TMI Blog2014 (1) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... istinguished by the adjudicating authority as to why the documentary evidence produced by the appellant are not acceptable. There are no allegations of diversion of imported goods. It is also not the claim of the Revenue that 100% goods being exported are of indigenous manufacture. Even if it is presumed that goods being exported represent a mixed lot of imported and indigenous Flanges then also for imported goods proportionate drawback under Sec 74 of the Customs Act 1962 would be admissible to the appellant. Burden of proof to establish the indigenous nature of goods and the extent being exported lies with the investigation and an exporter cannot be denied the export incentives on the basis of presumptions/doubts raised by some statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anges classifiable under CETH 73.07 for which RFL is also holding a Central Excise Registration falling under the jurisdiction of Supdt. Of Central Excise, Range Shaper (Veraval), Division II, Rajkot. RFL is also exporting the Flanges manufactured by him and at times, to meet the export requirements of the Customers, RFL imports certain categories of Flanges which are not manufactured in his registered unit but re-exported after undertaking certain processes. RFL is maintaining separate records of goods manufactured by him or procured from outside. Appellant RFL imported several consignments of Flanges from China for the purpose of re-export and after doing certain processes in his factory, not amounting to manufacture. Appellant also giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to manufacturer and thereafter the imported goods will be exported claiming drawback of 98% under Sec. 74 of the Customs Act 1962. He brought to the notice of the bench various such intimations given to the Assistant Commissioner of Customs, Kandla, appended in Memorandum of Appeal. One such intimation dtd 24.7.2006 with respect to B/E No. 154964 dtd 18.7.2006 was explained by the Advocate. It was emphasised by him that the subject consignments were exported after doing certain processes in appellant s factory and it was claimed that 98% duty drawback under Sec. 74 of the Customs Act 1964 will be availed. It was his case that the type of makings to be made on the flanges by the appellant was also specified for identification purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r examination report then Sec. 74 DBK cannot be denied. Further, the Advocate of the appellants argued that cross examination of the witness whose statements are relied upon was not allowed by the Commissioner. 4. Shri G P Thomas (AR) on the other hand argued that when the case was investigation with respect to two live shipping bills the identity of the goods being re-exported could not be established. He made the bench go through the statements of the employees of the appellants to that effect where it is confessed that it was very difficult to distinguish imported Flanges and Flanges indigenously manufactured. Ld AR made the bench go through the statements mentioned in Para 14, 15, 16, 17 and 18 of the OIO dtd 13.1.2009 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment it has been accepted that the identification of the imported goods is verified it is not proper to reopen the assessments made on the basis of shipping bills subsequently to hold that identity of the goods already exported is not established. Appellant has rightly contested that as per CESTAT s judgment in the case of M/s Mac Megha Agro Equipments (P) Ltd., vs. CC, Cochin (Supra) -2006(199)ELT 260 (Tri-Bang), if the assessment made by the proper Officer after due verification/examinations is not questioned that the same cannot be reopened. Para 4 of this judgment is reproduced below : 4. On a careful consideration, we notice that there is no dispute about the delay of Bill of Entry having been assessed finally and the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to shipping bill No 1477 dtd 16/10/2006 and 1013 at 7/11/2006 is concerned, it is observed that appellants have furnished detailed re-conciliation statements, tally sheets and the records maintained by them to the lower authorities. These records establish a continuous link from the time of filing the bills of entry to the processing activities done and their re-export. These details include supplier name, number of pieces, appellant heat number, test number, lot number etc. Tally sheet and chartered engineers certificate is also furnished to that effect. It is not distinguished by the adjudicating authority as to why the documentary evidence produced by the appellant are not acceptable. There are no allegations of diversion of im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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