CIPLA LTD. Vs. COMMR. OF CUS. (EXPORT), ACC, MUMBAI-III
LAWS(CE)-2015-6-12
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 17,2015

CIPLA LTD. Appellant
VERSUS
Commr. Of Cus. (Export), Acc, Mumbai -Iii Respondents

JUDGEMENT

ANIL CHOUDHARY,J - (1.)THE appellant M/s. Cipla Ltd. has filed the present appeal against Order -in -Appeal No. 485/Mum -III/2012/dated 26 -11 -2012 passed by the Commissioner of Customs (Appeals), Mumbai -III by which registration of DEPB licence and DEPB script has been refused on the ground that the re -export of the same has not been taken place from the same Port, as the goods were imported.
(2.)The brief facts are that the appellants made import under 2 separate Bills of Entries by debiting of the DEPB Licenses at Air Cargo Complex, Mumbai which were re -exported and permission was granted by the JNPT Customs authorities under Section 74 of the Customs Act, 1962, subsequent to verifying that the goods exported were the same as imported by the Appellant. Thereafter, 2 Certificates were issued for refund of 98% of the duty amount debited/paid.
"1. Bill of Entry No. 115293, dated 4 -5 -2007

The above -mentioned goods were re -exported on 11 -6 -2007. The Certificate dated 21 -4 -2009 was issued by the Asstt. Commissioner of Customs, Gr./VA, JNCH, Sheva towards the refund of duty eligible to be credited, which was addressed to the Jt. DGFT, Churchgate, Mumbai.

Bill of Entry No. 598957, dated 9 -6 -2008

The above -mentioned goods were re -exported on 25 -11 -2008. The Certificate dated 3 -6 -2009 was issued by the Asstt. Commissioner of Customs, Gr. II, C & D, JNCH towards the refund of duty eligible to be credited which was addressed to the Jt. DGFT, Churchgate, Mumbai."

Accordingly the Appellant furnished both the Certificates before the DGFT authorities for issuing of necessary DEPB Scrips.

1.1 The DGFT authorities were pleased to issue 2 DEPB Scrips bearing DEPB Scrip No. 0310533116/2/06/00, dated 10 -8 -2009 and DEPB Scrip No. 0310532565/2/06/00, dated 6 -8 -2009 for re -crediting of the duty amount.

1.2 The appellant approached the O/o. the Commissioner of Customs (Export), ACC, Mumbai for registering of the DEPB Scrips which were issued vide communication, dated 26 -11 -2010 and 21 -4 -2009. The Addl. Commissioner of Customs informed the appellant that as the re -export have not taken from the same Port, which is a requirement in terms of DOR guidelines i.e. C.B.E. & C. Circular No. , dated 11 -9 -2000. Accordingly, the Customs department refused to register the DEPB scrips.

1.3 Being aggrieved, the appellant preferred the appeal before the learned Commissioner (Appeals), who vide the impugned order dated 26 -11 -2012 rejected the appeal upholding the findings of the Additional/Assistant Commissioner of Customs. Being aggrieved, the appellant is before this Tribunal.

2. The learned Counsel draws my attention towards the certificate issued dated 21 -4 -2009 and 3 -6 -2009 by which the Assistant Commissioner of Customs addressed to the Jt. DGFT certifying that in respect of the DEPB scrips, the amount of duty debited, the appellant is entitled to re -credit for 98% of the amount and further certifying that the amount of duty paid in cash have already been given by way of drawback. The appellant says that once the Customs authority certified that the same goods which were imported earlier have been reexported and the Customs department have issued certificate so as to enable the appellant to obtain fresh DEPB certificate as entitled. Thus, refusal to register the same is bad and it amounts to taking away by the other hand what has been given by one hand.

2.1 Learned Counsel further relies on the Customs Circular No. 71/2002, dated 1 -11 -2002 wherein the Board after considering the difficulty faced by the importer in availing duty drawback in case of re -export under the provisions of Section 74 have clarified that so long as the conditions specified under Section 74 of the Customs Act, re -export of imported goods on Drawback of Customs Duties Rules, 1995 and relevant notification issued under Section 74 are fulfilled. Drawback under Section 74 should be allowed on merits without insisting on re -export of goods from the same Port. It was further directed that suitable Public Notice for the guidance of Trade and Standing Order for customs field officers may be issued. Accordingly, the Counsel prays for setting aside the refusal order and allowing to register the DEPB scrip.

(3.)THE learned AR relies on the impugned order and reiterates the findings of the lower authorities. Having considered the rival contentions, I am satisfied that the reexport have been done as required under the provisions of Section 74 of the Customs Act. I also find that all the facts have also been recorded in both certificates dated 21 -4 -2009 and 3 -6 -2009 issued by the Assistant Commissioner of Customs addressed to the Joint DGFT. Further, in view of the Circular No. 71/2002 -Cus. which gave specific direction to the Customs authorities not to insist for reexport from the same Port in case of duty drawback. Accordingly, I hold that the said Circular is binding on the Revenue authorities, and the learned Commissioner is in error in refusing to allow registration of the DEPB scrip issued. Thus, the appeal is allowed. I further direct the Commissioner of Customs (Export), ACC, Mumbai to register both the DEPB scrips being No. 0310533116/2/06/00, dated 10 -8 -2009 and DEPB Scrip No. 0310532565/2/06/00, dated 6 -8 -2009, which were earlier received vide communication dated 26 -11 -2010.
(Dictated and pronounced in Court.)

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