BALKRISHNA INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against OIO No. KDL/Commr/33/2013 -14, dated 18 -9 -2013 passed by the Commissioner of Customs, Kandla under which request for re -credit of DEPB licence of the appellant was rejected. Sh. T. Vishwanathan (Advocate) and Sh. Manish Jain (Advocate) appeared on behalf of the appellant. Sh. T. Vishwanathan argued that the re -credit of DEPB licences have been demand on the twin grounds that appellant did not apply for necessary permission to Commissioner Customs, as required under Circular No. , dated 11 -9 -2000 and also due to the fact that identity of the goods being re -exported was not established.

(2.) Learned Advocate argued that 613.077 MTs of 'Butadiene Rubber' powder was imported under B/E No. 6143675, dated 1 -3 -2012 and B/E No. 6390437, dated 28 -3 -2012 which were cleared on debiting of duty of Rs. 2,55,57,937/ - through 26 DEPB licences as per Notification No. , dated 11 -9 -2009. That appellant vide a letter dated 17 -5 -2012 written to DC, Mundra requested for re -credit of DEPB Certificate as per the provision of C.B.E. & C. Circular No. , dated 11 -9 -2000 as the imported rubber was not found suitable for appellant's consumption. That the required re -export permission was granted by DC, Mundra & no objection was raised to non -establishing of the identity of imported rubber at the time of exports. It was the case of the appellant that not raising any objection at the time of export means that the identity of the goods was established as all the relevant details like Import Invoice, packing list and the quantity was duly indicated in the shipping bills filed by the appellant. Learned Advocate made the Bench go through the relevant letter dated 17 -5 -2012 written to the DC, Mundra & relevant shipping bill. It was his case that it is not the fault of the appellant if, the said letter dated 17 -5 -2012 was not put up to Commissioner as per Circular No. , dated 11 -9 -2000 and that appellant was correctly and legally entitled to re -credit of DEPB Scripts.

(3.) HEARD both sides and perused the case records. The re -credit of DEPB Licences has been rejected by the adjudicating authority on two grounds. First reason is that appellant did not apply for re -export of rejected goods to Commissioner Customs as per C.B.E. & C. Circular No. , dated 11 -9 -2000 and secondly due to the fact that the identify of the re -exported goods was not specifically certified to be established by the Customs Officers. It is observed from the case records that appellant Vide Letter BKT: IMP: 2012 -13/4019 -2, dated 17 -5 -12 wrote to DC, Custom, Mundra regarding re -export of Imported Butadiene as per Circular No. , dated 11 -9 -2000. A specific request was also made as per this letter to permit re -export by filing shipping bill and to issue re -credit certificates for DEPB Licence. The required S/B No. 9868594, dated 16 -7 -2012 was also filed and re -export allowed. Once a permission has been granted by the DC, Mundra it can not be said that appellant should have applied to the Commissioner for necessary permission. If DC was not the proper officer to allow re -export then he could have put up the file to Commissioner Customs for appropriate orders. Further, it is observed from appellant's letter dated 17 -5 -2012, S/B No. 9868594, dated 16 -7 -2012, shipping invoice packing list etc. that the details of imports made in Bills of entry No, quantity of goods imported and import invoice numbers & the packing lists were also made available to the department at the time of examination of re -exported goods. The DEPB import licences used for the original clearance are also made available. All the documents were made available to the Revenue at the time of re -export of the goods. After seeing all these documents examination order written is "Examination carried out under Supervision of AC (DE) of Superintendent (DE) in the person of CHA REP". Non mention of a specific noting that 'identity established' cannot be made as the grounds that identify of the goods was not established. Rather non -mentioning of any comment on identity of goods established has to be inferred in favour of the appellant in view of the clear intention/request as made in their letter dated 17 -5 -2012 and it has to be held that identity of the goods was established. In view of the above observations appeal filed by the appellant is allowed with consequential reliefs.