2007 (2) TMI 102 - AT - Customs

Drawback - Department contended that drawback not allowed to the appellant on the ground that they use DEPB benefit while importing the raw material and accordingly demand were made- Held that the contention is not correct and set aside the demand

Summary

Issues:
1. Demand of drawback amount under Rule 16 of Drawback Rules, 1995.
2. Eligibility for drawback in the case of exports made without claiming DEPB benefit.
3. Interpretation of General Note 2 to the Draw Back Rules.
4. Invocation of longer period for recovery of drawback.
5. Applicability of Circular No. 57/2004-Cus. on DEPB benefit.
6. Consideration of case laws on limitation for duty recovery.

Analysis:
1. The appeal challenged the demand of Rs. 59,36,812/- under Rule 16 of Drawback Rules, 1995, by the Commissioner of Customs, Tuticorin, from M/s. Polyspin Ltd., Rajapalayam, for erroneously paid drawback amount.

2. M/s. Polyspin Ltd. exported goods without claiming DEPB benefit and received drawback. They argued that as they had not availed DEPB benefit, they were eligible for drawback. The Commissioner found that they had paid CVD on raw materials in cash and refrained from imposing a penalty.

3. The company contended that they were eligible for drawback as they did not operate under the DEPB scheme, citing General Note 2 to the Draw Back Rules. The Commissioner relied on case law and the Tribunal's decision in a similar case.

4. The Commissioner invoked the longer period for recovery of drawback, but the appellants argued that the Tribunal's reversal of earlier decisions in their favor should set aside the demand, especially since no penalty was imposed.

5. The appellants relied on Circular No. 57/2004-Cus., which clarified that DEPB benefit should be allowed on exports even if inputs were cleared under DEPB. The Circular emphasized that DEPB credit can be utilized to discharge duty liability on inputs, entitling the exporter to further DEPB credit.

6. Various case laws were cited on limitation for duty recovery, but the Tribunal found them irrelevant to the case at hand. The Tribunal set aside the impugned order and allowed the appeal based on the clarification in Circular No. 57/2004-Cus., which is binding on all departmental authorities.