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2017 (5) TMI 130 - HC - CustomsDuty Drawback - validity of deficiency memo - classification of goods exported - 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 - Held that: - it may be germane to refer to rule 13 of the rules, which bears the heading “Manner and time for claiming drawback on goods exported other than by post”. A deficiency memo is required to be issued in case of two eventualities. Firstly, where the claim for drawback is incomplete in any material particulars, and secondly where the drawback claim is not accompanied by the documents specified in sub-rule (2) of rule 13 of the rules. The rule further provides that in case where the above two eventualities are not satisfied, the claim for drawback has to be returned to the claimant together with the deficiency memo and such claim shall be deemed to not having been filed for the purpose of section 75A of the Act, viz., for the purpose of payment of interest. 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. 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 - The deficiency memo has been issued on the ground that the Department does not agree to the classification and selfassessment of the exported goods made by the petitioner - From the very nature of the deficiency memo, it is evident that the question of raising a dispute with regard to classification and self-assessment would not arise, inasmuch as, a deficiency memo can only be issued pointing out the deficiencies specified in sub-rule (3) of rule 13 of the rules. Evidently therefore, the deficiency memo travels much beyond the scope of sub-rule (3) of rule 13 of the rules. If the claim for drawback is deficient, it is required to be returned together with the deficiency memo calling upon the party to remove such deficiency. The approach adopted by the respondents in the present case, therefore, is clearly not in consonance with the provisions of rule 13 of the rules. The impugned deficiency memo being contrary to the provisions of sub-rule (3) of rule 13 of the rules, cannot be sustained. Petition allowed - decided in favor of petitioner.
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