TaxTMI 
TaxTMI 
2024 (2) TMI 1320
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....apital goods for manufacture of finished goods under EPCG licences. 3. December. 2016 to June, 2017 The appellant had received an order from M/s. Pepsi- Cola (Thai) Trading Co. Ltd., Thailand for export of 2.89.296 Kgs of Lays Shell Pellet. The goods were exported by the appellant under 13 Shipping Bills. 4. September, 2017. January, 2018 and February, 2018 Certain quantity out of the above exported goods was rejected by the Thai customer in view of certain quality issues; and accordingly, a quantity aggregating to 1,30,734.44 Kgs of Lays Shell Pellet had to be brought back by the appellant. The goods were imported under Four Bills of Entry. 5. Under these 4 Bills of Entry, the appellant had mentioned Notification No.158/95-Cus. dated 14.11.1995 as well as Notification No.45/2017- Cus & Notification No.46/2017-Cus. However, EDI System for filing B/E electronically was incapable of accepting such document with details of multiple notifications; and therefore, Notfn. No.158/95 was recorded on the front page of the bills of entry whereas Notfn. No. 45/2017 was recorded on the subsequent pages. 6. 28.7.2018 ....
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....7-Cus only on the ground that the appellant had no option to switch over to the benefit of these Notifications: and thus the Principal Commissioner has effectively held that the appellant was not allowed to claim benefit of such Notifications even though the benefits were otherwise admissible, because the appellant had opted for benefit of another Notification No. 158/95-Cus. 2.1 It is settled law that where more than one Notifications are applicable for the goods, or to the concerned transactions, attracting levy of any duty or tax, it is the choice and the option of the citizen/assessee to claim benefit of a Notification that suits him; and it is also permissible to the citizen/assessee to claim benefit of any Notification at a later stage notwithstanding the fact that the citizen/assessee claimed benefit of another Notification at the initial stage. In this regard, the appellant relies upon the following decisions; • M/s. Share Medical Care V/s. Union of India (2007) 4 Supreme Court Cases Page 5723 • HCL Limited vs. Collector of Customs-2001 (130) ELT 405 (SC) • Collector of Central Excise vs. Indian Petro Chemicals - 1997 (92) ELT 13 (S....
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....gnments were initially exported by the assessee M / s Indian Rayon & Industries Ltd. claiming benefit of DEPB scheme, the Hon'ble Supreme Court has held that Notification No.94/96- Cus was not applicable because two consignments were exported under DEPB scheme for which benefit of Notification No.94/96-Cus was not admissible. Thus, in this case also, the alternative claim of the assessee for benefit of Notification No.94/96-Cus was allowed for one consignment, which was initially exported under DEEC scheme because the goods exported under DEEC scheme were covered under Sl.No.(1)(e) of Table to Notification No.94/96-Cus; and the alternative claim was denied for the other two consignments because they were not covered under the scheme of the Notification. 3.1 Thus, the Hon'ble Supreme Court in case of M / s Indian Rayon & Industries Ltd. (supra), by virtue of this judgment also allows such alternative benefit to the concerned assessee for one of the three consignments for which conditions of the alternative Notification had been fulfilled, and the alternative benefit of NotificationNo.94/96-Cus stands disallowed in this case for the other two consignments only because cond....
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....fulfillment of the condition laid down under Col.3 of Table to Notification No.45/2017-Cus, and it stood proved on record before the Principal Commissioner that the appellant had not only claimed benefit of Notification No.45/2017-Cus by referring to SI.No.(1)(e) of the Notification while filing Bills of Entry for the goods brought back from Thailand, but the conditions of this Notification had been fulfilled and the evidence thereof was also available on record before the Principal Commissioner in this case. In this view of the matter, the benefit of duty free re-import could not be denied when the export incentives claimed by the appellant initially had been foregone, and the licensing authority has also confirmed and certified that no incentive was availed by the appellant for the goods initially exported under 13 shipping bills. 3.5 The appellant submits that Imposition of penalty on the appellant is also illegal and without justification because no such penalty could have been imposed on the appellant in the facts of this case. Section 117 of the Customs Act is invoked for imposing penalty on the appellant but penalty thereunder can be imposed only when any person con....
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....period as stipulated: ii. pay, on demand, in the event of his failure to comply with any of the aforesaid conditions, an amount equal to the difference between the duty levied at the time of re-import and the duty leviable on such goods at the time of importation but for the exemption contained herein 4.3 It is evident that to be eligible for the benefit under Notification No. 158/95, the importation should take place within three years from the date of original exportation, goods are re-exported within a maximum of twelve months from the date of re importation and when such re-exportation is not effected as per the conditions of the notification, the differential duty liability on account of availment of Notification No 158/95- Cus. at re-importation is liable to paid up by the importer. There is no ambiguity, whatsoever, in the Notification issued by the Central Government. The Notification stipulates to export the goods after repairs or reconditioning within the period as stipulated and pay, on demand, in the event of his failure to comply with any of the aforesaid conditions, an amount equal to the difference between the duty levied at the time of re-import and the ....
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.... re-import. The time limits prescribed for re-importation as well as for reexportation, are substantive conditions and not merely procedural. The Hon'ble Apex Court in the case of Mangalore Fertilizers & Chemicals reported as 1991 (55) ELT 437 (SC) = 2002-TIOL-234-SC-CX, has held that non- observation of a procedural condition of a technical nature is condonable, while that of a substantive condition is not, since it would otherwise facilitate commission of fraud and introduce administrative conveniences. The relevant portion of this judgment of the Hon'ble Apex Court is reproduced below: "11........The consequence which Shri Narasimhamurthy suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to a....
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.....2017 does not require that the re-importation is for the purposes of repair or reconditioning. There is also no requirement in that notification mandating re-export of the goods of the re-imported goods in other words. Notification Nos. 45/2017-Customs & 46/2017-Customs both dated 30.6.2017 seek to cover only those situations where the importer does not have any declared intent to immediately re-export the re-imported goods, as long as the duty liability specified in the notifications are discharged The importer can leave the goods undisturbed e.g in their factory or premises, without any pressing need for their re-export That however is not the case with Notification No. 158/95-Cus which seeks to cover a situation where the goods are re-imported within 3 years, only for repair or reconditioning and proximate re-export thereafter. Precisely for this reason, the importer enjoys full exemption from customs duly at the time of their re-importation. That import governed by conditionalities and requirements and beneficial exemption of one particular notification cannot be transposed into another notification with different conditions. In this regard, reliance was placed on the ratio la....
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....f the benefit of notification, the assessee has necessanly to comply with the conditions of the notification it goes without saying that the assessee cannot approbate and reprobate." (Emphasis Supplied) 6. In view of the above, It was submitted that the Noticee has no option to switch over to the benefits of Notification No. 45/2017-Customs and 46/2017-Customs both dated 30.6.2017 when they had re- imported the goods under Notification No. 158/95 Cus dated 14.11.1995 and could not fulfill the conditions levied therein. Accordingly, the learned AR justified demand of duty and penalty ect. 7. In rebuttal, the learned Advocate submitted that both the notification claimed by them i.e. 45/2017-Cus in existence at the time when re-export took place, therefore the decision of M/s. Indian Rayon and Industries-2008 (229) ELT 3 (S.C.) has been incorrectly applied by the adjudicating authority and that as per the decision relied upon by them including of this bench as reported in 2024 (2) TMI 317 CESTAT Ahmedabad Olam Agro Inda vs. CC Ahmedabad alternative exemption notification as against Notification No. 158/95-Cus was permissible even if one failed to re-export t....