TMI Blog2015 (11) TMI 1642X X X X Extracts X X X X X X X X Extracts X X X X ..... ling application within 60 days as stipulated. N/N. 49/2010-Customs (N.T.), dated 17-6-2010 and the Circular No. 13/2010-Cus. came into effect only from 17-6-2010 and 24-6-2010, whereas the impugned export was for the month of April, 2010. As such, the time limit for filing application for fixation of Brand Rate of Drawback which came into effect only form 24-6-2010 cannot be extended to export of April, 2010. Brand rate fixation rightly rejected as time-barred - revision application allowed. - F.No. 380/49/DBK/2013-RA - 30/2015-CUS - Dated:- 16-11-2015 - Ms. Rimjhim Prasad, Joint Secretary ORDER This revision application is filed by Commissioner of Central Excise Service Tax, Patna (hereinafter referred to as Applicant) against the Order-in-Appeal No. 199/Pat/CEX/Appeal/2012, dated 11-10-2012 passed by the Commissioner (Appeals), Customs, Central Excise Service Tax, Patna with respect to Order-in-Original No. 04/DBK/Jt.Commr/2011, dated 8-8-2011, passed by the Joint Commissioner (Technical), Central Excise Hqrs., Patna. 2. Brief facts of the case are that M/s. Indian Oil Corporation Ltd., Barauni (hereinafter referred to as Respondent) filed an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Patna. A Show Cause Notice dated 28-2-2011 was issued to respondent alleging therein as to why the drawback application for the month of April, 2010 should not be rejected on the ground that it has been submitted beyond the permissible time limit as specified under Rule 6(1)(9) of the Customs Central Excise Duty Drawback Rules, 1995. 2.4 The Show Cause Notice was adjudicated by the Joint Commissioner (Tech.), Central Excise Hqrs., Patna who rejected the application for fixation of brand rate for the month of April, 2010 being not maintainable vide Order-in-Original No. 04/DBK/Jt.Commr/2011, dated 8-8-2011. 3. Aggrieved by the said order the respondent filed appeal with Commissioner (Appeals) who vide Order-in-Appeal No. 199/Pat/CEX/Appeal/2012, dated 11-10-2012 set aside the order of the original authority. 4. The order of the Commissioner (Appeals) was reviewed by the Department, who vide Review Order dated 10-1-2013 directed the Assistant Commissioner (RRA), Central Excise Service Tax, Patna to file Revision Application alongwith condonation of delay, on the following grounds :- 4.1 That the drawback claim relates to exports effected in April, 2010 and as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication of the order [as per Section 35EE(2)]. 5.4 In this case, the Appeal before the Hon ble CESTAT, Kolkata was inadvertently filed by dispatching the same on 14-1-2013 after obtaining the opinions of Committee of Commissioners, Central Excise, Patna and Jamshedpur in terms of provisions of Section 35B(2) of the Central Excise Act, 1944. 5.5 The Hon ble CESTAT, Kolkata vide its defect memo dated 21-1-2013 communicated that as per Section 129A(b)(c) the appeal regarding payment of drawback does not lie to the Tribunal. 5.6 When the defect memo was received from the Hon ble CESTAT, Kolkata it was realized that in the case, a Revision Application under Section 3SEE(1) is required to be filed before the Central Government. The matter was processed order of Commissioner has been obtained for filing revision application. 5.7 The delay is due to inadvertent mistake of law and is not intentional. It is genuine and bona fide. 6. A Show Cause Notice was also issued to the Respondent who in the cross objections have submitted as under :- 6.1 That under Rule 6 of the Customs, Central Excise Service Tax Duty Drawback Rules, 1995 where no amount or rate of drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The claim was required to be filed within 60 days from the date of let export order. This time limit could be extended by 30 days by the Commissioner if he was satisfied that the exporter was prevented by sufficient cause from filing the application within the aforesaid time period. The claim may be filed within 3 months from the date of Let Export Order. This time limit may be extended by 3 months by the AC/DC and by another 06 months by the Commissioner. 6.6 That due to the prevailing export operations constraints, logistics and the formalities needs to be done in filing monthly brand rate application, the brand rate application for the month of April, 2010 could not be submitted by 31-5-2010. That the application for the month of April, 2010 was filed on 30-6-2010. 6.7 That relying on the Notification No. 49/2010-Cus. (N.T.), dated 17-6-2010 issued on 24-6-2010 by CBEC relaxing the normal date of filing of brand rate application from 60 days to 90 days from the Let Export Order i.e. without application for condonation of delay, the respondent had filed the claim on 30-6-2010, without the application for condonation of delay, cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the department and the respondent reiterated the grounds of appeal and cross objections filed respectively. 8. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Orders-in-Appeal. 9. Government first takes up the application for condonation of delay in filing the Revision Application by the Department after a delay of 70 days. The department received the impugned Order-in-Appeal on 16-10-2012. The department filed appeal before CESTAT on 14-1-2013. The CESTAT, Kolkata vide its defect memo dated 21-1-2013 communicated that as per Section 129A(b)(c) the appeal regarding payment of drawback does not lie to the Tribunal. Then the department filed Revision Application before Government of India on 1-4-2013. The time calculation for filing revision application is as under :- A. Date of receipt of impugned OIA 16-10-2012 B. Date of filing appeal before Tribunal 14-1-2013 C. Total time taken for filing appeal before Tribunal A-B=90 days D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, Central Excise, Patna. A Show Cause Notice was issued to the respondent alleging therein as to why the drawback application for the month of April, 2010 should not be rejected on the ground that it has been submitted beyond the permissible time limit as specified under Rule 6(1)(9) of the Customs Central Excise Duty Drawback Rules, 1995. The Show Cause Notice was adjudicated by the Joint Commissioner (Tech.), Central Excise Hqrs., Patna who rejected the same vide Order-in-Original No. 04/DBK/Jt.Commr/2011, dated 8-8-2011. Aggrieved by the said order the respondent filed appeal with Commissioner (Appeals) who vide Order-in-Appeal No. 199/Pat/CEX/Appeal/2012, dated 11-10-2012 allowed the appeal of the party and set aside the Order-in-Original. Now the department has filed the Revision Application on the grounds mentioned at Para 4 above. 11. Government notes that the applicant has contended that as per Rule 6 of the Customs Central Excise Duty Drawback Rules, 1995, the time limit for filing application for brand rate was only 60 days and could be further condoned by Commissioner by another 30 days. The respondent on the other hand has argued that the time limit for f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication within 60 days as stipulated. 13. Further, Government observes that the Commissioner (Appeals) while passing the order has relied on the Circular No. 13/2010-Cus. dated 24-6-2010 which was issued clarifying the amendment made in Drawback Rules vide Notification No. 49/2010-Cus. (N.T.) 48/2010-Cus. (N.T.), dated 17-6-2010 vide which the revised time limits for filing the claim has made within 3 months from the date of Let Export Order instead of 60 days as per previous time limit. The appellate authority held that the claim of the respondent will be governed by the new provisions where the claim can be filed within 90 days from Let Export Order and this time limit can be further extended by 3 months and 6 months. 13.1 Government notes that the Notification No. 49/2010-Customs (N.T.), dated 17-6-2010 and the Circular No. 13/2010-Cus. came into effect only from 17-6-2010 and 24-6-2010, whereas the impugned export was for the month of April, 2010. As such, the time limit for filing application for fixation of Brand Rate of Drawback which came into effect only form 24-6-2010 cannot be extended to export of April, 2010. Any action for claiming brand rate fixation will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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