TaxTMI 
TaxTMI 
2013 (5) TMI 91
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.... The petitioner was sanctioned drawback and the amount was also paid to the petitioner. Later on notices were issued to the petitioner for recovery of the amount on the ground that the petitioner was not eligible to receive drawback under Rule 16 of Customs & Central Excise Duties Drawback Rules, 1995 (hereinafter referred to as the 'Rules of 1995'). The petitioner submitted reply and thereafter Assistant Commissioner of Custom ICD, Malanpur has held that the petitioner was not eligible to receive drawback. Consequently, the petitioner was ordered to deposit the amount with interest. The authority held that drawback amount was recoverable on the following grounds:- "2.1 The Applicant did not clear goods in Form ARE-2 and did not follow the procedure under Notification No.42/2001. By not doing so, in addition to procurement of input material without payment of duty, the Applicant have availed the double benefit of duty drawback on export consignment. Therefore, the Applicant have knowingly/ deliberately suppressed the fact by not clearing their exported goods under ARE-2 as required under Notification No.43/2001. 2.2 The contention of the Applicant that, neither the assessment of ....
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....ti wall paper after issuance of show cause notice. Hence, the claim of the petitioner has rightly been rejected by the authority. 6. The learned counsel for the petitioner submits that the petitioner is also entitled the benefit in accordance with condition Nos.7(f) of Notification No.68/2007-CUS (NT) and condition No.8(f) of Notification No.103/2003-CUS (NT), wherein it is mentioned that the drawback of customs is available irrespective of fact whether the exporter availed CENVAT facility or not. He further submitted that the petitioner had paid excise duty on MS drums and multi wall papers, the material which was imported by the petitioner for the purpose of manufacture and export of skimmed milk powder, full cream milk powder, butter oil etc. Hence, the petitioner is eligible the drawback facility. In support of his contentions, the petitioner relied on the following judgments:- (i) Overseas Engineers vs.CCE, Rajkot - 2007 (215) ELT 513 (Tri). (ii) Voltas Ltd. vs. CCE, Hyderabad - 2006 (202) ELT 355 (Tri.) (iii) Dynamatic Technologies Ltd. Vs. UOI - 2005 (186) ELT 277 (Kar.) (iv) Forbes Gokak Ltd. vs. CCE, Belgaum 2005 (182) ELT 219 (Tri.) (v) DCW Ltd. vs. Asstt. CCE, Tuti....
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....back', which is as under:- "3. Drawback: (1) Subject to the provisions of (a) the Customs Act, 1962 (52 of 1962) and the rules made thereunder, (b) the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, and (c) these rules, a drawback may be allowed on the export of goods at such amount, or at such rates, as may be determined by the Central Government: Provided that where any goods are produced or manufactured from imported materials or excisable materials on some of which only, duty chargeable thereon has been paid and not on the rest, or only a part of the duty chargeable has been paid; or the duty paid has been rebated or refunded in whole or in part or given as credit, under any of the provisions of the Customs Act, 1962 (52 of 1962), and the rules made there under, or of the Central Excise Act, 1944 (1 of 1944) and the rules made there under, the drawback admissible on the said goods be reduced taking into account the lesser duty paid or the rebate, refund or credit obtained: Clause (ii) of second proviso to Rule (3) (1) of the Rules of 1995 prescribes that no drawback shall be allowed if the goods are produced or manufactured using imported materials ....
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....:- "(8) The rates of drawback specified in the said Schedule shall not be applicable to export of a commodity or product if such commodity or product is - (f) manufactured or exported in terms of sub-rule (2) of rule 19 of the Central Excise Rules, 2002." 15. The aforesaid notifications prescribe that the drawback shall not applicable if the goods are manufactured or exported in terms of sub-rule (2) of rule 19 of the Rules of 2002. The aforesaid rules, as quoted above, give the facility to the manufacturer to export the goods without payment of duty. In the present case, the respondents themselves admitted the fact in the return that the petitioner deposited CENVAT credit availed on duty amount on inputs i.e. MS drums in question on 28.4.2009. 16. It is further pleaded by the department in the return that the petitioner had agreed to deposit the duty foregone on the inputs i.e. packing materials in question and deposited Rs.22,06,762/- on duty and Rs.2,57,385/- on interest on 28.4.2009. The argument of the department is that there is no provisions under the Statute for reversal of duty foregone. The revisional authority also observed that because the petitioner availed the fac....
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....d as under:- "There is no merit in this civil appeal. Under the notification, mode of payment has not been prescribed. Further, exemption is given to the final product, namely, grey fabric under the Central Excise Act, 1944, levy is on manufacture but payment is at the time of clearance. Under the Act, payment of duty on yarn had to be at the spindle stage. However, when we come to the Exemption Notification No. 14/2002-C.E., the requirement was that exemption on grey fabrics was admissible subject to the assessee paying duty on yam before claiming exemption and subject to the assessee not claiming CENVAT credit before claiming exemption. The question of exemption from payment of duty on grey fabrics arose on satisfaction of the said two conditions. In this case, payment of duty on yarn on deferred basis look place before clearance of grey fabrics on which exemption was claimed. Therefore, payment was made before the stage of exemption. Similarly, on payment of duty on the input (yarn) the assessee got the credit which was never utilized. That before utilization the entry has been reversed which mounts to not taking credit. Hence, in this case, both the conditions are satisfied. H....