CARGILL INDIA PRIVATE LIMITEDversusCOMMISSIONER OF CUSTOMS & CENTRAL EXCISE, VISAKHAPATNAM-II

                    [2015] 12 S.C.R. 917


             CARGILL INDIA PRIVATE LIMITED                        A

                               v.
  COMMISSIONER OF CUSTOMS & CENTRAL EXCISE,
              VISAKHAPATNAM-11
                                                                  8
               (Civil Appeal No.4796 of2012)
                     OCTOBER27, 2015
   [A. K. SIKRI AND ROHINTON FALi NARIMAN, JJ.]
      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 1O] [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
                                                                 B
  (216) ELT 67 (Tri.Chennai)       referred to. Para 8.

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
4796 of2012

    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
                                                                 D
    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.                   E

   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                   F

     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,
the appellant had filed as many as 14 shipping bills for export G
of Soyabean meal through Visakhapatnam Port to Vietnam
and Japan. While filing the shipping bills, the appellant did not
claim any duty drawback under the Customs, Central Excise
Duties and Service Tax Drawback Rules, 1995 (hereinafter
 referred to as 'the Rules') and instead free shipping bills for H
920         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


 A export were filed. On 06.08.2008, the appellant submitted an
      application to the Commissioner (Customs) for conversion of
      the said free shipping bills into drawback shipping bills under
      Rule 12(1 )(a) of the Rules. At the time of arguments, before
      the Commissioner, the appellant also referred to Circular No.
 8    04/2004 dated 16.01.2004 on the basis of which it was
      arguned that even the conversion of free shipping bills into
      drawback shipping bills was not needed as the said circular,
      under the given circumstances, gave discretion and authorized
 c    the Commissioner to give the duty drawback even without
      conversion.

         2. The Commissioner (Customs) after hearing the
   appellant rejected the request for conversion vide order dated
   24.10.2008. Insofar as, the request for conversion is
 0
   coni:;erned, the Commissioner held that under Rule 12(1)(a)
   of the Rules the request could be made for change/conversion
   only for the reasons becau5e of which the shipping bills filed
   earlier were beyond the control of the exporter and since the
 E appellant could not satisfy this requirement, it was not
   permissible for him to seek conversion of the free shipping
   bills into duty drawback bills under the aforesaid Rules.
   Referring to Circular No. 04/2004 dated 16.01.2004, the
   Commissioner opined that since the goods under free shipping
 F bills were not physically examined and there was no evidence
   to support the description, quantity and value in the absence
   of physical examination of the goods which is the case of
   regular drawback shipping bills, the benefit of the said circular
   also could not be given to the appellant.
 G
       3. The appellant challenged the aforesaid order by filing
   an appeal before the Central Excise and Services Tax
   Appellate Tribunal (CESTAT). The CESTAT vide its final order
   dateid 23.12.2009 set aside the order of the
 H Commissioner(Customs) holding that the appellant was
 CARGILLINDIAPVT. LTD. v. COMMNR. OF CUSTOMS&                         921
  CENTRAL EXCISE, VISAKHAPATNAM-11 [A.K.SIKRl,J.]

entitled to get the bills converted from free shipping bills to A
duty drawback bills in terms of Rule 12(1 )(a) of the Rules,
ingredients whereof are satisfied by the appellant.        ·

     4. The Department challenged the aforesaid order by filing
an appeal under Section 35 of the Central E:xcise Act read B
with s.ection 130 of the Customs Act. In this appeal, the
Department has succeeded. A perusal of the order of the High
Court would show that the appeal of the Department is allowed
for reasons recorded in CEA No. 280/2010. Copy of the order
passed in CEA No. 280/2010 has also been annexed along C
with the present appeal filed by the appellant challenging the
order of the High Court.

    5. We may record here that almost on identical facts the
conversion sought by the appellant is disallowed in other D
appeals.

     From the aforesaid it would be clear that two issues arise
for consideration:
                                                                      E
      1. Whether the appellant is entitled to claim conversion
     .of free shipping bills into drawback shipping bills on the
      basis of Rule 12(1)(a) of the Rules?

     2. If the answer to the aforesaid question is in the neg a-       F
     tive, whether the appellant is entitled to the benefit of duty
     drawback on the strength of.Circular No. 04/2004 dated
     16.01.2004 even without seeking conversion?

