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2020 (2) TMI 481 - AT - CustomsImport of Beta Napthol under DEEC and Target Plus Scheme - Benefit of N/N. 93/2004-Customs dated 10.09.2004 and N/N. 32/2005-Customs dated 08.04.2005 - Sale of imported goods or not - allegation of the department is that since the appellant have transferred the goods imported under DEEC and Target Plus Scheme to their job-worker, they have contravened the condition of the Notifications - HELD THAT:- The job worker has considered the total value including the value of Beta Napthol but since the Beta Napthol was given by the appellant to the job worker free of cost the value of the said Beta Napthol has been reduced from the total value and their final sale value does not include the value of Beta Napthol, therefore even as per the invoice of the job worker there is no sale of Beta Napthol to the appellant. It is obvious that when the appellant have not sold the Beta Napthol to the job worker there is no transfer of right in the property i.e. Beta Napthol from the appellant to the job worker. Consequently question of sale by the job worker to the appellant does not arise. Since, the transaction of the Beta Napthol by the appellant to the job worker does not fall under the term either “sale” or “transferred in other manner”. Therefore, there is no contravention of the condition attached to the N/N. 93/2004-Customs dated 10.09.2004 and N/N. 32/2005-Customs dated 08.04.2005. In an identical case of TETRA PAK (I) LTD. VERSUS COMMISSIONER OF CUSTOMS, NHAVA SHEVA [2005 (4) TMI 182 - CESTAT, MUMBAI] dealing with the duty free imported goods under DEEC scheme the Tribunal-Mumbai Clearly held that advance license holder cannot be prohibited from out sourcing goods imported duty free for manufacturing to other persons even in the said case the goods imported duty free under DEEC scheme was sold to job worker on cost basis and returned as sale by Job Worker after processing/conversion of cost of other material and labour basis. The tribunal held that this was not violative of the prohibition of selling/transferring such goods - The present case is on a better footing as admittedly the appellant has neither sold Beta Napthol to the job worker nor purchased back the same from job worker. The appellant have not contravened the condition of Notification nos. 93/2004-Cus & 32-2005-Cus. Hence, the demand of duty, interest and consequential penalties are not sustainable - appeal allowed - decided in favor of appellant.
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