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 Para 6.15, 6.18 of FTP and Notification 52/2003-Cus concerning EHTP provide for payment of duty on the clearance of unutilized materials. As regards the appellant's eligibility to clear goods at nil rate to the DTA unit by claiming exemption under sl.no.431 of Notification 12/2012-Cus, there is no dispute that a general exemption is provided to any manufacturer on parts and components and accessories for the manufacture of mobile handsets when imported into India subject to condition 5 which is that the importer follows the procedure set out in the IGCR,1996. Thus, the exemption under this notification is available for goods imported in accordance the procedure laid down under IGCR,1996 and it is not extended to the goods already imported under other schemes like EOU or EPCG etc. Rule 2 of IGCR,1996 clarifies at the outset that these rules are applicable to an importer who intends to avail the benefit of an end use exemption notification from which it is explicit that these rules are not applicable to the manufacturer who is not an importer. Other Rules from rule 3 to Rule 5 require the importer manufacturer to obtain a registration, to provide details of estimated quantity, value of goods to be imported and port of import. From these rules and the text of the notification 12/2012- Cus it is crystal clear that the import of parts and components as specified at sl. No. 431 must be from Customs Appeal No.70524 of 2017 outside India after having registration and approval from the jurisdictional ACCE/DCCE and procurement of any such materials from domestic source, including EHTP, is not contemplated in the said notification and the IGCR No word or any other hint is used in any of these rules to suggest that exemption is allowed in respect of goods procured from EHTP also. The definition of the word "import" as given in Section 2(23) of the customs Act also demolishes their hypothesis that the goods imported by the appellant earlier as EHTP are also import as envisaged under the said notification. The Tribunal has also held in the case of Vikram Ispat Vs. CCE, Mumbai Il, 2000(120) ELT800(Tri LB), which is followed in several other Tribunal decisions, that the clearance of the goods by 100% EOU is not import in terms of section 2(23) of the customs act. Thus, the appellant cannot belie the basic truth that the goods were imported by them under the 100% EOU/EHTP scheme and not under Notification 12/2012-Cus read with IGCR. Above all, the goods cleared by the EHTP were never imported by the DTA unit after it obtained registration and approval to import part and components under IGCR so as to be covered under notification 12/2012-Cus. Consequently, the case of the DTA is not covered in the notification 12/2012-Cus at all and accordingly the appellant's claim to their eligibility to clear goods to DTA without payment of applicable customs duty is also not maintainable. Considering the text of the exemption notifications, IGCR, FTP paras, Board's various circulars and decisions of the court in Paras 54.8 to 54.11 of the 0I0, the commissioner has correctly held that the benefit of exemption provided in notification 12/2012-Cus could not be availed by the appellant. He has clearly recorded as to how the three circulars as mentioned in Para 54.9 are not applicable and when duty is demanded at the effective rate of duty in the present case there is no disobedience of the apex court's decision in the case of Customs Appeal No.70524 of 2017 Goodyear India Itd. Vs. CC, Mumbai, 1997(90)ELT 7 (SC) and Tribunal decision in the case of Trans Freight Containers Ltd.Vs. CCE, 2012 (277) ELT 168 (Tri) wherein it is held that the duty is payable by considering the benefit of exemption notification. Similarly, the decisions of the Supreme Court in the cases of Kesoram Rayon Vs. CC, Calcuttaa,1996(86) ELT 464 (SC) and M/S SBEC Sugar Ltd. Vs. UOI, 2011(264) ELT492 (SC) are also held to be of no help because the department has demanded duty at the rate prevalent at the time of removal o0f goods from the bonded warehouse. The appellant's another defense that assuming that a procedural requirement is not fulfilled, it cannot be a reason to deny the benefit is already discussed in detail in 54.12 of the 010 and their reliance on the decision in the case of Udai Shankar Triyar Vs.Rani Kalewar Prasad Singh, 2005 AIR SCW 5851 is not relevant in the present case as the case does not involve just procedural defects and instead noncompliance of the conditions of the exemption notification claimed by them are of very substantive nature. The decision rather supports the department's case wherein it is held that non-compliance with any requirement should entail an automatic dismissal if the relevant statute or rule so mandates. Further their above plea is not supported by the Supreme Court's decisions in the cases of Eagle Flask Industries Ltd. Vs. CCE,Pune, 2004 (171)ELT 296(SC) and CCE Vs. Harichand Shri Gopal, 2010 (260) ELT3 (SC) wherein it is held that the conditions of the exemption notification is to be strictly complied with to get the benefit and the object and the purpose of the procedure cannot be overlooked.

