TMI Blog2018 (5) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... e of drawback under Rule 7. As discussed earlier, on a plain reading of the Drawback Rules, we do not find any such prohibition as is sought to be culled out by the CBEC in its Circular dated 30th December, 2011. The CBEC whilst clarifying the said Drawback Rules, has imposed limitations/restrictions which are clearly not provided for in the Rules and has the effect of whittling down the Drawback Rules. Under the garb of clarifying the Rules, the CBEC cannot incorporate a restriction / limitation, which does not find place in the Drawback Rules. In the applications made by the petitioner, it has very clearly stated that it has purchased partial polyester yarn during the period for which the application for duty drawback is made by making payment of excise duty and education cess from the two suppliers. That is treated as deemed export and entitled for benefit of duty drawback at All Industry Rate. The drawback is 4% as specified in Box 'A' when no CENVAT Credit is availed and 4% in Box 'B' when CENVAT Credit is availed. When the same rate is presented in Box 'A' and 'B', the exporter is entitled for drawback and the issue of input credit availed or not is not relevant. Once t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bordinate servants and agents - (i) to forthwith sanction and grant to the Petitioner the deemed export drawback at the rate mentioned in column B of the Schedule of the All Industry Rate of Duty Drawback published vide Notification No. 68/2011-Customs (N. T.) dated 22.09.2011; (ii) to forthwith sanction and grant the drawback of ₹ 7,87,837/- and ₹ 50,54,299/- in respect of POY supplied by the DTA units to the Petitioners at the rate of 4 per cent specified in column B of Serial No. 540203 of the Schedule of All Industry Rate of Duty Drawback as claimed in Applications for duty drawback dated 09.11.2013 and 10.03.2014 of the Petitioners (Exhibits H Q hereto) 3. It is the case of the petitioner that in terms of a letter/permission dated 29th July, 1994 and as amended from time to time, the petitioner has established, inter alia, an Export Oriented Unit (EOU) for the manufacture of synthetic yarn at its factories, details of which are set out in para 6 of the petition. The petitioner is engaged in the manufacture and export of all types of synthetic yarns and of the nature described in para 7 of the petition. It is claimed that Unit-I of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92, which says that the deemed export drawback in terms of Para 8.3(b) of the FTP, including as per Column 'B' of All Industry Rate of Duty Drawback under the Duty Drawback Schedule of the Department of Revenue is not admissible if the facility of CENVAT Credit/rebate is availed. However, if the basic customs duty has been paid, then, that is refundable in terms of para 8.5 of the FTP. However, Para 8.5 prescribes that such supplies shall be eligible for deemed export drawback on customs duty paid on inputs/components. Thus, there is a clarification that basic customs duty paid can be taken back as brand rate of duty drawback, based on actual duty paid documents as per the procedure prescribed in Chapter 8 of the FTP and Chapter 8 of the HBP Volumn-I. It is in these circumstances that the petitioner stated that in the past, drawback at the rate mentioned in this Schedule (Column 'B') of the Schedule of the All Industry Rate of Duty Drawback was granted. 6. For the period October, 2012 to March, 2013, the petitioner claimed drawback of 7,87,837/- in respect of polyester yarn supplied by the DTA units to the petitioner at the rate of 4% under serial number 540203 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully gone through the available material on record and the written submissions made by the Applicants during the Course of personal hearings. .. 10. It is not a dispute that the applicants are entitled to claim the refund of duty drawback as per para 8.5 of FTP for custom duty paid on inputs/components. The only issue is the route through which they are entitled to claim the refund. The applicants are insisting that they are entitled to claim the duty drawback as per column 'B' of AIR schedule notified by D/O Revenue, whereas the department's view is that the applicants can get the refund only after submission of documentary evidence in respect of custom duty paid and getting the same fixed through route of brand rate fixation. 11. On perusal of the provisions it is noted that for refund of drawback Para 8.5 of the FTP categorically provides that, supplies will be eligible for deemed export drawback in terms of Para 8.3(b) of FTP on Central Excise paid on inputs/components, Provided CENVAT credit facility/rebate has not been availed by applicant . It further provides that .....Such supplies will however be eligible for deemed export drawback on custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he FTP 2015-2020. In this connection, its noteworthy that the Policy Circular No. 9(RE-2013)/2009-14 dated 30.10.2013 was issued to clarify the aforesaid position. The FTP 201520 only takes into account the clarified position of FTP 2009-14 and in no way can be considered as the amendment of policy provision. Therefore, the contention of the applicants is not tenable. 