TMI Blog2009 (12) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to file a drawback shipping bill owing to ignorance of its entitlement is not a reason beyond the control of the exporter - C/81 & 185/2009 - 738-739/2010 - Dated:- 23-12-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY : Shri C.R. Raghavendra, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - These are appeals filed by M/s. Cargill India Pvt. Ltd., Gurgaon. Facts and dispute involved are similar. We take up Appeal No. C/81/2009 for detailed examination. Appellants had filed 14 shipping bills for export of Soyabean Meal through Visakhapatnam port to Vietnam and Japan. These shipping bills had been filed du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants had not shown any satisfactory reason except stating that they could not file their drawback shipping bills at the time of export by oversight. The Commissioner relied on CBEC Circular No. 04/2004-Cus., dated 16-1-2004 which stated that no provision exists for permitting conversion of free shipping bills into drawback shipping bills. There was no need to allow conversion. Commissioner may examine and consider individual requests on merits and facts in terms of the provisions as per the Customs Central Excise Duties and Service Tax Drawback Rules, 1995. In the instant case, the goods exported under free shipping bills were not physically examined. As the department had not prevented the exporter from filing drawback shipping bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellants were under the bona fide belief that they were not entitled for drawback for export of Soya bean meal, the goods being an agricultural product. Therefore they could not file drawback shipping bills at the time of export. Their ignorance of their entitlement to drawback on export of Soya bean meal led to their non-filing of the declaration; it was a reason beyond the control of the exporter. The appellants pray for justice in view of the facts of the case. 3. The learned Counsel for the appellants relies on the following case-laws to support its request for conversion of free shipping bill to drawback shipping bill : (i) Gokuldas Images Pvt. Ltd. v. CC - 2008 (227) E.L.T. 238 (Tri.-Bang.) Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. CC - 2007 (216) E.L.T. 67 (Tri. - Chennai) In this decision the appeal filed by the party against rejection of request for conversion of free shipping bills into DEPB shipping bills was allowed observing that CBEC Circular No. 4/2004 did not mention any statutory bar for the conversion claimed by the exporter. It was held that the conversion of the shipping bill requested for was permissible in terms of the provisions of Section 149 of the Customs Act, 1962. (v) Metallic Bellows (I) Pvt. Ltd. v. CCE - [2008 (228) E.L.T. 479 (Tribunal.-Mum.)] In this case conversion of free shipping bills to advance licence shipping bills had been denied by the authorities relying on CBEC Circular No. 4/2004 dated 16-1-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned SDR cited the decision of a learned Single Member in the case of Freedom International v. CC, Amritsar - 2002 (145) E.L.T. 414 (Tri.-Del.). In the said case, the Tribunal upheld the rejection of request for conversion of DEEC shipping bill into DEEC -cum-Drawback shipping bill finding that the Commissioner could only exercise his power when the exporter could not claim drawback for 'reasons beyond control'. No such reason had been brought on record by the appellants. 5. We have carefully perused the case records and the rival submissions. We find that the appellants exported soya bean meal, an agricultural product under free shipping bill and on coming to know of its entitlement to 1% All Industry Rate drawback requested for c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
