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TMI Blog2007 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the 7 shipping bills under DEEC Scheme into Drawback shipping bills; the request was rejected by order dated 30-1-06; appeal was filed before the Tribunal which remanded the matter to the Commissioner for fresh adjudication after taking into consideration the Government of India's circular No. 74/97, dated 30-12-97 regarding conversion of shipping bills and also on the basis of case law cited by the exporter; the request was once again rejected vide the present impugned order; the Commissioner has examined the request and found that the conditions stipulated in Circular No. 74/97 and 4/2004, dtd. 16-1- 2004 have not been fulfilled. The relevant finding of the Commissioner's order is reproduced below "Examining the Circular No.74/97, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the manufacturer-exporter, but a merchant exporter. This is evident from one of the letters in the file, which state that the exporter was surrendering the Advance Licence as the quality of supplies was very poor. If so, condition/clause (d) has not been satisfied. It may not be out of place to mention that, since the conversion, a benefit is being sought by the exporter, it is for him/her to satisfy the requirements or to prove that he/she is eligible for the benefit. This is absent in this case. The export product here is sanitary and bathroom fittings (of brass) and the drawback rate depends upon the characteristics of the brass (fittings) being satisfied, It is not proved that his condition has been met or even possible, at this st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by such exporter or his authorized agent from the provisions of this clause (b) ……….. (2)……….. (a)………… (b)………… In this case, it does not appear that the conditions have been met. In other words, the request of the exporter does not satisfy the requirements as laid down in Circular No. 74/97, dt. 30-12-97 and hence cannot be allowed. As regards the case laws, the one cited by the exporter, namely the Terai Overseas case, reported in [2002 (141) E.L.T. 394 (Tri) Kolkata], it is observed that in the case reported samples were drawn, and therefore, the Hon'ble Tribunal, remanded the case back for fresh orders, based on collateral evidence that M/s. Terai may file. In other words, it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer had given them substanted material resulting in huge payment of concession etc. Besides, they were also not able to fulfil their actual user condition. It is however, seen that in the earlier orders, the adjudicating authority had observed that in the said Advance Licence, Export Obligation has already been fulfilled. This has not been controverted by the exporter. If this is true, then conversion of Shipping Bills from the Advance Licensing scheme to Drawback would tantamount to availing of double benefits for the same export products which is not permissible. This conclusion would stand irrespective of the fact whether Circular No. 4/2004 is relied upon or not. The Circular of 2004 also lays emphasis on this aspect namely tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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