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TMI Blog2013 (6) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... orts made between December 2001 to 18-2-2002 and duty drawback disbursements were also made. However, in relation to four subsequent exports made between April 2002 to June 2002, such claims were not accepted, no disbursement was made. The details of various claims and its position with respect to disbursement or otherwise are as follows : Sr. No. Shipping Bill No. & Date Drawback amount claimed Whether disbursed or not 1. 30308/30-12-2001 42120 Disbursed 2. 29313/10-12-2001 42120 Disbursed 3. 02710/31-7-2001 10530 Disbursed 4. 02254/28-7-2001 42120 Disbursed 5. 02433/29-7-2001 42120 Disbursed 6. 04474/18-2-2002 40751 Disbursed 7. 15698/3-6-2002 38142 Not Disbursed 8. 09462/3-4-2002 10530 Not Disbursed 9. 16142/6-6-2002 28607 Not Disbursed 10. 14876/27-5-2002 21060 Not Disbursed 3. The respondents believing that the petitioners were not entitled to any duty drawback, issued show cause notice dated 13-8-2002 calling upon the petitioners to explain why the claims which were pending should not be rejected and the drawback amount which was already sanctioned and disbursed, should not be recovered. In the show cause notice, the Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t wanted to claim drawback on HDPE bottles, they were required to export the empty bottles which is not the case over here. Further, the appellant claim of the drawback on HDPE bottles, which constitute almost 75% of the value vis-à-vis value of Talcum Powder, defy logic. If, for a moment, it is assumed that the appellant had exported Talcum Powder in the gilt-packed bottles, would it entitle them to claim the drawback on the golden bottles. The answer would be emphatic No. Accordingly, the denial of drawback is in order." 7. The petitioners carried the matter further in appeal before the Government of India under revision. The revisional authority dismissed the petition holding as under : "7.3 Govt. further notes that Rule 3(1) of the Customs and Central Excise duties drawback clearly prescribed that if the said goods except tea chests used as packing material for export of blended tea have been taken use after manufacture, no drawback shall be allowed. In the instant case, the packing materials on which the applicants have claimed drawback have been used for packing the goods exported i.e. HDPE bottles. The applicants could have claimed drawback of duties on packing mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processing of or any other operation carried out on goods, and the term "manufacturer" to be construed accordingly. 11.1 Rule 3 of the Drawback Rules, which is of considerable importance for us, pertains to drawback. Relevant portion thereof reads as under : "3. Drawback. - (1) Subject to the provisions of - (a) the Customs Act, 1962 (52 of 1962) and the rules made thereunder, (b) the Central Excise and Salt Act, 1944 (1 of 1944) and the rules made thereunder, and (c) these rules, adrawback may be allowed on the export of goods at such amount, or at such rates, as may be determined by the Central Government : Provided that where any goods are produced or manufactured from imported materials or excisable materials on some of which only duty chargeable thereon has been paid and not on the rest, or only a part of the duty chargeable has been paid; or the duty paid has been rebated or refunded in whole or in part or given as credit, under any of the provisions of the Customs Act, 1962 (52 of 1962), and the rules made thereunder, or of the Central Excise and Salt Act, 1944 (1 of 1944) and the rules made thereunder, the drawback admissible on the said goods shall be reduced taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, Copper, Zinc, Brass etc. are visibly distinguishable and their weight unambiguously verifiable, the drawback rates applicable to such materials can be extended to the composite article according to net content of such materials." 13. It is not in dispute that for talcum powder, no rate for claiming drawback was prescribed in the Table to the said notification. It is also not in dispute that for articles made of high density polyethylene, appropriate rates of drawback in case where Cenvat facility was not availed and when Cenvat facility was availed, were provided. In case of the former, rate of drawback was Rs. 18 per kilogram and in case of the latter, such rate was of Rs. 8.50 per kilogram. 14. Insofar as the interpretation of the respondents is concerned, we are unable to find any lacuna. Undisputedly, the petitioners exported talcum powder and not the packing material. Without doubt, on such talcum powder, no rate of drawback was specified. The petitioners did not apply for fixation of any such rate. Seen in the isolation therefore, the petitioners could not have claimed any drawback on the export of talcum powder and the packing material used in the process. Rule 3 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brics etc. mentioned therein. 17. The combined effect of the above peculiar facts of the case would be that had the petitioners been informed at least at the relevant time that on the packing material used in export of talcum powder, no duty drawback would be available in absence of fixation of appropriate rate, surely the petitioners would have availed of the opportunity of having such rates fixed by the Government in terms of Rule 6 of the Drawback Rules and paragraph 3 of the notification dated 1-6-2001. It was perhaps because the customs authorities accepted the petitioners' drawback claims and even disbursed such claims that the petitioners did not separately apply for fixation of drawback rates for the export of talcum powder. As noted earlier, two additional facts that need to be borne in mind are that, had the petitioners exported only the empty bottles without talcum powder, even the Government authorities agree that they would have been entitled to receive the drawback, and that the petitioners on account of claims being disbursed by the Government authorities, would have arranged their affairs financially accordingly and negotiated the terms and rates with the foreign i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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