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TMI Blog2024 (10) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh its special Counsel submitted as follows for their appeals: - 1.1 A search was conducted at the premises of DAE, Rajkot on 05.09.2014. The investigation revealed that DAE had imported 19944.560 MT raw sesame seeds duty free under 21 AAs, out of which export obligation was fulfilled in case of 11 AAs, by exporting 8331.752 MT hulled sesame seeds (8413.07 raw sesame seeds considering 1% process loss). 1.2 As regards remaining quantity of 11531.490 MTs of raw sesame seeds imported under 10 Advance Authorizations during the period 06.03.2013 to 05.02.2014, they have exported 1369.940 MT hulled sesame seeds (1383.290 raw sesame seeds). However, as per Standard Input Output Norms (SION) and conditions of Advance Authorization, the importer was required to export 11417.306 MTs of hulled sesame seeds. At the time of search, only 620.608 MT sesame seeds were found in stock. Thus, 9527.592 MT raw sesame seeds, imported duty free, under AA were found not utilized by them for the specific purpose i.e. processing the imported sesame seeds into hulled sesame seeds and subsequent export under advance license, but, the said quantity was alleged to be diverted into the local market in viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under advance authorization in EDI, but, due to technical reason CHA had filed fresh SBs under DBK. 2.2.6 Once Export Obligation Discharge Certificate (EODC) is issued by DGFT, Customs cannot demand duty against advance licenses. 2.2.7 They have relied on the ruling of Policy Interpretation Committee of DGFT dated 12.01.2018, wherein it is held that advance authorization holder has option to export resultant product using duty paid materials procured from domestic sources subject to actual user condition etc. 2.2.8 The interpretation of DGFT shall be final and binding for all; Relied upon case law of AKM Trading Corporation Ltd. 2.2.9 The process loss in SION is revised to 33% on 03.01.2018, vide Public Notice No. 49/2015-20. 3. The adjudicating authority dropped the proceedings against M/s Dhaval Agri Exports as well as Sh. Chandarana, mainly on the following grounds: (i) The Adjudicating authority in his findings has observed that the investigating agency has ignored the part of the statement dated 21.01.2015 of Shri Dinesh Jayantilal Tanna of M/s. Tirupati Agro, Rajkot, a broker of sesame seeds. He had deposed that the product description mentioned in the contract no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption notification and advance authorization scheme: 5.1 The AAs utilized by DAE were issued with actual user condition and the goods imported were required to be disposed of as provided in Notification No. 96/2009-Cus dated 11.09.2009 and Para 4.1.5 of the FTP 2009-14. 5.2 The relevant condition (x) of the said notification reads as under: "That the said authorisation shall not be transferred and the said materials shall not be transferred or sold; Provided that the said materials may be transferred to a job worker for processing subject to complying with the conditions specified in the relevant Central Excise notifications permitting transfer of materials for job work." 5.3 Para 4.1.5 of the FTP 2009-14 reads as under: "Advance Authorization and / or materials imported there under will be with actual user condition. It will not be transferable even after completion of export obligation. However, Authorization holder will have option to dispose of product manufactured out of duty-free inputs once export obligation is completed. In case where CENVAT credit facility on inputs have been availed for the exported goods, even after completion of export obligation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected by the competent authority and nothing is forthcoming from the OIO that the respondent has paid the drawback amount claimed, along with interest. Hence, the findings of the adjudicating authority on this aspect are erroneous. 6.2 Shri Dinesh Tanna of Tirupati Agro, a broker firm, in his statement dated 09.09.2014, has categorically stated that the importers who import sesame seeds through him were also selling the same in the local market through him. In his further statement dated 21.01.2015, Shri Tanna stated that the goods viz. sesame seeds were delivered from Mundra and terms for supply to buyers is the responsibility of M/s. Dhaval Agri Exports. The place of delivery of the goods was Mundra i.e. port of import. The place of delivery (i.e. Mundra) mentioned in the contract notes itself is sufficient evidence to show that the goods were imported and diverted to local market. 6.3 The description, origin, quantity and delivery place mentioned in the sales contract notes coincides with the actual imports made by the importer under advance authorization. On perusal of the details of sale of goods as per contract notes and corresponding details of import, it can be seen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shortage noticed even after taking into account the exports made under Drawback scheme. In any case, even if the permissible limit of process loss has been increased to 33 %, it does not mean that they can avail more process loss than what is actual, which was 1% until then, and divert the rest. 6.5 Furthermore, the said Public Notice dated 03.01.2018 is prospective and not retrospective. The SION norms applicable to an Advance Authorization in force at the time of issuance of advance authorization will be applicable. Any subsequent amendment in SION norms cannot be made applicable retrospectively, unless otherwise specified in the Public Notice of DGFT. Each advance authorization contains quantity of goods to be imported and quantity of the goods to be exported, after considering the SION as applicable. 