2018 (8) TMI 1933

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....ant Commissioner had, vide his above-mentioned order, confirmed the recovery of total Duty Drawback, which was sanctioned earlier to the applicant as per all industry rate, under Rule 16 of the Customs, Central Excise and Service Tax Drawback Rules, 1995 on the ground that the applicant had procured the packaging materials, used in the exported products, duty free against 'H' form. However, the Commissioner (Appeals), vide his above-mentioned Order-in-Appeal, restricted the recovery of drawback relating to the packaging materials only and allowed drawback on other inputs. 2. The revision application has been filed by the applicant mainly on the ground that the All Industry Rates are average rates and the department cannot check duty....

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....rvices used in the exported products. Thus these are general rates and drawback at All Industry Rates is payable in respect of the export goods to the exporter without examining the duty paid character of each input. The applicability of these rates to different commodities is certainly subject to Drawback Rules, 1995 and Notification Nos. 68/2007-Cus. (N.T.), dated 16-7-2007, 103/2008-Cus. (N.T.), dated 29-8-2008, 84/2010-Cus. (N.T.), dated 17-9-2010 and 68/2011-Cus. (N.T.), dated 22-9-2011. One of such conditions stipulated in all the above said notifications as per which the All Industry Rate shall not be applicable to a commodity was that the exported goods should not have been manufactured or exported by availing the rebate of duty on ....

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.... 68/2007-Cus. (N.T.), dated 16-7-2007, 103/2008-Cus. (N.T.), dated 29-8-2008, 84/2010-Cus. (N.T.), dated 17-9-2010 and 68/2011-Cus. (N.T.) dated 22-9-2011. Conflating procurement of inputs against form 'H' with procurement of inputs under Rule 19(2) of Central Excise Rules, 2002 clearly amounts to re-writing of above said condition of Notification Nos. 68/2007-Cus. (N.T.), dated 16-7-2007, 103/2008-Cus. (N.T.), dated 29-8-2008, 84/2010-Cus. (N.T.), dated 17-9-2010 and 68/2011-Cus. (N.T.), dated 22-9-2011 for which Commissioner (Appeals) is not a competent authority. Accordingly, the Commissioner (Appeals) has also erroneously placed reliance on Government of India's order in the case of Sterling Agro Industries Ltd., 2011 (269) E.L.T. 113 (....