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TMI Blog1999 (10) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignments, respectively. The impugned goods were exported through Calcutta Port after the Customs authorities allowed the shipment in full under A-4 Forms. After completing the shipment and in view that all Industry rates would apply in the instant case, the appellants lodged drawback claims by their letters No. Angel/CAPM/001, 002 003 dated 8-6-1998 and AMFPL/CAMP/98/004-007, dated 27-7-1998 for an amount of Rs. 34,44,075/- and Rs. 46,18,790/- respectively. 3. Since the Department was neglecting and/or refusing the drawback claim of the appellant and being aggrieved by the case, the appellant saved the Hon ble High Court under Article 226 of the Constitution of India. Hon ble High Court vide their order dated 2-11-1998 directed the A.C. of Customs to dispose of the drawback claim of the appellant within 6 weeks. Accordingly, A.C. (D K), Customs House, granted personal hearing to the appellants on 7-12-1998 which was attended by the appellants. The main contention of the appellants was that the impugned goods were procured from M/s. G.R. Magnet Ltd. Jamshedpur and the case were brought against D-4 form properly endorsed by the Supdt. of C.Ex., who certified the goods as it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w material aspect, the manufacturing process and distinctive quality or the goods, item exported do not qualify the classification under Drawback schedule No. 85.10 and held that drawback Sl. No. 73.29 is more appropriate in the present case for sanctioning correct drawback refund. Accordingly, he ordered for sanctioning the drawback for all consignments as mentioned in the Writ Petition at the rate specified against schedule No. 75.29. 6. Being aggrieved with the above order the appellant has filed this appeal on the ground that : - (1) The respondent has shown a total non-application of mind in rejecting the claim on the ground that appellant could not submit any evidence showing that the exported goods were actually Cast Alloy Permanent Magnet in unmagnetised form since onus of proving that the goods were not so was on the Deptt. and not on the appellants. Hence order needs be not aside on this ground alone. (2) The ground taken up by the respondent for rejecting the drawback claim that in the absence of conclusive evidence to satisfy the raw materials aspect the manufacturing process and distinctive quality of the goods, the items exported do not qualify classification u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was for the respondent to find our whether the composition of the materials as stated in the exports of the METALLURGICA were suitable for making the items in dispute or not. Thus his failure to discharge his duties cannot be a reason for denial of legitimate dues of the appellant. (e) That even if it is assumed for the sake of arguments that the unit of the manufacturer was lying closed for an indefinite period that cannot be a ground for denial of the drawback claim to them. (6) Without prejudice to the above, the appellants submit that all these post-export investigations and inquiries are totally illegal and unjustified since these should have been carried our prior to or at the time of export when the goods were available for examination and were actually examined. Now since the goods have already been exported, there is no way that the exporter can prove to the satisfaction of the respondent s whims that what he had actually exported were Cast Alloy Permanent Magnet in unmagnetised form, hence the order need to be quashed on this ground alone. (7) That the respondent has sought to classify goods otherwise than appellant claim is in clear violation of the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.10. Instead, he has allowed drawback under Sl. No. 73.29. 11. However, from the records and also from the impugned order itself, I find that there is strong force in the submissions/contentions made in the appeal by the appellant inasmuch as that the whole of the impugned goods were exported after the Customs authorities allowed the shipment in full which arrived under AR-4 from, from the factory. It clearly shows that the impugned goods were properly examined by the Central Excise authority under whose jurisdiction the factory was working before sealing the packages containing impugned goods and allowing clearance from factory for export purpose, and that the declaration regarding description of the goods given by the exporter i.e. Cast Alloy Permanent Magnet (in unmagnetised condition) was also found correct by Central Excise authorities who examined the impugned goods, which is also evident from the relevant invoices/AR-4 forms etc. wherein Central Excise authorities have categorically certified that they have opened and examined the pkgs and found that the particulars stated and description of goods overleaf read with the invoice and the pkg list (if any) was correct and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured out of these goods and from this certificate, no inference/conclusions can be drawn regarding the description/nomenclature of the goods already exported as wrongly drawn by adjudicating authority in this case. Therefore, adjudicating authority was in no way justified or correct in denying the drawback claim at the rates prevalent at the relevant time for the said goods i.e. Cast Alloy Permanent Magnets (in unmagnetised condition) when there is no concrete evidence to do so and allowing the drawback claim at a rate applicable to different goods other than the goods actually exported. 14. Adjudicating authority in his impugned order has himself observed that the goods have already been exported and not available for further test and therefore to establish the identity of the goods, the only course of action was physical verification of the manufacturing process at the factory of the manufacturer. I am afraid, even this also cannot help to prove that the very goods exported were not the same. Therefore, whether factory is closed or not has no significance and cannot change the existing the factual position duly certified by the concerned Departmental Officers with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide description of the goods exported. I also do not find that there is any allegation/proposal to take action against the concerned C. Excise Customs Officers nor is there any strong material to prove that they issued fictitious certificate or acted in collusion with the exporter and all the dealings with the buyer and documents submitted were bogus/fictitious. Even export inspection Branch of Customs House, who appeared to have conduced investigations in this case have also not come up with any such evidence/material, as is seen the impugned Order-in-Original. 17. From the foregoing, I find that the impugned order is based on no concrete/clear evidence and is rather based on whimsical grounds and is arbitrary. On the other hand the appellant s drawback claim is based on firm evidence with regard to description of goods exported, which has been clearly mentioned in all the relevant documents like invoices/AR-4, shipping Bill etc. and which is duly verified and certified by the Concerned Officer of C. Excise and shipment also allowed by the Customs Officer concerned, after verifying the seals, as already stated above. Therefore, I have no alternative but to set aside the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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