Custom, Excise & Service Tax Tribunal
M/S Reckitt Benckiser Healthcare India ... vs Commissioner Of Customs, Noida on 23 June, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH : ALLAHABAD COURT No. I C/misc/70302/2016 APPEAL No.C/70554/2016 [SM] (Arising out of Order-in-Original No. 01/PC/CUS/NOIDA CUSTOMS/2016 dated 14/03/2016 passed by Commissioner of Customs (Appeals), Noida) For approval and signature: Honble Mr. Anil Choudhary, Member (Judicial) ======================================================
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3. Whether their Lordships wish to see the fair copy of the order?
Seen
4. Whether order is to be circulated to the Department Authorities?
Yes ====================================================== M/s Reckitt Benckiser Healthcare India (P) Ltd. Appellant Vs. Commissioner of Customs, Noida Respondent Appearance: Shri Atul Gupta, Advocate & Shri Vaibhav Dixit, Advocate for Appellant Shri V.K. Shastri, Assistant Commissioner (AR), for Respondent CORAM: Honble Mr. Anil Choudhary, Member (Judicial) Date of Hearing : 23/06/2016 Date of Decision : 23/06/2016 FINAL ORDER NO-70293/2016 Per: Anil Choudhary
The issue in this Customs appeal is whether the learned Commissioner is justified in refusing permission to file manual shipping bill and whether the duty of Customs paid by the appellant subsequent to import on goods which were earlier imported under the advance license scheme, is a duty paid upon importation or not.
2. The brief facts are that the appellant M/s Reckitt Benckiser Healthcare India Private Ltd. having their manufacturing unit at Baddi, Dist Solan imported certain packing materials for use in the manufacture of excisable goods for export during the months from December, 2014 to February, 2015. However, due to certain commercial reasons the packing material imported under the advance license scheme remained unutilized and the appellant decided to re-export the same to its UK plant. Consequently, the appellant intimated to the Deputy Commissioner of Customs ICD, Dadri vide letters dated 08/08/2015, 15/08/2015 informing that as their management have taken a decision to dispense with the production of finished material from the above referred imported packing material, at the manufacturing facility at Baddi, therefore, they would be exporting the said packing materials to one of the appellant unit located in UK. Under the circumstances they informed that they are paying the Customs duty along with interest for the purpose to discharge the export obligation under the Advance License. It was also intimated that the goods proposed to be exported are the same goods which were imported, and payment for the same will be received by the appellant in convertible foreign exchange. Thereafter, the appellant sought permission from the Deputy Commissioner of Customs (export) ICD, Dadri for the permission to file manual shipping bill under Section 50 read with Section 74 of the Customs Act vide the letter dated 15/10/2015 explaining the reason for re-export. It was further informed that they are seeking drawback of the total duty paid, to the extent of 98%, under the provisions of Section 74 of the Customs Act. As no permission was being granted for more than 5 months, the appellants prayed for passing of a speaking order, waiving the formality of show cause notice. The Principal Commissioner by the Order-in-Original dated 14/03/16 rejected the request for permission to file manual shipping bill under Section 50 read with Section 74 of the Customs Act, observing that the impugned goods having been imported without payment of duty against Advance License, in terms of conditions of exempting notification/read with the stipulations as per the foreign trade policy and handbook of procedures, cannot be allowed to be exported under claim of drawback under section 74 of the Customs Act, 1962, without reference to explicit provisions contained either under the exemption notification or under the foreign trade policy and the Handbook of Procedures. He further observed that the issue before him at this stage is to permit filing of manual shipping bills for re-export of the imported goods and claim of drawback under Section 74, as and when that is to be decided after re-export has taken place and goods identified. Since no such re-export has taken place any discussion on the admissibility of the claim under Section 74 ibid is premature. He further observed that the impugned goods being the goods which have been imported into India and upon which no duty has been paid on importation, are clearly out of the preview of the provisions of Section 74 of the Customs Act.
3. The learned Counsel for the appellant urges that the duty subsequently paid by the appellant is also the duty paid upon importation, which was the duty payable at the time of import but was not paid as a shipping bill was filed under the advance authorization scheme under Notification No. 96/2009. Once the appellants have given up their claim under the advance authorization scheme and paid the Customs duty with interest, it is the duty paid on importation and does not take any other color. Neither the learned Commissioner have been able to identify as to which color or different nature of duty has arisen upon payment of duty, subsequent to the import by the appellant. The learned Counsel also relies on the ruling of the Joint Secretary, Department of Revenue in the case of FCI OEN Connectors Ltd. reported at 2012 (281) E.L.T. 750, on the fact that the differential duty along with interest was paid at the time of finalization of EPCG Bond, the appellant had imported earlier at concessional rate of duty under EPCG scheme on a security Bond, and appellant after importation found the goods are defective, they paid differential duty along with interest before re-export of the goods. It was held that the applicant was eligible for drawback under Section 74 of the Customs Act observing that it is undisputed that the applicant had paid full duty with interest on finalization of EPCG Bond. Hence it is not disputed fact that the applicant had paid full duty for the imported goods and the goods were exported under drawback claim under Section 74 of the Customs Act and the said duty paid subsequently has to be treated as duty paid at the time of importation. The learned Counsel also relies on another ruling of the joint Secretary Department of Revenue in the case of Leighton Contractors (India) Private Ltd. reported at 2011 (267) E.L.T. 422 wherein the goods were imported by way of temporary import under notification number 47/2002 and the differential duty was paid subsequently and re-export made. It was held that the assessee satisfy the conditions stipulated under Section 74 of the Customs Act 1962. Section 74 does not impose any condition as to or what rate and under which notification duty was paid on importation. Further, notification is not binding up to the point of re-export, irrespective of compliance of conditions whether complied with or not. It was also held that there is nothing legally wrong or otherwise in the claim of Leighton Contractors to re-export under duty drawback of the goods imported under the scheme of notification number 47/2002CE under concessional rate of duty. Accordingly, the learned Counsel prays for allowing the appeal with consequential benefits. So far the issue regarding payment of filing fee for appeal is concerned the learned Counsel have relied on full bench decision of this Tribunal in the case of GLYPH International Ltd 2013 (31) S.T.R. 430 wherein it has been held that with effect from 01/11/2004, legislature did not intend to charge any fee in appeals relating to refund/rebate since under Section 129 (A)(6) of Customs Act, no fee is payable in respect of appeal claiming refund of Excise Duty or Customs duty. The said ruling was confirmed by Honble Allahabad High Court vide the order dated 16/04/14.
4. Learned A.R. for revenue relies on the impugned order.
5. Having considered the rival contentions I hold that the Customs Duty subsequently paid by the appellant is also the Customs Duty paid upon importation. Accordingly, I hold that the appellant is entitled to file manual shipping bill under Section 50 read with Section 74 of the Customs Act. Accordingly this appeal is allowed with consequential benefits and the impugned order of learned Commissioner is set aside. The Customs authority is further directed to examine the goods under export in order to satisfy themselves that the goods are the same which were imported earlier by the appellant and make such verification of the goods as deemed fit with respect to the claim under Section 74 of the Customs Act. Miscellaneous application also stands disposed off in the afore-mentioned terms. So far the filing fee of appeal is concerned I hold that no fee was payable by appellant in this case, as there being no duty, interest or penalty under dispute. Order is to be given Dasti.
(Dictated in Court) SD/-
(Anil Choudhary) Member (Judicial) 1 2 C/misc/70302/2016 APPEAL No.C/70554/2016 [SM] akp