TMI Blog2024 (2) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 158/95, the importation should take place within three years from the date of original exportation, goods are re-exported within a maximum of twelve months from the date of re importation and when such re-exportation is not effected as per the conditions of the notification, the differential duty liability on account of availment of Notification No 158/95- Cus. at re-importation is liable to paid up by the importer. There is no ambiguity, whatsoever, in the Notification issued by the Central Government. The Notification stipulates to export the goods after repairs or reconditioning within the period as stipulated and pay, on demand, in the event of his failure to comply with any of the aforesaid conditions, an amount equal to the difference between the duty levied at the time of re-import and the duty leviable on such goods at the time of importation but for the exemption contained therein. We have considered the contours of the decision of M/s. Indian Rayon and Industries [ 2008 (7) TMI 401 - SUPREME COURT] which while dealing with the Notification No. 158/95-Cus held that once the benefit of Notification No. 158/95-Cus is taken the conditions are required to be fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 2018 and February, 2018 Certain quantity out of the above exported goods was rejected by the Thai customer in view of certain quality issues; and accordingly, a quantity aggregating to 1,30,734.44 Kgs of Lays Shell Pellet had to be brought back by the appellant. The goods were imported under Four Bills of Entry. 5. Under these 4 Bills of Entry, the appellant had mentioned Notification No.158/95-Cus. dated 14.11.1995 as well as Notification No.45/2017- Cus Notification No.46/2017-Cus. However, EDI System for filing B/E electronically was incapable of accepting such document with details of multiple notifications; and therefore, Notfn. No.158/95 was recorded on the front page of the bills of entry whereas Notfn. No. 45/2017 was recorded on the subsequent pages. 6. 28.7.2018 A quantity of 424 Kgs was again exported to M/s. Pepsi-Cola (Thai) Pvt. Ltd. of Thailand vide shipping bill No.6522294. Due commercial exigencies and also because the rest of the quantity of re-imported goods could not be reprocessed for achieving the quality standards required for export, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed to claim benefit of such Notifications even though the benefits were otherwise admissible, because the appellant had opted for benefit of another Notification No. 158/95-Cus. 2.1 It is settled law that where more than one Notifications are applicable for the goods, or to the concerned transactions, attracting levy of any duty or tax, it is the choice and the option of the citizen/assessee to claim benefit of a Notification that suits him; and it is also permissible to the citizen/assessee to claim benefit of any Notification at a later stage notwithstanding the fact that the citizen/assessee claimed benefit of another Notification at the initial stage. In this regard, the appellant relies upon the following decisions; M/s. Share Medical Care V/s. Union of India (2007) 4 Supreme Court Cases Page 5723 HCL Limited vs. Collector of Customs-2001 (130) ELT 405 (SC) Collector of Central Excise vs. Indian Petro Chemicals - 1997 (92) ELT 13 (SC) Olam Agro India vs. CC Ahmedabad - 2024 (2) TMI 317 CESTAT Ahmedabad. Commissioner of Customs (import) Nhava Sheva vs. SK Weaving Pvt. Limited-2018 (361) ELT 383 (Tri-Mum.) Rallis India Limited vs. Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No.94/96-Cus was not admissible. Thus, in this case also, the alternative claim of the assessee for benefit of Notification No.94/96-Cus was allowed for one consignment, which was initially exported under DEEC scheme because the goods exported under DEEC scheme were covered under Sl.No.(1)(e) of Table to Notification No.94/96-Cus; and the alternative claim was denied for the other two consignments because they were not covered under the scheme of the Notification. 3.1 Thus, the Hon'ble Supreme Court in case of M / s Indian Rayon Industries Ltd. (supra), by virtue of this judgment also allows such alternative benefit to the concerned assessee for one of the three consignments for which conditions of the alternative Notification had been fulfilled, and the alternative benefit of NotificationNo.94/96-Cus stands disallowed in this case for the other two consignments only because conditions of the alternative Notifications were not fulfilled in respect of such consignments of goods initially exported under DEPB scheme. 3.2 The adjudicating authority has wrongly held that the appellant had not claimed benefit of Notification No.45/2017-Cus while filing the Bills of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of Entry for the goods brought back from Thailand, but the conditions of this Notification had been fulfilled and the evidence thereof was also available on record before the Principal Commissioner in this case. In this view of the matter, the benefit of duty free re-import could not be denied when the export incentives claimed by the appellant initially had been foregone, and the licensing authority has also confirmed and certified that no incentive was availed by the appellant for the goods initially exported under 13 shipping bills. 