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of <h1>Imported Flexi Tank Containers deemed durable under Notification 104/94-Cus, granting exemption. Exporter not required for re-export under Notification 141/94-Cus.</h1> The Tribunal determined that the imported Flexi Tank Containers were considered durable under Notification No. 104/94-Cus, qualifying for exemption. It ... Levy of Custom Duty - import of Flexi containers - durable container or not - denial of benefit of N/N. 141/94- Cus dated 16.03.1994 - responsibility of the importer themselves to export the goods in terms of the notification - imposition of penalty under Section 112 of the Customs Act, 1962 - Whether the fact that the exporter of goods has claimed drawback or otherwise has any impact of the applicability of Notification No. 141/94- Cus.? HELD THAT:- The issues are answered by Tribunal in the case of C.C. -JAMNAGAR (PREV) VERSUS JR ROADLINES PVT LTD WITH JR ROADLINES PVT LTD AND DHIREN RAJDE VERSUS C.C. -AHMEDABAD [2020 (9) TMI 856 - CESTAT AHMEDABAD] where it was held that Tribunal in various cases has categorically held that merely because the container does not have repeated use, the nature of durability cannot be rejected. The only criterion to be seen is that whether the container in itself is durable in nature. As per the nature of container and use thereof, it is clear that the container imported by the assessee is durable. It was further held that it is clear that the Flexi Tank Containers imported by the assessee is durable container. Consequently notification no. 104/94-Cus is available to such containers. Appeal allowed - decided in favor of appellant. Issues Involved:1. Whether the imported 'Flexi Tank Container' is considered a durable container.2. Responsibility of the importer to export the goods as per Notification No. 141/94-Cus.3. Impact of the exporter claiming drawback on the applicability of Notification No. 141/94-Cus.Issue-wise Detailed Analysis:1. Durability of Flexi Tank Container:The primary issue is whether the 'Flexi Tank Container' qualifies as a durable container under Notification No. 104/94-Cus. The Tribunal referenced the case of C.C.- Jamnagar Vs. Jr. Roadlines Pvt Ltd, which established that the durability of a container is not negated by its lack of repeated use. The Tribunal emphasized that the ability to withstand longitudinal impacts, as per the code of practice for Flexi Tanks, indicates durability. Various tests such as rail impact, puncture resistance, tensile strength, and temperature tolerance confirm the durable nature of these containers. The Tribunal cited multiple judgments (e.g., Dimasuki Tea Co. Ltd. vs CC, CC vs Assam Company (India) Ltd.) affirming that durability does not require repeated use. Consequently, the Flexi Tank Containers imported by the appellant were deemed durable, making them eligible for the exemption under Notification No. 104/94-Cus.2. Responsibility to Export:The second issue addressed whether the importer must personally re-export the goods to avail of the exemption under Notification No. 141/94-Cus. The Tribunal noted that the adjudicating authority's finding that re-export was not done by the appellant but by the exporters of liquid cargo was beyond the scope of the show cause notice. It is a settled law that new grounds cannot be raised in the adjudication order if they were not included in the show cause notice, as established in Prince Khadi Woollen Handloom Prod Co-op Indl. Soc. Vs CCE and CCE vs Ballarpur Industries Ltd. Furthermore, the notification does not stipulate that the importer must re-export the goods themselves. Therefore, the appellant's eligibility for the exemption was not affected by who conducted the re-export.3. Impact of Drawback Claim:The third issue was whether the exporters claiming drawback impacted the applicability of Notification No. 141/94-Cus. The Tribunal found that the adjudicating authority's consideration of the exporters' drawback claims was irrelevant and beyond the scope of the show cause notice. The notification does not condition the exemption on whether the exporter claims a drawback. Thus, the finding on this ground was nullified, and the appellant's eligibility for the exemption remained unaffected.Conclusion:The Tribunal concluded that the Flexi Tank Containers imported by the appellant are durable and eligible for the exemption under Notification No. 104/94-Cus. The responsibility to export and the exporters' drawback claims do not impact the applicability of the notification. Consequently, the appeals were allowed with consequential reliefs, and the revenue's appeal was dismissed.
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