2008 (4) TMI 576 - AT - Customs

Summary

Issues Involved:
1. Validity of the demand for customs duty.
2. Acceptability of secondary evidence for proof of re-export.
3. Applicability of the time-bar under Section 28 of the Customs Act, 1962.
4. Confiscation and imposition of penalty.

Detailed Analysis:

1. Validity of the Demand for Customs Duty:
The appellant, M/s. Mitsu OSK Line India P. Ltd., contested the demand for customs duty on containers imported duty-free under Notification 104/94-Cus. The containers were required to be re-exported within six months, failing which duty would become payable. The appellant argued that the Commissioner failed to appreciate that the notification did not specify the exact documents required to prove re-export. However, it was found that the appellant had undertaken to furnish port clearance numbers and other details, which they failed to do satisfactorily. The bond executed by the appellant indicated a continuing liability until proof of re-export was furnished or duty was paid.

2. Acceptability of Secondary Evidence for Proof of Re-export:
The appellant provided secondary evidence, such as letters from port authorities and computer data, to prove that the containers were re-exported. However, these documents did not include necessary details like port clearance numbers, vessel names, and EGM numbers. The Tribunal noted that while secondary evidence could not be entirely discarded, it was insufficient to conclusively prove re-export without the required details. The case was remanded to the Commissioner to consider the secondary evidence in the specific circumstances and accept it only if it showed that the containers were lying outside India or had been disposed of by a leasing agency.

3. Applicability of the Time-Bar under Section 28 of the Customs Act, 1962:
The appellant argued that the demand was time-barred as it was issued beyond the five-year limitation period. However, the Tribunal held that the bond's liability was a continuing one, and the five-year period would extend up to May 2008, as the bond covered imports from November 1999 to November 2001. The show cause notice issued in 2006 was within this period, making the demand valid. The Tribunal also noted that the time limitation under Section 28 did not apply to the enforcement of the bond's conditions.

4. Confiscation and Imposition of Penalty:
The Tribunal upheld the liability for confiscation, even if the goods were not available, as per the decisions in Venus Enterprises and Dadha Pharma Pvt. Ltd. The appellant's failure to furnish documentary evidence justified the confiscation and imposition of penalties. The Tribunal directed that the quantum of redemption fine and penalty should be re-determined based on the final duty liability and the number of containers held liable for confiscation. The responsibility to pay the duty was placed on both M/s. Mitsu OSK Lines India P. Ltd. and Orient Shipping Agency, with the primary attempt to recover from the former.

Conclusion:
The appeal was partly allowed by remanding the matter to the Commissioner for reconsideration of secondary evidence and re-determination of redemption fine and penalty. The Tribunal emphasized that the bond's conditions were a continuing obligation, and the demand for duty was not time-barred. The liability for confiscation and penalties was upheld, with specific directions for re-evaluation based on the evidence provided.