9911796707
TMI Blog2014 (12) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... rrated : 3.1 That the petitioner is engaged in the manufacturing Flanges and machinery component at its work place situated at Rajkot-Gondal Highway, Rajkot. The petitioner is an Export Oriented Unit and therefore, it exports its product to various countries outside India. That the petitioner is also possessing Export House Status as approved by the Government of India. It is the case on behalf of the petitioner that the petitioner also maintains separate register for the input used in the manufacture of final product which is ultimately exported. That appropriate declarations in the said regard are also made in the application for removal of export product. It is the case on behalf of the petitioner that the petitioner has been submitting application in Form ARE-1 in which the petitioner declared that the petitioner is not availing Cenvat credit. According to the petitioner, clearance of export goods was against the claim of duty drawback. 3.2 That the petitioner exported goods during the period between 5-2-2003 and 28-3-2003 (for the year 2002-2003) and for the period between 4-4-2003 and 5-4-2003 (for the year 2003-2004) by 45 different Shipping Bills. That the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Section 75(2)(a) of the Customs Act, 1972. The said authority, therefore, came to the conclusion that the aforesaid entries i.e. 73.29 and 73.30 cannot be applied to the export of Flanges by the petitioner for claiming duty drawback in the Schedule for 2002-2003 and Entry No. 73.28 in the drawback schedule for the financial year 2003-2004. 3.4 Feeling aggrieved and dissatisfied with the Order-in-Original denying duty drawback on export of Flanges, the petitioner preferred appeal before the Commissioner of Customs (Appeals), Rajkot. It is the case on behalf of the petitioner that in the appeal the petitioner pointed out that All Industry Rates of Duty Drawback for the year 2002-2003 was covered by Notification No. 33 of 2002, dated 29-5-2002. That the said notification was amended by notification dated 10-12-2002 and in the amended notification, condition of use of imported steel in the manufacture of goods was removed. It is the case on behalf of the petitioner that in other words, by the amended notification dated 10-12-2002, the requirement to use the imported material in the final product was removed and therefore, the petitioner was not required to use imported raw mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese petitions under Article 226 of the Constitution of India. 4. Mr. Paresh Dave, learned advocate appearing on behalf of the respective petitioners in both the petitions has vehemently submitted that the revisional authority has materially erred in holding that the petitioners are not entitled to duty drawback as per All Industry Rates of drawback against Entry No. 73.29 and 73.28 for the period under consideration, respectively. 4.1 Mr. Paresh Dave, learned advocate appearing on behalf of the respective petitioners has further submitted that while deciding the revision application, the revisional authority has not properly appreciated and considered the fixation of All Industry Rates of Drawback and subsequent clarificatory Circulars issued by the Department. 4.2 Mr. Paresh Dave, learned advocate appearing on behalf of the respective petitioners has further submitted that as such all Forgings i.e. all products manufactured through forging process were covered under S.S. No. 73.29. It is submitted that the goods manufactured by the petitioners were also manufactured through Forgings as certified and confirmed by the IIT vide report dated 11-3-2003. The said good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 (208) E.L.T. 321 (S.C.) = 2008 (11) S.T.R. 430 (S.C.). 4.6 Mr. Paresh Dave, learned advocate appearing on behalf of the respective petitioners has further submitted that All Industry Rates have no relation to the actual input consumption pattern and actual incidence suffered on inputs of a particular exporter or individual consignments exported and therefore All Industry Rate should be allowed even without any evidence of actual duties suffered on imported or indigenous inputs used. In support of his above submission, he has relied upon the Circular No. 24/2001-Cus., dated 20-4-2001 as well as decision of the Hon'ble Supreme Court in the case of Chemicals & Fibres of India Ltd. v. Union of India, reported in 1991 (54) E.L.T. 3 (S.C.), more particularly para 8 of the said decision. No other submissions have been made. Making above submissions and relying upon above decisions, it is requested to allow both these Special Civil Applications and quash and set aside the impugned orders passed by the revisional authority and restore the orders passed by the Commissioner (Appeals) by holding that the petitioners are entitled to All Industry Rates at the rate of Rs. 19 per Kg. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners are rightly denied the All Industry Duty Drawback on export of Flanges. 5.1 It is further submitted that even otherwise, the petitioners did not comply with the relevant requirement i.e. the petitioners neither filed declaration under Rule 12(1)(a)(ii) of the Customs and Central Excise Duty Drawback Rules, 1995 nor they submitted requisite legally required appendix IV and V (along with shipping bills for EDI System) and therefore, the petitioners are not entitled to duty drawback. 