TMI Blog2013 (10) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... i) of Circular No. 64/98-Cus dated 01.09.1998. There was strong merit in the arguments of the Ld. AR inasmuch as we find that the restriction in condition 13 (i) of Notification 103/2008-Cus(N.T) is with reference to the goods manufactured and not with reference to the person who is claiming drawback - Further in the present situation, if the manufacturer was to export the goods and claim drawback he would not have been eligible to get the drawback (excepting the customs component) - However, considering that the customs component would have been available to the exporter we are not inclined to call for 100% pre-deposit of the amount confirmed - Considering the overall facts of the case and law applicable, applicants 1 and 2 was directed to make a pre-deposit of 50% of the drawback amounts demanded from each of them - Subject to such pre-deposit the balance dues arising from the order from these appellants and the other two appellants shall be waived for admission of the appeals and there shall be stay on collection of such dues during pendency of the appeals – Partial Stay granted. - C/128, 129/11, C/130/11 and C/131/11 - MISC ORDER No.42149-42150/2013 & 42151-42154/2013 - Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.09. After adjudication, drawback amount of Rs.2,20,92,837/- and Rs.1,21,92,730/- stands confirmed against the applicant-exporters, M/s. Big Bags International (P) Ltd. and M/s. Big Bags India (P) Ltd. along with interest and penalties. There is a penalty of Rs.50,00,000/- each imposed on other two applicants. Aggrieved by the order, the applicants have filed these appeals and petitions for waiver of dues arising from the impugned order for admission of the appeals. 5. Arguing for the applicants, the learned advocate relies on condition (13) of Notification 103/08-Cus (NT) dt. 29-08-2008 notifying the duty drawback rates and conditions under which such drawback can be claimed. Condition (13) is reproduced below :- The expressions when Cenvat facility has not been availed, used in the said Schedule, shall mean that the exporter shall satisfy the following conditions, namely:- (i) The exporter shall declare, and if necessary, establish to the satisfaction of the Assistant Commissioner of Customs or Assistant Commissioner of Central Excise or Deputy Commissioner of Customs or Deputy Commissioner of Central Excise, as the case may be, that no Cenvat facility has been availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The matter was discussed with some field formations. A view was expressed that the proviso to Rule 3 of the Drawback Rules does not permit full drawback (both customs and central excise portions) if Cenvat has been taken on inputs used in the manufacture of export goods and therefore full drawback (including the excise portion) cannot be granted to such goods. 4. The matter was referred to the Committee constituted by the Government to formulate All Industry Rate of Duty Drawback for the year 2008-09. The Committee in its report for the year 2008-09 has recommended that the merchant exporters who source their export goods from the market should be given higher rate of drawback without any declarations as they have to purchase the products from the manufacturer after excise clearance i.e. after payment of excise duty. Therefore as far as merchant exporters are concerned, the full drawback rate has to be made available to him for neutralization of excise duty paid when clearing the goods from the manufacturer s premises . The Committee has further remarked that in case of manufacturer exporters there could be a possibility of double benefit if he were to claim both Cenvat bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, at the time of export, that no rebate (both input rebate and final product rebate) shall be taken against the exports made against these shipping bills. 7. In view of the above, the Board has decided to accept the recommendation of the Drawback Committee in this regard. Thus merchant exporters who purchase goods from the local market for export shall henceforth be entitled to full rate of duty drawback (including the excise portion). However, such merchant exporters shall have to declare at the time of export, the name and address of the trader from whom they have purchased the goods. They shall also have to declare that no rebate (input rebate and also the final product rebate) shall be taken against the Shipping bills under which they are exporting the goods. The merchant exporters who purchase goods from traders may therefore furnish the declaration, at the time of export, in the format annexed with this circular. This is issued in supersession of para (vi) of Circular No. 64/98-Cus dated 01.09.1998. 8. The Custom Houses shall get the veracity of such declarations verified at random and recover excess drawback in case the verification reveals that the declaration filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een asked to deposit 100% of the drawback amount disbursed based on such declarations. 12. We have considered the submissions on both sides. We find strong merit in the arguments of the Ld. AR inasmuch as we find that the restriction in condition 13 (i) of Notification 103/2008-Cus(N.T) is with reference to the goods manufactured and not with reference to the person who is claiming drawback. Further in the present situation, if the manufacturer was to export the goods and claim drawback he would not have been eligible to get the drawback (excepting the customs component). However, considering that the customs component would have been available to the exporter we are not inclined to call for 100% pre-deposit of the amount confirmed. Considering the overall facts of the case and law applicable, we direct applicants 1 and 2 to make a pre-deposit of 50% of the drawback amounts demanded from each of them. Subject to such pre-deposit the balance dues arising from the impugned order from these appellants and the other two appellants shall be waived for admission of the appeals and there shall be stay on collection of such dues during pendency of the appeals. (Dictated and pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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