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Judgment
The appellant is engaged in the manufacture of exports of knitted and woven garments. During the months of July and August 2008, they imported the authorized quantity of "100% cotton yarn dyed fabric GSM 100" against Advance Authorization Licence dated 08.07.2008 through Chennai Seaport which is the port of registration. They exported the manufactured finished products in the nature of "Men's Boxer shorts" under 13 shipping bills, out of which 12 were in the month of September 2008 and 1 in the month of November 2008. The exports were made through CFS, Chettipalayam, Tirupur.
The consignments were allowed for export after drawing samples and the shipping bills were assessed provisionally. Samples were sent to Textile Committee for Blend test and confirmation of GSM. The Textile Committee confirmed the content of the fabrics and GSM for 9 shipping bills. The test reports for the remaining shipping bills were not furnished by the Textile Committee. The Deputy Commissioner of Customs vide order dated 30.04.2011 finalized the assessment without admitting the claim of the appellants in respect of 4 shipping bills for which lab test report was not received. Against this, appellants filed appeal before the Commissioner (Appeals) and vide OIA No.17/2011-Cus. dated 30.01.2012 the Commissioner (Appeals) remanded the matter for reconsideration.
In such re-consideration of the matter, the appellant filed several representations to obtain the test reports from the Textile Committee. Vide letter dated 30.12.2012, the Textile Committee furnished test reports pertaining to Shipping Bill No.16322, 16268 and 16065 all dated 08.09.2008 and informed that they could not trace out the Test Report Nos.92 and 93 pertaining to the Shipping Bill No.20219/20.11.2008. In such de novo proceeding, the appellant relied upon Board's Circular No.79/2002-Cus. dated 28.11.2002, wherein the in para-3, it reads :
"where samples were drawn for test but test report is not available, declaration given by the exporters or earlier test report available, if any may be accepted by Customs."
They requested the adjudicating authority to decide the finalization of the balance shipping bills / consignments on the basis of available 12 test reports. However, the original authority vide Order-in-Original No.7/2013 (P.A) dated 12.09.2013 admitted the appellant's claim of use of duty free imported fabrics in 12 shipping bills and did not admit the use of duty free imports in regard to Shipping Bill No.20219/20.11.2008.
Aggrieved by the above order, the appellant filed appeal before the commissioner (Appeals) who upheld the same and rejected the appeal filed by the appellant. The present appeal is filed by the appellant being aggrieved by such decision of the Commissioner (Appeals).
Learned Counsel Shri M.N. Bharathi appeared and argued for the appellant. He submitted that much effort was taken to trace out the lab test report with regard to samples drawn in respect of Shipping Bill No.20219/20.11.2008. The lab test report is not traceable and is lost at the end of the Textile Committee. He relied upon Board's Circular No.79/2002-Cus. dated 28.11.2002 to argue that it is clarified by the Board that where test report is not available the declaration given by the exporters or other test report available should be accepted for finalization of assessment. The relevant para of the circular reads as follows :
".......3. Excepting the aforesaid types of cases, in all other cases logging of all pending DEEC books shall be completed on the basis of original triplicate copy of DEEC shipping bill and bank realisation certificate. In cases pertaining to export of chemicals etc., where samples were drawn for test but test report is not available, declaration given by the exporters or earlier test report available, if any, may be accepted by Customs, in cases where original triplicate copy of the shipping bill is not available, Custom House shall issue duplicate original triplicate of the shipping bill as per rules on the basis of records available with the exporter/Customs."
Further that in the present case, Export Obligation Discharge Certificate (EODC) has been issued and the bond has also been cancelled. The said documents are furnished along with the synopsis. The bond having been cancelled, there is no situation for raising any further duty demand. He prayed that appeal may be allowed.
Ld. A.R Ms. Sridevi Taritla appearing for the Revenue supported the findings in the impugned order. She further submitted that the appellant has been issued Export Obligation Discharge Certificate (EODC) and the bond furnished by the appellant also stands cancelled.
Heard both sides.
The issue is only with respect to finalization of duty in respect of one shipping bill. The reason why the department is not able to accept the claim of the appellant that imported goods were used for manufacture of finished products, is the non-availability of the test report. From the grounds stated in the appeal, it is seen that much effort has been taken by the appellant by issuing several representations to the authorities to trace out the lab test report. The Board in its circular has clarified that in such situation when the test report is not available, the duty has to be finalized on the basis of available test reports.
Be that as it may, it is seen that appellant has been issued EODC and the Bond has been cancelled and returned to them. The department vide their letter dated 30.08.2014 has, inter alia, stated as under :
"3. The Assistant Commissioner of Customs, Chennai Seaport vide letter F.No.S.Misc.60/2014-Gr.7-DEEC dated 31.7.2014 had stated that ADGFT has redeemed the licence 0410097036 dated 8.7.2008 on 6.3.2014. Hence, recovery of duty with interest at this stage will not arise as the export obligation has been fulfilled and the said authorization redeemed. Copy of letter received from Chennai Custom House along with ADGFT letter is forwarded herewith."
From the facts and evidence placed before me, and more specifically observing that the bond has been cancelled and returned to the appellant, nothing further survives. The impugned order is set aside. Appeal is allowed with consequential relief, if any, as per law.
(Pronounced in court on 29.10.2021)