9911796707
TMI Blog2007 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 days delay in filing in respect of shipping bill No.1538 dated 3-5-2003. 2. The petitioner company imported the raw materials "celcon" used in the manufacture of bobbins under DEPB scheme vide bill of entry No.4796260 dated 8-4-2003 and paid basic Customs duty, additional Customs duty and special additional duty by way of debiting the DEPB licence vide shipping bill bearing Nos.18 dated 2-5-2003, 46 dated 3-5-2003, 1538 dated 3-5-2003 and 226 dated 14-5-2003. The petitioner company applied for fixing of brand rates for the bobbin holders under Rule 6 of the Customs and Central Excise Duty Drawback Rules, 1995. The second respondent rejected the application stating that three out of four shipping bills were time-barred and for the shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods and the duties paid on such materials or components: Provided that the Central Government may, if it is satisfied that the manufacturer or exporter was prevented by sufficient cause from filling the application within the aforesaid if me allow such manufacturer or exporter to file such application within a further period of thirty days 5. Admittedly, in respect of three bill of entries, the claim has been made by the petitioner beyond the period prescribed under the statute. Even the suggestion made by the second respondent - Deputy Commissioner of Customs directing the petitioner to approach the Government, which is the competent authority to condone the delay, has not been accepted by the petitioner or proceed with to approach the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originally such payment through DEPB cannot be regarded as a payment by cash and as such not entitled to drawback. Subsequently, by means of another Circular No. 41 of 2005 dated 28- 10-2005, the Government of India, Ministry of Finance, has clarified the matter the effect that even if payment made under DEPB benefit of drawback would available. He contended that the Circular No. 41 of 2005 has to be read and treated as a clarificatary in nature and it has to be given effect to from the original date of 3-2-1999. 8. In order to appreciate the contention raised by the learned Counsel for the petitioner, both the circulars are extracted here. Circular No. 3/99- Customs dated 3-2-1999 reads thus: "Government of India Ministry of Finance (De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above mentioned subject and to state that an issue has been raised as to whether additional Customs duty paid through debit under DEPB can be allowed as brand rate of duty drawback. 2. The matter has n examined by the Board. Hitherto, the additional Customs duty paid in cash only was adjusted as Cenvat credit or duty drawback while the same paid through debit under DEPB was not allowed as duty drawback. In the Foreign Trade Policy 2004-2009, which came into force w.e.f. 1-9-2004, it has been provided under Paragraph 4.3.5 that the additional customs duty/excise duty paid in cash or through debit under DEPB shall be adjusted as Cenvat credit or duty drawback as per the rules framed by the Department of Revenue. Taking note of this change, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore prospective is to examine the original circular with a view to ascertain whether that original circular without the aid of the amending circular is capable of taking within it what was subsequently included after the amending circular. In this case, the earlier Circular No. 3/99- Customs dated 3-2-1999 is very categorical in its terms that no drawback is admissible against the debit of dues made in DEPB or in the passbook issued under the earlier passbook scheme. However, by means of the subsequent Circular No. 41 of2005 dated 28-10-2005 after examining the fact that hitherto the additional Customs duty paid in cas only was adjusted as duty drawback while the same paid through debit under DEPB was not allowed as duty drawback and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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