9911796707
TMI Blog2001 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... 523/- under sub-serial No. 5404(b) under the Drawback Schedule. The reason for demand was that the disbursal of drawback at 13% subject to a maximum of Rs. 44/- per kg. of polyester filament yarn content instead of at 9% subject to a maximum of Rs. 30/- per kg. of polyester filament yarn content in terms of Notification No. 22/97-Cus (N.T.), dated 30-5-1997 read with corrigendum Drawback (AIR)/PN/1/97 dated 20-6-1997 was erroneous. The Commissioner (A) set aside the Original Order and allowed the appeal by holding that the legal statutory right cannot be taken away by applying the changes, if any, retrospectively and the rate of drawback prevailing on the date of export will prevail. 3.The applicant Commissioner's grounds of appeal are tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m is read in its entirety it would go to show that not only the rates were substantially changed for most of the headings but new additions and deletions were made changing the original notification completely. As per the Department's own admission, as is apparent from the copy of the Demand Notice, this corrigendum had amended (emphasis supplied) the Notification 22/97-Cus. (N.T.), dated 30-5-1997. (b) Section 28(1) ibid provides that when any duty (drawback) has been erroneously refunded, the proper officer may within six months from the relevant date serve a notice on the person requiring him to show cause why he should not pay the amount specified in the notice. In this case - (i) & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962 and Section 37 of the Central Excise Act, 1944. In case of any erroneous or excess payment of DBK, the DBK Rules, 1995 vide Rule 16 provides for recovery thereof (if not already paid) in the manner laid down in sub-section (1) of Section 142 ibid. In this case, after making the payment of DBK, it was found that such payment was erroneous, therefore the applicants were directed to repay the same or recovery thereof was to be made under Section 142 ibid. The ld. Advocate in his written submissions cited Section 129A ibid to emphasis that Govt. have jurisdiction over the cases relating to payment of drawback as provided in Chapter X and the rules made thereunder. In other words, Govt. can dispose of case relating to payment of drawbac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneously paid drawback also finds a reference in this notice. However, it is also observed that the language of this notice gives an impression as if the action is primarily being taken under Section 142 ibid. At the same time, it is also true that actually no coercive action was initiated, rather a personal hearing was given before the original authority confirmed the demand. In this regard, Govt. is of the view that an inappropriate or wrong reference of any section or rule would not vitiate the proceedings. Hence this point is not tenable. 7.Govt. would now examine the nature and scope of the impugned corrigendum issued on 20-6-1997. The Concise Oxford Dictionary gives the meaning of corrigendum as "a thing to be corrected especially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by express words or necessary intendment". 8.In the instant case the drawback rate, specified for S.S.No. 5404(b) in the Drawback Schedule issued vide Notification No. 22/97- Cus. (N.T.), dated 30-5-1997, at 13% subject to a maximum of Rs. 44 per Kg. of polyester filament yarn content was altered by a corrigendum dated 20-6-1997 and made 9% subject to a maximum of Rs. 30/- per Kg. of polyester filament yarn content. This by any argument cannot be claimed to be the result of any clerical mistake. 9. Duty drawback scheme is an export promotion scheme. Once the said schedule is out, the prospective exporter would determine his costing, including his profit, on the basis of the information so provided in this schedule. Any subsequent change i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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