TMI Blog1994 (7) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... fabrics returned under bond to the original supplier. 3.1. The classification lists are officially approved. The appellant discharged the duty liability to the extent payable as the Department, in response to their written request for clarification had accepted their view point. 4. It was their contention that goods cleared under bond cannot be considered as goods cleared for home consumption. In this connection, we would like to draw pointed attention to Rule 96D which relates to procedure for removal of cotton fabrics or jute manufactured from one factory to another without payment of duty for processing. 4.1. Sub-rule 3 of this Rule allows removal of the goods from one factory to another under bond whereas sub-rule 4 deals with clearance for home consumption and sub-rule 5 provides for payment of duty either by the processor or the originating factory, inter alia, that if the processed goods are removed to the original factory, such removal shall be subjected to sub-rule 3. 5. It was his submission that this Rule clearly distinguishes between clearances under home consumption and clearances under bond. It was also his submission that since under Rule 9 read with Rule 49, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same factory . . . . . In 96D the distinction between clearance under bond for a specified purpose and the clearance for home consumption becomes evident from a reading of sub-rules 3, 4, 5 taken together and it is clear that the words cleared for home consumption incorporated in sub-rule 4 have been used in contra distinction to removal under bond to another factory under Rule 3 and removal for return of the processed fabrics to the originating factory. 10. In fact it is well known that clearance for home consumption means and implies removal of the goods for marketing or consumption or utilisation whether by the importer and/or manufacturer himself or by others whereas clearance under bond always means and implies a mere transfer of goods from one place or premises (whether factory or warehouse or docks or stores etc.) to another without payment of duty for specified purposes only. 11. Further clearance of goods for home consumption also means removal of the goods out of customs/excise charge or control and, therefore, the owner or possessor is free to deal with them as he pleases, whereas the goods removed under bond remain under overall customs/excise control and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the explanations given in the Notification No. 83/83 it is clearly observed that for computation of clearance value for the purpose of Notification No. 83/83, the value of the excisable goods which are completed and which are used captively should be excluded. The Notification does not say anything about the exclusion of the value of excisable goods cleared under Bond without payment of duty. The above Notification talks of the aggregate value of clearance of excisable goods. Removal of excisable goods under Bond without payment of duty is also clearance. The Rule 96D makes provision for removal of cotton fabrics or jute manufacturers from one factory to other without payment of duty. Such removal without payment of duty is also clearance for the purpose of Central Excise. Government of India in the case of M/s. Mining and Allied Machinery Corpn. [1982 (10) ELT 517 (G.O.I.)] have observed that the word `clearance in the Central Excise context would only mean `removal of the goods whether on payment of duty or without payment of duty from a factory or warehouse. In other words, there is no difference between `clearance and removal for the purpose of excisable goods. 16. Argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaken by the appellants amounted to manufacture. Consequently, the value of clearances of these goods has to be taken into account for the purpose of exemption Notification No. 83/83, dated 1-3-1983 as the Notification in question talks of the aggregate value of clearances of excisable goods and the removal of excisable goods under Bond without payment of duty to my mind is also clearance. 19. The case law cited at the Bar by the appellants is not apt to the present case as these cases deal with the different situation, that is to say, in those cases the question was whether the value of the export of `Fare Meters to Ceylon was to be included or not while computing the aggregate value of clearances. Sd/- (G.P. Agarwal) Member (J) 20.In the result, I uphold the impugned Orders and reject the appeal. In view of the difference of opinion between Hon ble Member (Judicial) and the Vice President the matter is submitted to the Hon ble President for reference to a third Member on the following point :- In view of the exemption Notifications No. 80/80 and 83/83 and the relevant Rules, whether the appeal was required to be accepted or rejected in the circumstances of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (5) of Rule 96D provides as under :- If cotton fabrics or jute manufacturers or man-made fabrics after being processed, are removed without payment of duty to one or more factories for the purposes of further processing, or to the originating factory, such removal, shall be subject to and, in accordance with the provisions of sub-rule (3). Sub-rule (3) of Rule 96D reads as under :- When cotton fabrics or jute manufactures or man-made fabrics are removed from the factory where they are manufactured, to another factory including a processing factory, the consignor shall follow the procedure as required by rules, 156A and 156B as modified by rule 173N. 26. Rule 156A prescribes the procedure in respect of goods removed from one warehouse to another. Rule 156B relates to the failure to present triplicate application to the Officer-in-charge of the warehouse of removal. Rule 173N modifies the warehousing provisions as contained in Chapter VII of the rules in relation to such excisable goods as are covered by the self-removal procedure scheme. Rules 156A and 156B as modified by the Rule 173N are extracted below :- ****** 27. These provisions make it clear that when co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
