Cus - Notfn. 158/95 - re-import - just because Commissioner has chosen to sit over appellant's request for extension and not take any decision, benefit of exemption cannot be denied - Appeal allowed: CESTAT
By TIOL News Service
NEW DELHI, NOV 24, 2014: THE appellant had exported a consignment of alloy steel spanners. Some of the alloy steel spanners exported were returned by the foreign buyers for the purpose of repairs. The goods were re-imported. Duty free import of the goods for repair and re-export was claimed under Notification No.158/95-CUS which prescribes certain conditions.
The appellant furnished the required bond backed by the bank guarantee. Since the appellant could not complete repair/re-conditioning within period of six months from the date of re-import they submitted an application to the customs for extending the period of re-export by another six months but no decision was taken on their application for extension of period for re-export.
When the goods were presented for re-export on 27/11/12, the Department objected that the goods have not been re-exported within the stipulated period of six months and further extension of six months has not been granted by the Commissioner. The Assistant Commissioner denied the exemption under Notification No.158/95-CUS and ordered for assessment of duty on the re-imported goods. He observed that the appellant had requested for extension of the period of re-export after the expiry of six months from the date of import and such requests have no relevance.
The Commissioner(A) agreed with the view of the lower authority and, therefore, the appellant is before the CESTAT.
The appellant inter alia submitted that the Customs department is to be blamed as though the goods had been re-imported in November, 2011 and the requisite bond/BG had been executed the out of customs charge was given only on 07/04/2012 and on the extension of period sought by them no decision was taken by the Commissioner. Inasmuch as since the goods were presented for re-export on 27/11/12, that is within a period of one year from import, the benefit of the notification No.158/95-CUS dated 14/11/95 cannot be denied, if the extension had been granted by the Commissioner in time.
The AR defended the order of the lower authorities.
The CESTAT inter alia observed -
"…From the records it is also seen that as per the conditions of the notification, the necessary bond for re-export for an amount of Rs.6,17,448/-, backed by the bank guarantee for the same amount, has been furnished on 21/1/12 and there is also no dispute about the identity of the goods. Still for some inexplicable reasons, the goods were cleared out of customs charge only on 07/04/12. Thus, the goods which should have been cleared for repair and re-export by the end of January 2012 were cleared in first week of April, 2012. Though the appellant on 04/10/12 had applied for extension of the period by another six months, it is seen that absolutely no decision was taken by the Customs. Since, the bill of entry has been filed on 14/12/11 and the goods had been presented to the customs for re-export on 27/11/12, in our view the goods should be treated as having been exported within a period of one year and the benefit of notification should be extended as the notification stipulates the re-export within a period of six months period which can be further extended by the Commissioner by another six months and just because the Commissioner in this case has chosen just to sit over the appellant's request for extension and not take any decision, the benefit of the exemption cannot be denied to the appellant on the ground that they failed to re-export within the extended period in terms of the notification. The another plea of the Department is that it is the date of IGM -dated 24/11/11 which has to be treated as the date of import. In our view this plea is not acceptable, as the IGMs can be filed under prior entry system even before the arrival of the vessel and, therefore, the date of IGM cannot be treated as the date of import. It is the date on which the entry inward is granted which has to be treated as date of import, which in this case is not known."
Holding that the order of the lower authority denying the exemption is not sustainable, the same was set aside and the appeal was allowed.
(See 2014-TIOL-2329-CESTAT-DEL)
