FREEDOM INTERNATIONAL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) IN this appeal filed by M/s. Freedom International the issue involved is whether their request for conversion of DEEC Shipping Bill into DEEC -cum -drawback Shipping Bill deserves to be accepted by the Commissioner.

(2.) SHRI . K.K. Anand, learned Advocate, submitted that the Appellants export bicycle tyres and tubes; that during the year 1999 they exported the goods against advance Licence No. 0021403, dated 5 -2 -99 and filed three shipping bills dated 26 -3 -99, 31 -3 -99 and 16 -4 -99 under DEEC Scheme; that the Appellants were permitted to import the raw material free of basic Customs duty but they were required to pay Additional Customs duty under Section 3 of the Customs Tariff Act; that while filing Shipping Bill for export the Appellants failed to take into consideration the fact that they are entitled to claim drawback of the additional Customs duty paid by them on the raw materials; that subsequent to the filing of the Shipping Bill they came across Public Notice No. 14/98, dated 1 -9 -98 issued by the Commissioner of Customs, Air Cargo, New Delhi containing the procedure for conversion of DEEC Shipping Bill into Drawback Shipping Bill; that immediately they made an application on 15 -9 -99 to the Commissioner of Customs for conversion of DEEC Shipping Bill into Drawback -cum -DEEC Shipping Bill. The Commissioner under the impugned order has rejected their request for conversion of the shipping bill into drawback shipping bill on the ground that the Appellants were fully aware of the payment of Additional duty of Customs on the raw material and as such their case is not covered by provisions of Rule 12(1) of the Customs and Central Excise Duties Drawback Rules. The learned Advocate, further, submitted that the conversion of DEEC Bill into drawback shipping does not result into any loss of Government Revenue; that the drawback of additional duty of Customs is legitimately due to the Appellants. The fact which is not disputed by the Revenue is that the provi -sio to Rule 12(1)(a) which empowers the Commissioner is a beneficial piece of legislation and a liberal approach should be adopted in interpreting the said proviso; that the Appellants are not trying to make some unlawful gain but are trying to claim drawback which is admissible to them; that had the Appellants been mentally alive to the availability of drawback they would have no hesitation in filing the drawback shipping bill right in the beginning and the same could not have been also denied to them; that these circumstances are sufficient to establish that the drawback shipping bill was not filed for the reasons beyond the control of the Appellants. He relied upon the decision in the case of Commissioner of Customs, Amritsar v. R.M.I Cycles Ltd., 2001 (129) E.L.T 113 (T) wherein the unfavourable market condition was considered to be a situation beyond the control of exporter and DEEC shipping bill was allowed to be converted into the drawback shipping bill in exercise of the power conferred by provisio to Rule 12(1) of the Drawback Rules.

(3.) COUNTERING the arguments Shri S.C. Pushkarna, learned DR submitted that the fact of payment of Additional Customs duty on the raw materials imported by the Appellants was known to them; that the provisions of law allowing the drawback of the duty paid is also known to the Appellants; that the wordings used in the proviso to Rule 12(1)(a) of the Drawback Rules are "for reasons beyond his control"; that the Appellants except mentioning that they were not alive to the fact of their eligibility to the drawback claim, have not mentioned any reason which can be called reason beyond their control for not claiming the drawback and as such the Commissioner has rightly not exercised the discretion vested with him by virtue of provisions of Rule 12(1) of the Drawback Rules.