Alternative customs exemption claim may be allowed if eligible at import, but inconsistent drawback cannot be retained.

An importer who originally claimed exemption under Notification No. 158/95 for repair and re-export goods, but later failed to re-export and sold the goods locally, may still seek the alternative benefit of Notification No. 94/96 if eligible at the time of import. The earlier choice of a different beneficial notification does not by itself bar the alternate claim. However, the importer cannot retain inconsistent fiscal advantages at the same time, so any drawback already taken must be repaid with interest as a condition of the later benefit.

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Issues: Whether the importer, having initially availed the benefit of Notification No. 158/95 at the time of import and having failed to re-export the goods, could subsequently claim the benefit of Notification No. 94/96 as an alternate beneficial notification.

Analysis: The goods were imported for repair and re-export, but re-export did not take place and the goods were later sold locally. The claim for Notification No. 94/96 had not been considered earlier merely because the importer had taken benefit under Notification No. 158/95. The Tribunal followed the principle that where an assessee is otherwise eligible at the time of import, denial of an alternate beneficial notification is not warranted merely because a different benefit was earlier opted for. At the same time, the appellant's claim could not be allowed to result in retention of drawback already taken.

Conclusion: The appellant was held eligible for the benefit of Notification No. 94/96, but only on the condition that the drawback already claimed is repaid along with interest.

Ratio Decidendi: An assessee eligible for an exemption or beneficial notification at the time of import may claim the alternate benefit subsequently, but cannot simultaneously retain drawback or other inconsistent fiscal benefit.

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