TMI Blog2013 (10) TMI 1314X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh, Joint Secretary Shri Ashutosh Uppadhaya, Advocate, for the Assessee. None, for the Department. ORDER This revision application is filed by the Commissioner of Customs (Preventive), Jamnagar against the order-in-appeal 79-81/COMMISSIONER (A)/JMN/2012 dated 14-9-2012 passed by the Commissioner of Customs (Appeals), Jamnagar with respect to order-in-original No. 03/ADC/2012, dated 10-2-2012 passed by the Additional Commissioner of Customs (Prv.), Headquarter, Jamnagar. M/s. Rama Phosphate Ltd. is the respondant in this case. 2. Brief facts of the case are that the applicants are engaged in the export of de-oiled cake (DOC) as a merchant exporter and exported DOC from the manufacturing premises of M/s. Rama Phosphate Ltd., Indore under claim of duty drawback. The said manufacturer had manufactured the said DOC by solvent extraction process by using Hexane, one of the raw materials in the extraction of Soya Meal, which was procured by them without payment of duty under Rule 19(2) of the Central Excise Rules, 2002. The use of duty free Hexane was admitted by the Works Manager of the manufacturer in his statement. As per relevant Drawback notification, the drawb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od involved in present dispute is 2006-07 to 31-8-2010, hence, the drawback claims filed by the respondent No. l pertaining to the above period were governed by the provisions of Notification No. 81/2006-Cus. (N.T.), dated 13-7-2006, 68/2007-Cus. (N.T.), dated 16-7-2007 and 103/2008-Cus. (N.T.), dated 29-8-2008. As per clause 7(f) of Notification No. 81/2006-Cus. (N.T.) and 68/2007-Cus. (N.T.), dated 16-7-2007 and clause 8(f) of the Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008. 4.3 Rule 3(1)(ii) of the DBK Rules, 1995 provides as under :- No drawback shall be allowed if the said goods are produced or manufactured using imported materials or excisable materials or taxable services in respect of which duties or taxes have not been paid. In present case the goods exported by the respondent No. 1 were manufactured by availing the facility of Rule 19(2) of Central Excise Rules, 2002 i.e., raw materials/inputs were procured without payment of duty, hence, as per the above said provisions the respondent No. 1 was not eligible for drawback (Excise or Customs components). However, the appellate authority has overlooked the above provisions while deciding the matter in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod under dispute i.e., (2006-07 to 31-8-2010) Drawback claims (excise or customs components) were not eligible if the goods exported have been manufactured availing facility under Rule 19(2) of Central Excise Rules, 2002; (ii) The appellate authority has grossly misinterpreted the provisions of Notification No. 84/2010-Cus. (N.T.), dated 17-9-2010 read with C.B.E. C. s Circular No. 35/2010, dated 17-9-2010 and applied the same retrospectively to decide the matter in favour of the respondents. (iii) The appellate authority also has failed to take into consideration the clarification issued by the C.B.E. C. s drawback unit vide letter dated 4-1-2012 under file No. 609/292/2008-DBK. (iv) In the judgments of various appellate authorities it has been unanimously observed/held that drawback (excise or customs portion) is not admissible if the duty free raw materials/inputs have been used in the manufacture of export goods. (v) All the respondents are liable for penalty as per the findings of the adjudicating authority. 5. A show cause notice was issued to the respondent under Section 129DD of Customs Act, 1962 to file their counter reply. The respondent vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otfin. No. 103/2008-Cus. (N.T.) stipulates as under :- (8) The rates of drawback specified in the said Schedule shall not be applicable to export of a commodity or product if such commodity or product is - (a) manufactured partly or wholly in a warehouse under Section 65 of the Customs Act, 1962 (52 of 1962); (b) manufactured or exported in discharge of export obligation against an Advance Licence or Advance Authorization issued under the Duty Exemption Scheme of the relevant Export and Import Policy or the Foreign Trade Policy : Provided that where exports are made against Advance Licences issued on or after the 1st April, 1997, in discharge of export obligations in terms of Notification No. 31/97-Customs, dated the 1st April, 1997, or against Duty Free Replenishment Certificate Licence issued in terms of Notification No. 48/2000-Customs, dated the 25th April, 2000, or against Duty Free Replenishment Certificate Licence issued in terms of Notification No. 46/2002-Customs, dated the 22nd April, 2002, or against Duty Free Replenishment Certificate Licence issued in terms of Notification No. 90/2004-Customs, dated the 10th September, 2004, drawback at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt notification No. 84/2010-Cus. (N.T.), dated 17-9-2010 provides that customs component of AIR drawback shall be available even if the rebate of Central Excise duty paid on raw material used in the manufacture of export goods has been taken in terms of Rule 18 of the Central Excise Rules, 2002, or if such raw materials were procured without payment of Central Excise duty under Rule 19(2) of the Central Excise Rules, 2002. It is clearly stipulated in the said clarification that present notification 84/2010-Cus. (N.T.), dated 17-9-2010 provides that customs component of AIR Drawback shall be available even if the rebate of excise duty paid on raw materials under Rule 18 or if such raw materials were procured with payments of duty under Rule 19(2). This facility was not available in earlier notification issued prior to Notfin. No. 84/2010-Cus. (N.T.), dated 17-9-2010. This notification is effective from 20-9-2010. So, it cannot be made applicable to export made prior to 20-9-2010. Government therefore holds that Commissioner (Appeals) has erred in making the said notification and circular applicable to export made prior to 20-9-2010. As such, the duty drawback benefit is not admis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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