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TMI Blog2004 (11) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... of Stainless Steel Utensils (SS Utensils, for short) and to export the entire production of utensils. On apprehension of misuse of the advance licences by the appellants, the department through DRI made investigations into the above imports and reached a finding that the appellants did not have any factory at the aforesaid address and hence violated the condition of having to manufacture utensils out of imported raw material in their declared factory; that they had diverted the imported raw material to the domestic market and had used bought-out utensils for export in violation of the conditions of above Customs Notifications read with relevant provisions of the EXIM Policy 1997-2002; and that, on account of these violations, they were not entitled to the benefit of exemption under the Notifications and were, consequently, liable to pay duty on the imported raw material. On this basis, a show-cause notice was issued to the party demanding duty of Rs. 73,38,846/- on 154.523 MTs of SS Coils imported, proposing to confiscate the said quantity of SS Coils and also proposing to impose a penalty on the appellants. In adjudication of the show-cause notice, the Commissioner of Customs pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GFT (Enforcement-cum-Adjudication) passed Order No. 30 of 2004 dated 5-1-2004 in favour of the party. Referring to this order of the JDGFT, the Commissioner of Customs, in the impugned order, observed that the former had exceeded his jurisdiction. The Commissioner, further, held that, in the matter of extending the duty exemption benefit, the Customs authorities were liable to verify whether the conditions and procedures prescribed under the Customs Notifications and those prescribed under the EXIM Policy and the advance licences were fulfilled. According to the learned Commissioner, the procedures and conditions prescribed under the EXIM Policy and the Customs Notifications were to be strictly enforced. He observed that the licensing authority had wrongly waived some of the procedures and conditions prescribed under the EXIM Policy. 3. Heard both sides. Ld. Consultant submitted that as per the definition of "Actual User (Industrial)" in terms of the EXIM Policy 1997-2002, the importer of raw material under the DEEC scheme could either utilize the goods for manufacturing export product in his own factory or get the export product manufactured out of such material in job workers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants had no factory at the declared address. It was claimed that, during the entire period of dispute, the appellants were in possession of the premises at No. 213/4, Sydenhams Road, Appa Rao Garden, Chennai 600 112. The letter dated 23-1-2003 of Smt.Yesodha, owner of the premises, did not rule out physical possession of the premises by the appellants. Ld. Consultant also relied on a certificate dated 4-6-96 of the Superintendent of Central Excise, Range III-D, Anna Salai, which, inter alia, indicated that the appellants were manufacturing SS utensils at No. 213/4, Sydenhams Road, Appa Rao Garden, Chennai 600 112. He also referred to the permanent SSI Registration Certificate issued by the Department of Industries & Commerce, Govt. of Tamil Nadu, wherein also the factory address had been shown as 213/4, Sydenhams Road, Appa Rao Garden, Chennai 600 112. In any case, according to learned Consultant, the licensing authority, to which the factory address was declared by the appellants, was satisfied vide the JDGFT's order that the appellants had a permanent manufacturing facility at No. 213/4, Sydenhams Road, Appa Rao Garden, Chennai 600 112. The JDGFT's order was a quasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein she had stated that she was the owner of the premises at 213/4, Sydenhams Road, Appa Rao Garden, Chennai 600 112 ; that she had purchased the premises under Sale Deed dated 16-10-97; that she did not let out the premises to any steel unit till date. According to learned SDR, the appellants had not contradicted the statement of the owner of the premises and, therefore, misdeclaration of factory to the licensing authority stood established. Under the Customs Notifications, it was argued, the raw material imported by a manufacturer-exporter had to be utilized in the manufacture of export goods in his own (declared) factory. In the instant case, the manufacture actually took place in the job workers' premises which had not been declared to the licensing authority. As regards the JDGFT's order, learned SDR reiterated the pertinent observations of the Commissioner. 6. After examining the records and considering the submissions, we find that, admittedly, enough quantity of SS utensils was exported by the appellants in discharge of export obligation under the advance licences in question and all such exports were logged in DEEC book. Such discharge of export obligation ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce conditions, the licensing authority has certified full discharge of export obligation by the appellants. The adjudicating authority under the Foreign Trade (D&R) Act has found no violation of licence conditions on their part and its order has been accepted by the Revenue. Hence the Revenue cannot be seen to be critical of that order, nor can the DR be heard to argue against it. It goes without saying that the case law cited by ld. SDR cannot improve the Revenue's case or plight. The Revenue's allegation was that the appellants had violated conditions (vii) and (viii) of Notification 30/97 and similar conditions of Notification 51/2000. But, in this regard, the JDGFT's order has taken the wind out of the Revenue's sails. In the result, the charge of breach of conditions of the Customs Notifications does not survive. Hence, now, there is no reason to deny the benefit of the Notifications to the appellants or to take any penal action against them. Accordingly, we set aside the impugned order and allow this appeal." 7. We think, we need not make any further observation in the instant case. Following the above view expressed by us in Final Order No. 806/2004, we hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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