TMI Blog2022 (8) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... or the value of the goods imported by the respondent. Therefore, the appeal is rightly filed before this Court under Section 130C of the Act and is maintainable. Re-examination of issues - whether a finding of fact is correctly recorded and binding on this Court? - HELD THAT:- The CESTAT has not appreciated the sequence of circumstances culminate in the import of plant and whether a future obligation is fastened on the respondent for repayment of the cost incurred for the purchase of the plant or not. Therefore, the finding is recorded by not considering the circumstances and documents which have a bearing on the issue. For the above reasons, the findings of fact recorded are perverse and unavailable and therefore, not binding on this Court. Hence the second objection raised is also without merit, accordingly rejected. Whether exemption notification is attracted to the circumstances of the case and that the appeal at the instance of the Revenue must fail? - HELD 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 exemption notification. The relevant circumstances should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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. Hence the appeal under Section 130 of the Customs Act, 1962 (for short, ' the Act). The appeal is admitted on the following substantial questions of law: i) Was not the Tribunal wrong in holding that the 'Grant' received by the importer from the European Union would come within the preview of the term 'gift' or 'donation' under Notification No.148/1994 to get exemption from duty. ii) Whether the Tribunal was justified in giving a liberal interpretation to Notification No.148/1994 without following the principal of law that an exception notification has to be interpreted strictly. 4. Adv. Thomas Mathew Nellimoottil contends that the impugned order extending the benefit of exemption in notification No.148/94 dated 13.07.1994 to the plant imported by the respondent between 12.11.1996 and 09.01.1998, is entirely illegal. From a plain reading of the exemption notification, it would be demonstrably clear that circumstances in which the subject import is made, do not satisfy the exemption criteria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 an agreement; the respondent did not pay the consideration for the goods imported; therefore, the exemption provided in notification No.148/94 is attracted and he prays for dismissing the appeal. 6. We have noted the contentions canvassed by the counsel appearing for the parties and perused the record. 6.1 The first objection of Adv. Kuryan Thomas is on the maintainability of the appeal under Section 130C of the Act. He refers to the ratio considered by this Court in Asean Cableship Pvt. Ltd case and commends to this Court to return the appeal. This Bench on 17.12.2021 decided Asean Cable Pvt case, but the circumstances considered in the said case and the core issue for a decision was whether the Asean Cableship is a foreign going vessel or not and the totality of circumstances considered in Asean Cableship Pvt. Ltd case is fresh in our mind and we can preface the view at this stage that the said decision is distinguishable. Quickly we can examine this objection as follows: a) Section 130 deals with the appeal to High Court , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 circumstances and recorded findings of fact. Therefore, these findings are binding on this Court, and this Court ought not to re-examine the issues, and no substantial question of law is made out. 7. Per contra, Adv. Thomas Mathew argues that a comparative reading of the findings recorded by the statutory authorities and the CESTAT would disclose that the CESTAT has not examined whether the plant imported is gifted free of cost. There is no future liability to pay for the plant imported by the respondent. In other words, it is argued that at the time of import, the cost of the plant imported may not suffer cash outflow at the hands of the respondent. But the purchase money is made available by the European Union. The said assistance is a long-term loan, and the respondent has to repay the said amount. Therefore, the findings recorded by the CESTAT are in ignorance of the material considered by the authority hence perverse and not binding on this Court. 8. To appreciate whether a finding of fact is correctly recorded and binding on this Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 148/1994. Consequently the goods are entitled to duty free clearance under the Notification and we order accordingly. 8.1 The Primary Authority and the Commissioner of Customs, from the record available, noted that the plant imported was under an agreement with European Union. The finance for purchasing the plant has been made available by the European Union, which is repaid as a long-term loan by the respondent. Whether the repayment in future as a lump sum or in instalments etc., is a crucial factor for deciding whether the goods are imported free of cost or not. The appellant's grievance is that the documents which have bearing on the import and the implication on cost contributed by the European Union can be found out from the primary documents. The primary documents are not available with the Department, and the CESTAT still recorded a finding in favour of the respondent by relying on the statement of the respondent. 9. After appreciating the totality of circumstances, we are of the view that the CESTAT has not appreciated the sequence of circumstances culminate in the import of plant and whether a future obligation is fastened on the respondent for repayment of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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