TaxTMI 
TaxTMI 
2026 (3) TMI 1158
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, Mundra. 1.1 The facts of the case in brief are that the appellant filed a Bill of Entry no. 4204879 dated 29th November, 2017 for clearance of one piece of cargo declared as re-import of one cryogenic tank for liquid gases returned after replacement of the damaged Tank. The Tank was exported vide Invoice No. III/1114/EXP-20-2014 dated 27th March, 2015, Shipping Bill No. 8704611 dated 30.03.2015. They received complaint from the Customer. Their engineers tried to repair the tank at the Customer's site but they were not able to repair the same and since the tank was in warranty period, they exported replacement tank free of cost on replacement basis vide their invoice dated 3rd June, 2017, Shipping Bill dated 28th June, 2017. After gett....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able interest taken on the original cargo exported against shipping bill dated 30^th March, 2015. With these observations, the learned Commissioner rejected the appeal. Feeling aggrieved from the impugned order passed by the learned Commissioner (Appeals) dated 11th October, 2018, the present appeal has been filed before this Tribunal. 2.1 The learned counsel for the appellant has submitted that the learned Commissioner has not appreciated the factual position while arriving at the erroneous conclusion. The compressed liquefied gas tank CVA 6K 240 was first exported vide shipping bill dated 30th March, 2015 availing benefits under duty draw back. The aforesaid consignment was defective, therefore, it was reimported vide Bill of Entry dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ellants have exported the goods, they have availed export benefits only once on original supply vide shipping bill dated 30th March, 2015 and not availed any export benefits on replacement goods exported vide shipping bill dated 28th June, 2017. Therefore, when the goods were exported, there is no reason to deny the export benefits. The appellants are entitled for the benefits of Sr No. 5 of Notification No. 46/2017-Customs dated 30th June, 2017 and Sr No. 1 of the Notification is not applicable as wrongly held by the Adjudicating Authority. Sr No. 1 of the Notification will be applicable only when replacement is not exported. The moment, the replacement consignment is exported, it is as good as the goods are exported and once the goods are....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt to get the shipment cleared, as they were incurring heavy Detention and Demurrage Charges. 2.5 The learned Counsel for the appellant submitted that in view of the above position, the impugned Order-in-Appeal together with the assessment order dated 19th January, 2018 is liable to be set aside. The appellants are not liable to reverse export benefits taken on original cargo exported against shipping bill dated 13th March, 2015. Since, the appellants have already deposited Rs. 3,19,094/- towards surrender of export benefits to get the imported goods cleared, the appellants claim refund of the same. It has also been prayed that re-imported goods against bill of entry dated 29th November, 2017 be assessed as per Sr. No. 5 of Notification ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....30.03.2015. Export benefits have been availed on this shipping Bill, therefore, the re-import falls under Sr. No. 1 of the Notification No. 46/2017-Cus. dated 30.06.2017 and the appellant are required to reverse the export benefits along with interest. The Adjudicating Authority has rightly ordered to reverse all the export benefits along with applicable interest taken on the original cargo exported against shipping bill No. 8704611 dated 30th March, 2015. 5.1 The above findings of the learned Commissioner would have been sustainable if the goods mentioned in para-8 of the impugned order would have been re-imported after their export, but it is not the factual position. The factual position is that the said goods "compressed liquefied ga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here is no reason to deny export benefit to the appellant and they are entitled to get benefit of provisions of Sr. No. 5 of the Notification No. 46/2017-Cus. dated 30.06.2017. I also agree with the learned Counsel for the appellant that the moment, the replacement consignment is exported, it is as good as the goods are exported and once the goods are exported, the export benefits are admissible. Therefore, assessment order dated 19.01.2018, in case of Bill of Entry dated 29.11.2017 is erroneous and cannot be sustained. I am of the view that appellant are not liable to reverse the export benefits along with interest, taken on the original cargo exported against shipping bill dated 30.03.2015 before clearance of the re-imported goods against....