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TMI Blog2016 (1) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the drawback in all three ARE1 was restricted to the excise portion of finished product only, then said proportionate drawback or rebate could have been received back in cash on same lines as per rebate cheque for ₹ 2,32,848/dated 27.8.2002. It may not have been necessary to seek any advance license against it. No rebate is perhaps possible for imported raw material used to manufacture exported finished products. All these facts could have been verified from the terms of the documents had the appellant produced the advance licenses on record. We feel that here when the facts are not clear, this aspect can not be gone into. The Appellant ought to have raised a specific question of law on such facts. No question of law regarding the permissibility of conversion of advance licenses into a drawback facility in present facts has been specifically raised. - Appellants have failed to raise any substantial question of law in this Appeal. - Appeal dimissed - Decided against the assessee. - Customs Appeal No. 1 of 2014 - - - Dated:- 5-1-2016 - B. P. Dharmadhikari And P. N. Deshmukh, JJ. For the Appellant : Shri Varun Sinha with Shri Nitin Rode, Advocates For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing rise to the controversy can be briefly mentioned from the order passed by the Commissioner on 10.02.2011. The appellant exported Woven PP Bags/ Fabrics under Shipping Bill No. 3542 dated 06.08.2002, No.3657 dated 13.08.2002 and 4251 dated 16.09.2002 under DEEC Scheme. On 20.08.2003, the assessee requested for conversion of these DEEC Shipping Bills to Drawback Shipping Bills claiming its inability to utilize Advance License issued against the above export products for Import of Duty Free raw material. The goods were exported from factory premises of their supporting manufacturer under DEEC Scheme. On 19.04.2004, the assessee requested to consider their request or to issue an appealable order. Consequently, a show cause notice dated 24.05.2004 asking them as to why their request dated 20.08.2003 should not be rejected. This show cause notice was adjudicated by the then Commissioner on 22.07.2004. 4. This Commissioner has found that since weighment was not done, the request for conversion could not have been accepted. Against this order dated 22.07.2004, the assessee filed Appeal before the CESTAT. On 09.06.2005, CESTAT remanded the matter for fresh adjudication. The Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CESTAT on 12.05.2014 is already briefly mentioned by us in opening paragraph, supra. It is in this background that we have to consider the contentions of the respective counsel. 7. Shri Sinha with Shri Rode, learned counsel for the appellant pointed out that Rule 12(i)(a)(2) has come into force on 13.07.2006 while here export in relation to which advance license was issued is of the year 2002. As such, said rule could not have been made applicable retrospectively. He further adds that rebate has been allowed only on finished product and the authorities have accordingly issued certificates mentioning that facility available under Rules 18 and 19 of the Central Excise Rules, 220, has not been availed in respect of exempted goods. The export documents i.e. Form No. ARE1 expressly stipulated that it was under claim of duty drawback under the Customs Central Excise Duties Drawback Rules, 1995. The documents also reveal that drawback on customs portion only was claimed. The certificate expressly mentions that exported goods were not manufactured by availing facility under Notification Nos. 41 of 2001 and 43 of 2001 of Central Excise issued under Rules 89 and 90 of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax Appellate Tribunal is right in ignoring the Board's Circular dated 10/2003-CUS dated 12.05.2003 which was applicable in Appellant's case and which had relaxed the requirement of rejection of one Export Promotion Benefit Scheme by DGFT/Customs ? (III) Whether Learned Appellate Tribunal as well as the Commissioner was justified in not considering claim of the Appellant's in the light of Rule 12(1) (a) of the Customs and Central Excise Duty Drawback Rules, 1995, independently of the Circulars relied upon by the department ? (IV) Whether the claim of Appellant's is covered under Rule 12(1)(a) of the Customs and Central Excise Duty Drawback Rules, 1995, for conversion of the DEEC Shipping Bill into Drawback Shipping Bills based on the documentary evidence brought on record by the Appellant's ? 