TMI Blog2009 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... he shipping bill is allowed under Section 149 of the Act on the strength of the available documents, the claim for drawback cannot be examined under Section 74 of the Act on account of the mischief of Section 76. - In a case where the market price of the goods as on the date of export is not capable of being ascertained, it is not possible for the competent authority to take up the claim for drawback inasmuch as no drawback can be allowed in respect of any goods the market price of which is less than the drawback which is due thereon. - I hold that any conversion of free shipping bill to drawback shipping bill in this case will be repugnant to the provisions of Section 76(1) of the Customs Act and consequently the benefit of drawback under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the free shipping bill to a drawback shipping bill. This request was rejected by the Dy. Commissioner on the ground that the applicant had not satisfied the mandatory requirement of establishing the identity of the goods in terms of Section 74 of the Customs Act to the satisfaction of the Asst./Dy. Commissioner of Customs. Against this decision of the original authority, the parry preferred an appeal to the Commissioner (Appeals) and the latter allowed the appeal by directing conversion of the free shipping bill to drawback shipping bill. The present appeal of the department is against the appellate Commissioner's order. 3. Reiterating the grounds of this appeal, the ld. DR submits that, as the goods had been exported without establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel submits that the respondent satisfied the requirements for amendment of the shipping bill. The bill of entry which disclosed the intention of the importer to return the goods to Kodak (Australia) the shipping bill which evidenced the actual return of the goods to Kodak (Australia) and also contained the examination report establishing identity of the goods and the letter dated 21-5-03 of the respondent addressed to the Dy. Commissioner of Customs (Appg) seeking permission to file drawback shipping for re-export of the goods constituted documentary evidence in support of the request for amendment of the free shipping bill under Section 149. This evidence existed on the date of export of the goods and therefore the above request ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he valuation angle. Long after the consignment left the country, the exporter came up with an application for conversion of free shipping bill to drawback shipping bill. The sequence of subsequent events has culminated in this appeal. 6. The ld. DR has stressed the point that determination of the market value of the goods as on the date of export is decisive for any drawback claim under Section 74 of the Customs Act. This argument is based on Section 76 of the Act. Sub-section (1) of Section 76 reads ay under:- "SECTION 76. Prohibition and regulation of drawback in certain cases. - (1) Notwithstanding anything hereinbefore contained, no drawback shall be allowed - (a) * * * * * (b) in respect of any goods the market-price of which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Section 76. 8. The ld. counsel raised a preliminary objection after the ld. DR invoked Section 76. It was submitted that Section 76 of the Act was not relied on anywhere in the present appeal. The ld. DR was raising a purely legal plea which cannot be brushed aside on the ground that it was not raised in the appeal. 9. Both sides have referred to para 3.1 of the Board's circular 4/2004 dated 16-1-04. This circular examined the provisions of Rule 12(1)(a) of the Customs and Central Excise Duty Drawback Rules, 1995 and clarified that there was no need for allowing conversion of free shipping bill to drawback shipping bill and that the Commissioner could consider individual request on merits in terms of the said provisions. As rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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