HMT (INTERNATIONAL) LTD Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) VIDE Misc. Order No. 698/99, dated 27 -7 -1999, this appeal was restored and the appellants stay application was listed for consideration today.

(2.) HEARD Shri Rajesh Chandra Kumar, ld. Advocate for appellants and Shri S. Kannan, ld. JDR for respondents.

(3.) LD . Advocate submits that the dispute concerns allegation regarding non -availability of duty exemption of advance licences under Customs Notification No. 203/92, dated 19 -5 -1992 on the ground that Modvat credit had also been taken and availed of on the goods imported. He submits that the said licences were transferred to M/s. Farook Exports after obtaining permission of the DGFT as the present appellants had fulfilled the entire export obligations thereunder even without importing any goods on the said licences. Ld. Advocate submits that since as the transfer endorsement was available in terms of Exim policy, therefore the DGFT had permitted the transferrability of the said licences. Hence, there is no dispute on the fact that appellants themselves have never imported any goods against the said Value Based Advance Licence (VABAL) . This has been submitted before the ld. Original authority and it was submitted to him that since the present appellants had not imported any goods, the question of availing Modvat credit on any such imported goods does not arise at all as far as they are concerned. Similarly, the present appellants had not claimed any exemption of duty since they had not imported any goods . If any goods were imported by the purchaser of the said Advance Licences i.e. M/s. Farook Exports, that was a matter between the department and that party and the appellants were not concerned under law with those transactions. Ld. Advocate submits that this submission has not been considered in the order -in -original impugned. Instead, the appellants were asked to obtain a certificate from the jurisdictional Asstt. Commissioner of Central Excise to the effect that exports, which had been made by the appellants and because of which the DGFT had transferred the VABAL licences, had not been made by using inputs on which Modvat credit had been availed of. He submits that there was some delay in procuring this certificate. Meanwhile, the ld. Original authority had proceeded to pass the order -in -original impugned. He submits that the said certificate is now available and which is at page 12 of the paper book. A perusal of the said certificate would show that supporting manufacturers who had manufactured the product which was ultimately exported by the present appellants were not even registered with the Central Excise department as their product (which was exported) was not excisable. Therefore, the question of having availed of any Modvat credit on the inputs contained in these export products does not arise. Ld. Advocate submits that in view of the said certificate now available on record, the order -in -original is a non -speaking order for the following reasons : -