AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (4) TMI 1843
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....309 0090 and are liable to customs duty on their import, accordingly, show cause notice was issued on 10.08.2016 for the period from 03.06.2011 to 30.11.2015 and show cause notice dated 30.08.2016 was issued for the period from 04.10.2011 to 20.10.2015. Thereafter Adjudication authority as per impugned orders classified the impugned goods under Customs Tariff Heading (CTH) 7309 0090 and confirmed the differential customs duty demand on account of the imported metal containers. Further, Adjudicating authority confiscated the goods and imposed fine and penalty. Aggrieved by said orders, present appeals are filed. Further, the appellant has filed additional evidence in both the appeals, the learned Authorized Representative (AR) for the Revenue had no objection for allowing the additional evidence and hence the same was taken on record of the appeals. 3. When the appeal came up for hearing, the Learned Counsel for the Appellant submits that Appellant is a manufacturer of tyres, tubes and flaps and for the same, Appellant used to import synthetic rubber as raw material. The packing of the raw material is either in plastic container, wooden container or in metal boxes or intermediate....
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....nstalled as fixtures for storage or manufacturing use and it specifically excludes containers specially designed and equipped for carriage by one or more modes of transport. Thus, the Adjudication authority has entirely misunderstood the classification and erred in seeking to classify the reusable metal containers under CTH 7309 0090. Learned Counsel also submits that though CTH 8609 0000 appears to include the containers used in carriage of goods, in terms of the provisions of the Customs Act, 1962 and as well as the decision of the Hon'ble Supreme Court in Arebee Star (Supra), reusable metal containers are not goods and cannot be subjected to levy of customs duty. 6. As regards liability to pay customs duty, Learned Counsel further submits that without prejudice to the submission that the reusable metal containers are not 'goods' in terms of the Customs Act, 1962, Appellant is not the 'importer" of the metal boxes /container/ Intermediate Bulk Containers (IBCs) as defined under Section 2(26) of the Customs Act, 1962. During the relevant period, the term 'importer' was defined under Section 2(26) of the Customs Act. 1962 to include the owner ....
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.... cannot be sought to be recomputed under Rule 9. The impugned order erroneously seeks to re-compute the assessable value based by assuming the value of reusable metal containers as USD 70, which was adopted by violating the provisions of the Customs Act and the law laid down by the Hon'ble Supreme Court of India in the matter of Arebee Star (Supra). 9. Learned Counsel also draws our attention to the Letter dated 16.12.2015 issued by M/s. Kumho Petrochemicals, wherein it is clarified that the metal boxes are the property of M/s. Good pack and have to be returned after discharging the material. Thus, even if such metal containers are taxable, M/s. Good Pack or its representative M/s. GDPK only can be treated as the importer and should be held responsible for compliance under customs law. The liability for customs duty should rest with M/s. Good Pack, and duty can only be demanded from them, and no duty can be demanded from Appellant in terms of section 28(4) of the Customs Act, as the Appellant is not the importer of the goods in question. Learned Counsel further submits that from a plain reading of Notification No. 104/1994-Cus read with Circulars No. 83/1998-Cus, dated....
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....ported consignments were physically examined by the Customs Department and the arrival of imported goods in reusable metal containers were always known to the Customs Department by due disclosures as boxes in the bills of entries and as also the shipping bills of lading. Reliance in this regard is placed on the decision of the Punjab & Haryana High Court in the case of CC. Amritsar Vs. Jyothi Industries, 2007 (209) ELI 180 (P&H) and submits that the impugned Orders-in-Original has erred in confirming the interest under section 28AA of the Customs Act, 1962 and as also imposition of penalty under Section 114A of the Customs Act, 1962 and the same deserves to be set aside. Reliance in this regard is placed on the following decisions:- i. Pratibha Processors Vs. Union of India - 1996 (98) ELT 12 (SC) ii. CCE Vs. HMM Ltd., 1995 (76) ELT 497 (SC). iii. Tamil Nadu Housing Board Vs. CCE, Madras, 1994 (74) E.L.T. 9 (SC) 12. Further Learned Counsel draws our attention to the memorandum of undertaking executed on 12.12.2013 by the Appellant and M/s. GDPK Returnable Solutions India Pvt. Ltd. where it is specifically stated that:- 1. MRF....
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....ded that the importer, by execution of a bond in such form and for such sum as may be specified by the Assistant Commissioner of Customs or Deputy Commissioner of Customs binds himself to re-export the said containers within six months from the date of their importation and to furnish documentary evidence thereof to the satisfaction of the said Assistant Commissioner and to pay the duty leviable thereon in the event of the importer's failure to do so. Provided further that in any particular case, the aforesaid period of six months may, on sufficient cause being shown, be extended by the said Assistant Commissioner for such further period, as he may deem fit. Explanation.- A device such as tag, tracking device or data logger already affixed on the container at the time of import shall also be eligible for exemption from the duty of customs and the integrated tax as is available to the said container under this notification. 15. Thereafter, Board has issued a clarification and as per the Circular No. 31/2005 dated 25.07.2025: - "Presently, the Containers which are of durable nature and intended to be imported temporarily are exempt from the lev....
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....arned Counsel draws attention to Rule 10 of Customs Valuation (Determination of Value of Imported goods) Rules, 2007 which reads as under; "10. Costs and services:-(1) In determining the transaction value, there shall be added to the price actually paid or payable for the imported goods- (a) the following to the extent they are incurred by the buyer but are not included in the price actually paid or payable for the imported goods, namely- (ii) the cost of containers which are treated as being one for customs purposes with the goods in question;" 18. Learned Counsel for the Appellant submits that a reading of Rule 10(1)(a)(ii) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 would lead to the same result, as "imported goods" are differentiated from "containers". Further, for the purposes of customs valuation, addition to the transaction value of the imported goods is made only when the cost of containers is treated as being one with the goods in question. Even in such a situation, what is then imported is the "goods" and the container not having to be de-stuffed and therefore being cleared along with the goods contained therei....