REKHA OVERSEAS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) M /s. Rekha Overseas, appellants in the 1st four appeals, had imported duty -free 80.576 MTs of Cassia valued at Rs. 31,22,337/ - in terms of a quantity based advance licence dated 21 -4 -1992 issued by the Chief Controller of Imports and Exports (under the Ministry of Commerce, Government of India), under the DEEC Scheme and Customs Notification No. 159/90 as amended by Customs Notification No. 122/92. These imports were in 4 consignments and the clearances were made under 4 Bills of Entry with the following particulars:

(2.) HEARD both sides. Ld. Counsel for the appellants reiterated the grounds of the appeals and stressed the point that the documentary evidence of M/s. Rekha Overseas having discharged their export obligation relating to the imported Cassia, in terms of the DEEC Scheme, had not been rebutted by the Department. The entire case of the Department was based on statements, some of which were retracted. The Commissioner had not accepted these retractions, nor had he allowed the appellants to cross examine the persons whose statements had been relied upon in the show -cause notice and in the impugned order. According to the ld. Counsel, the Commissioner had denied natural justice to the appellants. Relying on the statements of transporters and others, the Commissioner had arrived at a finding that the imported Cassia was not actually transported from Chennai to Bangalore. The evidence of transporters was rebutted by the appellants by producing 'goods detention notices' and 'release orders' issued by the Sales Tax check -post authorities, which indicated that the appellants had despatched Cassia to M/s. Natcon, Bangalore. This documentary evidence was not considered by the Commissioner. It was also pointed out that the Certificates issued by the Spices Board were in proof of the appellants having got Cassia Oil extracted in the premises of M/s. Natcon from the imported Cassia in terms of the DEEC licence and the Customs Notification. The chemical lest reports conclusively proved that Cassia Oil had been exported by the appellants in discharge of export obligation under the DEEC scheme. It was argued by Id. Counsel that, under Section 114(e) of the Evidence Act, these official documents were to be presumed to have been prepared and issued in accordance with law. It was upto the Department to rebut this presumption. The impugned order did not rebut the presumption. In the circumstances, the Commissioner ought to have accepted the above documentary evidences and dropped further action against the appellants. It was also submitted by ld. Counsel that it was only a guess -work of the investigators that the appellants had exported 'Synthetic' Cassia Oil in the guise of Cassia Oil. There was no evidence on record to show that any mixture of Cinnamic Aldehyde and Benzyl Alcohol was exported by M/s. Rekha Overseas under the relevant Shipping Bills. Ld. DR reiterated the findings of the Commissioner.

(3.) AFTER examining the evidences available on record and considering the submissions, we find great force in the submissions made by ld. Counsel. ALC Circular No. 9/92, dated 12 -8 -1992 (vide infra) issued by the Chief Controller of Imports and Exports (Ministry of Commerce) had provided for grant of quantity -based advanced licences, under the DEEC Scheme, for import of Cassia for the manufacture and export of Cassia Oil. ALC CIRCULAR No. 9/92 Sl. No. 47 Dated 12th August, 1992 Import of Cloves, Cinnamon and Cassia under Duty Exemption Scheme. Attention is invited to the ALC Circular No. 4/92, dated the 23rd June, 1992 by which it was clarified that no advance licence shall be issued for the imports of Cloves, Cinnamon and Cassia under the Duty Exemption Scheme, since these items are importable only under special licensing scheme. On a review of the position, it has been decided to grant quantity based advance licences only for the import of cloves, Cinnamon and Cassia for the manufacture and export of Clove Bud Oil, Cinnamon, oleoresin, Cinnamon oil, Cassia oleoresin, Cassia Oil and Curry Powder (containing Cloves Buds), cinnamon and Cassia to the extent of 5% collectively and other 95% ingredients to be (of locally produced items) under the Duty Exemption Scheme as per the norms given in Annexure -I to this circular.