TMI Blog2023 (3) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is clear that the Flexi Tank Containers imported by the assessee is durable container. Consequently notification no. 104/94-Cus is available to such containers. Appeal allowed - decided in favor of appellant. - CUSTOMS Appeal No. 12033 of 2015- DB WITH CUSTOMS Appeal No. 12034 of 2015-DB - FINAL ORDER NO. A/10395-10396 / 2023 - Dated:- 2-3-2023 - MR. RAJU , MEMBER (TECHNICAL) AND MR. SOMESH ARORA, MEMBER (JUDICIAL) Shri T. Vishwanathan, Shri Manish Jain, Ms. Shruti Khanna, Advocates for the Appellant Shri Rajesh K Agarwal, Superintendent (Authorized Representative) for the Respondent ORDER These appeals have been filed by M/s. Goodrich Maritime Pvt Ltd., against demand of Custom Duty on Flexi containers imported by them by denying benefit of Notification No. 141/94- Cus dated 16.03.1994. Appeal has also been field by Venkatraman Thyagarajan, Managing Director of the appellant against imposition of penalty under Section 112 of the Customs Act, 1962. 2. Learned Counsel pointed out that three issues have been raised in the impugned proceedings and all three have been answered by the earlier decision of the Tribunal in case of identical produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for this purpose by the COA. 1.3. The test container shall be built according to ISO standards to meet ISO criteria and shall be a used container, with normal wear and tear and be rated at 30 tonnes gross for 20ft units and 32 tonnes gross for 40ft units, which represents containers in general service. 1.4. Any scheduled test shall be announced to the COA with at least 3 weeks lead-time. From the above test criteria, it can be seen that it is necessary that Flexi Tanks should have an ability to withstand the effects of the longitudinal impact. The test provision also requires following impact test to be conducted: a) Rail Impact Test b) Puncture resistance or impact strength c) Seal (weld) strength d) Tensile strength and elongation e) Tear Resistance f) Temperature tolerance g) Valve Leakage Testing The Tank Containers shall be according to ISO standard and shall be a used container of normal wear and tear and be rated at 30 tonnes gross for 20 ft units and 32 tonnes gross for 40ft units, which represents containers in general service. With the above specification of test and various impact tests, it is clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated use or capacity thereof is an inferring criterion and not the only one which could be resorted to in the above context. (Further repeated use is generally related or relatable to a product and purpose and may not be always advisable even if the article was otherwise durable)]. Therefore, in the case of the type of containers imported by the appellants, a test was required to be conducted before deciding whether such containers could be considered as durable or not. But no test report/technical literature or market report has been produced before us by either side. In the circumstances, we find that the material produced before us is insufficient to record a specific finding in this regard. b) CC vs Assam Company (India) Ltd. 1995 (78) ELT 168 4 . According to the Concise Oxford Dictionary (New Seventh Edition), container means 'vessel, box etc. designed to contain some particular things. The word 'durable has been defined as 'capable of lasting , remaining useful, for a period... . We agree with the learned Counsel for the respondents that the expression durable has been used in Notification No. 97/79 in the context of the utility of the containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompelled to do something which is practically not possible for them. The meaning of durable containers has been examined in the judgment relied upon by the ld. Consultant for appellant [Dimakusi Tea Co. Ltd. v. CC, Calcutta (supra)]. The Tribunal has analysed the meaning as under: First and foremost the words durable containers have to be considered. In view of the definitions which have been indicated as well as the common understanding, it is evident that these have to be interpreted and understood in the context in which they are used and with reference to the type of article or articles of which the container is made and for which they are used or intended to be used. With the advance of technology many materials have been discovered which are capable of providing strength, persistency, permanency and resistance to wear and tear etc. and they are available for making containers in addition to conventional materials. Not only that durability is a relative term and containers of different materials may be durable to a varying extent. [Repeated use or capacity thereof is an inferring criterion and not the only one which could be resorted to in the above context. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same and reject the appeal. The Tribunal has analyzed that the containers need not be capable of being reused to be durable containers. From the facts of the case as well as decisions cited supra, I hold that the rejection of benefit of exemption by the authorities below is unjustified. The impugned order denying the exemption under Notification No. 104/94 is set aside. The appeal is allowed with consequential reliefs, if any. We find that from all the above judgments the Tribunal has categorically held that merely because the container does not have repeated use, the nature of durability cannot be rejected. The only criterion to be seen is that whether the container in itself is durable in nature. As per the nature of container and use thereof as discussed above it is clear that the container imported by the assessee is durable. Moreover, even taking reference from the above judgments, we find that on comparison basis also, all the packing containers which were subject matter in the above cases, the Flexi Tank Container is much durable. Therefore, applying the ratio of the judgments in the above cases, in our view, it is clear that the Flexi Tank Containers imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in the second and the third show cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule In view of the above settled law, any finding given by the Adjudicating Authority on the issue which was not raised in the show cause notice has no meaning and the same will stand nullified. Having discussed above, we also find that in the notification there is no condition that the imported durable container should be re-exported by the importer themselves and also there is no condition regarding the availment of drawback or otherwise. Therefore, otherwise also, on both the counts, the finding of the Adjudicating Authority is firstly not relevant, consequently, will not adversely affect the eligibility of the notification no. 104/94-Cus. The appellant M/s JR Roadlines vehemently submitted that the demand relates to appeal no. C/11972-11973/2015 is entirely time barred. We find that there is no dispute on the fact that the appellant have ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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