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2022 (11) TMI 1159 - AT - CustomsFinalization of provisional assessment - Re-export of goods - non-declaration of packing materials for components/ parts of wind mill/ SOC containers with a view to evade customs duty - Denial of benefit of Exemption Notification No. 104/94-Cus. dated 16.03.1994 - HELD THAT:- It is seen from the language of the Notification that it pertains to exemption to durable containers from payment of customs duty when imported into India if importer execute a bond and re-export of containers is done within the prescribed period or extended period - once the imported goods have been allowed export by the department, demand of custom duty denying benefit of notification No. 104/94 on export goods is not correct in spite of the fact that they have re-exported after the stipulated period of 6 months. Therefore where the goods are already re-exported benefits of said Notification should be granted. However, the facts of export of the very same goods, which were imported by the appellant have to be established and identity of the imported and re-exported goods is required to be examined by the lower authorities, therefore matter needs to be reconsidered, we set aside the impugned order and remand the matter to the assessing authority for examining the appellant’s claim in this regards. The assessments are provisional and the same have to be finalized in accordance with the provisions of the Customs Act and there can be no demand of duty without finalization of the assessments as held in Hon’ble Gujarat High Court’s judgment in the case of ESSAR STEEL LTD. VERSUS UNION OF INDIA [2001 (2) TMI 149 - HIGH COURT OF GUJARAT AT AHMEDABAD]. Where there is incompatibility between departmental proceedings to enforce contract and parallel proceedings for finalization of provisional assessment under Section 18 of the Customs Act, the statutory action must prevail. This is to say that the proceedings for finalization of provisional assessment must go ahead. The assessee’s duty liability will depend upon the result of these proceedings. This appeal is allowed by way of remand directing the assessing authority to finalize the provisional assessment of the relevant Bills of Entry and then proceed to recover the duty of customs, if found due.
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