2024 (2) TMI 317 - AT - Customs

Appellant wins right to claim alternate customs exemption notification under Section 149 for re-export goods

CESTAT Ahmedabad allowed appellant's appeal for change of exemption notification from 158/95-CUS to 94/2006-CUS under Section 149 of Customs Act, 1962. ... Benefit of exemption from customs duty - Change of Notification in the bill of entry - Rejection of appellant’s request for claiming the alternate exemption Notification No. 94/2006 as against the Notification No. 158/95-CUS - HELD THAT:- The change of Notification in the bill of entry is permissible in terms of Section 149 of Customs Act, 1962. Therefore, in principle, the appellant is eligible for change of notification, for the reason in the present case that the appellant could not comply with the condition of re-export of goods within six months in terms of Notification 158/1995-CUS. The only criteria to be seen that whether at the time of import the alternate exemption notification was legally available to the appellant - In the facts of the present case, there is no dispute about eligibility of the Notification 94/2006-Cus in respect of the import made by the appellant as the goods were meant for re-export. Both the lower authorities have denied the change of the notification only on relying upon the Hon’ble Supreme Court judgment in the case of COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS INDIAN RAYON & INDUSTRIES LTD. [2008 (7) TMI 401 - SUPREME COURT]. Now the facts of the case in Indian Rayon & Industries Ltd. is examined - From the observation of the Hon’ble Supreme Court, it can be seen that the claim of the appellant to the extent the benefit of notification 94/1996-CUS was declined for the reason that the bill of entries involved in that case were dated 12.08.1998 and 28.05.1998 whereas in the present cases the bills of entry are dated 29.01.2014. During the relevant period of filing the bill of entry in the present case, the Notification No. 94/1996-Cus was very much available to the appellant in terms of amendment Notification No. 135/99-Cus dated 27.12.1999 whereby an entry as Sr. No. 2A was inserted. Whereas in the case of Indian Rayon, the date of bill of entries being 12.08.1998 and 29.05.1998 i.e. prior to the amendment in the Notification dated 27.12.1999. The facts are totally different, hence the reliance on the judgment in the case of India Rayon Industries by both the lower authorities is misplaced. It is further found that the issue whether subsequent to import, appellant can claim alternate exemption notification is settled by the Hon’ble Apex Court in the case of Share Medical Care [2007 (2) TMI 2 - SUPREME COURT], wherein it was held that the beneficial notification can be claimed at a later stage also, if otherwise the same is eligible at the time of import of goods. Therefore, on both the count, the appellant are eligible for alternate exemption Notification No. 94/1996-Cus dated 16.12.1996. The impugned order is not legal and proper, hence the same is set aside - Appeal allowed. Issues Involved:1. Eligibility for changing the benefit of Notification from 158/95-Cus to 94/96-Cus.2. Validity of reliance on the Supreme Court judgment in the case of Indian Rayon & Industries Ltd.3. Applicability of alternate exemption notification post-import.Summary:Issue 1: Eligibility for Changing NotificationThe appellant imported cumin seeds for re-exportation under Notification No. 158/95-Cus, which required re-export within six months. Due to non-compliance, the appellant requested to change the benefit to Notification No. 94/96-Cus. This request was initially rejected by the adjudicating authority and upheld by the Commissioner (Appeals). The CESTAT Ahmedabad found that under Section 149 of the Customs Act, 1962, the change of notification in the bill of entry is permissible. Thus, the appellant is eligible for the change since Notification No. 94/96-Cus was legally available at the time of import.Issue 2: Validity of Reliance on Indian Rayon & Industries Ltd. JudgmentBoth lower authorities denied the change based on the Supreme Court judgment in Indian Rayon & Industries Ltd. The CESTAT examined the facts of that case and found them different from the present case. Specifically, the bill of entries in Indian Rayon were dated before the amendment in Notification No. 94/96-Cus, whereas the appellant's bill of entry was dated after the amendment. Hence, reliance on the Indian Rayon judgment was misplaced.Issue 3: Applicability of Alternate Exemption Notification Post-ImportThe CESTAT referenced the Supreme Court judgment in Share Medical Care, which allows claiming a beneficial notification at a later stage if it was eligible at the time of import. Therefore, the appellant is entitled to claim the alternate exemption under Notification No. 94/96-Cus.Conclusion:The impugned order was set aside as it was not legal and proper. The appeal was allowed, confirming the appellant's eligibility for the alternate exemption notification.(Pronounced in the open court on 05.02.2024)