TaxTMI 
TaxTMI 
2015 (6) TMI 1140
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....curing the raw materials, both duty paid as well as non-duty paid. Earlier, the exporters applied for Brand Rate on their exported vehicles, which was denied vide Ministry's letter dated 31.7.2001, as the respondents were unable to produce evidence all duty paid documents for the inputs used in the fabrication of bus bodies. Thereafter, in the year, 2005, the respondent again applied to the Ministry for procedure of granting brand rate. Vide letter dated 1.6.2005, it was advised that powers to grant brand rate have been delegated to the Commissioner. The respondent filed application on 16.11.2005 before the Customs Commissionerate for issue of brand rate. As the same was delayed and certain number of buses were ready for export and further in view of the fact that letter of credit were going to expire, in such circumstances, the respondent exported the fabricated buses by 10 shipping bills from 22.3.2006 to 3.10.2006. As the brand rate was not issued, the respondent had not mentioned the shipping bills number in the shipping bills column for duty drawback. The first brand rate - letter of approval was received by the respondent. being approval dazed 11.10.2006, 67% as drawback ....
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....ation at the end of the Commissioner of Customs (EP), Mumbai for fresh adjudication in the light of the letter sanctioning their drawback claim by the Jurisdictional Commissioner of Tiruchirapalli. 2.3 In the remand proceedings, the learned Commissioner vide the impugned order have recorded the finding that the respondent had filed application for fixation of brand rate on 16.11.2005 with the Commissioner of Central Excise, Technical Section (Drawback), Trichy well before the consignments related to this claim were exported from March, 2006 to October, 2006. As the claim was still under scrutiny and sanction order had not came, the respondent had exported their goods under Free Shipping Bills as the letter of credit was going to expire and they could not hold the consignment. On the first sanction letter received on 11.10.2006, the respondent had approached to the Ministry for sanction and as advised for approaching the Commissioner for conversion of shipping bills from the free shipping bills to drawback shipping bills. It is further noticed that the brand rate has been fixed by the Central Excise Commissionerate, Trichy after the exports were effected although the application ....
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....12(1)(a) wherein the proviso reads as follows:- "Provided that if the Commissioner of Customs is satisfied that the exporter or his authorized 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 authorized agent, and for reasons to be recorded, exempt such exporter or his authorized agent from the provisions of this clause." 2.6 Further, the learned Commissioner also took notice of the provisions of Section 149 of the Act, which provides that ordinarily no amendment is permissible after the goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. The proper officer may allow the conversion and/or amendment of the document. Accordingly, appreciating that there is no mis-chief on part of the respondent, as they have take steps for claiming brand rate drawback much before the export took place and appreciating the circumstances, the goods were exported under free shipping bills, it was found that the respondent/exporter are entitled to claim....
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....llowed only if it was based on the documentary evidence in existence at the time the goods were exported. In that case, the request had also been made after more than a year and it was held that with the lapse of time, the proper officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported and in the said circumstances, the rejection of the claim by the Commissioner was right. 4. The responder assessee have filed Cross-Objection against the appeal of the Revenue, Where in the facts and circumstances in which they were compelled to file the free-shipping bills in spite of the fact that they intended to claim the drawback, but as the application was pending with the Trichy Commissionerate and the export could not be further withheld, they had to export by way of free shipping bills and immediately on getting the Brand Rate approval, they took effective steps for claiming the drawback including conversion of the free shipping bills. It is further urged that save and except the technical objection of the Revenue vide Circular No.4/2004, no other grounds have been raised. In the written st....