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TMI Blog2021 (6) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 12 for reasons beyond its control, might well exempt the exporter/authorised agent from the rigour of the clause. According to the petitioner, had the authorities taken it upon themselves to issue the final exit order well in time, then the petitioner would have ensured compliance with provisions of Rule 12 and there would have been no necessity to file free shipping bills as against EPCG bills. Though Rule 12 (1) clearly vests discretion in the Commissioner to grant exemption by way of duty drawback even in respect of free shipping bills, such discretion must be extended by way of a reasoned speaking order - neither of the impugned orders dated 09.08.2019 and 02.03.2020 satisfy this requirement. The Customs Act, 1962 is a central enactment and there must thus, be uniformity in the exercise of discretion by officers in different stations. If an officer in a particular station has thought it fit to accept an assessee s claim in an identical circumstance, then any variation from this point of view only be after a process of detailed reasoning to justify the difference in stand. The dichotomy in the stand adopted by the different authorities as well as the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that there was nil-demand in regard to the petitioner and that all duties had been paid by it on de-bonding. On 19.12.2007, the petitioner sought conversion of EOU bills into drawback shipping bills. The petitioner wrote to the Commissioner of Customs, Sea Ports as well as to Commissioner of Customs (Airport) seeking conversion of EOU shipping bills into drawback shipping bills. On 27.12.2007 R2 writes back to the petitioner stating that the raw materials, consumables and capital goods that had been lying in bond had been de-bonded and stood discharged. 5. An application for EPCG authorisation has been made to the Joint Director of Foreign Trade thereafter and a final exit order passed by the Development Commissioner on 01.01.2008. On 22.07.2008, the petitioner made a representation before the Secretary (Revenue) reiterating its request for conversion of EOU shipping bills to drawback shipping bills enclosing all relevant details. This was followed by a reminder by R2 on 10.10.2008. On 16.10.2008, the Commissioner of Customs (Exports) rejected the request for conversion. Relevantly, the Commissioner of Customs (Airport) sanctioned the claim quantifying the customs drawback and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider the request of the petitioner and grant drawback. Inter alia, the petitioner contended that the order passed by the Board on 05.05.2009 was cryptic and non-speaking and hence, unsustainable. The prayer made was accepted and an order passed for re-consideration of the matter afresh. In fine, order dated 25.10.2018 set aside communication dated 05.05.2009 and the Board was directed to decide the matter afresh after hearing the parties. 10. As regards the show cause notice issued by the Commissioner of Customs (Airport) the Court directed the authority to consider the petitioner s reply and decide the matter independently without being influenced by the directions of the Board that had been set aside. 11. A fresh representation thus came to be filed by the petitioner seeking sanction and detailed written submissions filed before the authorities on 25.12.2018 and 20.06.2019. The impugned order has come to be passed on 09.08.2019 rejecting the request of the petitioner. 12. The basis of rejection is reference to para 6.18 (e) of Foreign Trade Policy, 2004-2009, as per which, according to the respondents, the unit in question was continue to be treated as per its or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another - regarding. Kind attention is invited to DOR Circular Nos.6/2003-Cus. dated 28.1.2003 and 40/2003-Cus. dated 12.5.2003 in terms of which conversion of free shipping bills into Advance Licence /DEPB/DFRC/Drawback shipping bills and conversion of shipping bills from one export promotion scheme to another was permitted subject to specified conditions. 2. . 3. The issue has been re-examined in the Board. 3.1 In so far as the facility of permitting conversion of free shipping bill into drawback shipping bill is concerned, the same is governed by Chapter X of the Customs Act and Customs Central Excise Duties Drawback Rules, 1995. Rule 12 of the Customs Central Excise Duties Drawback Rules contain the details of statement/declaration to be made by the exporter at the time of export of goods for the purpose of availing drawback. Proviso to Rule 12(1)(a) of ibid rules empowers the Commissioner to grant exemption from observance of the provisions of Rule 12(1)(a) for the purpose of availment of drawback. This necessarily implies that whereas the Commissioner may grant exemption from observing any of the provisions of Rule 12(1)(a) of ibid rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this clause] (b) furnish to the proper officer of Customs, a copy of shipment invoice or any other document giving particulars of the description, quantity and value of the goods to be exported. (2) Where the amount or rate of drawback has been determined under Rule 6 or Rule 7, the exporter shall make an additional declaration on the relevant shipping bill or bill of export that - (a) there is no change in the manufacturing formula and in the quantum per unit of the imported materials or components if any, utilised in the manufacture of export goods; and (b) the materials or components, which have been stated in the application under Rule 6 or Rule 7 to have been imported; continue to be so imported and are not being obtained from indigenous sources. 18. The aforesaid provision deals with the declarations to be made on shipping bills specifying the nature of the export transaction. In the present case, all shipping bills between April and end December, 2007 were free shipping bills for the reason that the petitioner had yet to receive the final order of exit. In any event, the proviso to Rule 12 states that the Commissioner of Customs, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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