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2012 (12) TMI 474 - AT - CustomsRecovery of Drawback claim - stay - the appellant trader had purchased the goods for export under drawback claim from traders - whether the appellant in respect of their exports of RMG and scarves under drawback claim under Section 75 of Customs Act, 1962 at ‘all industry rate’ fixed under Rule 3 of the Drawback Rules, are eligible for full rate including excise portion or only the customs portion of the rate. – Held that:- It is only in the Board’s Circular No. 16/2009-Cus., dated 25-5-2009 that without any amendment to proviso to Rule 3 of the Drawback Rules, the Board totally reversed its stand with regard to grant of drawback at all industry rate to merchant exporters and clarified that full drawback including Central Excise portion would be available to merchant exporter in respect of export of the goods purchased from open market, without production of any certificate regarding non-availment of input duty credit. The above circular of the Board, based on the preposition that the goods purchased from the market are deemed to be duty paid and hence non-Cenvat credit availed, as when Cenvat credit is used by a manufacturer for payment of duty on goods cleared for home market, the same has been given back to the Government, is, in our view, totally wrong and contrary to the provisions of the law Since export was made under drawback claim and such claim was received by the appellant during period prior to 25-5-2009 and as per the Board’s instructions excise portion of drawback is not available in respect of goods exported by a Merchant exporter purchased from traders in the market, the appellant has been unjustly enriched. It has failed to establish a prima facie case in its favour making an unlawful claim. Therefore the claim was contrary to the statutory provisions of the Rule 3 of the Drawback Rules. In terms of provisions of Section 129E, as discussed in para 6 to 6.2 above, pre-deposit of entire drawback unjustly availed must be paid back to treasury. The appellant, is therefore, directed to deposit entire duty drawback of Rs. 2,43,59,006/- (Rupees Two Crore Forty Three Lakh Fifty Nine Thousand and Six) already availed within a period of eight weeks from the date of pronouncement of this order.
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