Custom, Excise & Service Tax Tribunal
Cc (Air Cargo Exports), New Delhi vs M/S Pci Ltd on 17 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 17/08/2016. DATE OF DECISION : 17/08/2016. Customs Appeal No. 54520 of 2015 [Arising out of the Order-in-Appeal No. CC (A) Cus./D-I/Exp/ 1147 & 1148/2015 dated 31/07/2015 passed by Commissioner of Customs (Air Cargo Exports), New Custom House, New Delhi.] For Approval and signature : Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? CC (Air Cargo Exports), New Delhi Appellant Versus M/s PCI Ltd. Respondent
Appearance Shri Amresh Jain, Authorized Representative (DR) for the appellant.
Shri Piyush Kumar, Advocate for the Respondent.
CORAM: Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Final Order No. 53241/2016 Dated 17/08/2016 Per. S.K. Mohanty :-
The brief facts of the case are that the appellant had imported the goods under ATA Carnet Registration No. 1036 dated 16/12/2011 and ATA Carnet Imp. Registration No. 1037 dated 16/12/2011. Both the ATA Carnets were valid upto 06/12/2012. The imported goods were allowed Customs duty free clearances to the importer in terms of the Customs Notification No. 157/90-Cus dated 28/03/1990 under the aforesaid ATA Carnet for demonstration purpose. As per the provisions of the said notification dated 28/3/1990 goods imported under ATA Carnet are to be exported within a period of six months from the date of importation or within the extended period, not exceeding six months or till the validity of ATA Carnet. The goods were imported on 16/12/2011. The importer vide letter dated 12/05/2012 requested for extension of the export period, which was considered by the competent authority vide letter dated 28/5/2012 and the time was extended upto 06/12/2012 for exporting the goods. However, the appellant failed to export the goods within the stipulated period i.e. 06/12/2012. For non-exportation of the goods within the stipulated time prescribed under the notification and also within the extended period provided by the Authorities, the Department proceeded against the importer for confiscation of goods and for imposition of penalty. The adjudication order passed in this regard was appealed against before the learned Commissioner (Appeals), which was disposed of vide the impugned order dated 31/07/15, in allowing the appeal of the importer (respondent herein). Hence, the present appeal is before this Tribunal.
2. Shri Amresh Jain, the learned AR appearing for the Revenue submits that the condition of the notification have not been complied with by the importer, and as such, the exemptions/ benefits provided therein is not available to the respondent. He further submits that the Commissioner (Appeals) is not empowered under the statute to deviate the norms prescribed in the exemption notification in allowing the benefit in favour of the importer respondent.
3. Shri Piyush Kumar, the learned Advocate for the respondent submits that non-fulfillment of the Notification dated 28/3/90 is not attributable to any fault on the part of the importer and, as such, confiscation of goods and imposition of penalty is not proper and justified. He also submits that duty liability, if any, can be demanded from the Federation of Indian Chambers of Commerce and Industry, who have executed the bond for importation of the goods under Carnet scheme.
4. We have carefully considered the submissions from both the sides and perused the records.
5. Notification No. 157/90-Cus dated 28/03/1990 as amended by No. 55/2007-Cus, dated 12/04/2007 exempts the imported goods from payment of customs duty and additional duty, when imported for display or use at any specified event itemized therein. The exemption contained in the said notification is available to the importer, subject to fulfillment of the condition namely, that the goods shall be exported within six months from the date of importation or within a further period of six months as may be extended by the Proper officer. Perusal of the said notification reveals that in order to avail the duty exemption contained therein, the goods have to be exported within one year from the date of their importation.
6. In the case in hand, though the goods were imported on 16/12/2011, but the same were neither exported within the normal period of six months nor within the extended period upto 06/12/2012, allowed by the competent authority. Thus, the condition of the notification has not been fulfilled by the respondent importer for obtaining the benefits provided therein. In this context, the law is well settled that an exemption notification was to be interpreted in line with the words employed by it and not on any other basis; and that a person who claims exemption or concession, must establish clearly that he is covered by the provisions contained therein.
7. In absence of fulfillment of the conditions mentioned in the notification dated 28/3/1990, we are of the view that the duty exemption provided therein is not available to the respondent importer. The person from whom the duty shall be collected i.e. whether from the respondent or Federation of Indian Chambers of Commerce and Industry, was not the subject matter or issue before the Commissioner (Appeals). Therefore, at this juncture, we are not expressing any opinion on the said issue. The Department is at liberty to proceed against the concerned person for recovery of the adjudged dues.
8. In view of the foregoing, we set aside the impugned order and allow the appeal in favour of the Revenue.
(Order dictated and pronounced in the open court.) (S.K. Mohanty) Member (Judicial) (V. Padmanabhan) Member (Technical) PK ??
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