PERFETTI VAN MELLE INDIA PVT LTD (FORMERLY VAN MELLE CONFECTIONERY INDIA PRIVATE LIMITED) REPRESENTED BY R RAMESH CHARI, THE AUTHORISED SIGNATORY AND HEAD-SOUTH (OPERATIONS) Vs. UNION OF INDIA REPRESENTED BY JT SECRETARY, TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE; THE COMMISSIONER OF CUSTOMS (APPEALS) AND; THE ASST COMMISSIONER CUSTOMS (DRAWBACK)

JUDGEMENT

(1.) Petitioner seeks Writ of Certiorarified Mandamus to quash the impugned order dated 29.10.2004 and direct the 1st Respondent and other officers to refund a sum of Rs. 23,53,275.96 in terms of Section 74 of Customs Act on the 5 consignments of confectionery re-exported by the Petitioner.

(2.) Facts in brief is that M/s. Perfetti Van Melle India Pvt. Ltd., Chennai had re-exported confectionery under 18 shipping bills. The exporter had claimed drawback amount of Rs. 63,84,097/- under Section 74 of Customs Act, 1962. Case of the Petitioner is that goods were re-exported due to the reason that the super confectionery were not able to withstand the Indian climatic conditions and at the time of export, the Officers who examined the cargo have opined that the identity of the goods cannot be established or the market value was less than the drawback claimed in respect of 5 shipping bills and identity was established but market value less than the drawback claimed in respect of remaining 13 shipping bills. After hearing, by the order dated 23.4.2003, the Asst. Commissioner of Customs (DBK) rejected the supplementary claims for all the 18 shipping bills as inadmissible.

(3.) Aggrieved by the above order, Writ Petitioner fled appeal before the 2nd Respondent/Commissioner of Customs under Section 128 of Customs Act. In respect of 13 consignments, 2nd Respondent held that the identity of the case were established and the market value was higher than the drawback claimed. 2nd Respondent also held that Petitioner produced evidence that the foreign exchange was realised and the goods exported to the foreign country were sold in their country. Insofar as, 5 consignments, 2nd Respondent held that the identity of the goods had not been established under the respective Bills of Entry and that the goods re-exported have market value more than the drawback claimed. As such the order of lower authority was modified to the extent that the drawback was allowed for 13 shipping bills where identity has been established and also where the market price is more than the drawback claimed and in respect of 5 shipping bills, the rejection of drawback claim for not establishing the identity is upheld.