6.6 Further, in his statement dated 11.09.2014, Shri Jay Chandarana has informed that they have received EODC from DGFT in 9 advance authorizations, according to which 5391.752 MT hulled sesame seeds were exported against import of 5445.670 MT sesame seeds. The process loss in above transactions comes to 1%, which is same as provided in SION. Furthermore, as mentioned ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Records 9. As brought in the investigation, they were not maintaining separate accounts for usage of the indigenous and imported sesame seeds at different stages of processing. They were maintaining separate stock record of imported and indigenous sesame seeds and debiting the exports or other disposal against these. When they were asked as to how they ascertain whether the exported goods were from the imported or indigenous purchase, they could not give any satisfactory reply. They were also not maintaining any record to show the wastage arising during the processing of raw sesame seeds. It means they could be freely mixing the indigenous and imported sesame seeds at the stage of processing. DGFT ruling dated 12.01.2018 of Policy Interpretation Committee: 10. The DGFT has issued ruling dated 12.01.2018 of Policy Interpretation Committee of DGFT. The decision of the committee is as under: "Taking into consideration the above stipulation and submission of the applicant, it is clarified that Advance Authorization holder has option to export resultant product using duty paid materials procured from domestic sources also within the validity of period of Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the materials imported there under will be with actual user condition and it will not be transferrable even after completion of export obligation. The adjudicating authority has failed to consider that for subsequent exports under advance licenses, it was not possible to fulfill the actual user condition as only small quantity of imported raw sesame seeds was available. The EODC issued by DGFT is without considering the facts and evidences unearthed in the course of the investigation and detailed in the show cause notice. The issuance of EODC by the DGFT does not bar the department from proceeding against the importer for violation of the conditions of the Notification granting exemption from payment of Customs duty. Grant of EODC is towards fulfillment of obligations mentioned in the FTP. The importer has been permitted to fulfill export obligation by even using domestic inputs but this cannot be considered as fulfillment of actual user condition under the customs notification. Violation of condition (x) of Not. No. 96/2009-Cus dated 11.09.2009: 13. Notification No. 96/2009 - Cus dated 11.09.2009 exempts materials imported into India against an Advance Authorization iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the respondent herein has violated the conditions of the Notification as well as FTP 2009-10. Hence, Customs duty is recoverable and goods liable for confiscation. Dhaval Agri Exports and Shri Jay Sureshbhai Chadarana, CEO are also liable to penalty under section 114A and 112(a)/112(b). 15. In view of the above, it was prayed to allow both the departmental appeals. 4. Submissions of M/s. Dhaval Agri Exports (Hereinafter referred to as Respondent) It was submitted that they are engaged in processing of natural sesame seeds and trading of "Sesame Seeds" including natural as well as hulled sesame seeds and other agriculture produce. Respondent was importing Raw Sesame Seeds and also procuring locally. It mainly exports processed sesame seeds directly and sometimes through merchant exporter also. Sometimes they export natural sesame seeds as well as other agriculture produces like cotton, cumin seeds, coriander seeds etc. 5. Respondent had imported 19,944.56 MTs "Raw (Natural) Sesame Seeds" valued at Rs. 222,93,89,018/- without payment of customs duty amounting to Rs. 80,56,12,014/-under 21 Advance Authorisations (referred in paragraph 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19944.560 2 Total Export required as per SION 19747.089 3 Total Export under Advance Authorization 9701.346 4 Export under Drawback and claimed under Advance Authorization 8140.649 5 Stock of Sesame Seeds available at the time of Panchnama as per books of accounts 620.608 6 Shortage of imported goods found [2-(3+4+5)] 1284.486 6.1 Statement of various persons including Shri Jay Sureshbhai Chandarana being CEO of Respondent was recorded under Section 108 of the Customs Act, 1962 on 08.09.2014 and 11.09.2014, which were exculpatory. 