TMI Blog2013 (5) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... d 17-2-2003, it was clarified that henceforth in all those cases where the exporters have applied for brand rate of drawback, they may be permitted the duty drawback at All Industry Rate as admissible under the relevant Sr. No. of duty drawback table and subsequently when exporters are issued brand rate of drawback, the differential amount may be sanctioned to them. Applicant had exported chillers in CKD/SKD condition and claimed fixation of drawback under Rule 6(1) of Customs, Central Excise and Service Tax Drawback Rules, 1995. The fixation of brand rate of DBK under Rule 6(1) was not allowed since there was a AIR brand rate of @1.1% fixed for the said item. The goods were exported in different consignments under 8 Shipping Bills. As per C.B.E. & C. Circular No. 26/2005-Cus., dated 8-6-2005, for goods exported in SKD/CKD, unassembled condition, brand rate drawback shall also be admissible. Department had not allowed AIR drawback in earlier cases and therefore special brand rate was claimed by the exporter in the impugned export - violations pointed out in these cases cannot be merely treated as procedural minor lapses - Decided against assessee. - F. No. 371/22-A/DBK/2012-RA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been rejected vide impugned letter/Order dated 10-2-2012. 3. Being aggrieved by the said Order-in-Original applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. On being aggrieved of above Order-in-Appeal the applicant herein has made this revision application under Section 129DD of Customs Act, 1962 before Central Government on the following grounds :- 4.1 As stipulated in para 6.1 of Chapter 22 of Customs Manual, the applicants had claimed Drawback at the time of export and requisite particulars filed in the prescribed format of Shipping Bill/Bill of Export under Drawback was filed also. Subsequently, they filed a supplementary claim for fixation of Brand Rate of Duty Drawback under Rule 7 on the ground that the AIR Drawback is less than four-fifth of the actual duty suffered on the goods exported by them, which is also admitted by Commissioner (Appeals) in para 8 of the impugned Order-in-Appeal. 4.2 Coming to the legality of this fact, the applicants wish to draw attention to para 5 of Chapter 22 of the Customs Manual. The paragraph amply clears that filing a supplementary claim is well within the ambit of the Customs Manual. 4.3 In par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack Schedule as mentioned/claimed in the respective Shipping Bills. After availment of the said Drawback, they have subsequently filed application for fixation of Special Brand Rate of Drawback under Rule 7 of the Drawback Rules. The said application filed by the applicant was rejected by the original authority on the ground that the applicant failed to indicate their intention to avail Brand Rate of Drawback Rules under Rule 7 at the time of export in the relevant Shipping Bills and hence the applications subsequently filed by them are contrary to the provisions of Drawback Rules as well as Circular/Clarification issued by the C.B.E. C. The applicants also failed to mention Serial No. of drawback schedule in the Shipping Bills. Commissioner (Appeals) rejected the appeal filed by the applicants. Now, the applicant has filed this revision application on grounds mentioned in para (4) above. 8. Government observes that initially the applicant exported the goods and claimed All Industry Rate of drawback. Subsequently, the applicant by terming the same as an inadvertent error wanted to change the same into a claim of fixation of Brand Rate. The lower authorities have objected to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an exporter can avail the AIR Drawback first at the time of export under specified sub-serial/tariff item number of the AIR schedule and then file for determination of the Brand Rate under rule 7. Exporter s declaration of Tariff Item number other than 9801 on the Shipping Bill declaration that he is. satisfied with the AIR rate and opts for it. Any other interpretation would all undermine the entire EDI procedure in this respect. 8.2 The said clarification unambiguously states that opting of AIR drawback under Rule 3 in the Shipping Bills disentitles exporter from claiming brand rate of drawback. The said clarification has neither been withdrawn nor set aside by any court of law. As such, the said clarification is very much in existence. Moreover, exporter has to carefully choose a scheme which is beneficial to him at the time of filing Shipping Bill. After choosing a scheme he cannot be allowed to change it subsequently. In C.B.E. C. Circular No. 10/2003-Cus., dated 17-2-2003, it was clarified that henceforth in all those cases where the exporters have applied for brand rate of drawback, they may be permitted the duty drawback at All Industry Rate as admissible under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the applicant herein is disputing the interpretation of the relevant statutory provisions and also the conclusions as drawn above, Government thinks it proper to consider and proceed in the matter in the light of Hon ble Supreme Court s observations in the case of M/s. ITC Ltd. v. CCE, Delhi - 2004 (171) E.L.T. 433 (S.C.) and other Apex Court/Supreme Court decisions that the statutes have to be interpreted strictly within terms and language of statute and without intendments or any liberal interpretation. Further, Hon ble Supreme Court in case of M/s. India Aluminum Co. [1991 (55) E.L.T. 454 (S.C.)] and Hon ble Tribunal in case of M/s. Avis Electronics has observed that when provisions are stipulated for doing a particular act in a specific manner then it would mean that any deviation therefrom is not permitted at all and it should be performed in that manner itself as per Rules. 10. The contentions raised by applicant before this authority were also raised before Commissioner (Appeals) who has discussed each of the said submissions and given his findings. Government is in agreement with the said findings of Commissioner (Appeals). The violations pointed out in these cases can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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