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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 ..... ellants 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 Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (T) = 2003 (57) RLT 945 (CESTAT-Mum.)]. He also relied upon the decisions of the Tribunal in CC v. ACE Designers Ltd. [2006 (200) E.L.T. 85 (T)] and CC v. Lokesh Machine Ltd. [2006 (200) E.L.T. 466 (Tri.-Bangalore) = 2006 (74) RLT 935 (CESTAT-Ban.)] in support of his contention that the goods re-imported under Notification No. 94/96 are exempt from SAD. On the other hand the ld. DR relies upon the decision of the Tribunal in M/s. Manugraph Industries Ltd. [2008 (228) E.L.T. 388 (Tri.-Mum.) = 2008 (86) RLT 396 (CESTAT-Mum.)] and the decision of the Hon'ble Supreme Court in M/s. Tata Tea Ltd. [1999 (114) E.L.T. 775 (S.C.) = 1999 (35) RLT 907 (SC)] in support of his contention that re-imported goods have to be treated as imported goods and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods. The section only provides how to treat the re-imported goods. Therefore the charging section for the goods imported or re-imported is Section 12 only. Further Section 2(25) of the Customs Act defines imported goods as "imported goods means any goods brought into India from a place outside but does not include goods which have been cleared for home consumption". Section 2(25) does not differentiate between imported and re-imported goods. Thus the definition of the imported goods and provisions of Section 12 and Section 20 clearly show that the re-imported goods have to be treated as imported goods. If the re-imported goods were to be treated differently. Notification No. 94/96 would also not be required to provide exemption since i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the head of basic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Central Excise duty. 8. However, we find that the same issue had come up before the Tribunal in M/s. Manugraph Industries Ltd. case referred to above. The observations of the Tribunal in para 4 of the order are relevant and are reproduced below:- "4. We have perused the records and examined the position. A reading of the text of the Notification will show that the re-imported goods are exempted from so much of the duty of the Customs which comprises of basic duty + additional duty of customs + special duty of Customs as is in excess of the amount indicated in the column No. 3 of the table appended to the Notification, and in Column No. 3 against Sr. No. 1(d) which is relevant to the present case, the amount indicated is the amount of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 leviable on imported goods. In the case of Notification No. 94/96-Cus., the re-imported goods have been exempted from Customs duty excluding SAD as is in excess of the Customs duty, which is equal to the amount of Central Excise duty not paid. Seeing or interpreting this notification to mean that all types of Customs duty are exempted subject to payment of Central Excise duty is, therefore, not correct." 9. In the above decision, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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