7. Respondents filed detailed reply to the said SCN and also appeared before the Commissioner, Customs, Mundra who had while passing Order dated 10.08.2018 dropped the proceeding initiated vide said SCN dated 21.10.2015 against both the respondents. Hence the present appeals by the department. Also a protective appeal has been filed by the party as appellant to seek adjustment of certain shipping bills filed as Drawback to be claimed and treated as having been filed under Advance Authorization Scheme, in case the department appeal is contemplated for acceptance. 7.1 Respondent submitted that though the learned Committee has direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the SCN (Page 124 and 131 of reply to appeal) that 8,140.649 were inadvertently exported under claim of draw back instead of Advance Authorisation. It was not considered only on the ground that conversion of shipping bills was not allowed by the Customs and application for amendment was made only after initiation of investigation by DRI. As discussed in para infra applications for amendments were made well before the investigation initiated by the DRI. 7.5 It is also admitted fact in the show cause notice at paragraph 7(b) (Page 124 of reply to appeal) that out of 8413.07 MT imported natural sesame seeds under 11 Advance Authorisation after allowing 1% process loss 8,331.752 MT processed Hulled Sesame Seeds were exported. 7.6 Respondent submitted that it is a fact evident on record that goods viz. imported raw sesame seeds were never diverted in local market but were used for intended purpose viz. hulling and exported the same. The goods viz. hulled sesame seeds instead of exporting under Advance Authorisation were through oversight exported under claim of Drawback. Even process loss claimed were less than 1% of permissible limit under SION. In any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 942.525 MT which included the imported as well as indigenously purchased Sesame Seeds and all types of material i.e. raw Sesame Seeds, Sesame Seeds in process, rejected Sesame Seeds and Hulled Sesame Seeds; that the books of account maintained by it showed the stock position of imported sesame seed as on 04.09.2014 to be 620.608 MT; that the record of imports and exports of Respondent was also examined and it was found that it had imported 19944.560 MT of Raw Sesame Seeds under 21 Advance Authorizations out of which it had shown export of 9701.346 MT of Hulled Sesame Seeds under Advance Authorization till date of Panchnama i.e. 05.09.2014; that respondent claimed to have exported 8140.649 MT of Hulled Sesame Seeds under drawback scheme and not under Advance Authorization Scheme; that even if its exports under drawback scheme was accounted against export under Advance Authorization, there was shortage of 1284.486 MT of imported Raw Sesame Seeds which is as detailed below; and that Respondent failed to give any explanation for this shortage. Sr. No. Description Qty (in MT) 1 Total Import 19944.560 2 Total Export required as per SION 19747.089 3 Total Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Pipavav, on 05.09.2014 and two applications to the Deputy Commissioner of Customs, Custom House, Mundra on 27.08.2014 requesting them to convert their shipping bills from drawback to Advance License Scheme; that on being asked whether he agreed that during the period from February-2014 to August-2014, they continued to export the Sesame Seeds Product imported duty free under Advance Licenses, under the claim of drawback in gross violation of the actual user condition of the Advance Licenses, to which he replied that as per his opinion, actual user condition means he could not sell the duty free inputs to other person for manufacturing, and then exporting the resultant product under Advance License. 7.11 Respondent further submitted that another statement of the CEO was recorded under Section 108 of the Customs Act, 1962 on 11.09.2014 wherein he inter alia stated that on being asked to explain the shortage of 1578.136 MT of sesame seeds as they have imported a quantity of 18755.180 MT of sesame seeds under Advance Licenses out of which they had exported 9590.186 MT against Advance Licenses and 6966.250 MT against Drawback Scheme as claimed by them and only 620.608 MT was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 in which while answering question No.16 it was stated that the product description in the contract notes were written by them without informing Respondent and asked to comment. He stated that they generate two copies of the contract one of which is for buyer and the other for seller, as such Respondent were already provided the copy of the contract and were very well aware of the description mentioned in the contract are the different names of Sesame seeds commonly known in the business. 