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TMI Blog2014 (3) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. the needles were subject to re-packaging and re-exported. As to the applicability of the ABC (1991 (8) TMI 107 - HIGH COURT OF DELHI AT NEW DELHI), there cannot be any dispute since re-packing cannot, by any stretch of imagination, be called an “operation” or “process” on the goods. The quantity and identity of the goods remained unchanged. In these circumstances, we are of the opinion that the view of the Central Government cannot be sustained and is set-aside. - Decided in favor of assessee. - W. P. (C) 1198/2014, C. M. APPL. 2499/2014 - - - Dated:- 21-2-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Sh. Virag Tiwari and Sh. K. J. Bhat, Advocates. For the Respondent : Sh. B. V. Niren, Advocate, for UOI. ORDER Mr. Justice S. Ravindra Bhat (Open Court) 1. The petitioner is aggrieved by an order of the Central Government dated 23.09.2013, setting-aside the Commissioner (Appeal) s determination in its favour. The petitioner had imported 58,00,000 pieces of sewing needles for the purpose of re-export between May and August 2011. It cleared the goods against payment of duty to the tune of Rs. 30.96 lakhs after declaring that the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of the Customs or the Deputy Commissioner of the Customs. It is materially evident that all these factors are categorically established by the report provided on the shipping bill by the Competent Authority as discussed above. 9. If, this is an admitted position, I do not see any reason to interfere with the satisfaction derived by the competent authority regarding subject goods, i.e. needles. Hence, different containers did not alter the physical identity of the said goods in any manner. Even otherwise, it is observed that the issue of re-packing has not brought changes in the needles that such goods are not identifiable at the time of re-export. Even for academic interest, it is also observed that the subject needles were packed in orange dispensers, brand Beka (full size), which incidentally were imported Bills of Entry. Hence, I set-aside all the three impugned Order-in- Originals for the reasons aforesaid. The appeal is disposed of with consequential relief as stated above. Sd/- (R.K. Routray) Commissioner of Customs (Appeals) Regd. AD/Speed Post 2. The Deputy Commissioner thereupon preferred a revision to the Central Government which, by the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Customs Drawback Recovery Cell v. Phoenix Cement Limited 2010 (259) ELT 372 (Bom). He also relied upon the reported order of the Central Government itself in similar circumstances being In Re: Torrent Pharmaceuticals 2001 (138) ELT 949. It was submitted by learned counsel for the respondent that the packaging itself amounted to a process that indicated change in the identity or identifiability of the goods and consequently the drawback could be permitted only in terms of Section 75. It was argued that in these circumstances, the Deputy Commissioner had made an enquiry pursuant to one round of litigation and that having regard to the facts found, the Central Government s determination ought not to be disturbed. 4. Sections 74 and 75 read as follows: Drawback SECTION 74. Drawback allowable on re-export of duty-paid goods. (1) When any goods capable of being easily identified which have been imported into India and upon which any duty has been paid on importation, - (i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or (ii) are to be exported as baggage and the ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of goods of any class or description manufactured, processed or on which any operation has been carried out in India , being goods which have been entered for export and in respect of which an order permitting the clearance and loading thereof for exportation has been made under section 51 by the proper officer, or being goods entered for export by post under section 82 and in respect of which an order permitting clearance for exportation has been made by the proper officer, a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class or description used in the manufacture or processing of such goods or carrying out any operation on such goods, the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made under sub-section (2). Provided that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of the imported mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of which no drawback shall be allowed; (ab) for specifying the procedure for recovery or adjustment of the amount of any drawback which had been allowed under sub-section (1) or interest chargeable thereon; (b) for the production of such certificates, documents and other evidence in support of each claim of drawback as may be necessary; (c) for requiring the manufacturer or the person carrying out any process or other operation to give access to every part of his manufactory to any officer of customs specially authorised in this behalf by the Assistant Commissioner of Customs or Deputy Commissioner of Customs to enable such authorised officer to inspect the processes of manufacture, process or any other operation carried out and to verify by actual check or otherwise the statements made in support of the claim for drawback. (d) for the manner and the time within which the claim for payment of drawback may be filed; (3) The power to make rules conferred by subsection (2) shall include the power to give drawback with retrospective effect from a date not earlier than the date of changes in the rates of duty on inputs used in the export goods. 5. In ABC (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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