Custom, Excise & Service Tax Tribunal
Midex Global Pvt. Ltd. vs Cc Pune on 26 September, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/450/2010
[Arising out of Order-in-Original No: 07/2010 dated 25th March 2010
passed by the Commissioner of Customs, Pune.]
Midex Global Pvt Ltd ... Appellant
versus
Commissioner of Customs
Pune ...Respondent
Appearance:
Ms Lakshmi Menon, Advocate for appellant Shri B Kamble, Assistant Commissioner (AR) for respondent CORAM:
Hon'ble Shri C J Mathew, Member (Technical) Hon'ble Shri Ajay Sharma, Member (Judicial) Date of hearing: 23/08/2018 Date of decision: 26/09/2018 ORDER NO: A/87443 / 2018 Per: C J Mathew M/s Midex Global Pvt Ltd is aggrieved by the order-in-original no. 07/2010 dated 25th March 2010 of Commissioner of Customs, Pune which has rejected their application for exercise of discretion under rule 12 of the Customs & Central Excise Duties and Service C/450/2010 2 Tax Drawback Rules, 1995. Appellant had filed 25 shipping bills between 8th February 2007 and 9th May 2008 for export of 'molasses' through Vijaydurg port . The matter was brought to the Tribunal on an earlier occasion upon rejection and, vide order no. A/645/2009 dated 30th October 2009, had been remanded back with direction to take fresh decision embodied in a speaking order on the application for conversion of free shipping bills to drawback shipping bills. In the remand proceedings, the Commissioner of Customs held that sufficient cause had not been shown for the resort to discretion exercisable under rule 12 of the said Rules.
2. Learned Counsel for appellant contends that 'molasses' had been banned for export till January 2007 under the laws of the government of the state and that during the period thereafter they were not aware of the eligibility to drawback, owing to which free shipping bills had been filed. According to her, their claim, despite eligibility for drawback, was declined without exercise of mind.
3. According to her, there is no dispute on the export of 'molasses' which is evidenced by the endorsement of officers of customs as well as by the master of the vessel transporting the said goods. It is her contention that eligibility for duty drawback not being in dispute, the instruction of the Central Board of Excise and Customs in circular no. 4/2004 dated 16th January 2004 makes it abundantly C/450/2010 3 clear that such drawback claims, even when exported against free shipping bills, should be allowed without having to undergo the process of conversion; this is further reiterated in paragraph 4 of circular no9. 36/2010-Cus dated 23rd September 2010.
4. Learned Authorised Representative urges us to accept the order of the original authority as it has complied with the remand order of the Tribunal. According to him, the discretion to waive any of the pre- requisite in the shipping bill filed under the claim for drawback is applicable only when reasonable cause has been shown for failure to file the full particulars in claim for drawback. According to him, the failure to indicate the applicable heading in the shipping bill rendered it impossible to determine eligibility for drawback.
5. On a perusal of the records it is seen that the goods were exported by bulk carrier and that 'molasses' are eligible for drawback at appropriate rate in the drawback schedule. It is also abundantly clear that the statutory provisions relating to payment of drawback becomes applicable once the goods have been exported. There is no controversy on the factum of export. That there can be a substitution of goods does not appear to be probable considering that the shipment has been made in 'liquid bulk carrier' and was not concealed from the sight of the officers of customs or the master of the vessel. The circular of 2004, and the subsequent circular of 2010, clarifies that C/450/2010 4 there is no requirement of conversion of shipping bills through the amendment process envisaged under section 149 of Customs Act, 1962 for allowing drawback .
6. On scrutiny of the exercise of discretion by Commissioner of Customs, it is seen that the circumstances of lack of awareness of the existence of a drawback rate owing to the liberalization in the export of molasses after January 2007 has not been taken into account. It would also appear that the Commissioner has not established the appellant to have indulged in misrepresentation in the shipment.
7. For the above reasons we set aside the decision of Commissioner of Customs declining the post-export inclusion of particulars pertinent for sanction of drawback enumerated in rule 12 of the Customs, Central Excise Duties and Service Tax Rules, 1995. The Commissioner is directed to permit the incorporation of such relevant details and, thereafter, refer the said shipping bills to the competent authority for deciding upon the entitlement to the drawback.
8. Appeal is accordingly disposed off.
(Pronounced in Court on 26/09/2018)
(Ajay Sharma) (C J Mathew)
Member (Judicial) Member (Technical)
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