AI Drafter 
TaxTMI 
TaxTMI 
2013 (4) TMI 705
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....A-Cus. P.I/MMD/174/12 dated 14-9-2012 5. M/s JCB India Ltd. 371/46-A/DBK/12-RA-Cus. 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....
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....urther, M.F.(D.R.) Circular No. 14-Cus./2003, dated 6-3-2003 issued from F. No. 609/32/2003-DBK pertaining to decentralization 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 drawbac....
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....e purposes of the Customs Act. The applicants submit that the conditions for imposition of penalty under Section 114AA of the Customs 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/notificat....
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....cant has filed these revision applications on grounds mentioned in para (4) above. 8. Government observes that initially the applicant 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-fi....
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....istence. Moreover, exporter has to carefully choose a scheme which is beneficial to him at the time of filing Shipping Bill. After choosing a scheme he can not be allowed to change it subsequently. Therefore Government finds the said clarification as legal and proper and finds no reason to ignore the same. 10. Government is of the considered opinion that in a situation as above, specifically when the applicant herein is disputing the interpretation of the relevant statutory provisions and also the conclusions as drawn above, Government thinks it proper to consider and proceed in the matter in the light of Hon'ble Supreme Court's observations in the case of M/s. ITC Ltd. v. CCE Delhi - 2004 (171) E.L.T. 433 (S.C.) and other Apex Court/Supreme Court decisions that the statutes have to be interpreted strictly within terms and language of statute and without intendments or any liberal interpretation. Further, Hon'ble Supreme Court in case of M/s. India Aluminum Co. [1991 (55) E.L.T. 454 (S.C.)] and Hon'ble Tribunal in case of M/s. Avis Electronics has observed that when provisions are stipulated for doing a particular act in a specific manner then it would mean that any deviati....