TaxTMI 
TaxTMI 
2025 (6) TMI 1288
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....r Articles 226 and 227 of the Constitution of India, the petitioner has challenged the Order No. 39-42/2022-CUS. (WZ)/ASRA/Mumbai dated 08/02/2022 passed by the Revisional Authority, Ex Officio Additional Secretary to the Government of India as well as the Order in Appeal passed by the Commissioner of Customs (Appeals), Mumbai-III dated 02/07/2015 in Appeal No. MUM-CUSTM-AXP-APP-159-162/15-16. 5. Brief facts of the case are as under: 5.1. The petitioner is a company engaged in business of manufacture of goods like neutral glass tube. The petitioner imported capital goods from Germany in the month of June 2009 and Bills of Entry were filed which are tabulated as under: Sr.No. BOE No. BOE Date Assesssble Value Total Import Duty Paid (Rs.) Basic Cust. Duty (BCD) Customs Educational Cess Customs Sec. & Higher Educational Cess Total BCD Portion 1 120891 18.06.09 10,80,14,774 2,23,47,685 81,01,108 3,53,381 1,76,690 86,31,180 2 121000 18.06.09 10,39,13,082 2,23,64,890 77,93,481 3,39,962 1,69,981 83,03,424 3 742110 01.10.08 2,05,69,287 58,90,881 15,42,697 94,625 47,312 16,84,63....
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....under: Sl.No. S/Bill No. & Date Description of Goods F.O.B. Rs. P.M.V. Rs. 01 000420 dated 11.12.2009 PM-Foreheartth Electrodes, Mat No.901017139, Sr.No. 3814 & 3815, Drawing No. 1414007-A, (2 Numbers) 26,94,056.86 29,63,462.56 02 -Do- PM-Orifice Ring Dia 120MM, Mat No.901052469, Serial No. 1838 & 1839, Drawing No. 1515005-1-C, (2 Numbers) 1,59,37,947.13 1,75,31,741.84 03 -Do- PT-Ring for Hotflush, Mat No. 901062147, Serial No. 1050, Drawing No. 1522019-TEO-00000-0, (1 Number) 22,89,891.17 25,18,880.28 04 -Do- ROD-Electrodes, Mat No. 901056516, Serial No. 7532 to 7540, Drawing No. 1414019-1, (9 Numbers) 3,60,68,249.19 3,96,75,074.13 05 -Do- Starter Electrodes, Mat No. 901062145, Serial no. 3822 to 3828, Drawing No. 1418004-800, (7 Numbers) 1,94,64,057.82 2,14,10,463.62 06 -Do- MO-Stirrer with PM-Shaft, Mat No. 901022503, Serial No.3455, Drawing No. 1130009-1A, (1 Number) 22,33,010.09 24,56,311.10 07 -Do- PM-Bell (270 ER A-ZUG-NADEL), Mat No. 901062130, Sl No. 2802, Drawing No. 1322010 (1 Number) 1,43,81,409.98 1,58,19,550.98 08 -Do- PM-Bell (270 ER A-ZUG-....
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....ner preferred the Revision Applications before the Revisionary Authority, Government of India. Respondent no. 1 being a Revisionary Authority by impugned order dated 08/02/2022 confirmed the order passed by respondent no. 2 as well as appellate authority so far as the computation of the eligibility of the drawback under Section 75 (4) of the Act is concerned, however, remanded the matter back to the original adjudicating authority for determining the length of the period between the date of clearance of home consumption and the date when the goods were placed for Custom control for export for applicability of the percentage of the drawback as per the Notification No. 23 of 2008. 6. Being aggrieved, the petitioners have preferred this petition challenging the impugned orders passed by the respondents. 7. Learned advocate Mr. Parth Rachchh appearing for the petitioner submitted that as per the provision of Section 74 of the Act, the petitioner is eligible for drawback on the re-export of the goods with regard to the basic custom duty only because, as per the provision of Section 2 (15) of the Act, duty is defined as the duty of customs leviable under the said act. It was theref....
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....ted that the petitioner has filed the bill of entry for re-exportation on 11/12/2009 and the goods were imported by the petitioner in the month of June, 2009 and accordingly the petitioner has rightly applied the 85% of the basic custom duty for the purpose of claiming the duty drawback. It was submitted that respondent authorities were not justified by treating the issuance of the LEO (Let Export Order) being the date for considering the applicability of the percentage as per the Notification No. 23 of 2008 because once the petitioner filed the shipping bill and the goods were handed over under the control of the Customs on 11/12/2009 and thereafter if the LEO is issued on 08/02/2010, the petitioner should not suffer for reduced claim on account of late issuance of the LEO by the Custom authority beyond period of six months as the petitioners had ceased to have control over the goods when the shipping bills were filed and the goods were handed over to the custom authorities on 11/12/2009. 11. It was therefore submitted that the Revisionary Authority was not justified in remanding the matter back to the original adjudicating authority for determining the period between date of c....
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....mitting clearance and loading of goods for export under Section 51 of the Act. It was therefore submitted that the respondents authorities have rightly considered the date of issuance of the Let Export Order for the purpose of export of the goods and till that point of time it cannot be said that the goods were under the Custom control. It was submitted that in view of the statutory provision of Section 74 (1) (i) of the Act, the period of goods remaining in India has to be calculated from the date of clearance for home consumption and the date when the Customs Authority permitted such re-export of the goods. 14. It was submitted the respondent authorities have therefore been rightly directed by the Revisionary Authority to calculate the exact date of clearance for home consumption and the date of re-export of the goods in question. It was therefore submitted that no interference may be made in the impugned orders passed by the respondent authorities by exercising jurisdiction under Articles 226 and 227 of Constitution of India in absence of any mistake, error of any fact or law in the impugned orders. 15. Having heard learned advocate for the respective parties and consideri....
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....id duty or any charges in such manner as may be provided by rules.] [(2) Where the exporter fails to pay the export duty, either in full or in part, under the proviso to sub-section (1) by such due date as may be specified by rules, he shall pay interest on said duty not paid or short-paid till the date of its payment at such rate, not below five per cent and not exceeding thirty-six per cent per annum, as may be fixed by the Central Government, by notification in the Official Gazette.] (iv) Section 74 of the Customs Act, 1962 reads as under: "74. Drawback allowable on re-export of duty-paid goods (1) When any goods capable of being easily identified which have been imported into India and upon which [any duty has been paid on importation, - (i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or (ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purp....
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....n 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (v) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); (vi) the Education Cess on excisable goods leviable under section 91 read with section 93 of the Finance (No. 2) Act, 2004 (23 of 2004); [(via) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007);] (vii) the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v) [, (vi) and (via)]: [ * * * ] [(viia) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act [ * * * ] : Provided that a provider of [output] service shall not be eligible to take credit of such additional duty;] (viii) the additional duty of excise leviable under section 157 of the Finance Act, 2003 (32 of 2003); (ix) the service tax leviable under section 66 of the Finance Act; [* * *] [(ixa) the....
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....ct, 2016 (28 of 2016)]. (2) Notwithstanding anything contained in sub-rule (1), the manufacturer or producer of final products shall be allowed to take CENVAT credit of the duty paid on inputs lying in stock or in process or inputs contained in the final products lying in stock on the date on which any goods manufactured by the said manufacturer or producer cease to be exempted goods or any goods become excisable. (3) Notwithstanding anything contained in sub-rule (1), in relation to a service which ceases to be an exempted service, the provider of the output service shall be allowed to take CENVAT credit of the duty paid on the inputs received on and after the 10th day of September, 2004 and lying in stock on the date on which any service ceases to be an exempted service and used for providing such service. (4) The CENVAT credit may be utilized for payment of - (a) any duty of excise on any final product; or (b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are remove....
