9911796707
TMI Blog2017 (9) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Jamnagar. (ii) The appellant requested the Superintendent, Jamnagar to unload the grabs at shore for sending it in due course to the incoming other vessels for cargo handling which was permitted by the Superintendent. (iii) The appellant filed Bond dated 29.04.2006 before Superintendent, Jamnagar as agent of the owner of the said grabs i.e. M/s Martrade Shipping + Transport Gmbh, Germany (also referred to as M/s Martrade), interalia, binding themselves for taking care, to bring the said grabs for the purpose mentioned and deliver it back on the vessels coming in due course. (iv) The appellant also further bound themselves to pay all the Customs Duties and penalties that may be imposed and if not paid, the same may be recovered from them under Section 142 of the Customs Act. (v) The appellant filed letters dated 06.09.2006 and 07.09.2006 requesting for permission from Superintendent, Jamnagar to send the grabs to Porbandar Port and place on board of the vessel M. V. Antarios Breeze, which was to arrive on 07.09.2006. The said request was made on directions of the owner i.e. M/s. martrade. (vi) M/s Keyur Shipping, Porbandar (also referred to as M/s Keyur) vide their le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.V. Slovenjia was not expected to visit Bedi or any nearby ports in near future, another vessel of M/s Martrade M. V. Antario's Breeze was scheduled to come to Porbandar on 07.09.2006 and therefore they had vide their letter dated 09.06.2006 applied to Superintendent, Jamnagar to permit them to send the grabs, being Ship Stores to Porbandar to place them on board of vessel, M.V. Antarios Breeze. (e) It was further stated in the letter dated 21.11.2006 that upon being permitted by the Superintendent, Porbandar they had been placed on Board and were delivered to Master of the Vessel and hence they were under impression that their role of husbanding agent was over and will get the bond released; that however on 09.09.2006, Superintendent, Porbandar ordered for unloading of the same from the vessel and detained them vide his detention memo dated 09.09.2006. (f) Subsequently, upon furnishing the authorization dated 28.11.2006 from M/s Martrade, the said two imported grabs valued at Rs. 67,35,366/- were provisionally released by the Commissioner of Customs (Preventive), Jamnagar upon payment of duty of Rs. 24,51,459/- alongwith Bond for full value of Rs. 67,35,366/- accompanied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airs and return subject to filing of declaration, re-exporting the goods within six months and filing of bond as envisaged thereunder. (l) That by repairing the said imported grabs without fulfilling the conditions set forth in Notification No.153/94-Cus dated 13.07.1994, the appellant, M/s Arcadia had violated the conditions and therefore the duty exemption was not available and hence the said imported grabs were liable for duty. (m) M/s arcadia had wilfully misstated the facts of repairing to the department officers at Jamnagar and Porbandar and thus had not also not filed Bill of Entry and Shipping Bills under Section 46 and Section 50 of the Act. (n) That the said non duty paid grabs were used for loading of the cargo i.e. indigenous use with an intention to evade the duty and they were to be loaded onto the vessel without following any procedure for export as envisaged under Section 50,51,39,40,41 & 42. (o) That the said grabs valued at Rs. 67,36,366/- unloaded from vessel M.V. Slovenjia were imported without filing Bills of Entry and without payment of duty of Rs. 24,51,459/- thereon, thus had violated the provisions of Section 47 of the Customs Act, and had rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. (d) Penalty under Section 112, 114 and/or 114A of the Act should not be imposed. (x) The SCN was adjudicated vide the impugned order in original dated 15.1.2008 whereunder interalia the demand of customs duty alongwith interest and imposition of equivalent penalty etc. as mentioned in Para 1 above was confirmed against the appellant. 3. With the above background of facts, both sides have been heard. 4. The main defence of the appellant is that:- (i) They have fulfilled all conditions of Notification No. 153/94-Cus dated 13.07.1994 given in column No. 3 against Sr. No. 1 of the table annexed to the Notification except that they did not expressly declare at the time of import that the said goods were for "Repair and Return". (ii) Maybe another fault of the appellant is that no bill of entry at the time of import of subject goods and no shipping bill at the time of the loading to the foreign going vessels was done. (iii) A Bond was executed by the appellant which was accepted by the Customs Authorites, which was a condition of above Notification No.153/94-Cus dated 13.07.1994. (iv) The conditions of the Notification were substantially complied with inasmuch as a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 for offloading such grabs from M.V. Slovenjia, and therefore there was no illegal or clandestine import of the goods. The said Notification does not stipulate that exemption was admissible only if a bill of Entry was filed for goods imported for repairs and return. (x) If the appellant was not allowed to execute a Bond and bring the grabs ashore without payment of duty, then 98% of any duty paid on importation was liable to be repaid to the appellant as Drawback under Section 74 of the Act. There being no dispute about the identity of the grabs i.e. the same grabs having been re-exported, almost entire duty payable was refundable; but this submission and request of the appellant to drop demand of duty to the extent of 98%, if exemption was denied, has not been addressed to by the Commissioner of Customs during adjudication. (xi) In view of the scheme of Section 74 of the Act, the appellant could not have any intention to evade payment of duty nor for any mis-statement. The transaction was revenue neutral (except to the extent of 2% of duty), not requiring any proceedings. In support reliance is placed on following decisions:- (a) CCE, Pune Vs. Coca-Cola India Pvt ltd. Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismiss the appeals filed by the revenue as devoid of merit. 6.2. Hon'ble Gujarat High Court in IFFCO's case (supra) also has distinguished that in a Notification there could be certain conditions in the category of mandatory and some conditions could be in the category of directory condition. The Hon'ble Gujarat High Court in the said decision intealia observes as under:- 9. In this connection a reference deserves to be made to the ruling of the Supreme Court in the case of Union of India v. Wood Papers Ltd., reported in 1990 (47) E.L.T. 500. It deals with the question of interpretation of an exemption Notification. It has been held therein : "Literally exemption is freedom from liability, tax or duty. Fiscally it may assume varying shapes, specially in a growing economy. For instance tax holiday to new units, concessional rate of tax to goods or persons for limited period or with the specific objective etc. That is why its construction, unlike charging provision, has to be tested on different touchstone. In fact an exemption provision is like an exception and on normal principle of interpretation of statutes it is construed strictly either because of legislative intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the satisfaction of the proper officer is concerned, it is often beyond the control of the manufacturer. It may be that the amount is deposited in the Reserve Bank of India and the receipted challan is not received back within the stipulated time-limit and the sufficient proof cannot be furnished within the stipulated time-limit. It may be that the receipted challan is received within the time-limit and yet it gets destroyed before it is produced before the proper officer and its duplicate may not be received within the stipulated time-limit. A condition, the fulfilment of which depends partly on the person and partly on the outside agency, cannot be said to be a mandatory condition. It has to be treated as a directory condition and its substantial compliance would be sufficient to earn the benefit for which such condition is prescribed. We are therefore of the view that the first two conditions in the Notification at Annexure `A for the purpose of claiming the exemption thereunder are mandatory and the third condition regarding furnishing of the sufficient proof thereof to the satisfaction of the proper officer is directory. As aforesaid, the petitioner has complied with mand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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