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TMI Blog2009 (2) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... t reveals that the identity of the goods has not been established with reference to the import Bill of Entry and the goods have no market value based on the condition of the goods. – Appellant claimed that Assistant Commissioner had not recorded any finding regarding identity of goods against which no appeal was preferred by department - Based on the materials on record, Appellant Authority have taken consistent view that the identity of the goods in respect of 5 consignments were not established and the same does not suffer from any illegal infirmity warranting interference. - Based on the materials on record, Respondents 1 and 2 have taken consistent view that the identity of the goods in respect of 5 consignments were not established and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the 2nd Respondent/commissioner of Customs under Sec. 128 of Customs Act. In respect of 13 consignments, 2nd Respondent held that the identity of the case were established and the market value was higher than the drawback claimed. 2nd Respondent also held that Petitioner produced evidence that the foreign exchange was realised and the goods exported to the foreign country were sold in their country. Insofar as, 5 consignments, 2nd Respondent held that the identity of the goods had not been established under the respective Bills of Entry and that the goods re-exported have market value more than the drawback claimed. As such the order of lower authority was modified to the extent that the drawback was allowed for 13 shipping bills wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of balance 5 claims was without any rational basis. Learned counsel for the Petitioner further submitted that Petitioner produced the evidence that the goods had been sold by the foreign supplier in their country to which it was exported and while so, there was no justification for denying drawback claim in respect of 5 consignments when based on the same facts of drawback claims in respect of other 13 consignments which had been allowed by the 2nd Respondent. 7. Mr. S. Govindarajan, learned Addl. Central Govt. Standing Counsel for the Respondents submitted that in respect of 5 shipping bills, identity of the goods had not been established and the market price of the goods is not more than the drawback amount claimed because of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back amount shall be paid if the market value of the goods exported is less than the drawback claimed. Drawback amount would be available only if the identity of the goods is established. In the impugned order, 2nd Respondent has clearly pointed out that the identity of the goods have not been established by the Petitioner and the market price of the goods was not shown to be more than the drawback amount claimed. 11. The goods at the time of importation contained the address of Registered office at Mumbai of M/s. Van Melle Confectionery India Pvt. Ltd. According to the Petitioner such printing on each pillow pack was made by the Foreign Supplier at the instance of the importer (Petitioner) as required by Indian Law contained in Rule 33 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As held by the 2nd Respondent, the goods were not identifiable. Since identity of the goods is the prime criteria for claims of drawback amount under Sec. 74 of customs Act, 2nd Respondent upheld the rejection of drawback claim for 5 shipping bills. When the competent authority have recorded the factual finding, exercising jurisdiction under Art. 226 of Constitution, this Court cannot sit in appeal over the impugned orders. 15. The impugned orders of the Respondents 1 and 2 are assailed on the ground that the order clearly exhibits revenue bias. In support of his contention, learned counsel for the Petitioner placed reliance upon 2002 (145) E.L.T. 502 [Unichem Laboratories Ltd., v. CCE]. It was further argued that the impugned order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue to raise new ground, learned counsel for the Petitioner placed reliance upon 1996 (88) E.L.T. 641 (S.C.) [Reckitt Colman of India Ltd. v. Collector of Central Excise] and 1998 (99) E.L.T. 188 (Tribunal) [Parle Beverages Ltd. v. Commissioner of Customs, Mumbai]. Placing reliance upon 2005 (183) E.L.T. 225 (S.C.) [SACI Allied Products Ltd. v. Commissioner of C. Ex., Meerut], learned counsel for the Petitioner would further submit that the Appellate Authority cannot sustain case of revenue on the grounds not raised by revenue either in show cause notice or in the order. The above contention does not merit acceptance. It may be that the 3rd Respondent/Asst. Commissioner might not have gone into the question of identity. As pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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