9911796707
TMI Blog2025 (1) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... s was accepted by the jurisdictional authorities on 28.02.2015 as required in terms of IGCR, 1996. From the clarification issued by the TRU referred above, it is evident in case the EOU/ EHTP can claimed the benefit of the said notification at the time of import of the said goods even without seeking fresh registration under Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2016 or the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable and Other Goods) Rules, 2016. The 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. There are no hesitation in holding that at the time of debonding, the value of raw material cleared has to be value at the time of impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 manufacture of the said excisable goods, the party was procuring imported and indigenous capital goods, raw materials and consumables at Nil rate of duty by availing the benefit under the provisions of Notification No. 52/2003-Cus dated 31/03/2003. The receipt and consumption of the said raw material and other goods were being reflected in the monthly ER-2 returns filed with the department 2.2 At the very same premises i.e. B-1, Sector 81, Phase I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 availing the benefit under IGCR, 1996, and such benefit was available only to a DTA unit. This anomaly regarding the Appellant (an EHTP unit) being the applicant, was admitted by the DTA unit and was explained to be an inadvertent mistake in the letter dated 08/02/2016 submitted by M/s. Samsung India Electronics Pvt. Ltd (DTA unit) to the jurisdictional authority 2.8 In Table-2 of their letter dated 25/02/2015, the Appellant had mentioned about the adjustment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification 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 and 112 and of the Customs Act, 1962 should not be imposed upon them. 2.12 The show cause notice has been adjudicated as per the impugned order referred in para 1 above. 2.13 Aggrieved appellant has filed this appeal. 3.1 We have heard Shri B L Narasimhan, Ms Nupur Maheswari and Shri Siddhant Jain, Advocates for the appellant and Shri Rajpal Sharma, Special Counsel for the revenue. 3.2 Arguing for the appellant learned counsels submit: Debonded goods are at par with the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 they were eligible to pay nil rate of duty on the clearance of unutilized raw material at the time of debonding in terms of Para 4(b) of the notification 52/2003-Cus is entirely based on their assumption and presumption that they are eligible to clear goods to DTA unit without payment of duty under notification 12/2012-Cus and 21/2012-cus. It is pleaded that while para 4(b) of the notification 52/2003-cus provides for payment of customs duty at the effective rates of duty prevalent at the time of debonding of goods, the department's case is that this phrase implies the tariff rate of duty and, therefore, an exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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,. Chapter 6 of the FTP 2009-2014 exclusively dealt with various aspects of 100% EOU/ EHTP units and sub -para 6.15 provided that in case EOU/EHTP was unable to utilize goods and services imported or procured from DTA, such goods could be transferred to another EOU/EHTP or could be disposed of in DTA on payment of applicable duties or exported. Further it is specifically clarified in the said sub-para itself that such transfer from EOU/EHTP unit to another such unit would be treated as import for receiving unit. Thus, from this clarification it is explicit that transfer/sale of goods to other units, other than EOU/EHTP/STP/BTP unit, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials 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 is no other valid reason to delink this para from Para 6.18 of the FTP Assuming for a while Para 6.15 is not applicable to the EOU/EHTP unit in respect of de- bonded goods and Para 6.18 of the FTP is only applicable as is claimed by the appellant, it is not explained how this averment is helpful to the appellant in this case when even Para 6.18 does not suggest anywhere that goods transferred/sold from EHTP to DTA Unit will be deemed as import of goods. Section 2(23) of the Customs Act which defines Import as bringing into India from a place outside India' also does not come to their rescue and rather demolishes their claim that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 procurement of any such materials from domestic source, including EHTP, is not contemplated in the said notification and the IGCR No word or any other hint is used in any of these rules to suggest that exemption is allowed in respect of goods procured from EHTP also. The definition of the word import as given in Section 2(23) of the customs Act also demolishes their hypothesis that the goods imported by the appellant earlier as EHTP are also import as envisaged under the said notification. The Tribunal has also held in the case of Vikram Ispat Vs. CCE, Mumbai Il, 2000(120) ELT800(Tri LB), which is followed in several other Tribunal decisions, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports 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 procedure cannot be overlooked. The submission of the that the phrase 'when imported' in the notification 12/2003-Cus refers to the 'act of importation and not to the 'time of importation' does not have any basis as the said phrase clearly denote the import of goods under the said notification only and not any other imports on payment or without payment of duties. Hence, the time of importation is essence of the above phrase and act of importation is not sufficient. Since the goods cleared by the EHTP were not imported by the DTA unit under notification 12/2012-Cus by following the