1986 (2) TMI 219 - AT - Customs

Summary

Issues Involved:
1. Eligibility for drawback under Section 75 of the Customs Act.
2. Definition and completion of "export" under the Customs Act.
3. Requirement of goods reaching the foreign port of destination for drawback eligibility.

Issue-Wise Detailed Analysis:

1. Eligibility for Drawback under Section 75 of the Customs Act:
The appellants, M/s. Colour Chem Ltd., exported dyestuff and claimed drawback under shipping bill No. 28197 dated 28-4-1976. The Assistant Collector of Customs, Drawback, rejected the claim on the grounds that the consignment had not returned to India and was reported lost abroad. The Appellate Collector upheld this decision, stating there was no evidence the goods left India's territorial waters or reached the destination port. The appellants argued that the goods were loaded and acknowledged by the Preventive Officer and that the vessel reached the destination port, thus completing the export. The department contended that without the goods reaching the destination, no export occurred, and therefore, no drawback was admissible.

2. Definition and Completion of "Export" under the Customs Act:
The tribunal examined Clauses 18 and 19 of Section 2 of the Customs Act, defining "export" as taking goods out of India to a place outside India. It was determined that these definitions do not necessitate the goods landing at a foreign destination to complete an export. The tribunal noted that once goods leave India's territorial waters, the export is considered complete. The tribunal referenced the Supreme Court decision in Gangadhar N. Agarwal v. P.S. Tribikraman, which supported the notion that for fiscal purposes, export is complete when the shipping bill is presented, and the vessel is granted entry outward.

3. Requirement of Goods Reaching the Foreign Port of Destination for Drawback Eligibility:
The tribunal found that the department did not dispute the goods were loaded on the vessel and entered in the Export General Manifest. The vessel left India's territorial waters and reached the destination port, thus completing the export. The tribunal concluded that neither Section 75 nor its rules require goods to reach the destination for drawback eligibility. The tribunal ruled that any violations of export conditions or regulations could lead to other proceedings but should not affect the drawback claim.

Separate Judgments:

Opinion of K.S. Dilipsinhji, Member (T):
Dilipsinhji disagreed with the majority opinion, stating that for goods to be considered exported and eligible for drawback, they must reach the destination port. He argued that the Customs Act's sections imply that export is not complete upon the mere presentation of the shipping bill and outward entry but only when the goods reach their destination. He referenced the Supreme Court decision, noting it pertained to the rate of duty and not the completion of export for drawback purposes. He concluded that the goods were not exported as required under Section 75, thus denying the drawback claim.

Opinion of K.L. Rekhi, Third Member on Reference:
Rekhi agreed with the majority opinion, stating that the goods were duly taken out of India and the export was complete. He emphasized that there is no legal requirement for the goods to be off-loaded at a foreign port to be eligible for drawback. He noted that the practice did not require Indian exporters to prove off-loading at a foreign port.

Final Order:
The appeal was disposed of in terms of the majority opinion. The tribunal allowed the appeal, set aside the orders passed by the authorities below, and directed that the appellants be granted consequential relief.