TMI Blog2008 (12) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... that actually no duty has been sufferd on their inputs and for some input chemicals they have utilized DEPB Scheme. It was concluded that no All-Industry Rate Drawback is available in case of availment of DEPB benefits at input stage as per Export Import Policy 2002-2007 and Relevant Notifications/Circulars. 4. The Commissioner (Appeals) while interpreting the Export Import Policy and relevant Notifications/Circulars in his own perspective concluded that Departmental officers have not correctly understood the relevant para of the Export Import Policy and the party is eligible for All Industry Rate Drawback in respect of such exports because they have not claimed any DEPB benefits in respect of such exports. 5. Aggrieved by the above Order of the Commissioner (Appeals), the applicant Commissioner made the following main pleadings in this Revision Application that :- (i) In the Drawback Schedule in Chapter 42 and 64 for Articles of Leather and Footwear in all the Serial/Sub-Serial Nos. i.e. for all the Articles of Leather and Leather footwear items the drawback rate is notified with the condition that "excluding those manufactured from duty free finished leather import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in the table annexed to Notification No. 26/2003-Cus. (N.T.), dated 1-4-2003. Notification No. 8/05-Cus. (N.T.), dated 18-1-2005 and Notification No. 36/2005-Cus. (N.T.), dated 2-5-2005 w.e.f. 5-5-2005. But these notifications envisages that the rates of Drawback shall not be applicable to export of a commodity or product if such commodity or product is manufactured by availing of facility under DEPB Scheme as contained in Para-4.3 of the EXIM Policy 2002-2007 and Para 4.3 of the Foreign Trade Policy 2004-2009 and that the provisions of Para 4.3.5 of EXIM Policy 2002-2007 and Para 4.3.5 of Foreign Trade Policy 2004-2009 which deals with applicability of Drawback. In the instant case, the exported goods are manufactured by availing DEPB facility on inputs and hence, all industry rate is not applicable to the Respondents. (iii) Para 4.3.5 of Foreign Trade Policy 2004-2009 provides that - "Normally, the exports made under the DEPB shall not be entitled for Drawback. However, the Additional Customs Duty/Excise duty paid in cash or through debit under DEPB shall be adjusted as Cenvat Credit or Duty Drawback as per rules framed by the Department of Revenue. (iv) Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of these chemicals in the manufacture of goods presented for export under Drawback claim. Proviso 2(g) of General Notices of Notification No. 26/2003-Cus. (N.T.), dated 1-4-2003, Proviso 2(g) of General Notes of Notification No. 8/2005-Cus. (N.T.), dated 18-1-2005 and proviso 7(g) of Notification No. 36/2005-Cus. (N.T.), dated 2-5-2005 under which the Respondents has claimed Drawback, clearly speaks that the rates of Drawback specified in the table shall not be applicable to export of commodity or product is manufactured or exported availing of the facility under the DEPB Scheme in respect of Chemical imported by them. Hence, it is crystal clear appears that Drawback rates envisaged in the Drawback Scheme is not applicable and accordingly Drawback claims filed by the Respondents are liable to be rejected. Further, Para (ii) of Second Proviso to Rule 3 of Drawback Rules, 1995 provided that no Drawback shall be allowed if the said goods are produced or manufactured using imported materials or excisable materials in respect of which duties have not been paid. Circular No. 3/99-Cus., dated 3-2-1999 clarified that Brand Rate of Drawback is admissible only against cash payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, hence, the Adjudicating Authority has correctly rejected the drawback claims of the Respondent and Order-in-Appeal which does not appear to be legal and proper may be set aside. 5.1 A Show Cause Notice under Section 129DD of the Customs Act, 1962 was issued to the Respondent M/s. Tata International. In response to the Show Cause Notice the Respondents filed cross-objections vide their letter dated 22-7-2006 wherein they made following main submissions that :- (i) Their claim is of "All Industry Rate of Drawback" under DBK Shipping bills and their exports are not under DEPB or DEPB-cum-DBK Shipping bills. (ii) As per Board's Circular No. 24/2001, dated 20-4-2001, as a matter of rule, no evidence of actual duties suffered on imported or indigenous nature of inputs used, even if the All Industry Rate has Customs position, should be insisted upon by the field formations. (iii) Their leather articles were manufactured from Raw-leather and not from finished leather and hence covered under DBK Schedule in Chapter - 42 and 64 without availing Cenvat Credit facility. (iv) Making a debit entry in DEPB passbook is also a mode of payment of duty. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Circular No. 24/2001, dated 20-4-2001 and 19/2005, dated 21-3-2005 clears the ambiguity and they are entitled to All Industry Rate Drawback. 6. Personal Hearing in the matter was finally fixed and concluded on 17-10-08 which was attended by Shri V. Nigudkar, Divisional Manager and Shri N.K. Chopra, Consultant as representative of the respondent party wherein they explained their case in detail and submitted written submissions having synopsis of their contentions on the issue. 7. The Govt. has carefully gone through the written and oral submissions as made in this case and also carefully perused the relevant Policy, Notifications, Circulars and cited judgments. 8. Government notes that in this case of export goods manufactured from inputs which are either imported at Nil rate of duty or imported on duty paid by utilizing DEPB scrip no duty (Basic or additional) had been paid in cash. These, so manufactured, goods were exported under claim of All Industry Rate Drawback. Govt. accordingly feels that instead of going into the aspects of provisions/conditions of all the notifications and circulars what is mandatorily required is that first eligibility of the claim be examined ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
