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TMI Blog2012 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... upplier, namely, M/s. China Jiangsu International Economic Technical Corporation, Nanjing, China, vide invoice No. CSU 20211113, dated 29-11-2000. The said goods had been cleared on demand of the appropriate customs duty, duly assessed by the customs authorities concerned. Thereafter, the petitioner firm had imported another consignment containing 12,000 kilograms of the product, from M/s. National Service Corporation, China. The said goods had also been cleared on demand of the necessary customs duty, in terms of the various ex-bond bills of entry. After the clearance of the goods, they had been taken to the registered factory of the petitioner's firm, for the manufacture of tablets. The petitioner firm had availed the benefit of the input duty credit in terms of the Cenvat credit Rules in force at the relevant point of time. 4. It has been further stated that the customs authorities concerned had also asked the petitioner firm to pay Anti-Dumping Duty leviable on the goods cleared by them, as the goods had been imported from China. The petitioner firm had also paid the Anti-Dumping Duty, as claimed by the authorities concerned. 5. It has been further stated that, on d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions, along with the necessary documentary evidence to support his claims, for the drawback, which the petitioner firm is entitled to, in terms of Section 74 of the Customs Act, 1962. A fresh hearing had also been given to the petitioner firm. However, the second respondent, vide his Order-in-Original No. 5999 of 2007, dated 13-3-2007, rejected the drawback claims made by the petitioner firm, purely on procedural grounds, stating that the shipping bills for the drawback had been made wrongly, under Section 75 and not under Section 74 of the Customs Act, 1962, which is the correct provision of law. 8. Aggrieved by the order passed by the second respondent, the petitioner firm had preferred a statutory appeal under Section 128(1) of the Customs Act, 1962, before the Commissioner of Customs (Appeals), Chennai. The appellate authority, vide its Order-in-Appeal C. Cus. 577 of 2009, dated 29-6-2007, rejected a part of the claim made by the petitioner firm, pertaining to 5,000 kilograms of Metronidazole stating that the batch numbers of the imported drugs did not find place in the corresponding shipping bills, under which they were claimed to have been exported, overlooking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the application had been returned. Consequently, the exporter had requested, vide letter, dated 4-12-2001, for the sanctioning of drawback, under Section 74 of the Customs Act, 1962. 12. It had been further stated that the petitioner had imported 17,000 kilograms of Metronidazole from China, in two consigrmients. Both the consignments were cleared. Subsequent to the clearance of the goods, the petitioner had been asked to pay Anti-Dumping Duty, as it had not been collected at the time of the clearance of the goods. Accordingly, the petitioner had paid Anti-Dumping Duty of Rs. 27,02,601/-, for 13,000 kilograms of Metronidazole. 13. It had been further stated that the petitioner had exported 13,000 kilograms of Metronidazole, vide two shipping bills, under brand rate of drawback, declaring that the goods were imported goods. The claims for drawback had been rejected by the Central Excise Authorities stating that the materials exported did not undergo any manufacturing process and therefore, they were not eligible for Brand Rate of drawback. Therefore, the petitioner had requested the customs authorities, vide letters, dated 3-12-2001, and 17-12-2001, for drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011-Cus., dated 6-4-2011, had passed a common order stating that the petitioner had failed to comply with the statutory conditions and the procedures laid down, in Section 74 of the Customs Act, 1962, read with the Re-Export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Therefore, the drawback claim is not admissible, under Section 74 of the Customs Act, 1962. Aggrieved by the said order the petitioner had preferred the present writ petition, before this Court, under Article 226 of the Constitution of India. 17. It had been further stated that the contention raised on behalf of the petitioner that no proper notice had been given, by the Revision Authority, regarding the revision application filed by the fourth respondent, is of no relevance. 18. It had been further stated that, as per the provisions of Rule 4 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995, the exporter shall state, at the time of the export of goods, the description, quantity and other such particulars, as are necessary for deciding as to whether the goods in question are entitled to drawback under Section 74 of the Customs Act, 1962. Such particulars are to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O.I.) (iii) In Re : Deesan Agro Tech Ltd. - 2011 (273) E.L.T. 457 (G.O.I.) (iv) Commissioner of Customs, Mumbai v. Terai Overseas Ltd. - 2003 (156) E.L.T. 841(Cal.) (v) Modi Revlon Ltd. v. Commissioner of Customs (Import) Mumbai - 2007 (209) E.L.T. 252 (Tri.-Mumbai). (vi) In Re : Torrent Pharmaceutials - 2001 (138) E.L.T. 949 (G.O.I.) (vi) Rochiram and Sons v. Union of India - 2008 (226) E.L.T. 20 (S.C.). 24. In view of the submissions made by the learned counsels appearing for the petitioner as well as the respondents, and on a perusal of the records available, and on considering the decisions cited supra, this Court finds that the impugned order, dated 6-4-2011, passed by the respondent, with regard to the drawback claim, relating to 5000 kilograms Metronidazole, cannot be said to be invalid in the eye of law. From the records available, it is seen that the imported goods had been re-exported without undergoing the usual process of verification, as the shipping bills had been filed by the petitioner, under the drawback scheme, in terms of Section 75 of the Customs Act, 1962, and classified drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27. Further, it is not in dispute that, at the time of re-export the goods in question, the shipping bills had to be filed, under Section 74 of the Customs Act, 1962, for drawback claim, so that all the necessary conditions and eligibility of the export, on drawback, would be verified by the customs authorities. The necessary process for verification of the eligibility criteria could not be carried out by the customs authorities concerned, due to the fact that the petitioner did not file the shipping bills, under Section 74 of the Act. Since, the shipping bills had not been filed, under Section 74 of the Act, the customs authorities concerned did not take necessary samples to test the goods. It is also seen, from the shipping bills, invoices, packing list and the examination report, that the fact of export of imported goods had not been declared by the petitioner and the shipping bills had not been filed, under Section 74 of the Customs Act, 1962. In such circumstances, this Court is of the considered view that the petitioner is not entitled to the reliefs prayed for in the present writ petition. Hence, the writ petition stands dismissed. No costs. Connected M.P. No. 1 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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