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2014 (11) TMI 1117 - HC - CustomsDuty Drawback - All Industry Rate of 1% available to petitioner - withholding of AIR drawback to Soyabean Meal (SBM) exporters - the case of petitioner is that Drawback on SBM export was towards customs portion and benefit u/R 18 or 19(2) of CER, 2002 was towards Central Excise portion therefore, there cannot be any reason to withhold Customs drawback if the manufacturers had claimed rebate of Central Excise duty or procured Central Excise duty free inputs - Circular No. 35/2010, dated 17-9-2010 clarified that both the benefits i.e., AIR drawback @ 1% and the benefit of Rule 18 or 19(2) of the Central Excise Rules, 2002 are simultaneously available - whether the Circular No. 35/2010, dated 17-9-2010 is prospective or retrospective in nature (a) when the language used in earlier Notification No. 81/2006; 68/2007 and 103/2008 and the language used in subsequent Notification No. 84/2010 is same and (b) when the circular being a benovolent circular has prospective effect or retrospective effect? Held that: - As per Condition No. 7(f) of N/N. 81/2006 the rates of drawback specified in the said Schedule shall not be applicable to export of the commodity or product if such commodity or product is manufactured or exported in terms of sub-rule (2) of Rule 19 of the Central Excise Rules, 2002 - the notification denies the drawback of the entire schedule (whether Excise or Customs components), if the facility of Rule 19(2) of the Central Excise Rules, 2002 is availed. The said conditions are the prime requirement to get the commodity eligible for the drawback. In the case in hand, the Condition No. 7(f) debar the goods from the purview of the drawback if the said goods manufactured or exported availing facility of Rule 19(2) of Central Excise Rules, the drawback was not admissible to the said goods (SBM/DOC) manufactured availing facility of Rule 19(2) of Hexane and/or other materials procured duty free by them and used the same in the manufacture of DOC/SBM. The simultaneous availment of drawback as well as Rule 19(2) was introduced by the respondent No. 2 by omission of Clause 8(f) of erstwhile Notification No. 103/2008 and the introduction of new Clause 9(b) in N/N. 84/2010 which was made effective from 20-9-2010 and explained the same in Circular No. 35/2010. Since the N/N. 84/2010 was effective from 20-9-2010 and the same cannot be given retrospective effect. Notification dated 17-9-2010 is not merely clarify the position and make the issue explicit, which was implicit in the earlier notification nor the same would be applicable retrospectively. The question of giving retrospective effect to Notification dated 17-9-2010, does not arise when it is very clearly mentioned therein that the same shall come into force on the 20th day of September, 2010. Petition dismissed - decided against petitioner.
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