2011 (2) TMI 1109 - AT - Customs

Notification No.82/85-Cus. and subsequent Notification No.148/94-Cus - entitlement to benefit of notification - Held that - As the respondent is claiming the benefit of the Notification, onus is on the respondent to show that they fulfilled the conditions of the Notification. The Commissioner (Appeals) vide the impugned order allowed the benefit of the Notification. There is no finding in the impugned order that the conditions of the Notifications are fulfilled by the respondent. In the absence of such finding, the impugned order is not sustainable hence it is set aside. The matter is remanded to the Commissioner (Appeals) to decide the appeal afresh.

Summary

Issues:
- Appeal against the order allowing the benefit of Notifications
- Conditions imposed under Notification 148/94 dated 13.7.1994
- Fulfillment of conditions by the respondent
- Onus of proving fulfillment of conditions
- Lack of finding in the impugned order
- Remand to the Commissioner (Appeals)

Analysis:

The appeal was filed by the Revenue against the order passed by the Commissioner (Appeals) granting the benefit of Notification No.82/85-Cus. and subsequent Notification No.148/94-Cus. The respondent, a Charitable Trust, imported goods under 26 Bills of Entry and sought the benefit of the mentioned Notifications. The adjudicating authority initially denied the benefit, stating that the respondent had not provided evidence to demonstrate compliance with the conditions of the Notifications.

The Commissioner (Appeals) intervened by directing the assessing authority to return the distribution certificates for necessary corrections as per the Notification provisions. However, as the Deputy Commissioner failed to provide a verification report within the specified time, the Commissioner (Appeals) set aside the adjudication order and allowed the appeal, granting the benefit of the Notifications to the respondent.

The Revenue contended that the respondent must prove compliance with the conditions outlined in the Notifications, specifically referring to condition 1(v) of Notification 148/94. The Revenue argued that the impugned order lacked a finding confirming the respondent's fulfillment of the conditions, making it unsustainable.

In response, the respondent claimed to have rectified the defects pointed out by the Revenue, submitted required certificates to the Customs authorities, and provided all necessary information. They asserted that they had fulfilled the conditions of the Notification, justifying the Commissioner (Appeals)'s decision to grant the benefit.

The Tribunal noted that as the respondent sought the benefit of the Notifications, the onus was on them to demonstrate compliance with the conditions. However, since the impugned order did not contain a finding regarding the fulfillment of these conditions, the Tribunal deemed it unsustainable. Consequently, the matter was remanded to the Commissioner (Appeals) for a fresh decision after verifying whether the respondent had indeed fulfilled the Notification conditions and providing an opportunity for both parties to be heard. The appeal was disposed of through remand.