TMI Blog2019 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% duty drawback of the duty paid by them. The Hon ble Bombay High Court in case of CIPLA LIMITED VERSUS UNION OF INDIA [ 1995 (6) TMI 23 - HIGH COURT OF JUDICATURE AT BOMBAY] has allowed the assessee to re-export the goods on payment of differential duty of 2% after adjusting the drawback of 98% of duty admissible to them in terms of Section 74 of the Customs Act, 1962. The impugned order is not sustainable and the appellants are allowed to re-export the impugned imported goods on payment of 2% differential duty, which shall be adjusted against the pre-deposit of 7.5% which was made by them as mandatory pre-deposit while filing the appeal before the Tribunal against the OIO dated 23.11.2016 - Appeal allowed - decided in favor of appellant. - Customs (ors) Misc. Application No. 10135 of 2019 in Customs Appeal No. 10329 of 2019 - A/10827/2019 - Dated:- 9-5-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Sh. Vishal Agarwal Ms. Dimple Gohil, Advocate for the Appellant Sh. Sameer Chitkara, Authorized Representative for the Respondent ORDER PER: RAMESH NAIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request for ex-export of the Rig and spare parts, as made by the appellant, the same shall be considered. The appellant filed appeal against the order of the CESTAT which is pending before the Hon ble Apex Court. 3. The appellant thereafter made application dated 28.8.2018 before the Commissioner of Customs (Preventive) seeking permission to re-export the impugned goods on payment of redemption fine and penalty. They also requested for parking of Rigs to nearby dock for repair and maintenance outside India as the rig was parked at same place for last four years and some repairing work would be required on its spud cans. The Appellant thereafter vide challan dated 26.9.2018 paid redemption fine and penalty and also book custody of the impugned imported goods The Commissioner of Customs (Preventive) vide impugned order rejected the appellant s request for re-export of the goods on the ground that the duty on the imported goods along with interest has not been paid. Aggrieved, the Appellant are in appeal before us. 4. Heard both the sides and perused the records. We find that the appellant has already made payment of redemption fine and penalty and is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions mentioned in the bonds should be complied with and since end use certificate has not been produced, respondent No. 3 directed petitioners to pay ₹ 22,99,044/-. We are in agreement with the contention advanced on behalf of the petitioners that in the present case the view taken by respondent No. 3 operates harshly on the petitioners. If the findings of respondent No. 3 as contained in the impugned order dated August 14, 1986 are to be accepted, then one fails to understand on what basis the Customs permitted petitioners to re-export the goods in 1984. Further, petitioners have shown their bona fides by agreeing to pay differential duty at the rate of 2% because under Section 74 of the Customs Act, petitioners were entitled to re-export the goods as a matter of right under the cover of duty drawback shipping bills. Under Section 74, petitioners were entitled to take back duty to the extent of 98%. Petitioners have deposited the differential duty with the Customs at the rate of 2% under the interim order passed by this Court at the time of admission. In fact they have deposited ₹ 66,000/- whereas according to the petitioners 2% of ₹ 22,99,044/- comes to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were rightly held to be liable for confiscation, in the absence of specific import licence. We do not find any serious challenge in this appeal, against the confiscation either. Where the goods are indisputably liable for confiscation under Section 111 of the Customs Act, a penalty on the importer under Section 112 cannot be resisted. In this appeal, the grievance seems to be against the quanta of redemption fine and penalty. However, the relief mainly prayed for by the appellant is for permission to re-export the goods without imposition of fine and penalty. In support of the prayer for permission for re-export of the goods, ld. Counsel has relied on two Final Orders of this Bench. In the case of M.V. Marketing and Supplies considered in Final Order No. 861/2004, dated 8-10-2004, [ 2004 (178) E.L.T. 1034 (T)] the importer had requested for re-export of the goods viz. assorted readymade garments which had been imported by them by resorting to mis-declaration of quantity, value etc. In that case, the supplier of the goods had also agreed for reshipment of the goods. But the importer s prayer for permission to re-export the goods was turned down by the Commissioner on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in a position to clear the goods and has no option other than seeking permission for re-export to the foreign supplier who is willing to take back the goods. Following the above precedent, we are inclined to allow this request for re-export in the facts and circumstances of this case. Accordingly, it is ordered that the appellant be allowed to re-export the goods without payment of duty, but on payment of redemption fine of Rupees Twenty-five thousands and penalty of Rs. Five thousands. The impugned order will stand modified accordingly. Going by the facts of the present case and settled legal position as cited above, we are of the view that the Appellant is eligible for re-export of impugned goods on payment of 2% differential duty as above. 6. The Ld. Counsel for the appellant has also pleaded that at the time of filing of appeal against the order dated 23.11.2016 under which duty payment against the said imports were confirmed against the appellant, they had deposited an amount of 7.5% of the total duty as mandatory pre-deposit for filing the appeal before this tribunal. since now the said appeal has been disposed of the said pre-deposit is lyi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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