9911796707
TMI Blog2021 (6) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2020 is for issuance of Writ of Mandamus directing the respondents to grant drawback to the petitioners in respect of 207 shipping bills more fully described in the annexure to the writ petition amounting to Rs.5,86,23,750/-. 3. The petitioner had been running a unit in a Special Economic Zone (SEZ). On 15.02.2007 a request has been made by it to the Development Commissioner, Madras Export Processing Zone for issuance of a no objection certificate for exiting the EOU Scheme and entry to the Export Promotion of Capital Goods Scheme (EPCG). In-principle approval was granted by the Development Commissioner on 10.04.2007. On the strength of the aforesaid, a letter was given on 13.04.2007 by the petitioner to Assistant Commissioner for Customs/R2 conveying its decision for switch-over from EOU to EPCG Scheme, effective from 01.07.2007. The purpose for the shift is itself to enable disposal of the existing stocks and raw materials in respect of which no duty had been paid. 4. The petitioner also sought, in its communication dated 13.04.2007, a quantification of the estimated duty liability. Permission was granted on 25.06.2007 by R2 to de-bond. An import export licence under the EPCG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of drawback on exports prior to issuance of no-dues certificate dated 06.12.2007. Thus the rejection relates to shipping bills for the period 10.04.2007 to 31.12.2007. The petitioner has sought for and obtained various internal communications between the authorities under Right to Information Act, which sets the course that the discussion took as between the various Departments involved, culminating finally in the rejection of the petitioner's claim. 8. While this is so, on 31.07.2009, a demand styled as 'show cause notice' was issued by the Commissioner of Customs (Airport) seeking to reverse the drawback sanctioned earlier. A reply was filed on 24.08.2009 reiterating the claim for drawback granted originally. The Council for Leather Exports also issued communication dated 17.12.2009 to the Commissioner of Customs recommending the petitioner's case for drawback. This request was rejected on 24.12.2009 itself. The petitioner also relies on drawback granted not just in its case, in respect of an identical transaction by the Customs Department, but also to other entities in similar circumstances. 9. Since there was silence on the request made, Writ Petitions in W.P.Nos.3261 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-due certificate has been issued by the Central Excise Department only on 06.12.2007, after payment by the petitioner of all applicable duties. The issuance of no-due certificate was a pre-condition for the issuance of the final exit order and thus there was no infirmity in the stand adopted by the respondents. 15. It is not in dispute that the duties for the period 04.07.2007 to 23.11.2007 were paid by the petitioner only on 23.11.2007. 16. Circular No.4 of 2004 - Customs dated 16.01.2004 issued by the Board, touches upon the subject of 'conversion of free shipping bills into Advance Licence/DEPB/DFRC/Drawback shipping bills and from one export promotion scheme to another'. On the subject of conversion, clarifications had been sought for and the aforesaid circular has thus come to be issued answering the queries raised. Specific to the petitioner is clause 3.1, which is extracted below: Circular No.4/2004-Cus., dated 16-1-2004 F.No.609/176/2002-DBK Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi. Sub : Conversion of free shipping bills into Advance License/ DEPB/DFRC/Drawback shipping bills an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y post.- (1) In the case of exports other than by post, the exporters shall at the time of export of the goods. - (a) state on the shipping bill or bill of export, the description, quantity and such other particulars as are necessary for deciding whether the goods are entitled to drawback, and if so, at what rate and make a declaration on the relevant shipping bill or bill of export that (i) a claim for drawback under these rules is being made : (ii) the duties of Customs and Central Excise have been paid in respect of the containers, packing materials and materials used in the manufacture of the export goods on which drawback is being claimed and that in respect of such containers or materials no separate claim for rebate of duty under the Cen- tral Excise Rules, 1944 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 the provisions of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 22. Very relevantly, such discretion has been exercised by the authorities at Tuticorin and by the Commissioner Airport, though pursuant to the impugned order, the latter order is now under re-consideration. The discretion originally exercised by Assistant Commissioner of Customs (Export), Tuticorin has attained finality and is not under review. 23. The Customs Act, 1962 is a central enactment and there must thus, be uniformity in the exercise of discretion by officers in different stations. If an officer in a particular station has thought it fit to accept an assessee's claim in an identical circumstance, then any variation from this point of view only be after a process of detailed reasoning to justify the difference in stand. 24. I am of the considered view that the dichotomy in the stand adopted by the different authorities as well as the fact that there is no reasoning to support the conclusion in the impugned order, is fatal to the respondents' case. 25. The impugned orders are set aside. The order of stay granted in W.P.No.9853 of 2020, challenging the show cause notice issued by the Commissioner, Sea Port is vacated. Proceedings shall be taken/continued afresh, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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