GYPSY EXPORTS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal against disallowance of Drawback. The facts of the case are that the appellant imported certain raw materials in terms of Notification No. 80/95 dt. 31.3.95. Public notice under which this Notification No. 80/95 was issued provided "In case of exports made against quantity based Advance licences issued on or after 1.4.95 in discharge of obligations in terms of Notfn. No. 80/95 dated 31.3.95, drawback at the rate equivalent to Central Excise allocation of rate of drawback shall be admissible. The goods in this case were exported in discharge of export obligation. The LUT/BG were discharged and licences were made transferable on 16.4.97. The appellant applied for grant of quantity based licences on 6.6.96, 19.6.96, 28.11.96 which were issued to him on 20.6.96, 7.11.96 and 13.12.96. Exports against these licencese were effected during June to September, 1991, September, 1996 to November, 1996 and November, 1996. The exports are governed by the provisions of Exim Policy 1992 -977. Para 47 of Exim Policy provides for duty free imports of inputs namely raw materials, intermediater components etc. However, such inputs had suffer Additional Customs duty. This para also provides for adjustment of customs duty and states that the importer/licensee can claim drawback for additional duty paid on inputs imported. Authorities below rejected the claim of the appellant for conversion of 22 DEEC S/Bs into DEEC -cum -Drawback S/Bs".

(2.) ARGUING the case for the appellants, Shri Jagmohan Bansal, ld. Counsel submits that after the issue of Notfn. No. 80/95 dt. 1.4.95, the Government of India, Ministry of Finance issued a clarification under Circular NO. 91/95 -CUS. dt. 11.8.95 which reads as under:

(3.) LD . Counsel submits that the Government of India was aware of the fact that this notification had not come to the knowledge of the exporters spread throughout length and breadth of the Country and therefore instead the power of relaxation being retained by them, they delegated it to the Commissioner concerned. Ld. Counsel submits that the appellants requested the Commissioner to relax the condition of the notification regarding filing of Green Shipping Bills and Drawback S/B along with the declaration that they will claim Drawback under Notfn. No. 80/95. Ld. Counsel submits that the ld. Commissioner rejected their request for relaxation on the ground that they effected the impugned shipments much after the date of issue of notification or clarification given by the Government. Ld. Counsel further submits that this Tribunal in the case of M/s. Rana Deep Shipping and Transporter Co. (P) Ltd. vs. Collector of Customs, Bombay (1999 (112) ELT 791 (T)) holding that Drawback will be admissible even if the goods were clandestinely imported if the import duty is paid. He submits that theirs is a very simple case inasmuch as exports were effected on White Shipping Bill clearly showing that no Drawback was claimed and that CVD was paid by the appellants in terms of Notfn. 80/95 dt. 1.4.95. Ld. Counsel also referred to the decision of the Apex Court in the case of Union of India vs. Suksha International and Nutan Gems and Anr (1989 (39) ELT 503(S.C), in which the Apex Court held that the beneficial provision should be interpreted liberally. The ld. Counsel submits that the Drawback is a beneficial provision and thereafter even if there was a procedural delay which was rectifiable, could be relaxed. The appellants should have been given the benefit of this provision. The ld. Counsel submits that in view of the fact that the appellant was an actual user who exported the goods and had not claimed Drawback. He therefore prays that he should be allowed to claim drawback, the procedural requirement should be relaxed and the appeal may be allowed.