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TMI Blog2010 (2) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional Assistant Commissioner of Customs (Drawback). 2. Brief facts of the case are that the applicant M/s. Semi-Conductor Complex Ltd., Punjab filed a drawback claim for Rs. 1,28,336/- under Section 74 of the Customs Act, 1962 vide token No. 240/Sec-74/3 dated 7-10-03. This claim was in relation to Shipping Bill No. 002805 dated 25-7-03 under which power supply CICI200 and Ignition Box for LH1000/CICI200 were exported. These exported items were earlier imported by the applicant vide Bill of Entry No. 493773 dated 27-5-03. On not being found in proper working condition, these were exported. The goods at the time of export could not be identified viz-a-viz the goods imported vide the above Bill of Entry, therefore, applicant's claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endorsed to the Assistant Commissioner of Customs for his signature. However, it came to our notice that the concerned Assistant Commissioner was present at the time of examination of the goods. Applicant should not be deprived of his substantive right for the procedural lapse that too on the part of department. When the department is establishing the identity' of the goods as per records, they should have with all fairness, discharged their duty in the public interest. 3.3 There is no mention In the Section 74 that the signature of Assistant Commissioner of Customs (Export) is mandatorily required to be appended on the Shipping Bill at the time of examination. 3.4 Commissioner (Appeals) was also not justified in observing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report recorded by the proper officer of the Customs at the time of export was required to be furnished alongwith other documents. Applicant has filed all the relevant documents. There is no mention in the above said Rule 5 that for claiming, drawback examination report should be countersigned by the concerned Assistant Commissioner of Customs (Export). However, it was the duty of the concerned Superintendent (Shed) to forward the Shipping Bill to the concerned Assistant Commissioner. For not doing so impliedly, department has satisfied themselves about the identity of the export goods vis-a-vis import goods. There is no dispute at all that the goods exported were not the same, which were imported earlier. Department has not raised any obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Collector of Customs v. Madura Coats reported in 1993 (68) E.L.T. 270 (GOI) (x) Lakshmi Mills Company Limited reported in 1994 (74) E.L.T. 185 (Coll. Appeal). (xi) India Crafts reported in 1996 (84) E.L.T. 387 (Commissioner Appeals) (xii) V.S.T. Industries Ltd. reported in 1992 (57) E.L.T. 525 (G.O.I.) (xiii) Modi Revlon Ltd. v. Commissioner of Customs (Import), Mumbai reported in 2007 (209) E.L.T. 252 (Tribunal - Mumbai) Finally, the applicant prayed for setting aside the impugned order-in- appeal with consequential reliefs. 4. Personal hearings in the case matter were fixed on 7-8-09, 23-9-09, 30-10-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned goods should have resulted. In such a situation, Government after keeping in view the cited judgments as in para 3(i) to 3(xii) above, is in conformity with the views of Hon'ble Supreme Court in case such cases the Crux of which is that the substantial rights of the Exporter should not be denied - summarily and the departmental officers should act as facilitators and not to create hindrances in completion of requisite compliance of law. 8. In view of above Government is of considered opinion that the applicant has a strong case. The identify of re-exported goods stands established with the goods imported vide relevant Bill of Entry as per examination report of Superintendent (Shed). The applicant cannot be penalized for failure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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