TaxTMI 
TaxTMI 
2013 (4) TMI 705
X X X X Extracts X X X X
X X X X Extracts X X X X
.... P.I/MMD/142/12 dated 27-7-2012 6. -do- 371/12/DBK/12- RA-Cus. P.I/MMD/203/12 dated 23-10-2012 2. Briefly stated the facts of the case are that the applicants had filed an application under Rule 7 of the Duty Drawback Rules, 1995, for Fixation of Brand Rate. After verification of the said applications, it appeared that the applicant at the time of export availed the applicable All Industry Rate (AIR) of Drawback for the exports made but have subsequently filed the subject application for fixation of Brand Rate. Thus they allegedly failed to declare their intention to file application under Rule 7, at the time of export in the relevant shipping bills. Rule 7 enables the exporters to seek fixation of Special Brand Rate of Duty Drawback in respect of exported goods for which AIR under Rule 3 has been determined subject to the condition that the inadequacy of the AIR is established by the exporter and the intent to avail fixation of Special Drawback Rate is to be declared in the relevant shipping bill at the time of export. The C.B.E. & C. Circular No. 10/2003-Cus. (N.T.), dated 17-2-2003 clarifies that pending finalization of application under Rule 7 filed by the exporter, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entralization of work relating to Fixation of Brand Rate of Drawback, states that the fixation of Brand Rate of drawback is, inter alia, subject to the satisfaction of Rule 8(2) of the Drawback Rules which stipulates that the f.o.b. value of the export goods should be more than the c.i.f. value of the imported inputs which are declared to have been utilized for manufacture of the export goods. Therefore, it is submitted that once the substantive conditions for fixing brand rate, specified in Rule 7 and aforesaid Circular dated 6-3-2003 have been satisfied, the denial of drawback claim on mere technical grounds such as the Shipping Bills mentioned the wrong Sl. No. of the Drawback Schedule under the AIR Scheme, was without any basis. The impugned Orders-in-Appeal are liable to be set aside for this reason. 4.2 The mentioning of the Heading under the Drawback Schedule wherein the exported goods in question are covered, in the application for fixation of brand rate is merely procedural. The same does not have any bearing on the fixation of brand rate of duty drawback under Rule 7 of the Drawback Rules. The nature of the error is purely technical/procedural which occurred due to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act, 1962 are not satisfied in the present case. The applicants have not misdeclared any material particular while applying for brand rate fixation. The applicants have expressly stated that they have availed the benefit of credit of duty paid on inputs used in the manufacture of exported finished goods in question. The proceedings initiated by the department to deny duty drawback is based on an erroneous footing for the reason mentioned in the preceding paragraphs. Therefore, imposition of penalty is not tenable and liable to be set aside. 4.5 A letter was written to the C.B.E. & C. to clarify the issue involved in the instant case, by the Additional Commissioner of Central Excise, Pune-I on 2-12-2011. This means, the Department itself was not aware of it, before 2-12-2011. This means, the Department itself was not aware of it, before 2-12-2011. The same letter was answered by the C.B.E. & C. on 30-12-2011 with the signature of one Mr. Ashok Kumar Pande, Sr. Technical Officer, who himself forgot to specifically mention the Act/rule/notification/circular details which entails that 'If the exporter chooses to opt for Brand Rate, then the exporter makes declaration in the Ship....
X X X X Extracts X X X X
X X X X Extracts X X X X
....exported the goods under All Industry Rate of drawback. Subsequently, the applicant by terming the same as an inadvertent error wanted to change the same into a claim of fixation of Brand Rate of Basic Customs Duty. The lower authorities have objected to it stating that applicants failed to indicate their intention to avail brand rate of drawback under Rule 7 at the time of export in the relevant Shipping Bills, and violated the provisions of Drawback Rules as well as circular/clarification issued by the C.B.E. & C. Government also notes that no any specific relaxation thereof under Rule 17 of the above DBK Rules, 1995 with respect of such amendments is on record before this authority. Government also finds that the C.B.E. & C. vide its clarification contained in F. No. 604/04/2011-DBK, dated 31-12-2011, the C.B.E. & C. has clarified as under :- "(a) As per Rule 7 of the Drawback Rules, 1995, if the exporter finds that the amount or rate of Drawback determined, under notified AIR drawback under Rule 3 or 4 is less than four-fifth of the duties & taxes suffered on inputs/input services used in manufacture of export goods, he may within specified period apply before the ....