- (1.) THE instant appeal has been filed by the revenue under Section 35l of the Central Excise act, 1944 against the final judgment and order no. 1-1255/kol/2001 dated 23rd November, 2001 passed by the Customs, Excise and Gold (Control) Appellate tribunal, Eastern Bench, Kolkata (for short "the tribunal"), whereby the Tribunal has set aside the order passed by the Commissioner.
(2.) THE three Bills of Entry which are the bone of contentions in the present case are detailed below:- (i) Bill of Entry Sl. No. 2256 dated 30th April, 1998, per Vessel X-Press Singapore Voy-257, rot. No. 258/98 dated 7th April, 1998, Line no. 97, Country of origin - India, Goods 135 cartons 2/64 NM Merino Wool 100% Raw White on paper cone, Assessable Value -Rs. 36,63,829/ -. (ii) Bill of Entry Sl. No. 2440 dated 29th May, 1998, per Vessel S. S. Acacia V. 818, Rot No. 370/98, Line No. 154, Country of Origin -India, Goods - 20 pallets Polyester 100% semi Dull Ring Spun Yarn for weaving NE 24/2, Assessable value - Rs. 16,88,481. 23 (iii) Bill of Entry Sl. No. 930 dated 12th August, 1998 per Vessel Breeze, Rot. No. 549/98, line No. 26, country of origin - India, goods 765 Ctns. of 100% polyester yarn, assessable value liable to duty rs. 27,37,954. 76. The goods were initially exported by the respondent-assessee, which were rejected by the foreign buyer being defective and the assessee re-imported them back to India. Assessee had initially claimed in the Bills of entry the benefit of Notification No. 158/95-Cus and also executed bonds for re-export, as required under the said notification. The Bills of Entry were assessed provisionally. The assessee could not re-export the goods due to recessionary conditions in the textile industry. It claimed before the adjudicating authority that since it was not possible for it to re-export the goods, it may be allowed the benefits of another Notification No. 94/96-Cus. , which was in force at the time of the clearance from the factory originally.
(3.) THREE show cause notices were issued in respect of the three Bills of Entry for realization of the amounts which were guaranteed under the bonds executed by the assessee at the time of importation. The demands under the show cause notices were in terms of Notification No. 158/95-Cus. referred to above. Confronted with the liability to pay the duty as enjoined under the notification, in view of non re-export of the goods within six months of the date of re-importation as stipulated, the assessee took the ground before the adjudicating authority that Notification No. 158/95-Cus. was not in force at the time of the importation. Having realized this to be incorrect, the assessee shifted its stand and submitted that notification No. 94/96-Cus. dated 16th December, 1996 was applicable to the goods in question and the benefit thereunder should be given to it. The main contention raised by the assessee was that if the benefits were available under the two notifications to the assessee, then the assessee could avail of the benefits under either of them. Revenue's reply to the said contention was that it was not correct to say that if the two notifications are applicable, assessee after having opted to take benefit under one of the notifications, could change its option and avail the benefit under the other scheme. In any case, this would depend upon the nature and contents of the Notifications. It was revenue's contention that the assessee could not change its option because of the nature and contents of the notifications.;