7.14 Respondent further submitted that based on the above oral as well as documentary evidences clearly proved that there was no diversion of goods but raw sesame seeds after process of hulling were through oversight exported under claim of drawback instead of advance authorization. There is no other evidence in any form was/is adduced regarding diversion of goods in domestic market to local buyers nor recorded & relied upon any statement of such buyers if any. 7.15. Respondent submitted that while recording statement dated 08.09.2014 of CEO of respondent he had submitted License wise 10 Statements/Sheets for 10 Advance Authorisations referred in table at paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respectfully further submitted that even other documentary evidence in the form of two applications dated 27.08.2014 duly acknowledged by the MP & SEZ Mundra for conversion of shipping bills from drawback shipping bills to Advance Authorisation (for License No. at Sr. No. 7, 9, 10 of table and for License at Sr. No. 6 of table at page 8 of the SCN for the shipping bills listed in the sheets attached with the said letters) on the ground that through oversight shipments were done in Drawback Scheme and requested for conversion of shipping bills from drawback to advance license, were available on record. It may be appreciated that search was carried out on 05.09.2014 whereas two applications for conversion of shipping bills were made on 27.08.2014 for goods imported under four Advance Authorisations. In the same way another application dated 02.09.2014 for conversion of shipping bills (listed in the attached sheets) against 3 Advance Authorisation (Licenses at Sr.No.4,5 & 8 of the table at page 8 of the SCN) was submitted to Custom House, GPPL, Pipavav on 05.09.2014. Co-incidentally, date of search and submission of the said letter are same but by any means it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 1 08/91/165/00901/ AM15/dated 06.02.2013 0810118206 dated 06.02.2013 30.03.2015 2 08/91/165/00200/AM16 dated 13.08.2013 0810123765 dated 13.08.2013 30.06.2015 3 08/91/165/00201/AM16/ dated 13.08.2013 0810123766 dated 13.08.2013 30.06.2015 4 91/040/00555/AM.14 and 08/91/040/00453/AM.2014 dated 19.10.2015 0810128771 dated 10.02.2014 and 0810127077 dated 13.12.2013 19.10.2015 5 08/91/040/00480/AM.2016, 91/040/00519/AM.14 & 08/91/040/00014/ AM.2015 dated 04.02.2016 0810127477 dated 27.12.2013, 0810128099 dated 17.01.2014 & 0810130536 dated 11.04.2014 04.02.2016 6 08/91/165/00347/AM16 dated 28.02.2014 0810129251 dated 28.02.2014 24.07.2015 7 8/91/165/00857/AM16 dated 15.05.2014 0810131340 dated 15.05.2014 23.01.2016 7.19 Respondent thus submitted that the jurisdictional customs authorities at MP & SEZ port, Mundra had also discharged the relevant bonds executed by it at the time of importation of the goods against 10 disputed Advance Authorizations on fulfillment of export obligations. The same was informed by the Superintendent of Customs, Custom House, Mundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision on conversion of DBK S/bills to Advance Authorization, it had fulfilled the export obligation after procuring sesame seeds from DTA against export orders in hand and within validity period of Licences; that the Licensing authority, Ahmedabad had already issued EODC/Bond waiver letters; and that the Customs authorities had also released Bonds executed by the Respondent at the port from where the goods were imported. In view of the above it had requested the Director General, Advance Authorization Wing to facilitate the export/ imports in terms of Para 1.07 and to interpret the Policy provisions in terms of Para 2.57(a) of the Foreign Trade Policy 2015-20. It was further submitted that due to unavoidable situation, Respondent had procured sesame seeds from DTA against processing loss and against exports made under drawback shipping bills for fulfilling the export obligations; that necessary clarification to the effect that export obligation against Advance Authorizations can be discharged by procuring material from domestic sources so that the issue pending before the Customs authorities can be closed. In response to the above letter dated 18.11.2017, the Respondent, vide l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .47 of Handbook of Procedure, 2015-16 and submitted that in case authorization holder exports first (before effecting imports) by using imported inputs/indigenously procured raw materials, in that case the Authorization Holder can seek waiver of bond condition by submitting evidence of export made and payment realized to that extent. In other words, goods can be exported by using imported inputs/ indigenously procured raw materials and there is no need of exporting the same goods which were imported. Attention was further invited towards SION K36 - and submitted that for export of 1Kg Hulled Sesame Seeds 1.01Kg Raw Sesame Seeds can be imported. Further attention was invited towards modification of SION vide public notice No. 49/2015-2020 dated 03.01.2018 and submitted that as per modified SION for export of 1Kg Hulled Sesame Seeds, 1.33Kg Raw Sesame Seeds can be imported. However, respondent has claimed process loss less than 1% and exported Hulled Sesame Seeds by procuring indigenous raw sesame seeds as per the provisions of Foreign Trade Policy. 7.24 Based on the above it was submitted that actual process loss was higher around 13% and later on same was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orization were sold in local market as such or after process. He had also categorically clarified that varities of sesame seeds referred in the Contract Notes were actually the qualities of different sesame seeds which are common names in the business circle and therefore it cannot be said the same are the imported sesame seeds. 