9911796707
TMI Blog2014 (5) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... an Udyog Ltd. submitted details of five Shipping Bills and requested to settle their drawback claim amounting to Rs. 6,99,535/- under Section 74 of the Customs Act, 1962. On going though the AREs-1 submitted by applicants it was noticed that they had been availing Cenvat credit facility in terms of Cenvat Credit Rules, 2004 and also claimed rebate of duty on the export goods under Rule 18 of the Central Excise Rules, 2002. In this case the identity of the re-exported goods could not be established since the imported goods were fitted with the final export goods and not exported in same condition as it was imported. Therefore, the export of the said goods was held as not within the purview of the Section 74 of the Act. The adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by the Assistant Commissioner of Customs (Docks) clearly certifies that the imported items were unused. The Shipping Bill was assessed by the drawback Section of the Custom House and an examination order was given by it to the Assistant Commissioner (Docks) to certify as to whether the identity of the goods was established and whether the goods were being re-exported as per the time limit prescribed under Section 74 of the Customs Act, 1962 and whether the imported items were used or not used. 4.2 Applicant submits that the examination report after examining the Bill of Entries, Invoices and Packing List very clearly stated, that the identity of the goods was established with respect to import documents and that the goods were un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Applicant submits that his case is similar to that the readymade garments exported along with hangers as it has in its Shipping Bill very clearly brought out that auto components were imported under the Bill of Entry indicated in the Shipping Bill and the item exported was trailer on which these auto components were fitted. In such circumstances, the auto components had to be treated as re-exported and thus drawback should have been sanctioned under Section 74 of the Customs Act, 1962 and the impugned order to the contrary is liable to be set aside on this ground. 4.4 Applicant submits that since no new facts came to the notice of the department nor any fresh documents were filed and therefore, if the department was of the view the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt at that very time and having failed to do so for 3 years they cannot deprive the applicant of its lawful drawback claim when the fact of export is not being disputed and allowed the applicant to file claim under Section 75 if it felt that it could not be sanctioned under Section 74. The order is therefore, clearly liable to be set aside. 5. Personal hearing was scheduled in this case on 7-8-2013, 30-10-2013 & 10-4-2014. Hearing held on 10-4-2014 was attended by Ms. Nishtha Singh, advocate on behalf of the applicant who reiterated the grounds of revision application. Nobody attended hearing on behalf of respondent department on any of these hearings. 6. Government has carefully gone through the relevant case records, oral and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 74 of the Act, drawback is admissible only when the export goods are capable of being easily identified which have been imported into India and upon which any duty has been paid on importation. In the instant case of the exporter, the imported goods were used in the manufacture of the export goods. Therefore, it can be said that the same are easily identified. Thus, the import goods were not re-exported as such and the identity of the same was lost when the same were fitted with the export goods. Therefore, the export of the said goods was not within the purview of Section 74 of the Act. The plea of the exporter that the export goods were examined and identity of the import goods fitted with the said export goods was also established wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the description of export goods and that the imported goods was different. Therefore, the provisions of Section 74 of the Act are not applicable in the instant case consequently the drawback claim for Rs. 6,99,535/- is not admissible." 9. The Commissioner (Appeals) has further discussed the contention of the applicant w.r.t. observation of original authority and did not find any merit in these contentions and upheld the impugned Order-in-Original. Government notes that applicant has already availed rebate of duty paid on exported goods. At the same time they have also availed Cenvat credit. Applicant is stated to him availed drawback of Customs Portion also. Since the drawback claim is not admissible to them when rebate is already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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