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TMI Blog2024 (2) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 158/95, the importation should take place within three years from the date of original exportation, goods are re-exported within a maximum of twelve months from the date of re importation and when such re-exportation is not effected as per the conditions of the notification, the differential duty liability on account of availment of Notification No 158/95- Cus. at re-importation is liable to paid up by the importer. There is no ambiguity, whatsoever, in the Notification issued by the Central Government. The Notification stipulates to export the goods after repairs or reconditioning within the period as stipulated and 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 re-import and the duty leviable on such goods at the time of importation but for the exemption contained therein. We have considered the contours of the decision of M/s. Indian Rayon and Industries [ 2008 (7) TMI 401 - SUPREME COURT] which while dealing with the Notification No. 158/95-Cus held that once the benefit of Notification No. 158/95-Cus is taken the conditions are required to be fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant. The goods were imported under Four Bills of Entry. 5. Under these 4 Bills of Entry, the appellant had mentioned Notification No.158/95-Cus. dated 14.11.1995 as well as Notification No.45/2017- Cus & Notification No.46/2017-Cus. However, EDI System for filing B/E electronically was incapable of accepting such document with details of multiple notifications; and therefore, Notfn. No.158/95 was recorded on the front page of the bills of entry whereas Notfn. No. 45/2017 was recorded on the subsequent pages. 6. 28.7.2018 A quantity of 424 Kgs was again exported to M/s. Pepsi-Cola (Thai) Pvt. Ltd. of Thailand vide shipping bill No.6522294. Due commercial exigencies and also because the rest of the quantity of re-imported goods could not be reprocessed for achieving the quality standards required for export, the appellant could not re-export the balance quantity of 1.30.310.44 Kgs of Lays Shell Pellets. 7. 25.11.2019 A show cause notice was issued proposing to recover Rs.91.63,943/- being custom duties not recovered on the left out quantity of 1,30,310.44 Kgs not re-exported by the appellant. It was alleged that the appellant has availed the benefit of Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation at a later stage notwithstanding the fact that the citizen/assessee claimed benefit of another Notification at the initial stage. In this regard, the appellant relies upon the following decisions; * M/s. Share Medical Care V/s. Union of India (2007) 4 Supreme Court Cases Page 5723 * HCL Limited vs. Collector of Customs-2001 (130) ELT 405 (SC) * Collector of Central Excise vs. Indian Petro Chemicals - 1997 (92) ELT 13 (SC) * Olam Agro India vs. CC Ahmedabad - 2024 (2) TMI 317 CESTAT Ahmedabad. * Commissioner of Customs (import) Nhava Sheva vs. SK Weaving Pvt. Limited-2018 (361) ELT 383 (Tri-Mum.) * Rallis India Limited vs. Commissioner of Customs. Mumbai 2017 (358) ELT 285 (Tri-Mum.) * Commissioner of Central Excise, Ahmedabad vs. Suresh C. Nayi - 2010 (262) ELT 1116 (Tri-Ahmedabad) * Commissioner of Customs, Chenai vs. Kankai Imports - 2008 (223) ELT 62 (Tri-Chennai) 2.2 In view of this settled legal position, the Principal Commissioner had no jurisdiction to deny benefit of Notification Nos. 45/2017-Cus and 46/2017- Cus in the present case only because the appellant had claimed benefit of Notification No. 158/95-Cus also by furnishing Bonds under such Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Indian Rayon & Industries Ltd. (supra), by virtue of this judgment also allows such alternative benefit to the concerned assessee for one of the three consignments for which conditions of the alternative Notification had been fulfilled, and the alternative benefit of NotificationNo.94/96-Cus stands disallowed in this case for the other two consignments only because conditions of the alternative Notifications were not fulfilled in respect of such consignments of goods initially exported under DEPB scheme. 3.2 The adjudicating authority has wrongly held that the appellant had not claimed benefit of Notification No.45/2017-Cus while filing the Bills of Entry. The appellant has in fact declared in the bills of entry that the goods were imported back under Notification No.45/2017-Cus. Only because Notification No.158/95-Cus had also been mentioned in the Bills of Entry and a Bond with reference to Notification No.158/95 - Cus had been executed by the appellant for each of the four Bills of Entry, the Principal Commissioner had no jurisdiction in concluding that the appellant had not claimed benefit of any other Notification for re-importing the goods in question without payment of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 shipping bills. 