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TMI Blog2009 (2) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... r. M. K. Rajak, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)].- The appellant-company claimed the benefit of Notification No. 158/95 Sl. No. 2(d) in respect of import of 203.445 MTs of High Voltage Solid Core Porelain Insulators. According to the notification the goods were required to be re-exported within 6 months of import after necessary process but the appellants could not do so even though extension of time was also granted on their request. Subsequently, the appellants requested for finalization of assessment and converted their claim for the benefit of Notification No. 94/96 dt. 16-12-96 (Sl. No. 2A) instead of Notification No. 158/95-Cus. The request for finalization of assessment under Notification No. 94/96 was allowed. Further, the request for utilization of DEPB scrip for payment of duty was also permitted by the Department. However, the original authority held that the appellants are required to pay interest because of delay in the debit of DEPB to the extent of Rs. 3,74,731/-, confirmed demand of Special Additional Duty, (SAD) at 4% and also held that the duty payable under Notification No. 94/96- Cus. is basic customs duty and not additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 23/02 is not available is correct. 3. We have considered the rival submissions and the records of the case. First of all we are unable to agree with the view that duty is chargeable u/s 20 on the re-imported goods and not u/s 12. Both the sections of the Customs Act are reproduced below for ready reference. Section 12 - Dutiable goods - (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India. (2) The provisions of sub-section (1) shall apply in respect of all goods be longing to Government as they apply in respect of goods not belonging to Government. Section 20 - "Re-importation of goods. - If goods are imported into India after exportation therefrom, such goods shall be liable to duty and be subject to all the conditions and restrictions, if any, to which goods of the like kind and value are liable or subject, on the importation thereof." 4. It may be seen that the provisions of Section 20 provide that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs duty in the bills of entry because the combined exemption notification lacks clarity in this regard, cannot be held against the appellant's claim to Modvat credit. 6. The Tribunal recognized that the scheme of the Notification only measures the quantum of additional customs duty as equivalent to the Central Excise duty leviable and the nature of duty charged is only additional customs duty. However, we find that in the other two decisions in M/s. ACE Designers Ltd. and in M/s. Lokesh Machine Ltd. cited by the appellant, Tribunal has held that goods which have been imported claiming the benefit of Notification No. 94/96, are exempt from SAD. In M/s. ACE Designers Ltd. case, the Tribunal held that customs duty is clearly exempted by Notification No. 94/96. SAD was integrally connected with the basic customs duty. It was held in the decision that "customs duty is clearly exempted by the Notification No. 94/96. It follows that all other connected duty chargeable along with the basic excise duty is also exempted." In M/s. Lokesh Machine Ltd. case also, the Tribunal held that as per Notification No. 94/96 goods were exempted from basic customs duty and additional duty of cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act does, not authorise levy of Central Excise duty on any goods imported to India. Import as defined in Section 2(23) of Customs Act, 1962 means bringing goods into India from a place outside India and, therefore, re-import also is nothing but import. Section 12 which is the charging Section for levy of Customs Duty authorises levy of Customs Duty on goods imported to India as prescribed under the Customs Tariff Act or any other law for the time in force. Section 3 of Central Excise Act authorises levy of Excise duty on goods produced or manufactured in India and there is no provision under that Act also to levy Central Excise duty on goods imported into India. The interpretation of Notification No. 94/96-Cus. that it exempts the re-imported goods from all types of Customs duty subject to payment of amount of Central Excise duty not paid is, therefore, not in conformity with the statutory provisions as payment of Central Excise duty on re-imported goods cannot be imposed through a Notification issued under Section 25 of the Customs Act, 1962. The Notification issued under Section 25(1) of the Customs Act, 1962 can exempt the goods only from whole or in part of duty of Customs levi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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