Harsha Devani, J.
1. By this appeal under Section 130 of the Customs Act, 1962 (hereinafter referred to as the "Act"), the appellant has challenged the order dated 26-62006 passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (hereinafter referred to as the "Appellate Tribunal") in Appeal No. Customs/703/2001 [2006 (206) E.L.T. 911 (Tri. - Mumbai)].
2. By an order dated 6-9-2007, the appeal came to be admitted on the following substantial questions of law :-
"(1) Whether all the raw materials, including those rendered as wastage during manufacture of exported goods, were not exempt under Notification No. 13/81-Cus., dated 9-2-1981?
(2) Whether demand of Customs duty on imported raw materials contained in wastage in excess of input-output norms under the Export Import Policy was legally correct?
(3) Whether the final order of the Appellate Tribunal confirming demand of duty with penalty on wastage of imported fabrics was legally correct and sustainable?"
3. The appellant herein was a 100% Export Oriented Undertaking engaged in the manufacture of garments and had been operating as an EOU. Under the Export Import Policy of the Government of India, the appellant applied for permission to function as a 100% EOU and a letter of permission (lOp) dated 17-1-1992 came to be issued by the Under Secretary to the Government of India granting permission to the appellant to function as a 100% EOU for manufacture of ready-made garments. The appellant has also been granted a licence under Section 58 of the Act for the appellant's factory as a private bonded warehouse for bringing in the factory materials duty free for manufacturing the above referred export goods. The appellant procured nine consignments of fabrics for manufacture of trousers during the period from 25-12-1994 to 24-12-1996. All these nine consignments of fabrics procured duty free have been duly entered in the bond register and other documents maintained at the appellant's factory in compliance with the EOU rules and regulations. It is the case of the appellant that these fabrics have also been used in relation to manufacturing trousers which have been exported by the appellant thereby fulfilling the export obligations of the appellant as an EOU. The appellant maintained records of the above fabrics procured duty free, consumption of these fabrics in relation to manufacture of trousers and export of trousers as well as waste in the form of trimmings and cuttings that arose out of the manufacturing of trousers from these fabrics. Such reports came to be submitted to the Central Excise and Customs Officers having jurisdiction over the appellant's factory. On the basis of such reports, the excise authorities in charge of the appellant unit found that the total quantity of fabrics consumed for each trouser was 1.984 square metres per trouser on average basis.
4. The Exim Policy prescribes input-output norms for various goods including trousers. The input-output norm for trousers under the Handbook of Procedures has been prescribed as 1.687 square metres per trouser. On the basis of the above norm, the Commissioner of Central Excise and Customs issued a show cause notice to the appellant suggesting that there was excess consumption of fabrics to the tune of 32185.06 square metres and, accordingly, suggested that duties to the tune of Rs. 17,44,818.23 were required to be recovered on excess consumption of fabrics with penalty and interest under the provisions of the Customs Act.
5. The show cause notice culminated into an order-in-original dated 30-3-2001 holding that the appellant had contravened the provisions of Notification No. 13/81-Cus. read with Exim Policy norms for trousers and accordingly, duty demand of Rs. 17,44,818.23 came to be confirmed with penalty of Rs. 35,00,000/- and interest under Section 28AB of the Act. The appellant carried the matter in appeal before the Appellate Tribunal. By the impugned order, the Appellate Tribunal has upheld the duty demand together with interest but has reduced the penalty to Rs. 8,00,000/-.
6. Mr. Paresh Dave Learned Advocate for the appellant assailed the impugned order, inter alia, on the following grounds :-
- Neither the Exim Policy nor Notification No. 13/81-Cus. provides for recovery of duties on inputs/raw material even though the raw material consumed by an EOU is more than the norms prescribed under the Exim Policy.
- The input-output norms are in the nature of guidelines and not a fixed formula.
- Excess consumption of inputs like fabrics would not call for demand of duties for such quantity of inputs when the same were admittedly consumed in relation to manufacture of the exported goods as neither the policy nor the notification creates any such liability.
