TaxTMI 
TaxTMI 
2019 (6) TMI 1161
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.... order or direction thereby directing the respondent No. 2 herein to pay in the petitioner's favour Drawback aggregating to Rs. 20,69,357/- with interest under Section 75A of the Customs Act, 1962; (B) That Your Lordships may be pleased to issue a writ of Mandamus or a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside the decision contained in letter F. No. VIII/48-1688/EXP/AMD/MP&SEZ/2017-18, dated 17-5-2018 [Annexure "J"] and be further pleased to direct respondent No. 2 and 3 herein to forthwith allow amendment of concerned shipping bill by substituting Scheme Code 47 in place of Scheme Code 20 and pay Drawback aggregating to Rs. 20,69,357/- with interest to the petitioners for exports made under such shipping bills; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondent No. 2 herein to pay the petitioners Drawback aggregating to Rs. 20,69,357/- on terms and conditions that may be deemed fit by this Hon'ble Court. (D) That an ex parte ad interim relief in terms of para 25(C) above may kindly be granted." Thus, what is essentially under challenge is....
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....s in question, and accordingly, the Customs authorities were directed to determine specific brand rate of Drawback for the exports made by the petitioners. December, 2017 and January, 2018 : For 4 shipping bills, 4 separate decisions/orders are rendered by the concerned Authority thereby determining specific brand rate for the exports made by the petitioners, and also determining the amounts of Drawback at Rs. 6,75,803/- Rs. 4,94,206/-, Rs. 7,38,777/- and Rs. 1,60,571/- (i.e. total Drawback of Rs. 20,69,357/-). 12/13-1-2017 : The petitioners have submitted four letters before the Drawback Department of Mundra Customs requesting for payment of Drawback, and all documents like shipping bills, export invoices, brand rate fixation letters, etc., are also submitted with these letters. The Superintendent of Customs, during one of the personal visits to follow up the matter, informed the petitioners representative that Scheme Code No. 20 was shown in the shipping bills which was for 'Jobbing (JBG)' and Scheme Code No. 47 which was "Drawback and JBG" was not shown in the shipping bills, and therefore Drawback cannot be paid unless shipping bills were amended as regards the applicable....
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....bing) was not shown in the shipping bills but scheme code 20 [which was for jobbing] was mentioned is wholly unreasonable, illegal and unauthorized. Scheme Code is only a procedure laid down by the Board for convenience in processing Drawback claims, but there is no legal backing to such procedure because the Drawback Rules or the Customs Act nowhere lays down such procedure for claiming Drawback. Therefore, the export benefits for which this Hon'ble Court has held the petitioners to be eligible are required to be paid by the respondents; and since the respondents are still holding back such legitimate export benefits, the petitioners are constrained to approach this Hon'ble Court once again under Article 226 of the Constitution of India ". The respondents, unfortunately rejected the claim of petitioner on wholly untenable and illegal ground, which resulted into assailing the same in this petition under Article 226 of the Constitution of India. 5. Learned Counsel for the petitioners invited this Court's attention to the development of events and submitted that the respondents initially declined the claim of Drawback on the ground that duty was paid in DEPB Scrip, which wa....
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....e case of DEPB. 20. Thus, under these schemes, the Government of India having realised that exports in question require added incentive, provides for the same in form of credit at specified rate of FOB value of the export which credit can be utilised for payment of customs duty. To disqualify such payment for the purpose of duty drawback would indirectly amount to denying the benefit of the export incentive scheme itself. 21. Judgment of this Court in case of Gujarat Ambuja Exports Ltd. (supra), was rendered in different background. The question there was chargeability of education cess which was calculated at the rate of 2% on the aggregate of duty of customs levied and collected by the Centred Government. In this background, question arose where the imports are made under DEPB scheme, would education cess be applicable. Noticing that subject to adjustment in DEPB scrip, the imports are made exempt from payment of duty, it was held that there cannot be education cess on such imports. The issue in the present case is vastly different. 22. Like-wise, the decision of Learned Single Judge of Madras High Court relied upon by the counsel for the Revenue in case of ....
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....75 is referred to by mentioning the same and indicating that the Drawback is claimed for the goods being exported under the shipping bills. (ii) The claim of the petitioner was rejected by the department firstly only on the ground of import duty being paid not in terms of money but by way of DEPB scrip. It is required to be noted specifically at this stage that the claim of Drawback was not rejected on any other count that of incorrect mentioning of scheme code in the shipping bills. (iii) The ultimate decision rendered by this Court in the proceedings of Special Civil Application No. 8025 of 2015 also clearly indicated that the sole ground for rejection of claim namely payment of import duty in the DEPB scrip, cannot be a valid ground for denying the claim of Drawback. Even in those proceedings also, it was unfortunately not urged or argued by the respondent department that the Drawback claim is liable to be rejected also on account of incorrect mentioning of scheme code. The Court hasten to add here that had this opportunity being availed, perhaps there could have been larger scope for making submission in respect of requirement of mentioning of ....