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2024 (2) TMI 319 - CESTAT AHMEDABADExemption from payment of whole of Customs duty and whole of Additional duty leviable under the virtue of Notification No. 104/94-Customs dated 16.03.1994 - failure to follow the procedures as laid down in the said Notification - failure to re-export 39 containers within the period of six months prescribed in the said notification - not seeking extension of time limit for re-export from the proper officer - HELD THAT:- The appellant have availed benefit of Notification No. 104/94 which permits Duty Free Import of the container subjected to the condition that they are re-exported within six months. In the instance case, same could not be re-exported within six months purportedly due to some fire on the port and damage to other containers, out of 39 containers brought in at the port. Thus, there was clearly a breach of condition of exemption notification and in the absence of any remission or waiver of duty having been granted by the competent authorities and the same not having been sought by the party for considerable length of time. The valuation has not been done with full transparency and such valuation report has not been allowed to be commented upon by the appellants. The grievance thus appears genuine. While in principle, it is agreed that duty in absence of remission was payable, as import which is subject matter of levy can even take place when goods enter in territorial waters. And only in normal case, the collecting point is deferred till Bill of Entry is filed. However, if goods get destroyed on port, the remission provision comes into play, which in this case was not sought. The assessment of duty etc, however has to be done on proper valuation after following natural justice, therefore, it is held that containers though could be subjected to duty, but assessment has to be on proper valuation arrived as per provisions and by following of natural justice - Appeal is allowed by way of remand on this aspect. Penalty - HELD THAT:- Section 114(A) requires malicious intent cannot be sustained in the facts of this matter specifically considering the supervening fact of fire after imports. Same is therefore dispensed with. Appeal disposed off.
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