ESSAR OIL LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is directed against OIO No. KDL/COMMR/DENOVO/15/2011 -12, dated 13 -1 -2012. The relevant facts that arise for consideration are that the appellant herein had filed shipping bills for the months of February, March, April and May, 2008 for export of furnace oil. The said exports were allowed and the exports were effected. Subsequently, appellant made an application for conversion of shipping bills for this period from "free shipping bills" to "drawback shipping bills" and submitted the invoices shipping bills, Bills of Lading and bank realization certificate. The said application was rejected by the adjudicating authority on the ground that the provisions of Section 149 of Customs Act, 1962 do not envisage such a conversion. The adjudicating authority also relied upon the C.B.E. & C. circular and on merit held that the goods which were exported having not been tested by the Customs to check the veracity of the declaration of the party on various export documents. Aggrieved by such an order, the appellants is before the Tribunal.

(2.) LD . Counsel would take us through the entire Order -in -Original and the findings recorded by the adjudicating authority vis   -vis the allegations made in the show cause notice. It is his submission that the adjudicating authority has simply overlooked the fact that the documents which were in existence when the export took place, clearly indicate that the exports were of furnace oil. He would submit that the appellant filed free shipping bills for the reason that during the relevant period, the duty drawback on the furnace oil exported was restricted only to the exports made to SEZ unit and the said drawback was of All India rate. He would submit that subsequently they were informed that specific brand rate could be fixed for the furnace oil exported by them and hence they sought the conversion of free shipping bills to drawback shipping bills. He would then take us through the random example of the export made by them and submit that the goods were cleared under AREs -1 from the factory and sent to Customs bonded warehouses and furnace oil was stored there. He would then draw our attention to the various documents and show that the furnace oil which was kept in Customs bonded warehouses was exported, an endorsement to that effect is made by the Customs officers. He would also draw our attention to the specific directions passed by the Customs authorities of late export order of the goods. He would submit that the goods were tested by M/s. Geochem Laboratory who are one of the authorized laboratories for the Government of India. He would submit that the reliance placed by the adjudicating authority on the C.B.E. & C. circular is totally incorrect. He would also draw our attention to the fact that subsequently the brand rate of the drawback for the same product i.e. furnace oil was fixed by the authorities. He would also submit that this Bench of the Tribunal in the appellant's own case as regards conversion of free shipping bills into drawback shipping bills has allowed the same after the matter was remanded back by the Hon'ble High Court and fairly submits that the Revenue is in appeal before the Hon'ble High Court of Gujarat. He would submit that the said decision is reported at, 2010 (259) E.L.T. 295 (Tri. -Ahmd.) and it was for the earlier period.

(3.) WE have considered the submissions made at length by both sides and perused the records.