LINZII Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with predeposit and allowing the appellant's application for early hearing of the appeal, we proceed to deal with the appeal.

(2.) THE appellants had exported a consignment of cotton fabrics to Commonwealth of DOMINICA under a Shipping Bill filed under DEPB Scheme. Due to some reason, the consignment was recalled and Bill of Entry dated 19.10.2004 was filed for its clearance claiming the benefit of customs Notification No. 158/95 dated 14.11.1995. The assessment was done accordingly. Later on, when the Department, in a letter, demanded full duty on the re -imported goods in the wake of noncompliance with the conditions of the above Notification, the assessee raised an alternative claim for the benefit of Notification No. 94/96 -Cus dated 16.12.96 (as amended). The claim of the assessee was under Sl. No. 1(d) of the table annexed to the Notification. Under this entry, it was enough for the assessee to pay the amount of Central Excise duty not paid. So much of the Basic Customs Duty (BCD) (Section 12 of the Customs Act), Additional Customs Duty (ACD) (Section 3 of the Customs Tariff Act) and Special Customs Duty (SCD) (Section 68(1) of the Finance (2) Act, 1996) as was in excess of such amount of Central Excise duty was exempt under the above Notification. The original authority, in adjudication of the dispute, passed the following order.

(3.) AFTER considering the submissions of both sides, we find that the export in this case had been made under DEPB Scheme. The fact that the sale proceeds were not collected by the party and consequently there was no realization of foreign exchange would not detract from this position. In other words, the export should be one to be considered to have been made under DEPB Scheme. Consequently, Sl. No. 2A in the table annexed to Notification No. 94/96 -Cus gets attracted. The relevant entry is reproduced below: