TMI Blog2013 (4) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Nos. 371/2012, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the condition that the inadequacy of the AIR is established by the exporter and the intent to avail fixation of Special Drawback Rate is to be declared in the relevant shipping bill at the time of export. The C.B.E. C. Circular No. 10/2003-Cus. (N.T.), dated 17-2-2003 clarifies that pending finalization of application under Rule 7 filed by the exporter, he may be permitted the AIR and the differential amount may be sanctioned after the fixation of brand rate under Rule 7. Further the C.B.E. C. vide Circular No. 606/04/2011-DBK, dated 30-12-2011 has clarified that exporters opting for fixation of Special Brand Rate under Rule 7 are required to make a declaration to that effect on the shipping bill itself. The circular further states that failure to declare Tariff Item No. as 9801 i.e. option for claiming fixation of Special Brand Rate under Rule 7 in the shipping bill at the time of export shows that the exporter is satisfied by the AIR. Since the application is not in conformity of the Drawback Rules, Section 75 of the Customs Act, 1962, and Circulars and instructions issued thereunder, the said applications have been rejected vide impugned letter/Order of original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading under the Drawback Schedule wherein the exported goods in question are covered, in the application for fixation of brand rate is merely procedural. The same does not have any bearing on the fixation of brand rate of duty drawback under Rule 7 of the Drawback Rules. The nature of the error is purely technical/procedural which occurred due to inadvertence/oversight. The same has no bearing and does not hold any material relevance while fixing the brand rate of drawback. The lower appellate authority has proceeded on the basis that as per category A, the applicants are not permitted to avail credit, since the applicants have admittedly availed credit in the present case, they are not eligible to duty drawback under category A. It is submitted that the classification A (when credit has not been availed) and B (when credit has been availed) specified in the Drawback Schedule is relevant only when the claimants are claiming drawback at the All Industry Rate under the provisions of Rule 3 of the Drawback Rules read with the Drawback Schedule. The classification A and B under the Drawback Schedule is not relevant while fixing the brand rate of duty drawback under Rule 7 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature of one Mr. Ashok Kumar Pande, Sr. Technical Officer, who himself forgot to specifically mention the Act/rule/notification/circular details which entails that If the exporter chooses to opt for Brand Rate, then the exporter makes declaration in the Shipping Bill mentioning sub-serial/Tariff Item No. as 9801. Even, the only Board Circular as referred to by him (Circular No. 10/2003 in para 2. B of the C.B.E. C. letter on 30-12-2011) does not find a mention like as he says therein. This letter was given status of a public document issued by C.B.E. C., and by the force of this letter alone, both the lower authorities rejected the legitimate supplementary claim of brand rate of Duty Drawback application without specifically mentioning details of any provisions, rule, notification, circular etc. that proves the procedure followed by the assessee illegal. 5. Personal hearing was scheduled in these cases on 22-2-2013. Shri V.B. Kulkarni, DGM Indirect Tax and Shri A.S. Foujdar, Consultant appeared on 22-2-2013 on behalf of the Applicant No. (1). Shri A.S. Foujdar, consultant appeared on behalf of applicant No. (2). The applicants reiterated the grounds of Revision Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rate of Drawback determined, under notified AIR drawback under Rule 3 or 4 is less than four-fifth of the duties taxes suffered on inputs/input services used in manufacture of export goods, he may within specified period apply before the jurisdictional Central Excise Commissioner for determination of amount or rate of drawback (Brand Rate). Here, it must be kept in mind that the AIR drawback determined under Rule 3 or 4 of the Drawback Rules is specified in the Drawback Schedule by notification. The exporter can compare this with the facts of his case and decide if it is less than four-fifth of the duties taxes suffered and also whether he want to apply for fixation of Brand Rate in his case. (b) If the exporter chooses to opt for Brand Rate, then the exporter makes declaration in the Shipping Bill mentioning drawback sub serial/tariff item number as 9801. Then, within the specified time from let export date, the exporter applies for Brand Rate of drawback before the jurisdictional Central Excise authority During the pendency of this application, the exporter may be allowed the facilitation under the Board Circular No. 10/2003 subject to necessary conditions. (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen it would mean that any deviation therefrom is not permitted at all and it should be performed in that manner itself as per Rules. 11. 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 not be merely treated as procedural minor lapses and therefore the case laws cited by applicants can not be applied in these cases. Moreover, Government has already upheld the applicability of C.B.E. C. Circular No. 606/04/11-DBK, dated 31-12-2011 in its G.O.I. Revision Order No. 17/2012-Cus., dated 21-2-2012 (F. No. 371/15, 33, 34/DBK-11-RA-Cus.) in the case of same party namely M/s. Sandvik Asia. Since the applicants have misdeclared the Drawback S. No. of exported claims the penalty has been rightly imposed. 12. In view of above, Government finds no infirmity in the impugned Orders-in-Appeal and therefore upholds the same. 13. Government, therefore rejects the revision applications for devoid of merits. 14. So, ordered. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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