- Notification No. 13/81 has been issued by the Central Government under Section 25 of the Customs Act allowing exemption to various goods imported for production of goods for export or for the use in 100% EOUs and various conditions have been laid down therein for allowing availment of duty free imports. All the conditions of the notification have been fulfilled by the appellant and it is not the case of the respondents that any condition of the notification has been contravened. The appellant has fulfilled its export obligations by exporting the goods as required under the policy as well as the notification and export obligations in terms of quantity as well as value of goods exported have been fulfilled by the appellant.
- It is not the case of the respondents that this quantity of fabrics has been diverted into the local market or was removed clandestinely or that the excess quantity was used for any other purpose, and hence, demand of duty on this quantity of fabrics is not justified.
- For generating higher waste than that prescribed under the Exim Policy, no duty liability can arise unless there was a specific provision giving rise to such liability against the EOU and, therefore, the duty demand with interest and imposition of penalty only because the appellant had generated wastage of 32185.05 square metres of fabrics is not authorised by law.
- Lastly, it was submitted that the Appellate Tribunal ought to have applied ad hoc norms fixed by the Development Commissioner, KSEZ in respect of appellant's unit viz. 15% of the total quantity of fabrics consumed.
6.1 It was, accordingly, urged that the duty demand confirmed by the Appellate Tribunal is required to be quashed and set aside and that the appeal deserves to be allowed by answering the questions in favour of the appellant.
7. Vehemently opposing the appeal, Mr. Dhaval Vyas, Learned Senior Standing Counsel for the respondent, submitted that the norm of 1.687 square metres fixed under the standard input-output norms takes into account the possible wastage in manufacturing over and above the quantity prescribed under the Import Policy. It was submitted that the appellant has not established that the trousers manufactured by it required more material than that fixed under the norms, and, therefore, the appellant has not proved to the satisfaction of the Assistant Commissioner of Customs and Central Excise that the imported goods have been used for the manufacture of articles for export.
7.1 Reference was made to Notification No. 13-Cus., dated 9-2-1981, to point out that Condition No. 6 thereof requires the importer to execute a bond in such form and for such sum and with such authority as may be prescribed by the Assistant Collector binding himself to fulfil the export obligation and conditions stipulated in the notification and to pay on demand an amount equal to the duty liability on the goods as are not proved to the satisfaction of the Assistant Collector of Customs to have been used in the manufacture of articles for export. It was submitted that the department, therefore, goes by the general input-output norms and that the wastage of 32185.05 square metres being in excess of the prescribed norms, the respondent has rightly considered the same to be liable to Customs duty.
7.2 It was further submitted that this is a classic case where the assessee is not entitled to any exemption and that the view taken by the Appellate Tribunal that neither on facts nor under the notification the assessee is entitled to the benefit thereof, is correct. It was submitted that the assessee having failed to establish the claim for exemption, the Appellate Tribunal was wholly justified in upholding the duty demand.
8. The facts as emerging from the record reveal that vide letter of intent dated 17-11992, the appellant has been granted permission for manufacture of ready-made garments to the extent stipulated thereunder. The conditions stipulated in the permission as are relevant for the present purpose are :
13. (1) The entire (100%) production shall be exported to General Current Area Countries/Hard Currency Area Countries.
14. (3) The value addition shall be a minimum of 45.78%. Condition No. 14 of Annexure stands modified to this extent.
9. The annexure to the letter of intent contains conditions attached thereto. The relevant conditions thereof are :
"5. Import of capital goods, raw materials and components for production under this scheme shall be exempt from customs duty.
14. A minimum of 20% value addition shall be necessary on all authorised production of the undertaking under this scheme. Domestically procured raw materials shall be treated as imports for computation of value added."
It may be noted that vide the letter of intent, this Condition No. 14 has been modified by stipulating that value addition shall be a minimum of 45.78%. Thus, the letter of intent read with the annexure thereto says that import of raw materials for production under the scheme shall be exempt from Customs duty and requires that the entire production shall be exported to the countries specified and the value addition shall be a minimum of 45.78%. In the present case, it is not the case of the respondent that the entire production has not been exported or that the condition of minimum value addition has not been satisfied.
