TaxTMI 
TaxTMI 
TaxTMI 
2013 (10) TMI 269
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....ay petitions in four appeals being considered in this proceeding. Out of four applicants, Applicant 1 and 2 are exporters from whom duty drawback amounts sanctioned to them are demanded back along with interest and penalties. Applicant No. 3 is the Chief Executive Officer of both Big Bags International Pvt. Ltd. and Big Bags (India) Pvt. Ltd. Applicant No. 4 is the manufacturer of the goods exported for which drawback has been claimed. On Applicant No. 3 and applicant No. 4 only penalties stand imposed. 3. The facts involved in these petitions are common and are arising out of a common impugned Order-in-Original. Therefore, all the four stay petitions are taken up together for disposal. There are also two MISC petitions for early hearing o....
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.... applicants. Aggrieved by the order, the applicants have filed these appeals and petitions for waiver of dues arising from the impugned order for admission of the appeals. 5. Arguing for the applicants, the learned advocate relies on condition (13) of Notification 103/08-Cus (NT) dt. 29-08-2008 notifying the duty drawback rates and conditions under which such drawback can be claimed. Condition (13) is reproduced below :- 'The expressions 'when Cenvat facility has not been availed, used in the said Schedule, shall mean that the exporter shall satisfy the following conditions, namely:- (i) The exporter shall declare, and if necessary, establish to the satisfaction of the Assistant Commissioner of Customs or Assistant Commissioner of Centra....
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....Trade (DGFT), Federation of Indian Export Organizations (FIEO) and exporters stating that some Custom Houses were insisting on non-availment of Cenvat declarations from merchant exporters of garments who were not purchasing their goods from manufacturers but were sourcing their export goods from traders. The Custom Houses were denying full All Industry rate of duty drawback (including the excise rate) in case exporters were not able to furnish such declarations. The FIEO/DGFT and the exporters have represented that the merchant exporters without supporting manufacturers cannot give non-Cenvat availment declarations as they are not aware of the manufacturers and can at best declare the names of traders from whom the goods have been purchased....
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.... as fully duty drawback. Therefore, the only cases for checking whether Cenvat has been availed or not, can conceivably pertain to manufacture-exporters and not to merchant-exporters. 5. The report of the Drawback Committee has been examined in the Board. The goods available in the market are deemed to be duty paid goods. Hence they bear an element of excise duty, which needs to be reimbursed, if such goods are exported. Ideally, the terminal central excise duty paid at the time of clearance from factory should be refunded. However, that is not possible in case of export of goods purchased from the market as the trader exporter doesn't have duty paying documents. The next best option is to grant All Industry Rate (AIR) of duty drawback as ....
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....t exporters 'sourcing their goods from the market and claiming central excise portion of duty drawback may be asked to specifically declare, at the time of export, that no rebate (both input rebate and final product rebate) shall be taken against the exports made against these shipping bills. 7. In view of the above, the Board has decided to accept the recommendation of the Drawback Committee in this regard. Thus merchant exporters who purchase goods from the local market for export shall henceforth be entitled to full rate of duty drawback (including the excise portion). However, such merchant exporters shall have to declare at the time of export, the name and address of the trader from whom they have purchased the goods. They shall also ....
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....to person exporting but with reference to the goods. In the present case, it is very clear that goods were manufactured availing Cenvat credit. He drew our attention to ARE forms filed by the applicants at the time of export to claim drawback in which it has been declared jointly by the applicant-exporter as well as their manufacturer as follows: We hereby certify that the above mentioned goods have been manufactured : (a) without availing Cenvat credit under Cenvat Credit Rules, 2001 10. Ld. AR submits that the first declaration is a wrong declaration which is straightaway identifiable. He points out that incidence of excise duty at the final product stage was lower than the duty drawback amount and that is the ....