12. When this petition was filed and a copy served on the respondents, the Join Development Commissioner in the office of the Development Commissioner, SEEPZ, Special Economic Zone (SEZ), Andheri (East), Mumbai 400 096 has filed an affidavit in reply. In that affidavit in reply, the stand is that deemed export scheme has been devised to neutralise the duty components, namely, terminal excise duty on the finished products and the excise duty/customs duty on the inputs (raw materials/components). The excise duty on finished products is either abinitio exempted or the same is reimbursable. On the inputs, there may be two components, namely, excise duty on the domestic inputs and customs duty on the imported inputs. In case of deemed exports, domestic supplier has the option of claiming all duties on inputs back th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be made to the Regional Authorities or Development Commissioner for fixation of brand rate. It was not required to file an application to ANF 8 for fixation of brand rate. Mr. Shah was at pains to point out that Para 8.5 of the FTP 20092014 read with Para 8.3.3 of HBP Volume I makes it clear that while claiming deemed export drawback in terms of Para 8.3(b) of FTP 2009-2014 that the applicant has an option to claim drawback at the rate specified in the Schedule of All Industry Rates of Duty Drawback published by respondent no. 1. The applicant has further option to seek fixation of brand rate in case the condition mentioned in Para 8.3.3 of the HBP Volume I is satisfied. Once a notification has been issued being Notification No. 68/2011-Customs (NT) dated 22nd September, 2011 and respondent no. 1 has published the revised Schedule of All Industry Rates of Duty Drawback for 2011-12, then, that has two columns, namely, Column 'A' and Column 'B'. The Column 'A' is applicable when credit is not taken and Column 'B' is applicable when credit is taken. Thus, respondent no. 1 has consciously specified two separate rates of drawback in the schedule of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese circumstances that the interpretation placed on these policies is neither perverse nor vitiated by an error of law apparent on the face of the record warranting interference of this court in writ jurisdiction. Mr.Jetly would submit that this is not a court of appeal, but in writ jurisdiction this court is concerned with only one aspect, namely, whether the application of the petitioner was duly considered and consistent with the policy, a decision has been taken or not. If the view taken by the respondents is in consonance with the terms, then, the interpretation of the policy by the respondents does not call for any interference in writ jurisdiction merely because another view is possible. Hence, the writ petition is devoid of merits and it be dismissed. 16. With the assistance of the learned counsel appearing for both sides, we have perused the petition and all annexures. We have also perused the affidavit in reply and the materials in the compilation tendered by Mr. Shah. In the case of Alfa Laval (India) Ltd. (supra), this court was concerned with a contention of the petitioner that it is entitled to brand rate of drawback in terms of Rule 7 if the All Industry Rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/ Associations are consulted and their suggestions as well as their requests and justifications for suitable enhancement of rates and also any changes sought in the scheme of the Drawback Table or the entries therein, are taken note of whilst finalizing and announcing the new All Industry Rates and which generally are fixed as a percentage of the FOB price of the exported goods. Thereafter, the new All Industry Rate of drawbacks are notified every year after factoring in the changes in duty rates effected by the Budget. This is generally the procedure followed whilst arriving at the All Industry Rate and at which rate the exporter can claim drawback under Rule 3. It is for this reason that Rule 3 provides that subject to the provisions of (a) the Customs Act, 1962 and the Rules made thereunder; (b) the Central Excise and Salt Act, 1944 and the Rules made thereunder; (c) the Finance Act, 1994 and the Rules made thereunder; and (d) the Drawback Rules, a drawback may be allowed on the export of goods at such amount, or at such rates, as may be determined by the Central Government. This is obviously, subject to the other provisions set out in Rule 3. 