2017 (10) TMI 1072 - AT - Customs

Benefit of N/N. 158/95-Cus - the appellants failed to re-export the re-imported goods - Held that - in the N/N. 158/95-Cus stringent conditions have been laid down as safeguards to prevent misuse of facility of re-export of re-imported goods two conditions have to be complied at the time of re-import and other two conditions (No. 2 and 3) have to be complied at the time of re-export. Hence, the question of compliance with the conditions of the aforesaid notification needs to be examined in that context. Non-declaration of consignment as re-export consignment - Held that - on the shipping documents there is no such declaration. The document that has been presented by the appellant in their support is the examination order of the bill of entry 3736870 dt. 08.06.2011 under which goods were re-imported. But documents for export do not declare re-export after re-import. Admittedly, such a declaration would have engendered examination to be done in presence of the Dy./Asstt. Commissioner. Hence, the finding of the Ld. Commissioner that shipping bill did not have any declaration regarding re-export of re-imported goods is also correct. Examination of goods in the presence of proper officer - Held that - Examination of such a consignment done in the presence of officer of lower rank not only defeats the purpose of this notification but also renders the requirement of satisfaction of Assistant Commissioner as regards identity of re-export goods as redundant. It is clear that the examination at the higher level has been mandated by the notification to thwart the misuse of the notification and non-compliance with the same is bound to result in denial of the benefit of the notification. The condition No. 3 is a mandatory condition of the N/N. 158/95-Cus dt. 14.11.1995 and hence its non-observance is fatal to the appellants plea, particularly in the accentuating circumstances of this case when there was no escorting of the goods by the Preventive Officer from the factory to CFS, and when the declaration about re-export after re-import was not made by the appellants. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Compliance with conditions of Notification No. 158/95-Cus for re-export of re-imported goods.
2. Escorting of goods by Preventive Officer.
3. Declaration of consignment as re-export consignment.
4. Examination of goods in the presence of proper officer for identification.
5. Changing of cartons during re-processing.
6. Identity of goods not established based on documents.

Analysis:
1. The appellant had re-imported a consignment of shrimps, which was later re-exported under Notification No. 158/95-Cus. The conditions for re-export included re-exporting within a specified period and satisfying the Assistant Commissioner as to the identity of the goods. The appellant failed to comply with these conditions, leading to confiscation of goods and imposition of duty, interest, and penalty.

2. The Preventive Officer did not accompany the consignment from the godown to the re-export location, which was a requirement for compliance with the notification. The appellant's submission of a certificate showing some level of escorting was deemed insufficient, as the officer did not escort the container back to the location, leading to a valid finding by the Commissioner.

3. The appellant did not declare the consignment as a re-export consignment on shipping documents, which was necessary for examination in the presence of the Deputy/Assistant Commissioner. The absence of such a declaration on the documents supported the Commissioner's finding of non-compliance with this requirement.

4. The goods should have been examined in the presence of the proper officer for identification, as mandated by the notification. The failure to do so in the presence of the Deputy/Assistant Commissioner rendered the examination incomplete and non-compliant with the notification's conditions, justifying the Commissioner's decision.

5. While the changing of cartons during re-processing was done in the presence of the Preventive Officer, the Commissioner's finding that the appellant should have informed the Department about this change was not supported by facts, as the presence of the officer sufficed for compliance in this aspect.

6. The identity of goods was not established based on documents, as the necessary declarations and examinations in the presence of the proper officers were not made. This lack of compliance with the notification's conditions led to the rejection of the appeal and the upholding of the adjudicating authority's decision.

This detailed analysis of the judgment highlights the key issues, findings, and legal interpretations involved in the case, providing a comprehensive understanding of the decision rendered by the Appellate Tribunal CESTAT KOLKATA.