TMI Blog2022 (6) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... y availed. However, the appellants have not availed any rebate of duty paid on inputs/input services and therefore, there is no doubt benefit availed by them, which fact was not taken into account either by the respondent authorities or by the learned Judge. According to the respondents, the appellants are not entitled for doubt benefit and hence, their claim was rightly rejected by the respondent authorities. There are two different facts and circumstances projected by both the appellants and the respondents before this court. It is the firm stand of the appellants that they have not claimed any excess duty draw back, which is stoutly refuted by the learned counsel for the respondents. As such, taking note of the factual dispute arisen with regard to the availment of Cenvat Credit by the appellants, this court is of the view that it would be proper to remit the matter to the authority concerned to redo the entire process - Appeal disposed off. - Writ Appeal No. 429 of 2016, 2247 & 2248 of 2021 - - - Dated:- 7-4-2022 - THE HONOURABLE MR.JUSTICE R. MAHADEVAN AND THE HONOURABLE MR.JUSTICE J. SATHYANARAYANA PRASAD Appellant: M/s. Lakshmi Kumaran And Mr. S. Durai Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of drawback simultaneously. 4. Aggrieved by the order dated 29.10.2012, the appellant filed appeal before the Commissioner of Central Excise (Appeals), Salem, under section 35 of the Central Excise Act and it was rejected vide order dated 31.01.2013. Challenging the same, the appellant filed revision petition before the Joint Secretary, Ministry of Finance, New Delhi, under section 35EE of the Central Excise Act, which was also rejected on 24.08.2015 holding that the appellant had availed the facility of duty drawback under the Customs Act and hence, the sanction of rebate of duty paid on the finished goods would amount to double benefit. 5. Assailing the aforesaid order dated 24.08.2015, the appellant filed W.P. No. 1226 of 2016. The learned Judge dismissed the writ petition by observing that as per the proviso to Rule 3 of the Central Excise Duties and Service Tax Drawback Rules 1995, the appellant is not entitled to claim both the rebates. Feeling aggrieved, the appellant is before this Court with this Writ Appeal No. 429 of 2016. WA.Nos.2247 and 2248 of 2021: 6. The appellant is a manufacturer and exporter of cotton yarn falling under chapter 5205 of the ers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit only on the purchase of the 'capital goods'. In respect of the nputs' purchased and nput services' availed, they did not avail any CENVAT credit. It is further submitted that the Notification 68/2011-Cus. (N.T.) dated 22.09.2011, paragraph 15 provides for two types of draw back by way of (i) Lower rate of drawback when 'cenvat facility has not been availed on inputs or input services' and (ii) higher rate of drawback when 'cenvat facility is availed on inputs or input services'. It also defines that the phrase 'cenvat facility has not been availed' to mean non-availment of CENVAT credit in respect of inputs and input services and it does not restrict availment of CENVAT credit on capital goods. Therefore, in terms of the said notification, since no CENVAT credit was availed on 'inputs' and 'inputs services', the appellants availed drawback at All Industry Drawback Rate @ 9.5%. The customs authority after due verification of the drawback claim, sanctioned the same. It is their further submission that if the appellants availed CENVAT credit on capital goods, still they are eligible for availing higher rate of drawback. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the learned senior standing counsel, the orders impugned herein, do not call for any interference by this court. 11. Heard the learned counsel appearing for the respective appellants as well as the learned counsel for the respondents and also perused the materials placed on record. 12. It is the assertive stand of the appellants that they have not availed double benefit as alleged by the respondent authorities all along. Reference was also made to the Notification No.68/2011-Cus. (N.T.) dated 22.09.2011, wherein, in paras 6 and 15, it is stated as follows:- 6. The figures shown under the drawback rate and drawback cap appearing below the column Drawback when Cenvat facility has not been availed refer to the total drawback (customs, central excise and service tax component put together) allowable and those appearing under the column Drawback when Cenvat facility has been availed refer to the drawback allowable under the customs component. The difference between the two columns refers to the central excise and service tax component of drawback. If the rate indicated is the same in both the columns, it shall mean that the same pertains to only customs componen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the another one at lesser rate of drawback when cenvat facility has been availed comprising customs component only. 4. In the present case, it is submitted that the appellant / assessee had taken and utilised cenvat credit on capital goods and availed the benefit of higher rate of drawback. By pointing out the above communication, the learned counsel submitted that the appellants have already availed and utilised cenvat credit on capital goods. Further, the learned counsel referred to Rule 2(a) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, which defines the word 'draw back', as follows: RULE 2. Definitions. - In these rules, unless the context otherwise requires, [a] drawback in relation to any goods manufactured in India and export, means the rebate of duty or tax, as the case may be, chargeable on any imported materials or excisable materials used or taxable services used as input services in the manufacture of such goods] Thus, according to the respondents, the appellants are not entitled for doubt benefit and hence, their claim was rightly rejected by the respondent authorities. 14. There are two different facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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