9911796707
TMI Blog2000 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred the licence to Plast Chem Industries Bombay, other appellant before us. This latter appellant imported three consignments of high density polyethylene. In the bill of entry filed for the clearance of the goods, the appellant claimed the benefit of the notification 203/92 and the benefit was also granted for fulfillment of any of the condition asked for and submitted before clearance. The goods were assessed finally before clearance. 2.On 3-9-1997 common notice was issued to both the appellants before us by the Commissioner of Customs, Nhava Sheva. The notice alleged that Modvat credit had been taken of the duty paid on the inputs used in the manufacture of exported product, thereby contravening the condition 5 of the notification 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. He therefore demanded duty from Plastchem and imposed penalty on MSA Exports under Section 114A of the Act. 4.We shall first take the appeal of the latter. Penalty under Section 114A is imposable on the person from whom the duty or the interest of such duty is recoverable and no duty has been demanded from MSA. Provisions of Section 114A will not apply to it. Its appeal hence has to be allowed. 5.Let us now consider the case of the importer. The contention raised on its behalf is that it had acquired the licence by transfer from the original licensee after the bond or legal undertaking which the licensee gave was cancelled (Paragraph 126 of the Procedural Policy 1992-97) mandates the verification of the Modvat credit being availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This provision does not in any manner restrict, or confine to a particular period of time, the obligation placed on the importer to comply with the conditions of the notification including the condition that Modvat credit under Rule 56A or 57A of the Central Excise Rules had not been availed of or the other provisions of Rule 191 A or B not availed of, must be fulfilled. It is in fact for the importer, at whatever stage import is made, whether prior to or subsequent to the fulfillment of export obligation to demonstrate that the conditions in the notification have been availed of. It is the importer who claims the benefit of exemption, and it is he who has to satisfy the conditions subject to which the exemption is granted. 7.The view expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from any place outside India would apply in these circumstances in casting, who the importer is. The importer, thus is the person who caused the import to be made. The licensee unless he himself causes import to be made cannot be the importer. The term "importer" occurring in the notification can only be referred to the person who brings the goods into India and claims clearance by filing a bill of entry for that purpose. It is therefore clear to say the obligation to show compliance with the conditions of the notification falls on the importer, and no other person, irrespective, of whether the import is taken place prior to or subsequent to fulfillment of export obligation. 9.Nor is it possible for us to agree with the view that the lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the importer when claiming the benefit of the exemption that Modvat credit had not been availed of. The benefit of exemption was therefore allowed. However as we have noted the importer being a transferee of the licence, was not required to bind himself undertaking to pay duty if the condition specified in the notification had not been complied with. This would obviously be the case since the primary condition that the goods are used in the designated export product had already been complied with before the licence had been issued. It was still at this stage open to the department to ask the importer of evidence that Modvat credit had not been availed of. It is the importer who could be required to furnish such evidence failing which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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