10. For the purpose of disposal of the waste generated on account of manufacture of trousers from the fabric imported by it, the appellant addressed a letter dated 22-3-2001 to the Deputy Director for fixing the waste norms for manufacture of men's and children's wear. The assessee stated therein that trousers wastage is not covered under Appendix-41; therefore, fixation is required only for trousers wastage. By a communication dated 18-1-2001 of the Joint Development Commissioner, the petitioner was informed that pending fixation of wastage norms on regular basis on BOA, the Development Commissioner, KASEZ has fixed ad hoc wastage norms at 15% of the inputs. By a communication dated 30-3-2001, the Superintendent of Central Excise, Range-IX, Navsari informed the appellant that the Deputy Commissioner of Central Excise Division, Valsad has given necessary permission for destruction of wastage/tailoring cutting in respect of bond numbers specified therein, which pertained to the nine consignments in question.
11. The moot question that arises for consideration in the present case is whether based on the Standard Input-Output Norms (SION) fixed under the Exim Policy, the appellant can be called upon to pay customs duty in respect of the excess fabric consumed by it.
12. Chapter IX of the Import Export Policy and Procedures, 1992-1997 relates to Export Oriented Units and Units in EPZs. Paragraph 190 thereof provides "disposal of scrap/waste/remnants" and reads thus :-
"190. The Development Commissioner may, subject to guidelines laid down by the Board of Approvals in this behalf, permit sale in the DTA of scrap/waste/remnants arising out of the production process on payment of applicable duties and taxes. The percentage of such scrap/waste/remnants shall be fixed by the Board. In respect of items for which no such norms have been fixed by the Board, disposal of scrap/waste/remnants shall be allowed as per the norm notified under Duty
Exemption Scheme. A list of items for which percentage of scrap/waste/remnants has been fixed by the Board of Approval is indicated in Appendix XXXII."
Thus, paragraph 190 of Chapter IX of the Import Export Policy & Procedures, 1992-1997 lays down the norms for disposal of scrap/waste.
13. The Duty Exemption Scheme is contained in Chapter VII of the Import Export Policy and Procedures, 1992-1997. Paragraph 113 thereof relates to Special Schemes. Subclause (ii) thereof, which is relevant for the present purpose, provides that for readymade garments (other than the leather garments) the special scheme for value based licence provides for the import of fabrics and trimming/embellishments with Actual User condition. The details of the scheme are given in the Handbook of Procedures, 1992-97 (Vol. II).
14. Vide Notification No. 13-Cus., dated 9-2-1981, the Central Government, in exercise of powers under Section 25 of the Customs Act, has exempted goods specified in the table therein below when imported into India for the purpose of manufacture of articles for export out of India by 100% export oriented undertakings approved by the Board of Approval for 100% Export Oriented Undertakings from the whole of the duty of Customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 and the additional duty, if any, leviable thereon under Section 3 of that Act, subject to the conditions stipulated thereunder, which insofar as the same are relevant for the present purpose, read thus :-
"(1) the importer has been granted necessary licence for the import of the goods for the said purpose;
(2) the importer carries out the manufacturing operation in customs bond and subject to such other conditions as may be specified by the Assistant Collector of Customs in this behalf;
(3) the importer exports out of India hundred per cent. or such other percentage, as may be fixed by the said Board, of articles manufactured wholly or partly from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board;
(6) the importer executes a bond in such form and for such sum with such authority as may be prescribed by the Assistant Collector of Customs binding himself to fulfil the export obligations and conditions stipulated in this notification and to pay, on demand, an amount equal to the duty leviable on goods as are not proved to the satisfaction of the Assistant Collector of Customs to have been used in the manufacture of articles for export."
15. It is Condition No. 6 of the above notification, on which reliance has been placed on behalf of the respondents for the purpose of contending that the appellant has to prove to the satisfaction of the Assistant Collector of Customs that the goods have been used in the manufacture of articles and that goods in excess of the wastage norms cannot be said to have been used in the manufacture of articles for export, and hence, duty has rightly been levied on the excess imported goods.
16. In this case, there is no dispute that the duty free imported goods were used in the manufacture of final products for export and the waste was generated during the course of the manufacturing process. The export obligation against the goods imported as per the letter of intent has been fulfilled. It is also not in dispute that the waste was disposed of after due permission being obtained from the Deputy Commissioner, Central Excise. The department has nowhere alleged that the duty free imported goods were not consumed in the manufacturing of the finished goods or that such goods have been cleared in the guise of removal of waste. There is no allegation relating to removal of goods with intent to evade payment of duties. In the opinion of this Court, once it is not disputed that the goods were used in the manufacturing of finished goods and the export obligation has been duly fulfilled, the benefit of exemption provided under the notification in question cannot be denied to the appellant.
