Custom, Excise & Service Tax Tribunal
Kanika Maritime &Amp; Mercantiles Pvt. ... vs Cc Mumbai on 4 July, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/442/1999
(Arising out of Order-in-Appeal No. 4/99 MCH dated 06.01.1999
passed by Commissioner of Customs (Appeals), Mumbai)
Kanika Maritime & Mercantiles Pvt. Ltd. Appellant
Vs.
Commissioner of Customs, Respondent
Mumbai Appearance:
Shri Suraj Desai, Advocate for appellant Shri S.R. Nair, E.O. (AR) for respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing & Decision : 04.07.2018 FINAL ORDER NO. A/86918/2018 Per: S.K. Mohanty This appeal is directed against the impugned order dated 06.01.1999 passed by the Commissioner of Customs (Appeals), Mumbai.
2. Brief facts of the case are that the appellant herein, had executed a bond for duty free import of 500 x 20' size containers, in terms of Notification No. 97/79 dated 2nd May 1979 read with Custom House Public Notice No. 48 dated 22.03.1982. Under the said Notification read with the terms and 2 Appeal No. C/442/1999 conditions specified in the bond, the appellant was required to re-export the imported containers within six months from the date of their importation or within such extended period, as permitted by the Asst. Commissioner of Customs on the merits of the case. In this case, the appellant could not produce proof before the departmental authorities regarding re-export of 16 containers in question. For non-submission of proof of re- exportation, as provided in the Notification dated 02.05.1979, the authorities below did not extend the exemption benefit and confirmed the duty liability of Rs.4,39,320/- under Section 28(i)(b) of the Customs Act, 1962 on the appellant.
3. Learned Advocate appearing for the appellant submits that the duty free containers imported by the appellant were re- exported and due to certain unavoidable circumstances, the appellant could not able to produce evidence in co-relating the import particulars vis-à-vis exportation of the same. In this context, he has stated that the documents pertaining to re- export of the containers were destroyed in fire, took place in the premises of M/s Armstrong Smith Ltd, on 31.10.1991. He further submits that since the appellant had stated the reason of destruction of documents due to fire accident, the authorities below should have considered such plea of the appellant and should have condone the conditions provided in the Notification dated 02.05.1979 read with the bond executed by the appellant. 3
Appeal No. C/442/1999
4. On the other hand, learned D.R. appearing for the Revenue reiterates the findings recorded in the impugned order. He further submits that since the Notification dated 02.05.1979 is a conditional Notification and pursuant to such notification, the appellant itself executed the bond, binding itself to re-export the containers within the stipulated time frame, non-submission of documentary evidences in respect of proof regarding re-export of containers should dis-entitle the appellant to claim the exemption benefit provided in the notification. Thus he submits that confirmation of adjudged demand by the authorities below on the appellant is proper and justified. The learned D.R. has relied on the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise v. Hari Chand Shri Gopal - 2010 (260) ELT 3 (S.C.) to state that language of the conditional Notification has to be strictly construed and the burden of proof entirely rest with the appellant to prove that it is entitled to the benefit of the Notification.
5. Heard both sides and perused the records.
6. It is an admitted fact on record that in respect of 16 containers, the appellant did not produce any documentary evidence to show that the said containers imported by the appellant were re-exported. Since the condition of the Notification dated 02.05.1979 has not been complied with by the appellant in proper perspective, the benefit contained therein 4 Appeal No. C/442/1999 should not be available to the appellant. Further, I also find that the appellant had not produced any other evidence before the authorities below to show that the documents / records in relation to the disputed containers were destroyed in fire. Furthermore, the premises where fire took place does not belong to the appellant and the same belongs to another Company namely, M/s Armstrong Smith Ltd. Since no plausible evidence was produced by the appellant to demonstrate that the containers imported by it were in fact re-exported, I am of the view that the conditions prescribed in the Notification dated 02.05.1979 have not been complied with, for getting the benefit contained therein. With regard to the interpretation of the exemption Notification, the Hon'ble Supreme Court in the case of Hari Chand Shri Gopal (supra) have held that the burden of proof rests on the person, who claims exemption or concession and he has to establish that benefit of such exemption is actually available to him. The relevant paragraph in the said judgement is extracted herein below:-
"22. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if 5 Appeal No. C/442/1999 there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. In Novopan Indian Ltd. (supra), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave - (1996) 2 SCR 253, held that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption."
7. In view of the above settled position of law and especially in view of fact that the appellant did not comply with the requirement of the notification dated 02.05.1979 and the conditions of the bond executed by it, I am of the considered opinion that the adjudged demand confirmed on it is legally sustainable. Therefore, I do not find any infirmity in the impugned order. Accordingly, the appeal filed by the appellant is dismissed.
(Order dictated in Court) (S.K. Mohanty) Member (Judicial) nsk