procedure prescribed in the IGCR, exemption f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Customs Act. This plea was raised before the adjudicating authority also and in para 54.16 of 010 he has clearly held that their claim to exemption notifications 12/2012 Cus and 21/2012-Cus is not maintainable and the onus for being eligible to the exemption notification is not discharged by the appellant as held in the decisions in the cases of Mysore Metal Industries Vs. CC, Bombay, 1988 (36) ELT 369 (SC), Moti Ram Tolaram Vs. UOI, 1999(112) ELT 79 (SC), Presto Industries Vs. CC, 2001 (128) ELT 321 (SC), CCE Vs. Parenteral Drugs, 2009 (236) ELT 625 (SC), 2009 (236) ELT 625 (SC), Hotel Leela Ventures, 2009 (234) ELT 389 (SC) and several other decisions ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 criteria at the time of clearance or debonding in terms of Para 6.18 (d) of Foreign Trade Policy. Provided further that (a) such clearance or debonding of capital goods may be allowed on payment of duty ...................... ................. (b) such clearance or debonding of goods (including empty cones, bobbins, containers, suitable for repeated use) other than those specified in clause (a) may be allowed on payment of duty on the value at the time of import and at rates in force on the date of payment of such duty. Provided further that in a case of exit by a unit where positive NFE criteria is fulfilled in terms of Para 6.18 (g) of Foreign Trade Policy, such clearance or debond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- Customs dated 17/03/2012 reads as under:- 'In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notifications of the Government of India, in the Ministry of Finance (Department of Revenue), No. 20/2006-Customs, dated the 1st March, 2006, published in the Gazette of India, Extraordinary, part I, Section 3, Sub-section (i), vide number G.S.R. 92 (E), dated the 1st March, 2006, and No. 29/2010-Customs, dated the 27th February, 2010, published in the Gazette of Indila, Extraordinary, Part I, Section 3, Sub- section (), vide number G.S.R. 92 (E), dated the 27th February,2010, except as respects things done or omitted to be done before su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport 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 utilize goods and services, imported or procured from DTA, it may be (i) transferred to another EOU / EHTP./ STP-/ BTP-/-SEZ- unit; or (ii) disposed off in DTA with approval of Customs authorities on payment of applicable duties and submission of import authorization; or (i) exported. Such transfer from EOU / EHTP / STP / BTP unit to another such unit would be treated as import for receiving unit. Para 6.18 of FTP 2009-14 Exit from EOU Scheme (a) With approval of DC, an EHTP may opt out of scheme. Such exit shall be subject to subject to payment of Excise Customs duties and industrial policy in force. ............................ ............................ 54.9 I find that the party has submitted that - Para 4(b) of the Notification No. 52/2003-Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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/cleared in DTA on full payment of duty or may be allowed to be transferred to other EOUs under and in accordance with Para 6.16 of Exim Policy. Such supply from one EOU to another such unit (EOU) shall be treated as import for recipient unit and necessary endorsement to this effect may be made on all the documents pertaining to such inter- unit transfers. It is noticeable that such transfer from one EOU to another such unit (EOU) has been treated as import for recipient unit and the same treatment cannot be given to the goods cleared to a DTA unit. Further, CBEC in the Circular No. 8/2004-Cus dated 28.1.2004 issued regarding De-bonding of EOU/EHTP/STP units, in Para 6, has emphasized that duty on the non-duty paid raw materials, non- duty paid Capital goods and Finished manufactured G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 specified. Further, vide Rule 5(1) of the IGCR, 1996, it has been provided that on the basis of the application countersigned by the Assistant Commissioner of Central Excise, the Assistant Commissioner of Customs at the port of importation shall allow the benefit of the exemption notification to the importer. As such following the Rule 5(1) of the IGCR, 1996, the benefit under the exemption notification shall be allowed by the Assistant Commissioner of Customs at the port of importation. Accordingly, the IGCR, 1996 have been provided, specifically, for import of goods from a place outside India. The said DTA unit has obviously not complied with the conditions of the IGCR, 1996 in so far as the clearance/de-bonding of unutilized raw materials by the said Party (an EHTP unit) to the said DTA unit is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prescribes specifically tile consequence of non-compliance (ii) here the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) here the non-compliance or violation is proved to be deliberate or mischievous I find that vide above judgment it has been held that non-compliance with any requirement should entail an automatic dismissal if the relevant statute or rule so mandates Further, the Hon'ble Supreme Court in the case of Eagle Flask Industries Ltd. Vs CCE, Pune [2004 (171) E.L.T. 296 (S.C.)] held that Exemption notification - Conditions thereto to be strictly complied with for availing its benefit - Condition of filing declaration/undertaking under exemption notification not merely procedural, hence exemption to be denied for non-observance of said conditions - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submitted that merely because it did not claim Notification No. 12/2012-Cus dated 17.3.2012 at the time of importation does not mean that they are not entitled to do so. I find that in respect of Bills of Entry, against which the