TMI Blog2021 (2) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cannot form the sole basis for rejection of the claim for drawback of duty under Section 74 of the Act. Similarly, clauses 3 and 4 Circular dated 23.09.2010, which deals with conversion of free shipping bills to export promotion scheme shipping bills and conversion of shipping boils from one scheme to another also provides that on case to case basis on merits, provided the commissioner of customs is satisfied, on the basis of documentary evidence which was in existence at the time the goods were available for export promotion scheme to which conversion has been requested, the same may be allowed subject to the conditions mentioned therein. Thus, the tribunal has rightly recorded the finding that the claim of the appellant for conversi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2007 and holding that the respondent is entitled to claim drawback of duty paid on import of microscopes vide Bill of Entry No.131819 dated 10.4.2006, despite exporting the goods vide a free shipping bill and without physical examination of the goods by the customs authorities at the time of export, as required under Section 74 of the Customs Act? (ii) Whether the Tribunal erred in setting aside the order of the Commissioner dated 24.5.2007 and holding that the respondent is entitled to claim drawback of duty paid on import of microscopes vide Bill of Entry NO.131819 dated 10.4.2006, despite the claim being time-barred as the respondent claimed drawback of duty on the said goods more than 3 months after the export of the goods? . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of export of the goods. The Commissioner, therefore, rejected the request made by the respondent. 3. The respondent thereupon filed an appeal before the tribunal. The tribunal vide order dated 11.08.2017 inter alia held that even though there has been no physical verification of the goods at the time of export, the same cannot be the sole reason for refusal of the respondent's request. The tribunal relied on the Circular issued by Central Board of Direct Taxes (CBDT) dated 23.09.2010, wherein it was clarified that the Commissioner may allow all industry rates of duty drawback on goods exported under a free shipping bill, without conversion of such free shipping bill to a drawback bill in terms of proviso to Rule 12(1)(a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 5. On the other hand, learned counsel for the respondent while inviting the attention of this court to proviso to Rule 4(a) of 1995 Rules submitted that the requirement of identification of the goods cannot be the sole basis for either granting or denying the benefit of drawback of duty under Section 74 of the Act. It is submitted that proviso to Rule 4(a) empowers the Principal Commissioner, or Commissioner of Customs to exempt an exporter or his authorized agent for reasons to be recorded that such exporter or his authorized agent has for reasons beyond his control failed to comply with the provisions of identification of the goods. It is also submitted that Rule 5(1) permits the Assistant Commissioner or Deputy Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the exporter of his authorized agent has, for reasons beyond his control failed to comply with the provisions of this clause, he may, after considering the representation, if any, made by such exporter or his authorized agent, and for reasons to be recorded, exempt such exporter or his authorized agent from the provisions of this clause. 7. Thus, it is evident that the aforesaid provision provides for exemption or waiver of the requirement physical verification and cannot form the sole basis for rejection of the claim for drawback of duty under Section 74 of the Act. Similarly, clauses 3 and 4 Circular dated 23.09.2010, which deals with conversion of free shipping bills to export promotion scheme shipping bills and conversion of ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the DGFT/MOC. The conversion may be allowed subject to the following further conditions. (a) The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO). (b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product. (c) The examination report and other endorsement made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under the relevant SION ad or DEPB/Drawback Schedule as the case may be. (d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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