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TMI Blog2015 (9) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... t vide an application dated 8-10-2007 filed a claim of duty drawback under Section 74 of Customs Act, 1962 against export made vide Shipping Bill No. 6703509, dated 5-6-2007 and 6704286, dated 5-7-2007 before the Assistant Commissioner of Customs, NSCB International Airport, Kolkata. 2.1 The applicant had imported 2500 kgs of "Lavender Flowers" vide Bill of Entry No. 439541, dated 13-4-2007. Thereafter they exported "Cotton Neck Pillows filled with Lavender Flowers" vide Shipping Bill No. 6703509, dated 5-6-2007 and 6704286, dated 5-7-2007. As per their Drawback claim filed they have stated that they have exported a total quantity of 2256 kgs of the "Lavender Flowers" filled in the neck pillow. 2.2 The Export group had given the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the said claim. 3. Being aggrieved by the impugned Order-in-Original, the applicant filed an appeal before the Commissioner (Appeals), who rejected the same vide Order-in-Appeal No. Kol/Cus/CKP/62/2012 dated 16-4-2012. 4. Thus, the applicant filed this revision application under Section 129DD of Customs Act, 1962 before the Central Government on the following grounds : 4.1 That the order passed by Assistant Commissioner of Customs and Commissioner of Customs (Appeals) are wrong, not maintainable and liable to be set aside. 4.2 That as per the order of group the goods were examined in presence of Assistant Commissioner (Shed) in term of Section 74 of Customs Act, 1962. That after examination Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Officials forwarded to group. That the import was made under Section 74 which was clearly cited in the Bill of Entry and also at the time of re-export it was mentioned on the Shipping Bill. 4.6 That the Assistant Commissioner of Customs rejected their claim by stating that examination report does not specify the identity of the exported goods vis-à-vis imported goods. That the adjudicating authority have both the samples with them but failed to see the sample for natural justice but mechanically rejected the claim filed by the applicant in spite of identity of import and export goods established. 4.7 That the findings of Commissioner of Customs (Appeals) is totally wrong and not maintainable. 5. Personal hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) of the Customs Act, 1962 which reads as under :- "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 owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entified; and (c) provide for the manner and the time within which a claim for payment of drawback is to be filed. (4) For the purpose of this section- (a) goods shall be deemed to have been entered for export on the date with reference to which the rate of duty is calculated under Section 16; (b) in the case of goods assessed to duty provisionally under Section 18 the date of payment of the provisional duty shall be deemed to be the date of payment of duty". 8.1 The above provisions permit drawback on re-export of duty paid imported goods if the said goods are easily identifiable to the goods which had been imported on payment of duty. The condition under which such drawback is permitted is that the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant/Deputy Commissioner of Customs as the goods which were imported earlier are entitled for drawback. In the instant case, the criterion is not satisfied at the time of exportation, because the goods exported are clearly not the same goods which were imported. Moreover, the goods imported bear no distinguishing marks and numbers which can clearly establish that the goods which were imported are the same as those exported. This view also finds support in the order of the Hon'ble High Court of Madras in the case of Perfetti Van Melle India Pvt. Ltd v. UOI - 2009 (243) E.L.T. 654 (Mad.) wherein it is held that for claiming drawback under Section 74 ibid identity of goods is the prime criteria. 10. Government further notes that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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