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TMI Blog2012 (11) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22 of the Customs Act. It is for the appellant to establish that the goods which they have proposed to destroy has no commercial value whatsoever and no duty liability would be involved - matter remanded back to the original adjudicating authority - appeal is allowed by way of remand. - E/1999/2010 - A/1028/2011-WZB/C-II(EB) - Dated:- 9-12-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY :S/Shri Prakash Shah with Prasad Paranjape, Advocates, for the Appellant. Shri Y.K. Agrawal, Addl. Commissioner, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. The appeal and application are directed against Order-in-Appeal No. PKS/249/BEL/2010 dated 3-6-2010 passed by the Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es at appropriate rate along with interest. The appellant preferred an appeal against the said order of the Assistant Commissioner before the lower appellate authority. The lower appellate authority vide the impugned order modified the order of the Assistant Commissioner and restricted the demand of duty on the re-imported goods and set aside the demand of duty on the inputs, which have gone into the manufacture of the Tacrolimus batches. Hence the appellants are before us. 3. The learned Counsel for the appellant submits that as per para 6.15(b) of the Foreign Trade Policy 2004-09, it has been provided that no duty shall be payable in case of capital goods, raw material, consumables, spares, goods manufactured, processed or packaged, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue, on the other hand, contends that in the instant case the appellant had given an undertaking at the time of re-importation that they will re-export the goods within a period of six months and inasmuch as they failed to comply with the said undertaking, the duty demand is sustainable. 5. We have carefully considered the rival submissions. 6. After hearing the arguments, we are of the view that the appeal itself can be disposed of at this stage. Therefore, after grant of stay against the recovery of dues adjudged, we take up the appeal itself for disposal. 7. We are of the view that neither the adjudicating authority/appellate authority nor the appellants have taken into account or presented the relevant provisions for considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and restrictions, if any, to which goods of the like kind and value are liable or subject, on the importation thereof. Therefore, in the instant case, the goods which have been re-imported after exportation from India have to be treated as imported goods . Section 23 of the Customs Act, which deals with the remission of duty on lost, destroyed or abandoned goods provides for remission of duty if any imported goods have been lost (otherwise than as a result of pilferage) or destroyed. In the instant case, the goods are neither lost nor destroyed and, therefore, the provision for remission of duty under Section 23 will not apply. However, Section 22 of the Customs Act provides for abatement of duty on damaged and destroyed goods. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, or (b) such goods may be sold by the proper officer by public auction or by tender, or with the consent of the owner in any other manner, and the gross sale proceeds shall be deemed to be the value of such goods. 8. In the instant case, since the goods have been warehoused inasmuch as over 100% EOU is a private bonded warehouse, if any damage occurs at any time before clearance for home consumption on account of any accident not due to any willful act, negligence or default of the owner, his employee or agent, duty shall be chargeable on such goods. The duty to be charged on the goods referred to in sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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