9911796707
TMI Blog2009 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 2002 and cleared the same on payment of appropriate duty of customs under bill of entry No. 556 dated 30-10-07 wherein they noted in parenthesis thus: "The above unit is on loan basis and must be returned to Kodak Australasia." After using the machine in India for the intended purpose, they exported the same under "A SHIPPING BILL FOR EXPORT OF DUTY FREE GOODS" (hereinafter referred to as "free shipping bill"), on 22-5-03. In this shipping bill, the exporter noted thus: "The above item was imported on loan basis cleared on vide B/E No. 556/30-10-02 are being returned back to Kodak Australia Pvt. Ltd., Australia." Before exportation, the goods were examined by the proper officer of customs and was found to be the same as the one imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atically referred to Section 76 of the Customs Act in the context of submitting that conversion of free shipping bill to drawback shipping bill is not permissible in any situation in which the market price of the goods as on the date of export has not been ascertained. 4. The ld. counsel for the respondent, at the outset, submits that the memorandum of appeal does not contain any plea with reference to Section 76 of the Customs Act and therefore it is not open to the ld. DR to rely on that provision of law. She has also referred to the Board's Circular ibid. According to her, the Board permitted grant of drawback even under a free shipping bill subject to the satisfaction of the Commissioner and therefore conversion of free shipping bill t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is shipping bill also confirmed the fact that the machine was being returned to the supplier. The examination report on the shipping bill established the identity of the goods. It indicated that the machine presented for export was the same as the one which was imported by the party. Letter dated 21-5-03 issued by the respondent to the Dy. Commissioner of Customs (Appg) had stated that the machine was being re-exported to the supplier and requested that permission be given for filing a drawback shipping bill. However, the shipping bill which was filed the next day was a free shipping bill wherein there was no claim for drawback. Obviously, the examination of the goods presented for export was for the limited purpose of free export. This exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take up the claim for drawback inasmuch as no drawback can be allowed in respect of any goods the market price of which is less than the drawback which is due thereon. Even if amendment of the shipping bill is allowed under Section 149 of the Act on the strength of the available documents, the claim for drawback cannot be examined under Section 74 of the Act on account of the mischief of Section 76. It is trite law that any relief that is incapable of being realised cannot be granted. The lower appellate authority granted the relief of conversion of shipping bill, regardless/oblivious of the provisions of Section 76. 7. I have gone through the circular and decision cited by the ld. counsel and have found no case wherein the effect of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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