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2014 (10) TMI 155 - CGOVT - CustomsRecovery of excessive Duty drawback claim - export of goods in discharge of export obligation under advance license - Held that:- Respondent exported goods namely I.C. Engines and parts falling under Tariff Heading 8408 under claim of drawback. They filed brand letter application under Rule 6(1)(a) of Drawback Rules, 1995. Brand rate letters were issued by the jurisdictional Central Excise, Commissionerate, Pune-III. On the basis of said brand rate letters, drawback was sanctioned to the respondent under Rule 6. Subsequently, it was observed by the Customs that the impugned goods were classified under 8408 and the same is mentioned in list of items eligible for AIR of drawback under Rule 3 of the said Drawback Rules, 1995, and that even if the respondent had to file application for brand rate of drawback, they were required to file the same under Rule 7 and not under Rule 6. It is clear that the respondents having exported the goods in discharge of export obligation under advance license, were not entitled of AIR of drawback. This has also been accepted by the department. As such, the respondent were not eligible for AIR of drawback under Rule (3). The applicant has also declared in their application for brand rate of drawback and shipping bills that the goods have been exported for claim of brand rate of drawback - it is ample clear that in case of non-availability of AIR of drawback simultaneously with advance license scheme, the exporter can avail benefit of brand rate of drawback under Rules 6 or Rule 7 of the Drawback Rules, 1995. It is unambiguously clear that brand rate of drawback under Rule 6 can be filed only where amount or rate of drawback has not been determined. Government notes that though the engines are figuring in the relevant All Industry Drawback Schedule but the said AIR rate is not applicable to said goods exported in discharge of export obligation against advance authorization in terms of Clause (b) of Note 7 of Notification No. 36/2005-Cus. (N.T.), dated 2-5-2005. As such, the condition of Rule 6 are not violated and respondent case cannot be taken out of the purview of said rule as held by Commissioner (Appeals) also. Commissioner (Appeals) has given detailed finding on the issue and applicant department has not countered these findings with any valid documentary evidences. The contention regarding availment of Cenvat credit and advance authorization is considered by DBK brand rate fixation authority in Central Excise as discussed above by Commissioner (Appeals). So, this pleading of department has no substance. In case, Customs authorities had any contrary documentary evidences which were not before Central Excise Brand Rate Fixation Authority, then they could have taken up the matter with Central Excise for remedial action, if any. In this case the brand rates fixed by Central Excise are not challenged/reviewed at appropriate level and therefore the brand rates fixed are legally valid. - No infirmity in impugned order - Decided against appellant revenue.
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