TMI Blog2013 (9) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... had got the goods/garments manufactured on job work. Thus, it can be argued that there was no fraud, suppression of facts or misdeclaration by the petitioner. The word “supplier” used in the form clearly indicates that the goods were purchased from third parties. The show cause notice itself records that the petitioner had not filed details of the job workers or evidence of supporting manufacturer, yet the claim was accepted and payment of drawback was made. The issue raised is covered by decision of this Court in Commissioner of Customs (Export) Vs. Kultar Export [2012 (10) TMI 79 - DELHI HIGH COURT]. It is apparent from the said judgment that Government was concerned with the objections and that the distinction between manufacture/job ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority that the petitioner herein should refund duty drawback of Rs.4,00,801/-. 2. The petitioner herein is an exporter and during the period November, 2006 to June, 2007, had exported readymade garments of FOB value of Rs. 82,74,303/- against shipping bills. The export itself is not disputed and there is no quarrel or issue with regard to the quantum of exports. The petitioner had applied for refund of excise duty portion on the imports as drawback and payment of Rs.4,00,801/- was sanctioned and made in 2007 (exact date is not stated). Subsequently, after about 3 years on 13th January, 2010, a show cause notice was issued that the said drawback had been wrongly paid and it was admissible only if the petitioner was a manufacturer exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was concerned with the objections and that the distinction between manufacture/job work and trader purchasers had led to difficulties and denial of claims. Therefore, they had issued Circular No.16/2009 stipulating that duty drawback would be admissible even when merchant exporters purchase goods from the local market for export. The stand of the respondents, however, was that this circular was operative prospectively i.e. with effect from 25th May, 2009 and is not retrospective. 5. In Kultar Export (supra), the High Court examined the question whether the benefit of this Circular No.16/2009 could be given to an exporter from whom drawback paid was being reclaimed. The High Court affirmed the view taken by the Customs, Excise and Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under:- 9. The above discussion would show that the respondent is a merchant exporter. An important factual aspect highlighted and also noticed by the Tribunal is that the respondent does not engage in job work or getting garments stitched by others. It merely procures readymade garments and textiles and exports them. Rule 3 of the 1995 Customs and Excise Drawback Rules states that drawback are allowed on the export of goods as prescribed amount. A proviso to Section 3 (1) states that if the goods are produced or manufactured from imported materials or excisable materials on some of which only the duly chargeable has been paid and not on the rest, or only a part of the duty chargeable had been paid or duty waived or there has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods from the open market, the benefit of All Industry Rates of Duty Drawback shall be restricted to the Customs allocation only, if any. Export goods purchased from the market shall be treated as having availed the Modvat facility and are not entitled to the Central Excise allocation of the All Industry Rate of Drawback. 11. The Commissioner of Customs (Export) in this case relied on Circular No.54/01 dated 19.10.2001. Facially that document pertains to merchant exporters who are also manufacturers. The first paragraph of the Circular reads as follows: All categories of Ready-made woven garments (other than raincoats, undergarments and clothing accessories) falling under Chapter 62 of Customs Central Excise Tariff Act are now su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise or such merchant exporters whose supporting manufacturer are not registered with the Central Excise, shall not be required to furnish any certificate as to the nonavailment of Cenvat facility from the jurisdictional Central Excise authorities. 4. It has been decided that instead these manufacturer exporters and merchant exporters with a supporting manufacturer shall be required to give a self-declaration that such manufacturer-exporters or the supporting manufacturers are not registered with Central Excise and that they do not avail / have not availed Cenvat facility. The form of self-declaration is enclosed. 5. It is also clarified here that as regards such manufacturer-exporters and supporting manufacturers who are registere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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