- (1.) Heard Sri Ramesh Chandra Shukla, learned Counsel for the appellant and Sri Pankaj Bhatia, learned Counsel for the respondents. This appeal under Section 130A of the Customs Act, 1962 has been filed against the judgment and order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 27-9-2011 in Excise Appeal No. C/436/2001 : [2012 (275) E.L.T. 449 (Tri.-Del.)].
(2.) Brief facts giving rise to the present appeal are that:-- "M/s. J.S. Gupta & Sons village Jivai, Delhi Road, District J.P. Nagar (hereinafter referred as M/s. JSG) a 100% EOU was granted by the permission of Assistant Development Commissioner, NEPZ, Noida vide order dated 15-12-2000 and subsequently by an amended order dated 12-12-2003, Customs License No. EOU/17/2001 w.e.f. 18-1-2001. The EOU scheme governed by the Export & Import (EXIM) Policy provides for duty free imported/indigenous procurement of raw materials, capital goods etc. for the manufacture of export. M/s. JSG to manufacture (1) Metal wares, glass wares, wooden wares, (2) Decorative clocks, Lamps sheds, Upholstery, (3) Corrugated boxes (captive consumption) and (4) Sculptures & statuary in stone, cement or other material subject to observance with certain conditions. The relevant conditions are as follows:-- (a) The unit shall export its entire production excluding rejects and sales in the DTA as per provisions of Exim Policy for a period of five years. (b) The unit would be under obligation to achieve the minimum stipulated level of NEPF as prescribed in Appx-1 of the Exim Policy. (c) The unit shall be Customs bonded and execute a general bond in form B-17 (with surety/security) binding themselves, inter alia-- (i) to observe all the provisions of Customs Act, 1962, Central Excise Act, 1944 and the rules regulations made thereunder; (ii) pay on demand all duties and rent and charges claimable on account of the said goods under Customs Act, Central Excise Act and Rules/Regulations made thereunder; (iii) to observe and comply with all the provisions of the manufacture and other operations in a Warehouse Regulation, 1966, Warehoused Goods (Removal) Regulation, 1964; (iv) to maintain detailed accounts of all imported and indigenous goods used in the manufacturing processes and in operation in proper form including of those remaining stocks and those sent outside."
(3.) There was also pre-condition that the unit shall comply with such other terms and conditions as imposed by the jurisdictional Customs and Central Excise authorities and the substantial activity of manufacture shall be carried out within the bonded premises in terms of C.B.E. & C. Circular No. 65/2002-Cus. dated 7-10-2002. The relevant provisions of said circular are as follows:-- "(i) The EOU shall be required to submit an application to jurisdictional Assistant/Deputy Commissioner of Customs/Central Excise furnishing information such as the name and address of the job worker, Central Excise registration No. of the job worker, (if registered with Central Excise), processing capacity of the job worker, the details of processes to be carried out by the job worker, justification for processing of the goods outside the bonded premises, value addition to be achieved by the job worker etc. (ii) It should be ensured that the substantial activity of manufacture is carried out within the bonded premises. (iii) It should be possible to establish the identity of finished products received after job work with the raw materials/components/partially processed goods so that there is no substitution/diversion of duty free goods in the DTA. (iv) The unit sending out goods for job work in DTA shall be required to give an intimation to the jurisdictional officer and a sample of the goods being sent out for job work shall be drawn and retained in the range office. On receipt of the goods after job work, the bond officer shall establish the identity of the goods so returned with reference to the sample retained by him at the time of removal. (v) The unit sending out imported or domestically procured raw material/components etc. as it is, i.e. without being subjected to any processing in the unit for job work in the DTA, shall be required to furnish 100% Bank guarantee to cover the duty foregone on such duty free materials being taken out.";