TaxTMI 
TaxTMI 
2009 (12) TMI 477
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....d notice/letter stating that excess drawback was claimed and paid due to wrong classification and called upon the petitioner to repay the excess amount of Rs. 1,00,142/- within fifteen days from the date of receipt of the notice/letter. Petitioner submitted a reply on 29-12-2003 to the said notice/letter. Thereafter, the Assistant Commissioner (Drawback) ACC in his proceedings F. No. TA/Genl./203064/2003-04/DBK-ACC dated 5-1-2004 gave the details as to how the excess amount is paid towards the drawback claim. According to the petitioner, the goods exported by the petitioner-company are Poly Acrylic, wool, Lycra Knitted Garments. As per the Drawback Shipping Bill, the export goods were classified under Serial No. 61.09/61.01 of the Drawback Schedule 2002-2003 at the rate of 12% of the FOB value. 3. According to the Department, the goods exported are blended knitwear containing Poly Acrylic/Wool/Lycra with or without natural fibres and would merit classification under Serial No. 60.07 entitled to drawback only at the rate of 12/- per kg. In view of the same, the excess drawback amount was claimed. An opportunity of personal hearing was granted. In the proceedings dated 5-1-2004, the....
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....dule 2002-03, the same is reproduced below :- Serial/ Sub-serial no. Description of goods Rate of drawback Allocation Cus. C. Ex. 60.07 Blended Knitwears containing wool/Acrylic/Nylon/Polyester fibre/viscose fibres/Linen/ Cotton with or without other natural fibres like Mohiar, Angora etc., when cenvat facility has not been availed Rs. 12.00 (Rupees twelve only) per kg. All Central Excise 61.01 Knitted Shirts/Blouses/T-Shirts/Tops, all sorts, when cenvat facility has not been availed. 12% (twelve percent only) of f.o.b. value subject to a maximum of Rs. 40.00 (Rupees forty only) per piece 4.55% 7.5% 61.09 All other knitwears and articles of hosiery made of cotton/polyster/ cellulosic yarn or knitted fabric when Cenvat facility has not been availed. 11.5% (eleven point five per cent only) of f.o.b. Value subject to a maximum of Rs. 35.00 (Rupees thirty-five only) per piece 4% 7.5% It is abundantly lucid from the heading description depicted supra that the Sl. No. 60.07 specifically covers blended knitwears. Per Contra, the Sl. No. 61.01 of the drawback schedule is generic in nature and covers knitted garments of all sorts. Similarly, the heading 61.09 encomp....
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....s (Appeals), Coimbatore has taken a view that the exported goods, viz., cotton and Cotton viscose knitted T-shirts will fall under the Heading 61.01 and not under 60.07 as claimed by the Department and such order has not been challenged by the Department to the knowledge of the petitioner. (iii) Assuming without admitting that the view taken by the Department in the present case that the goods will fall under serial No. 60.07 of the Drawback Schedule, in view of the different view taken by the Commissioner of Customs (Appeals), Coimbatore, it is clear that within the Department, there are two views insofar as the classification is concerned and therefore, the one which is favourable to the assessee should be preferred. Learned counsel for the petitioner-exporter relied upon the decisions in Sun Export Corporation v. Collector of Customs, Bombay reported in 1997 (93) E.L.T. 641 (S.C.) and also Collector of Customs, Madras v. Lotus Inks reported in 1996 (87) E.L.T. 580 (S.C.). (iv) Insofar as interest is concerned, learned counsel for the petitioner-exporter submitted that in the notice, demand for interest is ....
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....s will fall under Serial No. 61.01/61.09 is incorrect. The goods admittedly are blended knitwear containing of Poly Acrylic/Wool/Lycra in different proportions and fall correctly as per the description under serial No. 60.07. In view of the description given by the writ petitioner in the invoice and the Shipping Bill there can be no doubt that the reasoning of the Department that the goods will fall under Serial No. 60.07 is correct. There can be no manner of doubt insofar as the classification of the goods as determined by the Department. The description of the goods as per the documents submitted along with the Shipping Bill will be a relevant criteria for the purpose of classification, if not otherwise disputed on the basis of any technical opinion or test. The petitioner cannot plead that the exported goods should be classified under different headings contrary to the description given in the invoice and the shipping Bill which have been assessed and cleared for export. The concurrent findings by the Authorities on facts with regard to the classification of the goods, needs no interference by this Court. 10. The reliance placed on the reasoning of the Commissioner of Customs (....