Rohit Singh appearing for the appellant submitted that the entire proceedings rest upon the erroneous assumption that the containers reflected in the departmental compilation had not been re-exported. It was argued that Notification No.104/94-Cus. grants exemption to durable containers imported temporarily subject to re-export and that the burden lies upon the Department to establish breach of the notification conditions before demanding duty. The learned Counsel pointed out that while the Show Cause Notice covered 6163 containers, the disputed quantity was successively reduced during the process of adjudication on account of furnishing details of re-exported containers, duplicate entries and other discrepancies, thereby demonstrating that the foundation of the demand itself was shaky and uncertain. It was further submitted that detailed import and export particulars, vessel-wise records, annual reconciliation statements and other supporting documents had been produced, but comprehensive container-wise verification was not undertaken despite specific remand directions. The appellant also pleaded limitation, contending that the relevant import and export data was always available with the Customs authorities, and argued that confiscation and penalties could not survive in the absence of conclusive proof of violation of the notification’s conditions.
