleared to DTA if imported are either non-excisable or leviable to Nil basic customs duty [BCD] and additional duty of customs [CVD], then EOUs cannot avail the exemptions under these notifications on inputs utilized in anufacture/processing/packaging etc. of such goods [cleared to DTA]. 4. In addition, there are a number of customs and excise duty exemption notifications which prescribe concessional [including Nil] duty rates on specified goods [inputs/raw materials etc.] for use in manufacture of specified goods, subject to conditions prescribed. In this context, it has been stated that EOUs are not able to avail benefit of such exemptions on inputs imported or procured domestically by them. 5. The matter has been examined. As mentioned in para 2 above, non-applicability of exemptions under notifications issued under section 5A of the Central Excise Act, 1944 is only in respect of excisable goods produced or manufactured by an EOU and cleared to DTA and not in respect of inputs/raw materials procured by them domestically and utilised for production/manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said clarification also provides that the benefit of the said Notification will be admissible even without separately comply with the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2016 for availing the CVD exemption, if the procedure under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rule, 2016 is followed by it for availing exemption / concession from BCD on imports of inputs/raw materials. 4.7 Basic difference between para 6.15 & 6.18 of the Foreign Trade Policy is well evident from the decision of Hon'ble Supreme Court in the case of SIV Industries [2000 (117) E.L.T. 281 (S.C.)]. Explaining the concepts of bonding and de-bonding in respect of the EOU, Hon'ble Supreme Court held as follows: "18. Contention of the Revenue is that permission to withdraw from scheme is itself a permission to sell in India, i.e., when unit is permitted to debond, it would be deemed to have been permitted to sell the goods in India. But then permission to sell in India has to be in terms or in accordance with the provisions of the export import policy. Permission to sell in India by 100% E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962. The entire operations of an EOU are to be in customs bonded factory, unless otherwise specifically exempted from physical bonding. The approved unit is required to execute a bond/legal undertaking with the Development Commissioner concerned in the form prescribed. Under the conditions laid for EOU, bonding period for units under the EOU Scheme is ten years. This period may be reduced to five years by the Board of Approvals in case of products liable to rapid technological change. On completion of the bonding period it shall be open to the unit to continue under the Scheme or opt out of the Scheme. Such debonding is, however, subject to industrial policy in force at the time the option is exercised. On the satisfaction of the Board of Approvals, EOU may be debonded on its inability to achieve export obligations, value addition or other requirements. Such debonding is subject to such penalty as may be imposed and levy of the following duties:- (a) Customs duty on capital goods at depreciated value but at rates prevalent on the dates of import; (b) Customs duty on unused raw materials and components on the value on the dates of import and at rates in force o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100% EOUs have to be treated as imports for the purpose of calculating the duty. What is required to be determined/quantified is the Customs duty and not the Central Excise duty. Once Section 3 itself creates a legal fiction of levying customs duty and treating clearances by 100% EOUs at par with imports, the question of altering nature of levy and the exemptions by circulars does not arise. The Commissioner has totally misunderstood the circulars which made it abundantly clear that notifications applicable to units working under EPCG schemes shall be equally applicable to goods being procured from 100% EOUs. The emphasis on Section 5A of the Central Excise Act is totally misplaced. It refers to exemption notifications issued under Section 5A and not under the Customs Act. Therefore, the exemption notification issued under Central Excise Act cannot be made applicable to 100% EOUs unless specifically provided for in that notification. But the same cannot be applied to notifications issued under Customs Act where Section 5A of the Central Excise has no application whatsoever. The three circulars issued by the Board in 1994, 1-12-2004 and May, 2005 make it very clear that the concess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any imported goods, the effective rate of duty is nil, it is the that rate which would have to be adopted and the basic Customs duty component of the excise duty payable on the DTA clearances would be nil. Thus if some goods imported into India are fully and unconditionally exempt from Basic Customs Duty by some exemption notification, while calculating the Central Excise Duty leviable on the DTA clearances of those goods, the Basic Customs Duty would have to be taken as nil, even if those DTA clearances are not in accordance with the conditions prescribed in para 6.8 of the Foreign Trade Policy. It is seen that same view has been taken by the Board in its Circular No. 305/83/94-FTT, dated 15-9-1994. 