TMI Blog2018 (9) TMI 1737X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Chandrasekar, for M/s.Sarvabhauman Associates For the Respondents : Mr.S.Gururmoorthy ORDER This writ petition has been filed by the petitioner challenging the order passed by the first respondent in Order No.1714/11-CX and for a direction to the third respondent to refund a sum of ₹ 6,16,944/-. 2.0. The petitioner is a manufacturer and exporter of polypropylene mats. During 2007, the petitioner exported 50,776.730 kgs of polypropylene mats along with 374.031 kgs of packing material under Duty Free Import Authorization (DFIA) scheme and issued with a license bearing SL.No.3510020104/3/26/00, dated 27.12.2006. As per SION H229, the petitioner was allowed to import 61,952.000 kgs of polypropylene granules as raw ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.Petro Plast Industries Limited, the third respondent has rejected the same, by his order, dated 18.07.2008, passed in Order No.103/2008 holding that as per Foreign Trade Policy and drawback rules, only the duty paid by the exporter can be reimbursed. The third respondent has further stated that claiming of additional customs duty and cess paid by the importer as refund by the exporter is not at all envisaged. Hence, aggrieved by the order passed by the third respondent, the petitioner has preferred an appeal before the 2nd respondent. The second respondent, by his order dated 04.06.2009, passed in Appeal No.58 of 2009 has dismissed the appeal holding that the petitioner has not produced any valid evidence to prove that M/s.Petro Plast Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue a direction to refund a sum of ₹ 6,16,944/- to the petitioner. 4. The learned counsel appearing for the respondents would submit that as per proviso to Rule 3(c) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 (hereinafter referred to as 'the Rules ), where the duty paid is taken as credit, drawback admissible on the goods shall be restricted to the credit already availed. It is the contention of the petitioner that irrespective of the fact whether the importer had availed Cenvat Credit or not, he is eligible for the reimbursement. If the Additional Customs Duty was refunded as claimed by the petitioner, then the petitioner will get this amount as refund/drawback and the importer M/s.Petro Plast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs at all stages and cited Foreign Trade Policy 2006-2007, 2007-2008 and 2009 a basis for their claim. Therefore, the full version of para 4.4.6 of Foreign Trade Policy 2007-2008 is reproduced below for better appreciation. Once transferability is endorsed, imports against authorization or transfer of imported inputs shall be subject to payment of applicable additional customs duty / excise duty. While endorsing transferability, authorization would bear a note as to liability of such additional customs duty / excise duty. Such additional customs duty / excise duty would be reimbursed to exporter as drawback in case of local sales by excisable unit, CENVAT credit would be equal excise duty already paid. 5. It is submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat for inputs imported or procured indigenously Cenvat credit for inputs either imported or procured indigenously 8. As per para 4.4.6 of Foreign Trade Policy -2007-08, when DFIA licence is transferred to the third parties, owing to the quantity restrictions imposed on import of Polypropylene granules, imports are subjected to additional customs duty or CVD and an endorsement to that effect has to be made in the license. The additional duties paid against the goods imported under the license will be eligible for Cenvat Credit, if sold locally or shall be claimed as drawback if used in exports. 9. The petitioner had made a claim of drawback of the Additional Customs Duties paid by the transferee unit - M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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