Sumitomo Electric Hardmetal Vs. Cc

Sumitomo Electric Hardmetal vs Cc

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Dec 12, 2005

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Citation: sooperkanoon.com/41113
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: M T K.C.
Decided On: Dec 12, 2005
Subject: Customs

Case Summary

AI-generated summary - not the official court judgment text.

Customs

Key legal issue: Customs

Parties & Advocates

Appellant / Petitioner

Sumitomo Electric Hardmetal

Respondent

Excerpt

.....duty should have been charged under notification no. 94/96-cus. dated 16.12.1996. finally, it was pleaded that if they had re-exported the goods alter expiry of one year, since the goods have been re-exported, they should be given drawback under section 74 of the customs act.3. on behalf of the revenue, it was pleaded that once the appellants have re-imported the goods under notification no. 158/95, they cannot claim assessment now under notification no. 94/96 as the benefit of notification is to be taken at the time of import at the time of assessment of bill of entry. in this case, the appellant had claimed benefit of notification no. 158/95 for assessment at nil rate of duty and executed bond for fulfillment of export obligations. therefore, they cannot switch over to another notification now. under notification no. 158/95, the benefit of extension is permitted only for six months from the expiry of period of initial six months. the appellants have exported the goods after expiry of one year from the date of clearance of goods from the custom. therefore, even if the extension would have been there, they would not have fulfilled the condition of notification no. 158/95. therefore, the demand has been correctly confirmed by the lower authorities.4. i have examined the submissions made by both sides. i find that the date of clearance of goods after re-importation should be taken as the date on which these goods were cleared from the custom authority i.e.19.11.2000. since the appellant has executed the bond for re-export of these goods under notification no. 158/95 and they failed to re-export the goods irrespective of denial of extension to them within one year, therefore, as per condition of the bond and the notification no.158/95, the duty has been correctly demanded from them and correctly confirmed by the lower authority. the learned advocate for the appellants relied on the decision of the tribunal in the case of indian rayon & industries ltd. v. cc,.....

Full Judgment

1. The appellants had exported cutting tools under shipping bill No.7823314 dated 3.7.2000. These goods were reimported under bill of entry No. 228291 dated 17.11.2000 containing 200 pieces of super hard material tools, claiming benefit of notification No. 158/95-Cus. dated 14.11.95. The goods were examined at the port with the shipping bill No. 7823314 dated 3.7.2000 and found to be identified with it. At the time of re-import, the bond to comply with the conditions of the notification No. 158/95-Cus. was also executed. According to condition No. 2 of the said notification, the appellants were required to re-export the goods within six months from the date of re-importation or such extended period not exceeding a further period of six months as the Commissioner of customs may allow. The goods were finally re-exported on 4.12.2001 after expiry of six months. Demand notice was issued to the appellants demanding duty of Rs. 1,49,717/-. The duty was confirmed by the original authority and the order of the original authority was upheld by the Commissioner (appeals).

2. The main pleading before me is that they have applied for extension of period of six mouths on 2/8.2001 for further period of six months.

However, their application was rejected on the ground that they have applied after the expiry of six months from the date of import (filing of IGM) and thereafter demand notice was issued which was confirmed. It is pleaded that the goods were cleared by them from the custom on 19.11.2000 and as per Board's circular No. 14/97 dated 3.6.1997 issued from F. No. 435/3/95-Cus.IV, CBEC has clarified that for the purpose of notification No. 158/95-Cus. dated 14.11.95 the time limit of six months as stipulated in the said notification for the purpose of re-export is to be calculated from the date of actual clearance of the goods and not from the filing of bill of entry. Since they have cleared the goods on 19.11.2000, the period of six months had not expired on 8.5.2001 when they made an application for extension. Therefore, rejection of extension is not based on law. It was also pointed out that when they have applied to re-export the goods within the prescribed time, then duty should have been charged under notification No. 94/96-Cus. dated 16.12.1996. Finally, it was pleaded that if they had re-exported the goods alter expiry of one year, since the goods have been re-exported, they should be given drawback under Section 74 of the Customs Act.

3. On behalf of the Revenue, it was pleaded that once the appellants have re-imported the goods under notification No. 158/95, they cannot claim assessment now under notification No. 94/96 as the benefit of notification is to be taken at the time of import at the time of assessment of bill of entry. In this case, the appellant had claimed benefit of notification No. 158/95 for assessment at Nil rate of duty and executed bond for fulfillment of export obligations. Therefore, they cannot switch over to another notification now. Under notification No. 158/95, the benefit of extension is permitted only for six months from the expiry of period of initial six months. The appellants have exported the goods after expiry of one year from the date of clearance of goods from the custom. Therefore, even if the extension would have been there, they would not have fulfilled the condition of notification NO. 158/95. Therefore, the demand has been correctly confirmed by the lower authorities.

4. I have examined the submissions made by both sides. I find that the date of clearance of goods after re-importation should be taken as the date on which these goods were cleared from the custom authority i.e.

19.11.2000. Since the appellant has executed the bond for re-export of these goods under notification No. 158/95 and they failed to re-export the goods irrespective of denial of extension to them within one year, therefore, as per condition of the bond and the notification No.158/95, the duty has been correctly demanded from them and correctly confirmed by the lower authority. The learned advocate for the appellants relied on the decision of the Tribunal in the case of Indian Rayon & Industries Ltd. v. CC, Calcutta, and pleaded that if the appellant could not successfully re-export within the period prescribed in the notification No. 158/95, the duty liable to be paid is the duty of central excise as applicable. I find that in the present case, the appellants have re-exported the goods after expiry of one year. Therefore, the question of charging of central excise duty does not arise and the duty charged from them under notification No. 158/95-Cus. is the correct duty. However, since the goods have been re-exported, the appellants if entitled for duty drawback, can claim before appropriate authority.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Sumitomo Electric Hardmetal vs Cc Same Subject Customs Same Judge M T K.C.