TMI Blog2021 (1) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... material without complying with the condition of 'actual user' imposed in the exemption order by the Department - clause (vii) of Notification No.30/1997-Cus dated 01.04.1997 - HELD THAT:- The tribunal on the basis of advance licences issued to the respondent and the standard input output norms has recorded a finding that the respondent was allowed to import 2% in excess to provide for the wastage. It is also pertinent to mention here that since, the respondent was allowed to import 2% in excess of their actual requirement, it is the case of the respondent that some of the components remained unutilized due to closure of messaging products division as the components were rendered obsolete. Admittedly, the respondent has fulfilled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeal was admitted by a bench of this court vide order dated 20.06.2007 on the following substantial questions of law: 1. Whether writing off the imported duty-free materials from the books of accounts of the importer is permissible in law and whether the same amounts to disposed of within the meaning of Customs Notification No.30/97-Cus dated 01.04.1997 under which the goods/materials are imported? 2. Whether it is permissible for an importer to 'write off' the duty free imported material from the books of accounts without paying duty and whether the same amounts to violation of norms of 'Actual User Condition', 'export obligation' and the prohibition 'not to dispose of or utilize in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... components were rendered obsolete and therefore, they were written off in books during the financial year ending 31.03.2001. 3. On receipt of specific intelligence input and on an enquiry being made, a summon dated 04.05.2001was issued to the respondent to submit list of unutilized items which were imported under Customs Notification No.30/1997-Cus dated 01.04.1997. The respondent on 08.05.2001 submitted a list of unutilized items, which were imported under the Duty Exemption Entitlement Certificate scheme. The respondent on 23.05.2001, submitted another list of all unutilized items. The Directorate of Revenue Intelligence vide communication dated 30.05.2001 sought for information pertaining to complete stock list of unutilized componen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed this appeal. 4. Learned counsel for the revenue while inviting the attention of this court to clause (vii) of Notification No.30/1997-Cus dated 01.04.1997 submitted that as per the aforesaid clause, exempt materials shall not be disposed of or utilized in any manner except for utilization in discharge of export obligation or for replenishment of such materials and the materials so replenished shall not be sold or transferred to any other person. However, the respondent has written off duty free imported material in the books of accounts which is also a manner of disposal and therefore, the respondent had violated clause (vii) of the Notification. However, the aforesaid aspect of the matter has not been appreciated by the tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in 'CC VS. MOTOROLA INDIA LTD', 2019 (368) ELT 3 (SC), 'GAGANDEEP SINGH ANAND VS. CC (IMPORT)', 2019 (367) ELT 212 (BOM),'SANKAR SHASTYABDAPOORTHI MEMORIAL HOSPITAL VS. UOI', 2017 (345) ELT 334 (KER), 'FORTIS HOSPITAL LTD. VS. CC, IMPORT', 2015 (318) ELT 551 (SC) 'CC CE VS. LEKHRAJ JESSUMAL SONS', 1996 (82) ELT 162 (SC). 6. We have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, we deem it appropriate to refer to clause (vii) of Notification No.30/1997-Cus dated 01.04.1997, which reads as under: (vii) exempt materials shall not be disposed of or utilized in any manner except for utilization in discharge of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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