LexCARGILL INDIA PRIVATE LIMITED versus COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, VISAKHAPATNAM-II
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[2015] 12 S.C.R. 917 CARGILL INDIA PRIVATE LIMITED v. COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, VISAKHAPATNAM-11 (Civil Appeal No.4796 of2012) OCTOBER27, 2015 [A. K. SIKRI AND ROHINTON FALi NARIMAN, JJ.] A 8 Customs, Central Excise Duties and Service Tax c Drawback Rules, 1995 - r.12(1)(a) - Circular No.0412004 dated 16.01.2004 - Conversion of Free Shipping Bills into Drawback Shipping Bills- Permissi~ility of- On the basis of r. 12(1 )(a) and on the basis of the Circular - Held: The conversion is not permissible to the assessee on the basis D of r.12(1 )(a) as the ingredients of r.12(1 )(a) are not satisfied by the assessee - However, under the Circular, the Commissioner has the discretion to give duty drawback after examining on request, individual cases, on merits - E Therefore, the provisions of the Circular are applicable to the present case - The case is remitted to the Commissioner to examine and consider the request of the assessee on merits as per the stipulation.contained in the Circular. Disposing of the appeals and remitting the matter, F the Court HELD: 1. A bare read.ing of r.12(1 )(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 demonstrates that conversion of Free Shipping G Bills into Drawback Shipping Bills is permissible only when the exporter is able to satisfy the Commissioner that "for reasons beyond his control" drawback was not claimed. In the instant case, a finding of fact was arrived 917 H • 918 SUPREME COURT REPORTS [2015] 12 S.C.R. A at by the Commissioner (Customs), which has been accepted by the High Court, that no case was made out by the appellant to suggest that claim for duty drawback was beyond the control of the appellant. Merely because the appellant was not aware of the correct legal position, 8 would not afford any such ground that it was beyond his control. [Para 7] [922-G-H; 923-A] 2.1 The Central Board of Excise & Customs, after taking note of the provisions contained in Rule 12(1 )(a) C of the Rules which state that "no provision exists for permitting conversion of free shipping bills into drawback shipping bills" was of the opinion that it was permissible for the Commissioner to examine and consider individual requests on merits and facts in terms D of the aforesaid provisions and the relaxation shall only apply in respect of drawback claims pertaining to All Industry Rates of drawback and it would not apply to brand rate of duty drawback, where rate is claimed in E terms of Rule 6 or Rule 7 of the Customs & Central Excise Duties Drawback Rules. This resulted in issuance of Circular No.04/2004 dated 16.01.2004. [Para 1 O] [924-F- G; 925-8-D] F 2.2 It is not in dispute that the appellant wanted only "All Industry Rates of duty drawback". In view of the above, the reasons given by the Commissioner that the goods were not physically examined would be of no relevance. This view stands substantiated on the G reading of Sections 50, 51 and 113 of the Customs Act. Thus, the provisions of Circular No. 04/2004 dated 16.01.2004 would be applicable in the instant case. The Commissioner may examine and consider the individual request on merits and facts in terms of the aforesaid H provisions. [Paras 11and13] [925-G-H; 930-C] CARGILL INDIA PVT. LTD. v. COMMNR. OF CUSTOMS & 919 CENTRAL EXCISE, VISAKHAPATNAM-11 Nucleus Satellite Communications Vs. CC (Sea A Port) Chennai 2007 (216) ELT 67 (Tri.Chennai) - referred to. Case Law Reference (216) ELT 67 (Tri.Chennai) referred to. Para 8. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4796 of2012 B From the Judgment and Order dated 18.01.2012 of the C High Court of, Judicature, Andhra Pradesh at Hyderabad in· Central Excise Appeal No. 308of2010. WITH Civil Appeal No. 4320 of 2012. V. Sridharan, Sr. Adv., M.P. Devanath, S.Vasudevan, L. · Charanaya, Shagun Arora, Hemant Bajaj, Anandh K., Aditya Bhattacharya, Ad vs., for the Appellants. A. K. Sang hi, Sr. Adv., Arijit Prasad, Vikas Singh Jangra, Rashmi Malhotra, B. Krishna Prasad, Advs., for the Respondents. The Judgment of the Court was delivered by A. K. SIKRI, J. 1. Both these appeals are filed by the same appellant who is an exporter of a variety of food and agriculture related products. During the period 08.11.2007 to 23. 01.2008, D E F the appellant had filed as many as 14 shipping bills for export G of Soyabean meal through Visakhapatnam Port to Vietnam and J
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