TMI Blog2010 (8) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... r loading takes place – commissioner directed to allow conversion of free shipping bills into drawback shipping bill - C/381 & 495/2008 - A/1055-1056/2010-WZB/AHD - Dated:- 3-8-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Vishal Agarwal , C.A. , for the Appellant. Shri R. Nagar, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - A short issue is involved in the present appeal. In the impugned order, Commissioner has rejected the request of the appellants for conversion of free shipping bills into drawback shipping bills. Vide Order No. A/2599/WZB/AHD/2008 dated 26-11-08 and vide Order No. A/1204/WZB/AHD/09, M/741/WZB/AHD/09 dated 16-6-09, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Sl. No. 271002 but this was not allowed on the ground that the said entry is applicable only to supplies made by the DTA units to units under SEZ, thinking that no drawback is available, they filed free shipping bills but on approaching the directorate of drawback they were advised to go for brand rate procedure. He also submitted that the item exported was furnace oil which is a bulk cargo and therefore the weighment is done in the presence of customs officers only and therefore there cannot be any issue with regard to the quantum of export. He submitted that the Commissioner 's observation that the above reasons given by them for filing duty free shipping bill can by no stretch of imagination be considered as genuine is totally uncal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 12 and allow drawback. As submitted by the learned C.A. for the appellants, the distinction made by the Board between all industry rate shipping bills and brand rate shipping bills is not supported by the provisions of Rule 12. Commissioner is empowered to condone non-observance of procedure under Rule 12 irrespective of the claim for drawback on the basis of brand rate or all industry rates. The artificial distinction has been made only by the Board in the circular and is not supported by the law. No doubt in the case of Gokuldas Images Pvt. Ltd. v. CC, Bangalore reported in 2008 (227) E.L.T. 238 (Tri. - Bang.) and Hero Cycles Ltd. v. CC, Shillong reported in 2004 (171) E.L.T. 342 (Tri. - Del.), the brand rate shipping bills were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r particulars as are necessary for deciding whether the goods are entitled to drawback, and if so, at what rate or rates and make a declaration on the relevant shipping bill that a claim for drawback is being made and in respect of duties paid on containers packing materials service tax etc. no separate claim for rebate of duty has been made. The Commissioner is empowered to allow drawback or shipping bills which may not contain any of these details. This is nothing but an amendment of the shipping bill filed or conversion. Therefore the observation of the Commissioner that he has no powers to convert a free shipping bill into drawback shipping bill does not stand supported by the rule at all. The circular issued by the Board goes beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, Commissioner could have considered the request under this section. Since furnace oil according to the appellants has been exported as bulk cargo, the quantity, description and other details would have been verified since let export order is given in the case of ships by the customs officers after loading takes place. 9. Under these circumstances we find no reason to differ with the decision of the Tribunal in the case of Hero Cycles Ltd. and accordingly we direct the Commissioner to allow conversion of the shipping bills into drawback shipping bills. We make it clear that we have allowed only conversion and the eligibility of the appellants to drawback, the amount of drawback etc. would be decided in accordance with law by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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