TMI Blog2006 (10) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods were rejected by the foreign buyer. Consequent to it, the rejected goods were re-imported to India. The appellants cleared the rejected goods weighing 112 kg. Gross weight (Net wt. 100 kg) vide BIE dated 20-12-2002 claiming exemption under Sl. No. 2 of the Table annexed to Notification 158/95-Cus., dated 14-11-1995. In terms of the above-mentioned Notification, the appellants were required to re-export the rejected goods after re-processing within six months. The case of the Revenue is that the appellant did not produce proof of re-export of the Herbal Extract within a period of six months. Hence, proceedings were initiated against the appellants. The original authority held that the 100 kgs. of Herbal Extract imported on 20-12-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of 75 kgs. of Herbal Extract in Shipping Bill No. 1215956, the description, consignee and buyers particulars were found to match with the original documents. In respect of the above goods which were identifiable, the Commissioner (Appeals) ought to have allowed the benefit of the said Notification to the extent of the said shipping bill atleast. (iv) The Commissioner's conclusion that because Cenvat credit was availed, the goods could not be said to be reprocessed is not correct. There is no legal bar to claim Cenvat credit in respect of inputs which were used in the repair or reprocessing of the goods. The question whether the appellant rightly availed Cenvat credit in this regard is not relevant for the purpose of Notification 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured in India and reimported for (a) reprocessing; or (b) refining; or (c) re-making; or (d) subject to any process similar to the processes referred to in clauses (a) to (c) above. 1. Such re-importation takes place within one year from the date of exportation. 2. Goods are re-exported within six months of the date of re-importation or such extended period not exceeding a further period of six months as the Commissioner of Customs may allow; 3. The Assistant Commissioner of Customs is satisfied as regards identity of the goods. 4. The importer executes a bond to the effect - (a) that such reprocessing, refining or remaking or similar processes shall be carried out in any factory under Central Excise control following the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs that such loss has occurred during such operations. [Notification No. 158/95-Cus., dated 14-11-1995] 6.1We find that the re-import in the present case has taken place within one year from the date of exportation. Thus, condition No. 1 is satisfied. 6.2As regards condition No. 2, there is no dispute that the goods have not been re-exported within six months from the date of re-importation. 6.3The main dispute is with regard to the third condition. As per the third condition, the Assistant Commissioner of Customs should be satisfied as regards the identity of the goods. The fact that initially 100 kg. was exported on 7-12-2002 is not in doubt. The re-import of the above-mentioned goods, consequent to rejection b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the difference in Consignee will not apply to the consignment of 75 kgs. When we take into account the totality of the circumstances, we find that the benefit of the Notification should be given atleast to the consignment of 75 kgs. Therefore, we hold that the duty corresponding to the quantity of 75 kgs. is liable to be set aside, as there is only a procedural lapse. There is no justification for confiscation and imposition of fine and penalty. Therefore, we hold that the appellant is liable for payment of duty only in respect of 25 kgs. of the goods for which the identity of the goods is not satisfactorily explained. We set aside the redemption fine, penalty and confiscation of the impugned goods. Thus, the appeal is partially allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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