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TMI Blog2015 (4) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... of brand rate of drawback with the Department on 06.07.1999. The issue remained pending for over ten years due to various reasons and correspondence was exchanged between the applicants, the jurisdictional Central Excise authorities and Brand Rate Section of the Ministry. Also during the pendency of subject issue, Custom Circular No. 39/2001-Cus dated 06.07.2001 - allowing drawback of Central Excise duty on inputs not specified in the relevant SION, in respect of export under DEPB Scheme was challenged by the exporters in the court of law. The issue was finally settled by Hon'ble Supreme Court in January, 2007 in the case of M/s Arviva Industries and other, wherein, it was held that the said circular was applicable prospectively. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k rate of Rs. 16.62 amounting to Rs. 6,64,801/- is allowed. 3. Being aggrieved by the said order-in-original applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned order-in-appeal dated 13.4.09, the applicant had filed this revision application under Section 35 EE of Central Excise Act, 1944 before Central Government of the following grounds 4.1 We had filed various Brand Rate of Drawback Application prior to 06.07.2001 with all the necessary documents related thereto with concerned office. All these applications were duly verified by the jurisdictional range Superintendent of Central Excise. These verified applications were then vetted by the Dy./Assistant Commissioner of the Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isplaced/lost. However at the time of re-verification, consequent to the Supreme Court Order, we could not produced the original duty paying documents in respect of 47656.500kgs. yarn. This is due to fact that the original duty paying documents were depot bills issued by the manufactures to their depots. The depot bills wills be normally for 100 of tons where as the purchase of exporters may be for 500kg/1000kg etc. according to their requirements. At the time of original verification in 1999-2000, we had obtained this original from the depot and produced before the verifying officer. As it was original documents of the Depot, we had no option but to return these originals to the depot. At the time of re-verification we tried out level best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim, we again brought the matter legally in the notice of A. Secretary, (Drawback), Department of Revenue, New Delhi vide letter dated 17.07.2010 addressed to Commissioner of Central Excise, Mumbai-III. 4.4 As per the Supreme Court judgment in the matter (civil appeal No.169/2007 dated 10.01.2007), when a circular remain in operation the revenue is bound to be and cannot be allowed to plead that it is not valid nor that it is contrary to the terms of the statue. The department cannot be permitted to take a stand contrary to the instruction issued by the Board." Board had issued circular No. 08/2001 dated 20.02.2001 according to which there will be only one verification report for a drawback application. So, thus reverification is it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for brand rate fixation and hence there is quantity restriction. 9. Commissioner (Appeals) has observation her findings in pars 10 of order-in-appeal as under: "The appellant has not submitted any evidence to show their entitlement for drawback on full quantity and @ Rs. 22.45/ - per kg. It was the responsibility of the appellants to substantiate the appeal with proper evidence which they have failed to do. The dispute involved is based on the facts of the case and does not involve any question or interpretation of law. The issues relating to fixation of drawback are to be decided on case to case basis depending upon the nature and composition of export goods and the raw materials used. Therefore, the cases cited by the appellant do not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s failed to produce the original which was not-in possession of department, as per applicants own submission' at the time of reverification. They also could not produce any other evidence regarding claimed quantity. Further, they have not produced any substantial documentary evidence challenging brand rate fixation (r)Rs.16.62 kgs as against Rs. 22.45 kgs. claimed by the applicant. In absence of such documentary evidences the fixation of brand rate by the original authority cannot be faulted with. The appellate authority also discussed the same in detail and Government agrees with the findings of appellate authority. 10. In view of above discussion, Government do not find infirmity in order of Commissioner (Appeals) and hence, upholds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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