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2023 (10) TMI 1007 - AT - CustomsDenial of permission for conversion/ amendment of 13 free shipping bills filed by the filed by the appellant without claiming AIR drawback - oversight of the clearing agent and denying AIR drawback to the appellant. HELD THAT - The Appellant is a regular exporter as well as manufacturer of CPC. We further find that such goods are not stocked in containers for export. These goods are exported without any packing as bulk cargo, which is admitted fact. Further, admittedly, Appellant was regularly claiming the benefit of drawback at AIR. It is found that the exports in question were made during the period April, 2016 to December, 2016. The Appellant came to know of the mistake during verification of records during the end of December or beginning of January and have immediately filed the request for grant of drawback before the Commissioner of Customs by allowing them to amend shipping bills without converting them into drawback shipping bills, as provided under Sec 149 of the Act read with Rule 12(1)(a) of the Drawback Rules, 1995, read with aforementioned Circular No. 36/2010-CUS. The reasons given for rejection by the Commissioner of Customs are flimsy and against the very spirit of Sec 149 of the Act read with Rule 12(1)(a) of Drawback Rules, 1995, read with clarification given by the Board vide its Circular No. 04/2004-CUS read with amended Circular No. 36/2010-CUS - the Board have categorically provided for allowing the benefit of drawback on AIR where there is no case of any mis-declaration or fraud, etc. In the present case, there is no such allegation or finding in the Impugned Order. Appeal allowed.
Issues Involved:
1. Denial of permission for conversion/amendment of free shipping bills. 2. Rejection of AIR drawback claims. 3. Procedural compliance and discretion of the Commissioner of Customs. Summary: Issue 1: Denial of permission for conversion/amendment of free shipping bills The appellant, an exporter of Calcined Petroleum Coke (CPC), sought to amend 13 free shipping bills filed between April 2016 and December 2016 to claim AIR drawback, which was omitted due to an error by their clearing agent. The appellant argued that the mistake was inadvertent and requested amendment under Section 149 of the Customs Act, supported by Circular No.36/2010-Cus, which allows for such amendments without converting free shipping bills into drawback shipping bills. Issue 2: Rejection of AIR drawback claims The Commissioner of Customs rejected the AIR drawback claims, citing that the goods were shown as cleared against Quantity Based Advance Authorisations (QBAL) and no rebate was claimed at the time of export. The Commissioner also noted that the appellant did not provide satisfactory reasons beyond their control for the omission and that the amendment would introduce new facts on the shipping bills. The appellant countered that the exports were not made against any advance authorisations and that the records with customs could verify this. Various judicial precedents and circulars were cited to support the claim that amendments should be allowed if the necessary documents existed at the time of export. Issue 3: Procedural compliance and discretion of the Commissioner of Customs The appellant argued that the Commissioner's discretion should be exercised liberally in procedural matters, especially when no fraud or mis-declaration was involved. The Tribunal found the reasons for rejection by the Commissioner to be flimsy and against the spirit of Section 149 of the Customs Act and Rule 12(1)(a) of the Drawback Rules, supported by Circular No. 36/2010-Cus. The Tribunal noted that the appellant had promptly filed the request for amendment upon discovering the mistake and that there was no allegation of fraud or mis-declaration. Judgment: The Tribunal allowed the appeal, set aside the impugned order, and directed the concerned authority to grant the benefit of AIR drawback subject to the submission of relevant documents. The claim for drawback was ordered to be processed and disbursed within 45 days, along with interest as per rules.
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