TMI Blog2022 (5) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.59 MTs of RCN alleged to be diverted to unauthorized units is liable for confiscation? - HELD THAT:- Admittedly, the units to which the RCN are said to be diverted belong to the appellant. Though only the factory premises at Elamkulam, Kalluvathukkal Post, Kollam has been endorsed in Advance Authorization, all other units belong to the appellant. The department does not have a case that the other units to which the RCN was dispatched from the port belongs to any other person - clause (x) of Notification No. 18/2015 allows transfer of the imported materials to a job worker for processing subject to complying with the conditions of relevant Central Excise notifications. Again, in para 4.35 of Handbook of Procedures, it is stated that if the manufacturer / importer is not required to obtain central excise registration, it is not required to insist for endorsement of the name of supporting manufacturers in the Advance Authorization - It is stated that in such transfer of materials to the premises of job worker, whose premises are not endorsed in the license, the sole responsibility shall be of the importer. In the present case, the appellant has been issued export obligation dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the provisions of para 4.16 of FTP 2015 20 and other provisions and relevant Customs Notification No. 18/2015 dated 1.4.2018. (b) The factory addresses where the goods imported shall be processed is M/s. SAC, KP VI/733 to 736, Puthenvila Jn. Elamkulam, Kalluvathukkal Post, Kollam. (c) No co-licensee was mentioned in terms of Para 4.35 of Handbook of Procedures 2015 2020. 3. As per the terms of Notification No. 18/2015 dated 1.4.2015, the goods imported against the Advance Authorization shall only be utilized in accordance with the provisions of Para 4.16 of Foreign Trade Policy and other relevant conditions of Notification No. 18/2015. Thus, the materials imported under the Advance Authorization shall be subject to actual user condition that is, the goods imported duty-free shall be processed only in the factory of M/s. S.A. Cashews as shown in the Advance Authorization. 4. It was noticed that the appellant, M/s. S.A. Cashews, had diverted 1149.59 MTs of RCN in shell to other units not authorized by DGFT. By this, they violated the actual user condition stipulated in Para 4.16 of the FTP 2015 2020 read with Customs Notification No. 18/2015 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ukkal Post, Kollam in the Advance Authorization license. However, the appellant had their own six other processing units and the imported RCN were sent to these six units for being processed to cashew kernels for export. It is not disputed that all the other units belong to the appellant. This fact has been recorded in para 36 of the impugned order. This being so, even though, all the other units are not endorsed in the Advance Authorization, such dispatch of the imported RCN directly from the port to the appellant s own units for processing would not constitute diversion / sale or transfer of the imported goods as there is no change of title in the goods. He adverted to condition (x) in Notification No. 18/2015-Cus dated 1.4.2015 which reads as under:- (x) That the said authorization shall not be transferred and the said materials shall not be transferred or sold: Provided that the said material may be transferred to a job workers for processing subject to complying with the conditions specified in the relevant Central Excise Notifications pertaining to transfer of materials for job work: 7. The main condition is that the appellant shall not transfer or sell the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to his notice, he submitted that he does not wish to contest on the said issue before the Tribunal or before any other forum. 14. In para 34 of the impugned order, the adjudicating authority has noted that the moot point to be decided is whether the diversion of RCN imported duty-free under Advance Authorization at the port of import to its unauthorized unit for processing is permissible under FTP 2015 20 and Handbook of Procedures 2015 2020. Consequently it is also to be decided whether the quantity of 1149.59 MTs of RCN alleged to be diverted to unauthorized units is liable for confiscation. 15. From the above, we have to first address the issue whether there is any violation of condition of the Notification No. 18/2015-Cus. dated 1.4.2015 and conditions of the Advance Authorization issued by the DGFT in terms of para 4.16 of FTP 2015 20. Admittedly, the units to which the RCN are said to be diverted belong to the appellant. Though only the factory premises at Elamkulam, Kalluvathukkal Post, Kollam has been endorsed in Advance Authorization, all other units belong to the appellant. The department does not have a case that the other units to which the RCN was dispat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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