11. The facts noted by us supra show that advance licenses in favour of the appellant are issued on 26.08.2002 and 09.09.2002. Vide Question No. 1, the effort is to demonstrate that Circular dated 16.01.2004 could not have been applied retrospectively to the application for conversion which was filed on 20.08.2003. If this argument is to be accepted, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside by this Court in Customs Appeal No. 4 of 2007 on 17.12.2008 and then fresh order was passed. 15. In fresh order passed by the CESTAT dated 08.07.2010, though the weights have not been mentioned or reproduced, in para 2, the fact of mention of weight in kgs., in Shipping Bills appears. The matter was sent back to the Commissioner by it the Commissioner has passed the fresh order on 10.02.2011. In this order, in para 10.3, there is an observation that examining officer's report dated 12.05.2004 to the effect that he did not weigh the export consignments is contradictory to his certificates on the back of factory invoices and relevant packing lists. It is also mentioned that weights as certified under the export invoice have attained finality. The impugned order is passed in further appeal preferred against this order by the department. In the impugned order dated 12.05.2014, the aspect of production of duplicate advance license or then dispute about weight being mentioned, has not been gone into. Only one ground is looked into the appeal came to be dismissed thereby leaving other aspects untouched. 16. In earlier order of the Commissioner dated 25.10.2006, in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trs. (Nt. Wt. of PP: 12740 Kgs.) 91000.000 Meter 585000. 00 7800.00 US Dollars 18. In application dated 20.08.2003 moved by the appellant for conversion of DEEC Shipping Bills to Drawback Shipping Bills, Invoice number and dates are given. Thus, the conversion sought is in respect of Export/02, Export/03 and Export/04. These invoices are dated 07.08.2002, 18.08.2002 and 20.09.2002 respectively. The quantity of Export product has been mentioned in kgs as 23100 kgs, 25200 kgs and 12831 kgs. Thus, total net weight of these three exports is mentioned as 61131 kgs. On next page, the details of two Advance Licenses are given and they are as under : Sr. No. Advance License No. and date Against Export Invoice No. Quantity of Duty Free import of Raw Material 1. 0310155112/3/03/00 Dated 26.08.2002 Exp/02 Exp/03 PP: 32,257.50 kgs. PE: 19,923.75 kgs. 2. 0310157442/3/03/00 dated 09.09.2002 Exp/04 PP: 13,759.20 kgs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities:] [Provided that if the [Principal Commissioner of Customs or Commissioner of Customs, as the case may be] is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the provisions of this clause]; (b) furnish to the proper officer of Customs, a copy of shipment invoice or any other document giving particulars of the description, quantity and value of the goods to be exported. (2) Where the amount or rate of drawback has been determined under rule 6 or rule 7, the exporter shall make an additional declaration on the relevant shipping bill or bill of export that (a) there is no change in the manufacturing formula and in the quantum per unit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 18 and 19 of the Central Excise Rules, 2002, has not been availed in respect of exempted goods, document at Annex. IV (specimen) shows the amount of rebate claimed in column 11. In column 12 ie next column with header Remarks , export is certified to be under quantity based advance license no. 445316. This advance license number or its date is not very clear. Rebate of ₹ 2,32,848/is paid to Appellant on 27.8.2002 as per document at Annex. VIII with the appeal memo. Input is imported duty free as it was under an advance license in discharge of export obligation as per paragraph 4 of the ARE1 dated 5.8.2002. Similar documents in relation to export 2 3 on 26.8.2002 and export 4 on 9.9.2002 are not placed before us. Even if Annex. IV is accepted as pertaining to export 2, it is obvious that no advance license need have been claimed against that export. If it could have been claimed, no grievance is possible as it has not caused any prejudice to the appellants. Appellants cannot blame the department for their financial inability to use the two advance licenses. 25. Perusal of application for conversion dated 20.8.2003 shows that there the export 2 is shown to be connected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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