said import has been made, assessment orders have become final. I find that while dismissing the petition filed by the petitioner, the Hon'ble High Court of Calcutta, in the case of Alom Extrusions Ltd. v. Dy. Commr., Central Excise [2010 (256) E.L.T. 379 (Cal.)], held that: Order of Joint Commissioner confirming duty demand, penalty and interest, not challenged, refund claim for 75% penalty not maintainable -No infirmity and/or illegality warranting interference under Article 226 of Constitution of India - Refund claim for penalty rightly declined. Further, the High Court of Madras, in the case of CC (App.) v. Ace Designers [2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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. Thermax Private Ltd. Versus Collector of Customs 1992 (61) E.L.T. 352 (S.C.) 11. The assessee here has imported the goods and is selling them for use in a factory, ..... .... ? use which qualifies for the concession under the Section 8 notificatio.............t.ould not be correct to deny it to a supplier of such goods on the ground that he is an importer and not manufacturer. That aspect is provided for by Section 3(1) of C.T. Act which specifically mandates that the CVD will be equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have been called upon to pay in that event. Thus, if the person using the goods is entitled to the remission, the importer will be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier 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, Chandigarh [2001 (127) E.L.T. 833 (Tri.)], supra, Parle Soft Drinks (P) Ltd. v. CCE, Chennai [2004 (177) E.L.T. 584 (Tri.)], supra, Sarla Polyster Ltd. v. CCE, Vapi [2008 (226) E.L.T. 238 (Tri.)], supra, Molex (India) Pvt. Ltd. v. CCE, Banglore-I[2016 (341) E.L.T. 463 (Tri.)], supra, and Commissioner v. H.K. Moulders [2011 (268) E.L.T. 43 (Guj.)], supra, I hold that party's claim that their DTA unit is eligible for exemption under Notification No. 12/2012 in respect of the clearances made from their EHTP unit cannot be accepted,. 4.3 The only issue for consideration in the present case is admissibility of Notification No 12/2012 by an EOU/ EHTP in respect of the imported goods at the time of debonding along with the notification No 52/2003. The contention of revenue is that the benefit of Notification No 12/2012 would not be admissible in terms of the condition prescribed by the Notification No 52/2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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/manufacture of goods which are cleared by them to DTA. 6. In view of the above, it is hereby clarified that EOUs will also be eligible to import or procure raw materials/inputs at other concessional/Nil rate of BCD, excise duty/CVD or SAD, as the case may be, provided they fulfill all conditions for being eligible to such concessional or Nil duty. For these purposes, if an EOU is already registered with the jurisdictional Central Excise Authority, it will not be required to take any fresh registration under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2016 or the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable and Other Goods) Rules, 2016, as the case may be. Further, there will be no need for an EOU to separately comply with the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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% EOU consists of all those factors like value addition, fulfilment of export obligation, sale of a general currency licence holder, item being not mentioned in the negative list and then there being a limit of 25%, etc. When permission to debond is given, none of these criteria or aspects are applied by Board of Approvals (BOA) to the closing stock of finished goods. Board of Approvals is a statutory authority, which permits debonding. It is created under the Industrial (Development and Regulation) Act. On the other hand permission to sell the goods in India under and in accordance with the import policy has to be given by the Development Commissioner in the Ministry of Commerce. Board of Approvals and the Development Commissioner are two different authorities constituted for two different purposes. Permission to debond is a statutory function exercised by one statutory authority. On the other hand permission to sell in India is to be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing 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 on the dates of clearance. This decision of Hon ble Supreme Court was followed subsequently by the Hon ble Supreme Court in following cases: NCC Blue Water Products Ltd. [ 2010 (258) E.L.T. 161 (S.C.)] Sarla Performance Fibers Ltd. [2016 (336) E.L.T. 577 (S.C.)] The present case being of debonding of the goods needs to be determined in terms of para 6.18 of the Foreign Trade Policy by treating the goods to be debonded from the private bonded warehouse as if cleared on importation. Thus the argument advanced in the impugned order and by the special counsel during the course of argument vis a vis para 6.15 of Foreign Trade Policy needs to be rejected. Also the argument advanced by relying on the decision of larger bench in the case of Vikram Ispat, needs to be rejected. 4.8 In case of Sahajanand Technologies Pvt Ltd. [2015 (325) ELT 625 (SC)] following was observed: 5 . The Tribunal, in the impugned judgments, construed the said section as referring only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications 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 concessional rate of duty shall be leviable in respect of clearances effected by 100% EOUs to EPCG units and even the condition of import through specific ports has been clarified to be inapplicable as clearance by 100% EOUs have been considered as clearance from any port in India including the specified port. We, therefore, hold that the concessional rate of duty has been rightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. We therefore, set aside all the three orders-in-original and allow the appeals of all the appellant. 