ESSAR OIL LTD. Vs. COMMISSIONER OF CUSTOMS, JAMNAGAR

JUDGEMENT

(1.) A short issue is involved in the present appeal. In the impugned order, Commissioner has rejected the request of the appellants for conversion of free shipping bills into drawback shipping bills. Vide Order No. A/2599/WZB/AHD/2008 dated 26 -11 -08 and vide Order No. A/1204/WZB/AHD/09, M/741/WZB/AHD/09 dated 16 -6 -09, this Tribunal allowed the appeals and directed the Commissioner to allow the conversion of free shipping bills into drawback shipping bills.

(2.) REVENUE filed an appeal against the two orders referred to above and Honble High Court of Gujarat vide their order dated 15 -4 -10 in tax appeals No. 847 of 2009 and 2338 of 2009 set aside the order of the Tribunal and restored the appeals to the files of the Tribunal for taking a fresh decision. The Honble High Court directed that the Tribunal pass a speaking order in accordance with law after affording due opportunity to the parties.

(3.) HEARD both the sides. Shri Vishal Agarwal, learned C.A., on behalf of the appellants submitted that the Commissioner in his order had relied upon the instructions of the Board issued vide Circular No. 4/2004 -Cus., dated 16 -1 -04. In the circular, in para 3.1 it has been stated that the power of Commissioner to grant exemption from observance of the provisions of Rule 12(1) (a) for the purpose of availment of drawback shall only apply in respect of drawback claims pertaining to all industry rates of drawback and it would not apply to brand rate of duty drawback where rate is claimed in terms of Rule 6 or Rule 7 of Customs and Central Excise Duties Drawback Rules. He submitted that the rule does not have any such restriction and therefore the reliance of the Commissioner on circular was misplaced.