    6. Insofar as the first issue is concerned, after going G
through the order of the High Court, we are in complete
agreementtherewith. Rule 12(1)(a) of the Rules read as under:

      8. "Rule 12. Statement/Declaration to be made on
      exports other than by Post.-(1) In the case of exports
      other than by post, the exporters shall at the time of H
922       SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A        export of the goods -

         ·(a) state on the shipping bill or bill of export, the
         description, quantity and such other particulars as are
         necessary for deciding whether the goods are entitled
B        to drawback, and if so, at what rate or rates and make a
         declaration on the relevant shipping bill or bill of export
         that-

         (i) a claim for drawback under these rules is being made;
c        (ii) in respect of duties of Customs and Central Excise
         paid on the containers, packing materials and materials
         and the service tax paid on the input services used in the
         manufacture of the export goods on which drawback is
         being claimed, no separate claim for rebate of duty or
D
         service tax under the Central Excise Rules, 2002 or any
         other law has been or will be made to the Central Excise
         authorities.
         Provided that if the Commissioner of Customs is satisfied
 E       that the exporter or his authorised agent has, for reasons
         beyond his control, failed to comply with the provisions
         of this clause, he may, after considering the
         representation, if any, made by such exporter or his
         authorised agent, and for reasons to be recorded,
 F
         exempt such eporter or his authorised agent from the
         provisions of this clause."

       7. A bare reading of the aforesaid Rule demonstrates that
G such conversion 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 offact is arrived at by the Commissioner (Customs),
  which has been accepted by the High Court also, that no case
H was made out by the appellant to suggest that claim for duty
  drawback was beyond the control of the appellant. It is rightly
CARGILL INDIA PVT. LTD. v. COMMNR. OF CUSTOMS &                       923
 CENTRAL EXCISE, VISAKHAPATNAM-11 [A.K.SIKRl,J.]

pointed out that merely because the appellant was not aware A
of the correct legal position would not afford any such ground
that it was beyond his control.

     8. Coming to the second issue as noted above, the
appellant had made a specific plea before the B
Commissioner(Customs) at the time of personal hearing to
the effect that even without the request for conversion of free
shipping bills into drawback shipping bills, the appellant was
entitled to duty drawback claim having regard to Circular No.
04/2004 dated 16.01.2004. The appellant had also cited the C
judgment of the Tribunal in Nucleus Satellite Communications
 Vs. CC (Sea Port) Chennai (2007(216)ELT 67(Tri. Chennai)J.
This plea of the appellant was, however, rejected in the
following words:
                                                                      D
      "Further Board's Circular No. 04/2004 - Cus dated
     16.01.2004 of F.No.609/176/2002-DBK states that, "no
     provision exists for permitting conversion of free shipping
     bills into drawback shipping bills": It also states that there
     is no need to allow conversion as Commissioner may               E
     examine and consider individual requests on merits and
     facts in terms of the provisions as per the Customs and
     ~entral Excise duties and Service tax Drawback Rules,
     1995. In the subject case, the goods under free shipping
     bills were not physically examined. Let export order was         F
     given, EGMs were closed in the EDI system and the EP
     copies of the shipping bills were also generated. The
     bills are no more alive and are in the current status of
     history. As per the Rule 13(1) of the Customs, Central           G
     Excise Duties and Service Tax Drawback Rules, 1995,
     in respect of manual shipping bill whenever the exporter
     files drawback shipping bills, Triplicate copy of the
     Shipping bill itself is a claim for Drawback on the date
     on which the Proper officer of Customs makes an order            H
     permitting the clearance and loading of the goods for
924        SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A         exportation under Section 51 of the Customs Act, 1962.
          In respect to EDI shipping bill subject to the provisions of
          Rule 13(2), 13(3) and 13(4) the electronic shipping bill
          itself shall be treated as the claim for drawback. In this .
          case, the department did not prevent him from filing
 B
          drawback shipping bills nor any valid reasons exist for
          not filing the drawback claim by the exporter himself. In
          view of this, question of conversion does not arise.
          Further, the exporter, after filing free shipping bills in EDI,
          had submitted his claim through their lawyer for
c
          conversion of the same into drawback shipping bills after
          a lapse of over six to eight months without assigning any
          valid reasons for such a delay. Moreover, there is no
          evidence to support the description, quantity and value
 D        as the goods were not subjected to physical examination
          as in the case of regular drawback shipping bills."

        9. Since the Tribunal had accepted the appeal of the
   appellant on the first issue namely permitting the appellant to
 E seek conversion under Rule 12(1)(a) of the Rules, the Tribunal
   did not go into this issue at all. It appears that when the matter
   was argued before the High Court, the High Court also confined
   the discussion only on the first issue. Since on the first issue
   we have accepted the view taken by the High Court, it becomes
 F necessary to deal with this issue thougl1 it has not been gone
   into either by the Tribunal or the High Court.

