2013 (12) TMI 291 - AT - Customs

Exemption under Notification No. 21/2002-Cus., dated 1-3-2002. Serial No. 114 - Import of PVC tray - Held that - There is alternative claim of exemption for another notification, which was available at the time of import of the goods - There are procedural requirements for execution of bond at the time of import of the goods. However, we feel that such requirement of execution of bond is primarily to ensure the re-export of the goods within six months from the date of importation or within the period further extended by the jurisdictional Assistant Commissioner. If the appellant is in a position to establish export of said goods within six months from the date of importation from other collateral evidence, we are of the view that the benefit of notification should be made available to the assessee. However, as observed earlier the claim of the appellant does not stand examined by the lower authorities. However, the facts of export of the very same goods, which were imported by the appellant have to be established and identity of the imported and re-exported goods is required to be examined by the lower authorities, we set aside the impugned order and remand the matter to the adjudicating authority for examining the appellant s claim of exemption of Notification No. 104/94-Cus., dated 16-3-1994. We make it clear that the original claim of the appellant under Notification No. 21/2002-Cus., dated 1-3-2002 stands rejected - Decided partly in favour of assessee.

Summary

Issues:
Exemption under Notification No. 21/2002-Cus. for PVC trays imported for packing handicrafts.
Alternative claim under Notification No. 104/94-Cus. for containers of durable nature.
Entertainment of belated legal issue of Notification No. 104/94-Cus.
Requirement of execution of bond for Notification No. 104/94-Cus.
Establishing export of same goods within six months for Notification No. 104/94-Cus.
Remand of the matter to the adjudicating authority for examining the claim under Notification No. 104/94-Cus.

Analysis:
The appellant, an exporter of handicrafts, imported PVC trays for packing the handicrafts, seeking exemption under Notification No. 21/2002-Cus., dated 1-3-2002, which grants exemption to "poly film used for shrink wrapping and cling wrapping of artwares." The lower authorities denied the exemption, stating that PVC trays do not qualify as poly film for shrink wrapping and cling wrapping of artwares.

During the hearing, the appellant's advocate acknowledged that PVC trays do not meet the criteria specified in the notification. However, a new claim was made under Notification No. 104/94-Cus., dated 16-3-1994, which exempts containers of durable nature subject to the importer executing a bond for re-export within six months of importation. The advocate argued that this legal issue should be allowed at this stage, even though it was not raised earlier.

The Revenue's representative opposed the new claim, highlighting the procedural requirements of Notification No. 104/94-Cus., including the execution of a bond. The Revenue argued that since the appellant did not fulfill these requirements, the claim should not be entertained at a later stage. Additionally, the export of the same goods within six months from importation was questioned.

The advocate contended that the export of the same goods had been raised before the original adjudicating authority. The Tribunal noted that while the claim under Notification No. 104/94-Cus. was not presented earlier, it was an alternative claim available at the time of import. The Tribunal emphasized the importance of establishing the export of the same goods within the specified timeframe and remanded the matter to the adjudicating authority for further examination.

The Tribunal concluded by setting aside the rejection of the appellant's claim under Notification No. 21/2002-Cus., dated 1-3-2002 and remanding the case for the adjudicating authority to assess the appellant's claim under Notification No. 104/94-Cus., dated 16-3-1994, emphasizing the need to establish the identity of the imported and re-exported goods. The appeal was disposed of accordingly.