8.1 Respondent submitted that the learned Committee had tried to create one more ground in para 7 and 7.1 on the basis of comparison of the dates of Contract Notes with dates of filing of bills of entry and the dates of order of out of charge presumed that goods were directly diverted by Respondent in DTA from Mundra port. As per evidence in the form of reply to information sought under RTI it is clearly admitted that the learned Committee had never called for original case record viz. Adjudication file to ascertain actual fact in the matter. Respondent submitted that the learned Committee failed to appreciate the facts that out of four contract notes, three contract notes were cancelled ( Without prejudice to above and without admitting anything in any case goods mentioned in this contract note dated 20.05.2014 is Sesame Seed - Hulled Autodry Sortex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing industry was much more than 1% referred in the SION. It was further submitted that it had claimed process loss less than permissible 1% under SION and just to show the practically process loss was much higher than 1% and same was around 13%, reference of Public Notice was made so as to justify that in sesame seeds industry process loss is very high and therefore, same was increased from 1% to 33%. It does not mean that respondent has claimed process loss of 33% and the adjudicating authority has allowed the same. 8.8 Respondent without admitting anything submitted that the impugned application filed by the Commissioner of Customs, Mundra is based on the direction by the learned Committee of the Chief Commissioners of Customs (Hereinafter referred to as the learned Committee) under Section 129D(1) of the Customs Act, 1962 but without being authorized to file an application before Hon'ble Tribunal under Section 129D(4)ibid read with Rule 8(3) of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. The said Section and Rule provide that every application shall be signed and verified by the applicant duly authorized to sign the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Review Order was prepared by the Superintendent based on communication received from DRI only and no independent findings were given by the learned Committee. Therefore, such review order cannot be considered as proper within the meaning of Section 129D(1) of the Customs Act, 1962. On this ground too appeal was liable to be rejected. 8.11 Respondent in view of the above submitted that no penalty was imposable upon Shri Jay Sureshbhai Chandarana. However, without prejudice to above and without admitting anything submitted that in any case since the committee has not reviewed the order not imposing any penalty upon the CEO of the respondent at all as not given any ground to impose penalty upon him. Therefore, in absence of ground for imposition of penalty upon CEO same cannot be entertained at all. 9. Respondent also submitteds that the impugned appeal is not sustainable on facts as well as merits and therefore, the same deserves to be dismissed to meet with the ends of justice please. 10. Respondent submitted that for utmost precaution it also filed an appeal against the order dated 23.01.2017 of the Commissioner, Customs, Mundra rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wastage of 13% was claimed by them as only the same was permissible. On the basis of their Industry representation same was later revised and raised to 33%. The period involved in the instant case though is from 24.12.2012 to 23.07.2014, it was submitted by the respondents that revised norm was as per the industrial representation and deserved to be considered retrospectively being beneficial to exporters and being embedded to the reality. Further, day to day experience also indicates that with advent of technologies wastage only goes down and does not go up. Therefore, such norms need to be applied retrospectively and the position deserves to be accepted by the department, which Commissioner in his order has correctly appreciated while Review Committee while seeking to appeal has not accepted this pragmatic and beneficial norm retrospectively. It was pointed out by the learned advocate that 13% wastage only indicated existence of efficiency in their operations, as 13% process loss was for below 33%, even though above unrealistic and rather incorrect norm of 1%. The later norms by the concerned Authority of Ministry of Commerce was issued looking into the whole situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, on going through the statement dated 10.09.2014 of Shri Dinesh Jayantilal Tanna of M/s. Tirupati Agro, Rajkot, I observe that the original reply to No.4 for the said six Contract Notes was that "In this regard I have to state that the product description in the contract mentioned are of the quality of different sesame seeds which is commonly called in business circle. As such it cannot be said that they are the imported sesame seeds." Thus, the investigating agency has selectively relied upon the first sentence of his deposition while completely ignoring the second sentence. 