6 . We find no infirmity in the aforesaid findings of the Tribunal and of the judgments which follow it. The appeals are accordingly dismissed. 4.9 Thus we have no hesitation in holding that at the time of debonding, the value of raw material cleared has to be value at the time of importation and the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 by the Tribunal in its judgments in the case of Indo Deutsche Trade Links v. CC (Imports), Chennai reported in 2014 (303) E.L.T. 442 (Tri.-Chennai) (para 33) of the judgment. 7.2 In view of this, the part of the impugned order confirming the duty demand on the basis of denial of exemption under Notification No. 21/2002-Cus. in respect of Basic Customs Duty is not sustainable and the same has to be set aside. 8 . As regards the exemption from the portion of the Central Excise Duty equivalent to the Special Additional Customs Duty (SAD) payable under Section 3(5) of the Customs Tariff Act, the Department s contention is that the SAD would be payable as the clearances are not in terms of para 6.8 (a) of the Foreign Trade Policy and as such the exemption in terms of Sl. No. 1 of the table annexed to exemption Notification No. 23/2003-C.E. would not be applicable. 8.1 Since on the goods sold into DTA, VAT levied by the State Government has been paid, and in this regard, there is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 entry. Therefore, the enhancement of the value is set aside. As regard the entitlement of the exemption notification Nos. 25/1999-Cus., dated 28-2-1999 and 25/2002-Cus., dated 1-3-2002, we find that the lower authorities have denied this exemption only on the ground that the appellant have not followed the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. In this regard we find that in the peculiar facts of the present case, initially when the goods were imported, the same were received in the factory of the appellant who was 100% EOU and admittedly used within the 100% EOU. The exemption is claimed only at the time of debonding of 100% EOU. The procedure provided under Customs Rules, 1996 is mainly for the purpose of movement of goods from port of Custom up to the factory and use thereof. In the present case, since the goods were imported by 100% EOU which were cleared under notification 52/2003-Cus., dated 31-3-2003. Even as per this notification, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tribunal having allowed the benefit of the notification, we are not inclined to entertain the Civil Appeal, in the facts and circumstances of the present case. The Civil Appeal is accordingly, dismissed. Pending application(s), if any, shall stand disposed of. 4.10 Impugned order sought to deny the benefit of said exemption notification to the appellant for the reason that appellant had not claimed the same at the time of importation of these raw materials and hence could not have claimed the same subsequently at the time of clearance from EOU on de-bonding. Interestingly impugned order relies on the decision in case of Priya Blue and other similar cases to deny the claim made by the appellant. While doing so in the same breath they have justified that demand for short levy could have been made in respect of the duty paid as per the approval/ assessment made by the jurisdictional authorities at the time of de-bonding. In case of Orbit Fabrics [2011 (264) ELT 53 (Guj)] Hon ble Gujarat High Court held as follows: 6 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 otherwise verify from the description of the goods as to under which item number the same would fall and assess the duty liability accordingly. The concerned officer having failed to do so, the onus cannot be thrown on the assessee. 4.11 In case of Hotline CPT, Delhi bench observed as follows: 5.1 Learned Advocate for the respondents submits that due to unforeseen circumstances, they had to exit from the EHTP scheme; they were allowed to pay duty under 52/2003 at the time of de-bonding. When the goods are removed from the bond the duty is payable at the rate of duty prevalent at the time of clearance; that the benefit of the notifications which were available should be extended. The unit has converted from being an EHTP unit to DTA unit and the same does not involve any change of premises. The jurisdiction under the Customs Act and subsequently the jurisdiction under the Central Excise Act are with the same Superintendent, Range I, Malanpur. The formalities of taking registration certificate under the Customs (Import of Goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TP 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 concessional rate of duty. It is also a case of clearance from warehouse consequent to de-bonding. If the Department was satisfied they have received the goods and accounted for under the zero-duty scheme, they can not entertain doubt about receipt of the goods for the intended use. It was also submitted that there was no change of premises and before and after conversion of the status the unit was with the jurisdiction of the same officers. To hold that in such a situation they shall not be eligible for benefit of any notification and that they are available only at the time of import will be contrary to the understanding and practice in respect of clearance from warehouses. The procedural violations, if any, are only of technical in nature and there can be, in the given facts and circumstances of the case, no allegation of any possible diversion. In fact, there is no such allegation or finding. 4.12 Thus we do not find any merits in the impugned order. 5.1 Appeal is allowed. (Order pronounced in open court on- 16 January, 2025) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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