Full Judgment
2. Briefly the facts are that the respondent exported sleeves under DEPB scheme claiming credit under Sl.No. 220 of the Product Group 63, which reads as under "Sleeves @ 19% with Valve Cap of Rs. 40/Kg. He filed in all seven Shipping Bills while exporting the goods, three of them dated prior to 20-10-2000 and the rest after that date. The exporter furnished a letter dated 20-10-2000 from DGFT, New Delhi wherein it was stated that their products 'Sleeves' exported with a brand name "Auto Grace" shall be eligible for benefit of Para 14.4 of Exim Policy 1997-2002. In terms of that Para restriction of Valve Cap of Rs. 40/Kg does not apply to goods exported under brand name. The DGFT authorities while approving the appellants' product under Para 14.4 stipulated that the export goods should be embossed with a legend "Made in India" with the brand name. Such legends should also be put on the packages containing the export goods.
3. It appears from the records that the Exporter (the appellant) did mention the brand name of the product in the Shipping Bills but did not indicate on the shipping bills that the product is embossed with the above said legends. The goods were allowed to be exported after examination. The Officer, it appears, did not verify whether the legend was embossed on the product itself, as they were not made aware of such requirement. After the goods were shipped, the appellant approached the Jt. DGFT's office for obtaining DEPB scrip, which was duly given to them by the same authorities without a value cap. Under the procedure prescribed the DEPB licence holder has to approach the Customs Authorities for verification before the scrip becomes fully operational. It is at the time of verification that the Assistant Commissioner realised that that the exported goods were not examined at the time of shipment whether or not the goods were embossed with the legend above said. The shipping bills also did not give any indication as to whether the export goods were so embossed. Under these circumstances the Assistant Commissioner passed an appealable order stating "I hereby deny the benefit of DEPB without value cap in all the seven shipping bills covered by the above mentioned three licences to M/s Garima Global Enterprises" 4. The exporter preferred an appeal. The Commissioner (Appeals) held that such denial is wrong; that the exporter cannot be denied the benefit on the ground that export goods were not examined from a particular point of view and that the benefit of doubt should go to the exporter in such cases particularly when the shipping bills show the brand name of the export goods.
5. The department is aggrieved by this order. The main ground of the Revenue is that the exporter should have brought to the notice of the Customs that benefit of Para 14.4 of Exim Policy was given to them with a condition that the export goods should be embossed with a certain legend. Since the exporter did not bring this to their notice, the goods were routinely examined. It is prayed that the order of the Commissioner (Appeals) should be set aside, which accords the benefit of doubt to the exporter while setting aside the order of the lower authority.
7. It is extremely doubtful whether the customs authorities can deny the benefit given by DGFT authorities in the form of DEPB scrip.
According to my understanding the customs authorities should have made their remarks/comments while verifying the scrip and sent them to the licensing authorities for either modifying the scrip or for cancelling it or for any other action they would deem fit. Instead, the DEPB scrip is subject to be nullified by one authority without referring to the issuing authority.
8. Be that as it may. The Commissioner (Appeals) has rightly held that after the goods have left our shores such vague doubts (goods are embossed or not etc) cannot be made the basis to deny a benefit accorded by an authority (competent to accord it). No purpose would be served by locking the stable after the tricky horse has bolted. I cannot, but agree with the order of the Commissioner (Appeals).