TaxTMI 
TaxTMI 
2010 (2) TMI 922
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.... shipping bills and later converted into drawback shipping bills under Section 74 of Customs Act, 1962. The party represented before Commissioner of Customs who permitted the conversion of free shipping bills into Drawback Shipping Bills subject to compliance of provision of Section 74 Customs Act, 1962. Thereafter, the Asstt. Commissioner of Customs (DBK) passed an order rejecting their claims on merits as the goods were not identified at the time of export to the satisfaction of Asstt. Commissioner of Customs as required under Section 74(iii) (a) of the Customs Act, 1962. Aggrieved by the above impugned order the appellant filed appeal, who after due consideration of facts on record and submission made allowed the appeal with consequential relief. 3. On having been aggrieved by the above orders of the Commissioner of Customs (Appeals), the jurisdictional Commissioner of Customs (Cochin) reviewed the same and preferred this revision application on the following main ground : (i) The statute itself stipulates that the goods have to be identified by the Assistant/Deputy Commissioner at the time of export as goods which were imported. In the s....
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....st the statute. Section 74 of the Customs Act, 1962 mandates that the goods have to be identified to the satisfied of the Asstt/Deputy Commissioner of Customs for draw to be paid. (v) Commissioner (Appeal) has relied on the order of the Tribunal in the case of M/s. Modi Revlon Ltd. v. Commissioner of Customs (Import), Mumbai and reported in 2007 (209) E.L.T. 252 (Tri. - Mum.) to pass the subject order. Commissioner (Appeal) has held that in that case the Tribunal had observed that when authorities can be satisfied about the identity of the re-exported goods, drawback should not be disallowed on procedural and technical ground. The issue involved in the case of Modi Revlon Ltd. was different and deficiency in this case is a statutory requirement without which DBK cannot be granted. (vi) The second case law relied upon by the Commissioner (Appeals) is that of the case of Commissioner of Customs, Mumbai v. Terai Overseas Ltd., reported in 2003 (156) E.L.T. 841 (Cal.). The issue involved in that case was a claim for drawback under Section 75 of the Customs Act, 1962, wherein the drawback document was rejected on the ground of non-submission cla....
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....L.T. 841 (Cal.) is more appropriate and further distinction drawn in Hon'ble Tribunal case - 2007 (209) E.L.T. 252 (Tri. - Mum) is wholly incorrect. 5. The personal hearing in the case matter was fixed and held on 14-12-2009 which was attended by Sh. S. Janakiraman, Advocate for and on behalf of the respondent wherein while reiterating the facts of the revision application, it was stressed upon that the vessel along with oil exploration equipments was re-exported within 2 years. Drawback claim was denied because the examination report was not signed by Asstt. Commissioner. A number of case laws are cited for the proposition that procedural lapse may be condoned. Further vide letter dated 22-12-2009, Sh. Jankriraman, Advocate for the respondent while submitting text/copies of examination report by the examiner/appraiser stressed upon that even though the system generated shipping bill (EDI) invariable has a mention "this consignment was not opened for physical examination by customs" but the fact remains in this case is that equipments/vessel being as those imported by respective/impugned bill of entries (copies submitted). Further copies of below mentioned Judgment were als....
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....try. 8. In this regard, Govt. further considering the details available in undisputed bills of entries, invoice, shipping bills having reports from examining/appraising officers of the department along with other correspondences and the particular nature of impugned re-exported goods is of the view that the respondents case is much strong than the revision application filed on basic ground of wording of only one of the applicable statue i.e. Section 74 (iii)(a) of the Customs Act, 1962 without keeping in view the purposeful sanctity of relaxing/exempting provision of Rule 4(a) above as issued thereunder. 9. In this case Manual Shipping Bills were required to be filed as pointed out by the department. The appraiser who examined the goods and recorded examination report was aware that the said examination report was required to be put up to Assistant Commissioner for counter signature. He failed to do so. Even if the Free Shipping Bill was filed, it was mentioned in the Shipping Bill that goods being re-exported were imported vide specified Bills of Entry. Exporter did not hide any fact except a mistake that goods were exported on free Shipping Bills which were subseq....