9911796707
TMI Blog2007 (4) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... in allowing the benefits of CBEC Circular No. 60/99, dated 10-9-1999 without fulfilling the conditions as said down in the circular?" 2.The facts are not in dispute. The assessee respondent is 100% Export Oriented Undertaking and had entered into a contract with M/s. Gauthier S.A. of France for the supply of Rice Processing machinery. However, French firm supplied only a Calorimetric sorting machine, one Electrical Control Panel and a set of spare parts which were cleared under Bill of Entry dated 8-8-1997. The foreign supplier could not supply the rest of the machinery as it went into liquidation. As such the Calorimetric sorting machine could not be used without the rest of the components and other parts. The machinery remained unused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the assessee-respondent was rejected by the Commissioner (Appeals) on the ground that their case is neither a case of clearance of goods for home consumption nor a case of deposit of goods in the warehouse. 3.On appeal to the Tribunal, the assessee-respondent was given the benefit of circular dated 10-9-1999 by observing as under : "We have considered the submissions of both the sides. The Central Board of Excise and Customs under Circular No. 60/99-Cus., dated 10-9-1999 has considered the difficulties of EOU., etc. faced by them in regard to replacement of goods imported and found damaged or defective or otherwise unfit for use. The Board after examining the matter issued the instructions that has to be followed by fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by the appellants which has not been rebutted by the Revenue that calorimetric sorting machine imported by them was not for use for want of the entire machinery for which they had placed order with the foreign supplier. As the machinery in question was unfit for use and the foreign supplier is not insisting on re-export of the same the only option available to the Appellants was to abandon the goods for which permission is available to them under the Board's Circular dated 10-9-1999. Accordingly, we set aside the impugned order and allow the appeal filed by the Appellants." 4.Mr. Kamal Sehgal, learned Counsel for the revenue has made two fold submissions before us. According to the learned Counsel the benefit of the circular dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported goods was made. He placed reliance on condition no.12 A of the notification dated 3-6-1997 and further reliance was placed on circular dated 10-9-1999. 6.After hearing the learned Counsel for the parties we are of the considered view that this appeal lacks merit and is thus liable to be dismissed. There are categorical findings recorded by the Tribunal to the effect that the entire machinery for which the assessee had placed the order with the foreign supplier, had not been supplied resulting into its non-installation. The machinery received in part became unfit for use and the foreign supplier has not even insisted on re-export of the same. Therefore, the only option left with the assessee was to abandon the goods by seeking perm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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