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TMI Blog2014 (3) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... spute that the description and quantity of the re-export tallied with what was claimed originally. In these circumstances, when the claim for duty drawback was made, initially the claim was granted to the extent of 3 applications. However, drawback on grey dispensers was not allowed. At that stage, the Deputy Commissioner recorded his satisfaction that the goods imported were exported. On 11.07.2012, the three orders granting drawback by the Deputy Commissioner were reviewed by the Commissioner, who directed the original authority to apply for setting-aside of the drawback order granting drawback claims. The Commissioner (Appeals) then on 10.10.2012 set-aside the three orders-in-original and directed verification at the field level. He was of the opinion that the terms of Section 75 apply since the goods had undergone an operation. In these circumstances, on 10.10.2012, the Deputy Commissioner (Drawbacks) issued three Show Cause Notices eliciting response why drawback sanctioned in respect of the sum of Rs. 26 lakhs ought not to be recovered with interest and penalty under the Customs Act. After considering the responses, the Deputy Commissioner, by separate orders-in-original date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds for drawback purposes: a) goods that have been manufactured, processed or on which any operation has been carried out in India using any imported materials in the manufacture or processing of such goods or carrying out any operation on such goods; b) imported goods which have been exported as such or in other words, without having been subjected to any operation in India such as manufacture, processing or any other operation. The goods under (a) category i.e., when any goods have been manufactured, processed or on which any operation has been carried out in India, fall under the purview of Section 75 for drawback purposes and drawback is allowed of duties of customs chargeable under Customs Act on any imported materials of a class or description used in the manufacture or processing of such goods or carrying out any operation on such goods. The goods under (b) category fall under the purview of claim for drawback Section 74. In the instant case, the needles were removed from the original dispenser & repacked in Orange colour dispenser, hence, covered under text of "carrying out any operation" of Section 75(1) of Act ibid." 3. The petitioner contends that the phraseology of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes an order permitting clearance of the goods for exportation, ninety-eight per cent of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if - (a) the goods are identified to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs as the goods which were imported; and (b) the goods are entered for export within two years from the date of payment of duty on the importation thereof : Provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further period as it may deem fit. (2) Notwithstanding anything contained in subsection (1), the rate of drawback in the case of goods which have been used after the importation thereof shall be such as the Central Government, having regard to the duration of use, depreciation in value and other relevant circumstances, may, by notification in the Official Gazette, fix. (3) The Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may - (a) provide for the manner in which the identity of goods imported in different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed further that where any drawback has been allowed on any goods under this subsection and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the Foreign Exchange Management Act, 1999 (42 of 1999), such drawback shall except under such circumstances or such conditions as the Central Government may, by rule, specify be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the amount of such drawback. (1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like material that has been used in the goods manufactured, processed or on which any operation has been carried out in India and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub-section (1), be deemed to be imported material. (2) The Central Government may make rules for the purpose of carrying out the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d." 14. Inasmuch as the Hydra-jack was an article, already manufactured, and was not material which was used in the manufacture of goods, in the instant case, there is no question of application of Section 75 of the Customs Act to the articles imported. 15. What would apply to this case is Section 74 of the Customs Act, which deals with the drawback of duty paid upon easily identifiable article upon re-export of duty paid goods." 6. Likewise, in Phoenix (supra), the interpretation placed by this Court in ABC (supra), was agreed upon, by the Bombay High Court. In Phoenix (supra), interestingly, the view of the Central Government, (which cannot, of course, be treated as a precedent) itself appears to have been that if the so-called "process" is a mere change of packaging, and fairly disclosed by the assessee/re-exporter, Section 74 would apply and not Section 75. This interpretation of the Central Government may be seen in Torrent (supra). What the petitioner appears to have done is a matter which cannot be disputed by the respondents since both at the stage of importation and reexport, the goods were verified - i.e. the needles were subject to re-packaging and re-exported. As to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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