TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 796
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....t, 1962 read with Customs and Central Excise Duties Drawback Rules, 1995. The rate of drawback is notified under Notification no. 26/2003-Cus(NT) dated 01.04.2003 under All Industry Rate. As per the said Notification, All Industry Rate of Drawback admissible against export of various products indicate that the type of allocation of duty namely Customs Duty alone or both the duties are qualified for such Drawback. The Notification also specified separate rates when Cenvat is availed and when Cenvat is not availed. It is further their contention that when Cenvat is availed, only Customs Portion of drawback rate is admissible. The Petitioner, accordingly filed three Shipping Bills dated 14.08.2004, 21.08.2004 and 03.09.2004 for export of zinc oxide under claim for drawback under Sr. no. 28.06 of the Drawback Schedule. The goods were duly examined and passed for export by the Customs and were exported and the sale proceeds in Foreign Exchange was received through the negotiating Banks. The goods exported were manufactured by using the inputs received indigenously as per rule 19(2) of the Central Excise Rules 2002 and no rebate was claimed against any inputs or the final products export....
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....t of duty, draw back cannot be sanctioned in view of Para 2(f) of the proviso to Notification no. 26/2003-Cus (N.T) dated 01.04.2003. The Petitioner thereafter contended by another letter addressed to Respondent no. 5 that it is duty bound to follow the Board's instructions contained in the Circular dated 20.04.2001 and 21.03.2005 and requested Respondent no. 5 to sanction and disburse the long outstanding legitimate claim. But, however, without issuing a show cause notice, the Petitioners were granted a personal hearing on 08.03.2006 which was attended by the representative of the Petitioner. The Deputy Commissioner of Customs by his Order in original dated 02.05.2006, rejected the Petitioners' claim for draw back of Rs. 14,07,860/- in respect of the aforesaid three shipping bills holding that the Petitioners' claim for all Industry rate of Drawback is inadmissible in view of the specific inadmissibility proviso 2(f) to the Notification dated 01.04.2003. The Respondent no. 5 did not make any reference to the Board's two circulars dated 21.03.2005. The Respondent no. 5 took the same view as taken in his letter dated 16.02.2006 and rejected the draw back claim filed ....
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....on filed by the Petitioners, inter alia, on the ground that the plea of the Petitioners that actual duty suffered and actual consumption pattern are not to be looked into and it was also held that the Petitioners are not entitled for Customs allocation in drawback schedule by way of deemed provisions or otherwise, by circumventing the fact of back door entry into drawback schedule which is not available in the case. It was further held that the explanation and consequences in the Order in original and the order in appeal are precisely legal and proper when seen through the principles of "Interpretations of statutes" as laid down by the Apex Court in a number of Judgments. It was further held that the claim of Petitioners of Customs portion of All Industry Rate of drawback is not legal and proper. It was further held that the proviso 2(f) of the Notification implies that any drawback is not available to the Petitioners, who have availed of Rule 19(2) of the Central Excise Rules, 2002. 4. The Respondents have re-iterated the findings of the authorities and pointed out that there is no infirmity committed by the authority whilst passing the impugned Order as such Orders were based up....
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....ejected on the ground that the proviso 2(f) of the Notification implies that drawback is not available to the Petitioners which has availed all benefit of Rule 19(2) of the Central Excise Rules of 2002 is totally misconceived. It is further pointed out that the statutory basis of fixing all Industry rates of drawback as contained in Section 75 of the Customs Act of 1962 of Sub-Section (1)A of the said Section provides that where it appears to the Central Government that the quantity of particular material imported into India is more than the total quantity of like material that has been used in the goods manufactured or processed or on which an operation has been carried out in India and exported outside India, the Central Government may declare that so much of material as is contained in the goods exported shall be deemed to be imported material for the purpose of granting drawbacks. It is further submitted by Mr. Singbal learned Counsel appearing for the Petitioner, that in Section 75 of the Customs, Central Excise Duties and Service Tax Drawback Rules of 1995, are to be neutralized in respect of goods manufactured for export and exported out of India. It is further submitted tha....
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....e Order passed by the Deputy Commissioner of Customs dated 02.05.2006, we find that it was held therein that the Petitioner was not entitled to the drawback sought in respect of the three shipping bills in terms of the Notification dated 01.04.2003 and the proviso to Rule 2(f). All Industry Rates of drawback is not applicable to exporters of the Commodity or products manufactured in terms of sub-Rule (2) of Rule 19 of the Central Excise Rules 2002. It was further held that the Circular dated 06.10.2003 was not applicable to the facts of the present case. The Order was thereafter challenged by the Petitioners before the Appellate Authority. The said Appellate Authority noted that the records revealed upon scrutiny that in respect of all the claims put forward by the Petitioners, the finished goods products were removed by the producer of the Company i.e. the same were removed under bond without payment of duties and, consequently, the Department was of the opinion that in view of the removal of the goods under bond without payment of duties, the goods were covered under the provisions of Rule 2(f) of the Notification dated 01.04.2003 and, therefore, All Industry Rates under Drawback....
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....n in DBK schedule by way of deemed provisions or otherwise is circumventing the fact for back door entry into DBK Scheme which is (straightway) not available in this case. 9. ... 10. ... 11. The Govt. is therefore of the considered opinion in this case that simple and plain reading and application of proviso 2(f) of the Notification No. 26/2003, implies that any Drawback is not available to the applicant, who has availed Rule 19(2) of the Central Excise Rules, 2002. Thus th Govt. do not find any reasons to interface with the Order in original of lower authority and Order in Appeal under reference." 10. Rule 19(2) of the Central Excise Rules 2002 reads thus: "Rule 19. Export without payment of duty. - (1) Any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, as may be approved by the Commissioner. (2) Any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Commissioner." 11. The basic contention....
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....factured or exported by a unit licensed as hundred per cent. Export oriented unit in terms of the provisions of the relevant Import and Export Policy. (d) manufactured or exported by any of the units situated in free trade zones or export processing zones or special economic zone; (e) manufactured or exported by availing the rebate of duty paid on materials used in the manufacture or processing of such commodity or product in terms of Rule 18 of the Central Excise Rules, 2002; (f) manufactured or exported in terms of sub-rule (2) of Rule 19 of the Central Excise Rules, 2002; (g) manufactured or exported availing of the facility under the Duty Entitlement Pass Book Scheme as contained in paragraph 7.14, read with paragraph 7.17 of the Export and Import Policy 1997-2002 and manufactured or exported availing of the facility under the Duty Entitlement Pass Book Scheme as contained in paragraph 4.3 of the Export and Import Policy 2002-2007, notified under Section 5 of the Forign Trade (Development and Regulation) Act, 1992 (22 of 1992), read with paragraph 4.37 of the Hand Book of Procedures (Volume 1) issued in pursuance of the provisions of paragraph 2,4 of the said policy....