The Tax Publishers2020 TaxPub(EX) 1029

CUSTOMS ACT, 1962

Notification No 104/94-Cus

Merely because the container does not have repeated use, the nature of durability cannot be rejected and as per the nature of container and use thereof, it was clear that container imported by assessee was durable, moreover, on comparison basis also, all packing containers which were subject matter, the Flexi Tank Container was much durable. Therefore, it was clear that the Flexi Tank Containers imported by assessee was durable container, thus, benefit of notification cannot be denied.

Benefit of exemption - Flexi Tank Containers - Durable goods or not -

Assessee imported Flexi Tank Containers and description of imported goods was declared as 'Flexi Tank Containers' and classified under Customs Tariff heading 39232990 of Customs Tariff Act, 1975. The said imported goods were cleared without payment of duty by availing the benefit under Notification 104/94-Cus, dated 16-3-1994. After almost one year of clearance, Customs House searched the premises of importer and some relevant records were withdrawn. A total number of 660 flexi tank containers imported and subsequently it was seized vide panchnama. Consequently, a show cause notice was issued to assessee whereby it was proposed to deny exemption Notification No. 104/94-Cus, to confiscate the imported goods. Held: Tribunal in various cases had categorically held that merely because container does not have repeated use, the nature of durability cannot be rejected. As per the nature of container and use thereof, it was clear that container imported by assessee was durable. Moreover, on comparison basis also, all packing containers which were subject matter, the Flexi Tank Container was much durable. Therefore, it was clear that the Flexi Tank Containers imported by the assessee was durable container. Neither the Show Cause notice nor Order in original, raised any dispute that Flexi Tank Containers are strong enough to withstand and endure the rigours of sea waves. Thus, benefit of notification cannot be denied.

REFERRED : Commissioner of Customs (Import), Mumbai v. M/s. Dilip Kumar and Company & Ors. 2018 (361) ELT 577 (SC) : 2018 TaxPub(EX) 737 (SC) Commissioner of Central Excise, Nagpur v. M/s. Ballarpur Industries Ltd 2007 (215) ELT 489 (SC) : 2007 TaxPub(EX) 2012 (SC) Northern Plastic Ltd. v. Collector of Customs & Central Excise 1998 (101) ELT 549 (SC) : 1998 TaxPub(EX) 0427 (SC) Union of India v. Jain Shudh Vanaspati Ltd. 1996 (86) ELT 460 (SC) : 1996 TaxPub(EX) 0960 (SC) Commr. of Customs v. Baccarose Perfumes & Beauty Products Ltd. 2014 (301) ELT 691 (Ahmd) : 2014 TaxPub(EX) 527 (Ahmd) Commissioner of C. Ex. & Cus., Vadodara-II v. Orbit Fabrics Ltd. 2011 (264) ELT 53 (Guj.) : .2011 TaxPub(EX) 194 (Guj) Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc. 2009 (248) ELT 122 (Bom) : 2009 TaxPub(EX) 4147 (Bom) Commissioner of Customs v. Gaurav Enterprises 2006 (193) ELT 532 (Bom) : 2006 TaxPub(EX) 183 (Bom) M/s. Hindustan Petroleum Corpn. Ltd. v. Commissioner of Central Excise [Customs Appeal No. 1341 of 2006, dt. 12-6-2020] M/s. Asia Motor Works v. C.C. Kandla (Vice-Versa) 2020 (371) ELT 729 (Tri-Ahmd) : 2020 TaxPub(EX) 182 (Ahmd) Venus Petrochemicals (Bombay) (P) Ltd. v. C.C. 2019(366) ELT 176 (Tri Ahmd) : 2019 TaxPub(EX) 240 (Ahmd)

FAVOUR : In assessee's favour

A.Y. :



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