3.5 The appellant submits that Imposition of penalty on the appellant is also illegal and without justification because no such penalty could have been imposed on the appellant in the facts of this case. Section 117 of the Customs Act is invoked for imposing penalty on the appellant but penalty thereunder can be imposed only when any person contravened any provisions of the Customs Act or abetted any such contravention or who failed to comply with any provisions of the Customs Act with which it was his duty to comply. In the present case, it is not shown by the Revenue as to which provision of the Customs Act was contravened by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.3 It is evident that to be eligible for the benefit under Notification No. 158/95, the importation should take place within three years from the date of original exportation, goods are re-exported within a maximum of twelve months from the date of re importation and when such re-exportation is not effected as per the conditions of the notification, the differential duty liability on account of availment of Notification No 158/95- Cus. at re-importation is liable to paid up by the importer. There is no ambiguity, whatsoever, in the Notification issued by the Central Government. The Notification stipulates to export the goods after repairs or reconditioning within the period as stipulated and pay, on demand, in the event of his failure to comply with any of the aforesaid conditions, an amount equal to the difference between the duty levied at the time of re-import and the duty leviable on such goods at the time of importation but for the exemption contained therein. 4.4 The notifications are required to be interpreted in the light of the words employed therein and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedural condition of a technical nature is condonable, while that of a substantive condition is not, since it would otherwise facilitate commission of fraud and introduce administrative conveniences. The relevant portion of this judgment of the Hon'ble Apex Court is reproduced below: 11 ..The consequence which Shri Narasimhamurthy suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. In Kedarnath's case itself this Court pointed out that the stringency of the provisions and the mandatory character imparted to them were matters of important policy. The Court observed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the importer does not have any declared intent to immediately re-export the re-imported goods, as long as the duty liability specified in the notifications are discharged The importer can leave the goods undisturbed e.g in their factory or premises, without any pressing need for their re-export That however is not the case with Notification No. 158/95-Cus which seeks to cover a situation where the goods are re-imported within 3 years, only for repair or reconditioning and proximate re-export thereafter. Precisely for this reason, the importer enjoys full exemption from customs duly at the time of their re-importation. That import governed by conditionalities and requirements and beneficial exemption of one particular notification cannot be transposed into another notification with different conditions. In this regard, reliance was placed on the ratio laid down A by the Hon'ble Apex Court in the case of Indian Rayon and Industries 2008 (229) ELT 3 (SC) wherein the Apex Court ruled that having availed the benefit of Notification No 158/95-Cus the importer has necessarily to comply with the condition of Notification and it is not open for him to contend that conditions in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms and 46/2017-Customs both dated 30.6.2017 when they had re- imported the goods under Notification No. 158/95 Cus dated 14.11.1995 and could not fulfill the conditions levied therein. Accordingly, the learned AR justified demand of duty and penalty ect. 7. In rebuttal, the learned Advocate submitted that both the notification claimed by them i.e. 45/2017-Cus in existence at the time when re-export took place, therefore the decision of M/s. Indian Rayon and Industries-2008 (229) ELT 3 (S.C.) has been incorrectly applied by the adjudicating authority and that as per the decision relied upon by them including of this bench as reported in 2024 (2) TMI 317 CESTAT Ahmedabad Olam Agro Inda vs. CC Ahmedabad alternative exemption notification as against Notification No. 158/95-Cus was permissible even if one failed to re-export the goods within the stipulated period, till the alternative exemption notification i.e exemption Notification No. 94/2006-Cus (in that case) was beneficial to the appellant. 8. Considered. We find that the above decision of Olam Agro Inda vs. CC Ahmedabad was not available to the learned adjudicating authority, when his order was passed. We have als ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
