TMI Blog2005 (5) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by/on behalf of M/s. Synergies Dooray Automotive Ltd. and Shri AKS Murthy. The main issue to be decided, in these proceedings is whether M/s. Synergies Dooray Automotive Ltd. are entitled to receive HSD oil without payment of duty under Not. No. 126/94-C.E., dated 2-9-94 for use as fuel for fork lifts, the material handling equipments, in the manufacture/production process like heat treatment line, dye preheating system, paint line materials etc. 8. Notification No. 126/94-C.E., dated 2-9-1994, as amended, exempts the excisable goods specified in annexure I to the notification when required for use by units located in any Export Processing Zone, and brought by the user industry from the factory of their manufacture or warehouse situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production process like heat treatment line, dye preheating system, paint line materials etc. is covered by Not. No. 126/94-C.E. dated 2-9-1994, as amended. 9. A plain reading of Not. No. 126/94-C.E., dated 2-9-1994, as amended makes it clear that in order to get the benefit of the notification two conditions are required to be satisfied:- (i) The goods shall be for the production or manufacture of articles for export out of India; or for being used in connection with the production, manufacture or packaging of articles for export out of India; etc. (ii) The goods shall be those specified in annexure I of the notification. The expressions "for the production or manufacture" and "in connection with the production, man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as for use in their manufacturing lines explained above. When approval of the DC/Asst. Commissioner of Customs is required for procuring HSD oil for use in their captive generating sets, such approval is not required for use of such HSD oil in their manufacturing line. Just because M/s. Synergy Dooray Automotives Ltd. had taken approval from the Development Commissioner for procurement of HSD oil, there is no compulsion that the entire HSD oil should be used only for use in their captive generating sets. It is not the case of the department that M/s. Synergy Dooray Automotives Ltd. had diverted the HSD oil outside the EPZ for purposes other than those specified in the notification. There is no dispute on the fact that the unit had used th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is procured in the status of material handling equipment and that the notification does not provide for exemption to consumables of material handling equipment since they are not exportable products by the assessee. The fuel used in fork lift does not fit in the definition of "consumables" as defined in the Import Export Policy. "Consumables" has been defined as "any item which participates in or is required for manufacturing process, but does not form a part of the end product". It is stated that HSD oil used as fuel cannot be termed as "consumables" and fuel is only allowed to be procured for use in captive generating set and not for use in fork-lift and hence they pray for setting aside the order. 3. We have heard learned SDR and l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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