TMI Blog2001 (2) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... licence issued to it in Import Policy 1990-93. Therefore, the goods were not liable for confiscation, and the importer not liable to penalty. He has denied the benefit of Notification 159/90 and of 204/92, for the reason that it has not been shown that the condition in the notification that the imported goods were identical in terms of quality and technical characteristics with those used in the export product. He has also refrained from imposing penalty on Earnest and Co., who is named by the importer as a supporting manufacturer of the exported product and I. John, its Director. 2.Jindal was given an advance licence and DEEC book for export of "flavoured shivalik mentha base (mentha oil)". The licence permitted import of natural essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there has been "a clear attempt to defraud the Government by claiming the benefit of duty exemption" because the imported goods were not used to manufacture the export product and the importer had obtained the import licence in a "fraudulent manner." The appeal does not question the Commissioner's finding of fact that when the goods were imported, they were covered by a valid licence. The Commissioner has relied upon the judgment of the Supreme Court in East India Commercial Corporation v. C.C.E. - 1983 (13) E.L.T. 1342 (S.C.) = AIR 1962 SC 1893 and U.O.I. v. Sampatraj Dugar - 1992 (58) E.L.T. 163. One of the ratios of each of these judgments is that a cancellation of an import licence does not so operate so as to render invalid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t what was exported was nothing other than plain mentha oil i.e. oil to which no aromatic chemical or essential oils had been added. This is what the Commissioner also says in paragraph 40 of his order. The contention of the Counsel for the appellant is that as long as the goods which are imported must tally, in respect of the value quantity, description, quality and technical characteristics with the description in DEEC book, the terms of the notification are satisfied. The DEEC book permitted import of natural essential oils and aromatic chemicals, as a broad category without specifying the kind of oils and chemicals. Therefore, any such oils or aromatic chemical would be entitled to the benefit of the notification. 7.We are not able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of identical specifications and technical characteristics has been established. The burden of proving the entitlement to the notification must be discharged by the claimant. This is in fact the view taken by the Tribunal in Zenith Tin Works Ltd. v. C.C. - 1995 (75) E.L.T. 865. The denial of Notification 159/90 is therefore is justified. 8.The Commissioner has also not accepted the alternative claim for the benefit of Notification 204/92 on his view this notification also prescribes that the imported material should find use in the manufacture of the exported product and that the DEEC book specifically indicates that the goods are entitled to the benefit of Notification 159/90. The Counsel of the appellant cites before us the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not present in Notification 204/92. Transferability of goods in 204/92 is subject to less stringent condition as of Notification 159/90. Another factor which the Commissioner relied upon that the DEEC book itself mentions that one of the condition in the notification that the goods must be covered by a DEEC book specified in the schedule to the notification. The Schedule specifies the number of the notification. All these lead us to conclude that there are significant differences in the two notifications. While each of them serve the general purpose of export promotion, the manner in which they are worded and administered differs significantly. The arguments of the Departmental representative before the Madras Bench, recorded in paragraph 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
