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2022 (7) TMI 619 - HC - CustomsDuty Drawback - re-export - non-export of capital goods within six months - whether petitioner was entitled to any drawback on the customs duty that they had paid, under Section 74 of the said Act read with Notification 27/02 read with Notification 19/1965 read with Notification No.27/2008-Cus dated 1st March 2008 amending Notification 27/02? - HELD THAT:- Notification 27/02 was a concession that was granted to people like petitioner who had no intention of importing the goods for home consumption but who would bring it on lease with an intention to re-export the goods within a period of six months or within a period of six months to one year - The extent of exemption is so much of the duty of customs as in excess of 15% (incase re-exported within six months) and if beyond six months but under one year then so much of the duty of customs as in excess of 30%. In these cases, there is no importation for home consumption envisaged under Section 74. This is a separate class of importers and the Notification 27/02 has been issued under Section 25(1) of the said Act and not under Section 74. There is a duty exemption as provided in Notification 27/02 for those who import machinery or tools for execution of a contract and re-export the same within the prescribed period. This concession was given because the Central Government was satisfied that it was necessary in the public interest so to do, where the importer has taken the goods on lease for use after importation and at the time of importation makes a declaration that the goods are being imported temporarily for execution of a contract. Such conclusions are not prescribed under Section 74 or notification issued under Section 74(2) - the concession given to such importer was that he need not pay the entire 100% of the customs duty payable under the said Act but would pay only 15% or 30%, as the case may be, They do not have to pay the entire 100% and then claim a drawback of 85% or 70%, as the case may be. Notification 27/02 is issued under Section 25(1) of the said Act and not under Section 74 of the said Act. Further, the conditions prescribed under Notification 27/02 are not prescribed under Notification 19/1965 issued under sub-section (2) of Section 74. Further, we agree with Mr. Bangur that the note in Notification 27/2008 is also clarificatory. The petitioner would have been entitled to a drawback of either 85% or 70% depending on when the goods were re-exported, if they had paid 100% customs duty and not filed declarations under Notification 27/02. Since petitioner had not paid 100% duty availing of Notification 27/02 and had already availed of concession as per Notification 27/02, petitioner is not entitled to any drawback. By paying the concessional rate of customs duty at the time of import, petitioner has already availed of the benefit of drawback and as such the drawback payment made was erroneous. The petition stands dismissed with costs in the sum of Rs.1 lakh. This amount to be paid to respondent no.4 alongwith the outstanding amounts of drawback re-payable.
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