2018 (7) TMI 1229 - AT - Customs

Duty free import of goods to be re-exported - N/N. 97/79 dated 2nd May 1979 read with Custom House Public Notice No. 48 dated 22.03.1982 - denial of benefit of notification on the ground of non-submission of proof of re-exportation - Held that - It is an admitted fact on record that in respect of 16 containers, the appellant did not produce any documentary evidence to show that the said containers imported by the appellant were re-exported. Since the condition of the Notification dated 02.05.1979 has not been complied with by the appellant in proper perspective, the benefit contained therein should not be available to the appellant. Further, the appellant had not produced any other evidence before the authorities below to show that the documents / records in relation to the disputed containers were destroyed in fire. Furthermore, the premises where fire took place does not belong to the appellant and the same belongs to another Company namely, M/s Armstrong Smith Ltd. Since no plausible evidence was produced by the appellant to demonstrate that the containers imported by it were in fact re-exported, the conditions prescribed in the Notification dated 02.05.1979 have not been complied with, for getting the benefit contained therein. Benefit of notification rightly denied - demand upheld - appeal dismissed - decided against appellant.

Summary

Issues Involved:
Claim of duty exemption on re-export of containers under Notification No. 97/79 dated 2nd May 1979 - Compliance with conditions - Destruction of documents due to fire - Burden of proof on the appellant.

Analysis:

Issue 1: Compliance with conditions of Notification No. 97/79 dated 2nd May 1979
The appellant executed a bond for duty-free import of containers under the said Notification, requiring re-export within a specified period. The appellant failed to produce proof of re-export for 16 containers, leading to the denial of exemption benefit and imposition of duty liability under Section 28(i)(b) of the Customs Act, 1962. The appellant argued that the containers were re-exported, but evidence was destroyed in a fire at M/s Armstrong Smith Ltd. The Revenue contended that non-submission of documentary evidence disentitles the appellant from the exemption. The Tribunal noted the appellant's failure to comply with the notification's conditions and lack of evidence regarding the destruction of documents. The burden of proof lies with the appellant to establish entitlement to the exemption.

Issue 2: Destruction of documents due to fire
The appellant claimed that documents supporting re-export were destroyed in a fire at M/s Armstrong Smith Ltd. However, the Tribunal found no evidence linking the destruction to the appellant or proving re-exportation of the containers. The appellant's inability to provide documentary evidence hindered the claim for exemption. The Tribunal emphasized the strict construction of exemption provisions and the necessity for the appellant to clearly establish eligibility for the benefit, which was not achieved in this case due to the lack of proof regarding re-export.

Issue 3: Burden of proof on the appellant
The Tribunal referred to the Supreme Court's decision in Commissioner of Central Excise v. Hari Chand Shri Gopal, emphasizing that the burden of proof rests on the party claiming exemption. The appellant's failure to comply with the notification's conditions and inability to substantiate re-exportation led to the confirmation of duty liability. The Tribunal upheld the legal sustainability of the adjudged demand, considering the appellant's non-compliance with the notification requirements and bond conditions. Consequently, the appeal was dismissed, affirming the decision of the authorities below based on the legal principles and factual findings presented in the case.

This detailed analysis highlights the key aspects of the judgment, focusing on compliance with notification conditions, burden of proof, and the impact of lack of evidence on claiming duty exemption in the context of re-export of containers.