Custom, Excise & Service Tax Tribunal
M/S Deepti Jewellers vs Commissioner Of Customs (C.S.I. ... on 26 February, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/89676/13 - Mum (Arising out of Order-in-Original No. MUMCUSTMPAX-COM0051314 dated 30/9/2013 passed by the Commissioner of Customs, CSI airport, Mumbai). For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) Hon'ble Shri P.S. Pruthi, Member (Technical) =====================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ===================================================== M/s Deepti Jewellers Appellant Vs. Commissioner of Customs (C.S.I. airport) Mumbai Respondent Appearance: Shri S.P. Mathew, Advocate Shri Ajay Singh, Advocate for Appellant Shri M.S. Reddy, Dy. Commr. (A.R.) for Respondent CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL) Date of Hearing: 26.02.2015 Date of Decision: 26.02.2015 ORDER NO. Per: Anil Choudhary:
This appeal arises from order in original number MUMCUSTMPAX-COM0051314 dated 30/9/2013 issued on 9/10/2013 passed by the Commissioner of Customs, CSI airport, Mumbai.
2. That the brief facts are, the appellant M/s Deepti jewellers filed a bill of entry dated 23.04.2013 for re-import of 39.630 grams goods (18K studded gold jewellery) having assessable value of Rs.1,36,67,674/- seeking "nil" rate of duty benefit, under serial number 3 of notification number 94/1996Cus. dated 16.12.1996. The goods were earlier exported from PCCCC vide SB number 06224 dated 17/9/12.
3. That goods were examined in detail and as per the examination report, the goods were as per the declared description and quantity and their identity was established with respect to the export documents like shipping bill, export invoice and photographs certified at the time of export. It was however felt by revenue that the re-import was not within the time limit as prescribed in the foreign trade policy. The goods were earlier exported for an exhibition in Hong Kong, subsequent to acquitting permission from the Gems and jewellery export promotion council, issued in terms of paragraph 4A.14 of foreign trade policy read (FTP for short), with paragraph 4A.18 (a) of the handbook of procedures, for the years 2009 2014. The FTP relevant para 4A.18 prescribes a time limit of 60 days from close of exhibition, thereby implying that the goods were required to be re-imported before 18/12/2012, and there was a delay of about 126 days in the subject re-import. The subject goods having assessable value of Rs. 1,36,67,674/ where held liable to confiscation under section 111(o) of the Customs Act, 1962 and penal action under section 112 (a) of the Customs Act, 1962. The said goods were not cleared, as such were put up for adjudication. The appellant waived the show cause notice and filed written submissions. It was contended that the time limit for import of the goods, exported under free shipping bills, as prescribed in notification number 94/96 (serial number 3) is 3 years and the re-import is permitted at nil duty, subject to the conditions that there is no change in the ownership of the goods and the goods are the same which were exported.
4. That further facts are that the jewellery in question was sold on 9/12/2012, and export proceeds were to be received within 60 days that is till February 2013. But as the appellants did not receive the sale proceeds, they asked the consignee to settle the same for realizing the export proceeds before the end of financial year 201213, so as to close the custom bond. Subsequently the consignee on 14.03.2013 shipped the consignment back to the appellants. As such they were forced to re-import the said goods.
5. They learned Commissioner took notice of the conditions specified in Customs Notification No. 94/96 Cus. dated 16/12/96 being (1) the exporter shall re-import the items not sold abroad within 60 days of the close of the exhibition. However in case the exporter is participating in more than one exhibition, within 45 days of the first exhibition, then the period of 60 days will be counted from the closure date of last exhibition. (2) If exporter replenishes the gold/silver/platinum. It was further observed that there was no extension of time limit granted by any competent authority for allowing the said re-import under Notification No. 94/96, nor it is on record that the appellant applied for such extension. Without bringing the delay in the knowledge of the authority, the appellant have preferred to file the bill of entry seeking nil rate of duty benefit under serial number 3 of Notification No. 94/1996. The said irregularity first came to light at the time of examination by the examining officer. It was further observed that the goods under question were sold to one and M/s Saboo Fine Jewels, as such there was change in ownership of the goods and that the benefit of notification cannot be given to the appellants. It was held that the appellants have done or omitted to do acts, which acts or omissions rendered the said goods liable to confiscation under section 111 (o) of the Customs Act, 1962.
