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TMI Blog1991 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... behind the Secretariat, Hyderabad to the Gibraltar rock in the Hussain Sagar Lake and was to be erected on the Gibraltar rock. The petitioner responded to the tender enquiry and submitted a tender which was accepted by the Government of Andhra Pradesh by their Memoradum dated 15th October, 1987. 4. The petitioner says that the work of transportation of the Monolithic Buddha statue from Raigir to the Gibraltar rock was a highly technical work, and they need special equipment for transportation of the Monolithic Buddha statue from Raigir to Gibraltar rock behind the Secretariat, in the form of trailer specially designed to carry the statue of such weight to a distance of about 60 kms. Besides that, for the purpose of ensuring that the finished Monolithic Buddha statue, which was to be placed on the Gibraltar rock, special lifting and erection equipment, which was called "Hydra-jack", was needed. According to the petitioner, the Hydra-jack was procured from M/s. Mammoet Transport, Holland, on hire, who provided not only the Hydra-jack, but also experts to handle the said equipment, and so manpower was given also on hire to the petitioner. 5. In connection with the said work awarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and could not, therefore, be put on the Gibraltar rock for being erected by using the Hydra-jack, and inasmuch as even today the said Monolithic Buddha statue is still in the waters of Hussain Sagar Lake, the petitioner having hired the Hydra-jack, had no option but to return the Hydra-jack by re-exporting back by shipping bill No. 85 dated 17-3-1990. This shipping bill was endorsed by the authorities concerned on 26-4-1990. A copy of the said shipping bill has been filed in this court. 10. Once the Hydra-jack has been shipped back to M/s. Mammoet Transport, Holland, from whom it was hired, the petitioner made a claim for drawback to the Assistant Collector of Customs. Customs House, Kandla, vide their letter dated 7th May, 1990. The amount of drawback, which was claimed, was with respect of one bill whereas the duty was paid against two bills. The amount of drawback claimed was 98% of the total duty paid in respect of one bill, which was for a sum of Rs. 52,62,484. As there was some delay in the processing of the application for drawback made by the petitioner, the petitioner moved this court by way of C.M.P. 2279/90 seeking directions that the respondents should process the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the manner in which the identity of goods imported in different consignments which are ordinarily stored together in bulk, may be established: (b) specify the goods which shall be deemed to be not capable of being easily identified. (4) For the purposes of this section - (a) goods shall be deemed to have been entered for export on the date with reference to which the rate of duty is calculated under Section 16; (b) in the case of goods assessed to duty provisionally under Section. 18, the date of payment of the provisional duty shall be deemed to be the date of payment of duty." "75. Drawback on imported materials used in the manufacture of goods which are exported. - (1) Where it appears to the Central Government that in respect of goods of any class or description manufactured in India being goods which have been entered for export and in respect of which an order permitting the clearance and loading thereof for exportation has been made under Section 51 by the proper officer, a drawback should be allowed of duties of customs chargeable under this Act on any imported materials, of a class or description used in the manufacture of such goods, the Central Government may, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identifiable article upon re-export of duty paid goods. 16. In view of what has been set out above, it is clear that the Hydra-jack, which is identifiable as distinct goods, being special equipment to be used for the purpose of erection of different types of super-heavy articles, including an article like the Monolithic Buddha statue weighing 480 Metric tons, was an easily identifiable goods within the meaning of Section 74 of the Customs Act, as such and the drawback of customs duty, allowable by the authorities concerned, had to be allowed in accordance with the provisions of Section 74 of the Customs Act. 17. In the counter-affidavit, the respondents have taken the stand that 85% of the customs duty was permissible as drawback, and was permitted in accordance with the law as the goods, i.e., Hydra-jack had been used in India. In that connection, during the course of arguments, reliance was placed by the respondents on the Notification No. 19-Customs dated 6th February, 1965, as amended by Notification No. 154-Customs dated 8 November, 1969 and the Notification No. 45-Cusloms dated 2nd May, 1970. Reliance was placed on Entry No. 1 in the Table in which it was stated that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for declaration on the shipping bills is substantially complied with when the respondents (?) stated in the shipping bill that Hydra-jack "was to be used". These words to our mind clearly indicate that the Hydra-jack was not used in India. 22. The respondents have also relied upon the Rule 11 of Customs & Central Excise Duties Drawback Rules, 1971. These Rules do not have any application to the present case inasmuch as they have been made by the Central Government in exercise of the powers under Section 75 of the Customs Act. The relevant applicable rules would be the ones made by the Board under Section 74 of the Customs Act and not by the Central Government. Therefore, the said Rule 11 which requires that a statement of non-use of article in India be made on the shipping bill of export has no application to the instant case as Hydra-jack is an article covered under Section 74 of the Customs Act. 23. The petitioner has clearly stated in the petition that the Hydra-jack was not used at all. In this view of the matter, in the facts and circumstances of the case we also take notice of the truth of the fact of sinking of the Monolithic Buddha statue, on which account the Hydra-jack ..... X X X X Extracts X X X X X X X X Extracts X X X X
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