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JV Gokal & Co. Pvt. Ltd. Versus Commissioner of Customs, Cochin

2017 (11) TMI 430 - CESTAT BANGALORE

Conversion of shipping bills - free shipping bills into drawback shipping bills - All Industry Rates of drawback - Held that: - Hon’ble Apex Court in the case of Cargill India Private Limited Versus Commissioner of Customs And Central Excise, Visakhapatnam-II [2015 (11) TMI 378 - SUPREME COURT] held that the provisions of Circular No. 4/2004 dated 16.01.2004 is applicable to the facts of this case and matter needs examination at the end of the adjudicating authority to consider the conversion of .....

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missioner (Appeals) disallowed the conversion of free shipping bills into drawback shipping bills. The learned counsel for the appellant submits that the issue came up before the Hon ble Apex Court in the case of Cargil India Pvt. Ltd. reported in 2015 (325) E.L.T. 801 (S.C) wherein the 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 th .....

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a) of the Rules? 2 If the answer to the aforesaid question is in the negative, whether the appellant is entitled to the benefit of duty drawback on the strength of Circular No.04/2004, dated 16-1-2004 even without seeking conversion? 7. Insofar as the first issue is concerned, after going through the order of the High Court, we are in complete agreement therewith. Rule 12(1)(a) of the Rules read as under : Rule 12. Statement/Declaration to be made on exports other than by Post. - (1) In the case .....

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he containers, packing materials and materials and the service tax paid on the input services used in the manufacture of the export goods on which drawback is being claimed, no separate claim for rebate of duty or service tax under the Central Excise Rules, 2002 or any other law has been or will be made to the Central Excise authorities. Provided that if the Commissioner of Customs is satisfied that the exporter or his authorised agent has, for reasons beyond his control, failed to comply with t .....

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ved 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 appellant was not aware of the correct legal position would not afford any such ground that it was beyond his control. 9. Coming to the second issue as noted above, the appellant had made a specific plea before the Commissioner (Customs) at .....

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9;s Circular No.04/2004-Cus., dated 16-1-2004 of F.No.609/176/2002-DBK states that, no provision exists for permitting conversion of free shipping bills into "drawback shipping bills". It also states that there is no need to allow conversion as Commissioner may examine and consider individual requests on merits and facts in terms of the provisions as per the Customs and Central Excise duties and Service Tax Drawback Rules, 1995. In the subject case, the goods under free shipping bills .....

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he 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 vie .....

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Since the Tribunal had accepted the appeal of the appellant on the first issue namely permitting the appellant to seek conversion under Rule 12(1)(a) of the Rules, the Tribunal did not go into this issue at all. It appears that when the matter was argued before the High Court, the High Court also confined the discussion only on the first issue. Since on the first issue we have accepted the view taken by the High Court, it becomes necessary to deal with this issue though it has not been gone into .....

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orters had filed 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 shippi .....

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ication is given precisely in the following terms : "In view of above, it is clarified that there is no need for allowing conversion. However, in terms of the proviso to Rule 12(1)(a) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, the Commissioner may examine and consider individual requests on merits and facts in terms of the aforesaid provisions. The aforesaid relaxation shall only apply in respect of drawback claims pertaining to All Industry Rates of drawbac .....

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d on the reading of Sections 50, 51 and 113 of the Customs Act. Sections 50 and 51 of the Customs Act are re-produced for ready reference as under : "50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods 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 .....

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