TaxTMI 
TaxTMI 
2011 (2) TMI 693
X X X X Extracts X X X X
X X X X Extracts X X X X
....vided for concessional rate of duty subject to fulfillment of the conditions, inter alia, that the goods imported temporarily for execution of a contract is for re-exportation and have been taken on lease by the importer for use after importation. The bill of entry for home clearance was finally assessed to duty of Rs. 1,96,79,654/- on 16-10-2007 and an amount of Rs. 29,51,948/- calculated at the rate of 15% of the aggregate of the duties of customs was paid and the goods were taken clearance on execution of bond and bank guarantee for the differential duty assessed as per the terms of the subject Notification No. 27/2002-Cus. Based on the audit objection which pointed out that the imported goods was not "leased goods" to be eligible for exemption provided in the Notification No. 27/2002-Cus, the Superintendent, C.H. Sikka had vide letter dated 27-12-2007 asked the Respondent importer to pay up the differential duty payable but for the exemption claimed by them which was complied and the differential duty of Rs. 1,67,27,706/- was paid by the Respondent on 14-2-2008. Subsequently, the Respondent re-exported the said Barge vide Drawback shipping bill No. F-125 dated 2-6-2008 through ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....text correctly relied upon the case law of M/s. Priya Blue Industries Ltd. [2004 (172) E.L.T. 145] and M/s. India Rayon and Industries Ltd. [2008 (229) E.L.T. 3] for denying the Drawback to the Respondents, but without considering the relevancy thereof, the impugned Order-in-Appeal dated 21-1-2010 has been passed by the Commissioner of Customs (Appeals), Jamnagar. Therefore, prima facie the balance of convenience lies in favour of the Respondent and the impugned Order-in-Appeal dated 21-1-2010 deserves to be set aside. 4.2 In terms of Notification No. 27/2002-Cus., dated 1-3-2002, there is different category of extent of exemption, as provided in Column (3) of the Table appended to the Notification. The Respondents claimed benefits of exemption from duty with choice of option related to extent of exemption, according to which they had opted for the option (i) of the extent of exemption as is in excess of the amount calculated at the rate of 15%. This option made it necessary for the Respondents to re-export the imported goods within six months. However, in the instant case, it is a fact that the Barge imported on 16-10-1987 has been re-exported on 2-6-2008, i.e. between six....
X X X X Extracts X X X X
X X X X Extracts X X X X
....they ought to have either opted for correct option at the time of import itself or not opted to claim the benefits of Notification No. 27/2002. By not appreciating the facts of the case and hoodwinking tricks of the Respondents to gain duty-benefits in excess of legal entitlement, the Commissioner of Customs (Appeals) has rendered the judgment, which is legally untenable. 4.4 It is also apparent from the fact that the Barge imported under the B/E was not clearly established by the Respondents as imported on "lease basis". Therefore, there was mis-declaration with reference to the condition of Notification No. 27/2002. Further incorrect Application and wrong interpretation of relevant provisions of Section 74 of the Customs Act, 1962 and Rule 2(a) of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 have been effected in the impugned Order-in-Appeal. Finally submitted for setting aside the impugned Order-in-Appeal. 5. In response to the show cause notice issued under Section 129DD of the Customs Act, the respondent has not made any specific reply. 6. Personal hearing was fixed in this case on 6-12-2010 and 20-1-2011 Shri P.K. Gokhroo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... applicable rule/Notification and is of the considered opinion that the case proceedings should be kept confined within the parameters as per limits & scope of language of statutory stipulations. 9.1 For the purpose Government 1st peruses that relevant provisions of Section 74 which are as under :- "Section 74. Drawback allowable on re-export of duty-paid goods. - (1) When any goods capable of being easily identified which have been imported into India and upon which any duty has been paid on importation. - (i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or (ii) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------- (iii) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------- Ninety-eight per cent of such duty shall except as otherwise hereinafter provided, be re-paid as Dr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Customs Act, are satisfied. The goods are identified to the satisfaction of Assistant/Deputy Commissioner of Customs as goods which were imported and goods are exported within 2 years from the date of importation. The duty paid as such on imported goods is clamed as Drawback and Section 74 ibid, nowhere imposes any condition as to on what rate and under which specific notification the impugned duties were paid on importation, when facts remains that due customs duties stands paid for importation of impugned goods. Further, none of the notifications involved herein stipulates that once chosen then the same remains a binding till the point of re-export irrespective of their respective conditions were duly complied with or not. Government therefore observes that neither the applicant department nor the Respondent party can circumvent the facts of the case and statutory provisions so as to suit their own interpretations. 9.3 Hon'ble Supreme Court in its judgments in M/s. ITC Ltd. v. CCE [2004 (171) E.L.T. 433 (S.C.)] and M/s. Paper Products Ltd. v. CC [1999 (112) E.L.T. 765 (S.C.)] has clearly made the stipulations that strict and plain wordings of the statute are to be str....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation unduly restricting the scope of beneficial provision is to be avoided so that it may not take away with one hand what the policy gives with the other. In the Union of India v. A.V. Narasimhalu, 1983 (13) E.L.T. 1534 (S.C.), the Apex Court also observed that the administrative authorities should instead of relying on restrictive interpretations and technicalities, act in a manner consistent with the broader concept of justice. Similar observation was made by the Apex Court in the Formica India v. Collector of Central Excise, 1995 (77) E.L.T. 511 (S.C.) in observing that once a view is taken that the party would have been entitled to the benefit of the notification had they met with the requirement of the concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so, had elapsed. While drawing a distinction between a procedural condition of technical nature and a substantive condition in interpreting statute similar view was also propounded by the Apex Court in Mangalore Chemicals and Fertilizers Ltd. v. Dy. Commissioner, 1991 (55) E.L.T. 437 (S.C.). In fact, as regards D....