Case Law Details
Commr. of Customs (Preventive) Vs IB Turbo Pvt Ltd (CESTAT Kolkata)
Introduction: The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) Kolkata recently issued an order in the case of Commissioner of Customs (Preventive) versus IB Turbo Pvt. Ltd. The case involves a live consignment pending without justiciable reasons. The tribunal has directed re-adjudication of the matter. In this article, we will provide a detailed analysis of the case, including its background, key arguments, and the tribunal’s decision.
Background of the Case: The dispute in question arose from an appeal filed by IB Turbo Pvt. Ltd. against a communication dated 24.01.2022 issued by the Assistant Commissioner (Tech), Customs (P) Hqrs; Patna, in response to an appeal filed by the company. The communication conveyed the orders of the Principal Commissioner, Customs (Prev.), which rejected the company’s request for an extension of time for re-export of certain capital goods (steam turbines with accessories) under Notification No. 158/95(CUS-NT). The company had sought an extension due to COVID-related reasons in both India and Nepal.
The appellant, IB Turbo Pvt. Ltd., had initially exported these capital goods to Nepal under duty-free import provisions from Raxaul LCS. Subsequently, they re-imported the same goods for repairs and re-export, clearing them under bond and bank guarantee.
Key Arguments: The central issue in the case was the rejection of the appellant’s request for an extension of the timeline for re-export of the capital goods. The request was denied in the communication dated 24.01.2022 by the Assistant Commissioner (Tech) Customs (P) Hqrs Patna.
During the appeal process, the Commissioner (Appeals) observed that as per Notification No. 60/2018-Cus, dated 11.09.2018 (an amendment to Notification No. 158/95-Cus, dated 14.11.1995), the time limit for re-exporting re-imported goods was extended to one year. However, it was noted that the amended notification had not been considered when making decisions or passing orders related to the case.
CESTAT’s Decision: CESTAT Kolkata, in its order, noted that the matter involved a live consignment that was pending with the Department. Importantly, no justiciable reasons had been recorded on the merits of the case. The tribunal pointed out that delays in resolving the matter not only incurred detention and other charges but also negatively impacted the Department’s prestige and credibility with foreign buyers.
Given the absence of an appropriate order passed by the Department on the merits of the case, CESTAT Kolkata remanded the matter to the Jurisdictional Commissioner of Customs. The directive was clear: the case of the appellant-exporter, IB Turbo Pvt. Ltd., must be disposed of within ten days from the date of receiving the order. The tribunal emphasized the importance of providing the appellant with a reasonable opportunity to exercise natural justice and present any necessary evidence.
Conclusion: In the case of Commissioner of Customs (Preventive) versus IB Turbo Pvt. Ltd., CESTAT Kolkata directed the re-adjudication of a live consignment that was pending without justiciable reasons. The tribunal’s order highlighted the significance of timely resolution in live consignment cases and underscored the need for adherence to relevant notifications and amendments. The directive for re-adjudication aims to expedite the resolution of the matter and ensure justice for all parties involved.
FULL TEXT OF THE CESTAT KOLKATA ORDER
Both the revenue as well as the party have assailed the Order No. 71/PAT/Cus/Appeal/2022-23 dated 16.09.2022 passed by the learned Commissioner (Appeals) in response to an appeal filed by M/s IB Turbo Pvt. Ltd. Against a communication dated 24.01.2022 issued by the Ld. Asstt. Commissioner (Tech), Customs (P) Hqrs; Patna. Vide the said communication reproduced herein, the orders of the Principal Commissioner, Customs (Prev.) were conveyed:
To
M/s IB Turbo Pvt. Ltd.
701-c, Poonam Chambers,
Dr. Annie Besant Road, Worli
Mumbai-400018
Sub:- Request for extension of time for re-export of reimported goods for six months under Notification No. 158/95(CUS-NT)-Reg.
Please refer to your application dated 30.09.2021, wherein request for extension of time for re-export for further 6 months from the date of re-importation in respect of Steam Turbine with accessory (HS code-84068200) was sought due to COVID reason in both the countries, on the subject mentioned above.
In this connection, it is to inform that the Principal Commissioner, Customs (Preventive) Commissionerate, Patna has observed that “Covid was over long back and now excuse can not be taken on this ground.” And hence not found valid reason to consider your request for extension of time under Notification No. 158/95(CUS-NT)
This is for your kind information.
Shiva Narayan Ram
Asstt. Commissioner (Tech)
Customs (P) Hqrs Patna
2. Briefly stated the facts of the case are that the Appellant had exported certain capital goods (steam turbine with accessory –H. S. code-84068200) to Nepal under duty free import from Raxaual LCS. Subsequently, re-imported the same vide Bill of Entry No. 308373 dated 10.03.2021 for repairs & re-export. The said goods were cleared under bond & bank guarantee. When the goods were repaired and ready for reexport the appellant sought extension of time for re-export of capital goods in terms of Notification No. 158/95 (Custom NT) as amended by Notification No. 60/2018-Cus dated 11.09.2018.
3. Heard both sides.
4. We note from records that the request for extension of timelines for re-export, made by the appellant-assesse was rejected and communicated vide letter dated 24.01.2022 by the Assistant Commissioner (Tech) Customs (P) Hqrs Patna, referred to supra.
5. The Commissioner (Appeals) vide the impugned Order disposed off the assessee’s appeals without going into the merits of the case. The operative portion of the Order of Commissioner (Appeals) is reproduced hereunder:-
“14. In such circumstances, it is but proper that the original authority should re-examine and re-verify the impugned order/decision taking into consideration the Notification No. 158/95-Cus, dated 14.11.1995, as amended vis-à-vis tariff item of the goods i.e. HS code- 84068200. If it is proper benefit may be given. Therefore, the matter is remanded to the original authority for de novo consideration.”
6. It is also pertinent to mention that the learned Commissioner (Appeals) has inter alia recorded in his order as under:-
12. I find that as per Notification No. 60/2018-Cus, dated 11.09.2018 which is amendment to Notification No. 158/95-Cus, dated 14.11.1995; the time limit of re-export of re-imported goods is extended to one year. It is also observed that the amended notification has not been taken into consideration by the authority while taking decision/ passing order in the subject matter.
7. We note that this is a live consignment pending with the Department and there are no justiciable reasons recorded on merits in the matter. We note that besides incurring detention and other charges, any delay in the matter is only adding to loss of prestige and credibility before the foreign buyer.
8. As there is no appropriate order passed by the Department on merits, we remand the aforesaid matter to the Jurisdictional Commissioner of Customs concerned with a direction that the case of the appellant-assessee exporter be disposed off within 10 days from the date of receipt of the Order.
9. The two appeals are allowed by way of remand for a fresh decision in the matter. Needless, to state that a reasonable opportunity for providing natural justice shall be afforded to the party, who shall be at liberty to adduce evidence as felt necessary in the matter.
(Dictated and pronounced in the open court.)
