Per P.C. Jain

Briefly the facts of this case, as set out in the impugned order as follows:-

1.1 The appellants imported a consignment of 44,4409 M. Tons of Tin Plate Prime of thickness 0.19 mm vide Bill of Entry No. 1381/11 dt. 22.6.92 and claimed the goods under duty exemption scheme in terms of Notification No. 159/90-Cus.

1.2 The appellants produced 6 Advance Licences and DEEC Books, the thickness of the Tin plate for the manufacture of the resultant product specified, in 3 Advance Licences and DEEC Books is as under:-

1.3 The importers claimed 34.7438 Mts. of Tinplate having CIF value Rs. 7,73,527/- against Advance Licences and DEEC Book listed from S. No. (1) to (3) above. Under all these Advance Licences and DEEC Books, the Export obligation has already been completed and the importers have imported the subject goods as replacement material in terms of Notfn. 159/90-Cus.

1.4 The lower appellate authority's findings are set out in paras 13 and 14 of the said order which are reproduced below:-

"The appellants have exported the goods, in which they have used Tin Plate with a thickness of 0.29 mm, 0.20 mm, 0.22 mm, 0.25, 0.18 mm and 0.24 mm (as per part E of the three of the six Duty Exemption Entitlement Certificates Order. Now, the appellants have imported the goods as replenishment. In terms of Notification No. 159/90-Cus, goods imported for the purpose of replenishment of materials should have identical specifications as those actually used in the manufacture of resultant products exported, in case these goods are to be exempted under the notification. So, the Appellants could have imported Tin Plate of the thickness shown in Part E of the relevant Duty Exemption Entitlement Certificates.

As against above the impugned goods have a thickness of 0.19. Goods with such thickness have not been used in the resultant product and hence are not covered as replenishment material under Notification 159/90-Cus. dated 30.3.90. There is no tolerance provided under the notification. The goods imported should be identical, so far as specifications are concerned, as those actually used in the manufacture of the resultant product."

2. Shri Kamal Parasrampuria, learned advocate for the appellants has essentially reiterated the submissions made by him before the lower appellate authority.

3. We have also heard the learned SDR, Shri B.K. Singh who has submitted that an identical issue has been decided by the Tribunal recently in the case of Surekha Coated Tubes & Sheets Ltd. Vs. Collector of Customs, Bombay [Final Order No. C/139/93-B2] and it has been held therein that the goods imported as replenishment material against raw materials components used in the manufacture of goods which have already been exported must be of the identical specifications. However, imported goods are not according to the identical specifications, they are not covered by the advance licence as well as by the exemption notification. In this connection, we reproduce below the following findings of the Tribunal in the case of Surekha Coated Tubes & Sheets as emphasised by the learned SDR:-

"On a plain reading of para 24 (1) (as amended) it follows that replenishment can be only by way of import of materials of the same characteristics and technical specifications which are used in export supplies already made. Under these circumstances we are of the view that the imported materials which admittedly are different in terms of technical specifications and other characteristics from the material used by the appellants in the export product have to be held as not covered by Advance Licence held by them."

We also reproduce below para 26 of the said order from Surekha Coated Tubes & Sheets:-

"In view of the above discussion it has to be held