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TMI Blog2020 (10) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... o be determined by the concerned Adjudicating Authority when such a claim of duty drawback was made by the Assessee. Therefore, that issue cannot be prejudged either by the Tribunal or by this Court. On the admitted breach of the Notification No.158/95/Cus, the Assessee/ Importer definitely became liable to pay the custom duty in question, denying the exemption under the said Notification in view of the admitted delay beyond the period of 12 months, for the re-export of the same goods. The learned CESTAT therefore in our opinion was justified in denying the said exemption to the Assessee and also rejecting the Rectification Application filed by the Assessee. What Tribunal has done is nothing but asking the Assessee to comply with the law. Duty Drawback - HELD THAT:- The question of claiming duty drawback by the Assessee was yet to arise, when such claim was made in accordance with law. This claim cannot be prejudged and holding it to be revenue neutral situation without that claim being examined would be premature and therefore, the learned Tribunal was justified in denying that relief to the Assessee. So also, we too cannot examine and decide the issue prematurely. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India for repairs or for reconditioning 1. Such reimportation takes place within 3 years from the date of exportation; 2. Goods are reexported within six months of the date of reimportation or such extended period not exceeding a further period of six months as the Commissioner of Customs may allow; 3. The Assistant Commissioner of Customs is satisfied as regards identity of the goods; 4. The importers at the time of importation executes a bond undertaking to-(a) export the goods after repairs or reconditioning within the period as stipulated; (b) pay, on demand, in the event of his failure to comply with any of the aforesaid conditions, an amount equal to the difference between the duty levied at the time of reimport and the duty leviable on such goods at the time of importation but for the exemption contained herein. From the above, what emerges is that to be eligible for the benefit under Notification No.158/95, the importation should take place within three years from the date of original exportation, goods are reexported within a maximum of twelve months from the date of re-importation and when such re-exportation is not effected as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner MANU/SC/0035/1992 : 1991 (55) ELT 437 (SC), non-observation of a procedural condition of a technical nature is condonable, while that of a substantive condition is not, since it would otherwise facilitate commission of fraud and introduce administrative conveniences. The relevant portion of this judgment of Hon'ble Apex Court is reproduced below makes for illuminating reading: 11. ....... The consequence which Shri Narasimhamurthy suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. In Kedarnath's case itself this Court pointed out that the stringency of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessee on 5 February 2020, against which the present CMAs have been filed with the delay of 756 days which is explained on account of the fact that after review, both the Original Order of Tribunal dated 31 August 2017 and the Review Order dated 5 February 2020 have been assailed in the present appeals. For the aforesaid reasons, we have condoned the delay and heard the matters for admission. 5. The learned counsel for the Appellant/Assessee also emphasized that the second question framed by the learned Tribunal that since the Assessee was entitled to claim a duty drawback on the duty, if paid by the Assessee on such re-export of the goods beyond the prescribed time limit of one year, under the Notification No.158/95/Cus and therefore, since it will be a revenue neutral situation, therefore, there is no point in the Assessee being required to first pay the said custom duty and then claim the duty drawback, and though the learned Tribunal in its order quoted above has said that the Assessee will be entitled to claim duty back towards the duty suffered when the goods are re-exported but still held that the Assessee should first pay the custom duty because admittedly the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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