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TMI Blog2011 (2) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... k rebate specifically, it is now a title law that the procedural infraction of Notifications, circulars, etc. are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses. - 380/19/DBK/2010-RA-CUS - 34/2011-Cus. - Dated:- 22-2-2011 - Shri D.P. Singh, J. Shri P.K. Gokhroo, Preventive Officer, for the Department. S/Shri Prakash Shah and J.H. Motwani, Advocates, for the Assessee. [Order]. This Revision Application has been filed by the Commissioner of Customs (Preventive), Sarda House, Jamnagar, Gujarat, against Order-in-Appeal No. 11/Commr (A) JMN/2010 dated 21-1-2010 passed by the Commissioner of Customs (Appeals), Jamnagar in the matter arising out of Order-in-Original No. 415/AC/DBK/2008-09 dated 22-9-2008 as passed by the jurisdictional Assistant Commissioner of Customs, Jamnagar, for M/s. Leighton Contractors (India) Pvt. Ltd., who are the Respondents herein. 2. Brief facts of the case are that the Respondent had imported on temporary basis one Unit used Barge Leighton Mynx and filed bill of entry No. F-87 dated 15-10-07 at Sikka Port claiming the benefit of exemption No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made, therein allowed the appeal with consequential relief to the Respondent. 4. On having been aggrieved by the above orders of the Commissioner (Appeals), the department reviewed the same and the applicant Commissioner filed this revision application under Section 35EE of the Central Excise Act, 1944 on the following grounds :- 4.1 It is an undisputed fact that B/E, against which the Respondents are claiming Drawback, was assessed finally allowing benefits of Notification No. 27/2002-Cus., dated 1-3-2002. It is also an undisputed fact that the Respondents have not challenged the said final assessment. It is also an undisputed fact that no Show Cause Notice was issued by the department proposing re-assessment of B/E. It is also an undisputed fect that the B/E has not been re-assessed for withdrawing the benefits of Notification No. 27/2002. The set of all these facts when put together with the fact of voluntary payment of differential duty made by the Respondents at later stage, they do not change the legal status of B/E as finally assessed with benefits of Notification No. 27/2002. The Order-in-Appeal dated 21-1-2010 is silent on all these material aspect. The original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal dated 21-1-2010 that the duty-rates @ 15% claimed by the Respondents in the B/E was wrongly availed by them and duty of Rs. 29,51,948/- initially paid by the Respondents in terms of Notification No. 27/2002 on 16-10-1987 was wrongly paid by them. When the imported Barge was re-exported during the period of 6 months to one year, the correct and applicable duty-rates would have been @ 30% looking to option (ii) in Column (3) of the Table appended to the said Notification, as it was existed on the date of import. It may be noted that pursuant to the Notification No. 27/2002-Cus., dated 1-3-2002 was amended, as per which the importer of the goods would have became entitled for exemption in excess of duty @ 25%, if the goods are re-exported during six months to nine months. Therefore, the attempt of the Respondents in this case in claiming Drawback @ 75% is just to circumvent the payment of differential duty @ 30% otherwise recoverable from them in terms of the Notification No. 27/2002 issued under Section 25 of the Customs Act, 1962, as it was existed on the date of import, by placing the unwarranted proposition of Notification No. 19/65-Cus., dated 6-2-1965. Had there been such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 was accordingly filed which was initially rejected by the original authorities on the grounds stated therein but it was allowed vide impugned Order-in-Appeal under revision herein. Government further notes that neither the factual details of the case nor the involved Rules/Notification are in dispute, but it is only interpreted applicability thereof which is under revision. The department is contesting the impugned Order-in-Appeal mainly on below mentioned grounds i.e. :- (i) The impugned import Bill of Entry assessed under Notification No. 27/2002 was legally bound within the terms conditions thereof irrespective of the fact that payments of availed benefits of differential duty amounts as having been made subsequently. (ii) The (Respondent) party had intentionally made the above situation happen just to circumvent the matter in order to avail some additional/more benefit by way of claiming more % age of Drawback and the non-clear establishing of lease-basis condition in the Bill of Entry at the time of import was a made misdeclaratlon . 9. In reference to above, Government on personal of the applicable rule/Notification and is of the considered o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ------------------------------------------------------------------------------------------------------------------------------------------------- (a) goods shall be deemed to have been entered for export on the date with reference to which the rate of duty is calculated under section 16; (b) -------------------------------------------------------------------------------------------------------------------------------------------------------------------- 9.2 Alongwith above Government also peruses the details and terms and conditions of two main notifications involved herein i.e. Notification No. 27/2002-Cus. and Notification No. 19-Cus., dated 6-2-1965 (as amended) under Section 74(2) of the Customs Act, 1962. When the above statutory provisions are read, then Government finds force in the conclusions of Commissioner (Appeals) herein because it has clearly transpired that the conditions stipulated under Section 74 of Customs Act, are satisfied. The goods are identified to the satisfaction of Assistant/Deputy Commissioner of Customs as goods which were imported and goods are exported within 2 years from the date of importation. The duty paid as such on imported goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Respondent party s claim of re-export duty-Drawback under Notification No. 19-Cus., dated 6-2-1965 (as amended) of Section 74(2) of the Customs Act, 1962. 9.5 Further so far as applicability of reliances placed by the Applicant department on the cited judgments, Government is in conformity with the elaborated views of Commissioner (Appeals) that both of these are neither legally or factually applicable to the facts and circumstances of this different case. So far as allegation of circumventing with intentions to avail any (illegal) benefits is concerned, the same can not be accepted merely on saying so. Every fraud or some thing alike is required to be established by way of legally admissible evidences through investigations etc., which is apparently not available in this case. 9.6 In UOI v. Suksha International, 1989 (39) E.L.T. 503 (S.C.), the Hon ble Supreme Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided so that it may not take away with one hand what the policy gives with the other. In the Union of India v. A.V. Narasimhalu, 1983 (13) E.L.T. 1534 (S.C.), the Apex Court also observed that the administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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