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2013 (10) TMI 1307 - CGOVT - CustomsDenial of duty drawback claim - fixation of brand rate - department returned the application stating that the applicants are required to file application before proper authority i.e. Development Commissioner, SEZ - Bar of limitation - Held that - Initially the applicant filed application for fixation of brand rate on 13-6-2006 with reference to Shipping Bill No. 4226170 which was given LEO on 27-4-2006 i.e. within 60 days time from date of LEO as stipulated in above said Board s Circular dated 6-3-2003. The said application was returned by the jurisdictional Customs authority by stating that Development Commissioner is proper authority for claiming drawback in their case. After receipt of decision in the matter of Development Commissioner, it was finally settled that jurisdictional Customs authority, who initially returned the drawback application are proper authority for filing such applications. The applicant, thereafter, filed drawback application again on 21-9-2007, which was rejected by the original authority on the ground of time limitation. - applicant initially filed rebate claim within stipulated 60 days. Hence, the applicant cannot be faulted for subsequent late submission of application after getting the clarification regarding proper authority on pursuance of department only. - Decided in favour of assessee.
Issues Involved:
1. Fixation of Brand Rate for Duty Drawback. 2. Time Limit for Filing Drawback Applications. 3. Jurisdiction of Authority to Adjudicate. 4. Delay in Filing Departmental Appeal. Issue-wise Detailed Analysis: 1. Fixation of Brand Rate for Duty Drawback: The applicant, M/s. Famy Care Ltd., filed applications for the fixation of Brand Rate under Rules 6 & 7 of the Customs, Central Excise & Service Tax Drawback Rules, 1995, for the Service Tax paid on input services. The initial application was filed on 10-6-2006 for the month of April 2006. The department returned the application, directing the applicant to file it with the Development Commissioner. After prolonged correspondence, the applicant filed a revised application on 20-9-2007. The department issued 19 show cause notices (SCNs) for rejection of the applications on the grounds of limitation. The adjudicating authority dropped the SCNs, stating that no date was prescribed under the relevant Rules 6 & 7 of the DBK Rules, 1995, and that the Circular No. 14/2003-Cus., dated 6-3-2003, was irrelevant. The Commissioner (Appeals) set aside the Order-in-Original, leading to the current revision application. 2. Time Limit for Filing Drawback Applications: The core issue revolves around the time limit for filing Brand Rate applications. The department argued that the applications were filed beyond the prescribed time limit of 60 days with an extended period of 30 days as per Circular No. 14/2003-Cus., dated 6-3-2003. The adjudicating authority initially found that the Circular's time limit contradicted the provisions of Rules 6 & 7 of the DBK Rules, 1995. The Government observed that the Circular clearly stipulates a 90-day time limit (including a 30-day condonable period) from the Let Export Order (LEO) date for filing such applications. The applicant initially filed the application within the stipulated 60 days, and the subsequent delay was due to departmental directions to file with the Development Commissioner. Thus, the initial filing date should be considered for computing the time limit. 3. Jurisdiction of Authority to Adjudicate: The applicant argued that the original adjudicating authority's order under DBK Rules should be appealed before the Government of India, not the Commissioner (Appeals), as per Rule 6 of the DBK Rules. The Government found merit in this argument, noting that the original adjudicating authority's decision should be reconsidered by the Central Government, not the Commissioner (Appeals). 4. Delay in Filing Departmental Appeal: The applicant contended that the department's appeal was unsustainable due to delay. The appeal was filed beyond the one-month period stipulated under Section 35E(4) of the Central Excise Act, 1944. The Government found that the appeal was indeed filed late, which should have been considered by the lower appellate authority. Conclusion: The Government concluded that the initial filing date of 13-6-2006 should be taken into account for computing the time limit for the drawback application. The case was remanded back to the original authority for fresh consideration, treating the applications as filed within the stipulated time. The impugned orders were set aside, and the revision application was disposed of accordingly.
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