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2006 (8) TMI 208 - MADRAS HIGH COURTDuty Drawback - Interpretation of provisions - duties due on imported merchandise - whether the findings of the Tribunal in equating the Circulars permitting Brand Rate of Drawback with the claim for All Industry Duty Drawback is correct in law - HELD THAT:- It is not the case of the appellant that the first respondent, a DTA unit, is not entitled for the duty drawback u/s 75 of the Act on the imported materials used in the manufacture of the goods, which are exported. But the appellant refused the duty drawback to the first respondent, a DTA unit. Brand Rate of Drawback arises only in the case where no amount or rate of drawback has been determined in respect of any goods and in the case where any manufacturer-exporter or exporter of such goods or the supporting manufacturer apply to the Commissioner in writing for determination of the amount or rate of drawback thereof stating all the relevant facts as provided under Rule 6 of the Rules. But, in the instant case, such contingency does not arise at all nor the Tribunal had dealt with the Brand Rate Drawback, because for the raw materials or inputs in question, the Central Government has specified the amount/ rate of drawback by issuing necessary notifications under Rule 3 read with Rule 4 of the Rules. Therefore, the first question does not arise for our consideration at all and it is answered accordingly. Whether the Tribunal is correct in law in overlooking the facts that the goods have been manufactured in 100% EOU and that the exporter has mis-declared such fact in the Shipping Bill ? - We hold that question of mis-declaration in column 7 of the shipping bills by the first respondent does not arise and the duty drawback sanctioned to the first respondent, a DTA unit, as per Rule 3 read with Rule 4 of the Rules and the notification and the circulars issued therein cannot, therefore, be denied on the ground that the finished goods were manufactured in the 100% EOU. Hence, the second issue is answered in favour of the assessee. Whether the Tribunal is correct in law in ignoring the fact that the required permission from the Assistant Commissioner in charge of the 100% EOU was not obtained by the exporter? - In view of the circular issued in clarification to clause 2 (c) of the notification which was issued in accordance with Rule 3 read with Rule 4 of the Rules, the question of getting permission from the authorities concerned does not arise at all and in any event, when Section 75(3) of the Act provides that the power to make rules conferred by sub-section (2) shall include the power to give drawback with retrospective effect, the refusal to give due weightage to the permission obtained by the first respondent in July 1999, even though it is post-period permission, cannot be appreciated, as such permission has to be considered not only to advance but also to achieve the object of the purpose and intention of Section 75 of the Act, viz., sanctioning the duty drawback suffered by the first respondent on the materials/inputs imported and used in the manufacture of finished goods, which are exported and not to defeat the same. Hence, we answer the last question of law also in favour of the assessee. Accordingly, the appeal is dismissed answering the questions of law raised in the affirmative, in favour of the assessee and against the Revenue.
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