TMI Blog2019 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... awback on the goods re-exported is settled in the appellants favour. Time Limitation - HELD THAT:- In the instant case, the imports have occurred during July to September 2010; initially the goods were put for export by filing shipping bills on 01.12.2010. The goods could not be exported due to the objections raised by the department and the Show Cause Notice issued and the subsequent proceedings in the Tribunal. After fulfilling the conditions laid down by the Tribunal customs have allowed the goods to be re-exported on 08.02.2013; LEO was issued on 29.03.2013 and goods were finally exported on 13.04.2013. It is not the case of the department that the goods presented for export on 01.12.2010 and goods which were exported finally on 13.04.2013 are not different. Therefore, the time period of two years requires to be reckoned up to the initial filing of the shipping bills i.e. 01.12.2010 and not the date on which LEO was given after prolonged litigation. It is a settled principle of law that while computing the limitation time taken for litigation should be excluded. In view of the same, we find that he Appellants cannot be put to jeopardy due to the objections raised by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed by M/s. Schlumberger Asia Services Ltd, vide Shipping Bills No.3000004499 and 3000004504 both dated 01.12.2010. (iii). Imposed a penalty of ₹ 20, 00,000 (Rupees Twenty Lakh only) on M/s. Schlumberger Solutions Pvt. Ltd and a penalty of ₹ 1, 00,000 (Rupees One Lakh only) on M/s Schlumberger Asia Service Ltd, Mumbai under Section 114 (iii) of the Customs Act, 1962. 2.1. The Aggrieved by the above order, appellants preferred Appeals No.C/370/2012-DB and C/371/2012-DB before this Bench, which ordered, vide interim order dated 10.07.12, that the goods be reexamined by an expert to establish the identity of goods and thereafter goods be allowed to be re-exported on execution of bonds. Accordingly, the Commissioner of Customs (Export), JNCH had appointed M/s. Intertek Testing Services as an Export on 22.10.2012 to re-examine the goods in question in the presence of Officers of Customs and representatives of Appellants. A report dated 25.10.2012, confirming establishment of identity of the goods, was submitted. Available goods were allowed to be re-exported by against bond in compliance with the CESTAT s interim Order dated 10.07.2012. Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore CESTAT, re-examination by experts etc., a large quantity of equipment worth ₹ 66.35 lakhs as per the details appended to appellants letter dated 29.08.2012 to the Manager DRT CFS, were found pilfered from the total consignment brought for export against six shipping bills as far back as on 06.12.2010. This is indeed an irreparable loss to the exporters as the custodians of the goods are expressing their inability to restore the pilfered goods to the exporters. He submits that in view of the above, the exporters claim at the time of filing the Shipping Bills in question under Section 74 stands vindicated. O-in-O No.64/2011-12 dt.12.01.2012 passed by the Commissioner of Customs (Exports) , may be set aside so that the Exporters may at least salvage the permissible drawback on the goods they could actually re-export so far. 4. Learned Authorised Representative for the department submits that Shipping Bills were assessed provisionally with remark Shipping Bills assessed provisionally as per DC (X) order vide F. No.S/6-Gen- 892/2012 (X) D Node dated 29.03.2013 pending for re-export time limited to be decided by CESTAT. As per section 74(i) (b) the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, it is evident from the records of the case that identity of at least part of the goods has been established by the report of the experts i.e. Intertek. To this extent one should not have any doubt regarding the admissibility of re-export of the imported goods. We find that it is not the case of the department that the imported goods have been sold or diverted and some other goods were presented for export. No evidence to that extent has been adduced by Revenue. The only question that was raised was with reference to the establishment of identity and the same is answered by the report of Intertek in respect of the goods mentioned in their report. Therefore, the issue of admissibility of drawback on the goods re-exported is settled in the appellants favour. 6. Department has raised the issue of time limit for the filing of drawback shipping Bills. We find that originally both the Appellants have filed seven numbers of shipping bills on 01.12.2010. Only due to some issues regarding the identification of the goods, on the basis of marks and numbers, with the imported goods the Show Cause Notice was issued and was confirmed by the Commissioner holding as det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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