TMI Blog2016 (10) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the matter, the duty drawback which was taken by the appellant had to be refunded. That would be the position even de hors Rule 16A of the Duty Drawback Rules, 1995. Therefore, Rule 16A is a clarificatory provision clarifying the position of law which already exists in the form of Section 75 of the Customs Act, 1962, and therefore, will have retrospective effect - drawback to be recovered. - Decided against the appellant. On drawback of excise duty, the refund was granted along with 12% Simple Interest, though the said amount is refunded but the interest component has not been released to the appellant till date. If that be so, then the amount of interest shall be released in favour of the appellants within three months. - Civil A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant to surrender/ repay the duty drawback allowed earlier to the extent of the amount of sale proceeds not realised. The said notice was duly replied. 4. After receiving the reply of the appellant, the Assistant Commissioner of Customs by an order dated 01.07.1998 confirmed the demand of ₹ 99,69,684/- towards principal, along with interest at the rate of 24% per annum amounting to ₹ 71,73,851, aggregating to ₹ 1,71,37,545/-. It is not in dispute that the interest component has been worked out at 24% per annum for a three-year period between 26.05.1995 and 26.05.1998. 5. The said order dated 01.07.1998 was challenged by the appellant by way of a writ petition before the High Court contending that the order of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Cannanore Spinning Weaving Mills Ltd. v. Collector of Customs and Central Excise' [AIR 1970 SC 1950] and 'Amba Lal v. Union of India' [AIR 1961 SC 264]. It was held that Rule 16A of the Duty Drawback Rules 1995 could not be retrospective and that all payments made towards the Central Excise component of drawback before 06.12.1995 cannot be recovered even though the export proceeds have not been realized. Consequently, the orders passed by the lower authorities were set aside. 9. Aggrieved, Department challenged the said order before this Court by way of Civil Appeal No. 3743 of 2003. On 21.02.2003, the said Appeal was dismissed on grounds that there was no satisfactory explanation for delay in filing the appeal. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Section 37 of the Central Excise Act, 1944 is a general provision encapsulating the rule making power of the Central Government and nothing more. Rule 14 of the Duty Drawback Rules, 1971, only provided for repayment of erroneous or excess payment of drawback and clearly that provision could not be pressed into service in a situation where the export proceeds were not realised. Such a provision was introduced in the context of excise duty for the first time only by way of Rule 16A of the Duty Drawback Rules, 1995, with effect from 06.12.1995. The High Court observed that there being no corresponding earlier substantive provision in the Central Excise Act, 1944, Rule 16A could obviously not be made retrospective to apply even to those exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order passed by the High Court does not suffer from any infirmity and, therefore, no interference therein is called for. Suffice is to point out that the effect of Section 75 of the Customs Act, 1962, is that in case value/price of the goods exported is not received, it is to be presumed as if no drawback was ever allowed and in that view of the matter, the duty drawback which was taken by the appellant had to be refunded. That would be the position even de hors Rule 16A of the Duty Drawback Rules, 1995. Therefore, we are inclined to agree that Rule 16A is a clarificatory provision clarifying the position of law which already exists in the form of Section 75 of the Customs Act, 1962, and therefore, will have retrospective effect. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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