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TMI Blog2012 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... er would not be eligible for drawback, under Section 74 of the Customs Act, 1962, in respect of 5000 kilograms of goods, as their batch numbers did not match with the bills of entry cited by the petitioner. It is also seen, from the shipping bills, invoices, packing list and the examination report, that the fact of export of imported goods had not been declared by the petitioner and the shipping bills had not been filed, under Section 74 of the Customs Act, 1962 - petitioner is not entitled to drawback - 21014 of 2011 and M.P. No. 1 of 2011 - - - Dated:- 27-4-2012 - M. Jaichandren, J. REPRESENTED BY : Shri N. Viswanathan, for the Petitioner. S/Shri K. Ravi Anantha Padmanaban, CGSC and P. Mahadevan, SCCG for the Respondent. [Order]. Heard the learned counsel appearing for both sides. 2. It has been stated that the petitioner firm is a partnership firm, registered with the Central Excise authorities. It has been granted the registration for the manufacture of excisable goods. 3. The petitioner firm has also obtained the necessary licence, in terms of the Drugs and Cosmetics Act, from the drug authorities concerned, for the manufacture of certain drugs in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d followed the normal course in preferring the drawback, in respect of the exported goods. However, the shipping bills had been filed, inadvertently, under Section 75 of the Customs Act, 1962, instead of filing the claim, under Section 74 of the said Act. The goods had been exported by the petitioner in its original packing, as received from the overseas suppliers. The goods had been physically verified and stuffed in the containers at their factory premises, in the presence of the customs officers concerned. Thereafter, the petitioner firm made the necessary application for the fixation of the brand rate of drawback and for its sanction, with the jurisdictional Commissioner of Central Excise, on 20-9-2001. In response, the petitioner firm had received a letter from the Deputy Commissioner of Central Excise (Customs Policy), dated 26-11-2001, returning the documents filed by it stating that the claims made by the petitioner firm cannot be processed, under Section 75 of the Customs Act, 1962, without putting the imported goods to the necessary process. Consequently, the petitioner firm had requested the second respondent, by a letter, dated 4-12-2001, for the sanctioning of the draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a revision application before the first respondent, as provided under Section 129 DD of the Customs Act, 1962. The Department had also filed a revision application against the allowing of the drawback claimed by the appellate authority to the extent of 8,000 kilograms of the material. By a common order, dated 6-4-2011, the first respondent had passed an order holding that the petitioner firm had failed to comply with the statutory conditions and the procedures laid down in Section 74 of the Customs Act, 1962, and the Rules 4 and 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Thus, the drawback claim made by the petitioner firm was not held as admissible under Section 74 of the Customs Act, 1962, and therefore, the revision application filed by the petitioner has been dismissed and the revision application filed by the Commissioner of Customs, Chennai, had been allowed. 10. Aggrieved by the said order, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 11. In the counter affidavit filed on behalf of the respondents, it has been stated that the exporter had applied for the fixat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n found. Thus, it is clear that the goods in question were not defective in nature. Further, the exporter had not adhered to any of the conditions of the circular. Therefore, the claim of the exporter for drawback, under Section 74 of the Customs Act, 1962, had been rejected, by way of an Order-in-Original, by following the principles of natural justice. 15. Aggrieved by the Order-in-Original, rejecting the claim of the exporter for drawback, the petitioner had filed an appeal, before the Commissioner (Appeals), in Appeal No. C. Cus. No. 577/2009, dated 29-6-2009. The Commissioner (Appeals) had ordered that the petitioner was eligible for the drawback, under Section 74 of the Customs Act, 1962, to the extent of 8,000 kilograms. However, it had been held that 5,000 kilograms of materials, whose batch numbers did not tally with the Bills of Entry, were not eligible for the drawback. 16. Challenging the order in Appeal, the Department had filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, on 13-1-2010. Further, a revision application had been filed by the Department, on 27-1-2010, before the Revision Authority, the Joint Secretary, with a request to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, no verification of the goods had been carried out by the customs authorities. 20. It had been further stated that the goods in question had not been re-exported as per the provisions of Section 74 of the Customs Act, 1962. In fact, the goods had been re-exported, under the provisions of Section 75 of the said Act, which requires a different kind of verification and procedures to be adopted. 21. It had been further stated that the petitioner cannot rely on the letter of the Deputy Commissioner of Central Excise (Customs Policy), dated 26-11-2001, as the Central Excise Authorities had not physically examined the goods in question and as the said letter is based on the petitioner s submission made to the Central Excise authorities concerned, while applying for brand rate. Further, Rule 4 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995, cannot prevail over the provisions of Section 74 of the Customs Act, 1962, as claimed by the petitioner. 22. It had also been stated that no proper explanation has been given by the petitioner for its failure to file the relevant documents, under Section 74 of the Customs Act, 1962. 23. The learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such circumstances, the petitioner had requested the customs authorities, vide letters, dated 3-12-2001 and 17-12-2001, for 9000 kilograms of Metronidazole and customs duty suffered for 3500 kilograms of the goods, under Section 74 of the Customs Act, 1962. 26. It has also been noted that in case of re-export of goods imported under the DEPB scheme, the Boards Circular No. 75/2000-Cus., dated 11-9-2000, specifies certain conditions, according to which the re-export of the imported goods are allowed only if the goods are found to be unfit for use because of certain manufacturing defects. Further, the goods in question are to be re-exported within a period of six months from the date of import, and the identity of the goods has to be established to the satisfaction of the customs authorities concerned. While so, it is not in dispute that the goods had been re-exported by the petitioner, as they did not find any suitable buyer. As such, it cannot be said that the goods were defective in nature. Further, the petitioner had not adhered to the other relevant provisions of the Customs Act, 1962. As such, it is clear that the petitioner would not be eligible for drawback, under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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