2017 (4) TMI 77 - AT - Customs

Time limitation - demand - section 28 of the CA 1962 - non-compliance of conditions prescribed in N/N. 104/94 dated 16th March 1994 - Held that - The said notification availed by the appellant at the time of landing of the containers within the territory of India is a mechanism devised to facilitate the containerisation of global trade utilised. Such a facility was to be accompanied by adequate safeguards to ensure that the containers are not illicitly diverted for use domestically without payment of duty. It is with that end in view that the extension of the period of retention of the container within the territory of India is also envisaged in the very same notification. It is an acknowledged fact that the containers remained with the custodian/government and hence the scope for illicit usage of non-duty paid containers is non-existent. In these circumstances, there is no justification for invoking of the provisions of section 111 the Customs Act 1962 as well as section 28 of Customs Act 1962 - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confirmation of duty demand along with interest and confiscation of containers under section 111(o) of Customs Act, 1962.
2. Invocation of section 28 of Customs Act, 1962 for recovery of duty.
3. Rejection of objection regarding limitation period for demand of duty.
4. Applicability of section 125 of Customs Act, 1962.
5. Compliance with conditions prescribed in notification no.104/94 dated 16th March 1994.
6. Responsibility for re-export of containers.
7. Determination of value for assessment of duty.

Analysis:

1. The appeal challenged an order confirming duty demand, interest, and confiscation of containers under section 111(o) of the Customs Act, 1962. The penalty imposed by the original authority under section 112(a) was also upheld in the impugned order.

2. The original authority initiated proceedings against the appellant for failure to re-export containers within the prescribed time. The authority relied on section 28 of the Customs Act, 1962, without providing evidence for invoking the extended period. The containers were either seized by DRI or pending disputes, raising questions on the application of section 28.

3. The first appellate authority rejected the objection of the appellant regarding the limitation period for the duty demand, citing a Supreme Court decision on the applicability of section 125 of the Customs Act, 1962.

4. The Tribunal observed errors in invoking section 28 for duty recovery without evidence and the misapplication of section 125 by the first appellate authority. The Supreme Court decision clarified the independent operation of section 125 for recovery linked to redemption of confiscated goods.

5. The non-compliance with conditions in the notification dated 16th March 1994 was highlighted, emphasizing that the containers were not in the appellant's custody. The responsibility for re-export was deemed unjustified due to the containers being with other entities.

6. The notification aimed to prevent illicit use of containers without duty payment, with provisions for retention within India. Since the containers were under custodian/government control, invoking section 111 and section 28 of the Customs Act was deemed unnecessary.

7. The judgment noted the absence of findings on the value determination for duty assessment, leading to the conclusion that the impugned order lacked legal authority and was set aside.

8. Ultimately, the appeal was allowed, highlighting the errors in the original order and the lack of legal basis for duty recovery and confiscation, leading to the decision to set aside the impugned order.