The Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) has held that the beneficial notification can be claimed at a later stage also if otherwise the same is eligible at the time of import of goods.
Olam Agro India Ltd, the appellant have imported Cumin seed for re-exportation availing benefit under Notification No. 158/95- Cus dated 14.11.1995 wherein the condition was that the goods were to be re-exported within six months. The appellant submitted a request to the department to change the benefit of Notification from 158/95 to 94/96-Cus as they could not re-export the goods within six months as stipulated in Notification No. 158/95-Cus which was rejected by the adjudicating authority vide order F No. VIII/48-90/ICD/Olam/2015 dated 02.04.2016.
The Commissioner ( Appeals ) remanded the case to the original authority for passing the order after considering all the documents and evidence and following the principle of natural justice. The appeal filed before the CESTAT was dismissed, holding that the Commissioner is right in remanding the matter to the Adjudicating Authority. The Adjudicating authority passed the de-novo order whereby the request for changing Notification No. 158/1995-Cus dated 14.11.1995 to Notification No. 94/1996-CUS dated 16.12.1996, in the bill of entry dated 29.01.2014 was rejected.
Shri M Balagopal, Counsel appearing on behalf of the appellant submitted that the fact of the present case is different from the fact in the case of Indian Rayon Industries Ltd decided by the Apex Court. Therefore, the sole reliance of the Commissioner ( Appeals ) on the judgment of Indian Rayon Industries Ltd is incorrect.
He submitted that since the appellant could not comply with the condition of Notification No. 158/95-CUS they have claimed alternate exemption Notification by applying Section 149. He submitted that at the time of filing the bill of entry, the alternate Notification No. 94/2006-Cus was very much available. Therefore, claiming a beneficial notification cannot be denied. Shri Sanjay Kumar Superintendent (AR) appearing on behalf of the revenue reiterated the findings of the impugned order.
On careful consideration of the submission made by both sides and perusal of records, we find that the appellant’s request which was rejected is claiming the alternate exemption Notification No. 94/2006 as against the Notification No. 158/95-CUS which was claimed at the time of filing the Bill of entry.
The Tribunal viewed that the change of Notification in the bill of entry is permissible in terms of Section 149 of the Customs Act, 1962. Therefore, in principle, the appellant is eligible for change of notification, for the reason in the present case that the appellant could not comply with the condition of reexport of goods within six months in terms of Notification 158/1995-CUS. The only criteria to be seen that whether at the time of import, the alternate exemption notification was legally available to the appellant.
A two-member bench comprising Mr Ramesh Nair, Member ( Judicial ) and Mr Raju, Member ( Technical ) observed that the issue of whether after import, the appellant can claim alternate exemption notification is settled by the Apex Court in the case of Share Medical Care, wherein it was held that the beneficial notification can be claimed at a later stage also if otherwise the same is eligible at the time of import of goods.
The CESTAT held that on both counts, the appellant is eligible for alternate exemption Notification No. 94/1996Cus dated 16.12.1996 and found that the impugned order is not legal and proper. The Tribunal set aside the order while allowing the appeal.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
