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TMI Blog2019 (3) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- (Rupees Twenty Lakhs only) on the notice M/s. Schlumberger Asia Services Ltd., Mumbai under section 114(iii) of the Customs Act, 1962. 5.1.3. I reject the drawback claims of Rs. 30,80,589.60 and Rs. 18,45,052.00 respectively under Shipping Bills No.3000001023 and No.3000001024 both dated 30.05.2009, made by the notice M/s. Schlumberger Asia Services Ltd., Mumbai on the impugned goods under the section 74 of the Customs Act, 1962, as the identity of the goods as the imported and duty paid goods is not established. 5.1.4. This order is passed without prejudice to any other action and/or further action, on the aforesaid Noticee/company and/or on any other individuals/persons under the provisions of the Customs Act or any other Act for the time being in force." 2.1 Appellant had filed two shipping bills No 300001023 and 300001024 both dated 30.05.2009 for re-export of duty paid imported goods under claim of drawback in terms of Section 74 of the Customs Act, 1964. 2.2 On examination the goods presented for re-export were found to be different from the goods imported against the B/E as claimed by the appellants. Thereafter investigations conducted by the revenue in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these goods are not different from the goods imported. * Since the goods entered for export are not liable for confiscation no penalty can be imposed on them under Section 114. * In view of delay in shipment, they do not intend to export the said goods but would use them in subsequent projects, accordingly they request only for setting aside the confiscation and penalty. 4.1 We have heard Shri T Viswanathan Advocate for the Appellant and Shri R Kumar, Assistant Commissioner (Authorized Representative) for the revenue. 4.2 Arguing for the appellants learned Counsel, submitted that this case is not one covered under Section 113(i) as they have not made any misdeclaration in respect of the consignment entered for exportation. Since the consignments entered for exportation are as declared in the export documents, they are not liable for confiscation under section 113(i). Since the goods are not liable for confiscation no penalty can be imposed on them under Section 114. 4.3 Arguing for the revenue learned authorized representative submitted that the goods were not merely entered for exportation but were entered for export under claim of drawback under Section 74. Since the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that the exporter or his authorized agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorized agent, and for reasons to be recorded, exempt such exporter or his authorized agent from the provisions of this clause. (b) furnish to the proper officer of customs, copy of the Bill of Entry or any other prescribed document against which goods were cleared on importation, import invoice, documentary evidence of payment of duty, export invoice and packing list and permission from Reserve Bank of India to re-export the goods, wherever necessary." 5.4 In terms of the above rule 4 appellant were required to make declaration on the Shipping Bill not only in respect of goods entered for exportation and their value but also in respect of the drawback being claimed by them in terms of Section 74. Any misdeclaration in respect of the drawback claimed shall be construed as a mis-declaration. Section 113 (i) of the Customs Act, 1962 reads as follows: "(i) any goods entered for exportation which do not correspond in respect of value or in any material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Perfect Van Melle India Pvt. Ltd. vs. Union of India reported in 2009 (243) E.L.T. 654 (Mad) has held that for claiming drawback under section 74 of the Customs Act, 1962 the identity of the goods is the prime criteria. The impugned goods are not identified as imported and duty paid on importation and as such are not eligible for drawback under section 74 of the Customs Act, 1962. 4.14. It is, thus established beyond doubt that the exporter has intentionally embossed/chiselled the serial number viz 059 and FB 85 on the impugned goods to establish the identity of the said goods to that imported under the said BE and import documents to substantiate his claim that the goods entered for export under the above said SBs are the same and fraudulently attempted to claim ineligible drawback. The exporter has thus forged the markings especially serial numbers on the impugned goods so as to corelate them with the marks and nos. declared in the relevant BEs and SBs with sole intention to avail ineligible drawback under section 74 of the Customs Act, 1962. Therefore, the declarations made in the SBs are in contravention to the provisions of section 50(2) of the Customs Act, 1962. 4.15. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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