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TMI Blog2015 (8) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... oods exported. The lower authority had observed that the applicant had taken Cenvat credit and also availed the benefit of higher rate of drawback and hence in terms of Customs Notification No. 68/2011-Cus. (N.T.), dated 20-9-2011 the claimant cannot avail both the facility simultaneously as the same would amount to availing double benefit. Accordingly, Original authority vide impugned Order-in-Original rejected the rebate claim. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcated the composite rates of drawback into Central Excise portion and customs portion and that too in 2 types of different situations (i.e.) when Cenvat credit facility has been availed and when no Cenvat facility is availed. In terms of Condition No. 6 to Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008; drawback of duty can be availed when Cenvat facility has been availed but the rates applicable is lower rate. The C.B.E. & C. Circular No. 19/2005-Cus., dated 21-3-2005 has also clarified that the concept of All Industry Rate of duty drawback that the rates are determined taking into account of average duties paid on inputs and in determining rates, the average (weighted average) consumption of imported/indigenous inputs of a repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se authorities that they have not availed Cenvat credit on inputs used in manufacture of grounds which are exported. 5.1 A written submission/counter reply to the Revision Application was also made by the Department vide its letter dated 26-3-2015 (received on 31-3-2015) wherein it was started as under - 5.1.1 The applicant has availed 9.5% drawback which is nothing but total drawback inclusive of all components i.e. Customs, Central Excise & Service tax, the rebate claim filed by them is liable to be rejected. 5.1.2 After issue of new drawback schedule introduced in Customs Notification No. 68/2011-Cus. (N.T.), dated 22-9-2011, the Customs Notification 103/2008-Cus. (N.T.), dated 29-8-2008 & C.B.E. & C.'s Circular No. 19/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue of admissibility of rebate claims taking into account the harmonious and combined reading of statutory provision relating to rebate as well as duty drawback scheme. Government notes that the term Drawback has been defined in Rule 2(a) of Customs, Central Excise Duties and Service Tax Drawback Rules 1995 (as amended) as under :- "(a) "drawback" in relation to any goods manufactured in India, and exported, means the rebate of duty chargeable on any imported materials or excisable materials used in the manufacture of such products." The said definition makes it clear that drawback is rebate of duty chargeable on materials used in the manufacture of exported goods. Rule 18 of Central Excise Rules, 2002 stipulates that where any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 18 of Central Excise Rules, 2002. In this case, the applicant has paid duty from Cenvat credit availed on capital goods. There is no bar on availing rebate of duty on goods exported, if the duty is paid through Cenvat credit available on capital goods, provided double benefit in form of higher rate of duty drawback and rebate has not been availed. In this case, the applicant has availed higher rate of drawback @ 9.5%. As such, the original authority's findings that the applicant has availed higher rate of drawback @ 9.5% is an admitted fact which has not been controverted by the applicant by way of any documentary evidences and reliance of the applicant on Circular No. 35/2010, dated 17-9-2010, also does not come to the rescue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) S.T.R. 536 (S.C.) has held that primacy to a Notification cannot be given over Rules as such interpretation will render statutory provisions in Rules nugatory and in the case of Commissioner of Trade Tax UP v. Kajaria Ceramics Ltd. reported in 2005 (191) E.L.T. 20 (S.C.) it was held on the issue of interpretation of statutes that context and parameters of statutory provisions under which a Notification is issued, are to be read in toto and when a Notification is issued under one statutory provision for same purpose as a chain of progress without overlapping, the ambiguity of contents of such Notification can be resolved by referring not only to statutory provisions but also to previous and subsequent Notification. Further, Government, goi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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