TMI Blog2012 (10) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer so as to claim the benefit of the exemption notification - waiver of pre-deposit and stay of recovery of penalties are also granted - C/249-252/2009 and 399-402/2009 - 814-821/2011 - Dated:- 5-9-2011 - S/Shri P.G. Chacko, M. Veeraiyan, JJ. REPRESENTED BY : S/Shri Krishnanandh, Sr. Advocate, Satish Sundar and Vikram Nankani, Advocates, for the Appellant. Shri P.R.V. Ramanan, Spl. Counsel, for the Respondent. [Order per : P.G. Chacko, Member (J)] These applications seek waiver of pre-deposit and stay of recovery in respect of the amounts adjudged against the applicants/appellants. The same arises once again before us pursuant to the Hon ble High Court s remand order dated 4-7-2011 in Writ Petition Nos. 15570 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled these parties to duty-free import of inputs, capital goods, etc. subject to the value prescribed therein and within the period prescribed therein, as per paragraph 3.2.5 of the Handbook of Procedures (Vol. 1) 2004-09. An important condition attached to each of these certificates/licences was that the imports must have broad nexus with the two export product groups viz. (i) Chemicals and allied products (ii) Engineering products. On the strength of such certificates/licences, the aforesaid assessees imported copper rods claiming the benefit of Customs Notification No. 32/2005, which granted exemption from payment of duty on the imported items subject to certain conditions. One of the conditions was that the imported items should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w was reiterated by the Board in subsequent Circular dated 19-12-2007 also (which has not been referred to in the impugned orders). 4. The learned Counsel for the appellants submits that the term broad nexus figuring in paragraph 3.2.5 of the Handbook of Procedures has, of late, been examined by the Hon ble Bombay High Court in the context of considering certain imports made under the Target Plus Scheme. It is submitted that the Hon ble High Court overuled the view taken by the CBEC in Circular dated 8-5-2007 and held to the effect that the benefit of exemption Notification No. 32/2005-Cus., would be admissible to imports where the imported item and the export product fell in the same product group in the Standard Input-Output Norms (SI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he import of the goods, the learned Special Consultant for the Revenue submits that there is no material on record to show that the imported items were actually used by the assessees as rightly observed by this Tribunal in the previous stay order. In this view of the matter, the benefit of Notification No. 32/2005-Cus., cannot be allowed to the assessees inasmuch as the actual user condition has not been complied with. 6. In his rejoinder, the learned Counsel for the appellants submits that the observations of the Tribunal contained in the previous stay order are no more relevant as that order was set aside by the Hon ble High Court. It is further pointed out, even in the impugned order, there is no finding that the actual user condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4499 of 2007 in the case of M/s. Essel Mining Industries Ltd. v. Union of India Ors. - 2011 (270) E.L.T. 308 (Bom.), held to the effect that paragraph 3.2.5 of the Handbook of Procedures required a broad nexus with the export product in the sense that any one or more items of the export product group specified in the certificate/licence could be exported by the importer so as to claim the benefit of the exemption notification. The view taken by the learned Commissioner of Customs is contrary to this ruling of the Hon ble High Court. Moreover, the Board s Circular relied on by the learned Commissioner has been struck down by the Hon ble High Court. Thus, spectacularly, the assessees have made out a prima facie case against the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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