JUDGMENT

R.C. Lahoti, J.-The appellant is a tea company. In the year 1982 in imprted two decanter machines from Germany. The customs duty, additional duty and the other duties leviable thereon were duly paid. The machines were instaled at the tea factory of the appellant situated at Munnar (kerala). In the year 1992 some parts of the machine requiring such repairs as could not be carried out in India, were sent to Germany after obtaining previous permission of the Government of India. The parts were repaired and thereafter re-imported in July, 1993. The appellant claimed exemption from payment of customs duty under Notification No. 13/81 which was denied by the Assistant Collector of Customs. An appeal preferred by the appellant before the Commissioner of Customs (Appeals) was allowed. The Revenue preferred a further appeal before the CEGAT which has been allowed and the order of the Assistant Collector of Customs restored. Cross appeal preferred by the appellant has been dismissed. Aggrieved by the order of Tribunal, the appellant has filed these appeals under Section 130 E of the Customs act, 1962. The only question arising for decision is whether the appellant is entitled to benefit of Notification No. 13/81 read with Export Import Policy, 1992-97 (hereinafter policy , for short).

2. Export and Import Policy 1992-97 announced certain benefits and privileges to 100% export oriented units (EOUs). Vide order dated 9th June, 1992 the Government of India declared the appellant a unit entitled to facilities and privileges admissible under the 100% export oriented scheme by permitting the conversion of the appellant from existing domestic tariff area (DTA) into 100% EOU at Munnar in the State of Kerala for the manufacture of instant tea powder and aquesous tea aroma (by-product) upto the specified capacity. This decision of the Government of India entitled the appellant to import additional capital goods worth Rs. 300 lacs CIF for the project as per the list enclosed which included decanters, two in number. it was also specified that the import of capital goods, raw materials and components for production under this scheme shall be exempt from customs duty. Availing the benefit of EOU sanction latter the appellant had imported capital goods (other than those in issue) worth Rs. 225 lacs. A balance of Rs. 75 lacs entitlement was still available to the appellant. According to the appellant the cost of repairs incurred inGermany was Rs. 38,06,017/- which was declared by it to be the value of the goods for the purpose of re-importation in terms of Notification No. 13/81.

3. Notification No. 13/81 has been issued in exercise of powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962. The Central Government has exempted capital goods, inter alia, when imported into India for the purpose of manufacture of articles for export out of India by 100% EOUs provided that the importer has been granted necessary licence for the import of the goods for the said purpose. This is one of the several conditions that is required to be satisfied.

4. The Import Export Policy 1992-97, vide para 24, provides that second hand capital goods and any other second had goods shall not be imported unless permitted by this policy or in accordance with a licence issued in this behalf. Para 25 catalogues (a) to (1) sectors of the industry for which second hand capital goods may be imported without a licence, Admittedly, the appellant does not fall in any of such categories. Para 26 provides that any other second hand a capital goods (i.e. other than those specified in para 25) may be imported in accordance with a licence issued in that behalf. Para 31 permits imported capital goods or parts thereof being sent abroad for repairs and re-imported but subject to certain specified conditions. Para 159 permits conversion of an existing domestic tariff area (DTA) unit into an EOU. It is specifically provided - "no concession in duties and tax