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2016 (5) TMI 8 - BOMBAY HIGH COURT

2016 (5) TMI 8 - BOMBAY HIGH COURT - 2016 (42) S.T.R. 793 (Bom.) - 100% EOU - Violation of Notification No. 53/97 and 1/95 - Manufacture of plastic bags but have to manufacture the garbage bags of plastic, plastic Rolls and recycled granules of plastic - Held that:- if the Letter of Permission dated 19 November 1997, under which permission to set up 100% export oriented unit for manufacture and export of garbage bags of plastic, enables the Appellant/Assessee to import plastic waste/scrap withou .....

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we expected the Tribunal as last fact finding Authority to discuss as to whether that argument of the Assessee has any merit. It should have been clarified whether the Letter of Permission would govern the acts and transactions or deals in the present case or the substantial Notifications. We do not find in Tribunal's order any reference made to the relevant and germane material including terms and conditions of the Notifications, the Letter of Permission, its amendment and thereafter the effect .....

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Pradeep S Jetly with Mr. Jitendra B Mishra ORDER P. C. By these Appeals the Assessee challenges the order passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai dated 27 March 2014 -. By the order impugned the Tribunal has proceeded to dismiss the Assessee's Appeal. 2. That Appeal was directed against the order passed by the Commissioner of Central Excise (Appeals), Mumbai dated 21 July 2010. 3. In a common order delivered in some stay Applications and two Appeals, the Trib .....

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Appellate Tribunal was justified in holding that the garbage bags of plastic manufactured by the Appellant is not covered by the LOP dated 19 November 1997 issued by the Secretariat of Industrial Approval, Ministry of Industry, Government of India? (b) Whether in the facts and circumstances of the case, the Appellate Tribunal erred in not considering the submission of the Appellant that the amendment dated 25 August 2003 to LOP dated 19 November 1997 is clarificatory and retrospective? (c) Wheth .....

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der in violation of principles of natural justice? 5. Mr.Shah learned Counsel appearing for the Assessee has invited our attention to the finding of the Tribunal. He would submit that the Tribunal has misdirected itself in law inasmuch as even if the Assessee is not disputing that it manufactures plastic bags, which can be used as a packaging material, that is no violation or breach of the relevant Notifications. 6. Our attention is invited to the Reply to the Show Cause Notice and the letter da .....

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ould submit that a query was raised that which plastic bag is to be termed/treated as garbage bag and the plastic bag manufactured by the Assessee is different from the garbage bag has not been clarified. There was a specific explanation given even by the Asst.Commissioner of Central Excise with regard to the Audit objection. 8. Our attention is also invited by Mr.Shah to page 77 of the Paper Book, which is a true copy of the letter dated 7 April 2006 again addressed by the Asstt.Development Com .....

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by Mr.Shah to the allegations in the Show Cause Notice and where it is stated that the Assessee was permitted to carry out manufacturing activities in Bond for the manufacture of recycled granules, garbage bags of plastics and plastic sheets in rolls. 10. Mr.Shah would, thus, submit that the Tribunal has not discussed in details as to how the demand on the Assessee can be confirmed. The Assessee relied upon the Letter of Permission and it came to be amended and by which the Assessee was allowed .....

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with. 12. Mr.Shah would submit that the order impugned in the Appeals be, therefore, set aside and the matter be restored to the file of the Tribunal. 13. On the other hand, Mr. Jetly, learned Counsel for the Revenue would submit that what the Appellant is now indulging in is a mere play of words. What the Appellant represented to the Revenue was that it indeed desires to make bags and which are utilized for collection of garbage, they may be of plastic. But there is a distinction and as rightl .....

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f Industry, Government of India to set up 100% export oriented unit for manufacture and export, amongst others, garbage bags of plastic. The License was issued in the prescribed form and it is further undisputed that the Appellant imported and indigenously procured raw materials. In respect of imported goods, duty free procurements were undertaken by relying upon the Notification No.53/97 and in respect of indigenous raw material, duty free procurements were undertaken by relying on the Notifica .....

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user industry was subjected to the exemption. The excisable goods specified in Annexure-1 to the Notification and brought in connection with the above are exempted by this Notification. There are conditions set out but we do not see any material referred in the Tribunal's order, which would indicate specific terms and conditions of this Notification being violated. 17. The second Notification is to exempt specified goods imported for production of goods for export or for use in 100% Export .....

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mport plastic waste/scrap without payment of duty and to use the same in manufacture of specified goods as per the Letter of Permission, then, demand of duty on the ground that the Appellant has not manufactured garbage bags of plastic but plastic bags which are used for packaging textile materials must be clarified and with proper reasoning. 19. The Assessee relied upon the modification or amendment to the Letter of Permission on 21 August 2003, whereby it was allowed to manufacture plastic bag .....

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