         10. After perusing Circular No. 04/2004 dated 16.01.2004,
   along with some relevant provisions of the Customs Act, we
 G find that the treatment given by the Commissioner to the
   aforesaid argument is not legally tenable. Circular No. 04/2004
   refers to the discussion that was held in the Conference of
   Chief Commissioner on Tariffs and allied matters held on 25th/
   26 1h September, 2003 and notes thafin the said conference it
 H was felt that in cases where the exporters had filed free                ~
   shipping bills on their own, it would not be advisable to permit
 CARGILL INDIA PVT. LTD: v. COMMNR. OF CUSTOMS &                     925
  CENTRAL EXCISE, VISAKHAPATNAM-11 [A.K.SIKRl,J.]

such conversion. This view of the Commissioner's Conference A
was deliberated by the Central Board of Excise & Customs
and the issue was reexamined, which resulted in the issuance
of the aforesaid circular. After taking note of the provisions
contained in Rule 12(1 )(a) of the Rules which undoubtedly state
that "no provision exists for permitting conversion of free 8
shipping bills into drawback shipping bills", the Board was
still of the opinion that it was permissible for the Commissioner
to examine and consider individual requests on merits and
facts in terms of the aforesaid provisions and the relaxation c
shall cmly 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 terms of Rule
6 or Rule 7 of the Customs & Central Excise Duties Drawback
Rules. The clarification is given precisely in the following terms: o

      "In view of above, it is clarified that there is no need for
      allowing conversion. However, in terms of the proviso to
      Rule 12(1)(a) of the Customs and Central Excise Duties
      Drawback Rules, 1995, the Commissioner may examine             E
      and consider individual requests on merits and facts in
      terms of the aforesaid provisions. The aforesaid
      relaxation shall onlv 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        F
      claimed in terms of Rule 6 or Rule 7 of the Customs &
      Central Excise Duties Drawback Rules."

     11. It is not in dispute, as has been recorded by the Tribunal
as well, that the appellant wanted only "All Industry Rates of G
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 of ours further stands
substantiated on the reading of Sections 50, 51and113 of
the Customs Act. Sections 50 and 51 of the Customs Act are H
926         SUPREME COURT REPORTS                     [2015] 12 S.C.R.


A     re-produced for ready reference as under:

            "50: Entry of goods for exportation.-(1) The exporter of
           any goods shall make entry thereof by presenting to the
           proper officer in the case of goods to be exported in a
B          vessel or aircraft, a shipping bill, and in the case of goods
           to be exported by land, a bill of export in the prescribed
           form.

           (2) The exporter of any goods, while presenting a
c          shipping bill or bill of export, shall at the foot thereof make
           and subscribe to a declaration as to the truth of its
           contents.

           51. Clearance of goods for exportation.-Where the
0          proper officer is satisfied that any goods entered for
           export are not prohibited goods and the exporter has
           paid the duty, if any, assessed thereon and any charges
           payable under this Act in respect of the same, the proper
           officer may make an order permitting clearance and
 E         loading of the goods for exportation."

        12. What the aforesaid provisions state, particularly
   Section 51, that the proper officer is to satisfy itself only to the
   extent that the goods which are entered for export are not
 F prohibited goods and the exporter has paid the duty at the
   time of clearance of the goods meant for export and therefore,
   the inspection is confined to the aforesaid aspect viz. the goods
   are not prohibited. Since in the present case, goods are not
   dutiable, no duty has to be paid. Therefore, there was no
 G reason for denying the benefit only on the ground that at the
   time when the appellant had sought the duty drawback, the
   goods could not be physically examined. This position is further
   supported when we compare the fundamental provisions of
   Section 113 with the amendment to the said Section carried
 H out by the Finance Act, 2003 (w.e.f. 141h May, 2003). In the
CARGILL INDIAPVT. LTD. v. COMMNR. OF G:;USTOMS &              927
 CENTRAL EXCISE, VISAKHAPATNAM-11 [A.K.SIKRl,J.]

instant case amended provisions are applicable. The A
provisions of unamended and amended Section 113 read as
follows:

    "Unamended Section 113. Confiscation of goods
    attempted to be improperly exported, etc.-The following B
    export goods shall be liable to confiscation:-@} any
    goods attempted to be exported by sea or air from any
    place other than a customs port or a customs airport
    appointed for the loading of such goods;{Ql any goods
    attempted to be exported by land or inland water through C
    any route other than a route specified in a notification
    issued under clause (c) of section 7 forthe export of such
    goods;.{gl any dutiable or prohibited goods brought near
    the land frontier or the coast of India or near any bay,
                                                                 D
    gulf, creek ort[dal river for the purpose of being exported
    from a place other than a land customs station or a
    customs port appointed for the loading of such goods;@
    any goods atte!11pted to be exported or brought within
    the limits of any customs area for the purpose of being E
    exported, contrary to any prohibition imposed by or under
    this Act or any other law for the time being in force;.{fil
    any dutiable or prohibited goods found concealed in a
     package which is brought within the limits of a customs
    area for the purpose of exportation;ffi any dutiable or F
     prohibited goods which are loaded or attempted to be·
     loade.d in contravention of the provisions of section 33
     or section 34;,(g} any dutiable or prohibited goods loaded
     or attempted to be loaded on any conveyance, or water-
     borne, or attempted to be water-borne for being loaded G
     on any vessel, the eventual destination of which is a place
     outside India, without the permission of the proper
     officer;@ any dutiable or prohibited goods which are not
     included or are in excess of those included in the entry
      made under this Act, or in the case of baggage in the H
928    SUPREME COURT REPORTS                  [2015] 12 S.C.R.