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....tingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001) :]] [Provided also that the CENVAT credit of any duty specified in sub-rule (1) shall not be utilized for payment of the Clean Energy Cess leviable under section 83 of the Finance Act, 2010 (14 of 2010):] [Provided also that the CENVAT credit of any duty specified in sub-rule (1) shall not be utilised for payment of the Swachh Bharat Cess leviable under sub-section (2) of section 119 of the Finance Act, 2015 (20 of 2015):] Provided also that the CENVAT credit of any duty mentioned in sub-rule (1), other than credit of additional duty of excise leviable under [section 85 of Finance Act, 2005 (18 of 2005)], shall not be utilised for payment of said additional duty of excise on final products:] [Provided also that CENVAT credit shall not be utilised for payment of Infrastructure Cess leviable under [sub-section (1) of section 162 of the Finance Act, 2016 :]] [Provided also that the Cenvat credit of any duty specified in sub-rule (1) shall not be utilised for payment of Krishi Kalyan Cess leviable under section 161 of the Finance Act, 2016 (28 of 2016);] [....
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.... of account then] the manufacturer or service provider, as the case may be, shall pay an amount equivalent to the CENVAT credit taken in respect of the said input or capital goods : Provided that if the said input or capital goods is subsequently used in the manufacture of final products or the provision of [output] services, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of these rules.] [* * * * * *] [(5C) Where on any goods manufactured or produced by an assessee, the payment of duty is ordered to be remitted under rule 21 of the Central Excise Rules, 2002, the CENVAT credit taken on the inputs used in the manufacture or production of said goods [and the CENVAT credit taken on input services used in or in relation to the manufacture or production of said goods] shall be reversed.] [Explanation 1.- The amount payable under sub-rules (5), (5A), (5B) and (5C), unless specified otherwise, shall be paid by the manufacturer of goods or the provider of output service by debiting the CENVAT credit or otherwi....
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....l be equal to [X multiplied by [(1+BCD/200) multiplied by (CVD/100)]] : [Provided further that the CENVAT credit in respect of inputs and capital goods cleared on or after the 7th September, 2009 from an export-oriented undertaking or by a unit in Electronic Hardware Technology Park or in a Software Technology Park, as the case may be, on which such undertaking or unit has paid - (A) excise duty leviable under section 3 of the Excise Act read with serial number 2 of the Notification No. 23/2003-Central Excise, dated 31st March, 2003 [G.S.R. 266(E), dated the 31st March, 2003]; and (B) the Education Cess leviable under section 91 read with section 93 of the Finance (No. 2) Act, 2004 and the Secondary and Higher Education Cess leviable under section 136 read with section 138 of the Finance Act, 2007, on the excise duty referred to in (A), shall be the aggregate of - (I) that portion of excise duty referred to in (A), as is equivalent to - (i) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, which is equal to the duty of excise under clause (a) of sub-section (1) of section 3 of the Excise ....
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.... Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007), or the additional duty of excise leviable under section 85 of the Finance Act, 2005 (18 of 2005) respectively, on any final products manufactured by the manufacturer or for payment of such duty on inputs themselves, if such inputs are removed as such or after being partially processed or on any output service :] [Provided that the credit of the education cess on excisable goods and the education cess on taxable services can be utilized, either for payment of the education cess on excisable goods or for the payment of the education cess on taxable services : Provided further that the credit of the Secondary and Higher Education Cess on excisable goods and the Secondary and Higher Education Cess on taxable services can be utilized, either for payment of the Secondary and Higher Education Cess on excisable goods or for the payment of the Secondary and Higher Education Cess on taxable services :] [Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on inputs or capital goods received in the....
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....ble slabs or tiles falling under [Tariff items 2515 12 20 and 2515 12 90 respectively] of the First Schedule to the Excise Tariff Act shall be allowed to the extent of thirty rupees per square metre; [(d) Cenvat credit in respect of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016) shall be utilised only towards payment of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016)]. Explanation.- Where the provisions of any other rule or notification provide for grant of whole or part exemption on condition of non-availability of credit of duty paid on any input or capital goods, or of service tax paid on input service, the provisions of such other rule or notification shall prevail over the provisions of these rules." (vi) Notification No. 23 of 2008 dated 1st March, 2008 reads as under: "Notification: 23/2008-Cus. dated 01-Mar-2008 Drawback quantum on re-export-Amendment to Notification No. 19/65-Cus. In exercise of the powers conferred by sub-section (2) of section 74 of the Customs Act, 1962 (52 of 1962), the Central Government....