TMI Blog2023 (5) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the Exim policy seeks to facilitate EOU s who would like to source capital goods from leasing companies. Since imports by a leasing company for supply to EOU s do not qualify for the exemption, a facility has been provided by the Exim policy for the domestic leasing company to jointly file the import documents along with the EOU to enable the import of the capital goods free of duty. Consequently, the bond for fulfilment of the conditions of the exemption notification has also to be executed by both the persons. The allegation that import documents have not been filed jointly by the appellant-EOU and the owner-importer of the goods, Amul has been adequately explained by the appellant. The appellant cannot be faulted if the EDI system did not permit a joint filing of the import documents. Revenue has not disputed the appellants claim. As regards the bond for fulfilment of the conditions of the exemption notification having not been executed jointly by the appellant and Amul, the appellant has not provided a satisfactory answer and have been found to have erred. Revenue has stated that since in the agreement there is no provision for consideration i.e. amount of leasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit while issuing the show cause notice. The impugned order passed by the Commissioner of Central Excise, Chennai III is set aside - Appeal allowed. - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) Smt. J. Ragini, Advocate for the Appellant Smt. K. Komathi, ADC (AR) for the Respondent ORDER This appeal is filed by M/s. Same Deutz-Fahr India P. Ltd., Ranipet against Order in Original No. 1/2014 (Cus.) dated 30.6.2014 passed by the Commissioner of Central Excise, Chennai III. 2. Brief facts of the case are that the appellants are an Export Oriented Unit (EOU) and are manufacturers of tractors and parts thereof falling under Chapter 87 of the Central Excise Tariff Act, 1985. The charge against them is that they in collusion with M/s. Amul Industries Pvt. Ltd. (Amul) their job worker since 2008 (as per the job work agreement dated 3.3.2008), cleared 3 Mekino Horizontal Machining centre valued at Rs.4,95,05,655/- imported by Amul their job worker, with Bill of Entry (BE) No. 833825 dated 4.9.2008, being filed by the appellant. Proforma invoice was addressed to Amul by the foreign supplier, based on the purchase or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son liable to pay duty. She prayed that the impugned order be set aside. 5. We have heard Ms. K. Komathi learned AR on behalf of Revenue. She submitted that exemption notifications have to be strictly complied with. That the appellant has wrongly availed of the duty exemption under Notification No. 52/2003-Cus dated 31.3.2003, without fulfilling the conditions given therein in as much as the Bill of Entry was not filed jointly along with the owners of the machines (Amul) and the bond for fulfilment of the conditions of the exemption notification was also not executed jointly by both the parties. The appellants have also mis-declared their relationship with Amul, in as much as there does not exist a lessor lessee relationship between the appellant and Amul. The actual relationship is only that of a principal manufacturer and a job worker. Hence for the suppression of these facts the extended time limit for issue of SCN has been rightly invoked. She has relied upon the following judgements in favour of Revenue:- (i) Star Industries Vs. Commissioner of Customs (Imports) Raigad reported in 2015 (324) ELT 656 (SC) (ii) Commissioner of Central Excise, Pondicherry Vs. Honda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easing company will jointly file the import documents to enable the import of the capital goods free of duty. This stipulation is necessary in view of the fact that while the EOU / EPZ unit may be eligible for duty free imports under the respective customs notification, imports by a leasing company for supply to these units do not qualify for the exemption. Hence, it is necessary that if imports are by a leasing company then for the purpose of availing duty concession, the import document namely bill of entry should be jointly filed by the leasing company together with the EOU / EPZ unit concerned and consequently the bond for fulfilment of the conditions of the exemption notification has also to be executed by both the persons . Only in such case customs duty benefit will be available. This aspect is to be particularly ensured by the customs in case any imports are noticed under para 96 of the Exim policy. (Emphasis added) 9. The circular makes it clear that the Exim policy seeks to facilitate EOU s who would like to source capital goods from leasing companies. Since imports by a leasing company for supply to EOU s do not qualify for the exemption, a facility has been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order. We find that consideration is defined under Section 2 (d) of the Indian Contracts Act, 1872 as under; (d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise; (emphasis added) Adequacy of the consideration is immaterial. In the light of the above the appellants submission that the promise for interest free financing of the machining facility and for tooling and fixtures by the appellant to Amul and the free cost of space given by the appellant to them to house and run the machines within the EOU premises, will show that there was adequate consideration and that the agreement was not a sham, cannot be brushed aside. The fact that a job worker - principal manufacturer relationship existed between the lessor and lessee will not be determinantal to the agreement for the machining work executed by them. 12. We find that had the appellant-EOU imported the impugned goods they would have been eligible for the exemption. Similarly, if Amul ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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