9911796707
TMI Blog2017 (11) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court held that as per Circular No. 04/2004 dated 16.01.2004 the appellant is entitled for All Industry Rates of drawback after examination. Therefore, the impugned order is fully set aside. 2. On the other hand the learned AR reiterated the findings of the impugned order. 3. Heard the parties. Considered the submissions. I find that identical issue came up before Hon'ble Apex Court in the case of Cargil India Pvt. Ltd. (supra) wherein the Hon'ble Apex Court observed as under: "6. From the aforesaid it would be clear that two issues arise for consideration : 1 Whether the appellant is entitled to claim conversion of free shipping bills into drawback shipping bills on the basis of Rule 12(1)(a) of the Rules? 2 If the ans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this clause, he may, after considering the representation, if any, made by such exporter or his authorised agent, and for reasons to be recorded, exempt such exporter or his authorised agent from the provisions of this clause. 8. A bare reading of the aforesaid Rule demonstrates that such conversion is permissible only when the exporter is able to satisfy the Commissioner that for reasons beyond his control drawback was not claimed. In the instant case, a finding of fact is arrived at by the Commissioner (Customs), which has been accepted by the High Court also, that no case was made out by the appellant to suggest that claim for duty drawback was beyond the control of the appellant. It is rightly pointed out that merely because the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Duties and Service Tax Drawback Rules, 1995, in respect of manual shipping bill whenever the exporter files drawback shipping bills, Triplicate copy of the Shipping bill itself is a claim for Drawback on the date on which the Proper officer of Customs makes an order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act, 1962. In respect to EDI shipping bill subject to the provisions of Rule 13(2), 13(3) and 13(4) the electronic shipping bill itself shall be treated as the claim for drawback. In this case, the department did not prevent him from filing drawback shipping bills nor any valid reasons exist for not filing the drawback claim by the exporter himself. In view of this, questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led free shipping bills on their own, it would not be advisable to permit such conversion. This view of the Commissioner's Conference was deliberated by the Central Board of Excise & Customs and the issue was reexamined, which resulted in the issuance of the aforesaid circular. After taking note of the provisions contained in Rule 12(1)(a) of the Rules which undoubtedly state that "no provision exists for permitting conversion of free shipping bills into drawback shipping bills", the Board was still of the opinion that it was permissible for the Commissioner to examine and consider individual requests on merits and facts in terms of the aforesaid provisions and the relaxation shall only apply in respect of drawback claims pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. 51. Clearance of goods for exportation. - Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation." .... 14. We thus hold that the provisions of Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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