ORDER
Archana Wadhwa, Member (J)
1. We find that the appellant has already deposited an amount of Rs. 5,00,000/- during the pendency of the appeal before Commissioner (Appeals) in terms of the said order passed by him. Accordingly, taking the said deposit as sufficient for the purposes of the provisions of Section 35F of Central Excise Act, 1944, we dispense with the condition of pre-deposit of balance amount of duty and penalty and take up the appeal itself with the consent of both the sides.
2. The benefit of Notification No. 104/94 has been disallowed to the appellant in respect of the containers imported by them on the ground that the documentary evidences showing re-export of the same within a period of six months from the date of import, as per the condition of the notification, have been placed on record after the expiry of six months period. For better appreciation we reproduce below the relevant Notification :-
“In exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts containers which are of durable nature, falling within the First Schedule to the Customs Tariff Act, 1975 (5 of 1975), when imported into India, from, –
(a) the whose of the duty of customs leviable thereon under the said First Schedule; and (b) the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act;
Provided that the importer, by execution of a bond in such form and for such sum as may be specified by the Assistant Collector of Customs binds himself to re-export the said containers within six months from the date of their importation and to furnish documentary evidence thereof to the satisfaction of the said Assistant Collector and to pay the duty leviable thereon in the event of the importer’s failure to do so.
Provided further that in any particular case, the aforesaid period of six months may, on sufficient cause being shown, be extended by the said Assistant Collector for such further period, as he may deem fit.”
[Notification No. 104/94-Cus., dated 26-3-19947
3. The Commissioner (Appeals) in his impugned order in Para 13 has observed as under :-
“13. A notice in this regard was issued to appellant vide office letter dated 3-10-2002, why these certificates should not be rejected as evidence. In reply the appellant has submitted fresh C.P.T. certificates in respect of 168 containers only. These C.P.T. certificates are dated 3-12-2001, 5-12-2001, 6-12-2001, 21-12-2001, 12-12-2001. Besides these, appellant also submitted certificates from Steamer Agent which are dated 14-1-2002, 9-1-2002, 19-11-2001 and 28-11-2001. These fresh evidences were neither in existence at the time of expiry of six months period (i.e. 26-7-1994) nor on date 17-8-2000 when documentary evidences were produced before Hon’ble CEGAT or before my predecessor. As per conditions of Notification 104/94 and in terms of bond submitted by appellant documentary evidences for re-shipment was to be submitted within 6 months or such extended period. These fresh documentary evidences cannot be admitted in violation of conditions of Notification even if it was directory only and benefit of Notification No. 104/94 cannot be extended to appellant for violation of conditions of the said Notification.”
4. A reading of the above paragraph shows that he is not accepting the certificate issued by Calcutta Port Trust & Steamer Agent on the ground that these evidences were not in existence at the time of expiry of six months period and in terms of the notification the same were required to be submitted within a period of six months. However, we find that the proviso to the notification, as reproduced above is very clear and lays down that the containers have to be re-shipped within a period of six months from the date of their importation and the importer would execute a bond to the satisfaction of the Asstt. Commissioner to furnish documentary evidences thereof. There is nothing in the said notification to suggest that the documentary evidences is also required to be placed on record within a period of six months. It is sufficient if the importer shows the documentary evidences showing the re-export within a period of six months and production of such evidence thereafter cannot be held to be violation of the condition of the notification. With these observations we set aside the impugned order and remand the matter to the original adjudicating authority to look into the evidences produced by the appellant showing re-export of the containers within a period of six months. Appeal is thus allowed by way of remand. Stay petition also gets disposed of.