AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 765
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....Drawback @ 14.8% was granted in respect of all shipping bills. However, it was subsequently noticed by the department that the applicant has availed Cenvat credit of input services and therefore, it appeared that they were not eligible for drawback @ 14.8% but eligible for drawback at the lesser rate of 3% (i.e. when the Cenvat facility has been availed). 2.2 Therefore, the duty drawback at full rate of 14.8% amounting to Rs. 84,67,883/- granted to the exporter during the period February 2008 to August 2008 appeared to have been erroneously sanctioned, instead of duty drawback admissible at the rate of 3% amounting to only Rs. 17,16,462/-. It thus appeared that this resulted in erroneous grant of excess drawback of Rs. 67,51,419/-, which was liable to be recovered from the applicant. Therefore, a show cause notice was issued to the applicant and the original authority thereafter adjudicated the case and confirmed the demand of Rs. 67,51,419/- towards erroneously granted excess drawback under Rule 16 of Customs, Central Excise and Service Tax Drawback Rules, 1995 along with interest. 3. Being aggrieved by the aforesaid Order-in-Original, the applicant filed appeal before....
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.... fact in observing in para 12 that the applicant had raised the contention of having reversed the credit initially taken and proceeding to examine the legality or otherwise of such contention attributed to the applicant. The applicant submits that in the remanded proceedings the only contention that was raised by the applicant was that they had not availed Cenvat credit of Rs. 3,42,179/- out of the total credit of Rs. 9,16,539/- that was available to them during the financial year 2007-2008 and hence no credit was availed on input services used in the manufacture of exported goods for which duty drawback at full rate of duty was claimed. The impugned order based on the findings on a contention which was not at all raised by the applicant and brushing aside the contention that was actually raised, deserves to be quashed and set aside. 4.3 The applicant submits that as per the direction of this Revisionary Authority it was the job of the applicant to substantiate by way of documentary evidence the claims of the total credit available and of taking only part of such credit and it was the job of the Commissioner (Appeals) to verify such claim. The applicant having filed on record....
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....envat Credit Rules, 2004, the Jurisdictional Range Superintendent and Inspector of Central Excise, who in addition to checking of the export consignments and comparing those with the packing list, had also checked applicants Cenvat credit records. It was only after such verification that Jurisdictional Range Superintendent and Inspector of Central Excise had signed not only on the reverse of the ARE-1s but also on the accompanying declarations that the Cenvat credit under Cenvat finished Goods had not been availed. 5.3 During the period April, 2007 to September, 2007 the applicant had received 86 invoices of input service on which it had availed Cenvat credit. Out of the said 86 invoices, Cenvat credit on the 9 invoices accounting for total credit of Rs. 3,62,269/- only proportionate credit of Rs. 2,40,387/- was availed thereby foregoing the credit of Rs. 1,21,882/-, which again accounts for non-availment of credit on a percentage much higher than the percentage of 8.5% of the exports done under duty drawback. 5.4 The applicant submits that in order to enable the Department to verify the claim of non-availment of Cenvat credit as documented above, the applicant had unde....
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.... It was subsequently found that the applicant availed Cenvat credit on the common services. Thereafter, show cause notice was issued and the case was adjudicated vide Order-in-Original dated 15-4-2011 holding that the applicant having availed Cenvat credit facility (in the form of Service Tax amount) was entitled to drawback @ 3% of FOB instead of (erroneously granted on a wrong declaration) DBK @ 16% of FOB as was available only for those exported goods where no Cenvat credit facility was availed at all (including that of Service Tax amounts). The applicant filed appeal before jurisdictional Commissioner (Appeals). Commissioner (Appeals) vide impugned Order-in-Appeal dated 5-8-2013 has upheld the impugned Order-in-Original dated 15-4-2011 and rejected the appeal filed by the applicant. Now, the applicant has filed this revision application on grounds mentioned in para (4) above. 10. Government observes that provision of drawback of duty of material/inputs used in manufacture of export product has been provided under Section 75 of the Customs Act, 1962. Further, Customs, Central Excise and Service Tax Drawback Rules, 1995 have been formulated under said Section 75 of the Cust....
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....1962) and the rules made thereunder, or of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, or of the Finance Act, 1994 (32 of 1994) and the rules made thereunder, the drawback admissible on the said goods shall be reduced taking into account the lesser duty or tax paid or the rebate, refund or credit obtained" Government finds that the above provision stipulates that the amount of drawback can be reduced by taking into account the lesser duty or tax paid by way of rebate, refund or credit obtained. The plain wording of said provision reveal that if any amount has been availed as credit on any inputs, used in manufacture of final product, then such Cenvat credit should be reduced from eligible drawback. The rate of drawback applicable for different exports are notified by Government by issuing a Notification under Rule 3(1) of Drawback Rules after considering all the relevant factors including the amount of duty involved on inputs & input services. So, the drawback rate fixed has taken into account the Service Tax paid on input services also. 11.2 Government observes that the Notification No. 68/2007-Cus. (N.T.), dated 16-7-2007 prescribes two rates of....
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....summary of month-wise balance in such Cenvat credit account, which shows that the Cenvat credit of Rs. 20,00,692/- which includes Cenvat credit of Rs. 5,74,360/- availed during relevant period was always in balance till the impugned export i.e. the balance of same amount was maintained from September, 2007 to August, 2008 as per Service Tax credit register produced by the applicant for the said period. Department has not objected to the applicant's claim of proportionate reversal of Cenvat credit of input services before utilization. Hence, it is clear that they have reversed the said amount before utilization. 13. Government observes that the applicant had relied upon various judgments including Hon'ble Supreme Court's judgment in the case of CCE, Mumbai-I v. Bombay Dyeing Ltd. Reported in 2007 (215) E.L.T. 3 (S.C.) and GOI Order No. 191/13-Cus., dated 6-6-2013, passed by Revisionary Authority in case of M/s. Indo Rama Synthetics (I) Ltd., Nagpur. It is observed that in aforesaid revision order dated 6-6-2013, following case laws were discussed :- (a) Chandrapur Magnet Wires Pvt. Ltd. v. Collector of Central Excise, Nagpur - 1996 (81) E.L.T. 3 (S.C.)....