TaxTMI 
TaxTMI 
2019 (11) TMI 1505
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....-Original No. RLM/ACE/66/2015, dated 13-5-2015 passed by the Joint Commissioner of Customs, Air Cargo Export, Delhi has been set aside to the extent of confirmation of demand of Rs. 1,92,97,378/- in respect of 108 Shipping Bills and denial of drawback amount of Rs. 20,86,067/- in respect of six Shipping Bills for which drawback amount was not yet disbursed. However, in respect of Shipping Bills which were filed after 12-12-2012 and for which samples had been drawn the case was remanded back to the original adjudicating authority with the direction to pass a fresh order after the receipt of the test report. 2. The brief facts of the case are that respondent had filed 114 Shipping Bills under claim for drawback prior to 12-12-2012 for....
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....ned goods under Chapter 67 so as to claim benefit under the erstwhile DEPB scheme wherein the description of the goods remained the same. Show cause Notice was issued in respect of 114 Shipping Bills and also in respect of 16 Shipping Bills for which samples were drawn for testing alleging that the export goods were rightly classifiable under Chapter 67 and not under Chapter 5 where the rate of drawback is Nil instead of 1%. The case was decided vide their Order-in-Original No. RLM/ACE/66/2015, dated 11-5-2015 holding that the goods are rightly classifiable under RITC 67030010. Accordingly adjudicating authority confirmed the demand of erroneous duty drawback amounting to Rs. 1,92,97,378/- which had already been disbursed and paid to the re....
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....s) has wrongly dropped the demand of erroneous drawback and penalty in respect of impugned 114 Shipping Bills filed prior to December, 2012 by not taking cognizance of Statement dated 14-12-2012 of the Director of the respondent. The test report of CFSL confirmed that the impugned goods (hair) were 'worked'. The respondent had themselves mentioned classification under RITC 67030010 in respect of the past shipments when the impugned goods were exported under DEPB scheme and later on they changed the classification to RITC 0501 after the closure of DEPB scheme with effect from 3-9-2011. It is observed that there was no Drawback incentive on the goods classifiable under CTH 6703 at the material time. Further the applicant has submitted that....
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....s remained the same during the entire period i.e. prior to September, 2011, between September, 2011 to December, 2012 (12-12-2012) and after 12-12-2012. However, the respondent has been changing the classification of goods from time to time so as to avail benefit of export incentives scheme available to them from time to time. This fact has been admitted by the respondent in their letter dated 13-2-2013 addressed to Dy. Commissioner, Export Commissionerate, Air Cargo, New Customs House, New Delhi-110037. The explanatory notes to Harmonised commodity description and coding system w.r.t. sub-heading 0503 under Chapter 5 and sub-heading 6703 under Chapter 67 are reproduced as follows :- Chapter 0501 "This headings cover human ha....
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....ory also confirm that the human hair are worked and hence rightly classifiable under RITC 6703. Thus the contention of the Commissioner (Appeals) that classification of the impugned export goods prior to 2012 cannot be challenged as there were no samples drawn from the respective consignments is not tenable. It is observed that the respondent has been exporting the identical goods since 2011 bearing the same description. At no stage have they brought forth any evidence to establish that there has been any change in the description warranting change in classification of the impugned goods. In the light of this, Government is of the view that the human hair exported in respect of 114 Shipping Bills prior to 12-12-2012 are rightly classifiable....
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....an appeal in CESTAT against the impugned Order-in-Appeal. If the period consumed in pursuing the appeal before CESTAT is excluded, it is observed that the applicant had taken 168 days in filing the Revision Application i.e. 90 days for filing the appeal with CESTAT usually which should have been Revisionary Authority in ordinary course and subsequently 78 days in filing before Revisionary authority after dismissal of appeal by tribunal. Therefore, the Government is of the view that this delay is only on account of filing the appeal before the wrong forum and seems to be bona fide mistake and is condonable and hence allowed in terms of Section 129DD(2) of Customs Act, 1962. 8. As far as the power of Commissioner (Appeals) to remand t....