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Issues: (i) Whether the earlier finding that the assessee's case was factually distinguishable from the Adani case had attained finality and could be reopened in the present appeal; (ii) whether the amendment made to Notification No. 104/95-Cus. by Notification No. 24/97-Cus. applied to the exports in question and made declaration of unit price mandatory; (iii) whether the matter required remand for reconsideration of the assessee's original claim for DEPB credit at the rate initially claimed.
Issue (i): Whether the earlier finding that the assessee's case was factually distinguishable from the Adani case had attained finality and could be reopened in the present appeal;
Analysis: The earlier remand order had expressly held that the assessee's case stood distinguished from Adani's on facts. That order was not challenged and therefore became final. The assessee could not later contend, in defence of the impugned order, that the two matters were identical. The later view that the cases were on the same footing was inconsistent with the binding effect of the earlier unchallenged finding.
Conclusion: The earlier factual finding had attained finality and the contrary view could not be sustained.
Issue (ii): Whether the amendment made to Notification No. 104/95-Cus. by Notification No. 24/97-Cus. applied to the exports in question and made declaration of unit price mandatory;
Analysis: The exports were made between August 1996 and March 1997. The amendment carried by Notification No. 24/97-Cus. had no retrospective operation and, therefore, did not govern the relevant period. On the unamended notification, there was no basis to hold that declaration of unit price was mandatory for the assessee. At the same time, the assessee could not alter its claim without basis, and the original lower claim still required examination on merits.
Conclusion: The amendment did not apply retrospectively, and unit-price declaration was not mandatory under the unamended notification for the relevant period.
Issue (iii): Whether the matter required remand for reconsideration of the assessee's original claim for DEPB credit at the rate initially claimed.
Analysis: The claim for credit at US $ 40 per kg. had been rejected and was not pursued further. The claim at US $ 36 per kg. based on the Adani decision could not be accepted, as that precedent was not available to the assessee after the earlier factual distinction had become final. The original claim at US $ 12.5 to 14.75 per kg. had not been examined on merits by the original authority. In these circumstances, the proper course was to set aside the lower orders and remit the matter for fresh consideration of that original claim after hearing the assessee.
Conclusion: The matter had to be remanded to the original authority for reconsideration of the assessee's claim at US $ 12.5 to 14.75 per kg.
Final Conclusion: The appellate order granting parity with Adani's case was set aside, and the dispute was sent back for fresh decision on the assessee's original claim after due hearing.
Ratio Decidendi: An unchallenged remand finding that two cases are factually distinguishable attains finality and cannot later be contradicted, and a non-retrospective amendment to a fiscal notification cannot be applied to prior exports.
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