5.2 It is further submitted that reasoned and speaking order has been passed by the revisional authority dealing with all the contentions/submissions made by the petitioners. It is submitted that as has been found that the petitioners were not entitled to the duty drawback as per All Industry Rates under Heading SS Nos. 73.28/73.29, no error has been committed by the revisional authority in quashing and setting aside the order passed by the Commissioner (Appeals) and in denying All Industry Rates of Duty Drawback at the rate of Rs. 19 per Kg. on exports of goods "Flanges" by the respective petitioners. By making above submissions, it is requested to dismiss both these S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not contain data regarding Flanges. Therefore, it is the case on behalf of the respondents that on export of the goods "Flanges", the petitioners are not entitled to All Industry Duty Drawback under the notification and SS No. 73.29/73.28. Therefore, short question which is posed for consideration of this Court is whether on export of the product "Flanges", the petitioners shall be entitled to duty drawback on All Industry Drawback Rates at the rate of Rs. 19 per Kg. on Steel content as provided under SS No. 73.29?. While considering the aforesaid question, the relevant provisions of Customs and Central Excise Duty Drawback Rules, 1995 deserve consideration. Rule 2(a) defines "Drawback". Rule 2(a) reads as under : "2(a). "drawback", in relation to any goods manufactured in India, and exported, means the rebate of duty chargeable on any imported materials or excisable materials used in the manufacture of such goods;" 6.3 Rule 3 provides for rates of duty drawback and as per Rule 3 subject to the provisions of the Customs Act, 1962 and the Rules made thereunder; Central Excise Act and the Rules made thereunder and Duty Drawback Rules, 1995, a drawback may be allowed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Jute Fabrics (including Bimlipatam jute or mesta fibre), in which jute predominates in weight; (3) jute manufactures not elsewhere specified (including Bimlipatam jute or mesta fibre) in which jute predominates in weight. (2) In determining the amount or rate of drawback under this rule, the Central Government shall have regard to, - (a) the average quantity or value of each class or description of the materials from which a particular class of goods is ordinarily produced or manufactured in India; (b) the average quantity or value of the imported materials or excisable materials used for production or manufacture in India of a particular class of goods; (c) the average amount of duties paid on imported materials or excisable materials used in the manufacture of semis, components and intermediate products which are used in the manufacture of goods; (d) the average amount of duties paid on materials wasted in the process of manufacture and catalytic agents; Provided that if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is very low. So far as the other products as mentioned in SS No. 73.29/73.30 are concerned, they require a high grade steel as input and consequently the value of the same would also be very high. Therefore, "Flanges" cannot be compared with other produces as mentioned in SS No. 73.29/73.28 as the value of the materials used for production of Flanges and the production of other goods/class of goods would be different and would vary substantially. Therefore, if the contention of the petitioners is accepted that the petitioners shall be entitled to All Industry Duty Drawback at the rate of Rs. 19 per Kg. under SS No. 73.29 at par with other products as mentioned in SS No. 73.29, in that case, as the petitioners had used low grade steel as input in the manufacture of Flanges and the value of which is very low, the petitioners shall be getting duty drawback at the higher amount i.e. Rs. 19 per Kg. which is not permissible. As stated above, as such no data was available with the Central Government with regard to Flanges as the same was not provided by the Forging Panel of Engineering Export Promotion Council regarding Flanges. Under the circumstances when no data regarding Flanges was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack at the rate of Rs. 19 per Kg. under SS No. 73.29 is available or not, the aforesaid clarificatory Circulars have been issued. That does not mean that it is oppressive circular and therefore, the same is required to be applied prospectively. 6.8 It is also required to be noted that the petitioners have been denied duty drawback as claimed on the ground that the petitioners have failed to give declaration in respect of DBK Claimed under respective SS No as required under Rule 12(1)(a)(ii) of the Customs and Central Excise Duties Drawback Rules, 1995. However, nothing turns on that specifically, as observed hereinabove, Flanges is not included under SS No. 73.29 under which the petitioners have claimed All Industry Duty Drawback at the rate of Rs. 19 per Kg. on Steel content. Under the circumstances, the revisional authority is justified in denying All Industry Drawback Duty as claimed by the petitioners under SS No. 73.29/73.30 on export of "Flanges". We see no error in the impugned order passed by the revisional authority. 7. In view of the above and for the reasons stated above, both the petitions fail and the same deserve to be dismissed and are accordingly dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
