|
Third party exports under Duty Exemption Scheme and EPCG Scheme
Circular No. 120 dated 23rd
November 1995
After
introduction of para 41(II) and para 59 (A) in the EXIM Policy (92-97) with
effect from 30th March, 1994, under which exports by Advance Licence holders
through third party were allowed, doubts were expressed by some of the
Commissioners of Customs whether and how the export through a third party by an
Advance Licence holder under DEEC Scheme or EPCG holder could be counted for the
purpose of discharge of export obligation of the licence holder. A view had been
expressed that the definition of exporter under section 2(20) and the of
importer under section 2(26) of the Customs Act, 1962 require that there can be
only one importer/ one exporter at a time for the goods exported or imported, as
the case may be. The matter was discussed by the Board and the issue was also
referred to the Law Ministry for opinion.
2. The
Law Ministry have now clarified that Section 13 of the General Clauses Act, 1897
provides that unless there is any thing repugnant in the subject, words used in
singular shall include the plural and vice-versa.
3. Accordingly
the terms 'Exporter' and 'Importer' can be said to cover one or more than one
exporter/ importer of the goods within the meaning of section 2(20) and section
2(26) of the Customs Act, 1962. In view of Ministry of Law's opinion, it has
been decided that there is no object on to allowing third party exports under
the Customs Act.
4. In
this regard, attention is invited to Ministry's Circular No. 23/94 dated 6-10-94
issued from F.No. 603/156/94-DBK (Pt) under which it was clarified that third
country import of capital goods viz, by the EPCG licence holder through a
leasing finance company could be allowed.
5. Accordingly,
exports made through a third Party (export order holder) can be counted towards
discharge of export obligation by the EPCG licence holder or to the Advance
Licence holder as the case may be subject to the conditions,
(a) There is a contractual
agreement between the EPCG licence holder/ advance licence holder and the third party
(export order holder) in respect of export goods sought to be exported.
(b) Shipping
Bill and all other export documents should prominently indicate that it is third
party exports.
(c)
Shipping Bill shall be filed after jointly being signed by the EPCG
licence holder/ Advance Licence holder as well as export order
holder.
(d)
Both the licence holder as well as the export order holder will be
required to make a declaration on the shipping bill that in a
case of any default/ fraud, they will be jointly and severally liable for action
under the Customs Act, 1962 or any other act for the time being in force
at the time of making the exports.
6. All past cases of
third party exports pending logging of DEEC books must be finalised where the
manufacture- exporter holding an Advance licence can prove to the satisfaction
of Asst. Commissioner, Customs that the exports were made through third party
even if such exports do not strictly fulfil all the above mentioned conditions.
In other words, where such proof can be furnished in the form or other document,
the same may be accepted.
7. You
are requested to issue a suitable Public Notice for information of trade and
Standing Order for the guidance of the staff. Copies of the same may be
forwarded to Commissioner (DBK) and Director General of Inspection and Audit (C
& CE.)
|