Judgment:
1. The appeal is taken up for disposal after waiving deposit with consent of both sides.
2. J.K. Group of Industries, the appellant before us, was granted two advance licences, both of which it transferred to Forge & Forge Limited Baroda. The transferee imported goods, which wee cleared under bill of entry No. 10794 dated 12/12/1994. The importer claimed the benefit of notification 203/92 on the basis of the advance licences that were issued to the appellant and transferred to it. The goods were permitted to be cleared without payment of duty in terms of the notification.
Subsequently the department issued notice to the appellant. The notice alleged that modvat credit has been availed in the manufacture of the export goods and that benefit of the notification would not be available.
3. One of the contentions which the appellant advanced in reply to the notice was that it was not the importer of the goods, and therefore it was not liable to pay duty on the gods. the Commissioner did not accept this contention. He said, "According to the conditions of the notification No. 203/92 dated 19.5.1992, the licence had to export goods on which no input stage credit had been availed in order to be entitled to duty free imports against the said licence. In the instant case the primary condition of the notification itself not been fulfilled and therefore the liability to discharge the duty on the goods imported has to be on the noticee only". He therefore confirmed the demand for duty and imposed penalty on the appellant.
4. We have already noted that the bill of entry shows the goods to have been imported cleared by Forge & Forge Limited. that company was therefore the importer of the goods. Going by the definition of the term 'import' under Section 2(28) of the Act as "to bring into India from a place outside India," Forge & Forge Limited has rightly been held to be the importer and given the benefit of the notification with regard to the goods it imported. If there was any short levy or non-levy of duty on such goods imported by it, that duty which was not levied or short levied has to be recovered from it. The mere fact that the appellant was the licensee does not render it liable fro payment of duty. Its mere possession of the licences by itself does not made it an importer. It is the fact of import of the goods for clearance of which the licence granted to the appellant and transferred was claimed that has resulted in the duty liability. Therefore, if there was any non-levy or short levy of duty that levy should be from Forge & Forge Limited and not from the appellant. while leaving it open to the department to pursue the recovery, if its is due, from the importer, if it is so advised, we hold that the order of the Commissioner demanding duty from the appellant and imposing penalty on it, is illegal.