2011 (10) TMI 36 - CESTAT, MUMBAI

Import of excess quantity - Import of Palm Stearine - Import against Quantity Based Advance Licence Scheme - Export obligation - Confiscation - fraud - Held that:- the allegation of misrepresentation before the licensing authority and consequent denial of Customs duty exemption under Notification No. 204/92-Cus and its successor notifications are not legally sustainable as in the instant case the licensing authority has not questioned the appellant with regard to the usage of various items in the manufacture of export products and have issued advance licences in accordance with the standard input/output norms prescribed in the policy. Once advance licences have been issued for a given quantity and for a given value, the Customs cannot deny benefit of Customs duty exemption in respect of such quantity and value of import on extraneous grounds for which they have no jurisdiction to investigate.

Fulfillment of export obligation - held that:- the licensing authority has accepted the fulfillment of export obligation and have issued export obligation discharge certificates and have discharged the appellants from any further obligation. That being the position, the Customs authorities cannot deny the benefit of Customs duty exemption under the notifications governing the advance licensing scheme.

Diversion of imported material instead of using in manufacturing - Held that:- it is clear that once the export obligation has been discharged, the importer, operating under the quantity based advance licensing scheme, can utilise the imported material under the said scheme for manufacture of other products in his factory and therefore, the allegation in the show cause notice in the present case that the appellant had utilised the imported product in the manufacture of other products for sale in the domestic market and therefore, they are not eligible for the benefit of Customs duty exemption does not have any legal basis.

Appellant's eligibility to import crude Palm Stearine under the advance licences and consequent eligibility for Customs duty exemption thereon - Held that:- crude palm stearine did not satisfy the definition/criterion of 'material' which were permitted to be imported duty free both under the EXIM policy and the relevant customs notifications. The material imported should be capable of being used in the manufacture of the export product. Crude Palm Stearine did not also satisfy the criterion stipulated in the customs notification that 'the materials are required for the manufacture of export product'. - Not eligible for customs duty exemption.

Denial of DEPB credit in respect of inputs imported duty free under the DEEC scheme - Held that:- The Customs, on their own cannot decide upon the issue of eligibility to DEPB benefits of exports made by an exporter. The ratio of the above judgment (2004 -TMI - 47056 - HIGH COURT BOMBAY) and (2009 -TMI - 76862 - ALLAHABAD HIGH COURT ) applies to the facts of the present case and accordingly the denial of DEPB credit amounting to Rs. 2,35,20,388/- on the ground of fraudulent availment can not be sustained for want of jurisdiction by the Customs authorities. The jurisdiction in this regard lies with the licensing authorities and the customs authorities, could, at best refer the matter to the licensing authority for necessary action.