TaxTMI 
TaxTMI 
TaxTMI 
2010 (11) TMI 823
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....ade which they had intended to import. They re-exported these goods vide Shipping Bill No. 19 dated 12-6-08 and filed drawback claim of Rs. 10,33,516/- under Section 74 of Customs Act, 1962. Assistant Commissioner of Customs (Drawback) rejected the said claim on the ground that identity of goods was not established to the satisfaction of Assistant Commissioner. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who rejected the same after following the due process of law. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 129D of Customs Act, 1962 before Central Government on the following grounds : 4.1 That....
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....cribed as stainless steel scrap, solid, grade 304 in the supplier's invoice and the bill of entry. However, on examination by the applicants, the consignment was found to contain 65% material which was not of the grade ordered by the applicant and was, therefore, unsuitable for captive use by the applicants. The applicants entered into the correspondence with the foreign supplier who after protracted correspondence agreed to take back the goods. The learned Commissioner (Appeal) not only failed to consider this correspondence with the foreign supplier but also did not notice that the correspondence is with reference to the applicants' purchase order and the foreign supplier's invoice which clearly established that the stainless steel scrap ....
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....spondence with the foreign supplier. The learned Commissioner (Appeals) has, therefore, erred in upholding the findings of the Assistant Commissioner that the identity of the goods was not established. The impugned order-in-appeal is liable to be set aside and the applicants are entitled to the drawback as claimed. 4.6 That, the learned Commissioner (Appeal) has further erred in holding that there was no violation of the principles of natural justice by the Assistant Commissioner in rejecting the applicants' drawback claim without issue of show cause notice and without granting hearing to the applicants. It is well settled law that the refund/drawback claim is not to be rejected without giving reasonable opportunity to the claimant by....
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.... Section 74 of Customs Act, 1962 which was rejected by Assistant Commissioner drawback on the ground that identity of goods was not established to the satisfaction of concerned Assistant Commissioner. Commissioner (Appeals) upheld the impugned order-in-original. 8. The dispute has mainly arisen from the customs examination report of the impugned re-exported goods report as given on the shipping bill which is reproduced below :- "Opened and examined 3 containers in presence of party's representative and found to contain steel scrap. Identity of goods cannot be established in the absence of any identification marks and hence, not established. Weight of container were got done at Concore weight machine as per which Sl. No. A-88, A-92, &....
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....d as weighment error. Department is relying only on the point that in the absence of any description marks/numbers on the scrap the identity of re-exported goods cannot be established with that of imported goods. Here, it is noted that imported and exported scrap is of same description and weight and in the absence of marks and numbers, the corroborative documentary evidence has to be relied upon. There is a sufficient corroborative evidence in the form of correspondence between applicant and supplier of goods to show that imported goods have been exported. There is no contrary evidence with the department. Application has also relied upon GOI Revision order No. 226/93, dated 21-6-93 in the case of C.C. v. Mudura Coats - 1993 (68) E.L.T. 27....