TMI Blog2007 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... n this respect and direct the third respondent to condone the 2 days delay in filing with respect to 2 shipping bill Nos. 18 dated 2-5-2003 and 46 dated 3-5-2005 and 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 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amount of rate of drawback therefore stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de only adjustments in DEPB credit and has not paid the duty in cash. 7. Learned Counsel for the petitioner relied on a Circular No. 3/99 Customs dated 3-2-1999 to contend that though 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 contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rand rate of duty drawback where inputs used in the manufacture of export products are imported availing of DEPB - Clarification - Regarding. The undersigned is directed to invite your attention on the 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 addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the Legislature to have treated what is now included as having been included at all limes. One possible way of testing whether the amending circular is merely declaratory or is substantive and is therefore 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 date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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