2012 (10) TMI 310 - AT - Customs

Conversion of shipping bill - appellants applied for conversion of free shipping bill to a drawback shipping bill which has been rejected by the jurisdictional Commissioner Held that - Goods were taken straight away from the dealer for export and they were not at all manufactured and hence there was no question of claiming of excise duty rebate under ARE-1 procedure when goods were produced abroad - It is also apparent that even if such a conversion is allowed, it would be a futile exercise as no drawback can be sanctioned unless the identity of the imported and export goods can be established - conversion not allowed - Accordingly, the appeal is dismissed

Summary

Issues:
1. Rejection of conversion of free shipping bill to drawback shipping bill.
2. Identification of imported and export goods for granting drawback of duty.
3. Exercise of discretionary power by the jurisdictional Commissioner.

Analysis:
1. The appellants sought conversion of a free shipping bill to a drawback shipping bill after realizing they were not entitled to export rebate as the goods were not manufactured in India but exported as imported. The jurisdictional Commissioner rejected the conversion citing lack of examination at the time of export and absence of specific reasons beyond the appellants' control for not filing a proper drawback shipping bill. The advocate argued that identification issues should be addressed post-conversion, emphasizing the appellants' reliance on wrong advice for using the ARE-1 procedure.

2. The SDR supported the Commissioner's decision, highlighting the importance of establishing the identity of imported and export goods for granting duty drawback. He pointed out the lack of examination reports confirming the goods' identity and noted that the goods were initially imported duty-free under the DFRC scheme, making them ineligible for duty drawback on export. The advocate referenced a Board circular requiring duty credit certificates for goods exported under the DFRC scheme, albeit without immediate access to the circular.

3. The judge analyzed the proviso to Rule 4 of the Re-Export of Imported Goods (Drawback of Customs Duties) Rules, 1995, granting the Commissioner discretionary power to exempt exporters from certain conditions if non-fulfillment was beyond their control. The judge found that the Commissioner appropriately exercised this discretion by considering the lack of established identity between the imported and export goods, as evidenced by the absence of examination reports. The judge concluded that without proof of identity, granting drawback would be unjustified, especially since the goods were not manufactured in India, precluding excise duty rebate claims. Ultimately, the judge upheld the Commissioner's decision, emphasizing the necessity of establishing identity before sanctioning drawback and dismissing the appeal.