Custom, Excise & Service Tax Tribunal
M/S Electro Systems Associates Pvt Ltd vs The Commissioner Of Customs, Bangalore on 1 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Appeal(s) Involved:
C/26307/2013-SM
[Arising out of Order-in-Appeal No. 191/2013 dated 08/03/2013 passed by Commissioner of Customs (Appeals) Bangalore]
For approval and signature:
HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should 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 Departmental authorities?
Yes
M/s Electro Systems Associates Pvt Ltd.
No. 4215, J.K. Complex,
Subramanyanagar, P.B. No. 2139
Bangalore 560 105
Appellant(s)
The Commissioner of Customs, Bangalore
Respondent(s)
Appearance:
Mr. Sundara raman, Adv For the Appellant Mr. N. Jagadish, A.R. For the Respondent Date of Hearing: 09/06/2016 Date of Decision: 01/07/2016 CORAM:
HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20508/ 2016 Per : ASHOK K. ARYA The appellant namely M/s Electro Systems Associates Pvt Ltd., is in appeal against the order of Commissioner (Appeals), who has upheld the order-in-original whereunder the refund claims of the appellant were rejected. The subject refund claims are for the refund of customs duty of Rs 43632/- paid on 29.11.2011 and Rs 89,794/- paid on 29.02.2012.
1.1 The appellant had imported test and measuring equipment under ATA Carnet facility provided under the Notification No 157/1990-Cus as the items were required for exhibition purposes. The appellant says that they had applied for extension of time for re-export stating that the employee concerned had left the job but they were not allowed to re-export without payment of customs duty. The appellant paid the customs duty under TR-6 challan dated 29.11.2011 for Rs 42,632/- and under TR-6 challan dated 29.02.2012 for Rs 89,794/-
2. The appellant has been represented before this Tribunal by learned Advocate Shri Sundararajan. He has mainly submitted as follows:-
i. The goods were imported under ATA Carnet facility with the benefit of Notification No. 157/90-Cus dated 28.3.1990.
ii. The goods have been re-exported but export has been made after the period of six months after the time limit of six months but within a period of one year from the date of import in case of one consignment and in case of other consignment re-export was made just after the period of one year. Reason for this delay has been explained to the Customs that their employee, who was dealing with the subject goods had left the job.
iii. They rely on the following case laws pleading that their refund of the customs duty paid on the goods under ATA Carnet has been re-exported be allowed to them by setting aside the impugned order passed by Commissioner (Appeals).
a. Federation of I.C.C. & Industry Vs UOI [2013(289)ELT 438(Del)] b. CC (Port) Kolkata Vs Banmore Electricals Pvt Ltd [2006(205)ELT 689(Tri-Kol)]
3. The Revenue has been represented by learned A.R., Mr. Mohammad Yusuf, who has pleaded that when goods have been exported after the period of six months which is the condition in clause-4 of the Notification 157/90 Cus (supra), the duty has been rightly demanded by Customs and paid by the appellant and there is no refund due to the appellant.
4. The facts on record and the submissions of both the sides along with case laws quoted have been carefully considered.
5. The appellant is on the record saying that in case of one consignment of test and measuring equipment, the said item was re-exported within a period of one year of import. The Notification No 157/90-Cus (supra) under which item was initially imported provides in its clause that item imported under the facility of ATA Carnet seeking the benefit of Notification shall be exported within a period of six months from the date of importation. This clause-4 in its further Proviso says that the said period of six months can be extended by a further period not exceeding six months. It is on record that goods were duly imported under ATA Carnet facility under Notification No 157/90 Cus and have also been re-exported though after the period of six months of import but well within the time period of one year from the date of import.
5.1 Considering the decision cited by the appellant, this Tribunal is of the considered view that in case of the appellant, for the first item of test and measuring equipment which has been exported within a period of one year from the date of import, this period of export is deemed to be extended by another six months and customs duty consequently will not be liable on the said item, therefore, whatever the duty of customs paid on the said item deserves to be refunded to the appellant within a period of four months of the issue of this order of the Tribunal. I have taken support for this decision from Honble Delhi High Courts decision in the case of Federation of I.C.C. & Industry (supra) and CESTAT Kolkatas decision in the case of Banmore Electricals Pvt Ltd (supra). Both these decisions give sufficient force and support to the stand of the appellant in the case at hand.
6. In case of 2nd consignment of test and measuring equipment which has been exported by the appellant, after the period of one year which has been mentioned by the appellant as re-export just after one year, though there is no dispute about the fact of export of the item, it is to be noted that this period of export could be extended only by a further period not exceeding six months as per the further proviso to clause-5 of the Notification No. 157/90 Cus. Therefore this Tribunal is of the view that duty of customs has rightly been charged on the said item as conditions of Notification No. 157/90-Cus (supra) have not been complied with, when re-export was made after one year of its import. Consequently there is no scope of providing any relief of refund of duty of customs to the appellant in present ATA Carnet facility and under Notification No 157/1990-Cus.
6. Considering above discussions and the analysis, it is held that for the first consignment of the subject item the duty of the customs is ordered to be refunded to the appellants within four months of issue of this order and in case of the second consignment of the subject items no refund is due and the appeal is rejected in case of the same. The appeal is thus partly allowed in above terms.
(Order pronounced in open court on 01/07/2016) ASHOK K. ARYA TECHNICAL MEMBER pnr 5