A     declaration made under section 77;

      (i) any dutiable or prohibited goods 1[or goods entered
      for exportation under claim for drawback] which do not
      correspond in any material particular with the entry made
B     under this Act or in the case of baggage with the
      declaration made under section 77 in respect thereof;

      2[(ii) any goods entered for exportation under a claim for
      drawback which do not correspond in any material
c     particular with any information furnished by the exporter
      or manufacturer under this Act in relation to the fixation
      of rate of drawback under section 75;].ill any goods on
      which import duty has not been paid and which are
      entered for exportation under a claim for drawback under
D     section 74;.{!sl any goods cleared for exportation under a
      claim for drawback which are not loaded for exportation
      on account of any willful act, negligence or default of the
      exporter; his agent or employe~. or which after having
      been loaded for exportation are unloaded without the
E
      permission of the proper officer;

      1[(I) any specified goods in relation to which any
      provisions of Chapter IVB or of any rule made under this
      Act for carrying out the purposes of that Chapter have
F     been contravened.]

      "Amended Section 113. Confiscation of goods
      attempted to be improperly exported, etc.-The following
      export goods shall be liable to confiscation:-@). any
G     goods attempted to be exported by sea or air from any
      place other than a customs port or a customs airport
      appointed for the loading of such goods;@ any goods
      attempted to be exported by land or inland water through
      any route other than a route specified in a notification
H     issued under clause (c) of section 7 forthe export of such
CARGILL INDIAPVT. LTD. v: COMMNR. OF CUSTOMS &                       929
 CENTRAL EXCISE, VISAKHAPATNAM-11 [A.K.SIKRl,J.]

    goods;.(9any1 [***]goods brought near the land frontier          A
    or the coast of India or near any bay, gulf, creek or tidal
    river for the purpose of being exported from a place other
    than a land customs station or a c.ustoms port appointed
    for the loading of such goods;@ any goods attempted
    to be exported or brought within the limits of any customs       8
     area for the purpose of being exported, contrary to any
     prohibition imposed by or under this Act or any other law
    for the time being in force;.(fil any 1[***] goods found
     concealed in a package which is brought within the limits       c
     of a customs area for the purpose of exportation;ffi any
   . 2[***] goods which are loaded or attempted to be loaded
     in contravention of the provisions of section 33 or section
     34;,(gl any 3[***] goods loaded or attempted to be loaded
     on any conveyance, or water-borne, or attempted to be           D
     water-borne for being loaded on any vessel, the eventual
     destination of which is a place outside India, without the
     permission of the proper officer;{bl any 4[***] goods which
     are not included or are in excess of thos~ included in the
     entry made under this Act, or in the case of baggage in         E
     the declaration made under section 77. 5[(i) any goods
     entered for exportation which do not correspond in
     respect of value or in any material particular with the entry
     made under this Act or in the case of baggage with the
     declaration made under section 77;] 6[(ii) any goods            F
  . entered for exportation under a claim for drawback which
     do not correspond in any material particular with any
     information furnished by the exporter or manufacturer
     underthisAct in relation to the fixation of rate of drawback
                                                                     G
     under section 75;].ill any goods on which import duty has
     not been paid and which are entered for exportation under
     a claim for drawback under section 74;00 any goods
     cleared for exportation 7[***] which are not loaded for
     exportation on account of any willful act, negligence or        H
     default of the exporter; his agent or employee, or which
930          SUPREME COURT REPORTS                [2015] 12 S.C.R.


A           after having been loaded for exportation are unloaded
            without the permission of the proper officer;

            8[(1) any specified goods in relation to which any
            provisions of Chapter IVB or of any rule made under this
B           Act for carrying out the purposes of that Chapter have
            been contravened.]

       13. We thus hold that the provisions of Circular No. 04/
  2004 dated 16.01.2004 would be applicable in the instant
c case. The Commissioner may examine and consider the
  individual request on merits and facts in terms of the aforesaid
  provisions. We remit the case back to the Commissioner to
  examine and consider the request of the appellant on merits
  as per the stipulation contained in Circular No. 04/2004 dated
D 16.01.2004. The Commissioner shall decide the same, after
  giving opportunity of hearing to the respondent within a period
  of three months from the date of receipt of the copy of this
  Judgment.

 E         14. Both these appeals are, accordingly, disposed of.

      Kalpana K. Tripathy                         Appeals disposed of.