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TMI Blog2022 (8) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... the said import assessed and recovered the duty amounting to Rs.4,54,10,258/- from the respondent. The respondent relying on exemption available under notification No.148/94- Customs dated 13.07.1994 claimed a refund of Rs.4,54,10,258/-. For continuity, it is noted that on 19.01.2000, the claim for refund, on the ground, that the goods imported attracted exemption, was rejected, and rejection was confirmed in Appeal No.237/2001 dated 13.11.2001 by the CESTAT in order No.55/2002. The respondent filed Customs Appeal No.09/2005 before this Court, and this Court vide order dated 22.02.2006 directed the appellant to pass final assessment orders on goods imported by the respondent between 12.11.1996 and 09.01.1998. The Deputy Commissioner of Customs vide order dated 13.03.2006 made the final order and dealt with the claim ie. both exemption and refund of the respondent. The respondent filed appeal No.C27/AP(1)/68/2006 AU Cus. before the Commissioner of Customs (Appeals). On 12.04.2007, the Commissioner of Customs (Appeals) dismissed the appeal. The respondent filed appeal No.C/472/2007-DB before the CESTAT, Bangalore. The CESTAT, through the order dated 07.12.2017, allowed the appeal. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption from payment of customs duty must be read strictly. The construction now adopted by the CESTAT is very casual and, therefore, warrants interference of this Court. 5. Adv Kuryan Thomas appearing for the respondent, objects to the maintainability of the appeal in this Court under Section 130C of the Act on the ground that from the circumstances admitted or undisputed, the issue that arises for consideration is the exemption claimed of the respondent. The exemption is relatable to the duty payable on goods would be the crux of the issue; the appeal in this Court, therefore, is not maintainable. He relies on the judgment of this Bench in Commissioner of Customs, Cochin v. Asean Cableship Pvt. Ltd 2022 (380) E.L.T 11 (Ker.) . Therefore, the appeal is rejected, and the appellant is given the liberty to move the Supreme Court against the order of CESTAT dated 07.12.2017. 5.5 The next objection is that the substantial questions of law now canvassed do not satisfy the requirement of Section 130C of the Act. The findings recorded by the CESTAT are findings of fact and binding on this Court. Referring to the merits, it is argued that the respondent imported plant and machinery under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iz., the respondent has asked for a refund of the full duty paid on the plant imported on 12.11.1996 and 09.01.1998 for the import attracts exemption. The duty refund is claimed, because exemption notification No. 148/94 is attracted. Whether the goods imported attracts a specific exemption or not, has nothing to do with the final customs duty payable by an importer in a case dealing with the applicability of exemption notification. The principal consideration is whether the goods or plant imported by the respondent would satisfy the requirement of exemption notification or not. Once exemption notification is attracted, the obligation to pay customs duty does not attract. Therefore, the issue is whether the respondent's exemption claim on the import of plant is tenable or not. It has nothing to do with the rate or the value of the goods imported by the respondent. Therefore, we are of the view that the appeal is rightly filed before this Court under Section 130C of the Act and is maintainable. The first objection raised by the respondent for the above reasons has been rejected. 6.2 The next contention is that the CESTAT in para 5 of the order under appeal has considered the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority is right in denying the benefit of notification 148/94 to the appellant." Findings of the CESTAT "5. We have perused the appeal record and considered the submissions made by both sides. In terms of the Notification No. 148/1994 dated 13.07.1994 (Sl. No. 8), the only condition which needs to be satisfied for the goods to be eligible for duty free clearance is that the goods should be gifted free of cost under a bilateral agreement between Government of India and the Foreign Government. In this regard we have perused the certificate issued by the European Union dated 09.11.1999. The certificate categorically states the plant and machinery under import is meant for the pilot project being set up by the appellant at Muvattupuzha, Ernakulam, Kerala and further that the equipments were supplied free of cost in terms of the bilateral agreement between the Government of India and European Union. After perusal of the said certificate, we are of the view that the goods under import by the appellant satisfied the condition specified in the Notification No. 148/1994. Consequently the goods are entitled to duty free clearance under the Notification and we order accordingly." 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the whole of the additional duty leviable thereon under section 3 of the second mentioned Act subject to the conditions specified in column (3) against each serial number in column (1) of the said Table. Sl. No. Description of goods Conditions (1) (2) (3) *** 8. Goods, gifted free of cost under a bilateral agreement between the Government of India and a Foreign Government. - The case of the respondent is that the plant imported is free of cost under a bilateral agreement. Therefore, the respondent enjoys exemption from payment of customs duty. 11. The case of the appellant is that the respondent may not be paying the consideration, but the consideration payable by the respondent is paid by a third party and the amount so paid is treated as a long-term loan. Therefore, the import of plant may not be treated as free of cost. 12. We have appreciated the distinction on which the exemption is claimed and also the findings recorded by the CESTAT. Prima facie, we are of the view that the findings recorded in para 5 of the order under appeal are certainly unsustainable, for it has been recorded by the CESTAT as a general application of the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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