17.2. Further, on going through the aforesaid contract notes, it is observed that out of six contract notes, on two contract notes viz., 10847 dated 20.03.2014 and 10849 dated 21.03.2014, the product specification is mentioned as "Sesame Seeds - Sudan Red Quality" while on Contract Note No. 11098 dated 20.05.2014, the product specification is "Semi Premium (Somalia) Quality". Further, two Contract Notes bearing Nos. 10786 dated 12.02.2014 and 10066 dated 26.04.2013 show the product specification as Korea Quality/Korea Condition while the sixth Contract Note No. 11080 dated 14.05.2014 nowhere refers any co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation of diversion of duty free goods imported under Advance License by M/s. DAE is based on assumption & presumption and is not legally sustainable. 18. Further, it is alleged in the Show Cause Notice that Mis. DAE has failed to observe the actual user condition stipulated under the Notification No. 96/2009. Customs dated 11.09.2009 for the sesame seeds imported duty free under Advance License However in the absence of any documentary evidence whatsoever or admission in statements recorded by the investigating agency, of diversion of imported goods. I find that the actual user condition has not been violated by M/s. DAE. 19. Further, I find that it has been proposed in the SCN that the entire quantity of 9527.592 MT of Raw Sesame Seeds imported by M/s. DAE during the period from 06.03.2013 to 05.09.2014 under various Advance Authorization (as listed in Annexure-A to the Show Cause Notice), is liable for confiscation as the same has been diverted in the domestic market. However, it is an admitted fact in the SCN itself that Mis DAE had exported 8140.649 MT of Hulled sesame seeds manufactured out of the imported Sesame seeds under Drawback. Scheme which cannot be termed as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A to the Show Cause Notice), totally valued at Rs. 1,27,57,35,460/-, under Section 111(0) of the Customs Act, 1962, is not legally sustainable. Moreover, as the charge of diversion of duty free imported goods could not be established, therefore the demand for Customs duty leviable thereon does not survive. 24. Interest & penalty, In view of discussions and findings contained in the foregoing paras, I find that the duty demand proposed in the Show Cause Notice is not sustainable. Consequently, the demand of interest and penalty would not stand. We thus hold that explanations given by the respondent have been correctly validated and conclusion of no diversion of material outside the factory has been correctly arrived at. We also in this regard draw support and supplement the above findings from various factual explanations given in above submissions made before us. 11.1 Coming specifically to the grounds taken by the department in its appeal, we find that that party claims to have made up exports by procuring indigenous duty paid goods and by claiming only 1% SION stipulated norm. Customs has also discharged the bond furnished in this regard after due co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " has to be kept in mind, while considering retrospectivity or otherwise of a beneficial change in norm. A norm being a standard stands on a different footing than law (retrospectivity of which has to be judged on the touchstone of evolved legal principles). A norm or a standard of wastage based on technology, if revised to the benefit of industry has to be treated as retrospective. 11.3 Therefore, both revision of norm which now exists in synch with permissibility of usage of indigenous material for exports under Advance Authorization Scheme (A.A.S) was a course correction appropriately done by Ministry of Commerce. Since, respondent were also allowed procurement of indigenous materials, it leaves us in no two minds that same was done as SION norm of 1% was an aberration in fixing the same, rather than a die-cast norm embedded only to the past technologies, which became 33% later with advent of technologies. Applying the revised norm even for the past, therefore is both logical and reasonable. 11.4 It was also explained by the Ld. advocate that they had taken various stands as drawback to be counted etc. merely as alternate plea in case their assertion of higher weightage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the bond taken by it. We find that the adjudicating authority has correctly taken into account various arguments and has properly given relief which was due to the respondent. The respondent has also explained its position in the light of developments as happened. In case, the Revenue Department does not accept its proposition of higher wastage than SION norms, it was for it to prove with evidence the removal and convince DGFT for no need of revision of input output norms or of issuance of EODC. We find that the learned Commissioner of Customs has correctly appreciated the position and passed his order which, therefore, deserves to be upheld. Accordingly appeals by the department are dismissed as devoid of merits and the appeals by the respondent seeking approval to adjust drawback against Advance Authorization Scheme becomes infructuous and therefore deserves to be dismissed in view of aforesaid findings. 12. The discussion above brings us to the following postulates for our findings:- a. That export transactions as well as legislations including notification dealing with exports are required to be liberally interpreted, as they achieve national objective of higher expo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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