17. Insofar as the Notification No. 13-Cus., dated 9-2-1981 is concerned, the same does not lay down any criteria for waste nor does the same provide any conditions regarding extent of wastage allowed. On reading Notification No. 13-Cus., dated 9-2-1981 in its entirety, there is nothing therein to indicate that raw material imported and contained in such waste in excess of norms shall be rendered ineligible for the benefit of such notification. Notification No. 13-Cus. is primarily concerned with fulfilment of export obligation from the goods imported into India and the satisfaction required to be recorded by the Assistant Collector as contemplated by Condition (6) is not in the context of wastage generated, but in the context of manufacture of articles for export from the imported goods. Therefore, such satisfaction would be relatable to actual use of the goods for the purpose of manufacture to ensure that there is no diversion of goods or that imported raw material is not clandestinely removed. In the present case, as noticed earlier, it is not the case of the respondent that any part of the imported fabric has been diverted or clandestinely removed. The only allegation is that the waste generated is more than the standard input-output norm, which has nothing to do with the fulfilment of export obligation or compliance with the conditions of the exemption notification. Under the circumstances, the raw material being exempted under Notification No. 13/81-Cus., dated 9-2-1981, the demand of Customs duty on imported raw materials contained in wastage in excess of input-output norms is not justified.
18. It may be noted that Paragraph 190 of Chapter IX of the New Import Export Policy & Procedures, 1992-97 provides for disposal of waste and postulates that where no wastage norms are fixed by the Board of Approval, disposal of waste shall be allowed as per the norms notified under Duty Exemption Scheme. In the opinion of this Court, disposal of waste as provided under Paragraph 190 in respect of which standard input-output norms have to be followed; and use of imported raw material for fulfilment of export obligation under the exemption notification; are entirely different things. The controversy that has arisen in the present case is on account of wrongly applying norms for disposal of waste while considering whether the conditions stipulated under the exemption notification have been satisfied.
19. Moreover, though Paragraph 190 of the New Import Export Policy & Procedures, 1992-97 provides for disposal of scrap/waste/remnants and further provides that in case where the Board of Approval has not fixed norms, the norms notified under Duty Exemption Scheme shall be applied; insofar as disposal of waste is concerned, in
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the facts of the present case, at the request of the appellant, the Development Commissioner, KASEZ has fixed ad hoc wastage norms at 15% of the appellant's inputs and vide letter dated 30-3-2001, the Deputy Commissioner, Central Excise Division, Valsad, has given necessary permission for destruction of wastage/tailor cutting in respect of the nine consignments in question. Thus, despite the fact that excess consumption has been found as compared to the standard input-output norms, such excess waste has been permitted to be destroyed by the Deputy Commissioner, Central Excise & Customs, and hence, the respondent is not justified in demanding Customs duty forgone on the excess waste material worked out on the basis of the input-output norms. 20. This Court is of the view that the mere fact that the wastage is in excess of the inputoutput norms, without anything more, would not be sufficient for the Assistant Collector to arrive at the satisfaction that the imported fabric has not been used for the manufacture of the articles for export. Condition No. 6 of the Notification No. 13/Customs, dated 9-2-1981, cannot be read in a manner whereby despite the fact that the assessee is in a position to show that the entire material has been used for the purpose of manufacture of goods and there is no allegation with regard to diversion of goods, merely because the wastage norms are not satisfied, the Assistant Collector of Customs can record satisfaction to the effect that the goods have not been used for the manufacture of articles for export. The Appellate Tribunal was, therefore, not justified in confirming the Customs duty on imported raw materials contained in wastage in excess of input-output norms under the Export Import policy. 21. In the light of the above discussion, the appeal succeeds and is accordingly, allowed. The impugned order passed by the Appellate Tribunal is hereby quashed and set aside. Consequently, the duty confirmed by the Tribunal and the penalty imposed are also set aside. The questions stand answered accordingly, that is, in favour of the appellant and against the Revenue.