Vasa Seshagiri Rao ORDER
Sulekha Beevi C.S., Member (J)
1. Brief facts are that the appellant exported leather shoes under claim of drawback. These goods were returned by the foreign buyer for the purpose of repair of the shoes. The appellant cleared these items under 4 Bills of Entry availing the benefit of Notification No.158/95 dt. 14.11.1995 on executing Bond and Bank Guarantee. They requested vide letter dt. 28.07.2014 to consider their eligibility of Customs Notification No.94/96 as amended as they could not re-export the goods although availed the benefit of Notification No.158/95 dt. 14.11.1995 at the time of import. The adjudicating authority rejected the request holding that the appellant, by not complying with the condition of re-exporting the goods within the stipulated period, had failed to comply with the condition of notification and therefore not eligible for the benefit of Notification No.158/95. The request for benefit of Notification No.94/96 was not considered at all. Against this, the appellant filed appeal before the Commissioner (Appeals) who upheld the order passed by the adjudicating authority. Hence this appeal.
2. The Ld. Consultant Shri A.R. Raghunathan appeared and argued for the appellant. It is submitted that the adjudicating authority as well as Commissioner (Appeals) failed to extend the benefit of Notification No.94/96 though the same was available to the appellant at the time of import itself. They had opted for the Customs Notification No.158/95 which was beneficial to them as the duty was NIL at the time of imports. The appellant could not make re-export, and so they alternatively claimed the benefit of notification No.94/96 and were ready to return the drawback claimed by them. The decision of Tribunal in the case of Olam Agro India Ltd. vs. CC Ahmedabad vide Final Order No.10328/2024 dt. 05.02.2024 was relied by the learned consultant to submit that the Tribunal in the said case on similar set of facts had allowed the assessee to alternatively claim the benefit of Notification No.94/96 as amended. The Hon'ble Apex Court judgement in Share Medical Care vs. Union of India - MANU/SC/7155/2007 : 2007 (209) ELT 321 (SC) was also relied. The Ld. consultant prayed that the appeal may be allowed.
3. The Ld. A.R Shri R. Rajaraman appeared and argued for the Department. It is pointed out by the Ld. A.R that in case the appellant is allowed benefit of Notification No.94/96 as amended, they are liable to return the drawback claimed by them.
4. Heard both sides.
5. The issue that arises for consideration is whether the appellant is eligible for the benefit of Notification No.94/96 although they have not claimed the said benefit at the time of import of goods. From the facts narrated above, it can be seen that that the appellant had intended to re-export the goods after repair of the shoes. However, they could not fulfil this requirement and thereafter sold the goods locally. They then requested the department to extend to them the benefit of Notification No.94/96. The department has not considered the same observing that the appellant has availed drawback and claimed benefit of Notification No.158/95 at the time of import of the goods. On similar set of facts, the Tribunal in the case of Olam Agro India Ltd. (supra) had considered the very same issue and held that the appellant would be eligible for alternate beneficial notification. The decision of the Hon'ble Supreme Court in the case of Share Medical Care (supra) held that assessee cannot be denied the benefit of alternate notification when it is eligible at the time of import of the goods. Following the cited decisions (supra), we are of the view that the appellant is eligible for the benefit of Notification No.94/96. However, it is made clear that the appellant has to pay back the drawback claimed by them along with interest. The impugned order is set aside. Appeal is allowed with consequential relief, if any, on the condition that appellant has to pay back drawback claimed.
(Order dictated an........