ORDER
S.L. Peeran, Member (J)
1. The appellants have challenged the confirmation of duty in Order-in-Original No. 180/2004 dated 23-9-2004 by the Commissioner of Customs. The appellant is a 100% EOU. They exported frozen marine products in terms of the shipping bill noted in the impugned order. The Revenue proceeded against the exporter on the basis of the verification of shipping bills, it was noticed that DGFT had retuned the licence with the remark “Customs to verify the description of export product at the time of registration since it appears that the word preserved is omitted while generating the Shipping Bill” after granting full duty credit of 3%. It is noted that the exporter claimed DEPB under SI. No. 2 of Group Code 66 with credit of 3% of FOB. The description of the same reads as “Fish, Crustaceans, Mulluses, aquatic invertebrates and any aquatic animal product of marine or fresh water organs in processed, preserved and frozen form”. It was stated that the licence produced by the authorized CHA for verification and for allowing permission to give full duty credit. Revenue took the stand that these items were not processed and preserved and hence, they were not eligible for higher DEPB credit. It was contested by the appellants on the ground that the item is processed and preserved in terms of all the documents filed by them. There was only an error occurred in furnishing the details. They filed several pieces of evidence to substantiate their plea that what was exported was processed and preserved items and they were eligible for higher DEPB credit. This plea has been turned down by the Revenue and hence, this appeal.
2. The learned Counsel filed large number of citations and relied on the several pieces of evidence to show that what was exported was processed and preserved items and in terms of the Development Commissioner’s order, they were eligible for the higher credit. It was also submitted that the Revenue was not empowered to overrule the higher credit already granted by the Development Commissioner. In support of their plea, the following rulings have been relied on.
(i) Adani Exports Ltd. v. CC, Cochin 2006 (199) E.L.T. 613 (Tri.-Bang.)
(ii) Vishal Exports Overseas Ltd. v. CC, Cochin 2006 (202) E.L.T. 101 (Tri.-Bang.)
(iii) Pradip Polyfils Pvt Ltd. v. UOI 2004 (173) E.L.T. 3 (Bom.)
(iv) Avon Appliances v. CC, Mumbai-II
(v) Suresh Enterprises v. CC, Mumbai
(vi) Polynova Chemicals Industries v. CC, Mumbai
(vii) M. K. Fisheries v. CC, Cochin 2002 (150) E.L.T. 998 (Tri.-Chennai)
3. The learned JDR reiterated the Departmental view.
4. On a careful consideration, we find that there is no allegation with regard to the non-export of the items in question. The marine products cannot be exported without being processed and preserved. There was mistake in certain documents and these words ‘preserved, processed and frozen’ had not been recorded. Latter, they produced evidence to show that what was exported was processed and preserved. They also relied on the evidence of the Development Commissioner’s order, who has already granted them higher credit. The Revenue has not accepted the evidence of the DGFT in granting them higher credit on the items exported, this is challenged. We are of the considered opinion that the pleas raised by the appellants that Customs have no authority to reduce the benefit of FOB, is upheld by large number of above cited judgments. On examination of the evidence, it is clear that they had exported processed, preserved and frozen marine products. The findings recorded that they had not exported processed and preserved items, is not substantiated and rejection of evidence is not justified. In terms of the evidence produced, the plea of the assessee that what was exported was in terms of the licence is upheld. The Customs have no jurisdiction to reduce the higher credit as granted to them. The plea raised by the learned Counsel is in terms of the above citations, therefore, the impugned order is not legal and proper and the same is set aside by allowing the appeal with consequential relief, if any.
(Operative portion of this Order was pronounced in open Court on conclusion of hearing)