TMI Blog2014 (5) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... eady claimed, they have attempted to make out a case for drawback claim under Section 74 of Customs Act. So, the goods exported are Tipper Trailer and the imported inputs are used on this manufacture of Tipper Trailer. As such it is not a case of re-export of imported goods. The lower authorities have rightly rejected the claim of applicant. Revision application rejected - F. No. 371/11/DBK/2013-RA - 114/2014-Cus - Dated:- 5-5-2014 - Shri D.P. Singh, Joint Secretary Ms. Nishtha Singh, Advocate, for the Assessee. None, for the Department. ORDER This revision application is filed by the applicant M/s. Kailash Vahan Udyog Ltd., Pune against the order-in-appeal No. 755/MCH/DC/Drawback/2012, dated 11-9-2012 passed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1 Applicant submits that the Commissioner (Appeals) has grossly erred in holding that the identity of the goods was lost once the auto components were fitted on the trailers as the items exported were trailers and not the auto components. Applicant respectfully submits that it had filed the Shipping Bill under claim for drawback under Section 74 clearly bringing out that it was exporting the auto components which were earlier imported by it under the 5 Bills of Entry, details of which were clearly mentioned on the body of the Shipping Bill. The export goods were described as trailers and it was declared that the auto parts were fitted on these trailers. Section 74 comes into operation when articles are imported and thereafter re-expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority unless the examination report was challenged and set aside by an Appellate Authority. It is applicant s submission that both the original as well as the appellate authority have erred in questioning the examination report given by the Assistant Commissioner and the orders are therefore liable to be set aside on this ground alone. 4.3 Applicant places its reliance on the circular issued by the Board vide Circular No. 5/2001-Cus., dated 19-1-2001 where hangers were being imported for being used in the packing of the readymade garments and readymade garments were re-exported along with the hangers and it was clarified by the Board that even though the items exported was readymade garments, the exporter will be entitled to drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 74. In view of this the applicant s plea of now allowing him to file claim under Section 75 should not have been rejected as has been done by the Commissioner (Appeals) and applicant should have allowed to now file the claim under Section 75. It is a settled law that the department cannot take advantage of its own wrong and subject an assessee to higher liability arising out of its own errors and actions as held by the Hon ble Supreme Court in the case of Priyanka Overseas Pvt. Ltd. v. Union of India reported in 1991 (51) E.L.T. 185 (S.C.). Since in this case a Shipping Bill under claim of drawback under Section 74 was entertained by the department and an examination order was given under Section 74 and conducted under Section 74 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wback claims. Commissioner (Appeals) upheld impugned Order-in-Original. Now, the applicant has filed this Revision Application on ground mention in para (4) above. 8. Government finds that the original authority has considered the impugned issue in his Order-in-Original and in relevant paras has observed as under :- 9. Further, there is no doubt about use of the imported goods, in respect of which drawback under Section 74 of the Act has been claimed, in the manufacture of the export goods and also about the difference in the description of the export goods and that of the import goods as indicated in the following table : Description of the imported goods Chapter Heading No. Des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to note that the goods exported must be very same goods which had been imported earlier. Further, provisions of Section 74 of the Act are applicable only when the goods imported are themselves re-exported as such. If the goods have been used in the manufacture or in other process and the goods had lost the identity, drawback under Section 74 of the Act is not allowable. Hon ble High Court of Madras while delivering a judgment in a similar situation, gave an example of imported printed pouch roll which were used in packing of export goods and held that duty paid on imported printed pouch roll cannot be claimed as drawback under Section 74 (Best Nut Corporation v. ACC DBK - 2000 (122) E.L.T. 11 (Mad). This because upon having been used for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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