Customs duty is payable by importer as per conditions of bond executed

We exported our goods under the duty drawback scheme. The exported goods were re-imported for repair and re-export without duty payment, against our bond under notification 158/95-Cus dated November 14, 1995. We failed to re-export. Can we seek payment of only drawback as per notification 94/96-Cus dated December 16, 1996?
On almost identical facts, the Supreme Court held in the case of Indian Rayon Industries Ltd. [2008 (229) ELT 3 (SC)] that customs duty is payable as per conditions of the bond executed and that the said notification 94/96-Cus will not be applicable. The Supreme Court said, "Having availed of the benefit of notification, the assessee has necessarily to comply with the conditions of the notification. It goes without saying that the assessee cannot approbate and reprobate…Of course, there is no estoppel against the law but having sought for and taken the benefit of the notification to import goods without payment of duty, it is not open to the assessee to contend that the conditions in the said notification need not be fulfilled, be it on the ground that the benefit under another notification is available to him or otherwise."

We imported goods and based on a High Seas Sale (HSS) agreement with an Indian customer, we sold the goods when the goods were on the high seas, by way of transfer of title of documents. The bill of lading (BL) was endorsed in favour of the customer after the BL date but before the date of Import General Manifest (IGM), but we raised the commercial invoice after the IGM date. Now, the customs officer is not accepting our high seas transaction and asking us to change the invoice date as the HSS agreement date. We cannot do that. Can you advise us of any case law or notification where it says that invoice date has no relevance for high seas sale transaction?
I have not found any case law on the specific point you have raised. However, the case of Associated Strips Ltd. [2002 (143) ELT 131 (SC)] dealing with when the sale takes place, and when the property passes from buyer to seller, may help you. Section 19 of the Sale of Goods Act, 1930 provides that where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

The intention of the parties is to be ascertained with reference to the terms of the contract, the conduct of the parties and the circumstances of the case. My view is that in your case, the sale occurred when ownership in the property was transferred by way endorsement of the document of title to the goods in favour of the high seas buyer, pursuant to the HSS agreement. An invoice is an itemised bill for goods sold mentioning the prices, total charge and the terms. It does not determine the date or time of sale. You may represent to Customs accordingly.

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