TaxTMI 
TaxTMI 
2012 (9) TMI 347
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....rtain exports, the petitioner thought of availing the benefit of DEPB scheme. Therefore the petitioner submitted shipping bills complying with the procedure prescribed for availing of the benefit under the DEPB scheme. Subsequently, the petitioner realised that it is more advantageous to the petitioner to claim draw back under the Customs, Central Excise Duties and Service Tax Drawback Rules (for short 'Drawback Rules'). Therefore, the petitioner applied to the Commissioner of Customs by Ext. P4 for consideration of their claim under Rule 12 of the Drawback Rules exempting the petitioner from complying with the provisions of the Rule since the petitioner had originally made the export complying with the requirements for availing of the bene....
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....rom rigorous compliance with the requirement for claiming Drawback Rules is vested squarely with the Commissioner of Customs and therefore the matter should have been placed before the Commissioner of Customs and the Assistant Commissioner could not have, on his own, taken a decision, is the contention raised. The petitioner therefore seeks a direction to the Assistant Commissioner to place the matter before the Commissioner of Customs under the proviso to Rule 12(1) for a decision as to whether the petitioner's claim for benefit of the Drawback Rules can be considered by the Commissioner waiving the procedural requirement in respect of the same. 2. The respondents have filed a counter affidavit opposing the contentions. According t....
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....xcise paid on the containers, packing materials and materials and the service tax paid on the input services used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities.   Provided that if the Commissioner of Customs is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the pro....
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....isions of the Tribunal and this court on the question, the Government themselves had decided to liberalise the provision regarding even conversion from one scheme to another. In the above circumstances, I do not think that the petitioner could have been prevented from having their claim considered under Rule 12, particularly the proviso to Rule 12(1). The power to consider the claim under the proviso to Rule 12 is squarely on the Commissioner of Customs. As such, the Assistant Commissioner of Customs was bound to place the matter before the Commissioner of Customs for an order under the proviso to Rule 12(1) of the Drawback Rules. Obviously, the Assistant Commissioner had not done that, apparently on the ground that the petitioner's claim w....