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2012 (8) TMI 898 - CGOVT - CustomsDuty drawback claim - imported raw leather was fully exempted from duty vide Notification No. 21/2002-Cus., dated 1-3-2002 - While rejecting the drawback claims, the original authority had held that in terms of Notification No. 26/2003-Cus. (N.T.), dated 1-3-2003, Notification No. 8/2005-Cus. (N.T.), dated 18-1-2005 and Notification No. 36/2005-Cus. (N.T.), dated 2-5-2005, the rates of drawback shall not be applicable to export of a commodity or product if such commodity or product is manufactured by availing of facility under DEPB Scheme as contained in para 4.3 and para 4.3.5 of Exim Policy 2002-07 and para 4.3 and para 4.3.5 of Exim Policy 2004-09 - Held that:- Circular No. 24/2001-Cus., dated 20-4-2001 and Circular No. 19/2005-Cus., dated 21-3-2005, clarify that All Industry Rate (AIR) of duty drawback are based on the concept of averages, where the drawback rates are based on average incidence of duties suffered on inputs and has no relationship to the actual input consumption matters or actual duty incidence suffered on inputs. Government finds that in this case these circulars are not relevant since the ground for rejection of drawback claim is as explained in para 8 above. However, Government finds no merit in contention of department that since, the applicant has not suffered any duties on their inputs, they are not eligible for Drawback claim. Here, Government is in agreement with the observation of Commissioner (Appeals) in this specific issue that AIR of Drawback cannot be denied/reduced by field formation as the same is fixed by Central Government taking into account all the relevant factors as stated in above said circulars. Circular No. 3/99-Cus., dated 3-2-1999 where in it has been clarified that drawback is admissible only against cash payment of duties and debit of duties against DEPB scrip on import of goods is in effect availment of exemption of duty and therefore no drawback is admissible when duty is paid on inputs by debit of DEPB Scrip. Department has also contested that Circular No. 41/2005-Cus., dated 28-10-2005 provides that additional customs duty paid through debit under DEPB shall also be allowed as brand rate of drawback and no clarification has been given in respect of AIR. Since, the respondents are claiming drawback of duty at AIR this circular is not applicable to this case. - Drawback benefit is not permissible in this case since export goods have been manufactured by availing facility of DEPB Scheme. Since the applicant is not entitled for drawback claim there is not question of allowing instant interest claim. Therefore, Government sets aside both the impugned Orders-in-Appeal, dated 5-12-2008 and 21-3-2006 - Decided in favour of Revenue.
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