2023 (7) TMI 316 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, DELHI

Exemption from payment of customs duty, IGST and compensation cess - Re-import of goods/equipment from a SEZ/FTWZ to DTA - applicability of serial number 5 of Notification No. 45/2017-Cus. dated 30.06.2017 - whether the goods are re-imported, whether the re-imported goods have been exported by a hundred percent export-oriented undertaking or a unit in a Free Trade Zone (Special Economic Zone)?

HELD THAT:- It is found from the submissions of the applicant that condition of re-export of the equipment after their import availing exemption under Notification 50/2017-Cus. is a condition built in the contract of the importer with their Contractor and the applicants have themselves admitted that it is not a condition prescribed under Notification No. 50/2017-Cus. However, the applicant has attempted to make a case starting with export of such equipment(s) on which exemption vide Notification No. 50/2017-Cus. has been availed. The Notification No. 50/2017-Cus. provides for compliance with conditions prescribed under the notification. Non-fulfilment of such condition(s) will make the importer liable to pay differential duty along with interest, fine, penalty etc., as the case may be. It appears that the applicant has introduced concept of 'export' in relation to such imported equipment(s) in order to link it with Notification No. 45/2017-Cus which is not warranted but un-necessary as the same appears to have been done to confuse the issue for claiming exemption from payment of duties/taxes.

In the instant case, goods have not been imported for warehousing in FTWZ but performance of a contract for specified purpose for which exemption from duties at the time of import has been claimed vide serial number 404 of Notification No. 50/2017-Cus., thereby goods transferred from FTWZ to DTA cannot be treated as re-imported goods, making the Notification No. 45/2017-Cus., inapplicable.

It can be convincingly stated that under the SEZ Act, 2005 read with SEZ Rules, 2006, words 'import' and 'procure' have been assigned different meanings. It is also important to note that activity of bringing goods from a Unit or Developer in SEZ to DTA is not covered under the definition of the term, 'import' under the SEZ Act, 2005, therefore such transfer from SEZ to DTA cannot be termed as 're-import'. Moreover, as per dictionary meaning of the word, 'procure ' is 'to obtain something' but when the goods are being warehoused in FTWZ, these are not procured by a Unit or Developer, therefore when transfer of goods from DTA to FTWZ or FTWZ to DTA is neither covered under the term 'procure' nor 'import', therefore such transfer/supply of goods cannot be treated as 'reimport ' for application of procedures and conditions as applicable in the case of normal re-import of goods from outside India.

Notification No. 45/2017-Cus. is not applicable in the instant case. The facts of the application amply indicate that goods have been exported by Unit in FTWZ, which again makes the said Notification, inapplicable in view of the second proviso of the Notification. Moreover, there is no condition for 're-export' of goods under the Notification 50/2017-Cus., however a deeming fiction has been created by bringing in 're-export ' which appears to have been done to deviate from the issue and the word 'export/re-export' is being un-necessarily equated with warehousing of goods.