3.5 The appellant submits that Imposition of penalty on the appellant is also illegal and without justification because no such penalty could have been imposed on the appellant in the facts of this case. Section 117 of the Customs Act is invoked for imposing penalty on the appellant but penalty thereunder can be imposed only when any person contravened any provisions of the Customs Act or abetted any such contravention or who failed to comply with any provisions of the Customs Act with which it was his duty to comply. In the present case, it is not shown by the Revenue as to which provision of the Customs Act was contravened by the appellant or which contravention was abetted by the appellant or which was the provision that the appellant was duty bound to comply but still failed to comply with. Even otherwise, none of these three conditions is satisfied in the present case and therefore ingredients of Section 117 of the Act were not satisfied for imposing any penalty on the appellant. The appellant therefore, prayed for allowing benefit as prayed by them. 4. As against this, the department through AR submits as follows: 4.1 The Noticee had exported during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the Central Government. The Notification stipulates to export the goods after repairs or reconditioning within the period as stipulated and 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 re-import and the duty leviable on such goods at the time of importation but for the exemption contained therein. 4.4 The notifications are required to be interpreted in the light of the words employed therein and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exemption notification requires to be strictly construed by the Courts. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous, In Commissioner of Customs, Kolkata v Rupa & Co Ltd., (2004) 6 SCC 408, the Hon'ble Supreme Court observed that the exemption notification has to be given strict interpretation by giving effect to the clear and unambiguous wordings used in the notification. This Court has held as under:- "7. However, if the interpretation given by the Board and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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 provisions and the mandatory character imparted to them were matters of important policy. The Court observed: "……….The object of S. 5(2)(a)(ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the importer enjoys full exemption from customs duly at the time of their re-importation. That import governed by conditionalities and requirements and beneficial exemption of one particular notification cannot be transposed into another notification with different conditions. In this regard, reliance was placed on the ratio laid down A by the Hon'ble Apex Court in the case of Indian Rayon and Industries 2008 (229) ELT 3 (SC) wherein the Apex Court ruled that having availed the benefit of Notification No 158/95-Cus the importer has necessarily to comply with the condition of Notification and it is not open for him to contend that conditions in the said notification need not be fulfilled, be it on the ground that benefit under another notification is available to him or otherwise. The relevant portion of the judgment of the Hon'ble Apex Court is reproduced herein below for ready reference : "11. By Notification No. 158/95-Cus, dated 14th November, 1995. goods manufactured in India and re-imported in India for repairs or for reconditioning, are exempted from whole of the duty of customs leviable on them as well as additional duty subject to the condition, inter alia, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority and that as per the decision relied upon by them including of this bench as reported in 2024 (2) TMI 317 CESTAT Ahmedabad Olam Agro Inda vs. CC Ahmedabad alternative exemption notification as against Notification No. 158/95-Cus was permissible even if one failed to re-export the goods within the stipulated period, till the alternative exemption notification i.e exemption Notification No. 94/2006-Cus (in that case) was beneficial to the appellant. 8. Considered. We find that the above decision of Olam Agro Inda vs. CC Ahmedabad was not available to the learned adjudicating authority, when his order was passed. We have also considered the contours of the decision of M/s. Indian Rayon and Industries (cited supra) which while dealing with the Notification No. 158/95-Cus held that once the benefit of Notification No. 158/95-Cus is taken the conditions are required to be fulfilled of the same notification. However, it is also noted that Notification No. 158/95-Cus was the only notification available at the time of re-import for most of the period. We, therefore, direct the learned Commissioner may consider the benefit of Notification No. 45/2017-Cus and 46/2017-Cus dated 30.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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