2018 (8) TMI 1939 - CGOVT - Customs

Duty Drawback - applicability of time limitation - relevant date under the provision of Section 74 of the Customs Act, 1962 - rejection of claim on the ground that the goods were used by the respondent for more than 18 months from the date of payment of duty of customs on importation of the goods - HELD THAT - The admissibility of drawback in this case is not in dispute under Section 74 of the Customs Act, 1962 in respect of re-exported goods and the department s case in the revision application is only that drawback is not payable as the re-exported goods had been used for more than 18 months after importation of the goods. However, on meticulous examination of the Order-in-Original and the revision application it is noticed that the use of the goods has been wrongly calculated from the date of payment of customs duty which was made on 8-10-2010 and not from the date of the order for clearance of goods which was given on 26-10-2010 as per the Bill of Entry itself. Thus the imported goods came under the control of respondent on 26-10-2010 only and thereafter these goods were re-exported on 10-4-2010 for which the Shipping Bill was filed on 3-4-2012 and goods were handed over to Customs authorities on 7-4-2012 - When these two dates are considered in this case, no doubt is left that the imported goods cleared to the respondent on 26-10-2010 were handed over to customs before 18 months for re-export purpose. Thus the re-exported goods remained in use of the respondent for more than 15 months but for lesser than 18 months and thereby drawback of duty at 60% is found admissible to respondent under Notification No. 23/2008-Cus., dated 1-3-2008. Revision dismissed - decided against Revenue.

Summary

Issues:
Admissibility of drawback under Section 74 of the Customs Act, 1962 for re-exported goods. Calculation of the period of use of goods for determining the percentage of drawback admissible to the exporter.

Admissibility of Drawback:
The case involved a revision application filed by the Commissioner of Customs against an Order-in-Appeal that allowed the appeal of the respondent regarding a rejected drawback claim. The Assistant Commissioner had initially rejected the claim as the goods were used for more than 18 months from the date of customs duty payment upon importation. However, the Commissioner (Appeals) set aside this decision, stating that the relevant date for calculating use is the date on which the goods are entered for export, not the date of permission for export. The government observed that the admissibility of drawback was not in dispute under Section 74 of the Customs Act for re-exported goods. It was noted that the calculation of the use of goods was wrongly done from the date of customs duty payment, instead of the date of clearance for home consumption. The imported goods were cleared to the respondent on 26-10-2010 and re-exported within the permissible period, making the drawback admissible at 60% under Notification No. 23/2008-Cus. The revision application by the Revenue was found to be devoid of merits, and the Order-in-Appeal was upheld.

Calculation of Period of Use:
The critical issue in this case was the correct calculation of the period of use of goods to determine the percentage of drawback admissible to the exporter. The government clarified that the period of use should be measured between the date of clearance for home consumption and the date when the goods are placed under customs control for export. In this instance, the dates of clearance and handing over of goods for export were crucial. By considering these dates, it was established that the re-exported goods had been in use for more than 15 months but less than 18 months, making the 60% duty drawback admissible to the respondent. The meticulous examination of the relevant dates and adherence to the provisions of Notification No. 23/2008-Cus were essential in determining the admissibility of the drawback in this case.

Conclusion:
The judgment thoroughly analyzed the issues of admissibility of drawback under Section 74 of the Customs Act for re-exported goods and the correct calculation of the period of use of goods. By upholding the Order-in-Appeal and rejecting the Revenue's revision application, the court clarified the importance of accurately determining the period of use for calculating the percentage of drawback admissible to exporters. The decision underscored the significance of adhering to legal provisions and relevant dates in such cases to ensure fair and just outcomes.