Ani Marble and Granite Vs. Cc - Court Judgment

Excerpt:
1. the appellants were manufacturers and exporters of 'polished granites'. they had exported polished granites vide shipping bill no.2831 dated 21.12,1996. as the buyer failed to pay the cost of the material, they were constrained to call back the goods and accordingly they re-imported the goods vide bill of entry no. 50398 dated 17.9.1997. their claim for exemption under customs notifications no.158/95 and 94/96 was rejected and the consignment was treated as a fresh import for the purpose of assessment and accordingly it was assessed on merits. the party cleared the goods on payment of duty.however, they claimed refund of the excess duty paid on the goods, which was rejected by the original authority, which held that what was paid by the party at the time of clearance of the re-imported goods was only the appropriate duty which was liable to be paid in terms of section 20 of the customs act. the order of the original authority was sustained by the commissioner (appeals). hence the present appeal.2. heard both sides, it was pointed out by id. consultant for the appellants that, oh a similar set of facts, the tribunal had held in the case of indian rayon & industries ltd. v. cc calcutta that the re-imported goods should be assessed to duty at the rates specified in the table annexed to notification no.94/96-cus. ld. jdr reiterated the findings of thee commissioner (appeals).3. after examining the submissions, we find that in the case of indian rayon & industries ltd. (supra) the party had exported four consignments of yarn and re-impprted the same upon rejection of the goods by their buyers. they claimed clearance of the re-imported goods by executing a bond without payment of duty in terms of notification no. 158/95. this notification stipulated the conditions for duty-free clearance of such re-imported goods for eventual re-export after repairs, re-conditioning, etc., subject to conditions of re-export laid down in the notification. out of the four consignments, the party could re-export one consignment within the period prescribed under notification no. 158/95. out of the three remaining consignments which could not be exported in terms of the said notification for various reasons, one consignment was exported under deec scheme and the remaining consignments were exported under depb scheme. on these facts, the tribunal, after examining the amended provisions of section 20 of the customs act, held that, where the re-imported goods were not exported within the period prescribed under notification no. 158/95, the quantum of duty recoverable on the goods required to be determined with reference to effective rates for home consumption under any other notification which might be applicable to like goods. accordingly, it was held that notification no. 94/96 which provided for rates of duty for goods which were originally exported but subsequently re-imported, was applicable to the three consignments aforesaid. we find that the benefic to this decision of the tribunal is available to the goods in question. accordingly the appellants are eligible for the benefit of notification no. 94/96-cus, 4. in the result, we set aside the orders of both the lower authorities and remand the case to the original authority for passing a speaking order in view of the tribunal's decision in indian rayon & industries ltd. (supra). appeal stands allowed by way of remand.(operative portion of the order was pronounced in open court on 9.2.2005).

Judgment:
1. The appellants were manufacturers and exporters of 'polished granites'. They had exported polished granites vide Shipping Bill No.2831 dated 21.12,1996. As the buyer failed to pay the cost of the material, they were constrained to call back the goods and accordingly they re-imported the goods vide Bill of Entry No. 50398 dated 17.9.1997. Their claim for exemption under Customs Notifications No.158/95 and 94/96 was rejected and the consignment was treated as a fresh import for the purpose of assessment and accordingly it was assessed on merits. The party cleared the goods on payment of duty.

However, they claimed refund of the excess duty paid on the goods, which was rejected by the original authority, which held that what was paid by the party at the time of clearance of the re-imported goods was only the appropriate duty which was liable to be paid in terms of Section 20 of the Customs Act. The order of the original authority was sustained by the Commissioner (Appeals). Hence the present appeal.

2. Heard both sides, It was pointed out by Id. Consultant for the appellants that, oh a similar set of facts, the Tribunal had held in the case of Indian Rayon & Industries Ltd. v. CC Calcutta that the re-imported goods should be assessed to duty at the rates specified in the table annexed to Notification No.94/96-Cus. Ld. JDR reiterated the findings of thee Commissioner (Appeals).

3. After examining the submissions, we find that in the case of Indian Rayon & Industries Ltd. (supra) the party had exported four consignments of yarn and re-impprted the same upon rejection of the goods by their buyers. They claimed clearance of the re-imported goods by executing a bond without payment of duty in terms of Notification No. 158/95. This Notification stipulated the conditions for duty-free clearance of such re-imported goods for eventual re-export after repairs, re-conditioning, etc., subject to conditions of re-export laid down in the Notification. Out of the four consignments, the party could re-export one consignment within the period prescribed under Notification No. 158/95. Out of the three remaining consignments which could not be exported in terms of the said Notification for various reasons, one consignment was exported under DEEC Scheme and the remaining consignments were exported under DEPB Scheme. On these facts, the Tribunal, after examining the amended provisions of Section 20 of the Customs Act, held that, where the re-imported goods were not exported within the period prescribed under Notification No. 158/95, the quantum of duty recoverable on the goods required to be determined with reference to effective rates for home consumption under any other notification which might be applicable to like goods. Accordingly, it was held that Notification No. 94/96 which provided for rates of duty for goods which were originally exported but subsequently re-imported, was applicable to the three consignments aforesaid. We find that the benefic to this decision of the Tribunal is available to the goods in question. Accordingly the appellants are eligible for the benefit of Notification No. 94/96-Cus, 4. In the result, we set aside the orders of both the lower authorities and remand the case to the original authority for passing a speaking order in view of the Tribunal's decision in Indian Rayon & Industries Ltd. (supra). Appeal stands allowed by way of remand.

(Operative portion of the order was pronounced in open Court on 9.2.2005).