TMI Blog2013 (10) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, the exemption for spare parts is given at Sr. No. 5 but the allegation against the appellant is that they have cleared the catalyst at Sr. No. 1 as capital goods. This allegation against the appellant is not sustainable as in the EDI system. Sr. Nos. 1 & 2 were generated but did not include Sr. No. 5. As per the FTP para 5.1A the appellant are allowed to import ‘catalyst’. Para 5.1A deals with only spare parts, catalyst and at the time of clearance of goods, the EPCG licence were produced by the appellant before the customs officers for endorsement in their licence. Therefore, after examining the licence, the goods were assessed and allowed to be cleared duty free. In that situation, the allegation of suppression against the appellant again does not survive. Admittedly, in this case goods were imported during the period 2007-2008 and show-cause notice have been issued on 31-3-2010 invoking the extended period of limitation on the ground of suppression with an intend to evade payment of duty. As the allegation of suppression is not sustainable against the appellant, therefore, the demand against the appellant is time-barred - Decided in favour of assessee. - C/755/2012 - Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogical upgradation or expansion. It also includes packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, etc. The ld. counsel submits that as catalysts for initial charge are specifically covered under the Policy and as per the Policy, catalysts are also covered under para 5.1A for existing plant. Therefore, it is the contention that the appellant has imported catalysts for the existing plant, therefore the appellant is entitled for the benefit of the Notification. Although the Notification was amended w.e.f. 21-5-2007 whereby in the table to the Notification, consumables were omitted. However, spare parts for the existing plant and machinery are still entitled for the benefit of the Notification. He also submitted that at the time of clearance of goods, appellant were declaring in the bills of entry catalyst and claiming the benefit of Notification under licence issued by the DGFT and the goods were cleared without any objection. Therefore allegation of suppression with an intent to evade payment of duty is not sustainable. Accordingly the extended period of limitation canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no need to import the provisions of Foreign Trade Policy or the terms of EPCG licence. If there is any conflict between the Foreign Trade Policy and the Notification and phraseology amendment would have been needed, same would have been carried out by now. Inasmuch, as no amendment is made for more than 5 years, it is clear that the DGFT is in full agreement with the phraseology. It is also argued that the exemption Notification should be construed strictly, particularly, the eligibility clause, in accordance with the language therein and it is not open to substitution or addition of words. 7. He relied on the decision in Orient Traders - 2009 (237) E.L.T. 447 (S.C.), Malwa Industries Ltd. - 2009 (235) E.L.T. 214 (S.C.), Mewar Bartan Nirman Udyog - 2008 (231) E.L.T. 27 (S.C.), Rajasthan Spg Wvg Mills Ltd. - 1995 (77) E.L.T. 474 and Novopan India Ltd. - 1994 (73) E.L.T. 769 (S.C.). He also contested that the exemption of customs duty is governed by the Notification. The terms of EPCG licence or provisions of Foreign Trade Policy cannot override the provisions of the statute. As catalyst for initial charge are specifically included in the definition of capital goods, the defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 9.15 of the Policy. He also submitted that the exemption must be construed having regard to the policy and the object and purpose for which Notification seeks to achieve. He further submits that as per EPCG shows that all existing plant and machinery have been covered as spare and give EPCG benefit even consumables. He also relied on the following decision : Suttons Sons (India) P. Ltd. v. UOI - 1995 (75) E.L.T. 229 UOI v. Yokogawa Bluestar Ltd. - 2001 (129) E.L.T. 598 CCE v. Himalayan Co-op Milk Product Union Ltd. - 2000 (122) E.L.T. 327 (S.C.) CC v. Malwa Industries Ltd. - 2009 (235) E.L.T. 214 (S.C.) CC v. Reliance Petroleum Ltd. - 2008 (227) E.L.T. 3 (S.C.) Northern Plastic Ltd. v. CCE - 1998 (101) E.L.T. 549 Shah Alloys Ltd. v. CC - 2009 (235) E.L.T. 551. 11. Heard both sides in detail and considered their submissions and case laws relied by them. 12. The issue before us is that after amendment dated 21-5-2007 in the Notification 97/2004 the appellant are entitled to claim exemption for catalyst imported as spares or not. We find that the contention of the ld. Counsel is that the said catalyst im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atalysts was also removed but only catalyst for initial charge was allowed. 15. From the above observation of FTP from time to time, during the relevant time as per EPCG scheme, catalyst were allowed to be imported as per para 5.1A of the policy. We have also examined one of the licence. The licence was granted as per para 5.1A of the FTP 2004-09 which is reproduced below : Office of Jt. Director Genereal of Foreign Trade New C.G.O. Building New Mariae Lines Mumbai-400020 LICENCE AMENDMENT SHEET Amendment Sheet No : 2 Attached to Licence No : 0330018221 File No : 03/97/021/01142/AM08/Dated : 27-11-2007 Issued By : Office of Jt. Director General Of Foreign Trade, Mumbai Issued To : RELIANCE INDUSTRIES LTD. MAKER CHAMBER IV, 3RD FLOOR, 222 NARIMAN POINT MUMBAI, MAHARASHTRA 40021 Total Duty Saved in Rs. : 461,657,710.00 Import Item(s) Details Sl. No. Import Item Name Qty. UOM Duty Saved (Rs.) Amendment Type SILVER CATALYST FOR EO REACTOR (IN TERMS OF PARA 5.1A OF FTP 2004-09) XX CIF - USD 44,267,625 (Rs. 176,40,64,843); EO - USD 92,479,089 XX XXQty. restriction at sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the Notification of customs authorities as the customs authorities do not have any power to curtail the import unless such curtailment of the warranted by the import policy or by the modification of the concerned Ministry regulating the import of such materials. 18. We find that in the case in hand, as the FTP 2004-2009 and EPCG licence issued thereunder, clearly specifies that catalysts are different from consumables and are covered under para 5.1A of the policy as spares, catalysts, etc. Therefore, following the decision of Suttons Sons (India) P. Ltd. (supra) the Notification in question is to be read harmoniously with the provisions of FTP 2004-2009. The provisions of Foreign Trade Policy shall prevail over the Notification of the Customs authorities as the customs authorities do not have any power to curtail the import unless such curtailment is warranted by the import policy. Therefore, during the impugned period the appellant are entitled for the benefit of the Notification No. 97/2004 as amended. 19. The ld. Special counsel insisted on the letter dated 29-7-2007 through which clarification was sought by the Chief Commissioner of Customs, Ahmedabad. He heavil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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