TMI Blog1989 (7) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... remove the surplus soda ash to domestic tariff area (DTA) on payment of duty. Their request for the said removal was considered and agreed to by the licensing authority in terms of para 8(iii) of Appendix 15 of ITC Policy AM 1984-85 subject to the payment of appropriate duty. Appellants accordingly, filed the following bills of entry for home consumption for the removal of surplus soda ash to DTA :- (1) B/E No. KAFTZ/2001 dated 14-1-1985 (2) B/ENo. KAFTZ/2002 dated 14-1-1985 (3) B/ENo. KAFTZ/2121 dated 30-1-1985 (4) B/E No. KAFTZ/2122 dated 30-1-1985 (5) B/ENo. KAFTZ/2123 dated 31-1-1985 (6) B/ENo. KAFTZ/2007 dated 15-1-1985 1.3 The above mentioned bills of entry were assessed to duty according to the provisions of Section 15(1) (a) of the Customs Act, 1962. Whereas the goods covered by the last two mentioned of bills of entry were cleared by the respondents on payment of duty, in respect of the remaining 4 bills of entry i.e. at S. Nos. (1) to (4) above which remained uncleared on the date of issue of the notification 50/85 dated 28-2-1985. The respondents approached the KAFTZ administration for reassessment claiming benefits of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having inbond manufacturing facilities as provided under Section 65 of the Customs Act. Accordingly, he confirmed that the duty leviable would be governed by Section 15(l)(a) of the Customs Act, 1962. 1.5 On appeal before the Collector of Customs (Appeals), Bombay by the respondents herein, they succeeded. In his order, the learned Collector (Appeals) held that the regulations framed under Manufacture and Other Operations in Warehouse Regulations, 1966, constituted a frame-work of manufacturing operations inside the warehouse licensed and appointed by the Collector under Sections 57 and 58 of the Customs Act, 1962. On this basis he held that the clearance either for export or for home consumption from the said warehouse where manufacturing operations take place have to be regulated under Sections 68 and 69 of the Customs Act, 1962 respectively. Therefore, the rate of duty prevalent at the time when the goods were cleared from the warehouse for home consumption had to be applied to the goods on their clearance in accordance with Section 15(1) (b) of the Customs Act, 1962 read with Section 68 ibid. It is this order (No. 16/86-Ahd., dated 24-1-1986) which has been appealed against b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad erred in applying Clause (c). The goods were imported under a home consumption bill of entry, and the bond was presented in terms of the Notification which contains the following condition. If the said Importer shall pay on demand and without demur in respect of such machinery and accessories as have not been used in the manufacture of the goods in the said Zone for Exports to places outside India, an amount equal to the duty of customs, additional duty under the Indian Tariff Act, 1934 and regulatory duty of customs that would have been leviable on such machinery and assessories at the time of import but for the said Notification of the Central Government! [Emphasis provided]. Then exemption was granted to the appellants on a conditional basis. The conditions) not having been fulfilled, for whatever reason, the Notification under which the goods were imported, which form the subject matter of appeal became non-est. In effect, therefore, it was as if the Notification did not exist for the goods forming the subject matter of appeal, thereby restoring the position to what it was when the goods were originally imported. This is precisely what the Notification itself, as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate submits that this order was passed on the basis of an old notification 55/66-Cus., dated 31-3-1966. Condition for demand of duty for non-utilisation of the imported goods in terms of notification 55/66 is different from that in the present notification 77/80 dated 17-4-1980; consequently Government of India s instructions dated 17th/18th Feb. 1982 is not of any significance at this stage. He further submitted that learned SDR s reliance on Ministry s opinion referred to in Government s instructions F.No. 374/28/81-Cus. II dated 3-3-1982 is in a totally different context and it cannot be applied to the circumstances of this case. On the other hand, the observation in the Law Ministry s opinion in para 6 thereof to the effect :- The taxable event is not the generation of the scrap/waste but the point of time on which such waste/scrap is cleared for domestic use? is in support of the respondents contention. In the end he urges that in view of the aforesaid submissions the appeal deserves to be rejected. 5. We have carefully considered the pleas advanced on both sides. Controversy here in short is whether the raw material or goods imported by a unit in KAFTZ, not utili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1981 was correct in law. Notification 77/80 does not use any such expressions. It merely speaks of an amount of duty equal to the duty leviable . In view of this clear, difference in expressions of the two notifications we think it proper to infer that there has been a change in intention of the authority issuing the notification. The interpretation that was taken for the purpose of Notification 55/66 could not be applied to the notification 77/80. While we agree with the department that the unit in KAFTZ is not a warehouse and therefore, the provisions of Section 15(1) (b) would not be attracted, we do not see any reason as to why the provisions of Section 15(l)(c) are not attracted in this case. Provisions of Section 15(l)(a) got exhausted at the time of original importation of the goods when the respondents filed bills of entry for clearance of goods from the port to their units in KAFTZ. Those provisions cannot be attracted at this stage because the clearance from the units in KAFTZ to DTA cannot be treated as clearance for home consumption at the time of importation. In the circumstances, the residuary Clause 15(l)(c) would be attracted to the facts and circumstances of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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