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TMI Blog2018 (2) TMI 1839X X X X Extracts X X X X X X X X Extracts X X X X ..... nganese has been exported by the applicant does not automatically mean that the applicant has exported the same high carbon ferro manganese fines which they had imported earlier. As the imported high carbon ferro manganese had been cleared by Customs under RMS without physical examination thereof and high carbon ferro manganese is of various qualities in terms of content etc., it cannot be accepted on the basis of the applicant’s claim only that high carbon ferro manganese exported to South Korea is the same as was imported earlier - Thus apart from tallying of description and quantity of the exported goods with the imported goods, matching of contents of exported high carbon ferro manganese fines with the imported variety of high carbon manganese fines is of very crucial importance in this case to establish the identity of the exported goods with the imported goods. As per test report of Assmang Manganese Division Cato Ridge Works manganese contents are reported as 72.09%. But in respect of exported goods the manganese contents are reported as 68.02% by Customs House Lab. Thus there is a major difference in manganese content in the imported and exported high carbon ferro ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was attended by Shri Bishwajit Mukherjee, advocate, for the applicant who reiterated the grounds of revision already pleaded in their revision application. However, Shri S. Mukherjee, Assistant Commissioner (Drawback), appearing for the respondent, opposed the revision application for the reasons already elaborated in order-in-original and order-in-appeal. 4. On examination of the revision application, the Commissioner (Appeals) s Order and pertinent legal provisions, it is observed by the Government that for admissibility of drawback of customs duty under Section 74 of the Customs Act, 1962, the following conditions are to be satisfied (i) The imported goods should be capable of being easily identified, (ii) Duty of Customs should be paid on the imported goods and the same should be exported within 2 years from the date of payment of duty on imported goods and (iii) The exported goods should be identified with the imported goods to the satisfaction of Assistant/Dy. Commissioner of Customs. 5. While no doubt has been expressed either by the Dy. Commissioner or by the Commissioner (Appeals) in their orders regarding fulfilment of the above mentioned first tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easily identified hinges on subjectivity, each item must be identified by methods appropriate to the nature of goods, physical examination of the goods is not only methods for establishing the identity of the goods, the first part of examination report has clearly established the identity of exported goods and there are several other colateral evidences like certificate of warehouse, Chartered Accountant, State Bank of India which clearly support that they had imported High carbon ferro manganese fines and the same have been exported by them to the Korean company. While Government agrees with the applicant s above contentions that physical examination of the goods is not only the sole method for verification of identity of goods, each item must be identified by methods appropriate to the nature of goods and that the applicant has exported high carbon ferro manganese to the Korean company, no convincing evidence has been adduced by the applicant to establish that high carbon ferro manganese fines imported from South Africa only has been re-exported to the Korean company. The Government is convinced that identity of the exported goods with the imported goods cannot be established me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frica having manganese purity of above 73%. This fact is even supported by the two main test reports issued by Assmang Manganese Division Cato Ridge Works and Custom House Lab test report. The first report of Assmang Manganese Division Cato Ridge Works was produced by the applicant before the Customs officers at the time of import of the goods and Custom House Lab Report was given in respect of exported goods for which sample was drawn by the customs officers in the presence of applicant representative. As per test report of Assmang Manganese Division Cato Ridge Works manganese contents are reported as 72.09%. But in respect of exported goods the manganese contents are reported as 68.02% by Customs House Lab. Thus there is a major difference in manganese content in the imported and exported high carbon ferro manganese fines as per these two reports also. The applicant has relied upon the other two test reports received from M/s. Inspectorate Griffity India Pvt. Ltd. and M/s. Posco Center Korea to claim that difference in manganese content is not very significant. But the Government does not consider these two reports relevant to the issue as these two test reports have not been giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as to why they imported the ferro manganese in India at all if they had already plan to export the same to Korea. It is also noted by the Government that after the High carbon ferro manganese fines was imported by the applicant, it remained in the custody of the applicant for long time and the departmental authority did not have any type of control over it and no evidence has been adduced to prove that the imported goods remained intact in the custody of the applicant for export purpose. Instead of providing direct evidence to support their claim, the applicant has placed reliance on several other materials such as the certificates of Warehouse and CA etc. to support their claim that the exported goods are the same as were imported earlier. However, no value can be attached to these documents in the face of above discussed direct evidences which are showing major difference in the quality of imported and exported high carbon ferro manganese fines. Moreover, the persons who have issued the above named certificate are not mineral experts and have not been associated with the physical or chemical examination of the imported and exported high carbon ferro manganese fines. They are ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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