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TMI Blog2017 (11) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to consider the issue - appeal allowed by way of remand. - C/22911/2014-SM - 22538/2017 - Dated:- 24-10-2017 - Shri Ashok Jindal, Judicial Member Shri M. Balagopal, Advocate For the Appellant Dr. J. Harish, Deputy Commissioner (AR) For the Respondent ORDER Per : Ashok Jindal The appellant is in appeal against the impugned order wherein the learned Commissioner (Appeals) disallowed the conversion of free shipping bills into drawback shipping bills. The learned counsel for the appellant submits that the issue came up before the Hon ble Apex Court in the case of Cargil India Pvt. Ltd. reported in 2015 (325) E.L.T. 801 (S.C) wherein the Hon ble Apex Court held that as per Circular No. 04/2004 dated 16.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration on the relevant shipping bill or bill of export that - (i) a claim for drawback under these rules is being made; (ii) in respect of duties of Customs and Central Excise paid on the containers, packing materials and materials and the service tax paid on the input services 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 Commissioner of Customs 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s., dated 16-1-2004 of F.No.609/176/2002-DBK states that, no provision exists for permitting conversion of free shipping bills into drawback shipping bills . It also states that there is no need to allow conversion as Commissioner may examine and consider individual requests on merits and facts in terms of the provisions as per the Customs and Central Excise duties and Service Tax Drawback Rules, 1995. In the subject case, the goods under free shipping bills were not physically examined. Let export order was given, EGMs were closed in the EDI system and the EP copies of the shipping bills were also generated. The bills are no more alive and are in the current status of history. As per the Rule 13(1) of the Customs, Central Excise Duties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court also confined the discussion only on the first issue. Since on the first issue we have accepted the view taken by the High Court, it becomes necessary to deal with this issue though it has not been gone into either by the Tribunal or the High Court. 11. After perusing Circular No.04/2004, dated 16-1-2004, along with some relevant provisions of the Customs Act, we find that the treatment given by the Commissioner to the aforesaid argument is not legally tenable. Circular No. 04/2004 refers to the discussion that was held in the Conference of Chief Commissioner on Tariffs and allied matters held on 25th/26th September, 2003 and notes that in the said conference it was felt that in cases where the exporters had filed free shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty drawback, where rate is claimed in terms of Rule 6 or Rule 7 of the Customs Central Excise Duties Drawback Rules. 12. It is not in dispute, as has been recorded by the Tribunal as well, that the appellant wanted only All Industry Rates of duty drawback . In view of the above, the reasons given by the Commissioner that the goods were not physically examined would be of no relevance. This view of ours further stands substantiated on the reading of Sections 50, 51 and 113 of the Customs Act. Sections 50 and 51 of the Customs Act are re-produced for ready reference as under : 50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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