 The plea that non-claiming of notification at the time of importation will not bar the appellant to claim it subsequently is also not pertinent in the present proceeding as, irrespective of whether they can avail it subsequently or not t, the fact cannot be denied that the goods cleared by the EHTP had been imported duty free under notification 52/2003-Cus and not by the DTA Unit under notification 12/2012-Cus by following IGCR procedure and this basic fact annot be altered even if their above submission is accepted. Consequently, the exemption to the DTA in respect of the goods not imported under notification 12/2012-Cus cannot be extended and Customs Appeal No.70524 of 2017 the decisions in the cases of Unicom Laboratories. CCE, Bombay, 2002 (7) SCC 145, Lily Foam Industries Vs. CCE, 1990 (46) ELT 462 Tri.), Bakeman's Home products Pvt. Ltd. Vs. CC, Bombay, 1997 (95) ELT 278 (Tri.) and Decora Ceramics Pvt. Ltd. Vs. CCE, Rajkot, 1998 (100) ELT 297 (Tri.) decided in different context are not having any bearing on the present case.

54.11 I find that the party has submitted that they have imported parts and components for manufacture of mobile handsets under SI. No. 431 of Notification No. 12/2012-Cus dated 17.3.2012. I find that Notification No. 12/2012-Cus dated 17.3.2012 provides conditional exemption, whereby under Condition No. 5 it has been specified that the importer has to follow the procedure set out in Customs (Import of Goods at Concessional Rate of duty for manufacture of Excisable goods) Rules, 1996 (here-in-after referred to as IGCR, 1996).

Customs Appeal No.70524 of 2017 Similarly, in the case of CCE Vs. Harichand Shri Gopal [2010 (260) ELT 3 (S.C.)] 5 Member Constitutional Bench of the Supreme Court held that object and purpose of the procedure should not be overlooked. Procedures are put in place to see that the goods be not diverted or utilized for some other purpose, in the guise of the exemption notification. The Supreme court also rejected the plea of "substantial compliance" and "intended use".

I find that Notification No. 52/2003-Cus dated 31.3.2003 is a conditional exemption notification. At Para 4(b) of the same, it has been stipulated that raw material can be de- bonded upon payment of duty on the value at the time of import and the rates in force on the date of payment of such duty. Further, as discussed at para 54.11 above, the said DTA unit is ineligible for exemption under Notification No. 12/2012 dated 17.3.2012 in respect of the clearances/de-bonding of raw material from their EHTP unit. Therefore, as per the provisions of Notification No. 52/2003-Cus dated 31.3.2003 and following the ratio of above referred judicial pronouncements, the party should have de-bonded the raw material upon payment of duty, i.e. on the tariff rates in force on the date of payment of such duty 54.13 I find that the party has relied on the decision passed in the case of Kesoram Rayon vsS. CC, Calcutta [1996 (86) E.L.T. 464 (S.C.)], wherein it was held that the duty would be payable at the rate applicable on the date of the deemed removal from the warehouse. Same view has taken in the case of M/s. SBEC Sugar Limited & Another vs. Union of India [2011 (264) E.L.T. 492 (S.C.). I find that the department is following the ratio of these judicial pronouncements, as duty has been demanded at the rate prevalent on the date of the removal of the goods from the warehouse Customs Appeal No.70524 of 2017 54.14 I find that the party has submitted that - "At the time of importation of the parts, components and accessories of mobile phones, in the capacity of an EHTP, the benefit of exemption was available in the nature of Notification No. 12/2012-Cus dated 17-03-2012 and Notification No. 52/2003-Cus dated 31-03-2003. Merely because they did not claim Notification No. 12/2012-Cus dated 17-03-2012 at the time of importation does not mean that it is not entitled to do so. In this regard, reliance is placed on the decisions in the cases, Unichem Laboratories Ltd. vs. Collector of Central Excise, Bombay [(2002) 7 SCC 145] and Share Medical Care vs. UOI [2007 (209) E.L.T. 321 (S.C.)], whereby it has been held that if the notification applies, the benefit there under must be extended.' The party has submitted that merely because it did not claim Notification No. 12/2012-Cus dated 17.3.2012 at the time of importation does not mean that they are not entitled to do so. I find that in respect of Bills of Entry, against which the said import has been made, assessment orders have become final. I find that while dismissing the petition filed by the petitioner, the Hon'ble High Court of Calcutta, in the case of Alom Extrusions Ltd. v. Dy. Commr., Central Excise [2010 (256) E.L.T. 379 (Cal.)], held that: