TaxTMI 
TaxTMI 
2023 (2) TMI 493
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.... Tariff and supplies the same to domestic and overseas markets. Amongst various benefits the Petitioner receives from the export promotion scheme, the Petitioner is also entitled to duty drawback under section 75 of the Customs Act, 1962 (the Act), read with Customs Central Excise Drawback Rules, 1995 (Rules of 1995). The present petition concerns the drawback of the export of refrigerators manufactured by the Petitioner during the period from 28 February 2011 to 14 March 2012. Various components are utilized in the manufacture of refrigerators, and the present controversy surrounds the compressor used in the manufacture of refrigerators. It is the case of the Petitioners that the compressors are manufactured at the Noida unit of the Petitioner, and since the Petitioner was desirous of expediting the matter and the collection of documents was taking time, the Petitioner filed three applications for fixing brand rates as per Rule 7 of the Rules of 1995. For the period from 28 February 2011 to 31 March 2011, the Petitioner claimed a duty drawback of Rs.13,52,795/- for the period from 4 October 2011 to 31 March 2012 Rs.2,89,72,517/- and for the period from 15 March 2011 to 14 March 20....
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....ed, then whether on merits, such re-fixation of brand rates was necessary. It is clear that if, on the first ground, the Petitioner succeeds, then the second aspect on merits would not arise. 9. Therefore, we take up the aspect of jurisdiction first. Respondent No.4, while re-fixing the brand rates, has not referred to any specific section of the Act or the Rules of 1995 as regards the power to be exercised. Before the Commissioner (Appeals), the Respondents' contention was that the re-fixation of brand rates was done as per Rule 16 of the Rules of 1995. The Respondents also rely upon the CBEC Circulars dated 6 March 2003 and 18 September 2003. Rule 16 of the Rules of 1995 reads thus: "16. Repayment of erroneous or excess payment of drawback and interest. - Where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails to repay the amount it shall be recovered in the manner laid down in sub-section (1) of section 142 of the ....
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....he Commissioner (Appeals) accordingly set aside the orders of the Commissioner, holding that they were passed without jurisdiction and void ab initio. 11. The Revisional Authority has dealt with this issue of jurisdiction in one paragraph, which reads thus: "11. Now, as regards the jurisdiction of the department in respect of re-fixation of Brand Rates the relevant portion of Circular No. 83/2003-Cus dated 18.09.2003 applicable in the case is reproduced below for reference. Circular No. 83/2003-Cus., dated 18-9-2003 F.No. 603/32/2003-DBK " .. (c) Fixation and approval of brand rate of duty drawback as laid down in para 3(d)({i) of Circular No.14 /2003 vis-a-vis the provision of post-audit prescribed in para 3(d)(ix). The function of the post-audit is to safeguard the revenue by pointing out errors whether in the nature of calculation mistake or wrong application of rules/regulations, etc. Based on the same, the Commissioner of Central Excise and the officers under his control have been invested with powers to rectify such mistakes through issuance of any amendment, addendum or corrigendum to the brand rate letters issued. How....
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....ision of post-audit prescribed in para 3(d)(ix). The function of the post-audit is to safeguard the revenue by pointing out errors whether in the nature of calculation mistake or wrong application of rules/regulations, etc. Based on the same, the Commissioner of Central Excise and the officers under his control have been invested with powers to rectify such mistakes through issuance of any amendment, addendum or corrigendum to the brand rate letters issued. However, as a matter of further decentralisation, for the convenience of the trade and for speedier issuance of the brand rate letters, it has been decided that proposals for fixation of brand rate involving duty drawback of more than Rs.5 lacs, shall be approved by the Additional/Joint Commissioner of Central Excise without any limit. In other words, no proposal for fixation of brand rate of drawback shall be submitted to the Commissioner of Central Excise for approval." (emphasis supplied) As regards clause 3(d) is concerned, as referred by the Revisional Authority, the same reads thus: "(d) Scope of rules 6(3) and 7(4) of the Customs and Central Excise Duties Drawback Rules, 1995. It is clarified that the....