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TMI Blog2024 (2) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) vide Order-in-Original No. AHD-CUSTM-000-APP-101-16-17 dated 07.03.2017 remanded the case to the original authority for passing the order after considering all the documents and evidence and following the principle of natural of justice. Against the said order-in-appeal dated 07.03.2017, the appellant filed an appeal before the CESTAT Ahmedabad. The same was dismissed, holding that the Commissioner is right in remanding the matter to the Adjudicating Authority. The Adjudicating authority passed the de-novo order whereby the request for changing of Notification No. 158/1995-Cus dated 14.11.1995 to Notification No. 94/1996-CUS dated 16.12.1996, in the bill of entry dated 29.01.2014 was rejected. Being aggrieved by the order-in-original dated 30.06.2018, the appellant preferred an appeal before the Commissioner (Appeals) who vide the impugned order rejected the appeal of the appellant only on the reliance of the Hon'ble Supreme Court judgment in the case of Commissioner of Customs Calcutta Vs. Indian Rayon & Industries Ltd. 2008 (229) ELT 3 (SC), therefore, the present appeal filed by the appellant. 2. Shri M Balagopal, Learned Counsel appearing on behalf of the appellant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-CUS. The only criteria to be seen that whether at the time of import the alternate exemption notification was legally available to the appellant. In the facts of the present case, there is no dispute about eligibility of the Notification 94/2006-Cus in respect of the import made by the appellant as the goods were meant for re-export. 4.1 We find that both the lower authorities have denied the change of the notification only on relying upon the Hon'ble Supreme Court judgment in the case of Indian Rayon & Industries Ltd. (supra). Now we examine the facts of the case in Indian Rayon & Industries Ltd. (Supra). Ongoing through the said judgment, we find that Hon'ble Supreme Court concluded the matter as under:- "9. Counsel for the parties have been heard. 10. Section 20 of the Customs Act, 1962, which deals with re-importation of the goods, provides:- "20. Re-importation of goods. - If goods were imported into India after exportation therefrom, such goods shall be liable to duty and be subjected 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." 11. By Notification No. 158/95-Cus. dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o import goods without payment of duty, it is not open to the assessee to contend that the conditions in the said notification need not be fulfilled, be it on the ground that the benefit under another notification is available to him or otherwise. 14. In any event, Notification No. 94/96-Cus. is, on its own terms, not applicable to the facts of the present case. The assessee has claimed the benefit under clause 1(e) of Notification No. 94/96-Cus. The description of the goods claimed in Serial No. 1(e) under Notification No. 94/96-Cus., which reads as under : Sl. No. Description of goods Amount of duty (1) (2) (3) 1. Goods exported (a). XXX (b). XXX (c). XXX (d). XXX (e). under duty exemption scheme (DEEC) or export Promotion Capital Goods Scheme (EPCG) XXXXX XXXXX XXXXX XXXXX XXXXX Amount of excise duty leviable at the time and place of importation of goods and subject to the following conditions Applicable for such Goods (I) DEEC book has not been finally closed and export in question is delogged from DEEC book. (II) (II)In case of EPCG scheme the period of full export performance has not expired and necessary endorsements regarding reimport have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where duty becomes payable under the provisions of Central Excise Act, 1944 or the Customs Act, 1962, as the case may be, and to the Customs or Excise duties leviable on goods so exported. They do not deal with imports or exports under the EXIM Policy which fall in Sl. No. 1(e). 16. Rule 13 of the Central Excise Rules, 1944, which was in force at the time of initial export of goods in question (February 1998), provides as under: "RULE 13- Export in bond of goods on which duty has not been paid (1)The Central Government may, from time to time, by notification in the Official Gazette (a)permit export of specified excisable goods in bond without payment of duty, in the like manner, as the goods regarding, which the rebate is granted under sub-rule (1) of rule 12 from a factory of manufacture or warehouse or any other premises as may be approved by the Commissioner of Central Excise; (b) specify materials, removal of which without payment of duty from the place of manufacture or storage for use in the manufacture in bond of export goods, may be permitted by the Commissioner of Central Excise; (c) allow removal of excisable material without payment of duty for the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs restored. Ordered accordingly. Appeal is allowed with costs." 4.2 From the above observation of the Hon'ble Supreme Court, it can be seen that the claim of the appellant to the extent the benefit of notification 94/1996-CUS was declined for the reason that the bill of entries involved in that case were dated 12.08.1998 and 28.05.1998 whereas in the present cases the bills of entry are dated 29.01.2014. During the relevant period of filing the bill of entry in the present case, the Notification No. 94/1996-Cus was very much available to the appellant in terms of amendment Notification No. 135/99-Cus dated 27.12.1999 whereby an entry as Sr. No. 2A was inserted. Whereas in the case of Indian Rayon, the date of bill of entries being 12.08.1998 and 29.05.1998 i.e. prior to the amendment in the Notification dated 27.12.1999. The facts are totally different, hence the reliance on the judgment in the case of India Rayon Industries (Supra) by both the lower authorities is misplaced. 4.3 We further find that the issue whether subsequent to import, appellant can claim alternate exemption notification is settled by the Hon'ble Apex Court in the case of Share Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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