20. Rule 4 deals with the revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such exporter at such amount or at such rate as may be determined to be appropriate, if the amount or rate of drawback determined under rule 3 or, as the cased may be revised under rule 4, is in fact less than four-fifth of such amount or rate determined under this sub-rule. (3) Where an manufacturer or exporter desires that he may be granted drawback provisionally, he may, while making an application under sub-rule (1), apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, in writing in this behalf in the manner as has been provided in clause (a) of sub-rule (2) of rule 6 for the applications made under that rule and the grant of provisional drawback shall be considered in the manner and subject to the conditions specified in clauses (b) and (c) of sub-rule (2) and sub-rule (3) of rule 6, subject to the condition that bond required to be executed by the claimant shall only be for the difference between amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4 by the Central Government and the provisional drawback authorised by the Commissioner of Central Excise or the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is clearly unsustainable and has to be struck down. On the same parity of reasoning, and more so because the orders/letters impugned herein, rely upon the said Circular to reject the applications of the Petitioner seeking determination of the Brand Rate of drawback under Rule 7, even the said impugned orders/letters will have to be set aside. 19. In the instant case, the petitioner's applications at pages 68 and 91 to 95 of the papers book in clearest terms stated that they have purchased partially polyester yarn during the period 1st October, 2012 to 31st March, 2013 by making payment of excise duty and education cess from M/s. Beekaylon Synthetics Private Limited and B. F. Industries Limited, which is treated as deemed export and entitled for benefit of duty drawback at All Industry Rate. The drawback of 4% is specified in Box 'A' (when no CENVAT Credit is availed) and also 4% in Box 'B' (when CENVAT Credit is availed). When same rate is presented in Box 'A' and 'B', the exporter is entitled for drawback and issue of input credit availed or not is not relevant. Accordingly, the petitioner stated that they are claiming drawback in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2020 only takes into account the clarified position of FTP 2009-2014 and in no way can be considered as the amendment of policy provision. Therefore, the contention of the applicant is not tenable. 20. In the applications made by the petitioner, it has very clearly stated that it has purchased partial polyester yarn during the period for which the application for duty drawback is made by making payment of excise duty and education cess from the two suppliers. That is treated as deemed export and entitled for benefit of duty drawback at All Industry Rate. The drawback is 4% as specified in Box 'A' when no CENVAT Credit is availed and 4% in Box 'B' when CENVAT Credit is availed. When the same rate is presented in Box 'A' and 'B', the exporter is entitled for drawback and the issue of input credit availed or not is not relevant. 21. It was this simple aspect of the matter, which should have been taken into consideration. However, what we find is that there is a reference to the whole policy and every time, the petitioner was informed that the route chosen is the real issue. We are not concerned with the route chosen for in respect of both, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may, if he is satisfied that the manufacturer or exporter was prevented by sufficient cause from making the application within the aforesaid time, allow such manufacturer or exporter to make such application within a further period of thirty days; (2) On receipt of the application referred to in sub-rule (1), the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, may, after making or causing to be made such inquiry as it deems fit, allow payment of drawback to such exporter at such amount or at such rate as may be determined to be appropriate, if the amount or rate of drawback determined under rule 3 or, as the cased may be revised under rule 4, is in fact less than four-fifth of such amount or rate determined under this sub-rule. (3) Where an manufacturer or exporter desires that he may be granted drawback provisionally, he may, while making an application under sub-rule (1), apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, in writing in this behalf in the manner as has been provided in clause (a) of sub-rule (2) of rule 6 for the applications made unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the compilation tendered is that there are duty drawback rates effective from 1st October, 2011. In that, there is a Schedule and that Schedule under heading Chapter 3 includes Polyester Filament Yarn. The tariff item is 540203. Box 'A', drawback is when CENVAT facility has not been availed and Box 'B', drawback is when CENVAT facility has been availed. There is drawback rate and drawback cap per unit. What we have been shown is the judgment of this court and which clearly holds that the scheme is not to deny the benefit by placing obstacles and hurdles. In the instant case, Chapter 8 of the HBP is titled as Deemed Exports . In that, there is a procedure for claiming deemed export drawback and terminal excise duty refund/exemption. That is in Para 8.3.1. In that, it is stated in Para 8.3.3 that where All Industry Rate of Drawback is not available or same is less than 4/5th of duties actually paid on materials or components used in production or manufacture of the said goods, an application in ANF 8 along with prescribed documents may be made to RA or DC for fixation of brand rate. The recipient may claim benefits on production of a suitable disclaimer from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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