TaxTMI 
TaxTMI 
2014 (11) TMI 1117
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....s engaged in merchant export of Soyabean Meal falling under Chapter 23 (hereinafter referred to as 'SBM') on which they are entitled to claim duty drawback at the All Industry Rate (for short 'AIR') introduced by Customs Notification No. 81/2006-Cus., dated 13-7-2006 and continued vide yearly customs Notification No. 68/2007, dated 16-7-2007; No. 103/2008, dated 29-8-2008 and No. 84/2010, dated 17-9-2010. According to Clause 5 of the Notification Nos. 81/2006 and 68/2007 as well as Clause 6 of Notification No. 103/2008, the petitioner has been entitled to 1% AIR duty drawback towards customs component since the drawback rate is 1% whether Cenvat has been availed or not. During 2008-09 the respondent No. 4 formed a view that according to Clause 7(e) and (f) of Notification No. 81/2006 and 68/2007 and Clause 8(e) and (f) of Notification No. 103/2008, the petitioner was not entitled to the said AIR drawback towards customs portion if the manufacturers had availed rebate of Central Excise duty under Rule 18 or procured excise duty free inputs under Rule 19(2) of the Central Excise Rules, 2002. The respondent No. 3 at the instance of respondent No. 4 withheld release of AIR drawback to ....
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....ation shall come into force on the 20th day of September, 2010." 7. The respondent No. 1 by communication dated 4-1-2012 (Annexure P/20) intimated that since the words of the Notification No. 84/2010, dated 17-9-2010 are clear and have prospective effect and turn down the request for apply the same retrospectively. Clause 2 to 5 of communication dated 4-1-2012 reads as under :- "2. Para 2 of your letter quotes a line from the Circular No. 35/2010-Cus., dated 17-9-2010 and refers that as a clarification of the Board. A plain reading of the Circular shows that what has been quoted is the reference from the exporters, not the Board's clarification. 3. Vide Condition No. 8(3) & (f) of Notification No. 103/2008-Customs (N.T), dated 29-8-2008 which notified the earlier Drawback Schedule of 2008-09, the rates of drawback specified in the Schedule were not applicable to export of a commodity or product which is 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 or manufactured or exported in terms of sub-rule (2) of Rule 19 ....
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.... of mandamus be issued directing the authorities that Circular No. 35/2010-Cus., dated 17-9-2010 has retrospective effect. 9. Per contra, Shri Prasana Prasad, learned counsel for the respondents has submitted that legal position is well settled that the question of giving retrospective effect to any statute does not arise when its effective date is categorically mentioned therein. He submitted that the Notification dated 17-9-2010 very categorically mentioned that the rates of drawback have been made effective from 20-9-2010. He submitted that at Serial No. 3 which has quoted herein above in the preceding paragraph, it is very clearly mentioned that Notification dated 17-9-2010 shall come into force on 20th day of September, 2010. He also drew our attention to sub-rule (2) of Rule 5 of the Customs, Central Excise Duties & Service Tax Drawback Rules, 1995 : Rule 5. Determination of date from which the amount or rate of drawback is to come into force and the effective date for application of amount or rate of drawback. - (1) The Central Government may specify the period upto which any amount or rate of drawback determined under Rule 3 or revised under Rule 4, ....
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....ck of the entire schedule (whether Excise or Customs components), if the facility of Rule 19(2) of the Central Excise Rules, 2002 is availed. The said conditions are the prime requirement to get the commodity eligible for the drawback. In the case in hand, the Condition No. 7(f) debar the goods from the purview of the drawback if the said goods manufactured or exported availing facility of Rule 19(2) of Central Excise Rules, the drawback was not admissible to the said goods (SBM/DOC) manufactured availing facility of Rule 19(2) of Hexane and/or other materials procured duty free by them and used the same in the manufacture of DOC/SBM. 14. As per reply the stand of the respondent that Clause 5 of Notification Nos. 81/2006 and 68/2007 and Clause 6 of Notification No. 103/2008 and 84/2010 are not applicable in the case of petitioner as the petitioner was not working under Cenvat scheme as their final product was exempted from payment of duty. On the contrary the Clause 7(f) of Notification Nos. 81/2006 and 68/2007 and Clause 8 of Notification No. 103/2008 were applicable in their case as the benefit of Rule 19(2) of the Central Excise Rules, 2002 was availed for the manufactur....