Customs, Excise and Gold Tribunal - Calcutta
Indian Rayon & Industries Ltd. vs Commissioner Of Customs, Calcutta on 23 November, 2001
Equivalent citations: 2002(145)ELT575(TRI-KOLKATA)
JUDGMENT
S.S. Sekhon
1. Brief facts for the purposes of decisions of this appeal are - during the period June to September, 1998, the appellants imported 4 consignments of yarn, earlier exported by them, which were rejected by their buyers. They claimed clearance of these consignments by executing a bond without payment of any duty under the provisions of Notification 158/98. This Notification stipulated the conditions for clearance 'duty free' of such re-imported goods for eventual re-export after repairs, re-conditioning etc., provided certain conditions for re-export including a period of time of six months are met.
2. The appellants could successfully re-export one consignment out of four, within the period prescribed under Notification 158/95. Three consignments could not be exported for various commercial reasons. Out of these three consignments, one was earlier exported under the claim of DEEC Scheme while the other two were exported under the claim of DEEPB Scheme.
3. The Commissioner initiated the proceedings and confirmed the duties after coming to the following findings:
"I find that in the instant case, the Noticee had executed a bond in terms of C.N. 158/95 dated 14.11.95. It is their case that when they imported the impugned consignment i.e. during June 1998 to September, 1998, the above-said notification was not in force. The above submission made by the Noticee is not correct. As a matter of fact, the above-said Notification No. 158/95-Cus dated 14.11.95 was very much in force at the material time in 1998 and, therefore, it was correct on the part of the Customs Authority to ask the Noticee to execute the above-said bond, undertaking to re-export the goods after repair, re-processing or re-making. Their failure to do so makes the goods liable to duty to the extent of the benefit already obtained by them.
Besides, it is note-worthy that in respect of their DEPB exports, the Noticee have already utilised the DEPB Licences and cleared the goods without payment of duty. Refund of the amount together with interest to the licensing authority is in terms of the licensing Policy which enjoins that in the event of non-repatriation of sale process, the DEEC/DEPB beneficiary ought to refund the entire DEPB licence value together with 24% interest. The above amount, therefore, cannot be taken as representation of the Customs duty credited to the Customs Revenue Account. Thus in other words, the Customs duty benefit already obtained by the Noticee still continues to be in arrear. It is, however, the case of the Noticee that it would be unjust if the same amount is also recovered by Customs. But the fact remains that the Noticee had availed of full exemption from Customs duty under DEPB Licence against their exports which are honest in view of the re-importation of the export goods and their inability to re-export the same after re-conditioning/repair/reprocessing.
So far as DEEC export and import are concerned, it is a fact that their exports have not been logged in their DEEC Book, and therefore, it cannot be said that they have taken any benefit against their so-called DEEC export. But the fact remains that the goods exported without payment of duty when re-imported ought to discharge their duty liability under C.N. 94/96, which will be equal to Central Excise duties. In view of the above facts, I am inclined to enforce the bond to the following extent in respect of two DEPB imports and one DEEC import:-
SHOW CAUSE NOTICE BILL OF ENTRY ASSESSABLE DUTY NO. AND DATE NO.& DATE VALUE LIABLES CONFIRMED TO DUTY 1. S37 (REX) 189/ 930 dt. Rs. 27,37,954.76 Rs.20,76,111.00 98A3 dt.18.5.99 12.8.98 DEPB 2. S37 (REX) 174/98A3 2440 dt. Rs. 16,88,481.23 Rs.13,86,355.24 dt.18.5.99 DEPB 29.5.98 3. S37 (REX) 113/98A3 2258 dt. Rs. 36,68,829.00 Rs. 4,99,188.79 dt.18.5.99 DEEC 30.4.98 (in terms of C.N. 94/96) ___________________ Total Rs.39,61,655.03 ___________________
In view of the above, I confirmed the total duty demand to the extent of Rs. 39,61,655/- (Rupees Thirty Nine Lakhs) sixty-one thousand six hundred fifty five only), in terms of Section 28 of the Customs Act, 1962 read with the three bonds executed by the Noticee.
However, since no malafide intent on the part of the noticee has been brought out in this case, I do not consider it fit to impose any penalty on account of their failure to re-export the goods in question."
4. We have heard both sides, considered the matter and find -
(a) With the enactment of Finance Bill, 1955 Section 20 of Customs Act, 1962 has been amended. The effect of this amendment is that all re-imported goods shall be liable to Customs duty like any other imports unless specifically exempted by Notification No. 158/98-Cus dated 14.11.95 for goods imported for repairs etc., and Notification 94/96-Cus dated 16.12.96 prescribed the effective rates of duties on such re-imported goods for home clearance. The Notification 158/95 does not provide that once benefit of that Notification is availed by the appellants, the benefit of Notification 94/86 will not be available. Since duties are to be recovered in this case the goods which have not been exported within a prescribed period under Notification 158/95, the quantum of such duties has to be determined with reference to effective rates for 'home consumption' by any other Notification which may be applicable to like goods. We find that Notification 94/96, provided for such rates for goods which were originally exported but which were reimported. This Notification does not restrict its benefit to the goods which might have been claimed under Notification 158/95. In this view of the matter, we find no merits in the impugned order for denying the benefit of effective rates of Notification 94/96, as eligible, to goods. This Notification 94/96 does not prescribe any such assumed condition for DEEPB Scheme exports, re-imported as found by the adjudicator of the exports are made under DEEPB claimed are re-imported, they have to be fitted under one of the serial numbers of the Table annexed to this Notification No. 94/96. The duties are, therefore, to be worked out, as per the rates in the Table annexed. Since the same has not been done, we do not uphold the working of the duty demand by the ld. Commissioner. The same are required to be set aside:
(b) We find that the Commissioner has concluded that these were no malafides on the part of the appellants. Therefore, we cannot find that the denial of benefit of Notification 94/96, applicable to the goods which are re-imported and eventually are not re-exported to be correct in law.
5. During the hearing, ld.Consultant, for the appellants, has fairly agreed that they were liable to pay duty of Central Excise as applicable. The same are, therefore, required to be worked and the amounts indicated to the importers for discharge of their obligation under Section 20 of the Customs read with Notification 94/96 Act for the three consignments which have been eventually returned and exported out of India.
6. In view of the our findings, we set aside the impugned order, remand the matter back to the original adjudicating authority, for re-determining the duty and interest as applicable. Appeal is thus allowed by way of remand.
Pronounced