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TMI Blog2023 (10) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... ack shipping bills, as provided under Sec 149 of the Act read with Rule 12(1)(a) of the Drawback Rules, 1995, read with aforementioned Circular No. 36/2010-CUS. The reasons given for rejection by the Commissioner of Customs are flimsy and against the very spirit of Sec 149 of the Act read with Rule 12(1)(a) of Drawback Rules, 1995, read with clarification given by the Board vide its Circular No. 04/2004-CUS read with amended Circular No. 36/2010-CUS - the Board have categorically provided for allowing the benefit of drawback on AIR where there is no case of any mis-declaration or fraud, etc. In the present case, there is no such allegation or finding in the Impugned Order. Appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. A.K. JYOTISHI, MEMBER (TECHNICAL) Shri Y.S. Reddy, Advocate for the Appellant. Shri P. Amaresh, AR for the Respondent. ORDER This Appeal is filed against denial of permission for conversion/ amendment of 13 free shipping bills filed by the filed by the appellant during the period from April 2016 to December 2016, without claiming AIR drawback of Rs.2,53,43,431/- due to oversight of their clearing agent and denying AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argo and the same was verified by customs before the issue of LEO as can be seen from the ARE-1 documents. (d) When Rule 5(2) of the Drawback Rules provides fixation of AIR drawback even after export, it is not correct to deny the drawback on the goods already exported. (e) Even if it is to be opined that the Commissioner has discretion to allow the claim or not, a liberal view is to be taken in respect of the grant of incentives for exports as per the settled legal position in the case of procedural laws. 5. However, the Commissioner of Customs vide the impugned order rejected the claim of AIR drawback with the following findings without considering the documents and numerous decisions filed in support of his claim: (a) Since the goods were shown as cleared against discharge of export obligation under QBAL in ARE-1s and there was no claim of Rebate at the time of export vide the said Shipping Bills, claim for AIR drawback cannot be allowed. (b) The exporter did not show any satisfactory reason beyond their control for not complying with the provisions of Rule 12 of the said Rules except stating that the omission was by the staff of his clearing agent and beyond h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or EGM for amendment of shipping bills mentioning the AIR rate on them and claim rebate accordingly. 6.5. The reason that the drawback claims require rigorous examination, and since the goods were passed through RMS, drawback cannot be sanctioned subsequently, is not correct. The goods were exported as bulk quantity, as mentioned in the impugned order (para 3 and 11), in the ship, on due examination and identification as certified by the officer of Customs in the ARE-1s. Further, this reason is against the finding given in the impugned order that the goods were exported against the QBAL. 6.6. It is incorrect to reject numerous decisions cited by the appellant with a bald finding that they are not applicable to his case though these decisions are on the same issue. The action of the lower authority in the appellant case is discriminatory in approach since such amendment in identical cases was allowed in numerous decisions against the policy of granting eligible incentives to the exporters. 7. The appellant submits that the issue is no more res integra and numerous precedent decisions were available of this Tribunal and Hon ble High Court, that amendment to shipping bills a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods exported were not in conformity with the documents, claim cannot be rejected on the ground of non-examination as per the norms and benefit cannot be denied on the ground of non-availability of the documents since Section 149 does not stipulate such condition and on procedural infirmities. (a) Jindal Drugs Pvt Ltd vs. CC (NS-ii), Nhava Sheva [2022 (12) TMI 983- Cestat Mumbai] (b) Gennex Laboratories Ltd vs. CC, Hyderabad [2012 (11) TMI 997- Cestat Bangalore] (c) VRA Cotton Mills Pvt Ltd vs. CC, Jamnagar (Preventive) [2014 (8) TMI 772 Cestat Ahmedabad] (d) Autotech Industries (India) Pvt Ltd vs. CC, Chennai [2021 (11) TMI 518- Cestat Chennai] (e) Contemporary Leather Pvt Ltd vs. CC [2021 (12) TMI 293- Cestat Chennai] (f) Regin Exports vs. CC (Export) [2023 (7) TMI 964- Cestat Chennai] (g) Midex Global Pvt Ltd vs. CC, Pune [2018 (10) TMI 770- Cesat Mumbai] (h) Posco Maharashtra Steel Ltd vs. CC (Export-II) [2022 (12) TMI 68- Cestat Mumbai] (i) CC vs. Angel Starch and Food Pvt Ltd [2022 (7) TMI 53- Madras High Court] (j) Even in the Cargill India Pvt Ltd case, the Hon ble Supreme Court held that the ground of not conducting the physical examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) there is specific intelligence in which case, permission of Deputy/Assistant Commissioner would be required before checking. In case of export under claim of Drawback/DEPB scheme, where the claim of incentive is Rs.1 lakh or less (or) more than Rs.1 lakh, the requirement is as follows: S. No. Category of Exports Scale of Examination Export consignments shipped to sensitive places viz., Dubai, Sharjah, Singapore, Hong Kong and Colombo Others (i) Consignments where the amount of drawback/DEPB involved is Rs.1 lakh or less 25% 2% (ii) Consignments where the amount of drawback/DEPB involved is more than Rs.1 lakh 50% 10% 10. Similar is the norm for export under EPCG/DEEC schemes. As the goods were exported under free shipping bills/QBAL, the same were cleared under RMS. Further, reliance is placed on the ruling of Hon ble AP High Court in the case of Commissioner vs Vedanta Aluminium Ltd [2018 (361) ELT A66 (AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving more rigorous examination to schemes involving less rigorous examination or within the schemes involving same level of examination (for ex., from drawback scheme to DEPB scheme or vice versa) irrespective of whether the benefit of export promotion scheme claimed by the exporter was denied to him by DGFT or Customs due to any dispute or not. The conversion may be permitted in accordance with the provisions of Sec 149 of Customs Act, on a case to case basis on merits, provided, the Commissioner of Customs is satisfied on the basis of documentary evidence which was in existence at the time the goods were exported; That the goods were eligible for export promotion scheme to which conversion has been requested. The Circular further provides that the request for conversion is made by the exporter within three months from the date of the let export order . It is further specified in the circular that free shipping bills should not be allowed to be converted. However, the Commissioner may allow AIR of duty drawback on goods exported under free shipping bill, without conversion of such free shipping bill to drawback scheme shipping bill in terms of proviso to Rule 12(1)(a) of the Draw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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