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TMI Blog2015 (11) TMI 1642X X X X Extracts X X X X X X X X Extracts X X X X ..... III(20)l/Tech/DBK/2010/237, dated 5-7-2010 that the same is not maintainable for the following reasons :- 1. The application submitted is not in the proper format as prescribed. The declaration required to be filed alongwith the application is also not enclosed with the application. 2. The application has not been received within the prescribed time limit of 60 days as per provisions of Rule 6 of the Customs, Central Excise Duties & Service Tax Drawback Rules, 1995. 3. The copies of the shipping bills/bills of entry have not been attested as required. The respondent vide Letter No. BR/Finance/Drawback/77/2010, dated 23-7-2010 filed a revised application which was received in the office on 27-7-2010 alongwith revised annexure of brand rate. The department vide Letter C. No. VIII(20)l/Tech/DBK/2010/352, dated 29-7-2010 further pointed out to the respondent that the "Declaration regarding non-availment of CENVAT Credit and non-claiming remission of Brand Rate in case of any upward, assessment of Crude Oil Bills of Entry" were not duly signed and they were requested to expedite reply for early processing of their application. 2.2 The respondent vide Letter N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om filing the application within the such time period 60 days. 4.2 That in the present case the claim of drawback under brand rate to be fixed was filed on 91st day from Let Export Order and Commissioner also did not grant condonation of delay. That the adjudicating authority was correct in rejecting such application for fixation of brand rate when the new time period (of 3 months) vide Notification No. 49/2010-Cus. (N.T.), dated 17-6-2010 became effective prospectively only and the time limit of 60 days related to the case (first shipping bill of 1-4-2010) had already lapsed on 30th May, 2010 itself. That the period of 60 days expired for all the exports made in April, 2010 before the date of application filed on 30-6-2010. 4.3 That the new time period prescribed by the amending Notification No. 49/2010-Cus. (N.T.), dated 17-6-2010 cannot be made applicable for the cases related to exports effected prior to issue of amending Notification. 5. A request for condonation of delay in filing the Revision Application was also made on the following grounds : 5.1 A Revision Application against Order-in-Appeal No. 199/Pat/Cex/ Appeal/2012, dated 11-10-2012 in the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturing unit for determination of the amount or rate of drawback, provided that such Commissioner if he is satisfied that the manufacturer was prevented by sufficient cause from filing the application within the aforesaid period of 60 days may allow further extension of 30 days in filing the brand rate application. 6.2 That the products of Barauni Refinery is cleared for export to Nepal on daily basis through multiple tank lorries from Refinery as well as from various Marketing Terminal. That bills of export duly endorsed by Customs are collected from multiple land customs by the marketing locations which in turn handover the same to Barauni Refinery for filing monthly brand rate application. 6.3 That in IOCL there is necessity to file brand rate application on monthly basis due to fluctuation in input-output ratio under DBK-I and average rate of customs duty under DBK-II on monthly basis. That it is generally difficult for IOCL, Barauni Refinery to complete all the formalities within 30 days by collecting bills of export from Land Customs Station, it's reconciliation at marketing locations, submission to Refinery for enclosure in the brand rate applications, prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13/2010, dated 24-6-2010 was applicable for exports from May, 2010 onwards only. 6.9 That vide letter dated 18-8-2010, the respondent applied for the Condonation of delay in filing, stating the situation which led to apply for brand rate fixation without the related condonation of delay. That the grounds pleaded for the condonation of delay were the same grounds, pleaded by them in their various earlier applications for condonation of delay and which had been granted and allowed by the department. 6.10 That the respondent submitted the documents in support of the grounds stated praying for an early fixation of the brand rate for April, 2010 but the same were turned down by the Joint Commissioner and denied the fixation of brand rate. 6.11 That the Commissioner (Appeal) allowed the appeal on the provision of the Board Circular No. 13/2010, dated 24-6-2010 wherein the time limits to file the brand rate application had been increased from 60 days to 3 months. 6.12 That the Commissioner (Appeals) had rightly passed the order because the Notification 49/2010-Cus. (N.T.), dated 17-6-2010 is applicable for all the claims pending as on the date of notification. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi in case of M/s. High Polymers Ltd. vide order dated 4-8-2011 and Hon'ble Bombay High Court in case of UOI (Revisionary Authority) v. M/s. EPCOS India Pvt. Ltd. & Anr. [2013 (290) E.L.T. 364 (Bom.)] in order dated 25-4-2012 have held that the period spent in prosecuting the proceedings bona-fidely before the CESTAT, which had no jurisdiction, have to be excluded by giving the benefit of the provision of Section 14 of Limitation Act, 1963 while reckoning the time limit for filing revision application. 9.2 As such, after excluding time elapsed before Tribunal the applicant filed this revision application in 70 days after initial 90 days period, which falls within condonable limit of 90 days. Hence, Government condones the said delay and proceeds to examine the Revision Application on merits. 10. From the records, Government observes that the issue for decision is rejection of claim of Brand Rate Fixation for the export for the month of April, 2010, as time barred, since the same has been filed after expiry of 60 days period from the "Let Export" date stipulated in Rule 6 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. Government observes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months from the date relevant for the applicability of the amount or rate of drawback in terms of sub-rule (3) of rule (5) apply in writing to the Commissioner of Central Excise having jurisdiction over the manufacturing unit, of the manufacturer exporter or, of the supporting manufacturer, as the case maybe, for determination of the amount or rate of drawback thereof stating all the 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". 11.2 The Commissioner (Appeals) and respondent on the other hand have relied upon amendment to Rule 6 as amended vide Notification No. 49/2010-Customs (N.T.), dated 17-6-2010. 12. Government notes that the manufacturer or exporter may file application for fixation of brand rate under Rule 6 of Customs & Central Excise Duty Drawback Rules, 1995 if no rate is determined. As per the provisions of Rule 6(1) of the Customs & Central Excise Duty Drawback Rules, 1995, the application for determination of rate of drawback is required to be filed within 60 days for the date relevant. In the instant case, Government finds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivalent to 1% of the FOB value of exports or Rs. 1,000/- whichever is less, shall be payable for applying for grant of extension by the AC/DC and an application fee of 2% of the FOB value of exports or Rs. 2,000/- whichever is less, shall be payable for applying for grant of extension by the Commissioner. Therefore, the new time period prescribed by the amending Notification No. 49/2010-Cus. (N.T.), dated 17-6-2010 cannot be made applicable for the cases related to exports effected prior to issue of amending Notification. As such, contention of the Commissioner (Appeals) regarding the claim of the respondent will be governed by the new provisions laid down under said circular is not tenable. 13.2 Further, Government also observes that Hon'ble Supreme Court has laid down the principle in the case of ITC (Ltd.) v. CCE, New Delhi - 2004 (171) E.L.T. 433 (S.C.) and Paper Products Ltd. v. CC - 1999 (112) E.L.T. 765 (S.C.) that simple and plain wording of applicable statutory provisions as elaborated vide relevant Notifications/Circular are to be strictly adhered to and no liberal interpretation is permissible. 14. In view of above circumstances, Government finds that Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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