TaxTMI 
TaxTMI 
2014 (2) TMI 346
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....the Appellant they paid total duty of Rs.3,71,90,337/- on 06.06.08 and intimated this payment to the Assistant Commissioner under their letter dt. 09.06.08 giving breakup on this duty as under:- (a) Customs duty on depreciated value of imported machines covered underEPCG Licence Rs. 86,43,441/- (b) Excise duty on depreciated value of indigenous machines under EPCG Licence Rs.2,08,18,206/- (c ) Customs duty on imported spares and packing material Rs.65,195/- (d) Additional custom duty equal to the Central Excise duty on imported spares and packing material Rs.1,17,061/- (e) Cenvat Credit reversed on 06.06.08 in Cenvat Register being duty on closing stock of finished Goods, processed goods, raw-material, packing Material, consumable spares and scrap. Rs.75,46,434/- 1.2 Accordingly the Appellant under their letter dt.09.06.08 requested the Assistant Commissioner for issue of 'No Due Certificate' at the earliest with effect from 06.06.08. The 'No Dues Certificate' was issued on 29.07.08 by the Assistant Commissioner and on the same day, the Appellant sent copy of the same to the office of the Development Commissioner with request for issue of final debo....
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....nput services used in the manufacture of export goods on which the drawback is being claimed, no separate claim for rebate of duty or service tax under Central Excuse Rules 2002 or under any other law has been made or will be made. However, in terms of proviso to Rule 12(1)(a), if Commissioner of Central Excise is satisfied that the exporter for the reasons beyond his control, failed to comply with the provisions of this clause, he may, after considering the representation made by the exporter and for the reasons recorded, grant exemption from the provisions of this clause. The request for exemption under proviso to Rule 12(1)(a) of the Drawback Rule was in respect of 21 Free Shipping, which if treated as Drawback shipping bills, would involve drawback of about Rs.39 Lakh. In respect of this letter 14.08.08 of the Appellant, the Commissioner passed an order-in-original on 23.10.12 by which he rejected the Appellants request for conversion of free shipping bill into Drawback shipping bills. Against this order of the Commissioner, this appeal has been filed. 2. Heard both the sides. 3. Sh. Rachit Jain and Ms. Disha Jain, learned counsels for the Appellant, pleaded that the App....
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.... against free shipping bill after waiving the requirement of filing declaration in terms of Proviso to Rule 12(1)(a), that this Circular is squarely applicable to the Appellants case, as the goods exported by them are covered by 'all industry rate' and it is only on account of the departments insistence that the Appellant were compelled to make the exports under free shipping bills instead of making exports under Drawback shipping bills, that the clarification given under Circular No. 4/2004-Cus. dt. 16.01.04 is reiterated in para 4 of the subsequent Circular No.36/2010 dt. 23.09.10 of the Board according to which while conversion of free shipping bill into advance authorization/DFIA/DERB shipping bill cannot be allowed, the commissioner may allow 'all industry rate' of duty Drawback on the goods exported under free shipping bill without conversion of such shipping bills into Drawback shipping bills in term of proviso of Rule 12(1)(a) of the Drawback Rules and that in view of these Circulars, the impugned order refusing the Appellants request for permitting Drawback at all industry rate on the basis of free shipping bills by waiving the requirement of declaration under Proviso o....
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....r reversal of duty in respect of capital goods on 27.06.08 and, therefore, it is clear that all the dues had been cleared by the Appellant not on 06.06.08 but on 27.06.08, that since during the period from 06.06.08 to 28.07.08 the Appellants status was of a 100% EOU, they were not entitled to make exports under Drawback claim, that the Appellant in their letter dt. 14.08.08 had only requested for conversation of free shipping bills filed for exports during 06.06.08 to 28.07.08 into Drawback shipping bills and as such, there was no request for granting exemption from filing declaration under Rule 12(1)(a) of the Drawback Rules, that the Appellants request for conversation of free shipping bill into Drawback shipping bills under section 149 of the Customs Act, 1962 has been correctly rejected as the Appellant did not satisfy the criteria prescribed in this regard, that Tribunal in case of Actavis Pharma Manufacturing Pvt. Ltd. Vs. CCE, reported in 2012(279) ELT-517 (Tri.-Chennai) has held that when the free shipping bill in respect of exports, filed by the exporters were not indicating present market value of the goods exported, their conversion from Free Shipping Bills into DEPB S....
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....ny safeguards, as while the amount of Rs. 3,71,90,337/- had been paid on 06.06.08 which according to the Appellant was full amount of duty payable by them on de-bonding, even if the Commissioners findings in para 33 of the impugned order that an amount of Rs. 3,73,620/- debited in Cenvat Credit account was also in connection with de-bonding is accepted, the entire amount of duty payable on de-bonding stood paid on 27.06.08. Therefore, even if some small amount of Cenvat Credit was reversed on 27.06.08, in view of the Development Commissioner letter dt 19.03.09 permitting debonding w.e.f. 06.06.08, the Appellant unit would have to be treated as debonded and converted into EPCG unit w.e.f. 06.06.08. 6. The dispute in this case is about exports made under 21 shipping bills during period from 06.06.08 to 28.07.08. According to the Department, since during this period 'No Dues Certificate' had not been issued, the provisions of para 6.18 of Exim Policy according to which during the period between the issue of 'No Dues Certificate' by the customs and issue of final debonding order by the Development Commissioner,the unit can claim advance license/DEPB/duty drawback benefit, was not a....
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....iled by them by waiving the requirement of filing declaration under proviso to Rule 12(1)(a) of the Drawback Rules, 1995 has not been considered. There is simply an observation by Commissioner in para 40 of the impugned order that he does not find it feasible to accede to their request for exemption from the provisions without giving any reason for this conclusion. The Commissioner in para 20, has cited the para 3.2 of the Board's Circular 4/2004-Cus. Dt.16.01.04 which is about conversion of free shipping bill into Advance Licence/DEPB/ DFRC/Drawback shipping bills, but he has not considered para 3.1 of that Circular which precisely deals with the issue of permitting Drawback on the basis of free shipping bill by granting waiver from filing of declaration under proviso of Rule 12(1)(a) of the Drawback Rules, 1995. Para 3.1 of the Circular is reproduced below:- Insofar as the facility permitting conversion of free shipping bill into Drawback shipping bills is concerned, the same is governed by Chapter 'X' of the Customs Act and Customs & Central Excise Duties Drawback Rules, 1995, Rule 12 of the Customs and Central Excise Duties Drawback Rules contain the details of statement/dec....
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....ssioner may allow All Industry Rate 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 the proviso to rule 12(1) (a) of the Customs, Central Excise and Service Tax Drawback Rules, 1995. 7.3 The Circular dt 23.09.10 also clarifies that the Commissioner may allow 'All Industry Rate' Drawback on the goods exported under free shipping bill without conversion of such shipping bills into the Drawback shipping bills by waiving the requirement of filing drawback declaration under Rule 12(1)(a) of Drawback Rules in terms of the proviso to this Rule. 8. Thus in this case what the Commissioner was required to do, was to consider the Appellants request for waiving the requirement of filing declaration under Proviso to Rule 12(1)(a) of the Drawback Rules and permit the drawback on the basis of free shipping bill. The drawback could be refused only if in the facts and circumstances of the case, waiver in terms of proviso to Rule 12(1)(a) was not warranted. As regards the prevailing market value of the goods, since the records of the case indicate that on the Departments request, the Appe....