Case law

Custom, Excise & Service Tax Tribunal · 2 Jul 2009

Commissioner Of Customs & Central Excise vs M/S Kodak India Ltd

Legal principle

Where the market price of goods as on the date of export cannot be ascertained, no drawback can be allowed under Section 74, and conversion of a free shipping bill to a drawback shipping bill is impermissible as repugnant to Section 76(1) of the Customs Act.

Court decision

The Tribunal allowed the Revenue's appeal and set aside the Commissioner (Appeals) order, holding that any conversion of the free shipping bill to a drawback shipping bill would be repugnant to Section 76(1) of the Customs Act, so the benefit of drawback under Section 74 could not be granted to the respondent; it also held that the DR's purely legal plea under Section 76 could not be brushed aside merely because it was not raised in the appeal memorandum.

Facts

M/s Kodak India Ltd imported a second-hand machine from Australia in October 2002 on loan basis, cleared on payment of appropriate customs duty under bill of entry No. 556 dated 30.10.2002, which noted the unit must be returned to Kodak Australasia. The machine was exported on 22.5.2003 under a free shipping bill (for duty free goods) after examination by the proper officer confirmed it was the same as the one imported, but no drawback was claimed in that shipping bill. On 1.7.2003, long after export, Kodak applied to the Dy. Commissioner of Customs for conversion of the free shipping bill into a drawback shipping bill. The Dy. Commissioner rejected the request for failure to establish identity of the goods to the satisfaction of the Asst./Dy. Commissioner under Section 74, but the Commissioner (Appeals) allowed the conversion, prompting the Revenue's appeal before the Tribunal.

Key provisions