TMI Blog2014 (5) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... y control results can be relied upon if the said manufacturers/exporters are awarded with ISO 9000 series certificate. In our view, non-production of appellant's in-house certificate, may not have any bearing on the outcome of the case in as much as there is no contest to the certificate issued by M/s Geochem laboratory who are one of the Government of India's recommended and authorized analytical laboratories. - No reason why the benefit of said circular be not extended to cover the case of the appellant in seeking conversion of free shipping bills into drawback shipping bills, when there is a unimpeachable evidence of export of the furnace oil If the duty drawback is not allowed to the appellant, the appellant is perforce required to export the taxes, which gets included in the FOB value. In our view, this being not the intention, conversion of free shipping bills into drawback shipping bills needs to be allowed - Decided in favour of assessee. - Appeal No.C/39/2012-DB - Final Order No. A/10565/2014-WZB/AHD - Dated:- 9-4-2014 - M V Ravindran and H K Thakur, JJ. For the Appellant : Shri Vishal Agarwal, Ms. Dimple Gohil, Advs. For the Respondent : Shri K Sivakumar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers. He would also draw our attention to the specific directions passed by the Customs authorities of late export order of the goods. He would submit that the goods were tested by M/s Geochem Laboratory who are one of the authorized laboratories for the Government of India. He would submit that the reliance placed by the adjudicating authority on the CBEC circular is totally incorrect. He would also draw our attention to the fact that subsequently the brand rate of the drawback for the same product i.e. furnace oil was fixed by the authorities. He would also submit that this Bench of the Tribunal in the appellant's own case as regards conversion of free shipping bills into drawback shipping bills has allowed the same after the matter was remanded back by the Hon'ble High Court and fairly submits that the Revenue is in appeal before the Hon'ble High Court of Gujarat. He would submit that the said decision is reported at 2010 (259) ELT 295 (Tri-Ahmd) and it was for the earlier period. 4. Ld. Departmental Representative, on the other hand, would draw our attention to the provisions of Section 149 of Customs Act, 1962 and submit that the said Section cannot be inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides and find that the submissions made by ld. Counsel needs to be accepted for more than one reason. 8.1 Firstly, we find that the documents like ARE-1, Bills of Lading, shipping bills specifically were signed by the Customs officers clearly indicate that the goods which were cleared for export was furnace oil. We do agree with the ld. Departmental Representative's submissions that the no samples were drawn for the consignments which were exported to ascertain whether they were furnace oil or otherwise. This would not be a cause for non-conversion of the application of the appellant, for the simple reason that M/s Geochem laboratory, an independent analytical laboratory had analysed specific consignments which were exported; said reports indicate that the goods were furnace oil . The mere perusal of the analytical certificate given by M/s Geochem Laboratory seems to co-relate the goods in the shipping bills wherein the description was given as furnace oil . 8.2 Secondly, we do find that CBEC vide Circular No.25/2005/Cus, has specifically accepted the representation of the Trade and the recommendations of the conference of the Chief Commissioners that the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 not under consideration. In the case of Gokaldas Images Pvt. Ltd., the Tribunal had remanded the matter back to the Commissioner, since the Commissioner had made a wrong observation that the appellants had claimed brand rate whereas the appellants had requested only all industry rate. In the case of Hero Cycles Ltd. also it is not clear as to whether the conversion allowed by the Tribunal was from free shipping bill to brand rate drawback bill or not. Under these circumstances judicial discipline requires that we follow the decision of the Tribunal in the case of Hero Cycles Ltd. unless a decision of the superior authority is shown to us or we find ourselves in disagreement with this decision in view of the fact that that decision in Hero Cycles Ltd. was a single member decision. 7. This brings us to the position as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence. It has been claimed by the appellants that documentary evidence is available to show the necessary details required for the purpose of considering brand rate. The Commissioner has failed to take note of the provisions of Section 149 which empowers him to consider amendment and if the amendment was to be made on the basis of documents, the applicant would have been benefited. Since Board's circular also does not clearly provide that Commissioner cannot allow amendment under Section 149 of Customs Act, 1962, 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 dra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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