2004 (97) ECC 147 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(S)

Shri P.S. Bajaj, Member (J)

Hero Cycles Ltd.

Versus

CC, Shillong

ROM C/54/2004, Appeal No. C/540/2003-NB(S)

[Arising out of Order-in-Original No. VIII(20)01/Cus/DBK/1997/7907-8 dated 30.9.03 passed by the Commissioner of Customs (Prev.) Shillong]

Misc Order No. M/174/04-NB/SM, dt. 16.7.2004, Certified on 3.8.2004

Rectification of Mistake

The company M/s Evergreen Industries could not be taken as the exporter of the goods and this mistake of holding that company as exporter is apparent on the record and deserves to be corrected. Therefore, ROM application is allowed.

Draw Back Shipping Bill

Request for conversion of duty free shipping bill to draw back shipping bill has been turned down in the impugned order. The appellants were entitled to draw back on the export of the goods if the words duty free shipping bills had not been mentioned therein. Their prayer for conversion of those bills to draw back bills deserves to be allowed.

Appeal is allowed

PRESENT :

Shri Sudhir Malik, Consultant for the appellant.

Shri Valte, SDR for the respondent.

Case Cited :

Smruti Pottery Works v. Commissioner of Customs, Kandla, 2004 (91) ECC 701 (T)........... [Para 5]

Per : P.S. Bajaj

Heard. Through the present application, the appellants have sought rectification of the mistake in the impugned final order dated 9.2.2004 vide which their claim for conversion of the free Shipping Bill to duty Drawback bill was declined and the Order-in-Original was affirmed.

2. I have heard both the sides. The facts are not at all in dispute. The appellants cleared the goods to M/s. Evergreen Industries, Myanmar. They prepared the invoices and the shipping bills in favour of the said company and showed/indicated the name of that company, as consignee of the goods. The shipping bills were also signed by the representative of the company M/s Evergreen Industries at the time of presentation. These facts stand proved from the certificate issued by that company that the shipping bills were presented by their representative only on behalf of the appellants M/s Hero Industries who were the consigners of the goods and that they had only purchased the goods. The appellants in respect of those exported goods has already been received payment from M/s Evergreen Industries, Mynamar. In these circumstances, in my view, the company M/s Evergreen Industries could not be taken as the exporter of the goods and this mistake of holding that company as exporter is apparent on the record and deserves to be corrected. Therefore, ROM application is allowed.

3. I have heard both the sides on merits of the appeal. The appellants have directed this appeal against the impugned Order-in-Original vide which their request for conversion of duty free shipping bill, to draw back shipping bill has been turned down.

4. The undisputed facts of the case are these:

The appellants exported the goods to M/s Evergreen Industries, Myanamar through two duty free shipping bills dated 25th and 26th, May 1995. The receipt of the goods by that company against payment had been accepted. The shipping bills were signed by the representative of that company of behalf of the appellants, as is evident from the certificate issued by that company.

5. The appellants were entitled to drawback on the export of the goods if the words duty free shipping bills had not been mentioned therein. Their prayer for conversion of those bills to draw back bills keeping in view the facts and circumstances, deserves to be allowed. In an identical case of Smruti Pottery Works v. Commissioner of Customs, Kandla, 2004 (91) ECC 701 (T) : 2004 (163) ELT 184, the Tribunal allowed the conversion of free shipping bills to drawback bills. The ratio of law laid down in that case is fully applicable to the case of the appellants.

6. In the light of the discussion made above, the impugned order of the Commissioner is set aside and the appeal of the appellants is allowed with consequential relief, as per law.

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