7.1 The other ground taken by the Department for denying basic customs duty exemption under Notification No. 21/2002-Cus. (Sl. No. 200), is that the scrap, in question, is not melting scrap, is absurd, as the nature of the scrap cannot be determined on the basis as to whether it has been sold the actual users or the dealers, as only use to which Iron and Steel Scrap can be put, is by melting the same to make some other Iron and Steel products. Same view has been taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enhanced value which was done in into bond bill of entry, we find that into bond bill of entry is only for the purpose of inbonding of goods in the Custom bonded warehouse. On the basis of into bond bill of entry, neither the goods are cleared for their consumption nor any payment of duty is made. Therefore, the assessment of into bond bill of entry is deemed to be provisional assessment. The final assessment is done only in ex-bond bill of entry for home consumption whereby the customs duty is actually paid when the goods are cleared from the bonded warehouse. The ex-bond bill of entry is final assessment order which is appealable. Hence, the appellant had a legal right to challenge the ex-bond bill of entry contesting all the issues. It is observed that in the into bond bill of entry, value was enhanced over the amount of invoice value without any evidence which is not legal and proper. Therefore, consequently, the enhanced value adopted in ex-bond bill of entry is also not correct. We, therefore, hold that the original value of the .goods should be taken as per the invoice and not on the basis of enhanced value adopted in the into bond bill of entry as well as ex-bond bill of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is entitled for exemption under notification 25/2002-Cus. and 25/1999-Cus. Accordingly, the impugned order is set aside. Appeals are allowed.' Special Counsel appearing for the revenue had strenuously sought to distinguish the said case from the facts of the present case We do not find any merits in the said distinction. The facts of the case as recorded in para 4 of the above order clearly point that benefit of exemption has been allowed at the time of debonding even when the same was not claimed at the time of importation of goods by the EOU. We find that the ratio of this decision is squarely applicable to the facts of present case. We also note that civil appeal filed by the revenue against this order has been dismissed by Hon'ble Supreme Court as reported at [2020 (371) E.L.T. A87 (S.C.)] observing as follows: "Delay condoned. We are in agreement with the view of the Customs, Excise and Service Tax Appellate Tribunal that there was substantial compliance on the part of the respondent in regard to the conditions prescribed for availing the benefit of the exemption notification for converting the 100 per cent Export Oriented Unit as a Domestic Tariff Area Unit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority, the assessee had not mentioned the serial number and list number applicable for the removal of capital goods with deliberate intention to mislead the assessing officer regarding the rate of duty applicable. The aforesaid view of the Adjudicating Authority is fallacious, for the reason that in case the assessee had not indicated the serial number of the relevant notification, it was for the concerned Assessing Officer to point out the same to the assessee and call upon it to state the proper facts. Without calling upon the assessee to state the serial number under which the goods would fall, and without pointing out any defect in the bill of entry filed by the assessee, the concerned officer had assessed the bill of entry and had not raised any demand of countervailing duty or special additional duty. The assessee had rightly or wrongly claimed liability to pay duty at a particular rate. At the time of assessing the bill of entry, it is for the concerned officer to ascertain the actual duty liability. Mere non-mentioning of the serial number under which the goods would fall cannot be equated with suppression, because it was for the concerned officer to even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re having a warehouse under the Customs Act and were operating under section 65 of the Customs Act for manufacture under Customs bond. 6.2 For some unforeseen reason, they were not able to produce and export and therefore, sought to exit from the scheme and the permission has been granted to do so by the competent authorities. The final exit order from the scheme will be given only on payment of dues as stipulated under condition of Notification No. 52/2003. The concession otherwise available is sought be denied as final exit order was not given by the STPI authorities at the time of assessment. If this reasoning is taken to logical end then, as the unit is still EHTP only nil duty can be assessed. Such an approach would lead to a situation where they would never be able to exit. This cannot be the intention of the policy. The procedure should work as hand maid of the policy and not the other way of about. The Commissioner was correct in holding that the duty was being demanded only in pursuance of the decision taken to exit from EHTP scheme. 6.3 It is a case where the assessee from the zero rated scheme is moving to another scheme with a higher (higher than zero) but concessio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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