Page 213 - ELT_1st July 2020_Vol 373_Part 1

2020 ] NISHWET OVERSEAS PVT. LTD. v. COMMISSIONER OF CUSTOMS (PORT), KOLKATA 123

ported goods, the Department had entertained the belief that the conditions of
Notification, dated 1-4-1997 (supra) had not been fulfilled. Accordingly, show
cause proceedings were initiated against the appellant, seeking for denial of the
benefit provided under the said Notification and for payment of the duty
amount along with interest. The matter arising out of the show cause notice was
adjudicated by the original order, dated 20-11-2006, wherein the Assistant Com-
missioner of Customs had confirmed the proposal made in the show cause no-
tice, dated 18-8-2006 and 20-11-2006. On appeal against the said order dated 20-
11-2006, the Ld. Commissioner (Appeals) vide the impugned order dated 18-9-
2008, has dismissed the appeal filed by the appellant and upheld the adjudica-
tion order passed by the original authority.
3. The Ld. Advocate appearing for the appellant, submits that the
goods in question, were imported by the appellant pursuant to the contract en-
tered into between it and overseas supplier for carrying out the job work activi-
ties, and thus, at the time of export, the conditions of the Notification were duly
complied with. He further submits that since the overseas supplier had cancelled
the contract, which is an unforeseen situation, the appellant had re-exported the
said goods before issuance of the show cause notice by the Department. Thus, he
submits that since at the time of issuance of show cause notice, the imported
goods were not available in India, the adjudged demands confirmed on the ap-
pellant, cannot be sustained.
4. On the other hand, the Ld. AR, appearing for the Revenue reiterates
the findings recorded in the impugned order. He further submits that since the
condition contained in the Notification, dated 1-4-1997 has not been complied
with or fulfilled by the appellant, the adjudged demands confirmed by the De-
partment is in conformity with the statutory provisions.
5. Heard both sides and perused the appeal records.
6. It is an admitted fact on record that the subject goods were imported
by the appellant for the purpose of carrying the job work activities and for re-
exportation of the job worked goods, pursuant to the contract entered into be-
tween it and the overseas supplier. However, due to certain unavoidable circum-
stances, the contract was cancelled by the overseas supplier, resulting in the re-
turn of the goods to the supplier. It is not the case of the Revenue that the show
cause proceedings were initiated by them before re-exportation of the goods by
the appellant. In view of the fact that at the time of issuance of show cause notice,
the subject goods were not available in India and that at the time of importation
of the subject goods, the conditions of the Notification were duly complied with,
we are of the considered opinion that the adjudged demands confirmed on the
appellant, cannot be sustained inasmuch as the duty demand along interest is
confined to irregular importation of goods, which has not been specifically al-
leged by the department.
7. In view of the above discussions, we do not find any merits in the
impugned order passed by the Ld. Commissioner (Appeals). Accordingly, after
setting aside the same, the appeal is allowed in favour of the appellant.
(Dictated and pronounced in the open Court)
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EXCISE LAW TIMES  1st July 2020  213