TMI Blog2009 (12) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification of goods, needs no interference by High Court. Interest on drawback - Held that- when claimant is liable to pay the excess amount of drawback he is liable to pay interest as well. No notice need to be issued separately as the payment of interest become automatic, once it is held the excess drawback has to be repaid. - 5871 of 2006 - - - Dated:- 3-12-2009 - R. Sudhakar, J. Shri Suresh Kumar, Counsel, for the Petitioner. Shri Peter Gunasekaran, CGSC, for the Respondent. [Order]. - The Writ Petition is filed praying to issue a writ of Certiorarified Mandamus, calling for the records of the first respondent culminating in the order No. 333-334/2005 dated 21-11-2005 and quashing the same and direct the third respondent to grant drawback to the petitioner-company as claimed. 2. Writ Petitioner-company is engaged in manufacture and export of Knitted Garments. According to the statement in the affidavit filed in support of the writ petition, petitioner-company exported Poly Acrylic/Wool/Lycra Blended Knitted Garments under the cover of Shipping Bill No. 2499666 dated 31-8-2002. After completion of the exports, petitioner-company claimed drawback on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the Commissioner of Customs (Appeals). The second respondent upheld the finding of the third respondent on merits rejecting the petitioner's plea. The reasoning of the Commissioner of Customs (Appeals), the second respondent, based on the factual details of the drawback claim, will be useful for deciding the present issue and the relevant portion is set out hereunder :- "I have carefully gone through the records of the case and the submissions of the appellants. The short question before me to decide is whether the goods exported by the appellants are classifiable under heading 61.09/61.01 or 60.07 of the drawback schedule. The admitted fact of the case is that the appellants had exported garments described as 77% poly acrylic 19% wool 4% lycra Knitted T-shirts with hood and 77% poly acrylic 19% wool 4% lycra knitted sweat shirts vide the Shipping Bill No. 2499666/31-8-2004 and claimed duty drawback under heading 61.01/61.09 which was sanctioned to them as they claimed. It is clear from the description provided by the exporter themselves that these are knitted garments made up of blended yarns having 77% poly acrylic 19% wool and 4% lycra. In other words, the said exported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest. Both the revisions were taken up together and disposed off by the first respondent by a detailed common order dismissing the appeal filed by the writ petitioner exporter and allowing the appeal filed by the revenue insofar as interest is concerned. Aggrieved thereby, the present writ petition has been filed by the exporter. 6. Shri Suresh Kumar, learned counsel appearing for the writ petitioner-exporter submitted his arguments as follows :- (i) In the Drawback Shipping Bill, it has been clearly stated that the goods are Knitted Sweat Shirts and knitted T-shirts with Hood. As per Drawback Schedule 2002-2003 knitted T-Shirts/Blouses/T-Shirts/Tops fall under Serial No. 61.01 and the Drawback eligible will be 12% of the F.O.B. value. In view of the description contained in the Shipping Bill, the specific entry 61.01 alone will apply to the goods exported under Drawback Shipping Bill. He stated that Serial No. 60.07 relates to all types of blended knitwears containing wool/ Acrylic/Nylon/Polyester Fibres/Viscos Fibres/Linen/Cotton. Therefore, it is a generic entry. In the description as per the Drawback Shipping Bill, it is specifically mentioned as "knitted sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, on a claim for excess payment of Drawback, the interest payable is automatic as per the provision of the Act and no separate demand need be issued. 8. On the question of classification of goods, two relevant aspects that have to be considered are the Drawback Shipping Bill and the invoice that had been furnished by the writ petitioner-exporter to cover the export goods. This will throw light on the nature of the classification which is in dispute. In the Drawback Shipping Bill, it has been clearly stated that the goods are knitted Sweat Shirts containing 77% Poly Acrylic, 19% Wool and 4% Lycra. Insofar as knitted T-shirt with Hood is concerned, it contains 77% Acrylic, 19% wool and 4% Lycra. This is the same description in the invoice. The Commissioner of Customs (Appeals) has noticed that the writ petitioner-exporter has described the goods as knitted Garments made up of blended yarns in the proportion mentioned above. Therefore, the goods are blended knitwear and falls within the specific description under Serial No. 60.07. 9. In the present case, the writ petitioner-exporter has clearly stated in the Drawback Shipping Bill as well as the invoice, the description of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex court in Sun Export Corporation case (cited supra) stating that if two views are possible in classification of goods, the one in favour of assessee should be taken, will not be applicable to the facts of the present case, as there is no ambiguity or another view in the classification of the goods which are subject matter of the Drawback claim. All the Authorities have concurrently held that the goods fall under Serial No. 60.07 of the Drawback Schedule 2002-2003. There is no ambiguity in the classification as held by the Department. In such view of the matter the two decisions relied upon by the petitioner will not be applicable to the facts of the present case. Hence the plea on classification of goods as upheld by the respondent Authorities stands confirmed and the writ petitioner's plea stands rejected. 13. insofar as the interest is concerned Section 75A(2) of the Customs Act, 1962 reads as follows :- "(2) Where any drawback has been paid to the claimant erroneously or it becomes otherwise recoverable under this Act or the rules made thereunder, the claimant shall, within a period of two months from the date of demand, pay in addition to the said amount of drawback, int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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