TaxTMI 
TaxTMI 
2017 (5) TMI 130
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....uch as, Saudi Arabia, UAE, Kuwait, Jordan etc. It is the case of the petitioner that under the provisions of the Customs Act, 1962 (hereinafter referred to as "the Act"), an exporter who seeks clearance for export of goods has to file shipping bill in terms of the provisions of section 50 of the Act before the Customs Officer. The Customs Officer permits clearance and loading of goods for exportation after being satisfied that the goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon as per section 51 of the Act. It is the case of the petitioner that the said goods have been cleared and the export transaction has been completed, that is, the goods have also been received by the importer. It is further the case of the petitioner that the goods have been cleared by issuing Let Export Order under section 51 of the Act after the Proper Officer has assessed the goods under different chapter headings on which the goods have been classified and the classification made by the petitioner has been accepted by the Proper Officer and the goods have been cleared after an appropriate order under section 51 of the Act has been passed. Moreo....
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....f similar type of goods and similar queries, the department had accepted the classification of the petitioner and had released the drawback, however, with regard to other export transactions, the drawback claims have not been processed and are not released. Subsequently, the impugned deficiency memo has been issued stating that the department does not agree with the classification and self-assessment of the exported goods as made by the petitioner and that the items exported by the petitioner as detailed therein are nothing but part of main products of scaffolding, that is, temporary structure used to support people and material in construction and repair or building and other structure and more appropriately classifiable under Chapter 73084000, and calling upon the petitioner to show cause as to why the exported goods referred to therein should not be classified under CTH and sub-heading thereof and drawback be restricted accordingly, which has given rise to the present petition. 4. During the pendency of the present petition, the third respondent, Deputy Commissioner has unilaterally changed the classification and has released the drawback on 23.02.2016 calculating the drawbac....
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....181600, instead of correctly classifying under CTH 7308 4000, irrespective of the fact as to whether the export of the goods is completed or not. It is further averred that in cases where the Director of Revenue Intelligence completed investigation, show cause notice for misclassification of export goods and for taking consequential actions including that of redetermination of value of the goods, recovery of differential duty, recovery of excess duty drawback with interest and imposition of penalty was issued to the exporters. In cases of 29 similarly situated exporters, including the petitioner herein, to whom so far show cause notice is not issued by the DRI, deficiency memos have been issued by the respondents requiring them to explain as to why exported goods as referred to in the deficiency memos should not be classified under CTH 7308 and sub-heading thereof and drawback be restricted accordingly. It is further averred that the petitioner was expected to submit its response to the impugned deficiency memo within a period of 30 days from the date of receipt of the said memo; however, the petitioner failed to do so even after the expiry of the time allowed in the memo. Under th....
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....o one drawback claim bearing shipping bill No.6263162 dated 25.11.2014 and that immediately on receipt of such complaint, the said drawback was processed and the principal amount of drawback was released, which is indicative of the fact that it was absolutely illegally withheld without any reason and that the moment the petitioner complained, the drawback came to be released immediately. It was further submitted that in respect of the other export transactions as detailed in paragraph 2.17 of the memorandum of petition, wherein similar query was raised with regard to wrong classification of goods, after the complaint was lodged by the petitioner, the drawback came to be released by the Department, however, without interest, by accepting the classification of the goods made by the petitioner. It was submitted that therefore, in respect of similar type of goods in respect of which similar queries were made, the Department has accepted the classification made by the petitioner and has released the drawback, however, with regard to the other export transactions, the drawback claims have not been processed and are not released. 6.1. It was submitted that the impugned deficiency memo ....
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....eply filed on behalf of the respondents and contended that the petitioner has submitted a wrong classification of the goods in question and hence, since the Department does not agree with the classification and selfassessment of the exported goods made by the petitioner, the impugned deficiency memo has been issued. It was submitted that since the goods have been exported under selfassessment, the respondent authorities have not examined the classification claims made by the petitioner and in a large number of cases, it has been found that similar goods have been exported under wrong classification and it is pursuant to investigation carried out by the DRI, that the impugned deficiency memo has been issued calling upon the petitioner to explain with regard to the classification of the goods exported by it. It was further submitted that insofar as the limitation of 10 days for issuance of deficiency memo as contained in sub-rule (3) of rule 13 of the rules is concerned, the same is merely directory and not mandatory. It was submitted that the deficiency memo has been correctly issued to the petitioner to clarify its classification of exported goods and that the petition being devoid....
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....plain reading of the above provision, it is clear that a deficiency memo can be issued only to point out the deficiencies in the prescribed form and it cannot be in the nature of a show cause notice to the claimant calling upon him to explain anything. This is clear from the very nature of the provision which provides for return of the claim for drawback together with deficiency memo. Therefore, once the claim for drawback is returned with the deficiency memo, it can only be considered after it is submitted after removal of the deficiency. The deficiency memo is, therefore, not in the nature of a show cause notice, but is in the nature of an information to the party stating the deficiency in the claim for drawback and calling upon it to remove such deficiency and thereafter, submit the claim. 12. In the facts of the present case, on a reading of the contents of the deficiency memo, it is evident that the same does not relate to either of the two eventualities mentioned in sub-rule (3) of rule 13 of the rules, viz., that the claim is incomplete in any material particulars or any of the documents specified in sub-rule (2) of rule 13 are not furnished. The deficiency memo has been ....