GRAPHITE INDIA LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) By this appeal the appellants challenge the Order -in -Appeal No. C.CUS No. 769/2001, dated 29 -11 -2001 passed by the Commissioner of Customs (Appeals), Chennai by which he has upheld the order passed by the original authority denying the benefit of Notification No. 94/96, and rejected the appeal of the appellants before him.

(2.) The brief facts of the case are that the appellants have filed Bill of Entry No. 017247, dated 22 -5 -2001 for re -importing 490 pieces of Artificial Graphite Products originally exported vide SB Nos. 22417 dated 26 -6 -99, 222957, dated 27 -7 -99 and 23559, dated 2 -9 -99 out of the export of 586 pieces exported under DEPB scheme and 394 pieces exported under the DEEC scheme. The appellants claimed the benefit of Customs Notification No. 94/96. Since the re -import was made beyond the period of one year time limit provided for under the said Notification, they applied to the Commissioner of Customs, for condoning the delay. Inasmuch as on scrutiny of the file by the department, it was noticed by the original authority that the DEEC book concerned was closed, the original authority had passed the order against the appellant against which they filed appeal before the Commissioner (Appeals). It was pleaded by them before the Commissioner (Appeals) that the Deputy Commissioner's order was not an appeallable order and that the denial of the exemption notification in question was only for DEEC re -imports. Therefore, 96 pieces exported under DEPB scheme could have been released for home consumption. They had also pleaded that they had exported more than the required export obligation and even after the subject re -imports, they would have fulfilled the export obligation without any short fall and hence the closure of the DEEC book and logging of entries do not have any bearing on any short realisation of customs duty. Further they have also not enjoyed any double benefits. The plea made by the appellants were rejected by the lower appellate authority by holding that one of the condition in Notification No. 94/96 as amended is that the DEEC book has not been finally closed and export in -question is de -logged from the DEEC book. He has further held that in the instant case it is an undisputed fact that DEEC book has been finally closed and export in question has not been de -logged from the DEEC book. He has also noted the arguments put forth by the appellants to the effect that they have fulfilled the export obligation more than they were required to have fulfilled and hence their request for the benefit deserves to be considered and the procedural lapses if any should not come in the way of grant of benefit to them. The lower appellate authority after considering their submission as noted above has passed the impugned order and upholding the order of the lower original authority against which the present appeal has been filed.

(3.) Apart from reiterating the grounds taken before the lower appellate authority the appellants have also taken the following grounds :