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TMI Blog2018 (2) TMI 1839X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aggrieved, the applicant filed an appeal before the Commissioner (Appeals) who has also, vide his above mentioned order, rejected the appeal of the applicant. The applicant has filed the instant revision application challenging the order of Commissioner (Appeals) on the ground that they have fulfilled all the criteria of re-export as per the provisions of Section 74 of the Customs Act, 1962 and the drawback of duty is admissible to them. 3. Personal hearing in this case was held on 14-11-2017 which was attended by Shri Bishwajit Mukherjee, advocate, for the applicant who reiterated the grounds of revision already pleaded in their revision application. However, Shri S. Mukherjee, Assistant Commissioner (Drawback), appearing for the respondent, opposed the revision application for the reasons already elaborated in order-in-original and order-in-appeal. 4. On examination of the revision application, the Commissioner (Appeals)'s Order and pertinent legal provisions, it is observed by the Government that for admissibility of drawback of customs duty under Section 74 of the Customs Act, 1962, the following conditions are to be satisfied (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S $ 56193.59, the content of exported goods varied from the imported one as per various test reports available and goods had not been directly exported or transhipped to the Korean Company. The Commissioner (Appeals) has also agreed with the above reasons of the Assistant Commissioner in his order and has rejected the applicant's appeal. 7. The applicant has filed the above revision application against the order of Commissioner (Appeals) before the Government mainly on the grounds that the opinion of the adjudicating authority that the export goods cannot be easily identified hinges on subjectivity, each item must be identified by methods appropriate to the nature of goods, physical examination of the goods is not only methods for establishing the identity of the goods, the first part of examination report has clearly established the identity of exported goods and there are several other colateral evidences like certificate of warehouse, Chartered Accountant, State Bank of India which clearly support that they had imported High carbon ferro manganese fines and the same have been exported by them to the Korean company. While Government agrees with the applicant's above content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther minor contents are also at variance in respect of imported and exported goods, but the difference is not of very significant magnitude. But from the major difference in the contents of manganese as declared by the applicant itself in the Bill of Entry and the Shipping Bill, which is major constituent of the imported as well as exported goods in this case, it is fairly evident that the exported high carbon ferro manganese fines containing only 68% manganese contents were of inferior quality and it could not be the same which they had imported earlier from South Africa having manganese purity of above 73%. This fact is even supported by the two main test reports issued by Assmang Manganese Division Cato Ridge Works and Custom House Lab test report. The first report of Assmang Manganese Division Cato Ridge Works was produced by the applicant before the Customs officers at the time of import of the goods and Custom House Lab Report was given in respect of exported goods for which sample was drawn by the customs officers in the presence of applicant representative. As per test report of Assmang Manganese Division Cato Ridge Works manganese contents are reported as 72.09%. But in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty as they had imported from South [Africa], they would not have exported on reduced value of the goods and by incurring extra heavy expenses by importing the goods first in India from South Africa and thereafter exporting the same to South Korea. If they had intention to export the goods of high quality, they could easily export the goods directly from South [Africa] and avoid heavy expenses towards loading, unloading, warehousing, transporting the goods first at Haldia port and then repeating the same for export of the same goods to South Korea. It is really mysterious as to why they imported the ferro manganese in India at all if they had already plan to export the same to Korea. It is also noted by the Government that after the High carbon ferro manganese fines was imported by the applicant, it remained in the custody of the applicant for long time and the departmental authority did not have any type of control over it and no evidence has been adduced to prove that the imported goods remained intact in the custody of the applicant for export purpose. Instead of providing direct evidence to support their claim, the applicant has placed reliance on several other materials such as ..... 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