TMI Blog2008 (3) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... te, for the Appellant. Shri S.N. Prasad, SDR, for the Respondent. [Order]. - This appeal is directed against the Order-in-Appeal CAO No.116/2007/CAC /CC /KAP, dated 24-9-2007. 2. The relevant facts that arise for consideration are that the appellant herein are builders of Bus body on imported chassis. They imported chassis from China free of cost in SKD condition for making the bus body and after the body is build, the finished product namely busses were exported. The appellants were procuring the raw materials, both duty paid as well as non-duty paid. Initially, the appellants applied for Brand Rate on their exported vehicles, which was denied vide Ministry's letter F. No. 601/8701/227, 228, 229/2001-DBK, dated 31-7-2001 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, since the duty paid inputs were used in the said manufacture. He submits that Rule 17 of the Customs, Central Excise Duties and Service Tax Drawback (Amendment) Rules, 2006 allows for the reasons beyond his control, failed to comply with any of the provisions of these rules, exempt such exporter and allow drawback in respect of such goods. He relied upon the decision of the Tribunal in the case of Hero Cycles Ltd. v. CC, Shillong as reported at 2004 (171) E.L.T. 342 (Tri.-Del.) and in the case of Terai Overseas Ltd. v. CC (Port), Kolkata as reported at 2002 (141) E.L.T. 394 (Tri.-Kol.). He also relies upon the decision of the Tribunal in the case of Gypsy Exports v. CC, Amritsar as reported at 2001 (128) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. 5437858 3-10-2006 25-5-2007 It is also undisputed that the appellant had initially sought the Brand Rate fixation with authorities but it was rejected on the ground that there was no duty paying documents. It is also undisputed that in respect of above Shipping Bills, Brand rate sanction was received by the appellant. The only technical hitch come in way was that Shipping Bills were Free Shipping Bills and not Duty Drawback Shipping Bills. It is also undisputed that the appellants are eligible to get the duty drawback on the said buses exported by them. The appellant's entitlement of drawback is not disputed by the lower authorities. I find strong force in the contention raised by the Counsel that the conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination of the claims is conducted in the Drawback Department. The question, to our mind, before the Commissioner, under the Circular was, to permit the shipment and admit the Shipping Bills under claim for drawback. This in itself, would not be construed or considered to be an admission for the claim of drawback payment. We have examined the instructions in Circular No. 74/97, dated 30-12-97 and find that the Circular permits the conversion of free shipping bills, as in the present case, since DEEC shipping bills are free shipping bills and not duty paying shipping bills, to drawback shipping bills or DEEC-cum-shipping bills. It does not in any way imply that the drawback claim would be suo motu be paid, if such conversion is granted. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for eligibility to a drawback claim we do not find any absence of the same to be a case to deprive an exporter to file a S/Bill under claim for drawback. As this Circular could be complied with only in post-exportation cases before the Drawback amounts is determined. (e) We have considered the submission made by the learned DR which we fail to understand. It is for the appellant to determine and decide whether he wants to opt for 'All Industry Rate' or 'Brand Rate' fixed for his exports. That All industry Rate has not considered the duty element of certain adornments is a presumption; the 'All industry Rate' cannot be denied on that ground and the appellant be forced to adopt the 'Brand Rate' as has been made out in this case. When we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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