M/S Banco Products (I) Ltd vs Cc Mumbai Ii

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. C/780/03 - Mum (Arising out of Order-in-Appeal No. 100/2003 (JCH) dated 19.06.2003 passed by the Commissioner of Customs (Appeals) Mumbai-II.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) Honbl Shri P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? =====================================================

M/s Banco Products (I) Ltd.

: Appellant Versus

CC Mumbai II : Respondent

Appearance Shri Ajay Kumar Sharma, Manager : For Appellant Shri Ahibaran, Addl. Commissioner (A.R.) : For Respondent

CORAM: HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) HONBLE SHRI P.S. PRUTHI, MEMBER (TECHNICAL)

Date of Hearing : 03.03.2015 Date of Decision: 03.03.2015

ORDER NO....................................................... Per: P.S. Pruthi:

This appeal is directed against the impugned Order-in-Appeal rejecting the appellants plea for allowing re-import of machines, duty free under Notification No. 158/95 dated 14.11.1995.

2. The appellant had exported machines i.e. machine for block cutting of foamed (plastic) material and a second machine for vertical cutting of foamed (plastic) vide shipping bill No. 1223843 dated 03.11.1999 and S.B. No. 1235031 dated 03.12.1999 respectively. In 2001, the machines were re-imported for the purpose of repairs and re-conditioning. The appellant submitted a letter dated 02.09.2000 from the buyer abroad stating that the machines supplied vide invoice bearing nos./date 87/13.11.1999 (machine No.1) and 94/10.12.1999 (machine No. 2) respectively were badly damaged due to a mishap in the clients factory. The machines were examined on first check basis at the time of re-import and found in burnt condition without original packing. The Dy. Commissioner vide his Order dated 31.05.2001 held that since identity of the goods cannot be established as per the Docks Examination report, the benefit of exemption Notification No. 158/95 cannot be extended. The Commissioner (Appeals) upheld the order of the adjudicating authority. During the hearing before the Tribunal on 25.09.2014, the appellant was asked to file an affidavit showing the details of the machinery exported in 1999 and the details of the machines re-imported vide Bill of Entry No. 504644 dated 02.05.2001. Accordingly, the appellants submitted an affidavit and appeared before us on 03.03.2015.

3. Heard both sides and considered the submissions.

4. We find that the order of the Dy. Commissioner is very cryptic. It appears that he gave a personal hearing to the appellant but does not record the details of the personal hearing. He brushed aside the details of personal hearing by making a short statement in his order to the effect that party appeared for personal hearing. He has not given details of the evidence produced by the appellant in support of their case. Further, even the order of Commissioner (Appeals) is equally cryptic and almost non-speaking. Order of Commissioner does not bring upon record, the various evidences available with the appellant to support their case. Being a very old case, we proceed to decide the matter on the basis of evidence on record.

5. It is not understood how the authorities below came to the conclusion which they arrived at on the basis of examination of the machines. The examination report of the damaged machines at the time of re-import is extracted below:-

Lot inspected opened & examined all. Checked description, quantity and found that goods are observed in burnt condition and also goods not found in original export packing. Hence no Mks. & Nos. of export documents were observed on goods/packages. However a plate was found on item No. 1st of invoice showing marks/Sr. No. as M-2-018, Type  Cutter, Model- BC and another plate was found on item No. 2nd showing Sr. No. M-2-012, Type-Cutter, Model-VC. Both plates showing the size of goods, year of manufacturing and other details of goods and manufacturers name i.e. Banco products (I) Ltd., Vadodara (India) third Pkg. Is a control panel which is found in burnt condition with no any markings, etc. which is not reflecting in any of the S/Bill. Both observed plates forwarded to Gr. for inspection. Identity of the goods & time-limit for re-importation may Pl. BE VFD. in Gr. Goods examined under DC/Dock supervision.

Duty free of re-import of machines under Notification No. 158/95 is contingent upon the satisfaction of the Dy. Commissioner as to the identity of the goods. However, the order of the Dy. Commissioner does not indicate how the identity of the machine could not be established when some marks and numbers have been found on plates on the burnt machines as indicated in the examination report above. It is also not on record whether the Dy. Commissioner made an attempt to verify from the Central Excise Authorities in whose jurisdiction the machines were got repaired by the manufacturer. On the other hand the appellant has given an affidavit stating that-

4. That, after clearance form the import port the goods reached at our factory premises on 21.06.2001 and interred in the warehouse register vide entry number 01 dated 21.06.2001. As per the provision of rule 173MM pre-intimation of arrival of goods were submitted to Jurisdictional Deputy Commissioner with copy to Jurisdictional Superintendent on 18.06.2001 and necessary intimation of receipt of the goods to the Inspector of Central Excise with copy to the Superintendent were submitted on 21.06.2001. The physical examination were done by the Inspector/Superintendent of Central Excise on 21.06.2001. For ready reference copy of the relevant correspondence containing the dated acknowledgement with copy of warehouse register is annexed hereto and Marked as Annexure- 4.

5. That the examination report of Customs partially identified the goods but the Jurisdictional Range authorities have indentified the whole goods which were earlier exported vide AR4 No. 297/99-2000 and AR4 No. 264/99-2000. Not only this, they have allowed the export of the subject goods after repairing & reconditioning under Physical supervision and the goods were removed to their original buyer vide invoice No. IMP/RE-01/2002-03 dated 17.10.2002.

6.1 Thus, it appears that the Central Excise Authorities allowed the export of the goods after repair, under physical supervision. No doubt has been raised by the Central Excise Authorities that the machines received for repairing under provisions of Rule 173MM were not the same machines which were exported and then re-imported for repair. It is also not a case where the appellant may have manipulated records by re-importing some other machines. Revenue has not made any contention that other identical machines were exported to the same buyer and therefore there could be some confusion whether same machines were re-imported.

8. In the circumstances, benefit may be given to the appellant. Impugned order is set aside and appeal is allowed with consequential relief, in accordance with law.

(Pronounced in open Court)

(Anil Choudhary) (P.S. Pruthi) Member (Judicial) Member (Technical)

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