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2015 (3) TMI 946 - GOVERNMENT OF INDIADenial of duty drawback claim - licence fee was paid for right in India and the value of Licence Fee is neither paid nor payable at the time of export - Held that:- applicant sought to export goods under claim of drawback for value including value of Licence Fee of US $ 4000 against which duty was paid at the time of import. Government observes the applicant paid duty at the time of import under protest as the customs authorities at the time of import held that such licence fee should be chargeable to duty. When the applicant paid duty ‘under protest’, he ought to have sought the option of refund in terms of Section 27(1) of the Customs Act, 1962, which he failed to do in this case. Admissibility of drawback is governed by Section 74 of the Customs Act, 1962, which requires certain conditions to be fulfilled. Export goods should be identified w.r.t. goods which were imported. Such identification is possible only when such goods are tangible in nature. Identification as required under said Section 74(1)(a) cannot be established for intangible items. In this case ‘Licence Fee’ for the purpose of export cannot be treated as tangible items so that identity could be established. Government further finds observation of the original authority logical that value of ‘licence fee’ could be added for charging duty at the time of import as the same is payable at the time of import by exporter (i.e. applicant in this case) to supplier of imported goods. But, at the time of export, the value of such ‘licence fee’ is neither paid nor payable by the applicant to the consignee of impugned exported goods and hence, the same cannot be realized as foreign currency. The export related benefit are extended to promote the export to earn foreign exchange in lieu of such export. Since, in this case the licence fee was for right in India, the same cannot be realized in BRC as foreign exchange. Such non-realized amount cannot be claimed for export related benefit like drawback. No infirmity in order of Commissioner (Appeals) - Decided against assessee.
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