TMI Blog2011 (6) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that:- denial of the benefit is not legal because there is no time limit prescribed in Rule 12(1)(a) to set right such wrong. Therefore, we hold that the impugned order is not maintainable and it is therefore set aside. conversion of shipping bills to DEPB-cum-drawback shipping bills should be allowed the appellant granted drawback as is eligible to it - C/784/2008 - C/288/2011(PB), - Dated:- 24-6-2011 - Ms. Archana Wadhwa, Shri Mathew John, JJ. Shri Ramesh Nair, Advocate, for the Appellant. Shri Sonal Bajaj, SDR, for the Respondent. [Order per : Mathew John, Member (T)]. - The appellant is a manufacturer of 100% cotton grey fabric and exporting it under DEPB scheme. During the period April, 1999 to May, 2000, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted at 2005 (181) E.L.T. 205 (S.C.) along with appeal filed by the department in respect of another assessee. This decision of the Apex Court was pronounced on 22-2-2005. Then the appellant had filed an application for fixation of brand rate. This application was rejected as time-barred, vide orders-in-original dated 28-10-2005, 30-12-2005, 27-2-2005, 29-12-2005. Against these orders the appellant filed appeals before the Commissioner who passed orders dated 28-2-2007, 29-1-2007, 14-3-2006 and 27-2-2006. The Commissioner (Appeals) did not agree with the finding of the lower authority that the application is time-barred and directed the lower authority to decide the matter on merits. 4. The appellant also moved the Commissioner of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The main contention of the appellant is that they had approached the custom authorities for filing of DEPB-cum-Drawback Rules in the very beginning itself and they were prevented by the Customs authorities on the ground that the classification of the goods should be under Chapter 59 and they should be taking benefit of Cenvat Scheme and should not be filing drawback shipping bills. The department ignored the fact that classification was being disputed by the appellant before higher authorities. According to the appellant there is no delay in filing of DEPB-cum-drawback shipping bills and they cannot be denied the benefit of drawback because they have been claiming it at the time of export and the eligibility for such drawback stands s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. There is no scope for any doubt as to what was being manufactured in the factory of the appellant and what was exported. Further, the Appellant has applied for fixation of brand rate for the exported goods which is basically to be done with reference to the records available with the appellants. The Revenue has not been able to clearly specify how the examination of the goods at the time of export could have been relevant in this case for deciding brand rate that is applied for. 10. Rule 12(1)(a) of Customs and Central Excise Duties and Service Tax Drawback Rules, 1995 reads as under : 12. Statement/Declaration to be made on exports other than by post. - (1) In the case of exports other than by post, the exporters shall at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance Licence /DEPB/DFRC shipping bills is concerned, it is true over a period of time, with liberalization having been ushered in the Customs administration, clearance of goods is being permitted mostly on the basis of self-declaration made by the exporters on the shipping bills. Such self-assessment scheme necessarily casts the responsibility on the exporter to make up his mind at the time of filing shipping bills as to which export promotion incentive he likes to avail. With the introduction of the system of on-line assessment, such request for conversion at a later date creates difficulties and it is not advisable to encourage such conversion. It is, therefore, clarified that conversion of free shipping bills into Advance Licence/DEP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is prescribed. This condition is not of much meaning when the Revenue continues to stall the issue on the pretext that the matter is still pending before some judicial forum. 13. In the facts and circumstances of the case, we find that the impugned order denies a right which accrued to the appellant at the time of export and for which the appellant has been continuously making claims placing all relevant facts before the department. Therefore, denial of the benefit is not legal because there is no time limit prescribed in Rule 12(1)(a) to set right such wrong. Therefore, we hold that the impugned order is not maintainable and it is therefore set aside. We direct that the conversion of shipping bills to DEPB-cum-drawback shipping bills s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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