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Judgment
Appeal has been filed against order-in-appeal No.42/2008 dated 27.06.2008 in terms of which the appellant's request for conversion of shipping bills
from 100% EOU scheme into drawback scheme was rejected.
The facts of the case, in brief, are as under:
Appellant (a 100% EOU) filed four shipping bills on 07.03.2008, 11.03.2008 and 13.03.2008. Later on, it requested for conversion of the said shipping
bills into drawback shipping bills on the ground that it had applied for debonding w.e.f. 04.03.2008 although, No Objection Certificate (NOC) was
given by Excise department on 18.03.2008. The Commissioner did not accept, its repeat.
When the case was taken up, none appeared on behalf of the appellant nor any request for adjournment was received. Accordingly, we proceed to
decide the case on merit.
The Commissioner in its order has observed that it has been clarified by CBEC that such conversion should only be allowed when the benefit of an
export promotion scheme claimed by the exporter at the time of exportation has been denied by the DGFT and I or Customs due to any dispute and
that since in the present case there was no such dispute and the benefit of 100% EOU claimed by the appellant was not denied by any authority, its
request for conversion of the shipping bills into drawback shipping bills cannot be accepted. The Commissioner also noted that Development
Commissioner, NSEZ, Noida issued the final debonding on 31.03.2008 and thus upo 31.03.2008 the appellant was 100% EOU and a 100% EOU does
not fulfil the condition of availing of drawback and thus was not eligible to file drawback shipping bills.
Ld. DR cited the judgment of Delhi High Court in the case ofT erra Films Pvt. Ltd. vs. Commissioner of Customs - 2011 (268) ELT 443 (Del.) in
support of the Commissioner's order. In the case of Terra Films (supra) the Delhi High Court dealing with request for change of shipping bill from
DEPB I DEEC to DEEC/DEPB-cum drawback inter-alia observed th""afto r enabling an exporler to draw the benefits of any scheme, not only
physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export
as also their examination by the customs necessarily required to be done. In the given factual situation that was rightly held to be
impossible"". The Hon'ble High Court further observed that ""an exporter cannot claim the change of the shipping bill from one scheme to the other in
a routine manner and as a matter of right - the proper officer has the discretion to permit or deny it - though such discretion is to be exercised
judiciously"". As has been discussed earlier the Commissioner while issuing the impugned order adopted judicious approach and was in no way
arbitrary or unreasonable.
In the light of the foregoing, we do not notice any such infirmity in the reasoning of the Commissioner so as to require any appellate intervention.
The appeal is therefore dismissed.