6. The Commissioner took notice of section 20 of the Customs Act which reads as follows Sec. 20 Re-importation of goods If goods are imported into India after exportation therefrom, such goods shall be liable to duty and be subject to all the conditions and restrictions, if any, to which are goods of the like kind and value, are liable or subject on the importation thereof. Accordingly the goods were held liable to duty. As regards penalty it was held that the appellant despite being fully aware about the failure to comply with the deadline for re-import of unsold goods within 60 days from the close of the exhibition was thus not eligible for duty free re-import of the said goods, but attempted to do so claiming benefit of notification number 94/96Cus. Accordingly the learned Commissioner ordered for confiscation of the goods having assessable value of Rs. 1,36,67,674/ under section 111 (o) of the Customs Act with an option to redeem under section 125 on payment of redemption fine of Rs. 15 lakhs. Further penalty of Rs. 2 lakh was imposed on the appellant under section 112 (a) of the Customs Act. Being aggrieved the appellant is in appeal before this Tribunal.
7. The Counsel for the appellant Mr. S.P. Matthew urges that the issue involved in this appeal is whether the appellants are eligible for the nil rate of duty as envisaged in notification number 94/96 Cus. benefit of which was claimed by them while re-import of a consignment of gold jewellery exported earlier for exhibition abroad. Admittedly the imported goods were found to be the same as exported by the appellants and its identity was established by the officers who examined the consignment at the time of re-import with reference to the shipping bill, export invoices and certified photographs thereof, at the time of export. Accordingly there is no reason for denying the benefit of exemption as provided under serial number 3 of the notification. The only reason stated in the impugned order holding the appellants disentitled to the said exemption is that there was a change in the ownership of goods. It is further urged that from the said notification, it is evident, the Commissioner examined the eligibility of exemption vide serial number-3 of the said notification, but while recording the reasons for denying the exemption he relied on proviso (C) thereof which applies to goods falling under serial number-2 of the said notification and nowhere relates to goods falling under serial number-3 of the said notification, thereby have drawn erroneous inference which is fit to be set aside. Further the four conditions taken notice of in para-3.2 of the impugned order, are not the conditions stipulated in Notification No. 94/96 Cus. dated 16/12/96. These being not the conditions under the notification the impugned order is fit to be set aside. It is further urged that the Commissioner failed to appreciate that the goods in question are free for import and no permission is required for import of the goods in question. Consequently the Commissioner's is in error in holding the goods liable to confiscation under section 111 (o), holding that there is violation of the provisions of the foreign trade policy. It is further urged that the time limit of 60 days for re-import of jewellery, is not a prohibition. Accordingly for breach of the time limit of 60 days, no confiscation can be ordered and accordingly the impugned order is fit to be set aside.
8. The appellant further prays that this Hon'ble Court on allowing the appeal may be further pleased to grant the release of the goods, as it is a case of live consignment and out of charge is yet to be granted.
9. The learned A.R. Mr. M.S. Reddy relies on the impugned order.
10. We re-produce the relevant portion of the exemption notification number 94/96 Cus. dated 16/12/1996 : In exercise of the powers conferred by subsection 1 of section 25 of the Customs Act the Govt. of India, being satisfied that it is necessary to do so in public interest exempts the following goods subject to conditions
1. Goods exported under claim for drawback, rebate, etc.
2. Goods other than Sr. No.-1, exported for repairs.
3. Goods other than those falling under serial number 1 and 2.
Provided that the Asst Commissioner of Customs is satisfied that (a) the goods (other than the goods exported under the duty exemption scheme etc. are re-imported within 3 years after their exportation or within such extended period, not exceeding 2 years, as the Commissioner of Customs may on sufficient cause being shown for the delay, allow, and in the case of goods exported under the duty exemption scheme etc., re-importation of such goods takes place within one year of exportation or such extended period; (b) the goods are the same which were exported.
Explanation for the purposes of this notification, the goods shall not be deemed to be the same if these are re-imported after being subjected to remanufacturing or reprocessing through melting, recycling or recasting abroad.
11. Having considered the rival contentions, we hold that the condition of 60 days, as provided in the foreign trade policy, is not a prohibition and we further hold that as the goods have been re-imported within a period of 6 months as provided in the notification, read with the foreign trade policy, the appellant is entitled to the benefit of exemption notification number 94/96 Cus. Thus, the appeal is allowed in favour of the appellant with consequential benefits. We direct the concerned authority, the Commissioner of Customs, C.S.I. Airport, Mumbai to release the goods in question, within seven days of receipt or production of a copy of this order. The impugned order is set aside.
12. That the appeal stands allowed in the aforementioned terms.
13. The order be issue dasti.
(Pronounced in open Court) (P.S. Pruthi) (Anil Choudhary) Member (Technical) Member (Judicial) Sp 7