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TMI Blog2024 (2) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the competent authorities and the same not having been sought by the party for considerable length of time. The valuation has not been done with full transparency and such valuation report has not been allowed to be commented upon by the appellants. The grievance thus appears genuine. While in principle, it is agreed that duty in absence of remission was payable, as import which is subject matter of levy can even take place when goods enter in territorial waters. And only in normal case, the collecting point is deferred till Bill of Entry is filed. However, if goods get destroyed on port, the remission provision comes into play, which in this case was not sought. The assessment of duty etc, however has to be done on proper valuation after following natural justice, therefore, it is held that containers though could be subjected to duty, but assessment has to be on proper valuation arrived as per provisions and by following of natural justice - Appeal is allowed by way of remand on this aspect. Penalty - HELD THAT:- Section 114(A) requires malicious intent cannot be sustained in the facts of this matter specifically considering the supervening fact of fire after imports. Same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as imported into India and no duty of customs is payable by it. They relied upon the decision of Hon ble Apex Curt in the case of Garden Silk Mill Ltd. V/s. UOI- 1999 (113) ELT 358(SC). In the present case appellant has availed the benefit of Notification No. 104/1994 as amended For the sake of clarity Text of Notification No. 104/1994 is reproduced as below:- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (32 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts containers which are of durable nature, falling within the First Schedule to the Customs Tariff Act, 1975 (31 of 1975), when imported into India, from, - (a) the whole of the duty of customs leviable thereon under the said First Schedule; and (b) the whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act Provided that the importer, by execution of a bond in such form and for such sum as may be specified by the Assistant Commissioner of Customs or Deputy Commissioner of Customs binds himself to re-export the said containers within six months from the date of their importation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the mass of the goods within the country - Taxable event is reached when the goods reach the Customs barrier and Bill of Entry for home consumption is filed - Sections 2(23), 2(27) and 12 of the Customs Act, 1962. The import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country; the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. [1964 (3) SCR 787 (S.C.), 1999 (112) E.L.T. 3 (S.C.) and 1989 (43) E.L.T. 189 (S.C.) followed). (para 16] Customs duty - Taxable event is reached when the goods reach the Customs barrier and the Bill of Entry for home consumption is filed - Section 12 of Customs Act, 1962. [para 16] 4.4 Thus, in view of the above, order confirming duty demand is liable to be quashed only on this ground alone as the disputed containers never left the customs barriers. 4.5 Appellant submits that duty cannot be demanded under Section 28 of the Customs Act, 1962 in the situation like present one. Appellant without admitting anything further submits that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been determined for assessment of duty and therefore the said order does not have the authority of law and must, therefore, be set aside. 4.8 Appellant without admitting anything further submits that the learned Commissioner (Appeals) has found that disputed containers were imported in 2010 and even after completion of 5 years same were not re-exported but he failed to judge that demand was raised under Section 28 of the Customs Act, 1962 only on 27.04.2016. It means order confirming demand beyond the period of 5 years stipulated in the said section is beyond scope of the provisions of the Customs Act, 1962. Therefore, order upholding demand under Section 28 with imposition of penalty of amount equal to duty under Section 114A of the Customs Act, 1962 is liable to be set aside. 4.9 Appellant without admitting anything further submits that it is admitted facts on record that most of the containers were damaged and not fit for use, therefore, valuation arrived at by the department in Annexure - B to the show cause notice is totally baseless and contrary to the provisions of Section 14 read with Section 22 and Customs Valuation Rules, 2007. To be precise, appellant respectfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t), Nhava Sheva 2009 (237) ELT 354 (Tri-Mum) - Pol India Agencies Ltd Vs. CC, Raigad 8. We have considered the rival submissions, we find that the appellant have availed benefit of Notification No. 104/94 which permits Duty Free Import of the container subjected to the condition that they are re-exported within six months. In the instance case, same could not be re-exported within six months purportedly due to some fire on the port and damage to other containers, out of 39 containers brought in at the port. Thus, there was clearly a breach of condition of exemption notification and in the absence of any remission or waiver of duty having been granted by the competent authorities and the same not having been sought by the party for considerable length of time. The department through a valuer got duty worked out and same was duly discharged by the appellant after paying R.I. The reliance on the matter of Pol India Agencies Ltd Vs. CC, Raigad reported in 2009 (237) ELT 354 (Tri.-Mum.) has been properly place by the Commissioner (Appeals) while demanding and confirming the duty. However, we find that in the instant case there has a clear cut finding that the container was damaged due t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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