TMI Blog2013 (11) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... DEPB scrip shall also be allowed to be considered for fixation of drawback brand rate, and therefore on same analogy the debit of customs duty from DEPB should also be allowed to be considered for fixation of Brand rate. In this regard, Government notes that Circular No. 41/2005-Cus., dated 28-1-2005 allow only additional customs duty paid through DEPB to be considered for fixation of brand rate. So, the contention of applicant to also allow payment of customs duty through DEPB for allowing duty drawback is not legally tenable - Revision denied. - F.No. 371/67/DBK/2011-RA - Order No. 71/2013-Cus - Dated:- 20-2-2013 - Shri D.P. Singh, J. Shri C.S. Biradar, Advocate, for the Assessee. Shri K.M. Kuril, DCCE, for the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 8-10-2005. 2.4 M/s. Dorf Ketal Chemicals (I) Pvt. Ltd. vide their letter dated 29-12-2008 inter alia submitted that Circular No. 41/2005-Cus., dated 28-10-2005 is of a clarificatory nature in which the Board has clarified that Additional Customs Duty CVD debited in the DEPB scrip can neither taken as Cenvat Credit or duty drawback, that nowhere in the circular it is mentioned that basic customs duty paid/debited in the DEPB scrip will not be eligible for drawback; that substantial benefit for an exporter shall not be denied on technical ground. 2.5 After following due process of law, the Additional Commissioner of Central Excise, Belapur Commissionerate rejected their application for fixation of Drawback Brand Rate. 3. Being aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt submits that they have procured the DEPB scrips from open market on payment of valid consideration and hence, as they have borne the cost, it is improper to say that import of raw material was duty free or exempt. A scheme which grants incentive is distinct and different from the term exemption or duty free . 4.3 The applicant submits that basic principle of taxation is that in an event of exports, only goods are to be exported and not local taxes, hence, the claim of the applicant for duty drawback is legal and proper. 4.4 The applicant submits that amending Circular No. 41/2005, dated 28-10-2005 (earlier Circular No. 3/99, dated 3-2-1999) permits duty drawback of Special Additional Duty even though paid from DEPB. In other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129DD of Customs Act, 1962. Therefore, applicant requested to condone the delay which was due to perusing appeal before wrong forum. In this case, order-in-appeal was received by applicant on 2-3-2010 and appeal was filed before CESTAT on 17-5-2010 as per Tribunal s receipt, stamp on appeal. The revision application is filed on 29-9-2011. So, the applicant has consumed time period between 2-3-2010 to 17-5-2010 = 2 months and 15 days and 16-7-2011 to 28-9-2011 = 2 months 13 days, totally 4 months 28 days after excluding time taken for pursuing appeal before CESTAT from 17-5-2010 to 15-7-2011. As per provision of Section 129DD of Customs Act, 1962, the revision application can be filed within 3 months of communication of order-in-appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et. The said raw materials were used for manufacturing of finished goods which were exported. Applicant filed an application for fixation of Drawback Brand Rate which was rejected by original authority. The appeal filed before Commissioner (Appeals) was also rejected on the grounds that in terms of proviso (ii) of Rule 3 of Customs Central Excise Duties Drawback Rules, 1995, brand rate of drawback is admissible only against cash payment of duties, that as per Circular No. 3/99-Cus., dated 3-2-1999, no duty drawback is admissible against debit of duties from DEPB on import of goods is in effect availment of exemption of duty under Customs exemption notification. Now, applicant has filed this revision application on the ground stated in par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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