ial India Ltd. Vs. Commissioner of Customs (i), Mumbai - Court Judgment

SooperKanoon Citationsooperkanoon.com/941993
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnJun-19-2012
Case Number Application No. C/COD/1203/12 & C/Stay/1307/12 In Appeal No. C/503/12 (Arising out Order-in
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL)
Appellantial India Ltd.
RespondentCommissioner of Customs (i), Mumbai
Advocates:For the Appellant : Shri Brijesh Pathak, Advocate. For the Respondent : Shri A.K. Prabhakar, (AR).
Excerpt:
ashok jindal, member (judicial) appellant are in appeal along with application for stay along with condonation of delay in filing the appeal. 2. after considering the reasons stated for delay in filing the appeal, we are satisfied and delay is condoned by allowing the application for condonation of delay. 3. as the issue involved is of narrow compass, therefore we dispose of the appeal along with stay application today itself. 4. the facts of the case are that the appellant are shipping agent and they imported various containers free of duty and executed bond taking the benefit of notification 104/94-cus dated 16.3.1994 read with public notice no. 59/94 dated 03.06.1994 for import of containers duty free with a condition to re-export the container within a period of six months or such extended period, if any. the appellant imported three containers on 02.04.2008 and same could not be re-exported within a period of six months. therefore, they moved an application for extension of time for re-export on 30.12.2008 and same was pending disposal. a show-cause notice was issued on 23.4.2009 for denying the benefit of notification 104/94 and demanding duty and confiscation of the containers and proposing penalty on the appellant. the show-cause notice was adjudicated, duty demand of rs.2,18,751/- was confirmed, container was allowed to be released after confiscation on payment of redemption fine of rs.70,000/- and penalty of rs.20,000/- is imposed on the appellant. aggrieved from the order, the appellant is before us. 5. shri brijesh pathak, ld. counsel appeared before us and submitted that the appellant were in regular correspondence with the importer for destuffing the container but the importer could not do the same within the period of six months, thereafter they filed an application for extension of time, same is pending for disposal. they also wrote to the department in january 2009 but nothing has been done and they were under bonafide belief that they could export the containers within time by taking the benefit of notification 104/94. as the containers are still lying at the port, duty, redemption fine and penalty be waived. 6. heard the ld. counsel. considered the submissions and perused the record. 7. we find that it is an admitted fact that the containers imported in april 2008 are still lying at port. the said containers were imported duty free by taking the benefit of notification 104/94 by executing a bond to re-export the said containers within six months. as the said containers have not been re-exported within the stipulated period, therefore, same are held liable to be confiscated. as the containers have not been re-exported, therefore the appellant is liable to pay duty. 8. considering the facts and circumstances of the case, we find that the redemption fine and penalty imposed on the appellant are higher side as the appellant could not re-export the three containers within six months by making every effort with the importer to destuff the containers, we reduce the redemption fine to rs.7000/- (rupees seven thousand only) and penalty to rs.5000/-(rupees five thousand only). 9. in these terms, stay application as well as the appeal are disposed of.
Judgment:

Ashok Jindal, Member (Judicial)

Appellant are in appeal along with application for stay along with condonation of delay in filing the appeal.

2. After considering the reasons stated for delay in filing the appeal, we are satisfied and delay is condoned by allowing the application for condonation of delay.

3. As the issue involved is of narrow compass, therefore we dispose of the appeal along with stay application today itself.

4. The facts of the case are that the appellant are shipping agent and they imported various containers free of duty and executed bond taking the benefit of Notification 104/94-Cus dated 16.3.1994 read with Public Notice no. 59/94 dated 03.06.1994 for import of containers duty free with a condition to re-export the container within a period of six months or such extended period, if any. The appellant imported three containers on 02.04.2008 and same could not be re-exported within a period of six months. Therefore, they moved an application for extension of time for re-export on 30.12.2008 and same was pending disposal. A show-cause notice was issued on 23.4.2009 for denying the benefit of Notification 104/94 and demanding duty and confiscation of the containers and proposing penalty on the appellant. The show-cause notice was adjudicated, duty demand of Rs.2,18,751/- was confirmed, container was allowed to be released after confiscation on payment of redemption fine of Rs.70,000/- and penalty of Rs.20,000/- is imposed on the appellant. Aggrieved from the order, the appellant is before us.

5. Shri Brijesh Pathak, ld. counsel appeared before us and submitted that the appellant were in regular correspondence with the importer for destuffing the container but the importer could not do the same within the period of six months, thereafter they filed an application for extension of time, same is pending for disposal. They also wrote to the department in January 2009 but nothing has been done and they were under bonafide belief that they could export the containers within time by taking the benefit of Notification 104/94. As the containers are still lying at the port, duty, redemption fine and penalty be waived.

6. Heard the ld. counsel. Considered the submissions and perused the record.

7. We find that it is an admitted fact that the containers imported in April 2008 are still lying at port. The said containers were imported duty free by taking the benefit of Notification 104/94 by executing a bond to re-export the said containers within six months. As the said containers have not been re-exported within the stipulated period, therefore, same are held liable to be confiscated. As the containers have not been re-exported, therefore the appellant is liable to pay duty.

8. Considering the facts and circumstances of the case, we find that the redemption fine and penalty imposed on the appellant are higher side as the appellant could not re-export the three containers within six months by making every effort with the importer to destuff the containers, we reduce the redemption fine to Rs.7000/- (Rupees seven thousand only) and penalty to Rs.5000/-(Rupees five thousand only).

9. In these terms, stay application as well as the appeal are disposed of.