TaxTMI 
TaxTMI 
2023 (3) TMI 381
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.... Pvt. Ltd and Dhiren Rajde Vs. CC.- Ahmd.- 2020 (9) TMI 856 (CESTAT- Ahmd). The three issues are as under: (1) If the product imported by them namely, 'Flexi Tank Container' is durable container or not. (2) If it is the responsibility of the importer themselves to export the goods in terms of Notification of No. 141/94- Cus. (3) 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. He pointed out that all questions have been answered in the earlier decision and therefore, the appeal should be allowed. 3. Learned AR relied on the impugned order. 4. We have considered the rival submissions, we find that all the three questions referred para 2 above have been answered by Tribunal in the case of M/s. C.C.- Jamnagar Vs. Jr. Roadlines Pvt Ltd with Jr. Roadlines Pvt. Ltd and Dhiren Rajde Vs. CC.- Ahmd. (supra) is reproduced below: 4. We have heard both sides and perused the records. The limited issue to be decided in the present appeal is whether the Flexi Tank Containers imported by M/s JR Roadlines is durable in nature and are eligible for exemption under notification 104/94-Cus dated....
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.... steel containers and in the Flexi Tank Containers the liquid cargo is filled. The duly filled cargo is loaded on the ship/vessel and the same is exported. In our view, the containers once imported and then re- exported after fitting in steel containers and duly filled with liquid cargo itself shows that this entire process is possible only if the container is durable. The Flexi Tank Container can endure an ocean voyage for liquid cargo and the same was imported for exporting bulk liquid cargo. During sea voyage on account of movement of ship and wave induced dynamic forces, the liquid cargo in the Flexi Tank Containers undergoes sloshing and surging. Therefore, the Flexi Tank Containers must be durable and strong enough to withstand the impact of such movement of the liquid in the Flexi Tanks. Accordingly, as per the use and nature of the containers as discussed above it has to be durable containers. The above facts are not in dispute even by the Revenue. The Revenue's contention is only that the same is not reused and has no repeated use. We find that this Tribunal in a number of judgments held that merely because the container has no repeated use but if the contained is durable,....
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....ia, it is undoubtedly durable in nature." c) CC vs Indofil Chemicals Company-2006 (199) ELT 871 "The Revenue is aggrieved by the order of the Commissioner of Customs (Appeals), extending benefit in terms of Notification No. 104/94-Cus., dated 16-3-94 to 6650 pieces of laminated paper bags imported by the respondents herein for packing chemicals for export purpose. 2. We have heard both sides. We find that the only issue for determination viz. as to whether the goods in question are capable of repeated use, has been decided by the Tribunal in the case of CC v. Assam Company (India) Ltd. [1995 (78) E.L.T. 168], wherein tea sacks made of four ply printed paper with aluminium inner foil were held to be strong enough to withstand sea voyage from India and held to be durable containers entitled to the benefit of exemption under Notification 97/79- Cus., dtd. 2-5-79 which is pari materia with Notification No. 104/94 which is under consideration in the present appeal. Following the ratio of the above order, we see no reason to interfere with the impugned order of the Commissioner (Appeals). We accordingly uphold the same and reject the appeal." d) Sam Agri Tech Ltd. vs CC 2017 ....
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.... containers imported by the appellants, a test was required to be conducted before deciding whether such containers could be considered as durable or not. But no test report/technical literature or market report has been produced before us by either side. In the circumstances, we find that the material produced before us is insufficient to record a specific finding in this regard. According to the Concise Oxford Dictionary (New Seventh Edition), container means 'vessel, box etc. designed to contain some particular things.' The word 'durable' has been defined as 'capable of lasting', remaining useful for a period ....'. We agree with the learned Counsel for the respondents that the expression durable has been used in Notification No. 97/79 in the context of the utility of the container for packing tea for export and since the tea sack made of four ply printed paper with aluminum inner foil was strong enough to withstand sea voyage from India, it is undoubtedly durable in nature. In the case of Dimakusi Tea Co. Ltd. v. Collector of Customs, Calcutta reported in [1995 (75) E.L.T. 158 (Tribunal)] the Tribunal held that durability is a relevant term -and containers of different ma....
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....dispute that Flexi Tank Containers are strong enough to withstand and endure the rigours of sea waves. Therefore, durability of the containers in isolation is not in dispute. Revenue is also harping on the point that subject containers do not have repeated use, therefore, it is not durable. This very issue has been considered time and again in the above cited judgments. Therefore, only because the containers do not have repeated use, the containers which are otherwise durable benefit of notification cannot be denied. Learned Counsel also pointed out that apart from the issue of durability, the Adjudicating Authority has also taken a ground for denying the exemption that re-export of the Flexi Tank Containers was not done by the present assessee but by the exporters of liquid cargo and also on the ground that exporters to whom the appellant has sold the Flexi Tank Containers have claimed drawback by factoring in the process of Flexi Tank Containers in the exports. We find that this allegation was not raised in the show cause notice. Therefore, this particular finding is beyond the scope of show cause notice. The Adjudicating Authority cannot raise any new grounds in the Adjudicat....
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....ification, the appellant had executed the bond which after fulfilment of condition that reexport of the container duly filled with liquid cargo bond has been cancelled. The appellant with a bona fide belief claimed the exemption notification 104/94-Cus without making any misdeclaration. The Custom department has very consciously after satisfying themselves allowed the exemption notification and not only that they have cancelled the bond after satisfying that export obligation is fulfilled. In this undisputed fact, there is no suppression of fact on the part of the assessee and custom department was free to interpret in their own manner whether the exemption to be allowed or not. Therefore, it cannot be said that there is any suppression of fact, mis-statement or misdeclaration on the part of the assessee. Therefore, the entire demand relates to appeal no. C/11972- 11973/2015 is unsustainable also on time bar apart from merit of the case. As regard the Revenue's submission relying on board circulars, we find that the same board circular has been considered in the judgments cited. Therefore, the Tribunal's judgments will prevail over the board circular. As regard the judgment of this....