TaxTMI 
TaxTMI 
2005 (4) TMI 164
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....ring the relevant period they had exported 8 Pcs Hard anodized Aluminium cookware, which has Polytetra Floroethylene (PTFE) coating inside and Hard Anodizing outside. They classified the goods under S. No. 6 of DEPB scheme, which covers Aluminium utensils (other than those at S. No. 105). They had also exported 3 Pcs Fry Pan with PTFE coating inside and painting outside and similar other non-stick items. In respect of these items, which have PTFE coating inside and painting outside they claimed DEPB under S. No. 105. However, DRI conducted investigations and on the basis of the investigations, Revenue proceeded against the appellants. The case of the Revenue is that the appellants claimed higher rate of DEPB under S. No. 6 instead of claimi....
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.... DEPB pass book is not sufficient for eligibility of Modvat credit availed on the strength of Bills of Entry. The learned Advocate impressed upon us that the debit in DEPB is not considered on par with payment of duty by cash. That is why the Modvat credit is not admissible. This shows that the DEPB credit cannot be considered as duty. When it cannot be considered as duty Section 28 will not come into the picture. Hence the demand is not sustainable. (iv) The power for altering the DEPB credit taken is not vested with the Customs authorities. Only the DGFT authorities have the jurisdiction to cancel or vary the DEPB credit after observing the formalities of quasi judicial proceedings. Until and unless that is done, the Customs auth....
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....he exported items. The thrust of the learned Advocate's argument is S. No. 105 covers aluminium utensils with interior PTFE coating and exterior painting (non-stick) with/without handle. The goods which conform to the above description and manufactured by the appellants had rightly been classified under S. No. 105 only and the relevant DEPB credit was claimed. As regards the goods in question there was no exterior painting even though there was interior PTFE coating. In other words the impugned goods cannot fall under S. No. 105. They rightly fall under S. No. 6. (vii) As regards the clarification given by the DGFT in its meeting, it would only apply prospectively and not retrospectively as the goods were exported much earlier.....
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.... We have considered the rival submissions. The main allegation is that the appellants had availed excess DEPB credit by declaring their goods under S. No. 6 instead of S. No. 105. We notice that S. No. 105 refers to utensils with PTFE Coating interior and painting outside. As far as the impugned goods are concerned there is no dispute regarding the fact of PTFE coating inside. However, in the outside they are Hard Anodized and not painted. Only when the goods are painted they would come under S. No. 105. This is evident on a plain reading of the description given in S. No. 105. Under these circumstances, the impugned goods are, prima facie, classifiable under S. No. 6. The revenue urges that the issue is clinched by the clarification given ....