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2016 (6) TMI 393 - CESTAT MUMBAI

2016 (6) TMI 393 - CESTAT MUMBAI - TMI - Seeking issuance of certificate to the DGFT for re-credit of the DEPB amount which was debited at the time of import - Non-fulfillment of conditions 3(i) and (ii) of Board Circular No. 75/2000-Cus dated 11.09.2000 - goods imported and cleared by debiting the duty credit under DEPB licence - re-export of goods being found not suitable for their purposes within 6 months from the port of registration of the DEPB - Held that:- no importer will re-export the g .....

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And Mr. C. J. Mathew, Member (Technical) For the Appellant : Shri T. Vishwanathan, Advocate For the Respondent : Shri M.K. Mall, Assistant Commissioner (A.R.) ORDER Per: M.V. Ravindran: This appeal is directed against Order-in-Appeal No. 03/2004 (JNCH) dated 21.01.2004 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II. 2. The relevant facts that arises for consideration are appellant exported vide DEPB/Drawback Shipping Bill No. 510007 dated 24.08.2001, 226.127 MT of Polybutadine .....

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01/- and 0510024448 dated 06.09.2000 for 17,66,283/-. The appellants also paid CVD amounting to ₹ 19,88,738/- in cash. 2.1 In view of the re-export the appellants vide letter dated 08.10.2001 and 16.10.2001, requested for issue of the certificate to the DGFT for re-credit of the DEPB amount which was debited at the time of import. Further, with respect to the terms of Board s Circular No. 75/2000-Cus dated 11.09.2000 and certain other queries and discrepancies being observed the appellants .....

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ssed provisionally due to the samples being forwarded for testing which later on confirmed the identity of the goods. Furthermore, being an ISO certified company they could not accept deviation of their standard and hence had been compelled to reject the material which the seller had agreed to accept. They submitted documentary evidence such as correspondence with the supplier in this regard. 2.2 The Assistant Commissioner of Customs, DEPB Section, Jawaharlal Customs House, Sheva (hereinafter re .....

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at the time of imports of goods into India, proved that (i) re-export shall take place form the same port as the port of import, (ii) the goods are re-exported within six months from the date of import, (iii) the Asstt./Dy. Commissioner of Customs is satisfied as regards the identity of the goods, and (iv) the goods have not been used after import. 2.3 While examining appellants claim in terms of the said circular the lower authority observed that the import took place in Mumbai whereas shippin .....

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the claim. 3. Aggrieved by such an order an appeal was preferred before the first appellate authority. The first appellate authority after following due process of law rejected the contentions raised by the appellant and upheld the order of the adjudicating authority of rejecting re-credit of the DEPB licence. 4. Learned Counsel appearing on behalf of the appellant submits that there is no dispute as to the fact that imported goods were of unacceptable quality and were re-exported as per Sectio .....

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that the issue is now squarely covered by the judgment of Hon'ble Supreme Court in the case of Rochiram & Sons Vs. Union of India 2008 (226) ELT 20 (S.C.). He would also submit that this Tribunal in the case of Cipla Ltd. Vs. Commissioner of Customs (Export), ACC, Mumbai-III 2015 (324) ELT 616 (Tri.- Mumbai) in an identical situation held in favour of the assessee. 4. Learned Departmental Representative reiterates the findings of the lower authorities. 5. On consideration of the submissi .....

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-export the goods as unsuitable if it is not so, hence any duty discharged on such goods re-exported needs to returned to an importer. We agree with the learned Counsel that issue is covered by the judgment of the Hon'ble Supreme Court in the case of Rochiram & Sons (supra). We respectfully reproduce the relevant paragraphs. 9. It is a cardinal principle of law, which has been settled by a Bench of seven Judges of this Court in the case of Mafatlal Industries Ltd. v. Union of India, 1997 .....

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