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2016 Supreme(Bom) 50
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH.
B.P. DHARMADHIKARI & P.N. DESHMUKH, JJ.
Manawat Plastics Pvt. Ltd. – Appellant
Versus
The Customs, Excise & Service and Ors. – Respondents
CUSTOMS APPEAL NO. 1 OF 2014
Decided On : 05.01.2016.
Shri Varun Sinha with Shri Nitin Rode, Advocates for the appellant.
Shri A. Deshpande, Advocate for respondent No. 2.
Important Point – Truthfulness or otherwise of one set of documents cannot be made applicable to other set of documents merely because such documents had some similarity.
Headnote:Customs Act, 1962 – Section 130 – Central Excise Rules, 2002 – Rule 12 – Export benefit – Denial of benefit under DEEC Scheme – Advance license is to be used in future and is never issued for imports already made or exports effected – It casts an obligation on person using advance license that he exhausts the raw material imported duty free on its basis in manufacturing of a final product & exports it – Each export & shipping bill will constitute an independent document to be understood only in context of data contained therein--No inference can be drawn that formalities shown to be complied with in some other export instance must have been completed in other matter also – No rebate is possible for imported raw material used to manufacture exported finished products – All these facts could have been verified from terms of documents had appellant produced advance licenses on record – When the facts are not clear, this aspect cannot be gone into – Appellant ought to have raised a specific question of law on such facts – No question of law regarding permissibility of conversion of advance licenses into a drawback facility in present facts has been specifically raised – Appeal dismissed.
Result – Appeal dismissed.
B.P. DHARMADHIKARI, J.
The appellant – assessee has filed this appeal under Section 130 of the Customs Act, 1962, assailing the order dated 12.05.2014 passed by Respondent No. 1 – The Customs, Excise & Service Tax Appellate Tribunal (CESTAT) and seeking conversion of Shipping Bill under DEEC Scheme to Drawback Scheme to avail export benefit. The CESTAT in the impugned order mentions that the Commissioner denied the conversion as CBEC Circular No. 4 of 2004 dated 16.01.2004 permitted such conversion only when benefit under Duty Exemption Entitlement Certificate Scheme (DEEC Scheme) is denied by DGFT/ Ministry of Commerce or Customs Authorities.
After hearing the Consultant for the appellant – assessee, the CESTAT took note of the contention that the exported goods were examined, their value was verified and the quantity was taken into consideration while allowing clearance. In para 7, it has taken note of the Circular dated 16.01.2004 (supra) and found that the benefit under DEEC Scheme was not denied to the appellant. Therefore, denial by the Commissioner has been upheld. Thus, only limited issue argued before this Court by the appellant is whether such denial is really necessary.
2. We have heard Shri Sinha with Shri Rode, learned counsel for the appellant – assessee and also Shri Deshpande, learned counsel for respondent No. 2 – Department. After appellant's arguments, learned counsel for the department completed his reply. Then as requested by local counsel for the appellant, date as desired by outstation counsel for the appellant was given to sum up. The said date was 30.10.2015 which happened to be the last working day before Diwali Vacation. On that date, outstation counsel for the appellant could not attend as he was not keeping good health. We, therefore, granted him leave to place on record his rebuttal to reply arguments in writing and closed the appeal for orders. Those written reply arguments have been tendered on 16.11.2015. However, the matter appeared on 17.11.2015, before the Division Bench comprising of B.P. Dharmadhikari and V.M. Deshpande, JJ. This inadvertent listing was pointed out by the parties and accordingly on 17.11.2015, the concerned Bench took note of the fact that the matter was already closed for orders by the earlier bench.
3. The facts giving rise to the controversy can be briefly mentioned from the order passed by the Commissioner on 10.02.2011. The appellant exported Woven PP Bags/ Fabrics under Shipping Bill No. 3542 dated 06.08.2002, No.3657 dated 13.08.2002 and 4251 dated 16.09.2002 under DEEC Scheme. On 20.08.2003, the assessee requested for conversion of these DEEC Shipping Bills to Drawback Shipping Bills claiming its inability to utilize Advance License issued against the above export products for Import of Duty Free raw material. The goods were exported from factory premises of their supporting manufacturer under DEEC Scheme. On 19.04.2004, the assessee requested to consider their request or to issue an appealable order. Consequently, a show cause notice dated 24.05.2004 asking them as to why their request dated 20.08.2003 should not be rejected. This show cause notice was adjudicated by the then Commissioner on 22.07.2004.
4. This Commissioner has found that since weighment was not done, the request for conversion could not have been accepted. Against this order dated 22.07.2004, the assessee filed Appeal before the CESTAT. On 09.06.2005, CESTAT remanded the matter for fresh adjudication. The Commissioner again rejected conversion on 05.10.2006. This order was challenged before the CESTAT and on 11.05.2007, CESTAT set it aside. The order of CESTAT was questioned before this Court by the department and on 17.12.2008, Appeal was partly allowed. The matter was sent back to the Tribunal for de novo consideration. The Tribunal, in turn, on 08.07.2010, remanded the matter to the A
